September 27, 2011

Asylum Seeker Policy: From stalemate to hope?

By Robert Manne
A Vietnamese Refugee with his belongings in-between his teeth, climbs a cargo net to the deck of the USS White Plains in the South China Sea, 30 July 1979.  © Department of Defense / U.S. National Archives and Records Administration

A Vietnamese Refugee with his belongings in-between his teeth, climbs a cargo net to the deck of the USS White Plains in the South China Sea, 30 July 1979. © Department of Defense / U.S. National Archives and Records Administration

Since 1976 some 25,000 asylum seekers have arrived on Australia’s shores. Despite these modest numbers, the issue has played a major role in our politics for at least the past twelve years. Yet never in that period has the situation of asylum seeker politics been stranger than it is at the present time.

The current policy of the Gillard government is to expel the first 800 asylum seekers who have arrived or will arrive following its announcement of a newly minted policy known as the Malaysian Solution. The policy is simple. In return for Malaysia’s acceptance of these expulsions, the Gillard government has promised that it will re-settle, over the next four years, 4,000 asylum seekers living in Malaysia who have already been found to be refugees.

The Abbott Opposition opposes the Malaysia Solution on supposed humanitarian grounds. It plans instead to implement its “stop the boats” policy by sending all new arrivals of boat asylum seekers to Nauru for offshore processing. It argues that this will succeed in deterring future arrivals of asylum seekers. Its evidence is the “success” of the Howard policy after Tampa where, as one of the suite of measures employed, offshore processing on Nauru and Manus Island did indeed produce a seven year period where virtually no asylum seeker boats reached Australian territory.

Both plans have serious flaws. The Gillard plan is not only morally dubious – putting the 800 who are expelled to Malaysia in harm’s way. It also seems impractical. It is inconceivable that a scheme known in advance to have a limited number of expellees will be able to achieve its objective of stopping the boats. 800 is the upper limit of the number of boat asylum seekers Malaysia will accept. Once the 801st asylum seeker arrives the Gillard government will be back to square one. Does it then intend to return to onshore processing? Or does it intend to move to offshore processing on Manus Island or Nauru?

The Abbott plan – to revive offshore processing on Nauru – is more practical. If history is a reliable guide, it might indeed succeed in stopping the boats. Gillard assures us that she has been advised that “Nauru will not work”. The reason is far from clear. In reality it is not the supposed impracticality of the Abbott plan but the hypocrisy of the opposition’s criticism of the Malaysian Solution that is striking. During the period of the Howard government all members of his Ministry embraced a policy of towing boats back to Indonesia, which, like Malaysia, is not a signatory to the UN Refugee Convention. In Indonesia, asylum seekers were then, almost self-evidently, in the same kind of peril that they will be in Malaysia. The only reason Abbott has abandoned the idea of towing boats back to Indonesia is that, since the Oceanic Viking debacle of 2009 or before, Jakarta has ruled out the idea. Moreover Abbott’s idea that transporting asylum seekers to Nauru is the humane option is both illogical and callous. The only reason that transportation to Nauru might succeed in stopping the boats is that long-term detention there is, and is known to be, an utterly soul- destroying experience.

Recently, as everybody understands, the plans of both the Gillard government and the Abbott opposition came unstuck. The High Court judgment found that the Malaysian Solution was unlawful according to a reading of Australia’s present Migration Act. Almost all those who understand the law agree that the same judgment at the very least called into serious question the legality of the Nauru Solution. As a consequence, both the Malaysian and Nauru Solutions require the amendment of the Migration Act.

Because the Greens, who hold the balance of numbers in the Senate, will oppose an amendment to the Act making either the Malaysian or the Nauru Solution lawful, the only way the Act can be amended is by cooperation between the Gillard Government and the Abbott Opposition. But on the question of asylum seeker policy, cooperation is precisely what neither side will countenance. As a result of all this, struggle over rival plans to stop the boats, by rendering the lives of asylum seekers who manage to reach Australia’s shores miserable, is now one of the most important political questions of Australian politics. It is to such depths that we have now descended.

Because of the stubbornness of both sides of politics, a complete stalemate has been reached. Abbott refuses to accept Gillard’s Malaysia Solution. Gillard refuses to accept Abbott’s Nauru Solution. If either side of politics now capitulates, the other side will crow. Abbott – probably rightly – calculates that the question of asylum seekers is a “Coalition issue”, and that therefore every time an asylum seeker boat arrives it will be of benefit to him. Gillard calculates – probably wrongly – that because Abbott has refused to allow the Government’s amendments to the Migration Act to pass, every time an asylum seeker boat arrives, Abbott will be blamed.

It is not even clear how the deadlock will be resolved in the longer term. Let us assume that Abbott becomes Prime Minister in the next two years. It is inconceivable that the Greens will vote for the amendments to the Migration Act that will bullet-proof the legality of offshore processing on Nauru. It is almost inconceivable that having been thwarted by the Coalition on the question of amending the Migration Act, Labor will agree to allow the Abbott amendments to pass through the parliament. It is possible, then, that the current stalemate will continue for several years. Both sides of politics favour offshore dumping or processing. But because of political bloody-mindedness and the current state of the law, onshore processing might be with us not only for the present but for years into the future. Meanwhile, as the political stalemate persists, asylum seeker boats seem certain to continue to reach Australian shores.

In recent times I arrived at the conclusion that the humanitarian policy I personally favoured was politically unrealistic. I suggested instead an increase in the annual quota of refugee resettlements combined with an Australian-controlled regime of offshore processing on Manus Island. Oddly enough, now, because of the judgment of the High Court and the current political stalemate, it is offshore processing that has become legally impossible and therefore politically unrealisable.

What now ought to be done? I argued earlier on this blog that at 27% or 26% of the primary vote, Labor should accept that it will not be able to win the next election and that instead it should use the two years of power it has to make Australia a better country. One of the most obvious things it might do to achieve this objective is to dismantle Australia’s failed twenty-year-old asylum seeker policy, born with the decision of the Keating Government to introduce a regime of mandatory detention following the arrival of a small number of principally Cambodian boat asylum seekers.

It is possible that in present circumstances quite large numbers of asylum seekers will arrive in the next months or years by boat. It would certainly be dishonest to rule out at least the possibility. If this did indeed occur, now that offshore processing has been made impossible by the fatal entanglement of politics and the law, it is dreadful but not impossible to imagine Australia voluntarily re-visiting the nightmare that prevailed during the Howard Years where an archipelago of remote, punitive and cruel detention centres—Woomera, Port Hedland, Baxter—became symbols of a cruelty so deep that the memory of what happened in these places will haunt the conscience of Australia for many decades. Mass mandatory detention turned out to be not only an unsuccessful deterrent. It became a factory for the production of mental illness and despair. Mass mandatory detention failed spectacularly both on moral and practical grounds. Labor has little option now but to find an alternative onshore processing policy.

There are many ideas about how newly-arrived asylum seekers might be housed in the community after a brief process of detention for the purpose of health and security checks. Much could be learnt, for example, from the experience of the democracies of Scandinavia and north-western Europe. Living in the community would most likely produce few problems. All asylum seekers hope to be found to be refugees by the process of law. Even if most were not detained, very few would melt away into the community. The reason is straightforward. Hiding from authority would imperil what asylum seekers most want – successful applications for refugee status.

No doubt the Coalition would try to take advantage of the new humanitarianism of the policy for the Gillard government advocated here. To that there could be three possible Labor responses. Labor could argue that it was the stubbornness of the Coalition that was responsible for making offshore processing impossible. It could also argue that a return to the cruelty of the pre-Tampa policy of mass mandatory detention in remote detention camps was simply unconscionable. It could ensure that those not found to be refugees are speedily repatriated.

Even if the new humanitarian policy outlined here was unpopular, in present political circumstances Labor has little to lose. The next federal election is probably already lost. There is however much that might be gained for Australian and even perhaps for Labor in the longer term. If the new humanitarian policy did not have any dire consequences that fact alone might help cure the nation of the strange asylum seeker phobia that has scarred our political life in recent years. Moreover, if there is to be a future for the parliamentary Left in Australia, it now rests on an informal alliance of Labor and the Greens. This alliance might be strengthened by rough agreement over the future of asylum seeker policy.

I have often thought that the politics of asylum seekers, which has cast such a dark shadow across our national politics since 1999, involves a monumental fuss about nothing. If Labor decided to adopt the kind of humanitarian policy advocated in this blog, one thing it should do immediately is to commission a high-level and truly independent piece of research into the question of what has happened to the boat refugees who have arrived on our shores since 1976. I would not be at all surprised if it were to be discovered that the Vietnamese, Iranians, Afghans, Iraqis and Sri Lankans who have reached our shores by boat have, on balance, made a very valuable contribution, in many different ways, to the vibrancy of Australian society.

By their nature, those who set out, under dangerous conditions, to find a new way of life for themselves and their families, are enterprising and courageous people. In addition, there are no people more likely to understand and cherish the civility and the democracy of this country than those who have risked everything by fleeing from one or another of the world’s most barbarous tyrannies.

Robert Manne

Robert Manne is emeritus professor of politics and vice-chancellor’s fellow at La Trobe University. His most recent books are The Mind of the Islamic State and On Borrowed Time.

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