19 April 2009

Asylum seekers: how should we respond?

Regrettably the tragic explosion on an asylum seeker boat under tow to Christmas Island last week has caused the debate about asylum seeker policy to rear its ugly head again, with an obsessive focus on boat arrivals (most come by air).

In the course of this debate there was an item on ABC Radio National PM last Friday 17 April in which the Leader of the Opposition made some comments to which I feel it useful to respond.

I have no particular wish to attack Mr Turnbull. I am not interested in the politics of this matter, only with the issues and the outcomes, but his comments raise a number of important issues that require careful consideration.

First, to quote Mr Turnbull in full, as presented in the ABC’s transcript of the interview:

MALCOLM TURNBULL: The most significant change the Government made in August was to abandon the temporary protection visas, which were designed by the previous Coalition government to establish a real disincentive for unauthorised boat arrivals.

They abandoned our tough policies and there has been a dramatic increase in unauthorised boat arrivals. Clearly their policies are not working. You have to judge policies by their results. And the results are not good.

Too many unauthorised boat arrivals; too many lives being put at risk.

Regarding the content of Mr Turnbull’s remarks:

You have to judge policies by their results

Actually, the correct starting point for judging policies (any policies) is whether they are appropriate from a moral and ethical viewpoint – are they, dare I say it, honourable?

In parallel with that we must consider whether any proposed policy framework is legal, in two senses:

- Is it consistent with our domestic law? and

- Is it compliant with our international obligations as expressed in the treaties we have freely negotiated and signed (and which are often imported into our domestic law)?

Within the boundaries of an appropriate moral, ethical and legal framework we will normally have a wide range of policy choices that will enable our elected representatives to achieve the social and economic goals we set for ourselves.

I would argue that any policy for unauthorised boat arrivals that has as a deliberate aim of policy the treatment of one group of individuals by reference not to what they themselves have done but for the purpose of conditioning the behaviour of some other group of people fails utterly any test of being moral/ethical/honourable, and it probably falls down in relation to various aspects of human rights law as well.

Temporary protection visas ...were designed by the previous Coalition government to establish a real disincentive for unauthorised boat arrivals

Make no mistake about it, the Temporary Protection Visa (TPV) was designed to be a central plank of a platform which was intended to make Australia such an awful place in which to seek asylum that almost no-one would do it. Mandatory incarceration in remote locations where there would be no access to “bleeding-heart lawyers”, leading ultimately to the Pacific Solution, was another.

The TPV was a cynical and “clever” response to the proposition that asylum seekers come here because they fear for their safety. “They fear for their safety? OK, we’ll give them that and nothing else. We will provide them with their individual physical safety until it is safe for them to return whence they came and then we will send them back”. Their protection was stripped of all human content except their personal physical safety; they lived here in perpetual limbo – no right to work, no access to services, no right of family reunion.

Tough policies

Just to illustrate what the TPV meant, recall the tragic case of the Iraqi woman on board SIEV-X who lost her three daughters, drowned at sea, just three of the 353 lives lost on SIEV-X. She was attempting to make her way to Australia because her husband was here on a TPV but was not allowed to bring his family here. Let me spell it out: we had formally recognised the husband’s legal right to our protection, but would not allow him to bring his immediate family here. When his daughters drowned and his wife, having been rescued, was returned to Indonesia, the Government’s attitude remained that she could not come here. He was free to join his wife in Indonesia, they said, but then his TPV would lapse and he would not be permitted to return here. This kind of approach is what tough policies are all about. Tough policies affect individual people in tough ways.

Those who call for tough policies to deter “illegals” are curiously selective about the tough policies they want. I have never heard any of our political leaders call for such drastic sanctions against overstayers that no backpacker would ever risk overstaying his/her visa. But these are the real “illegals” – they have been granted time-limited access to Australia, it is a condition of the visa that they leave when their time is up, and only in exceptional circumstances would they have any claims on us regarding their personal safety if they were to return home.

This is also where the big numbers are – at the time when we were having great sound and fury about a few thousand unauthorised boat arrivals there were an estimated 54,000 overstayers, or thereabouts.

Too many lives being put at risk

There is no doubt that the people smugglers who organise this traffic are bad people. They are in it for the money, they prey on vulnerable people, they misrepresent to these people (downplay) the risks of the voyage and the reception they will receive when they get to Australia. In his book A Certain Maritime Incident: the sinking of SIEV-X Tony Kevin presents evidence that those who wanted to back out, having clapped eyes on the vessel in question, were forced on board at gunpoint. No doubt there are many other voyages on which there are passengers who have not been permitted to back out when they realised that they had been told a bunch of lies about the seaworthiness of the vessels they would be travelling on.

But let us not pretend that those who are fulminating about the increase in boat arrivals are primarily motivated by the welfare of the asylum seekers or the important general issue of Safety of Lives at Sea.

And let us not let our feelings about the asylum seekers be contaminated by our views about the people smugglers. Julian Burnside QC put it very eloquently in a letter to The Age on Saturday 18 April:

No one imagines that people smugglers are angels. Some – perhaps most – are mercenary and callous. But those who place their lives in the hands of people smugglers do so for fear of greater harm if they stay where they are.

As a result of the tough policies of the past we have many people amongst us who after a long period in mandatory detention were found to be genuine refugees, and who might once have made productive citizens, but who are now broken people.

At the conclusion of a high level meeting on this issue in the late 1990s a very senior person remarked to me, ”Every time one of these people says the magic words ‘I am a refugee’ it costs the Australian taxpayer an average of $65,000”.

My answer was, and remains, “And if you happened to be somewhere on the Northwest coast of Australia when a refugee boat made a landfall, and you watched these poor bedraggled people struggling ashore, and asked yourself the question ‘What would be the very best way we could spend $65,000 on each and every one of these people’, would you come up with the answer we have come up with?”

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