A- A A+

PNG policy places politics over principle

Kerry Murphy |  19 July 2013

Weekend Australian front page features the headline 'Rudd's hardline PNG solution'Over the last two years, there has been a winding back of rights for asylum seekers in Australia by the Labor Government. This has been driven partly by the increased numbers of asylum seekers arriving by boat and partly by the chanting of the Opposition. The announcement that all future arrivals by boat will be sent to PNG for assessment and, if successful, resettled in PNG, shows how far policy has gone from principle to politics.

Initially it was proposed to send asylum seekers to Malaysia and accept refugees from Malaysia in return, as a way of creating a disincentive for people to get on boats. Somehow trading the bad refugees for the good refugees was politically expedient. This deal came asunder when the High Court ruled that the Government had failed to consider the human rights protections in the Migration Act before deciding to send people to Malaysia. This section had been inserted in 2001 by the former Howard Government.

The solution was to repeal the section and in its place allow the Minister to have unfettered and unreviewable discretion, so that pesky human rights obligations could be sidelined.

Other changes followed the release of the expert panel report in August 2012 and the creation of the 'no advantage' myth. Nauru and Manus Island were again to be used to warehouse refugees and also to assess their cases. People were told they would wait until the same time as those waiting elsewhere for UNHCR resettlement places. Still no one has been able to identify how long this supposed period is, and UNHCR's denial that such a period of time can be even used has been ignored.

Some say that those arriving by boat take the places of the more deserving refugees in camps. This view is flawed for several reasons. Firstly there is no real way of comparing who is or is not more deserving of a place. In reality, places are offered to those who are idenfiied as suitable for resettlement. Every resettled refugee means less places for those remaining. There are over 45 million refugees and displaced people in the world, a growing, not diminishing, number — there will always be more refugees needing protection.

In 2012, Australia paid Nauru to take the asylum seekers; Australia pays the staff to manage the centres, trains the decision makers and seconds DIAC staff to assist, and pays the lawyers and agents to assist in the cases, but when it comes to Australia being legally responsible for the cases — this is claimed to be a sovereign issue for Nauru. Then interviews commence but no decisions are handed out in Nauru, maybe because the review process and staff have not been set up yet. Are we surprised when people protest against a system that is being created around them and cannot tell them what will happen to them should their case be successful?

The response is not to address these realistic concerns, but to prosecute those in the protests, so we can show how tough we are on these troublemakers.

Then Senator Carr comes out and says that Iranians who have not been interviewed are economic migrants, and his Department will write reports that help refuse more such cases. This is despite the fact that wealth or poverty are irrelevant to the Refugee Convention. A new directive is issued to the Refugee Review Tribunal to take into account the country reports of DFAT. An odd directive, as the RRT was already doing that, so they might as well have said the decision had to be written in English. Nevertheless it made us look tough and not a soft touch.

Meanwhile more and more boats come and the opposition continues to chant for the return of the ineffective and punitive Temporary Protection Visas (TPVs). The political pressure mounts as we approach an election and the Government looks for a 'circuit breaker', as the ill-fated Malaysian plan was once called. Thus we get the PNG Solution — all asylum seekers who arrive by boat from 19 July will be sent to PNG for assessment of their cases, and if found to be refugees, resettled in PNG.

This is despite the fact that PNG is not a resettlement country, has few if any resettlement services for a refugee population and is struggling with its own serious law and order and basic services issues. Australia has subcontracted its international obligations to a former colony. Once again the poorer countries of the world are used to warehouse refugees while richer countries cherry-pick those they deem suitable for resettlement.

None of these measures could realistically be said to comply with article 31 of the Convention which states:

The contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened ... enter or are present in their territory without authorisation ... The contracting states shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised or they obtain admission into another country.

The neo-colonial approach is only possible because we live on an island, and have money to pay off willing poor neighbours. The subcontracting deal is signed in front of the media, Australia agrees to underwrite what must be substantial costs, and we are told by the Prime Minister that this complies with the 'legal and compassionate obligations under the Refugee Convention. Whether it complies legally is till to be tested, but clearly any compassion for the asylum seekers went long ago.

Kerry Murphy headshotKerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers. He is a student of Arabic, former Jesuit Refugee Service coordinator, teaches at ANU and was recognised by AFR best lawyers survey as one of Australia's top immigration lawyers.



Comments should be short, respectful and on topic. Email is requested for identification purposes only.

Word Count: 0 (please limit to 200)

Submitted comments

One day we are sending Federal Police to PNG to help with a deteriorating law and order situation, the next day we are endorsing the country as a suitable refuge for people fleeing armed conflict and persecution. Is there any limit to Australian hypocrisy?

Walter Hamilton 21 July 2013

Travellers to PNG are warned to 'exercise a high degree of caution' according to the government's own Travelsmart website. Homosexuality is also illegal and haven't they brought back the death penalty? Violence against women is endemic. We are creating an asylum seeker wharehouse in a disfunctional society.

john bartlett 21 July 2013

Thank you, Kerry. I find it incredible that our government would even think of asking PNG, with its major social problems, to be involved in this burgeoning and complex situation. It is for us, as a nation to sit at table -refugee advocates, politicians and people - and agree to genuine humanitarian solutions. No bottom lines!

vivien 21 July 2013

Thanks Kerry. I tried to explain to a family member why the policy was wrong but failed...You succeeded. I know it is wrong because we are treating human beings like pawns.

Pat sheahan 21 July 2013

At least Kevin Rudd is trying to stop the trade in misery. There is not a single decent human being which can support people smuggling.

Beat Odermatt 21 July 2013

Rudd lost me when he turned back and denied Brindha any help in spite of pleading from a despairing 9 year old. She is now a permanent resident but has been through hell.

Gillard made things much, much worse with her stupid in expert old men to find ways around the law and this is the next phase in that vicious cruelty.


Marilyn 22 July 2013

The PNG 'solution' is morally abhorrent. Even more despicable is the commentary seeking to portray possible objections from PNG people in relgious terms - 'a Christian population objecting to a Muslim influx'. People smugglers are NOT necessarily the scum of the earth. Australian like Les Murray owe their lives to them!

Juliet Flesch 22 July 2013

The PNG is one of the starkest consequences of an extreme capitalist society I've ever witnessed in Australia. The slaughter of Aborigines in the cause of nation-building/greater good was more extreme, but I am fortunate not to have witnessed that. Politicians say the end justifies the means, but dying at sea is not the only end.

AURELIUS 22 July 2013

We must not compare the present day people smugglers with those involved with the1930's Jewish refugees. Today's smugglers are controlled by Asian Syndicates who will stop at nothing to get their money from relatives even if one of their customers die at sea. The only long term answer to the trade is to legally empty the camps with the co-operation and willingness of countries throughout the world as happened after the Vietnam war

John ozanne 22 July 2013

John and Beat, you are both wrong. There are no people being smuggled to Australia, they are people who are seeking protection who can't get passports because they have no state to get them from. That is not a crime, it is not smuggling and it is not criminal Asian gangs as some beat it up into. Us selling refugees to PNG and Nauru against their will though and using forced and false papers to win votes is criminal human trafficking as defined under the law. A person bringing a refugee to a safe country is a good person, a person taking a refugee from a safe country to a dangerous country is a criminal.

Marilyn 22 July 2013

Well said, Kerry. This is a sad day for Australia. This policy has nothing to do with 'stopping the boats'; it's all about stopping Tony Abbott. It seems that Australians, by and large, aren't concerned with stopping people risking their lives on these perilous journeys. Rather, we just want them to go somewhere else. A sad day indeed for our country.

John Foulcher 22 July 2013

Onya Kerry! Just so - as for Bob Carr is anyone has seen him in action against the voiceless...he is only a gollum in Carr's clothing.. meanwhile...this was a response to Justin's article on this PNG topic - I hope you don't mind repetition! To me the whole way that the government, opposition and many media have framed the debate as being about people smugglers is disgusting. It is not about smugglers it's about people fleeing from cruel and repressive regimes where they are denied any avenue to freedom or safety. Odious comparisons such as middle-class Iranians are less liable to persecution than Rohingas are the same rhetoric used about the Jews before WWII. If you've got money, you can't possibly be suffering!! Either people meet the UNHCR criteria or they don't - there is no class system. So much to say about the horror of all this and the mean, resentful, envy-based garbage being dished out by Rudd's and Abbott's propaganda machines such as Alan Jones. If there was a Goebbel Prize for Newspeak - they'd all be highly eligible! Sick sick country. Thank God (really as in Jesuits) for the Justins and Kerrys who are the real Australia!

Ariel 24 July 2013

Fantastic article Kerry. The moral bankruptcy of a privileged nation like ourselves, outsourcing this difficult problem to our poor neighbours is just astounding

Mark Hudson 25 July 2013

Marilyn u are the one that is wrong. John and Beat arecorrect. The people smugglers are money driven, for example, the recent sinking of a boat, where 9 people drowned, the people smugglers jumped ship, to allow those on board to drown. There should have ben 60 people on board and there were 250..

Natalie Tai 30 July 2013

Marilyn u are completely extreme to say people smugglers are good people. I will never vote greens as they, like u, advocate people smuggling!!!

Natalie Tai 30 July 2013

Similar articles

Crying chairs' cold comfort for refugees

Lyn Bender | 24 July 2013

'Crying chair' by Chris Johnston. Huddled sad and cold in the I watched the 'crying chairs' from my psychology clinic disappear into the truck. Many people over the years had nestled in one of those voluminous chairs and wept, whispered, or shouted their rage, sorrow and despair. Now it was time to leave my counselling office so I surrendered my sturdy armchairs for a greater good.

PNG solution at odds with international law

Justin Glyn | 23 July 2013

Giant gavel superimposed over world mapThe PNG solution includes permanent exclusion from Australia in a small, poor and violent country already unable to accommodate the refugees from West Papua whom it hosts. Attorney-General Mark Dreyfus claims it complies with international law. A quick glance at the much put-upon Refugee Convention suggests this is may be a rather optimistic assessment.

A legal tax rort is still a rort

Michael Mullins | 22 July 2013

The salary packaging and car manufacturing industries resented not being consulted about changes to fringe benefits tax rules. But as treasurer Chris Bowen said when he shrugged off the criticism: 'This is a matter of the integrity of the tax system.' A tax system that makes compromises with sectional interests is by definition corrupt and turning its back on the common good that it has been set up to serve.

How Labor lost its moral edge

Tony Kevin | 21 July 2013

We will now tell damaged, fearful people who try to come here: Go to PNG. Wait in fever-ridden tent camps for years to be processed. We have used our economic power over a small impoverished and fairly unstable country to say to its political class: we will bribe your country to accept as future citizens groups of people who have no affinity with or respect for you, and for whom you have no affinity or respect.

PNG move proves Australia is not special

Frank Brennan | 20 July 2013

Slogan in stylised text reads 'If you come here by boat you won't be settled in Australia'This bold move might stop the boats in the short term. If it does, we need after the election to recommit ourselves to providing better regional upstream processing and protection for asylum seekers stranded in Indonesia and Malaysia. Let's hope that whoever is in government after the election can call a truce on the race to the bottom and commit to the hard diplomatic work that is needed.