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Australia’s shipwrecked refugee policy
Since 1976 fewer than 50,000 asylum seekers have reached Australia on boats. More than half have arrived since the election of the Rudd government; more than a third – over 17,000 – in the past 12 months. Until the Tampa incident in late August 2001, policy regarding asylum seeker boat arrivals was bipartisan. Since then the question of the boat asylum seekers has been fiercely contested and politically explosive. In 2001 the issue helped John Howard win an election. In 2010 it helped loosen Kevin Rudd’s grip on the Australian prime ministership. In 2013 it is very likely to contribute to the defeat of the Gillard government.
Australia is in general a humane country. Usually it displays great skill in public policy. And yet, when it comes to the arrival of boats of asylum seekers without visas, in the past 20 years public policy has been cruel (as under Hawke, Keating and Howard), ineffective (as under Rudd) or, as at present under Gillard, both cruel and ineffective. All this is rather puzzling. No one has shown that once accepted as citizens the relatively small numbers of non-repatriated refugees who have arrived by boat since 1976 have caused the country any harm.
When trying to explain the gap between the relative insignificance of the problem for Australia posed by the arrival of asylum seeker boats and the political and policy volatility of the response, scholars and commentators have usually referred to Australian political culture – to the long racist shadow cast by the White Australia policy and to what has been identified as the Immigration Department’s deeply entrenched “culture of control”. No doubt there is considerable truth in this explanation. But there is also a major problem.
A few years after the abandonment of the White Australia policy, 2000 Vietnamese refugees reached Australia by boat. Despite popular anxiety and hostility, they were received by the government with real generosity. Comfortable hostel accommodation and comprehensive settlement services were provided. The detention of these refugees, let alone their expulsion, was unthinkable. Because of its involvement in the Vietnam War, the Fraser government felt a moral responsibility for the refugees. Because of enthusiasm for the dismantling of the White Australia policy, both the government and the Whitlam and Hayden Opposition were careful not to stir underlying racist sentiment, which anti–Vietnamese refugee rhetoric very easily could have done. The informal compact of decency between government and Opposition that arose as a result ensured that it was not public opinion or the political culture but wise and bipartisan political leadership that prevailed. The explanation of both the toxic nature of asylum seeker politics and the shambles into which asylum seeker policy has recently descended is in my opinion to be found not so much in the legacy of the White Australia policy as in four key political decisions – in 1992, 2001, 2008 and 2012 – taken since the successful and painless settlement of the Vietnamese boat arrivals in the late 1970s.
The first decision occurred under the Hawke and Keating governments after the arrival in north-west Australia of some 600 mainly Cambodian asylum seekers aboard 15 boats between November 1989 and November 1992. This is a story that was barely reported at the time, and is now almost entirely unremembered, but which deserves to be far better known.
A boat of the Cambodian asylum seekers arrived at Pender Bay near Broome on 28 November 1989. Unlike the Vietnamese who arrived between 1976 and 1979, these asylum seekers and those who followed them over the next three years were offered not refuge but prolonged detention. In the language with which Australians would become all too familiar, the government publicly derided the Cambodians’ refugee claims. Prime Minister Hawke labelled them “queue jumpers”; a Keating government immigration minister “forum shoppers”. The asylum seekers were time and time again shunted across the country between detention centres in Broome, Sydney and Darwin until settled permanently at Port Hedland in the remote north-west. Throughout this period access to lawyers was deliberately made difficult. Decisions on their refugee claims were long delayed.
For the Pender Bay Cambodians the final decision to turn down their plea for protection was not reached until April 1992. The asylum seekers’ lawyers appealed at once to the Federal Court. The case was set down for 7 May. Two days before the case was heard the Commonwealth parliament amended the Migration Act with bipartisan support. One amendment, which labelled all the asylum seekers who had arrived since November 1989 “designated persons”, provided the legal basis for their detention for a period of up to 272 days. Another amendment effectively excluded the courts from the asylum seeker process. In December 1992, the 5 May Migration Act amendments were tested in the High Court. The right of the government to exclude the courts from asylum seeker cases was rejected. Its right to detain asylum seekers for periods of up to 272 days succeeded. Lawyers representing the Cambodians took action for compensation for their clients’ unlawful imprisonment before 5 May 1992. The parliament responded with legislation to limit the claims to $1 a day. Not long after, further amendments to the Migration Act removed the 272-day limit and narrowed the grounds for the courts’ involvement in asylum seeker cases. The era of indefinite mandatory detention for asylum seekers without visas had arrived.
The vindictive behaviour of the Hawke and Keating governments regarding the Cambodians contrasts starkly with the generosity the Fraser government showed to the Vietnamese. For this there are several explanations. During the Cold War, refugees (at least from communism) had a very powerful source of support from anti-communist politicians and intellectuals who saw vindication of their faith in the refugees’ flight. By 1989 that kind of support for refugees had evaporated. The Cambodian asylum seekers were championed only by left-leaning lawyers and activist Christians. No one else seemed much interested. Newspapers barely reported their plight. A few months before the arrival of the Cambodians, after the June 1989 Tiananmen massacre, a lachrymose Bob Hawke had promised that none of the 20,000 Chinese students then in Australia would be forced to return home. Within the Department of Immigration this announcement created pandemonium. No more asylum seekers were wanted. More importantly, the arrival of the Cambodians coincided with Australia’s assumption of a pivotal role in the Cambodian peace process. One vital dimension of that process was the repatriation of the 300,000 Cambodians from the Thai border camps. If it was perfectly safe for these Cambodians to go home, how could the Australian government accept that the Cambodians who reached our shores were refugees in need of protection? In parliamentary debates, both government and Opposition MPs spoke about the dangers of an invasion should the government send the wrong signal over boat arrivals. Long-term detention was meant to deter future boats. This was probably the most important explanation for the ill treatment of the Cambodian asylum seekers.
Eventually, after certain asylum seekers had been imprisoned for almost four years, the cases were settled in a way that allowed the government to save face. The asylum seekers were promised that if they voluntarily returned to Cambodia for 12 months, they would be allowed to migrate to Australia.
This obscure episode is a vital part of the explanation for Australia’s current asylum seeker mess. In the bitter set-piece battles between the government and the lawyers for the Cambodian asylum seekers, the legal foundation of indefinite mandatory detention had been laid. The amendments of 5 May were the government’s improvisatory response to the threat of asylum seekers being released. As the saying goes, however, there is nothing so permanent as the temporary. Between 1992 and 2008, this rushed parliamentary amendment formed the basis of the harsh Australian policy of prolonged mandatory detention for asylum seekers who arrive without visas. More subtly, as the most prescient writer on this episode, Father Andrew Hamilton, pointed out at the time in the Jesuit magazine Eureka Street, it was through this episode that both political parties made an important discovery – that governments could treat asylum seekers more or less as they wished. People could be transported from place to place in a “psychologically brutal” way. They could be imprisoned for several years without access to courts. And all this and more could take place without the slightest sign of “public outrage”. Reflecting on this episode Hamilton consoled himself with the thought that things could be even worse. At least, he argued, “the RAN does not push the boats back as the US Navy does the boats from Haiti.” He might have added: “At least, not yet”.
Between 1993 and early 1995 dozens of boatloads of asylum seekers reached Australia. Some were Vietnamese from the Indonesian Galang Island detention camp who had been rejected as refugees by the United Nations High Commission for Refugees (UNHCR). Under the internationally negotiated Comprehensive Plan of Action they faced repatriation to Vietnam. Others were so-called “Sino-Vietnamese”, ethnic Chinese from Vietnam who had been settled in the Beihai region of southern China by the UNHCR following the 1979 border war between China and Vietnam. According to the stories they told, they had once more been roughly uprooted by urban development plans. Yet others were citizens of China, some fleeing from the one-child policy. Almost all these asylum seekers were speedily repatriated either to Vietnam or to China. Amendments to the Migration Act in November 1994 determined that the cases of those “screened out” by the UNHCR or who came from UNHCR settlement in China, a “safe third country”, were not refugees. In addition, in January 1995 a memorandum of understanding facilitating repatriation was signed between China and Australia.
Because of automatic repatriation before entering the asylum seeker processing system, over the next three years the flow of boats from China gradually dried up. Apart from a handful of boat arrivals, ferrying mainly Afghans and Iraqis, between 1995 and the winter of 1999 almost the only new asylum seeker cases the department had to deal with were those who flew to Australia on student or tourist visas and then applied for asylum. As before and since, the thousands of air arrivals each year caused no fuss. The urban immigration detention centres by now almost exclusively held those who had breached their visa conditions. The asylum seeker detention centre at Port Hedland was empty. By the spring of 1999, Australia appeared to have solved the problem of the asylum seeker boats.
This appearance was of course misleading. Detailed departmental information about the fate of the people on the few boats arriving in the first nine months of 1999 shows that while Chinese or Bangladeshis were routinely repatriated, in every single case the small number of Iraqis and Afghans who arrived were eventually granted refugee status. How could a humanitarian country send people back to Saddam Hussein’s vicious police state or to the Islamist nightmare of Afghanistan under the Taliban? In October, the numbers of Iraqis and Afghans arriving on boats ceased to be small. On 11 October, 102 Iraqis and eight Afghans arrived; on 1 November, 299 Iraqis and 46 Afghans; on 26 November, 132 Afghans and 18 Iraqis. A new asylum seeker passage – from the Middle East or Central Asia to Australia via Malaysia and Indonesia – had opened up. In 2000, the Iraqis and Afghans were joined, though in smaller numbers, by Iranians fleeing from the theocratic state of the ayatollahs. Between September 1999 and August 2001 some 12,000 asylum seekers from Iraq, Afghanistan and Iran arrived by boat on Australian territory – either Christmas Island or Ashmore Reef. Well over 90% were eventually found on first hearing or on appeal to be genuine United Nations Convention refugees.
The poisonous nature of the asylum seeker legacy the Labor government had bequeathed to its successors only now became clear. Indefinite mandatory detention for 600 Cambodians was merely cruel. Indefinite mandatory detention for almost 12,000 Iraqis, Afghans, Iranians and also many stateless Palestinians was unworkable as well. An archipelago of old and new, city and desert immigration detention centres – Villawood, Maribyrnong, Port Hedland, Curtin, Woomera, Baxter – spread across Australia. Within these swollen detention centres inmates faced an uncertain wait for months or years. The detention centres became the sites of riots and break-outs, of occasional suicide attempts and hunger strikes, and of almost routine instances of severe depression or self-harm. Young children witnessed these events. Eventually most of the detention inmates would be released as proven refugees into the community on temporary protection visas. Prohibiting family reunion, these had been introduced by the Howard government in October 1999 as a supplementary (and equally ineffective) line of deterrence to mandatory detention. Those who were found not to be refugees faced, at least in theory, the prospect of imprisonment for the remainder of their lives.
Interestingly, the more desperate the inmates’ behaviour in the detention centres throughout 2000 and 2001, the less sympathetic public opinion appeared to become. The skilful rhetoric of Phillip Ruddock, the minister for immigration, suggested that the inmates were not merely queue jumpers seeking hotel-style treatment but were cunning manipulators of people’s natural sympathy, seeking to morally blackmail their way out of detention. Very many people seem to have believed their government could not possibly have decided to lock asylum seekers away for months or years without some persuasive reason. Yet it would be wrong to suggest that the question of asylum seekers was a major political issue before August 2001. Anti–asylum seeker feeling was merely latent or, as social researcher Hugh Mackay shrewdly observed, a “sleeper issue” from the political point of view. It was only because of the deliberate and fateful decision taken by John Howard in late August 2001 that the anti–asylum seeker issue moved to the centre of the Australian political stage.
Throughout the first half of 2001 it looked as if Howard would lose the election due later in the year. Late in August a Norwegian cargo ship, the Tampa, rescued 438 Afghans on a sinking asylum seeker boat. The government refused permission for the Tampa to enter Australian waters. Paratroopers temporarily took it under control. The asylum seekers were transported to an improvised detention centre on Nauru. The RAN was now mobilised for a quasi-military operation to prevent any further boats of asylum seekers reaching Australian territory. In case any boats slipped through, Christmas Island and Ashmore Reef were “excised”, that is to say excluded from the operation of the Migration Act. In the four months after Tampa 13 asylum seeker boats set out from Indonesia for Australia. One sank, drowning 353 men, women and children. Four were forced back to Indonesia by the navy. The remaining boats were intercepted and the asylum seekers sent either to Nauru or another detention centre on Manus Island, Papua New Guinea, in what was called the Pacific Solution.
No Opposition leader could have been more co-operative over asylum seekers than Kim Beazley. Labor had consistently supported mandatory detention and temporary protection visas. At the time of Tampa Beazley strongly backed the government’s actions, announcing that this was no time for “a carping Opposition”. There was only one Tampa bill Labor would not support, the one that would have rendered lawful even the murder of an asylum seeker by an Australian official. Rather than thanking Beazley, Howard seized on this single instance of dissent to suggest that when it came to border security Labor was soft. To help win the election in November 2001, over the next two months the government vastly exaggerated or invented the Opposition’s asylum seeker policy differences.
The asylum seeker decisions taken by the Howard government from August 2001 have proven fateful for two main reasons. From that moment – in particular because, less than three weeks after Tampa, the September 11 attack on the United States militarised the atmosphere throughout the Western world – a large number of Australians came to regard asylum seekers from the Middle East who tried to reach their country by boat not only as an immigration problem but as a threat to border security necessitating the use of naval force. Secondly, the rough bipartisanship that had characterised asylum seeker politics since the arrival of the Vietnamese in 1976 never returned. For the Coalition, the plight of asylum seekers came to represent not so much a tragedy or even a problem as a wonderful vote-garnering opportunity.
For almost seven years virtually no asylum seeker boats reached Australian territory. Simple common sense suggested that the government’s post-Tampa asylum seeker policies – naval interception of all asylum seeker boats and then either escort back to Indonesia or offshore processing on Nauru or Manus Island – “worked” as a deterrent. Strangely enough, neither the Howard government nor its enemies seemed able to accept the logic of this new situation. Even though indefinite mandatory detention had by now become redundant as a deterrent, for several years the Howard government refused to release into the community the hundreds of asylum seekers – in particular the Iranians and Palestinians – who could not be repatriated after their claims for protection had failed. In 2005, I visited the unit of Adelaide’s Glenside psychiatric hospital dedicated to the Iranian asylum seekers who had spent years in the Baxter detention centre at Port Augusta. All its inmates had fallen into a condition of almost unreachable, catatonic depression. For their part, friends of the asylum seekers continued in one way or another to deny the morally and politically uncomfortable fact that the cruel policies of the Howard government had succeeded in their object: the deterrence of asylum seeker boats. For this blindness, which also affected members of the Labor Opposition, there would eventually be a heavy political price to pay.
Kevin Rudd signalled his bid for the Labor Party leadership in late 2006 with an article in this magazine about the role of Christianity in politics. On the question of asylum seeker policy, he wrote: “The parable of the Good Samaritan is but one of many [biblical injunctions] which deal with the matter of how we should respond to a vulnerable stranger in our midst.” Once he became leader of the Opposition, Rudd was somewhat inconsistent on the question of asylum seekers. On the eve of the 2007 election, for example, he told the Australian that Labor would force boats of asylum seekers back to Indonesia – hardly the action expected of a contemporary Good Samaritan. Nonetheless, he and his party did go to the November 2007 election promising to unravel most of Howard’s benighted asylum seeker legacy.
Once elected, Rudd proved true to his word. In the course of 2008, three big decisions were announced. Long-term mandatory detention was restricted to those cases where there was a real risk to the community or where visa conditions had been consistently breached. Temporary protection visas were abandoned. Nauru was closed down and an ambiguous form of offshore processing transferred to the costly and empty state-of-the-art detention centre built by the Howard government on the excised territory of Christmas Island. There was no risk and much gain in humanising mandatory detention and abandoning temporary protection visas. They had never succeeded as deterrents. There was however a very great political risk in announcing the end of the one measure that had truly “stopped the boats” for the past six years – the threat of naval interception and offshore processing on Nauru. By the beginning of 2008 Nauru was empty. It might have been wiser to keep Nauru open and to offer homes in Australia to substantial numbers of the Afghan refugees and others who had been marooned in Indonesia for very many years. If Nauru remained open yet empty, the policy of offshore processing would continue to undermine the rule of international refugee law. If no boats arrived, however, at least no actual human suffering would be involved.
The first boat of the new wave of asylum seekers arrived on 29 September 2008. Others soon followed. In 2009, 2726 asylum seekers reached Australia and in 2010, 6555 – many more than in any of the Howard years. Kevin Rudd acted as if caught unawares. Somewhat incoherently, he promised that his policy would be simultaneously both tough and humane. He expressed some sympathy for the asylum seekers but described the people smugglers who brought them to Australia as the “scum of the Earth”. In the spring of 2009, Rudd twice tried to improvise a solution to his asylum seeker headache by appealing directly for help to the Indonesian president. Both affairs – of the Jaya Lestari 5 and the Oceanic Viking – ended in tears. As a consequence of his apparent weakness in response to the refusal of Sri Lankan asylum seekers to disembark from the Oceanic Viking – a kind of Tampa in reverse – Rudd’s two-year-long political honeymoon finally came to an end.
By now, public opinion on the asylum seeker issue was hardened and settled. A survey conducted in 2010 by Andrew Markus of Monash University in the Mapping Social Cohesion project showed that about four of every five Australians opposed the idea of offering a permanent home to those who arrived by boat. By now, too, the asylum seeker issue was being prosecuted by the Coalition with a corrosive cynicism. In public, its members shed crocodile tears about the growing number of deaths at sea of asylum seekers trying to reach Australia. In private, there was delight as evidence mounted about the Rudd government’s fateful miscalculation of 2008. As a WikiLeaks State Department cable revealed, in November 2009 a key Liberal Party strategist told the American ambassador that the more boats arrived, the happier his party would be. Shortly afterwards, Tony Abbott won the leadership of the Liberal Party. He immediately made it clear that at the next election he would promise to “stop the boats” by reinstating all the Howard government’s asylum seeker policies, including temporary protection visas, naval escort of boats back to Indonesia and the re-opening of Nauru. Faction leaders of the Labor Party understood the danger. At the time of the 23 June 2010 “coup” that deposed him as prime minister, Kevin Rudd announced his refusal to compete in a “race to the bottom” over asylum seeker policy. Doubtless the 2008 asylum seeker decisions had been a factor in his demise.
Rudd’s successor, Julia Gillard, promised to toughen Labor’s asylum seeker policy. Her government hinted at the imminent establishment of an East Timor offshore processing centre, a suggestion that helped her survive the 2010 election but that Dili soon turned down. The government then proposed a Malaysian Solution – the deportation of the first 800 asylum seekers to arrive in return for the settlement over three years of 4000 refugees in Malaysia. This was judged unlawful by the High Court. Immediately, the government proposed an amendment to the Migration Act. The Coalition was high-mindedly opposed. Its main ground was the immorality of sending asylum seekers to a country that had not signed the United Nations Convention on Refugees. Even by Coalition asylum seeker standards this was breathtakingly hypocritical. Like Malaysia, Indonesia was not a signatory to the United Nations Refugee Convention. Yet one of the Coalition’s key proposals for the solution to Australia’s asylum seeker problem was forcing boats back to Indonesia.
In August last year, the Gillard government bowed to the inevitable and decided to open the offshore processing camps on Nauru and Manus Island, which the Howard government had established in 2001 with such apparent political and policy “success”. On this occasion even Abbott could not find a reason to oppose a policy he had advocated for three years. The ambition of the return to the Pacific Solution was to find what was called a “circuit breaker” and to deter further boat arrivals. There is no reason to doubt that the government was motivated in part by genuine humanitarian concerns – since 2001 a thousand asylum seekers had died at sea trying to reach Australia, most of them since the return of Labor. More fundamentally, however, the government was driven by political considerations. It was widely accepted that the asylum seeker issue favoured the Coalition over Labor by as much as 30 percentage points and was therefore central to Tony Abbott’s bid to become Australia’s next prime minister.
The supposed deterrent effect of the restoration of the Pacific Solution has so far proven a spectacular failure. Whereas Howard in 2001 created an atmosphere of military emergency and treated the asylum seekers like lepers who had to be kept from Australia, Gillard has merely conducted a rather sinister lottery. Since the August announcement, about 10,000 asylum seekers have arrived by boat. Of these, 600 or so – 1 out of 18 – have been chosen to be sent to Nauru or Manus Island. In addition, like the Chinese in the 1990s, several hundred Sri Lankans have been repatriated without entering the asylum seeker process. The remainder of the asylum seekers are either in detention centres on Christmas Island or the Australian mainland or, because the detention centre archipelago is now overflowing, have had to be released into the community on bridging visas.
Because the re-establishment of the offshore camps has failed to act as a deterrent, all semblance of rationality in Australia’s policy on boat asylum seekers has collapsed. The post-August asylum seekers are all being dealt with according to the government’s new “no advantage” principle. This principle provides that no asylum seeker will be better off for having made the perilous journey to Australia than they would have been had they waited patiently in Indonesia for the UNHCR to process their claims. Scholars Savitri Taylor and Brynna Rafferty-Brown have found that the average time of waiting for resettlement of refugees in Indonesia is at least five years. In an interview, Chris Bowen, the former immigration minister, showed that he had reached the same conclusion. “I’ve said repeatedly – repeatedly – the no-advantage test will mean that people will wait for a very substantial period. Could it be five years? Yes, it could.” If the post–August 2012 asylum seekers are unlucky, they must choose between returning to danger in their homelands or being marooned on Nauru or Manus Island for the next five years. If they are lucky, either immediately or eventually they will be released into the community, with neither adequate means nor the right to work until 2017. This effectively amounts to a government scheme inviting able-bodied residents to choose between abject penury and crime.
The strange story of Australia and the asylum seekers is not yet over. The Markus Mapping Social Cohesion surveys have shown that the ratio of those who think the government’s asylum seeker policy performance poor rather than good has moved from 4:1 in 2010 to 8:1 in 2011 to 12:1 in 2012. As the September election beckons, the Labor government’s asylum seeker fears are well grounded. On the other hand, over the past few months Tony Abbott’s asylum seeker policy has become increasingly irrelevant. Labor’s “no advantage” principle is in some ways even harsher than his promise to restore temporary protection visas. The re-opening of Nauru and Manus Island has already happened and, so far at least, has failed to deter. And Indonesia has made it clear that it will not accept the forced return of boats. As Sri Lankans are already routinely being repatriated, Abbott’s pledge to maintain a permanent and immensely expensive naval operation in the Indian Ocean is simply absurd. On hundreds of occasions Abbott has solemnly promised the Australian people that he will stop the boats. Abbott learnt from Howard about the political efficacy of asylum seeker cruelty. When he becomes prime minister there is good reason to fear the extremity and the inhumanity of what it is that he will do.
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