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.
