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The problematic 'saving lives at sea' argument

Kerry Murphy |  27 July 2015

Bill Shorten at ALP National Conference 2015

When those advocating on behalf of refugees criticise clearly bad policies such as temporary protection visas, turning back boats or processing in Nauru or Manus Island, they are confronted with claims that such policies are necessary for saving lives at sea.

Such a justification has dominated the debate to the extent that any policy which further restricts refugee rights becomes justifiable on this ground.

A problem with the saving lives at sea argument is that you can save lives at sea with the rescue operation like Italy conducted with Mare Nostram.

There is no need to further penalise people who are prepared to take high risks to achieve safety, yet that is what we continually do.

Imagine if it were proposed to ban cars because there were too many people killed and injured on the roads. The compromise might be to only drive at 20 km/h on all roads.

Also, whilst we can try to prevent deaths in our waters, we seem unconcerned if these desperate refugees take risks in waters outside our zone. Simply stopping the boats does not address the need for further international and regional efforts at local integration or resettlement. The only solution proposed by the Coalition is that everyone should adopt their hard-line policies. The obvious fallacy with this is that where do the refugees go if everyone just keeps bouncing them away?

Now we have Labor leader Bill Shorten saying we should accept the turn back policy as an option, and as a political sweetener we can double the refugee intake and spend more on the UNHCR. Shorten claims that turning back the boats is a necessary compromise to avoid scare tactics of the Coalition. The tragedy is that taking more refugees and spending more on the UNHCR is not offered without the need for punitive policies against refugees.

UNHCR has expressed serious concern with the policy the ALP National Conference has endorsed.

UNHCR considers that actions to intercept and turn back boats carrying asylum-seekers are contrary to the spirit of the 1951 Refugee Convention, and the practice of turning back boats carrying potential asylum seekers sets a negative precedent for other countries that are hosting large numbers of asylum-seekers and who do not have legal frameworks and safeguards in place and may seek to emulate Australia’s practices and policies. This may have serious consequences for the international system of protection that relies on the sharing, not shifting of responsibilities.

For refugees, there has been continual compromises of their rights since Keating introduced mandatory detention in May 1992. Since the introduction of protection visas into the Act from 1 September 1994 there have been over 50 amendments to the Act and regulations dealing with refugees. Several were ‘neutral’ in impact, such as those codifying the existing common law. Most were negative in impact and only one change can be said to be a positive change – the introduction of Complementary Protection from 24 March 2012.

The obsession with boat people as refugees is clear. It is made possible to have so many punitive laws because of years of vilification of people as the unacceptable other. Politically, refugees arriving by boats are bad refugees, and need to be punished. This attitude was reinforced legally with the introduction of mandatory detention under Hawke and Keating in May 1992 and the obsession has continued through successive Governments – Labor and Coalition.

There is an unhealthy obsession with excluding people from making applications, or having them processed offshore under the Pacific Solution, or by our refugee colonies in Nauru and Manus Island. The latest changes introduced just in time for Christmas 2014 provide a good example of neutral and negative changes. The most negative changes include the new Fast Tracking Process and other changes making it easier to refuse cases. Whilst the changes make refusals easier, they can result in people being potentially stuck in long term immigration detention.

Keeping refugees in offshore processing serves several objectives. Firstly it keeps them away from lawyers and the supervision by Australian courts. Secondly, it is punishment for daring to challenge Australian sovereignty. Thirdly proper scrutiny by independent bodies such as the human rights commission, or even the Royal Commission into Child abuse is not possible on ’jurisdictional grounds’.

This persecution is completed by how we punish people who not only arrive by boat, but actually turn out to be refugees as well. We give them a Temporary Protection Visa (TPV) which can never be converted into permanent residence, and does not allow for sponsorship of immediate family members such as partners and children. The alternative temporary protection visa is the Palmer inspired ‘Safe Haven Enterprise Visa (SHEV).

The SHEV requires refugees to state they will work or study in designated regional areas for 42 months and then they can apply for other visas but not a permanent protection visa. So far only NSW regional areas have been designated and the main challenge will be effectively turning a refugee case into a skilled migration case. This extremely high hurdle means many will never be granted permanent residence in Australia and presumably our sovereignty protected.

Recently I was explaining to an Iraqi client, let’s call him Ali, how he can only get the city visa (TPV) or the country visa (SHEV) and then he needs to find work which might result in his later sponsorship for a temporary business visa, if his English improves. Until then he cannot sponsor his wife and child from Iraq. Ali arrived in mid 2012, and was found by the then RRT to be a refugee. Whilst he has some English and employment skills, he will struggle to get the high level of English required for skilled migration. He would probably have had a better chance of permanent residence under the now disregarded dictation test of the old 1901 Immigration Restriction Act.

Kerry Murphy profile photoKerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers and member of the boards of the IARC and JRS.



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Submitted comments

Thank you for that, Kerry. I wholeheartedly agree. Apart from the fact that we can save lives at sea, the other bit about the "deaths at sea" argument that never gets raised is, "what happens to those we turn back and is it worse than/as bad as a death by drowning?" In short, does a death only count when it's at sea? Why do these we send back to be killed or tortured at home not feature in our calculus of suffering?

Justin Glyn SJ 27 July 2015

Thank you for this important perspective. I despair at the decisions taken by the Labor Party to maintain offshore detention camps in Nauru and Manus Island and for the turning back of boats. There is an unwillingness to lead a different discourse in support of the principles of the Refugee Convention and complementary protection. The impacts of current policies on vulnerable people are devastating. Your last paragraph raises an issue too often overlooked- the enforced separation of families. Current policy settings deliberately limit the opportunity for separated family to reunite- a fundamental right. Refugees face indefinite separation from family, who are often also in precarious situations. TPVs deliberately prohibit family reunion as a punitive measure for taking a boat, with horrendous consequences for the mental health of people like Ali and for the safety of his family members.

Kate Jeffery 27 July 2015

Both major parties claim to save lives at sea. Sri Lankan Prime Minister says Australian government made a pact to keep silent on Human Rights if Sri Lanka helps to stop the boats. Aus also paid smugglers to take the boats back to Indonesia. Recently mass graves were found in Indonesia suspected to be that of returned refugees abandoned by the smugglers. Are we saving the lives of the refugees? Are we punishing the smugglers? Are we all fooled by our politicians who want to save their power & position?

albert mariampillai 27 July 2015

The truth is our media and pollies are in a game of thrones and the refugees are the pawns in their sick codependent game.

Marilyn 27 July 2015

the arguments often seem to line up as either supporting Abbott (offshore detention, secrecy etc) or supporting the opposite view - that boat arrivals are no problem, exaggerated, etc. the truth is more nuanced and complex on all the strands of refugee issues. I drew my evidence from hundreds of asylum seekers, boat arrivals, I met thru volunteer work, in Australia and overseas. What can we do to help refugees, I asked? Answer? The world needs to find a big answer. Boats are too dangerous. Advocates constantly reduce it to an "Australia is bad" slogan. The IMO documents boat movement. It is a vicious, murderous, insidious trade. The concept of "unlimited humanitarianism" is pure and total hubris. No country can do so. Countries like Lebanon and Jordan are being crushed. Australia needs to direct and target its resources . The "women at Risk" program took in 13,000 vulnerable women. Too many assumptions in referencing examples. Nostra Mare off Australia? The Mediterranean is not the oceans to the north. Over 1000 times the size; huge distances; 1000s of departure points. I worked with refugees in Pakistan. Pakistani government has some brilliant programs for refugees, despite their own vicious insurgency. Millions live safely, but life there very hard. Many move back and forwards across border. Refugees know safe areas, safe routes. Many have forgotten reasons why they fled. Boat returns do not equal deaths. Hubris, naïveté, lack of deep understanding of complexity, failure of world leadership, characterise this issue.

John 28 July 2015

Too true Marilyn and what I find infuriating is that, so far as I have observed, no journalist listening to Bill Shorten declaring that Labor will ‘turn the boats back’ only if it is safe to do so has queried the man as to what Labor will do with the refugees should it prove not to be safe to turn them around.

Paul 28 July 2015

You don't get refugee status because you "take risks at sea". Aust does more than most to assist asylum seekers. Not everyone who gets in a boat is a refugee. UNHCR does not define the "spirit" of the convention, the signatories do. Border control saves lives. EU policy is a gross failure and costs lives. Well intentioned naiveté is just that.

Jim Molan 28 July 2015

I wonder how many people we have condemned to death by forcing them to stay in the countries they want to escape from.

Terry 28 July 2015

Thanks Kerry. My solution for stopping the boats may be dramatic but would work. Allow them to come, arrest the smugglers and burn or sink the boats. Surely a disincentive.

Kevin 28 July 2015

The logic, as I understand it, is that we will only 'beat the people smugglers' if we 'break their business model' by turning boats back and making. Australia an undesirable destination. Why shouldn't we break their business model by setting up in competition? We have safe forms of transport. It would surely be cheaper for us to offer asylum seekers free travel.

Gillian Dooley 28 July 2015

I came here wanting to read a coherent argument the 'turn backs' because intuitively I find it abhorrent and the product of a political discourse that is pretty shameful from both sides. It's disappointing therefore to read that we should be 'just like Italy' or that it's like motor vehicle accidents. It's nothing like vehicle safety and the Mediterranean is nothing like the vast oceans to our west and north west. And while agree with the very important point that turn backs don't solve the bigger problem, the evidence is -- as reluctant as I am to give Abbott a tick -- that the dangerous journeys have stopped. People smuggling is a BAD way to solve the bigger problem, stopping it may be a small part of the solution and the current govt may be doing it for purely political and reprehensible reasons, but it is better that it is stopped.

Tony 28 July 2015

Don't disagree with much of what you wrote Kerry .... but can you or anyone (or any country) provide a serious and sensible proposal/answer to the refugee problem? We critics of current Australian Govt. policy need to put our energy into finding an answer rather than just bagging what has/is being done.

Jack 28 July 2015

I agree. The policies have little to do with saving lives since both parties turn back the boats seeking to win the votes from the many Australians who fear a non WASP Australia. The extent to which the pollies, press and shockjocks influence this attitude is probably significant. The solution lies in changing the hearts and minds of the voters.

Geoff O'Neill 28 July 2015

Monash Uni research showed that the 'terrorists' all arrive by plane. They can enter the country quite easily and are not subjected to the scrutiny 'boat people' are. (90% of boat people are genuine refugees.) They are locked up for years and end up with serious psychological issues, that the tax payer pays for ...they are people this country needs...the govt wastes money deterring them through cruel policies. BUT the problem people get into this country quite easily by plane.

Bron 28 July 2015

If you wanted to save lives at sea, then you could always pick people up, record their biometric identifiers and inform them that they will never enter Australia under any circumstances. You would then take them to UNHCR camps in Africa or Middle East, and exchange them for refugees already in those camps who are willing to be resettled in Australia and who have never attempted unapproved entry to Australia; by taking TWO people from the camp in return for every ONE person you put there, you would be alleviating the world's humanitarian burden - as well as providing a disincentive for anyone to attempt unauthorised entry to Australia. On the return journey to Australia, you'd provide your complement of New Australians with medical assessment, care and vaccinations, and education and training to induct them into their new home. Once this policy succeeds in humanely "breaking the people smugglers' business model", you maintain high resettlement rates from among refugees, including refugees from nations in Australia's region.

David Arthur 28 July 2015

Deaths of asylum seekers at sea worry our governments because they know they are partly responsible. Why do they drown? Because the boats are not seaworthy. Why don't the owners keep them in a seaworthy condition? Because they know that if they do get here the authorities will destroy the boats. We should use our navy to bring the refugees here. That will put the people smugglers out of business.

Gavan 28 July 2015

It looks like the people smuggling industry remains greedy and bloodthirsty like ever. There is no respect for human life or dignity from people smugglers and their greedy supporters! Shame!!!

Beat Odermatt 28 July 2015

Another great article Kerry. I wish people would see through the sheer hypocrisy of the Saving Deaths at Sea stance. Don't people remember that Abbott's Stop the Boats campaign was conducted for ages on sheer xenophobic grounds. It was aimed at people who were sure they didn't want 'these people' here. It took a long time for him to sense that he ought to dress it up on grounds that seemed humanitarian. He and Shorten both claim that their policies are humanitarian. (Abbott went a step further recently when, surrounded by flags he piously asked God's blessing on the enterprise he had entrusted to the heroic Members of his Border Protection Force). He and Shorten would get a great reception if they took their claims to be acting humanely to the people Abbott still chooses to crush and torture on Manus and Naru. Shorten has at least offered an independent oversight of these camps. But the first step in changing to any really humane policy must be to bring back on shore processing. I fear, however, that votes are all that either of them is concerned about.

Joe Castley 28 July 2015

Thanks, Kerry, for your article. Several respondents have noted how complex is the challenge to serve the lives of one's neighbours and to protect our own. Have we saved the lives of those in detention in Manus and Nauru by exposing them to slow deterioration with no end in sight? Or the lives of those turned back? We do save some lives when we offer a new start through immigration to a number of people who have waited for a long time in camps. Pilate, when faced with a challenge to save the life of an innocent man, chose to serve his own interests and wash his hands of the whole affair. We Australians are being called to address complex challenges that cannot be met by using only values drawn from our current culture of self - protection. The quality of our national soul is at stake, not just our security. Finding better ways depends on all of us joining our good will. We need less adversarial refutation and more truth telling - the whole truth and nothing but the truth - so that we can find a way together to serve each others lives, at home and worldwide.

alex nelson 28 July 2015

i sense that people are feeling overwhelmed at the magnitude of this exodus and are frightened that if these people in exile are shown any kindnesses then they will abuse that gift. Part of the problem is that nationalism has evoked a perspective of sovereignty (in previous ages a person was known for their craft, talent etc before their country of origin). The issues of identity and sense of place drive this fear - of feeling threatened - that also drives the "not in my backyard" mentality. We are now seeing the limitations of policies that try to address 'exile' within a nationalistic and sovereignty framework. Tony Abbott only knows leadership (?) through this lens. Pope Francis' encyclical and the issue of climate change have offered us an opportunity to think differently about 'identity and place' that transcends these conventional responses through the lens of nationalism and sovereignty. In an over-populated world we need to be dealing with the issues of 'exile' and 'death and dying' differently. A public health approach might just offer some clues ...

mary tehan 28 July 2015

The unexpressed premise of the article seems to be that all persons (perhaps only refugees) arriving by boat should be accepted into Australia. How should the be dealt with by Australia, for example what accommodation, work etc. etc. is to be provided? What changes are to be made in Australia for potential migration on an unprecedented scale? These are important issues that must be addressed in resolving the injustices fastened upon in Kerry murphy's powerful contribution. The refugee problem is never going to be satisfactorily dealt with until these issues are confronted and an acceptable solution found.

jl trew 28 July 2015

Hawke retired after being defeated for PM in December 1991.

Angela 28 July 2015

The root of the problem is nationalism. Our nationality is paramount to our identity. To have a really honest discussion about the massive problem, worldwide, of refugees we will somehow need to identify as global citizens rather than national citizens.

Anna 28 July 2015

The Liberal and Labor arguments for turning back the boats is that they are saving lives at sea. This argument is weak and lacks real compassion.The Italians have shown us that you can save lives at sea with the wonderfully compassionate rescue operations they conduct. I agree with Kerry that there is no need to further penalise people who are prepared to take high risks to achieve safety.

terry fitz 28 July 2015

Bravo! David Arthur. The most simple solution I have ever seen proposed. But unfortunately it is likely to be so successful and so simple (particularly if implemented by all nations involved with this crisis) that it will put the noses of a lot of people with vested interests out of a job and render them irrelevant. And human beings with vested interests will fight tooth and nail to stop your brilliant suggestion - they would have to undergo the inconvenience of finding something else to do! Love it! Start the campaign.

john frawley 28 July 2015

What's wrong with asking God's blessing, Joe Castley? I could understand it if you thought it not OK for the members of the Labor Party who support abortion, euthanasia, same sex marriage and sexual profligacy to ask for God's blessing on their policies.

john frawley 28 July 2015

David Arthur's plan (rescue the boat people and transfer them to camps in Africa or the Middle East in exchange for 2 confirmed refugees who have never attempted unauthorised entry into Austalia) is not only an effective way of stopping the boats. It is also eminently affordable if we close the centres on Manus and Nauru and instead spent the annual cost of $2.4billion on genuinely saving lives at sea. The current practice of turning the boats back is sending people to drown somewhere else or be persecuted back where they came from.

Adrian Walker 28 July 2015

I agree with Adrian Walker's support for the idea proposed by David Arthur. The downside is that it compares "bad" refugees in boats with "good" refugees in camps and makes a value judgement about who can/can't come to Australia on that basis. But that aside, it is a constructive idea that would send the right messages to the people who need to hear them. If I could take it a bit further, why limit our intake to two for each boat refugee we place in the camps? Much of the sovereign borders paranoia generated by politicians trying to outdo each other creating fear of the unknown would go once more people here had regular contact with refugees in their communities. Australia could reasonably resettle a far larger number of refugees from camps. Why stop at two is all I ask?

Brett 28 July 2015

I am so sad about our response to asylum seekers. So we've stopped the boats arriving here, but do we really know what happens to those desperate people and do most Australians care? As long as it's not on our turf. The politicians just want to win votes and I am sad to say, at any cost. Many Australians want to keep our patch to ourselves and are unhappy with too many people from 'different' cultures settling here. The fear factor is alive and well and used by politicians to secure their position. All in all just open an office in Indonesia, process people quickly and fly the successful people in. Rescue them when necessary and process quickly. We have to take our fair share of the worlds displaced peoples.

Cate 28 July 2015

Thanks for many comments and criticisms. As John said, it is complex, and hard to cover in under 1000 words. Two points to Jim Molan - I never said arriving by boat = refugee status. Whether you come by boat or plane is irrelevant to whether you are a refugee, which is one reason we should not treat them differently. Secondly, the UNHCR has been central to refugee determination since the 1951 definition, it is not just what States think, UNHCR's role is very central. A major point I see is that we are punishing refugees (because those who do not meet the definition are not refugees) with the TPV and SHEV simply because of HOW they came here, and in my view, that is not a relevant factor. KM

Kerry 29 July 2015

The problematic "saving lives at sea" argument is of course also completely dependent on the problematic migration zone. Let us not forget that while Australia might be an island, it's migration zone is not an act of nature but one of Parliament. In theory at least, it could be set so that refugees barely got their feet wet before they were eligible to apply for migration visas. The humanity of the subsequent migration laws is also just as much a matter of legislation. Our choice, all of it.

Julia Thornton 29 July 2015

Refugee who catch unseaworthy boats do so because they fear for their lives. It is like people trying to escape a flaming inferno. Turning back the boats is like pushing back into the window those who were trying to jump out from a burning building, on account that jumping out of a building could kill you. Does it make sense?

Eveline Goy 30 July 2015

I'm attracted by David Arthur's plan, too. Well done, DA.

HH 31 July 2015

If we could only see these refugees as people, instead of numbers. As families, instead of statistics. As brave, and not inconvenient. As hopeful, not defeated. To be saved, not silenced. As future Australians who can contribute to our country, to take up a place on our "boundless plains to share"? Deaths at sea? Not on my watch, not while I can speak up against it.

Catherine Ross 31 July 2015

Thanks Kerry for your untiring passion to focus on the plight of asylum seekers. I agree with Geoff's comments and it saddens me that many Australian hearts have become hardened towards these people.

Annette Field 31 July 2015

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