April 28, 2017

Issues and policies

For a rights-based response to asylum seekers

By Klaus Neumann, Anne McNevin, Antje Missbach, Damir Mitric and Savitri Taylor
For a rights-based response to asylum seekers


Australia must work towards a medium-term solution

We welcome the opportunity to respond to the recent article by Robert Manne in the Monthly, which appeared in response to a comment by Klaus Neumann that was initially posted in March on the Refugee Research Blog. In the following we expand some of Neumann’s ideas, and engage constructively with the proposal first put forward by Robert Manne, Frank Brennan, John Menadue and Tim Costello in August of last year.

There is no doubt in our minds that the treatment of people on Manus Island and in Nauru who had sought to engage Australia’s protection obligations is cruel and morally indefensible, that it violates their human rights, and that their transfer to Australia is urgently needed to prevent further harm. We also strongly believe that those who cannot be repatriated, whether because they are refugees or for some other reason, ought to be given secure legal status in Australia (at least until a suitable third country, such as the United States, offers to take them). In our view – which seems to be largely shared by Manne and colleagues – holding asylum seekers on Manus Island and in Nauru has proven to be ineffective as a deterrence measure, and is therefore unnecessary if one followed the logic of deterrence. We return to that point below.

We would also like to dispel some misunderstandings that may have arisen in the exchange between Neumann and Manne. We do not doubt that Manne and colleagues are concerned about the systemic issues that lead to forced displacement, that they too would like to see a solution which is in line with international refugee law and international human-rights law, and that issues of justice are important to them. It is useful to acknowledge here the limitations inherent in the format of both the most recent opinion piece published by Manne and colleagues in the Guardian (which did not make reference to questions of justice and wider systemic issues) and Neumann’s blog post, which responded to that opinion piece.

Our views differ from those put forward by Manne and colleagues in two key respects: we argue that the government’s turn-back policy is internationally unlawful and that its continuation undermines the prospects of addressing the issue of forced displacement in our region; and we argue that it is imperative to work for a medium-term solution because a sustainable and just short-term solution is all but impossible.

Manne and colleagues call for a compromise that involves retention of the current policy of turning back boats carrying people who intend to seek Australia’s protection. They emphasise that turn-back must be “lawful, transparent and conducted in such a way that the asylum seekers’ lives are not put in peril”. They concede, however, that the government’s current practice is not transparent and, in their Guardian article, they refrain from claiming that it is legal and safe. In fact, they want people such as former defence force chief Angus Houston and former foreign affairs secretary Michael L’Estrange, two of the authors of the 2012 Expert Panel report on asylum seekers, to assure us that boats could be stopped safely and legally.

Australia is a party to the Refugee Convention, the Convention against Torture and the International Covenant on Civil and Political Rights. Although Australia and the United States take a different view, the generally accepted legal position is that state parties to these treaties have non-refoulement obligations that are engaged not only when asylum seekers enter their territorial jurisdiction but also in any situation in which their officials or agents take control of asylum seekers outside their territory. There is no question that Australia’s interception activities involve Australian officials taking control of the passengers on the boats intercepted.

All three treaties oblige Australia to refrain from sending a person to any place in which they would be exposed to relevant harm, and prohibit indirect as well as direct refoulement.

In cases where intercepted boats have come directly from the passengers’ country of origin, Australia conducts screening interviews on the water to identify individuals with prima facie protection claims. Manne acknowledges that the screening is “perfunctory” and places Australia at risk of breaching its non-refoulement obligations. However, he takes comfort from the number being “relatively small” and from assurances provided by Vietnamese authorities (and hopefully Sri Lankan authorities) that those repatriated will “not be treated harshly”.

Between 19 December 2013 and 31 March 2017, 113 Vietnamese passengers from three boats were taken back to Vietnam and 130 passengers from seven boats were taken back to Sri Lanka. A “relatively small” number, perhaps, but that is little comfort to those affected.

An SBS Dateline investigation by David Corlett and research by the Human Rights Law Centre provided evidence showing that people returned to Sri Lanka were subjected to human-rights abuses after their return; in fact, according to a Corlett piece in the Saturday Paper, some of those whose protection claims were considered unfounded by Australia were later recognised as refugees by the UNHCR.

Evidence given by Major General Andrew Bottrell at a Senate Estimates hearing on 25 May 2015 confirmed that Australia obtains written assurances from Vietnamese authorities that individuals will not be prosecuted for illegal departure. According to reports by the ABC, however, at least one person returned by Australia to Vietnam subsequently received a prison sentence of three years for departing the country illegally. Diplomatic assurances, moreover, do nothing to address the original harm that those who fled feared in the first place. Bottrell also gave evidence that Australia takes assurances “on trust” and does not conduct post-return monitoring. By contrast, the international jurisprudence suggests that diplomatic assurances may be relied upon only if, upon consideration of all the facts of the given case, it seems safe to do so and if post-return monitoring is conducted. Neither condition currently appears to hold.

Australia could also be placed in breach of its non-refoulement obligations by returning intercepted asylum seekers to a transit country either because they are exposed to relevant harm in the transit country or because that country sends them on to another country in which they are exposed to such harm. Research undertaken by two of us (Missbach and Taylor) separately as well as the information shared by other experts who participated with us in the Kaldor Centre Roundtable on regional co-operation and refugee protection in the Asia-Pacific in September last year strongly suggests that no screening interviews take place prior to turn-back to Indonesia. If that is correct, then Australia risks breaching its non-refoulement obligations in every case of turn-back to Indonesia.

Like most experts gathered at the Kaldor Centre Roundtable, we are extremely doubtful that internationally lawful turn-backs would be possible, if only because of the “significant practical obstacles to implementing a fair and effective screening process at sea” that are detailed in the Roundtable’s report.

The international unlawfulness of Australia’s current practice and the unlikelihood that turn-backs could be conducted in a lawful fashion in the real world has two broader implications. First, turn-backs are just as much a violation of the human rights of people seeking Australia’s protection as the treatment of people held in Nauru and on Manus Island. We ought to be concerned about both. Second, a continuation of the turn-back policy would sabotage any attempts to arrive at a sustainable solution in the medium term, because it serves to underline the fact that while Australia may demand that its neighbours treat asylum seekers and refugees in accordance with international human-rights law and refugee law, it is itself not prepared to act in accordance with those laws.

Before saying more about solutions, we would like to provide another reason why in our view turn-backs to Indonesia should be discontinued: they are inherently unsafe.

Manne appears sanguine that “in recent years those asylum seekers intercepted by the Royal Australian Navy have been returned to Indonesia in safety”. It is true that there have been no recorded deaths but this seems a case of good luck rather than good management. In June 2015, a vessel carrying 65 turned-back passengers crashed into a reef in Indonesian waters. Due to the shallow waters and coral reefs it could not reach the shore. According to the boat crew who were interviewed by Missbach, if locals hadn’t happened upon the passengers some of them might have drowned, as they did not know how to swim. In November 2015, another vessel carrying 16 turned-back passengers was found stranded in Indonesian waters. In interviews with Missbach, crew members have also mentioned insufficient supplies of food and fuel for return journeys.

Manne and colleagues argue for the retention of turn-backs for four reasons. They say that turn-backs could be done legally, safely and transparently; they claim that an abandonment of turn-backs would lead to an increase in the number of asylum seekers trying to reach Australia by boat, which in turn would mean that many of them would drown en route; they claim that the mass arrivals of asylum seekers would provide welcome ammunition for far-right populists; and they argue that a retention of turn-backs is necessary to make mainstream politicians agree to the transfer of people from Nauru and Manus.

Above, we have refuted the claim that turn-backs are legal and safe, and explained why we don’t share the optimism of Manne and colleagues that they could be done legally and safely.

We are sceptical about the claim put forward by some refugee advocates that the increase in asylum-seeker arrivals was primarily due to changing circumstances in countries of origin, and share Manne’s view that the abandonment of turn-backs, if implemented now, would lead to an increase in the number of boat journeys. More boat journeys from Indonesia to Australia could mean greater risk of drowning in the Indian Ocean – assuming Australia and Indonesia choose not to increase their maritime rescue efforts. However, we should not forget that closing down a route for people who are desperate to flee their homelands potentially exposes refugees to harm at home, and entices them to use other routes, which may be no less dangerous than the one that has been blocked.

We agree with the assessment that if bipartisan support for a discontinuation of turn-backs resulted in mass boat arrivals One Nation and other populist parties probably would receive a boost in their vote. But we don’t buy into the implied argument that the strengthening of right-wing populism would automatically outweigh the harm caused by human-rights violations inflicted on people seeking Australia’s protection.

Should we then, as Manne and colleagues demand, endorse the government’s turn-back policy because it would be unrealistic to expect the major parties to agree to the transfer of people from Nauru and Manus unless that plank of the government’s policy remained in place? Our answer is emphatically no. Our reasons require careful explanation.

Currently both Labor and the Coalition are categorically against both the transfer of people from Nauru and Manus to Australia and the discontinuation of turn-backs. Peter Dutton’s recent remarks that refugee advocates “can bleat all they want” neatly sums up the government’s position; the Labor Opposition has long decided not to contradict the government on substantial matters related to the latter’s asylum-seeker and border protection policies. This suggests that even if a broad coalition of refugee advocates were to endorse turn-backs in order to prompt a policy shift on Manus and Nauru, the case would still fall on deaf ears. However, this is not the reason we refuse to make such an endorsement.

For the sake of the argument, let’s assume that Manne is right and that Labor will win the next federal election, and would then be prepared to resettle refugees from Manus and Nauru in Australia, provided the turn-back policy remains in place. To be clear: the closure of Australia’s offshore processing facilities would be an improvement on the current situation, even if turn-backs remained in place. But in our view, Manne, when arguing for such an improvement, makes two unnecessary concessions: that the turn-back policy is both defensible and an essential ingredient of a compromise solution.

Based as it would be on continued human-rights violations, the turn-back policy cannot be part of a sustainable solution to the political problem of boat arrivals. Manne challenges his critics to come up with an “alternative policy with a realistic prospect of being adopted”. In our view, it is crucial to acknowledge that there is no immediate magic fix that would be palatable to either of the two major parties at this point in time and legal and just.

There is no sound realistic policy option in the short term because since at least the early 1990s successive Labor and Coalition governments have either done nothing to alleviate fears in the Australian community that asylum seekers arriving by boat pose a real threat or have unwittingly or deliberately fuelled such fears. In fact, we suggest that while the Howard government of the late 1990s could be excused for thinking that asylum seekers would desist from making the boat journey to Australia if only their treatment by Australia were sufficiently appalling, no such excuses were available for the Rudd and Abbott governments in 2013. Their deterrence measures were not directed at asylum seekers but were designed to mollify a fearful electorate.

In the past 25 years, there has been only one exception to the government’s approach. In 2008 the then immigration minister, Labor’s Chris Evans, argued that the policy of turn-backs, offshore detention and processing, and temporary protection visas was morally wrong; however, he received little support from his cabinet colleagues, including Prime Minister Kevin Rudd. And in any case, Evans’ defence of a rights-based response to irregular maritime arrivals was rather short-lived.

It is because of the lack of political leadership on the issue of boat arrivals and the fear-mongering of ministers such as Gerry Hand, Philip Ruddock, Scott Morrison and Peter Dutton that any relaxation of the current policy, including a closure of the facilities in Nauru and on Manus Island, would be politically risky, if not suicidal.

The situation is bleak. But that is not to say it is hopeless.

The current government’s claim that turn-backs are a success depends on the measure of success. Turn-backs may be a technical success in terms of ensuring that very few boats arrive in Australia – and this is the success that Manne insists we should acknowledge. But the policy remains a failure since it does not address the problem of refugee protection that confronts us in our region. This is not Australia’s problem alone, but nor is it Indonesia’s or Malaysia’s, and Australia’s turn-back policy simply displaces the problem to those countries among others. We are not willing to concede that addressing this failure is politically impossible over the longer term. Nor are we willing to concede that the problem of asylum-seeker policy can be reduced to what is politically doable today. Generating political will may well take time, but good political reasons for a more just asylum-seeker policy can only be convincing and sustainable – in Australia and the region – if they are holistic in form.

In the medium term, what would a more holistic approach encompass? First, it would entail a large boost in funding for the UNHCR to allow the organisation to provide timely and thorough status determinations for those seeking asylum in the region. It would also entail funding to enable asylum seekers to live in the community in regional countries while they pursue protection claims. There are obvious tensions at stake within communities that may face developmental challenges of their own, and funding would need to be sensitively and creatively deployed in close collaboration with those communities. The funding challenge is significant, but by no means unachievable, given the following illustrative example: In the 2015–16 financial year, Australia’s spending on offshore management of asylum seekers equated to over one fifth of the total funds available to the UNHCR for its global operations in 2016. If these funds were redirected it could make a real difference to regional processing and provide good reasons to discourage dangerous onward boat journeys.

Second, a holistic approach would entail a considerable increase in Australia’s quota for refugee resettlement – a program for which there is widespread public support. If refugees processed in the region understand that there will be an end to their indeterminate status within a reasonable period of time, then waiting in transit becomes a far more desirable option than attempting an expensive and hazardous boat journey.

Third, the two steps above require regional co-operation so that other countries join Australia in offering more resettlement places or temporary forms of protection. Australia’s turn-back policies undermine potential regional approaches by displacing the responsibility of refugee protection, rather than demonstrating a collaborative commitment to respond to it. Prime Minister Tony Abbott’s infamous “nope nope nope” response to the 2015 refugee crisis in the Andaman Sea arguably encouraged regional governments to also adopt a harsh line, at least initially. We acknowledge that a more humane and efficient system for the provision of protection in the region might well attract more people who need protection. But isn’t this the point? The prospect of asylum seekers from outside the region being drawn to a region in which the provision of protection is possible provides an argument for a global solution, rather than an argument against a regional one. And just as Australia undermines the prospects for a holistic regional response by denying protection at home, the region runs the same risk at the global level if a region-wide system of protection is not in place.

More broadly, the elevation of people-smuggling as the source of the problem within existing regional collaborations fails to respond to the problem of protection itself. A holistic response would therefore involve a reorientation of regional collaboration towards refugee protection. Australia’s leadership in this respect is essential, but only credible if it first demonstrates its own preparedness to shoulder responsibility for protection needs in the region to an extent consistent with its relative capacity.

Australian investment in a regional solution would be particularly welcome in Indonesia. For many years that country has called for regional and collaborative approaches to deal with irregular migration, and under the so-called “Jakarta Declaration” engaged widely with countries of origin, transit and potential destination to discuss asylum-seeker issues. In Indonesia’s view, exemplary regional co-operation would meet common challenges in a manner beneficial to all rather than shifting responsibilities onto neighbours – for example, by turning back boats with asylum seekers.

Successive Australian governments have failed to engage constructively with the government in Jakarta on asylum-seeker policy. The Australian government has admitted that of 12 turn-backs that took place between December 2013 and 20 May 2014, six involved incursions into Indonesian territorial waters. Although Australia characterised those incursions as accidental and apologised to the Indonesian government, the operational orders that resulted in those incursions are still current and actually contemplate turn-backs being carried out in the territorial waters of other countries. Indonesian government representatives have repeatedly made it clear that the incursions into Indonesian waters are “a serious matter in bilateral relations”. This is unsurprising. Few states will tolerate unpermitted border-crossings, but issues of sovereignty are of even higher importance in former colonies that have fought long and hard for their sovereignty.

Australia continues to provoke and make demands of Indonesia while offering little in return. In November 2014, the Australian government announced that only asylum seekers who registered with UNHCR Indonesia before 1 July 2014 could be considered for resettlement in Australia and reduced the number of resettlement places available to them, should they be granted refugee status. The rationale given for both these moves was to discourage asylum seekers from making their way to Indonesia as a step towards getting to Australia, but Indonesia expressed disappointment with the decision. Indonesian requests that Australia accept more refugees for resettlement continue to fall on deaf ears. This cavalier treatment of Indonesia severely undermines the prospects of achieving sustainable regional co-operation on refugee protection over the longer term.

Fourth, and crucially: a holistic approach requires a comprehensive and long-term engagement with the Australian public to address and contain anxieties about refugees that are vulnerable to capture by populist messaging. This means replacing incendiary rhetoric about refugees as security risks with accurate, digestible information about the realities of displacement, the benefits of immigration – humanitarian or otherwise – and the advantages, both diplomatic and economic, of a collaborative regional approach to protection. We do not consider this beyond the reach of Australia’s policy makers, if a bipartisan approach were to be taken.

For a more comprehensive engagement with the public on asylum-seeker policy, we can look to relevant examples both historically and in the present day. History is replete with examples of significant shifts in public sentiment. Sometimes such shifts happened without much input from the government of the day; the growing criticism of the White Australia policy during the 1960s is a case in point. On other occasions, the government campaigned long and hard to effect such a shift. Perhaps the best example is the resettlement of Displaced Persons after the end of the World War Two, which was accompanied by a substantial public relations campaign directed by the minister for immigration, Arthur Calwell.

Another instructive example is offered by recent events in Germany, where both public sentiment and government policy have changed significantly over the past 25 years. While most Germans now believe that the government should not have allowed close to a million asylum seekers to enter the country in 2015, the prospect of asylum-seeker arrivals in the order of 200,000 per annum for years to come is no longer considered to be cause for alarm. Consider, by comparison, that the total number of asylum seekers arriving in Australia by boat between 2009 and 2013 was 51,637.

One of the reasons why the German government has survived the so-called refugee crisis of 2015, and why Angela Merkel may still win the elections in September, is that she worked hard to convince Germans that they needed to respect the human dignity of asylum seekers. While most Germans would now like to see a reduction in the number of asylum-seeker arrivals, their views are often tempered by their conviction that Germany has the obligation to host refugees fleeing war or persecution.

In any case, government policy does not necessarily have to follow public sentiment. There have been numerous occasions in the past when governments pursued policies that were not in line with majority public opinion. On some of these occasions, government policy-making was informed by the idea that in cases in which majority public opinion was not in line with human rights principles the government was obliged to pursue an approach that was not endorsed by a majority of Australians. For example, although polling has suggested on various occasions that most Australians are in favour of capital punishment, successive governments have made no moves to reintroduce the death penalty.

In summary, we agree that those held on Manus Island and in Nauru must be brought to Australia as soon as possible. Like Manne and colleagues, we do not advocate a return to the approach taken by the Rudd government in the first half of 2008, and have not done so in the past. But we reject the assertion that a demand for the closure of the notorious Nauru and Manus facilities needs to be accompanied by an endorsement of Australia’s turn-back policy. In our view, that policy is unlawful, unsafe and unfair, and undermines the potential to generate a comprehensive and sustainable regional approach to the provision of protection over the longer term.

While there is no sustainable short-term solution that would address our concerns about legality and justice at the same time as being politically palatable, we argue that in the medium term the Australian government has other options at its disposal. These include a meaningful engagement with its neighbours and a concerted effort to convince Australians that asylum seekers, even if they arrived in large numbers, do not pose a threat to the community. Above all, we believe that Australia’s response to asylum seekers and refugees ought to be informed by its capacity, its status as a regional power, its international legal obligations, and its moral responsibility towards men, women and children seeking its protection.

Klaus Neumann, Anne McNevin, Antje Missbach, Damir Mitric and Savitri Taylor

Klaus Neumann is professor of history at Deakin University. Anne McNevin is an international relations scholar and an associate professor at the New School in New York. Antje Missbach is an anthropologist and a senior research fellow at Monash University. Damir Mitric has a background in history and law, and works as a senior lecturer at La Trobe Learning and Teaching. Savitri Taylor is an associate professor in the La Trobe Law School.

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