Five reasons to welcome US Manus deal

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The Turnbull government has struck a deal with the USA which provides hope at last for the 1600 proven refugees on Manus Island and Nauru. There's still a lot of work to be done before these refugees, including children, can get on with their lives after three years of unnecessary, hopeless agony. I welcome the decision, and await the further detail.

Manus IslandSunday's announcement was packaged in the usual Canberra wrapping with lots of military brass, restating the need to smash people smuggling rings, keeping the boats stopped, and turning back boats when it is safe and legal to do so. No boats have arrived in the last 840 days. 29 boats have been turned back.

The Liberal-National Coalition government remains resolute that the boats will stay stopped. The Labor opposition is adamant that it is now on a 'unity ticket' with the government, being committed to keeping the boats stopped. The majority of the Senate crossbench are of the same view.

Those who maintain strong moral and legal objections to the boats being stopped need to concede that there is no political alliance in the Australian parliament which will contemplate any other option for those asylum seekers wanting to transit Indonesia and who do not face the prospect of persecution in Indonesia.

Australia will always offer better processing, security and long term life prospects for asylum seekers than its neighbours like Indonesia. But there is a limit on the number of places we Australians are prepared to offer each year for permanent humanitarian resettlement in Australia.

Gone are the days of presuming that those who arrive without visas are in direct flight from persecution. Gone are the days when they get first option on the available humanitarian places.

The deal is short on detail. But I welcome it for five reasons.

First, the government has admitted that these proven refugees are still Australia's responsibility and will be until they are permanently resettled. Second, the government has abandoned the fatuous claim that the proven refugees already had a durable, credible option — permanent resettlement in Cambodia.

 

"The Turnbull government has legitimate policy objectives. But there is a need to separate out the illegitimate, petty and amateur partisan politics in which these objectives continue to be wrapped, marketed and reported."

 

Third, the government has admitted that despite the 2013 MOU with Nauru, Nauru had not provided resettlement for any proven refugees. Should any proven refugees choose to remain in Nauru, they will now be offered a 20 year residence visa. Fourth, the government has abandoned the claim that indefinite warehousing of proven refugees is a necessary precondition for stopping the boats and a morally justified policy for sending a message to prospective clients for people smugglers. Fifth, it provides the circuit breaker which might put an end to this excruciating saga and provide the prospect for a more moral, more affordable, more workable border protection policy enjoying broad support in the parliament.

The Turnbull government is continuing negotiations with other governments seeking places for any of the remaining 1600 proven refugees on Manus Island and Nauru who cannot satisfy the US health, security and character tests. Even if all 1600 could satisfy the US tests, there is no published guarantee that the US will take the whole cohort.

The Turnbull government has now presented the Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 to the Senate. The Labor Party is presently opposed to it. In this policy area, the perfect is the enemy of the good, and the prospect of a bipartisan approach on 'means', despite agreement on 'ends', has been slight since the Tampa affair in 2001. The Turnbull government has legitimate policy objectives. But there is a need to separate out the illegitimate, petty and amateur partisan politics in which these objectives continue to be wrapped, marketed and reported. It's time to get rid of the wrapping and achieve parliament's commitment to the legitimate policy objectives. This could be achieved by appropriate Senate review of this bill.

After three years and three months, the Turnbull government needs to find a credible third country option for resettlement of all proven refugees. To date, the Abbott and Turnbull governments have not succeeded in resettling any significant number of the caseload. Some human rights and refugee advocates in Australia have been saying that Australia is the only possible country for resettlement. Theoretically that can't be right. The longer these advocates say this, the more likely that proven refugees on Manus Island and Nauru will not accept voluntary resettlement in any third country with which Australia manages to negotiate a deal. So the Turnbull government needs a failsafe legal means which enjoys parliamentary support for ensuring that proven refugees on Manus Island and Nauru will not have an option of declining all other offers in the hope of being resettled in Australia. A law removing the possibility of permanent resettlement in Australia would achieve this.

The government also needs to be able to ensure that proven refugees resettled in a credible third country will not then have the option of applying to settle permanently in Australia. The government needs this in order to send the message that anyone coming by boat from Indonesia and who is not in direct flight from persecution in Indonesia will not be able to be permanently resettled in Australia. This objective could also be achieved by legislation.

 

"The best political outcome would be legislation which reflects a strong commitment to third country resettlement for those on Nauru and Manus Island, with Senators agreeing that there would be a need to resettle any remaining refugees in Australia."

 

But the Senate should do what it can to avoid the partisan politics which has arisen by the government's addition of unnecessary provisions to this bill. The government has provided no coherent explanation for wanting to legislate a ban on temporary entrance visas ad infinitum for persons permanently resettled in a third country.

If only the Parliament could agree on means as well as ends. Senators could do this if the bill were restricted to precluding permanent resettlement in Australia for those who travel to Australia without a visa, not in direct flight from persecution in Indonesia, and who can be resettled elsewhere.

An acceptable legislative package would be one that: 1. precluded permanent resettlement in Australia for IMAs (irregular maritime arrivals) resettled in a third country; 2. left unaffected the liberty of citizens and permanent residents of other countries to apply for temporary entry permits to Australia, regardless of their past status as IMAs; 3. allowed ministerial discretion to permit permanent resettlement in Australia. This discretion could be exercised with bipartisan support (after an undeclared but agreed date) for any remaining warehoused refugees on Manus Island and Nauru who could not be resettled elsewhere despite the government's best efforts.

The best political outcome would be legislation which reflects a strong commitment to third country resettlement for those on Nauru and Manus Island, with Senators agreeing that there would be a need to resettle any remaining refugees in Australia.

I have been hugely and publicly critical of the Abbott and Turnbull governments for the continued warehousing of these refugees. I have also been hugely and publicly critical of the Shorten opposition for failing to get behind the proposal to put a time limit on resettlement and to allow resettlement in Australia should other credible options fail. Thus I consider it appropriate to endorse the Turnbull US deal and those parts of the bill before the Senate which would facilitate credible and durable resettlement in third countries like the USA, while criticising those unnecessary aspects of the bill which are punitive, symbolic and ultimately unworkable.

I remain convinced that an amended bill in the Senate which does not include a ban on temporary entry visas for permanent residents of other countries (regardless of their previous IMA status) but which does place a ban on permanent resettlement in Australia could be just the thing to draw a line on this whole saga, winning broad parliamentary support, allowing the country to move forward, and causing minimal if any risk to the border protection policies in place. But I appreciate Canberra politics often does not work that way. For once, I think Messrs Turnbull and Shorten need to make a joint concession so that the parliament can be united in stopping the boats and in finding a humane solution for the 1600 proven refugees on Nauru and Manus Island who remain our responsibility and who we have damaged wantonly and needlessly for these last three years and three months. They should agree to take all steps necessary to resettle these 1600 persons in credible resettlement countries. If they cannot achieve this within a reasonable time, they should agree to the resettlement of the residual cohort in Australia, while jointly endorsing the military and intelligence efforts to keep the boats stopped.

 


Frank BrennanFrank Brennan SJ is professor of law at Australian Catholic University.

Topic tags: Frank Brennan, Manus Island, asylum seekers


 

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Existing comments

"I welcome the decision, and await the further detail." This is back to front; when the details are available we will find there is nothing to welcome.
Jim Jones | 15 November 2016


Interesting.
Máire O'Donoghue | 15 November 2016


Spot on Frank. Hopefully this agreement and the consequent resettlement will go through as planned. Strong borders and humanity in dealing with genuine refugees should go hand in hand. Whoever negotiated the deal - probably diplomats/public servants - should be commended. I cannot see why we could not have housed these people - most/all of whom seem to be decidedly undangerous - in Australian country towns at far less cost and in a far better situation. Australia is a good country. We don't need quasi prison camps in dubious places where the detainees can suffer harm/die. As for resettlement in Cambodia...The Prime Minister and Mr Dutton need to tone down some of their more bombastic rhetoric. Their speech writers need a quiet word. If this goes through it will be a genuine Turnbull government triumph. The PM would really need to be applauded. This has been a very divisive issue. A sane solution will do us all good.
Edward Fido | 15 November 2016


"Gone are the days of presuming that those who arrive without visas are in direct flight from persecution". Thank you Fr Frank for this statement, long overdue in this whole debate. There is a difference, I imagine, between seeking asylum which is legal and entering a country illegally, a difference ignored by many to shore up their position on refugee policy. Anything which improves the lot of those in detention and permits a return to some semblance of a normal life is to be welcomed. Such a relief to finally read a piece written with a maturity that sees some human benefit in a government initiate regardless of Party affiliations. Perhaps this is the birth of a rational approach to a massive problem. Let's hope so.
john frawley | 15 November 2016


Thanks once more Frank for throwing light on obscure aspects of an issue - in this case the Government's strategy about the hell-holes and especially for showing that replacing the proposed permanent ban on all entry to Australia for IMAs with a temporary permit for humanitarian reasons would allow Turnbull to satisfy everybody. I particularly like your term 'Irregular maritime arrivals'. Dutton is still obtusely and stubbornly using the term 'illegal' for asylum seekers even though he has known for years that if they are seeking asylum they are not illegal.
Joe Castley | 15 November 2016


Well done Fr Frank Incisive,accurate and practical as always.
Peter Hoban | 15 November 2016


Under refugee law protection can only be offered to those who arrive in a signatory nation and ask, there is no law that gives priority to the half a percent who do that and then ask for further protection.
Marilyn | 15 November 2016


Sadly, I do not believe this 'agreement' is going to result in a single one of the refugees in Nauru or PNG setting foot on American soil.
Juliet Flesch | 18 November 2016


Interesting view Frank, and one which I would not have attributed to you. As I understand it the PNG government has declared the Manus Island detention camp illegal, in fact the very concept of detaining refugees in PNG has been declared illegal. This has precipitated a number of claims for compensation before the courts in PNG. The argument here will be whether the refugees were/were being detained by PNG or Australia. In referring to the US deal it remains of interest to see what the refugee swap will consist of, e.g. how many South Americans of what refugee status will be waiting on the Docks. Will they be excited about coming to Australia; and will their mainly Catholic background and views make them more digestible, so to speak.
Phil Hayden | 18 November 2016


That there is a possibility that those detained on Manus and Nauru will be settled permanently in some civilised place is welcome news. But why should it be conditional upon Parliament enacting a law to exclude them from EVER being granted Australian citizenship or permanent residency? It makes no practical sense and is punishing people in advance for what was, at worst, a political crime. Applications for entry, residence, or citizenship are made on a case by case basis against rational criteria which is the way any application from a re-settled IMA in ten, twenty, thirty years time should be treated.
Ginger Meggs | 18 November 2016


Juliet, I must confess I don’t much care if one refugee steps foot on American soil. The real significance of the Turnbull announcement (as I argued in my piece) is that the Australian government now accepts three things on which they cannot go back: (1) these 1600 proven refugees are our responsibility until they are resettled properly (and that was never previously accepted - just think of the appalling things said by Amanda Vanstone during the election campaign when ‘discussing’ the matter with me on ABC Lateline at http://www.abc.net.au/lateline/content/2015/s4471219.htm); (2) Cambodia is no solution at all; and (3) their unending warehousing on Nauru and Manus Island has nothing to do with stopping boats because that can be done more cheaply and efficiently with the ‘ring of steel’. So if Mr Trump does not honour the deal, these refugees are still our responsibility, and with time running out for any other credible options, they will have to be resettled in Australia. The tragedy is that not even Labor in opposition can admit this, let alone advocate it. As ever in this debate, the kids on Nauru are well down the list of priorities of all major political parties. Both sides are as bad as each other. And that leaves us all condemned. It’s been done in our name now for more than three years. Let’s hope the US does not reject any proven refugee children on Nauru on the basis that we have ruined their mental health. The damages claims will take some time to reach the High Court, and then there’ll be unctuous hand wringing about why we weren’t told. It’s pathetic.
Frank Brennan SJ | 19 November 2016


Given the timing, it would be best that as many of these refugees be resettled promptly in the USA. But if Trump closes the door and if Turnbull fails to find other credible options, Turnbull and Shorten should have the decency to welcome them promptly to Australia, and they should put aside the political point scoring on the lives of children.
Frank Brennan SJ | 19 November 2016


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