The Search for the Least Bad Asylum Seeker Policy
“When the facts change I change my mind. What do you do, Sir?”
– John Maynard Keynes
On the weekend perhaps two hundred asylum seekers bound for Australia perished off the coast of Java. One key question about Australia’s asylum seeker problem was finally resolved. No one can any longer pretend that a regime of spontaneous asylum seeker boat arrivals and onshore processing does not carry with it grave and arguably unacceptable risks. In such circumstances, a conscientious national search for a solution to the asylum seeker problem can no longer be postponed. Unfortunately such a search is made almost impossible by two different kinds of stalemate – one political, the other ideological.
The political stalemate is the more familiar. It can be summarised like this. Both the Labor Government and the Coalition Opposition now support one or another form of offshore processing of asylum seekers, as a means of deterring further asylum seeker boats. Labor supports sending eight hundred asylum seekers to Malaysia. The Coalition supports recreating the detention camp on Nauru. Since the High Court judgment in August this year, the Malaysian Solution has been rendered unlawful and the Nauru solution at least dubious from the legal point of view. If offshore processing is to proceed an amendment to the law is thus required. Yet, with extraordinary bloody-mindedness, neither the Labor Government nor the Coalition will support the amendment that would facilitate the Solution favoured by the other side.
On both sides, from the point of view of principle, the resistance is hypocritical. The Coalition opposes the Malaysian Solution on the ground that Malaysia is not a signatory to the UN Refugee Convention. It advocates towing boats of asylum seekers back to Indonesia. Indonesia is however not a signatory to the UN Refugee Convention. Labor’s favoured solution followed closely the collapse of its hopes for an East Timor internment camp. The Government’s East Timor Solution would however have hardly differed from Nauru. Moreover, its Malaysian Solution assumes, as a logical premise, the opening of a Nauru-style offshore processing camp if more than 800 asylum seekers arrive by boat in the next four years. The asylum seeker policy differences between Labor and the Coalition are, in short, very largely confected.
The political stalemate has had, of course, a paradoxical outcome. Despite the fact that both Labor and the Coalition now support offshore processing of the claims of asylum seekers who arrive by boat, entirely by default Australia finds itself with a more liberal version of onshore processing than the one that prevailed before the institution of the Pacific Solution in late 2001 – no temporary protection visas and mandatory detention with a somewhat more human face.
The disastrous consequences of the political stalemate have now become quite obvious. Despite the coming of the monsoon season, there has been an increase in recent weeks in the number of asylum seeker boats setting off from Indonesia for Australia. Two of these boats have sunk. On the weekend, a very large number of people died.
These recent events have also accentuated the continuing significance of the ideological dimension of the asylum seeker stalemate. Ever since the Howard government opted to solve the asylum seeker problem by military means – either by forcing asylum seeker boats back to Indonesia or, when that failed, by despatching the asylum seekers to offshore processing camps on Nauru and Manus Island – asylum seeker policy has been one of the most explosive issues of the ideological battle in Australia between the culture-war camps of Left and Right. Just as in the political stalemate where there has been hypocrisy on both sides, so in the ideological stalemate there has been dishonesty in both camps.
Howard defenders have been unwilling to concede that the Pacific Solution that they supported both undermined the rule of international law and was also, for those who were towed back to Indonesia or who were interned for years on Nauru or Manus Island or who were repatriated to Afghanistan and Iran, extraordinarily cruel or exceedingly dangerous. Because of Australian policy, thousands of lives were blighted or even ruined. So far as I am aware, no one on the Right has ever conceded that the success of the Howard deterrent policy came at a terrible human cost.
For its part, the Left has generally been unwilling to concede that as a means for deterring asylum seeker boats the Pacific Solution actually “worked”. The evidence here is straightforward. Between 1999 and the introduction of the Pacific Solution in late 2001, 12,176 asylum seekers arrived by boat. In the years of the Pacific Solution – 2002 to 2008 – 449 arrived. Since the abandonment of the Pacific Solution toward the end of 2008, 14,008 asylum seekers have reached Australian shores. Yet on the Left the meaning of these facts, for some reason, continues to be resisted. The Left’s unwillingness to acknowledge what ought to have been self-evident has been of even greater political significance in recent years than the moral callousness of the Right.
It is now clear that when the Rudd government was elected in 2007 a wise asylum seeker policy would have involved leaving the legal and institutional framework of the Pacific Solution intact and humanising Australia’s asylum seeker policy by increasing the annual quota of refugees and abandoning temporary protection visas and mandatory detention. By 2007, it was obvious that the Pacific Solution had succeeded as a deterrent. The internment camps on Nauru and Manus Island were empty. The undeniable cruelty of the policy had reached its natural end. No Government in its right mind would have intentionally introduced a policy encouraging the return of the asylum seeker boats.
So far as I know no one on the Left with an interest in asylum seeker policy – and I include myself – was farsighted or independent or courageous enough to offer the incoming Rudd government advice along these lines. Having pretended for years that the Howard government’s Pacific Solution had not succeeded as a deterrent, both the Rudd Government and the opponents of the Howard government’s asylum seeker policies were utterly unprepared for the altogether predictable arrival of significant numbers of asylum seekers following its dismantling.
With the return of the boats, the ideological contest between Left and Right on the asylum seeker question erupted once more. One issue was the question of whether the spontaneous arrival of the boats from Indonesia posed an unacceptable risk to the lives of the asylum seekers. For years the supporters of the Howard policy had warned about the dangers facing asylum seekers who travelled here by boat. Howard’s opponents were convinced that the warnings arose not from genuine concern but as a cynical debating point. If concern for the wellbeing of the asylum seekers was sincere, Howard’s defenders would not have tolerated soul-destroying indefinite mandatory detention in Australia or on Nauru or the policy of towing the asylum seeker boats back to Indonesia.
In their suspicions about the motivations of the supporters of the Howard policy, the Left was largely correct. The trouble here was that even if it was true that the argument about dangers facing asylum seekers was often advanced by Howard’s defenders in bad faith, this of course did not prove that the dangers they warned of were not real.
In a similar way, the friends of the asylum seekers were often suspicious about the ways in which the defenders of Howard used high-minded rhetoric about the evils of the people smugglers as a way of justifying their punitive anti-asylum seeker policies and actions. Often the friends of the asylum seekers pointed out that during the Second World War “so-called people smugglers” had saved the lives of large numbers of Jewish refugees.
We now know that these arguments were badly flawed. Even if it was true that the defenders of harsh asylum seeker policies used the people smuggler issue opportunistically and as a debating point; even if it was also true that in different historical circumstances people smugglers once did indeed save very many lives – none of this shows that the kind of people smugglers involved in the contemporary movement of people from the Middle East and Central Asia to Australia were not indeed what the defenders of the deterrent policies had always claimed them to be – profiteering criminals and contemptible human beings.
Last weekend these arguments were more or less definitively resolved. Many desperate human beings died because a people smuggler was willing to massively overload a frail fishing boat during the monsoon season to collect a fee of $5000 a head. Whoever was responsible for this deed is more akin to a mass murderer than a modern-day Oskar Schindler. The danger of the asylum seeker passage from Indonesia to Australia is terrifyingly real.
For all Australians with an interest in the wellbeing of asylum seekers, but especially for the former opponents of the Howard policy like myself, the tragic events of the weekend demand policy re-evaluation, ideological self-scrutiny and an open-minded search for some plausible exit from the current political and ideological stalemate.
What follows is a blunt summary of the position I have now reached:
There is no possibility of finding a solution to the problem of asylum seeker boat arrivals that will not be seriously morally, legally and politically flawed in one way or another. In particular, no workable solution will be discovered by former opponents of the Howard policy that will offer the psychological reward of what James McClelland once described as “the warm inner glow”, the permanent but usually illusory hope of the Left.
There is probably now no alternative to some form of offshore processing. Public opinion is opposed to the spontaneous arrival of asylum seeker boats. We now know that onshore processing – even when combined with harsh deterrent measures like mandatory detention and temporary protection visas – will not stop the boats of (mainly) desperate human beings arriving. We now also know that because of the unscrupulous nature of the people smugglers, boats sailing from Indonesia to Australia will never be even remotely safe.
With regard to offshore processing, so far only two models have emerged.
One is the Malaysia solution: 800 deportees in exchange for 4,000 refugees over four years. The critical and probably insuperable moral and legal problem here is that under the Malaysia model Australia abandons the protection of people for whom we have involuntarily assumed a solemn responsibility to a necessarily uncertain fate.
The second model is an offshore processing centre on somewhere like Nauru or Manus Island. The advantage of this option is that the centre could be placed under Australian control, with decent health, accommodation and education facilities provided. For such a processing centre to be established, of course, Labor and the Coalition must immediately abandon their unseemly and pointless Indian arm-wrestle over asylum seeker policy and cooperate in good faith in the amendment to the Migration Act.
The obvious problem with a humane offshore processing camp administered by Australia is that it might not succeed in its purpose – that is to say as a deterrent to the spontaneous arrival of asylum seeker boats. One solution to this dilemma is to nominate in advance the number of those found to be refugees that Australia will accept each year from the camp, and to admit that number (more or less) strictly on the basis of date of arrival. This policy would appeal to public opinion. On “fair-go” grounds, Australians strongly approve of queues. As it is almost inevitable that no other country would accept refugees from this camp, the certainty of a two or three year wait should act as a powerful deterrent.
Once offshore processing is established, the legislation permitting mandatory detention should be repealed. The memory of the dreadful things that happened in the Australian asylum seeker detention camp archipelago will most likely puzzle, perplex and shame later generations of Australians.
If there are almost no more spontaneous boat arrivals, Australia should move at once to the policy now favoured by both the Labor Party’s Immigration Minister, Chris Bowen, and by the Greens – an increase in the annual quota of refugees from 13,750 to 20,000. Some emphasis should be placed on finding homes for those people who have been found to be refugees but who have been marooned for several years in Indonesia.
The facts determining Australia’s asylum seeker problem became even clearer last weekend. The tragedy should act as a reality check – to both Labor and the Coalition, to both Left and Right. The current political and ideological policy stalemate is both intolerable and unconscionable. It is true that there is no plausible solution that will not be without serious legal, political and moral problems. However the search not for the perfect but for the least bad asylum seeker policy can no longer be delayed.