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Reflecting on justice for asylum seekers during an election campaign

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Frank Brennan |  29 May 2016

Yass Catholic Parish Potluck Dinner, 28 May 2016.

Thank you for the opportunity to address the Yass Catholic Parish Potluck Dinner on the theme of this last year's social justice statement from the Australian Catholic Bishops' Conference entitled 'For Those Who Have Come Across the Seas'. Being in the middle of an election campaign, I will not be making any partisan party political points. However being here in the bellwether seat of Eden-Monaro, I will conclude with a critique of both major political parties, and with one piece of political advice for citizens of goodwill seeking a national asylum policy more in harmony with the ideals set out by our bishops in their social justice statement.

There was a very moving scene at the state funeral of Malcolm Fraser in March last year when Vietnamese Australians thronged outside the church carrying placards which read: 'You are forever in our hearts: farewell to our true champion of humanity: Malcolm Fraser'. I honour Fraser, but not because he opened our borders to fleeing boat people coming in their tens of thousands. He didn't. He secured the borders, and then he led the nation in opening 'our arms and hearts to tens of thousands of refugees' as the novelist Tim Winton put it in his Palm Sunday address in Perth last year. Winton was wrong to claim that Fraser welcomed the boats. Winton was right to proclaim:

I was proud of my country, then, proud of the man who made it happen, Malcolm Fraser, whose greatness shames those who've followed him in the job. Those were the days when a leader drew the people up and asked the best of them and despite their misgivings, Australians rose to the challenge. And I want to honour his memory today.

Seeking the right balance between compassion and realism, between the human rights of asylum seekers and the national interest of a rich democratic country, we might find as much guidance from the memory of the last generation of refugees in their honouring of the last generation of political leaders who tried to forge a solution compassionate and fair to the many who were seeking asylum and acceptable to the voting public. I have concluded that stopping the boats is a precondition to finding a politically acceptable, compassionate and fair solution. It is time to quarantine the question of the morality of those stopping the boats, accepting the political imperative of stopping the boats if they can practically be stopped. The boats will be stopped. But they need to be stopped decently and fairly so that the community might then be encouraged and led to be more generous in opening the doors to a higher quota of refugees each year being selected by government from situations of acute despair, and in funding the international agencies and other governments caring for asylum seekers in transit. As one of the richest, most democratic countries in Southeast Asia, Australia will always be an attractive destination for some of the 59.5 million displaced persons in our world.

As prime minister, Fraser gave great leadership in the Australian community cultivating public acceptance of the idea that Australia would play its part in receiving a significant number of Vietnamese refugees chosen by Australian government officials from camps in other South East Asian countries like Thailand. Eventually an orderly departure program was negotiated with the Vietnamese government. Despite the small number of boat arrivals, there were members of parliament on both sides of the political aisle in Australia expressing concerns about 'queue jumpers' and those falsely claiming to be refugees while seeking a better life. Both Whitlam and Fraser, like all their political successors, expressed concerns about boat people arriving without visas and without prior selection by Australian officials. In May 1977, Fraser's minister for Immigration, Michael MacKellar set out Australia's first comprehensive refugee policy insisting: 'The decision to accept refugees must always remain with the Government of Australia.' He announced, 'There will be a regular intake of Indo-Chinese refugees from Thailand and nearby areas at a level consistent with our capacity as a community to resettle them. In this operation we shall be relying greatly on the co-operation of the UNHCR, other Governments, especially the Thai Government, and voluntary agencies in Australia.' When boats starting arriving regularly in Darwin Harbour, wharfies and others started to sound the alarm. Klaus Neumann in his dispassionate analysis of the period in his book Across the Sea: Australia's Response to Refugees — A History notes that MacKellar became half-hearted in his defence of the admission of boat people. On 22 November 1977, MacKellar addressed the NSW Branch of the Institute of International Affairs warning that 'no country can afford the impression that any group of people who arrive on its shores will be allowed to enter and remain ... We have to combine humanity and compassion with prudent control of unauthorised entry, or be prepared to tear up the Migration Act and its basic policies'. He was backed up by Foreign Minister Andrew Peacock who said that Australia could not 'continue to indefinitely accept Asian refugees arriving unannounced by sea' and that 'Australia could not be regarded as a dumping ground'. A year later, there was an increasing flow of refugees out of Vietnam and into camps around South East Asia. The Fraser government insisted on the need for a cooperative international approach. When non-government agencies started to provide assistance to boat people on the high seas, MacKellar told parliament: 'I put the proposition that the people concerned with the project could not see a situation emerging where Australia would automatically allow the entry of any people that such a vessel happened to pick up.'

On 29 June 1978, the Labor Party's spokesman on immigration matters, Dr Moss Cass, wrote a very inflammatory opinion piece in The Australian lamenting the arrival of over 1,000 boat people in Darwin Harbour, none of whom had been sent back to Vietnam. He said, 'The implications of a government policy which accepts queue jumping on this scale are obvious.' He was adamant that 'those refugees seeking residence in Australia who jump the queue by arriving on our shores without proper authorisation should not be given resident status, even temporarily'. It is important to appreciate that the notion that boat people are queue jumpers germinated at the very beginning of the first modest wave of boat people fleeing to Australia, and despite the heroic moral leadership of Malcolm Fraser. On 15 August 1978, the Labor frontbencher Clyde Cameron who had been Whitlam's Immigration Minister asked Fraser a rather hostile and insinuating question: 'Will he tell the Parliament what approaches were made by the United States of America which were in any way responsible for the decision to permit Vietnamese nationals to enter Australia without permits.' Fraser answered:

The United States of America has not attempted to influence procedures for entry to Australia. The Australian Government will at all times decide the requirements for entry to Australia. No Vietnamese nationals are permitted to enter Australia without entry permits. The 1634 boat refugees who have arrived in Darwin without prior authority were issued with temporary entry permits on arrival pending consideration of their applications to remain here.

The major political parties were agreed on the need to arrest the flow of boats, while being generous with the resettlement of Vietnamese refugees who then came through the camps in South East Asia under what later became the comprehensive plan of action in 1989. On 16 March 1982, Ian McPhee, Fraser's next immigration minister after MacKellar, provided Parliament with an update on the government's refugee policy restating, 'The decision to accept refugees must always remain with the Australian Government'. He told Parliament:

During my visit last year I reached the conclusion, commonly held by many involved in both the Indo-Chinese and Eastern European refugee situations, that a proportion of people now leaving their homelands were doing so to seek a better way of life rather than to escape from some form of persecution. In other words their motivation is the same as over one million others who apply annually to migrate to Australia. To accept them as refugees would in effect condone queue-jumping as migrants.

He called for a balance between compassion and realism. He announced progress with an orderly departure program aimed at arresting the flow of boats out of Vietnam. He reached agreement with his counterparts in Thailand and Malaysia how to arrest the flow and how to handle the numbers coming through. All this humanitarian effort was posited on the premise of stopping the boats coming uninvited to Australia.

I have come to accept that our political leaders will always maintain a commitment to stopping the boats, no matter what political party they represent; but I insist that there is a need for international co-operation to determine how decently to stop the boats while providing an increased commitment to the orderly transfer of an increased number of refugees across our border so that they might live safe and fulfilling lives contributing to the life of the nation.

This cannot be done in Australia until we shut down the processing centres on Nauru and on Manus Island, until we accept that people should only be held in detention while issues of identity, security and health are determined, and while we negotiate arrangements with Indonesia, India and any other transit countries to which asylum seekers are being returned, replicating the European regulation:

No person shall, in contravention of the principle of non-refoulement, be disembarked in, forced to enter, conducted to or otherwise handed over to the authorities of a country where, inter alia, there is a serious risk that he or she would be subjected to the death penalty, torture, persecution or other inhuman or degrading treatment or punishment, or where his or her life or freedom would be threatened on account of his or her race, religion, nationality, sexual orientation, membership of a particular social group or political opinion, or from which there is a serious risk of an expulsion, removal or extradition to another country in contravention of the principle of non-refoulement.

It might then be possible for Australian officials to conduct prompt, reliable onboard assessments of asylum seekers on vessels determining whether it is appropriate to return them to their last port of call.

In February when visiting New Zealand, Malcolm Turnbull rejected New Zealand's offer to take up to 150 refugees a year from the Australian caseload (whether onshore or offshore). Again when the PNG Supreme Court struck down the Manus Island arrangement, Turnbull rejected the offer saying, 'Settlement in a country like New Zealand would be used by the people smugglers as a marketing opportunity.' Mr Dutton told the Parliament: 'We will work with the Nauruan authorities and with the PNG authorities to provide opportunities for people there who have been found to be refugees — in the case of PNG, to integrate into Papua New Guinea society, or, on Nauru, to either stay on Nauru or move to Cambodia. We are working on third-country settlement options, but we need to structure any arrangement in such a way that it will not create a pull factor or an opportunity for people smugglers to get back into business.'

This just shows how irrational and callous is the present Australian policy (which enjoys bipartisan support in the Parliament). When John Howard instituted the first Pacific Solution he was only too happy to accept New Zealand's offer with 131 asylum seekers from the Tampa being dispatched immediately to New Zealand. Now we're being told that proven refugees who headed to Australia by boat could never be offered resettlement in a country like New Zealand. The only options left are not options at all, and the government knows that. Meanwhile the Labor Opposition talks about Canada as an option but dares not utter the name New Zealand. New Zealand is next door and has an offer on the table. Canada is on the other side of the world and has no offer on the table.

The carry on of both major parties probably explains the exasperation of UNHCR which has now said: 'There is no doubt that the current policy of offshore processing and prolonged detention is immensely harmful. There are approximately 2000 very vulnerable refugees and asylum-seekers on Manus Island and Nauru. These people have already been through a great deal, many have fled war and persecution, some have already suffered trauma. Despite efforts by the Governments of Papua New Guinea and Nauru, arrangements in both countries have proved completely untenable.'

So we are in the midst of an election campaign with the government in caretaker mode having no policy solution whatever for the 850 men being held in Papua New Guinea, and with the Labor Opposition offering no alternative to this 'completely untenable' arrangement. It's a disgrace. Mr Turnbull thinks refugee advocates are being misty-eyed. That's better than being wilfully blind.

I've heard a lot of fatuous things from both major political parties over the years about offshore processing. But the pre-election statement by Labor's Richard Marles takes the cake. Marles told ABC Lateline: 'The agreement that we signed with the Government of PNG was for 12 months and that's because we fully expected that the vast bulk of those people on Manus Island would be processed and resettled within that period of time. We never saw Manus Island as a place of indefinite detention where people would be languishing three years later as they are now. And the predicament that we find ourselves as a country in now is to do with this — with the failure of the Turnbull Government in finding resettlement options for people both in PNG and in other countries.' The Rudd Government of which Marles was a member had no commitment whatever to finding resettlement options outside PNG for proven refugees held on Manus Island. Neither did the Abbott government; and neither does the Turnbull government. Having written the cheque, our governments of both persuasions have seen the ultimate resettlement of these people as a problem for PNG. When the House of Representatives voted to approve the designation of PNG as an offshore processing country on 9 October 2012, Adam Bandt for the Greens proposed an amendment calling 'on the government to put in place a 12 month time limit on immigration detention in Papua New Guinea'. That amendment attracted two solitary votes — that of Mr Bandt and Andrew Wilkie. (Hansard, p. 11657) Give me a break. Both major political parties knew in their bones that the arrangement on PNG would last much longer than a year, and the last thing they wanted was any sort of one year time limit. After all they wanted to keep sending a message to people smugglers. It's a bit hard to send a message to people smugglers if all your offshore facilities are empty! Both sides were committed to bankrolling detention on Manus Island for as long as it might take for detainees proved to be refugees to decide to try and settle in PNG or try their luck elsewhere, including back home where they faced persecution. And now the protracted detention has proved to be unlawful.

After the election, asylum seekers on Manus Island should be brought to Australia and processed. Those who are refugees should be permitted to stay in Australia. At the moment, neither the Liberal Party nor the Labor Party agree, and of course neither of them will discuss realistic solutions during the election campaign. The race to the bottom and the race against time is now on as the country endures a marathon election campaign.

So here is my proposal for consideration by the major political parties post-election. The offshore asylum seekers on Manus Island should be brought to Christmas Island for processing. To move more than 850 single men from Manus Island to Nauru would be highly irresponsible behaviour, no matter how much money we were prepared to offer Nauru. The government should guarantee that all refugee claims for this cohort would then be determined within 12 months. The government should also guarantee that all those proved to be refugees will be resettled within 18 months — by the end of 2017. For many of these people, that will have meant a five year delay between initial detention and resettlement.

Both major parties need to accept that they were in government when their ministers knew or ought to have known that the initial MOU was posited on illegal, unconstitutional activity by the Government of PNG. If resettlement places cannot be provided for any proven refugees in this cohort by the end of 2017, there will be no option but to resettle them in Australia.

None of the parties likely to form government after the election has an asylum policy which is acceptable. I urge people of goodwill when casting their vote to consider the desirability of a Parliament which is not readily controlled by the government of the day, and which therefore might make the new government enact a more humane policy. I encourage people to cast a vote for a member or senators (whether members of the major parties or not) who have a commitment to reviewing the existing government policy, providing a more humane outcome both for those presently being held on Nauru and Manus Island as well as for those waiting in the Australian community without adequate work and welfare rights. I would hope that we could all then start the long term co-operative work needed to increase our humanitarian migration quota and to develop a regional solution with neighbouring countries assisted by the good offices of UNHCR, while accepting even with a heavy heart and conscientious reservation that the boats will be stopped. We need to negotiate the ethical dividend for stopping the boats.

When introducing last year's social justice statement, Bishop Vincent Long, himself a refugee, himself a boat person, wrote:

Australia rose to the challenge in the past with its generous embrace of migrants and refugees. It proved itself especially courageous during the Indochinese exodus and accepted an unprecedented number of Asian refugees ... .We honour the legacy of this great nation not by excessive protectionism, isolation and defence of privilege at all costs ... . With the increasing global movement of peoples and our nation's fearful response, it is timely to reflect on this important issue of the day.

I commend the parishioners of Yass who are committed to greater national acceptance, justice and dignity for refugees and asylum seekers. Let's hope our vote can make a difference despite the absence of moral discourse about this issue within our major political parties during the election campaign.

 


Frank BrennanFrank Brennan SJ is professor of law at Australian Catholic University and Adjunct Professor at the Australian Centre for Christianity and Culture. Frank discussed asylum policy with Amanda Vanstone on Friday evening.

 



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Well said, both in this piece and on Lateline with Amanda V. V kept trying to sidestep your concern with incarcerated asylum seekers by saying that Australia was very generous in the number of refugees it accepts for resettlement - an important but rather different issue. As I recall, Tony Jones did not try to restrain her. A minor point: reference to a 'wave' of refugees suggests that there is a danger of inundation. We should aim to avoid it.

barry hindess 31 May 2016

I shall definitely be voting on the basis of attitude of contestants to refugee issue, but finding it difficult to get direct answers on whether they will close the two offshore detention centres. More publicity needed. Thank you Fr Frank!

Josephine Mercer 31 May 2016

I agree with you - we must find the right balance of compassion and realism. An open door policy is certainly not the answer, but neither is the current policy of a straight out, no. My greatest concern in all of this is the plight of those who CANNOT afford to pay a people smuggler. Those people who fled the conflict with nothing but the clothes on their back - who have lived in refugee camps for the last x number of years. In this country there seems to be people from every walk of life willing to give up their time or rooms in their homes for the people who have had the money to make it here - and kudo's to them. But what about those who are forgotten by the media and others because they are just another face in a sea of faces. Perhaps if we worked harder to get them resettled here, gave them priority, increased our quotas for those people - then perhaps the issue of 'boat people' would disappear. We have been talking about this matter since before John Howard's time - perhaps it is time for a new direction.

Greg Bennett 31 May 2016

People are entrepreneurially finding irregular ways to get here because a refugee, in practical terms, is someone who cannot expect his country to protect him from starvation, illness and death by the normal means of giving him a job created by a functional economy. Given that there are millions of such people, debating the issue as if local inundation by boat people is a problem soluble by anything than force is misleading. Australia could scoop tens and hundreds of thousands from refugee camps and it wouldn’t matter. That the inundations as such haven't yet occurred is either a matter of luck or because of tough deterrent talk by the government backed up by offshore police operations and the prospect of offshore detention. If overseas situations deteriorate, even detention won't be a deterrent as three square meals and a gaol roof in the hand is bound to beat a precarious liberty-in-transit in the bush. The boats we have had thus far are feints. Feints are tests to see if a defender is serious about defending. Waiting to see how the feints are met is the advance. The solution to economic refugees lies elsewhere than in kindly DIBP hospitality.

Roy Chen Yee 02 June 2016

Greg Bennett says, ‘We have been talking about this matter since before John Howard's time - perhaps it is time for a new direction.’ Indeed. To set a new direction, we have first to put aside the undesirable and unworkable aspects of the present policy settings. Are not our military and intelligence services (in co-operation with Indonesian officials) sufficiently on the job that they can stop people smugglers in their tracks, stopping boats from being filled, stopping boats from setting out and turning back any that set out, regardless of whether proven refugees on Nauru and Manus Island are resettled elsewhere (even ultimately in Australia)? The suggestion that those camps need to remain filled in order to send a message to people smugglers so that the boats will stay stopped is morally unacceptable. Those proven to be refugees should be resettled as quickly as practicable, and that includes taking up New Zealand’s offer of 150 places a year (just as John Howard did with the Tampa). Afterall, Angus Houston proposed a resurrected Pacific solution only as a temporary circuit breaker until the boats could be stopped and turned back lawfully and safely. His panel did not propose it as a permanent pre-condition for being able to stop boats and turn them back. The Houston Panel stated at para 3.45: ‘The Panel’s view is that, in the short term, the establishment of processing facilities in Nauru as soon as practical is a necessary circuit breaker to the current surge in irregular migration to Australia. It is also an important measure to diminish the prospect of further loss of life at sea. Over time, further development of such facilities in Nauru would need to take account of the ongoing flow of IMAs to Australia and progress towards the goal of an integrated regional framework for the processing of asylum claims.’ Given that there has been no ‘ongoing flow of IMAs to Australia’, the only case for maintaining a processing facility on Nauru, in line with the Houston recommendations, would be as part of ‘an integrated regional framework for the processing of asylum claims’. And the Abbott and Turnbull governments have done NOTHING to effect that. Nauru and Manus Island no longer perform any credible, morally coherent, or useful task in securing Australia’s borders. Even talk of sending signals is misplaced. The main signal is being sent to Australian voters, not to asylum seekers waiting in Java whose attempts to commission people smugglers have been thwarted by Indonesian officials and Australian intelligence, and whose boats would be turned back in any event.

Frank Brennan SJ 09 June 2016

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