November 7, 2016

It’s time

By Robert Manne
It’s time
The government’s new legislation is an opportunity for Labor to end 15 years of bipartisan cruelty to asylum seekers

It is likely that the Turnbull government will soon introduce new asylum seeker legislation into parliament. It appears to have two parts. The first part will aim to prevent any asylum seeker who tried to reach Australia after 19 July 2013, including those who have been found to be genuine refugees, from ever being allowed to settle in Australia. The second part will aim at banning the adults in this cohort settled in another country from ever visiting Australia even on a tourist or a business visa.

The first part of this proposal writes into law what has previously been a bipartisan political agreement. Turning this consensus into legislation, however, has three implications.

First, even if the Australian government is unable to find countries to settle the 1700 people who are now marooned on Nauru and Manus Island, all future Australian governments will be prevented by law from bringing such people to Australia into the indefinite future, unless they are willing and able to repeal the legislation. What will become of these people then?

Secondly, the new legislation seems to make clear that if the Australian government is able to find homes for only some of the 1700, the remainder will never be permitted to be brought to Australia. In the future this might become a real issue. It is possible that even if Australia does find suitable countries willing to settle proven boat refugees who arrived after mid July 2013, this might not include those whose refugee claims have failed. Iran, however, for example, does not accept forcible repatriation. What then will happen to those Iranians on Nauru or Manus Island whose refugee claims have failed but who are too frightened to return home?

Thirdly, there are presently more than 300 refugees and asylum seekers who have been brought to Australia for urgent medical treatment (whether their own or that of family members). It would appear that under the Turnbull government’s proposed legislation, the nightmare of return that these people now face will become an unavoidable reality at some time in the future. Either all will have to be flown back to Nauru and Manus Island under the force of law, or – in the unlikely event that a country is discovered that will agree to settle all the post–mid July 2013 boat refugees, even those in severe ill health now residing in Australia – the government will be required eventually to fly them from their sick beds to this other country. Such proposed action is both heartless and pointless. Can anyone seriously believe that allowing such people to remain in Australia will send a signal people smugglers might exploit?

The Turnbull government has not yet revealed that it has found any suitable countries willing to settle the 2000 people presently on Nauru and Manus Island or who are presently in Australia for medical reasons. All that has been offered are government leaks to the Murdoch press and unrefuted rumours. To put into law the idea that such people can never be settled in Australia means that indefinite or even permanent lifetime imprisonment on Nauru and Manus Island for some or all of these people cannot be excluded. No responsible parliament should even contemplate such a monstrous possibility.

What about the second provision in the proposed legislation, the lifetime ban on adult asylum seekers or refugees who arrived after mid July 2013 from visiting this country, either on a tourist or a business visa?

Some of these people will have relatives in Australia who arrived as asylum seekers by boat shortly before mid July 2013 and whose refugee claims have already been accepted, or will be accepted in the future. Some of them have already been granted, or will eventually obtain, temporary protection visas. Under earlier legislation, temporary protection visas prevent them from ever leaving Australia if they intend to stay in this country. The new proposed legislation will prevent their family members, settled in third countries after years of torment on Nauru and Manus Island, from ever visiting them in Australia. In other words, in combination with earlier law, this proposed legislation will have the effect of preventing such people from seeing each other for the remainder of their lives. No purpose is served, except the infliction of additional pain.

Two reasons have been suggested for the lifetime ban on the post–mid July 2013 refugee cohort from ever visiting Australia. The first suggests that if they were allowed to travel to Australia they might make an asylum application and tie up the relevant tribunals and law courts for several years. This argument is on the face of it absurd. It is difficult to believe that those settled in the countries cooperating with Australia would mount a refugee claim regarding the countries they had agreed to settle in, or, in the unlikely event that a handful did, that any tribunal or court would take the claim seriously.

Secondly, it has been suggested that unless the lifetime ban is put in place, the people smugglers will once more have an attractive package to sell asylum seekers in Indonesia or elsewhere. This is even more ludicrous than the idea that refugees settled in third countries might travel to Australia for the purpose of seeking our protection.

Consider the package that the hypothetical people smuggler would have to sell to the hypothetical asylum seeker having observed the shared experiences and the possible future prospects of those refugees transferred to a third country from Nauru or Manus Island. First, interception by the Australian Navy before reaching Christmas Island. Second, imprisonment on Nauru and Manus Island, in anguish, for several years. Third, if fortunate, settlement in another country. And fourth, finally, the capacity to travel on a valid tourist or business visa to Australia to make an asylum claim with a 100% certainty of rejection. This is not, to put it mildly, a $10,000 deal too good to miss.

I have long believed that the asylum seeker policymakers in Canberra have lost all touch with reality. Nothing demonstrates this more clearly than the risible arguments that have been deployed in favour of the lifetime ban on the post mid–July 2013 Nauru and Manus Island boat refugees if settled in third countries.

This proposal has an additional madness attached to it. New Zealand is the only developed country that has publically expressed any willingness to settle some of the marooned people of Nauru and Manus Island. John Key, the prime minister of New Zealand, recently announced that if such people were banned from ever visiting Australia – which would require the creation of a new visa category for certain second class citizens – none would be settled in New Zealand.

One of the most terrible aspects of Australia’s asylum seeker policy over the past 15 years is the way in which the Coalition has used the suffering of the asylum seekers to extract for itself the maximum possible political advantage. This need not have been the case. At the time of the Tampa ‘’crisis” of August–September 2001, the leader of the opposition, Kim Beazley, offered the Howard government Labor’s full support for its radical new policy measures – naval turn-backs and offshore processing. He only baulked at one minor measure: immunity in advance for Australian officials involved in border control no matter what their actions, even manslaughter or murder. John Howard seized on the political opportunity offered. He declared that Labor was weak on border protection. It was a claim supported and exploited by all subsequent leaders of the Liberal Party.

The consequence of this ruthless exploitation of the asylum seeker issue by the Coalition has been a 15-year period of bipartisan cruelty to asylum seekers, interrupted only by a short period of compassionate miscalculation under Kevin Rudd. It is difficult to exaggerate the cost to the good name of the nation and, more importantly, the suffering inflicted upon tens of thousands of innocent refugees seeking our protection. The ludicrousness of the current proposed legislation provides at long last an opportunity for this bipartisan cruelty to be broken.

No asylum-seeker boat has reached our shores for some 800 days. As a result, public opinion is no longer nearly as exercised by the asylum seeker issue as it was before 2001 or between 2009 and 2013, when large numbers of asylum-seeker boats were reaching Australia and when many asylum seekers drowned. So long as the policy of naval intervention and return to point of departure is retained, this will almost certainly remain the case into the future. In this situation, as a consequence, the Turnbull government’s phony and empty current scare campaign is unlikely to succeed, except among the Coalition’s far-right fringe and on the One Nation margins.

The Turnbull government is failing as badly in the opinion polls as did its predecessor. As a result of its astonishingly ill-judged decision to hold a double dissolution and an eight-week election campaign, the government’s position in the senate is, if anything, even more parlous than it was before the last election. The Greens will of course oppose the new Turnbull government legislation. So, most likely, will Derryn Hinch and Nick Xenophon’s small team. All that is now required is resolution from Labor.

A defeat of the Turnbull government on this issue will do more than eliminate a particularly nasty, foolish and pointless piece of legislation. It will help break the Coalition’s 15-year stranglehold on Labor in the area of asylum-seeker policy. The moment for the collapse of bipartisan political support for the policy of refugee cruelty – for which many Australians have long been waiting – might finally have arrived. It must be seized.

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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