Asylum seekers: the broader policy context

As noted in Refugees and asylum seekers: finding a better way, on 17 December 2013, in a Senate Committee Room in Parliament House, Canberra former Governor-General Sir William Deane AC launched a collection of essays entitled Refugees and asylum seekers: Finding a better way. This collection, edited by Bob Douglas and Jo Wodak, marked the completion of the first phase of an Australia21 project designed to contribute to the development of a process for dealing with asylum seekers which is fairer and more humane than the one we have been using in Australia in recent years.

My contribution to the collection appears below.

For information about the contributors see Refugees and asylum seekers: finding a better way on the Australia21 blog. For Sir William’s remarks in launching the publication see Sir William Deane on asylum seekers.

The complete publication can be downloaded as a PDF file at no charge from the Australia21 website here.

If you would like to buy a hard copy for $25 including postage you may do so from here.

Please remember that Australia21 is dependent upon public donations to continue its work. If you would like to make a donation you can do so by visiting the Australia21 website at www.australia21.org.au.

Asylum seekers: the broader policy context

Paul Barratt

Paul Barratt AO is a founding director of Australia 21 and its current Chair. He spent most of his career in the Commonwealth Public Service, mainly in areas relating to resources, energy and international trade, culminating in appointments as Secretary to the Departments of Primary Industries and Energy (1996-98) and Defence (1998-9). He now runs his own consulting business. He has an Honours Degree in Physics from the University of New England and an Arts Degree (Asian Civilisation and Economics) from the Australian National University.

Abstract

This article reviews the nature rather than the specifics of the asylum seeker issue in order to define the context within which the development of a successful approach must take place. The issue is a classic example of what social scientists call “wicked problems”: problems that are difficult to define clearly; are multi-causal and characterised by many interdependencies within the problem; contain conflicting goals and objectives, so that trade-offs are necessary; tend to change over time; and hardly ever sit conveniently within the responsibilities of a single organisation. Their complex, interdependent nature means that attempts at partial solutions will often lead to important unintended consequences. In seeking to frame a solution, policy makers need to bear in mind the vital interest Australia has in the maintenance and strengthening of the rules-based international system that has been developed since the Second World War, governing the use of force in relations between states, human rights, and the liberalisation of the global economic system.

Wicked problems

Over the last thirty years there has emerged a substantial literature on so-called ‘wicked problems’. This is the class of problems that may be considered highly resistant to solution, by contrast with so-called ‘tame’ problems, those that might be technically complex to solve but can be tightly defined and a solution fairly readily identified or developed.

The terminology was originally proposed by H. W. J. Rittel and M. M. Webber, both urban planners at the University of California, Berkeley, USA in 1973. In a landmark article, the authors observed that there is a whole realm of social planning problems that cannot be successfully treated with traditional linear, analytical approaches. To the extent that they can be modelled mathematically the mathematics is non-linear: everything is connected to everything else, and there is acute sensitivity to initial conditions.

There is a good succinct summary of the characteristics of wicked policy problems on the Australian Public Service Commission website archive (1). In brief, these characteristics are:

·  They are difficult to define clearly: different stakeholders have different versions of what the problem is, and there is usually an element of truth in each of those versions.

·  They have many interdependencies and are often multi-causal. Often, there are also conflicting goals and objectives within the broader policy problem. This means that solving them requires coordinating inter-related responses, and accepting trade-offs between conflicting goals.

·  Attempts to address wicked problems often lead to unforeseen consequences. This arises from the complex connections between the component elements of the problem.

·  Often they are not stable: the nature of the problem is changing while the attempt is being made to fashion and implement a solution.

·  They are socially complex and it is their social complexity that often overwhelms the efforts to solve them.

·  They hardly ever sit conveniently within the responsibilities of one organisation.

·  The solution to wicked problems involves changing the behaviour of some or all of the stakeholders.

·  Some wicked problems are characterised by chronic policy failure.

A most important characteristic of wicked problems is that they have no stopping rule, i.e., no mechanism for deciding whether to stop or continue a process on the basis of present and past events. Another is the fact that every attempt to solve a wicked problem is a ‘one-shot operation’ because there is no opportunity to learn by trial and error; every attempt is significant.

In the case of asylum seeker policy the disagreement about what the problem is is starkly obvious. Both our major political parties attribute the ‘problem’ of asylum seekers arriving on our shores to the existence of people ‘smugglers’ (an odd term to choose because there is no intent, as one would expect with smuggling, to introduce anyone into the country unobserved – the whole point is for the asylum seekers on the arriving vessels to give themselves up to the competent authorities, have their claims processed, and acquire a right to remain in Australia).

I would suggest, however, that the causation is the opposite of what is being represented here.  People don’t arrive on our shores because of the existence of ‘people smugglers’; the people ‘smuggling’ networks exist because of the number of people in the world who are forced to flee for their lives, due to upheavals or specific persecution in their own countries, together with the lack of a systematic process, such as was developed after World War II and eventually after the Vietnam War, for resettling displaced people and enabling them to begin a new life. In economic terms, the people smugglers are simply supplying an unfulfilled demand for resettlement because Governments choose not to do so. As with illicit drugs, where governments choose to control the market via managed supply, the illicit suppliers do not have a business.

The description ‘they have many interdependencies and are often multi-causal’ means that the mathematics of wicked problems is chaotic in the technical mathematical sense: any attempt to model the outcomes of policy involves the simultaneous solution of a large number of partial differential equations. The mathematics of such systems is inherently intractable: the results are enormously sensitive to the initial conditions (and hence the quality of the data) and the assumptions that are made. The prototypical example of such systems is the modelling of weather systems, the famous example of the sensitivity being the statement that the flapping of a butterfly’s wings in the Amazon rainforest can precipitate a hurricane in the Gulf of Mexico.

Need for whole of system thinking

Inherent in such systems is the need to analyse them at a whole of system level – any attempt to limit the analysis to a subset of the interdependent variables will produce a mathematical nonsense, leading in turn to unexpected and unintended consequences when policy based on less than a whole of system view is implemented.

To take just one example, governments have justified ‘getting tough with people smugglers’ as a measure designed to save people from the risk of drowning while attempting the hazardous sea voyage.

Pursuant to that governments have enacted policies like the confiscation and scuttling or burning of the boats, and mandatory five year prison sentences for the crew. The consequence is that a typical asylum seeker boat is a coastal fishing boat which is neither designed nor equipped to undertake a voyage on the high seas, and is inexpensive because it is at the end of its life if not downright unseaworthy. It will be manned by a young and inexperienced crew; the members will typically come from a poor fishing village, have probably been tricked into crewing the vessel, and have no obvious qualifications for undertaking the navigational task or managing an overcrowded vessel in heavy seas. What experience seaman with the necessary certificates would expose himself to the certainty of a lengthy prison term at the end of a single voyage?

To deter people from undertaking the voyage governments declare that people arriving by boat will have no right of family reunion. The perverse consequence of this is that the only way for a family to be reunited in these circumstances is for any following family members to attempt the boat journey, so that we see a rise in the proportion of women and children on board these vessels. Many of the people drowned in the SIEV X tragedy were women and children whose menfolk had been granted refugee status in Australia but were on Temporary Protection Visas with no right of family reunion. They were attempting the only means available to them to be reunited with their families.

Finally, our approach to asylum seeker policy needs to take account of Australia’s strong interest, as a medium scale power with strong political, security, economic, cultural and family links all around the world, in a rules based international system. We rely in a great variety of ways on respect for international laws, treaties and agreements, and we cherry-pick the ones we choose to abide by at our peril; if we are selective about the ones which bind us, we can hardly be surprised if other countries behave similarly in relation to treaty rights which we hold important.

Before the Second World War there were few international rules and they addressed only a small number of areas of human activity (2).  Governments were basically free to do anything that was not expressly prohibited by international law. There were some rules governing the treatment of foreigners and their property, but there were no rules protecting fundamental human rights. International law did not prohibit the wholesale slaughter or elimination of groups of people on grounds of religion or ethnicity or political belief, as happened in Nazi Germany, the Soviet Union and many other parts of the world.  There were no restraints on territorial domination or the creation of colonies.  Piracy and slavery were outlawed but discrimination, racism, apartheid and colonial domination and exploitation were not.

There was no general prohibition on the use of force, no global free trade rules, and no rules of international law committing states to protect the environment. At that time, the world of international law was premised on the principle that sovereign and independent states could do pretty much as they liked, except where they expressly agreed otherwise. As very little was prohibited, their freedom to act was virtually unlimited.

All this began to change, however, when on 14 August 1941, on board the US flagship Augusta, President Roosevelt and Prime Minister Churchill signed the ‘Atlantic Charter’. The Atlantic Charter committed the United States and Britain to a new order based on a few key principles: an end to territorial aggrandisement or territorial changes; respect for self-government; social security; peace and freedom from fear and want; high seas freedoms; and restraints on the use of force (3).

The Atlantic Charter formed the basis of the development of a massive and sustained effort to develop a rules-based international system. Its principles served as the guidelines for a new post-war world order, and were later enshrined in the United Nations Charter.  They can be reduced to three key principles which have remained in place for over sixty years: a general obligation on states to refrain from the use of force in their international relations, except under strict conditions of self-defence or where authorised by the international community acting through the UN Security Council or a regional body; a new commitment to maintain the ‘inherent dignity’ and ‘equal and inalienable rights’ of all members of the human family, through the adoption of international instruments which would protect human rights by the rule of law; and an undertaking to promote economic liberalisation through the adoption of free trade rules and related obligations in the fields of foreign investment and intellectual property (4).

Australia has a heavy investment and interest in the rules based system and associated institutions which emerged during the 1940s and 1950s, and Australian delegations participated actively in the negotiations which established them. Components of this international framework included the Bretton Woods Agreements (1945) which created the World Bank and the International Monetary Fund (IMF); the 1947 General Agreement on Tariffs and Trade (GATT); the Genocide Convention (1948), the Universal Declaration of Human Rights (1948), the four Geneva Conventions for the Protection of War Victims (1949) including treaties on the treatment of prisoners of war (Geneva III) and the protection of civilians (Geneva IV), the Refugee Convention (1951), and four conventions on the law of the sea (1958), which were replaced in 1982 by the United Nations Convention on the Law of the Sea (UNCLOS).

Important arms control treaties were negotiated in the 1960s, including the treaty banning atmospheric nuclear tests (1960) and the 1968 Nuclear Non-Proliferation Treaty (NPT).

In the early 1970s a systematic effort began – with the strong support of President Richard Nixon – to put in place rules for the protection of the global environment, including those relating to biodiversity, the ozone layer and the climate system.

A moment’s reflection on this body of international rules, institutions and instruments will show that Australia has a great deal at stake in the preservation and enhancement of this rules based international system, and we would be most unwise to undermine it by being selective about the elements of it that we choose to respect.

The conclusion I draw from the above analysis is that Australia needs to take a fresh and mature look at how it can best deal with the issue of asylum seekers. That fresh look must be informed by an awareness that unless we take a “whole of system” approach we will continue to experience chronic policy failure which is hugely expensive in both financial and personal terms, and it take as a guiding principle the vital stake that Australia has not only in respecting, but in developing and nurturing the rules-based international system. Returning to a world in which individual governments can behave as they please is not something we would want to see.

References

(1) See http://www.apsc.gov.au/publications-and-media/archive/publications-archive/tackling-wicked-problems

(2) Sands, Philippe, Lawless World: Making and Breaking Global Rules, London, Penguin Books, 2006, pp 7ff.

(3) Sands, op. cit., pp 8-9.

(4) Sands, op. cit. p. 9.