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Houston report's high cost of deterrence


Three honourable men without a party political agenda have reported on how they think we can honourably stop the boats. Angus Houston, Michael L'Estrange and Paris Aristotle have put 22 recommendations which should be treated as an integral package but which inevitably will be cherry picked by a hung parliament.

Putting regional agreements and the Malaysia solution on hold, they have recommended a return to John Howard's Pacific Solution while cutting the High Court out of the action.

This is a body blow to the Gillard policies to date. By way of balance, they also blow out of the water Tony Abbott's assertion that boats can be safely towed back to Indonesia.

Given the world's humanitarian crisis, the panel recommends that the Government immediately increase our humanitarian program from 13,750 to 20,000 with 12,000 of those places going to refugees. This would double our annual refugee intake offshore and onshore.

They accept the reality of population flows across the globe with people fleeing dreadful situations of persecution. Their ultimate aim is to set up a regional system which provides a genuine alternative pathway for asylum seekers who otherwise will get on leaky boats seeking a durable solution to their woes.

The panel wants government to be able to send a clear message: 'Don't bother getting on a boat and heading for Australia because you will not get to settle there any more quickly than if you do the 'decent' thing and wait in a transit country like Indonesia.'

Like all right thinking people on this issue, the expert panel espouses a regional solution for a regional problem. But in the short term, they espouse an offshore solution to Australia's distinctive problem. They know that the people smugglers have been one step ahead of Australian governments of both political persuasions, and now they want to steal a march on the smugglers.

They think it can be done decently, even if it means holding people in places like Nauru and Manus Island for three or four years.

The panel strongly endorses the need for offshore processing in the short term. The panel concedes that the so-called Malaysia solution as negotiated by the Gillard government falls short and should not be resurrected until it can be 'built on further'.

In particular, they note the concerns of many Australians that the Malaysia agreement is not legally binding and is very vague on standards of treatment especially for unaccompanied minors. The panel believes that 'the operational aspects need to be specified in greater detail' and that 'provisions for unaccompanied minors and for other highly vulnerable asylum seekers need to be more explicitly detailed and agreed with Malaysia'.

The panel insists on the need for 'a written agreement between Malaysia and UNHCR'. This is particularly welcome for those Australians who have been straining to understand the diverse nuances in media interviews by UNHCR personnel insisting that they had not endorsed the deal in the first place.

The panel also sees the need for 'a more effective monitoring mechanism' of human rights protection in Malaysia, including participation by Australian 'senior officials and eminent persons from civil society'. The chances of Malaysia agreeing to this interference with its sovereignty would not be great. So it will be some time before Malaysia will be a goer.

Meanwhile, the panel urges a return to the 2001–7 Pacific Solution, removing asylum seekers from boats to Nauru and Manus Island. The Opposition will feel vindicated by this recommendation. But there is an enormous practical problem and ethical dilemma. The best advice to government is that Nauru and PNG will not provide the deterrent which government wants from any offshore arrangement.

This is where the panel's recommendations get hairy. They want Nauru and Manus Island to be such unattractive options that asylum seekers will decide not to pay the $10-20,000 to get on a boat in Indonesia headed for Australia. And yet, Australia will maintain responsibility for asylum seekers while they are processed in Nauru or on Manus Island, and Australia will be the only country responsible for providing resettlement places.

Trying to maintain decency while designing a deterrent, the panel has insisted that asylum seekers in Nauru or on Manus Island would 'be provided with protection and welfare arrangements consistent with Australian responsibilities under international Law, including the Refugees Convention'. For Nauru, they specify:

  • treatment consistent with human rights standards (including no arbitrary detention); 
  • appropriate accommodation; 
  • appropriate physical and mental health services;
  • access to educational and vocational training programs;
  • application assistance during the preparation of asylum claims;
  • an appeal mechanism against negative decisions on asylum applications that would enable merits review by more senior officials and NGO representatives with specific expertise; 
  • monitoring of care and protection arrangements by a representative group drawn from government and civil society in Australia and Nauru; 
  • and providing case management assistance to individual applicants being processed in Nauru.

But then comes the crunch. The panel has suggested the need to amend the Migration Act so that the government could merely specify a country for offshore processing, and that the designation of that location would be 'a disallowable instrument'. So the government would be free to name an offshore processing country without Parliament stipulating any criteria. In future, either House of Parliament could vote against the arrangement, but there would be no need for prior parliamentary approval nor any prospect of review by the courts.

The panel's recommendation would presumably entail repealing s.198A which was inserted by the Howard government in 2001. This provision required the Minister to be satisfied that appropriate protection and welfare measures were in place. As we saw with the High Court decision a year ago, the High Court, referring to s.198A, has been able to determine whether in law and in fact the offshore country did provide the relevant protections.

Given that both Nauru and PNG are signatories to the Refugee Convention, what objection could our Parliament have to leaving the Migration Act unamended and leaving the High Court with a supervisory role determining whether these protections are in fact provided? Amending the Migration Act simply to make the old style Pacific solution less susceptible to judicial review errs on the wrong side of decency, especially when our government is wanting to design a deterrent offshore with long waiting times and which risks being out of sight and out of mind.

The Coalition and the Greens should unite in the Senate to oppose any such amendment of the Migration Act. Deterrence should not be bought at the price of decency and accountability in the protection of the human rights of asylum seekers, even when we are trying to beat people smugglers.

For what little it is worth, I still think Nauru won't work as a deterrent and Malaysia is a long way off being even half way to decent. There is no interim decent deterrent available prior to our designing a truly regional response to the regional issue. For proof, just look to the valiant, failed effort of these three very honourable Australians. 


Frank BrennanFr Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University. He will appear next week as part of Eureka Street's A Discerning Conversation With Kevin Rudd, held to celebrate the magazine's 21st birthday.

Topic tags: Frank Brennan, asylum seekers, deterrence, Pacific Solution, Nauru, refugees, human rights



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Existing comments

While listening to all the commentary overnight, I kept recalling Philip Ruddock's intervention in the Parliament on 27 June this year. He said: "On this matter over recent weeks I have held my counsel. I have often been reviled for the policies I implemented on behalf of the Howard government, even by members in this place. I note that we are being asked now to implement measures that reflect some, if not most, of what the Howard government sought to implement. The comments I will take up now are those which have it that the measures the Howard government implemented were with the support of the then opposition. Those who were there may remember that this support was not initially forthcoming. I went to see Kim Beazley, the then Leader of the Opposition, in his office to take him through certain changes that we made to the relevant legislation at that time. I can well recall his words that, with those changes, which incorporated certain fundamental human rights obligations on offshore processing, the legislation would have the opposition's support. This matter turns on the very question of whether or not you walk away from those obligations on offshore processing now. We are seeking in the amendments proposed to do no more than Kim Beazley demanded of us at that time." I hope the Parliament will retain at least the legal safeguards which Ruddock and Beazley thought non-negotiable.

Frank Brennan SJ | 14 August 2012  

Being a refugee rights fundamentalist, I must admit to being lulled into the deterrence argument used in to justify many of the offshore processing proposals - but upon deeper reflection I realised I've been duped and lulled by the major parties. Using the deterrence argument, I guess the best proposal could be borrowed from Nazi Germany - rather than turn the boats around, why not shoot people on sight?

AURELIUS | 14 August 2012  

You're right, they're wrong, you can't achieve a right outcome using a wrong means. Oh wait, someone else said that. I truly throw up my hands on this one. Concentration camps for kids. And still people will risk everything, because they have nothing where they are, but despair.

Moira Rayner | 14 August 2012  

Nauru worked as a deterrent before. There are better ways of being humanitarian than by encouraging people to risk their lives and die at sea. If we cannot improve our presence at the refugee camps and provide safer passage to genuine refugees, then we had better learn how to. As for those who take to boats, Nauru and PNG are much better solutions - there will be no 'lockup' as Paris Aristotle has said, and the off shore processing should have enough of a deterrent effect with time. I think Tony Abbott stands vindicated though some people will choke before they admit it.

Skye | 14 August 2012  

Yes, as an urgent necessity a regional solution is needed. People will keep taking unacceptable risks if they have only unacceptable delays in getting their cases heard. Perhaps we should ask the Houston panel to get to work on realistic regional options. This would get us away from some of the inhumane yelling and screaming of our politicians.

Robert Smith | 14 August 2012  

Well analysed and presented, thank you. Political expediency and fear of voter backlash will never justify the death and neglect of innocents. Until we meet the obligations of national treaties/protocols our nation voluntarily entered into with the UN in 1951 and 1967, we will also continue to ignore the many lives impacted by our political leaders' decisions to fight in Iraq and Aghanistan, two prime countries of origin for asylum seekers. Yes, people smugglers may be depraved mongrels, exploiting people's suffering; yes, Australia has to work with other nations to counter their callous operations (in 2004 we signed on with the UN to do just that). But we act blindly in self-interest when we ignore or forget exactly why people are fleeing their countries of origin in the first place. As Frank puts it, refugees are running from 'dreadful situations of persecution'. Advocates and communicators must grow weary of the burden, but there is still a great need to educate Australians on why we are obliged to be our 'brother's keeper', that's especially true concerning Australia's national engagement in US imperial adventures. The UN 'Convention Relating to the Status of Refugees' describes refugees as someone 'outside his/her country of nationality or habitual residence; has a well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the protection of that country, or to return there, for fear of persecution.' Talk of honour is meaningless until we honour our obligations under international law and common sense: if you help wreck a nation, however bad it was in the first place, it's incumbent upon you to help in the cleaning up process thereafter.

Barry G | 14 August 2012  

When Minister Bowen tables the amendments to the Migration Act and to the Immigration (Guardianship of Children) Act this afternoon, it will be very interesting to see the statement of compatibility which he is now required to table under section 8 of the Human Rights (Parliamentary Scrutiny) Act 2011. He will need to address not just key provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, but also the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the Convention on the Rights of the Child. The bill can then be referred to the new Parliamentary Joint Committee on Human Rights chaired by the robust retired speaker Harry Jenkins. This will be the first real test of the Gillard Government’s new human rights framework.

Frank Brennan SJ | 14 August 2012  

Offshore processing is not a deterrent, it is neglect of our responsibilities as signatory to the Refugee Convention. It is cruel, indecent and shames us.

Vacy Vazna | 14 August 2012  

If three honourable Australians appointed by the Gillard government see the Nauru/Pacific solution as necessary, then, regardless as to whether the solution will work again as it did under Howard, it's time for E.S. bloggers and posters to swallow their pride, quit their demonising of Howard and Abbott on this point, and issue them an apology.

I won't be holding my breath - being of the Left means never having to say you were wrong.

HH | 14 August 2012  

This was a great article Frank. But will we be able to maintain decency while designing a deterrent? I don't think it is possibile to do both.I opt that we maintain decency and do the decent thing. Process and support these vulnerable and traumatised people with compassion in this lucky country.

terry fitz south brisbane | 14 August 2012  

The House of Representatives will today pass the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 which was last debated on 22 September 2011. This Bill now supported by the Government and the Opposition excludes all High Court scrutiny of any ministerial decision to nominate an offshore processing country. It repeals the human rights protections agreed to by Messrs Ruddock and Beazley in 2001. Being a 2011 bill, it will not need to be accompanied by a statement of compatibility on human rights. The Bill will allow the Government to nominate any country whether or not it is a signatory to the Refugees Convention. Mr Morrison’s previously foreshadowed amendments which would have restricted the bill to countries which are signatories to the Refugee Convention appear to have been dropped by the Coalition. The one safeguard being placed in the bill today is a requirement that the Minister’s decision be presented to both Houses of Parliament, each of which will have the option to disallow the nomination within five sitting days. The High Court is unlikely to have the judicial power to review delayed processing on Nauru or delayed resettlement of proven refugees.

Frank Brennan SJ | 14 August 2012  

Decency? Terry Fitz of South Brisbane. This government has no idea what the word means.

john frawley | 14 August 2012  

I keep reading that Nauru worked in the past, so it will work again. In what way did it work? As far as I can determine it worked as a deterrent, i.e. fewer asylum seekers attempted to enter Australia by boat. But it didn't deter asylum seekers entering Australia by more comfortable means. And it didn't work in the sense that it helped ease the situation of displaced persons in refugee camps in our region. I suppose having a panel of three wise men (a serviceman, a diplomat, and a refugee advocate - I can't really pigeon-hole Mr Aristotle) ensured that pragmatism would trump compassionate decency. Will it work? Once again, what do we mean by work in this context. Will it deter refugees trying to reach Australia by boat? Probably. Will it alleviate the hardship of refugees in our region? Hardly. Will it defuse the treatment of asylum seekers as a timebomb round the collective neck of the Government. Yes but only if the Greens go quiet.

Uncle Pat | 14 August 2012  

But I have yet to come across this refugee deterrent convention they keep going on about. The media, the pollies and other liars in this country are to be condemned across the board. But no party politics? Le'Strange is an old liberal party hack, Houston covered up the murder of Afghan children by our soldiers and no-one was ever charged, he was in charge during many rapes, rorts, over spends and drunken rampages while he travelled the world on the first class public tit. Aristotle should resign in disgrace, he has made his living out of counselling torture victims and now wants to actively torture more. And all for a $5 billion price tag while 9 million kids under 5 die every year and during the time when Pakistan is kicking out 3 million Afghans. They are gutless, racist cowards the lot of them.

Marilyn | 14 August 2012  

The Government has moved a series of amendments to the 2011 bill renaming it as a bill for "regional processing" rather than "offshore processing". So there will be no need for future legislation to give the go ahead to Malaysia if and when the new agreement is negotiated. In a slightly Orwellian touch the Parliament is also to legislate a provision stating "It is a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries" when in fact and in law it will be a government decision communicated to Parliament by the Minister tabling a disallowable instrument which will come into effect within 5 sitting days unless either House votes against it.

frank Brennan SJ | 14 August 2012  

I take issue with Fr Terry Fitz. Australia is not a "lucky" country. Any country in the world can have Australia's "luck" if it implements the following: 1.Establish the Rule of Law. 2. Respect the right to private property and the Right to Life (and if that extends to the unborn, well, they will be even "luckier" than Australian unborns). 3. Consistent with 1 and 2, minimise the size of the state, and leave it up to individuals, families and communities - not sinecured, unaccountable bureaucrats - to come up with amazingly varied, creative and flexible voluntary arrangements to solve problems such as caring for the aged, the sick and the disabled. Catholic (and human) principles of Natural Law and Subsidiarity. It's that simple. Surprise, surprise, every country which has followed these basic principles to a substantive degree is now deemed "lucky". For these alarmingly few are the regimes toward which all the refugees in the world are headed - as opposed to Cuba, Venezuela, North Korea, etc. This is a massive affirmation of Christianity, natural law, and, dare I utter the word, capitalism.

HH | 14 August 2012  

One must agree that an effective regional solution must be found. But I suggest it will not be straightforward or quickly realised. Nor can we expect a policy of completely open arms from the Australian public with abundant safe transport. To think as some have commented is to live in cloud cuckooland. The public may lack moral sense, , christian values etc.etc. and one may regret this but there you are. Dr. Brennan of course sees greater moral sensibility in the courts. This is rather insulting to those in parliament, Perhaps we do not need democracy just lawyers acting like Plato's guardians.

Brian Poidevin | 15 August 2012  

Having just sent off a comment I read Bronwyn Hinz's brief essay in "The Conversation" which I thought more realistic than what I have read here. I endorse these final paragraphs. "The Howard government’s mantra “we will decide who comes to this country and the circumstances in which they come” may appear to be based on nothing else but obstinacy and gut instinct, and impervious to evidence. Yet, however erroneously, these policies are founded on principle, in this case sovereignty, and buffered by electoral support. Politicians are the experts in politics. And their key performance indicator – as much as we might dislike it – is winning elections and maintaining power. Not what is right or compassionate – two noble values whose definitions themselves can vary according to the experts asked."

Brian Poidevin | 15 August 2012  

"When you think that you may die in Afghanistan, there are two ways. You stay there and die (or) you can go to find a safe place to have a better future"...Afghan man Mohamad Khani, who said the prospect of being sent to either Manus Island or Nauru would not stop him boarding a boat for Australia. SMH, Wed. 15 August 2012.
I agree with Frank that Nauru and Manus Island won't work as deterrents. I think our PM has caved in and opted out in the worst possible way.

Pam | 15 August 2012  

The panel did a fine job of putting together a comprehensive set of measures. But I think there are two insuperable ethical problems.

1. The panel has in effect proposed a three phase operation for moving towards appropriate treatment of asylum seekers minded to get on boats. First, a revised and more punitive Pacific Solution based on the 2001 model. Second, a Malaysia option which would include more comprehensive human rights coverage than was proposed last year. The chances of extracting such further coverage from the Malaysians are slight. The Coalition which will most probably be in government by eth end of next year remains opposed to any Malaysia arrangement. Third, a comprehensive regional arrangement for regional processing and regional burden sharing of those asylum seekers in the region coming from elsewhere. Such an arrangement in the view of many advocates will come just shortly before the parousia.

So though the panel has proposed the revised Pacific solution as tough medicine with some nasties needed in the short term until something more decent can be put in place, it is unlikely that anything else will be put in place. We will be left with the Pacific Solution Mark II.

2. The revised Pacific solution includes the requirement that people be kept on Nauru or Manus Island for protracted periods, and not just the time needed for expeditious processing and reasonable time for resettlement. So either processing will be deliberately delayed and/or resettlement on proof of refugee status will be deliberately delayed. Such delay is unconscionable and not consistent with the obligations Australia, PNG and Nauru undertake as signatories to the Refugee Convention. Pundits estimate that the delay required so that asylum seekers gain no advantage by getting on boats in the first place will be anything from three to ten years. Once proved to be refugees, these persons while waiting for years will be entitled under the Refugee Convention to “the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment”; “the same treatment as is accorded to Nauruan nationals with respect to elementary education”; “the same treatment with respect to public relief and assistance as is accorded to Nauruan nationals” ; social security; and “travel documents for the purpose of travel outside Nauru, unless compelling reasons of national security or public order otherwise require”. Are we really going to conspire with Nauru to flaunt the Convention so brazenly?

Australia has reached a fork in the road between decency and deterrence. I argued that at such a fork in the road the Parliament should retain some High Court supervision of the human rights protections for offshore processing as was found to exist last year when the Court interpreted the key provisions negotiated by Ruddock and Beazley in 2001. No major political party is interested. So deterrence it is. Decency will be a long term work in progress.

Frank Brennan SJ | 15 August 2012  

Indefinite detention on Nauru and Manus Island amounts to an inhumane punishment for daring to escape intolerable situations by boat to get to Australia. As Malcolm Fraser has put it, the intention to hold up applications for refugee status by asylum seekers held in those places so that they would not be given an "advantage" over people waiting in the "queues" is a recipe for inflicting more mental health problems on the vulnerable, with the prospect of more suicides. Some have estimated that delays in processing asylum applications could amount to five years under the proposed Pacific Solution Mk 2. How can that be justified by right thinking people? Stopping the boats is not an objective which would justify such a solution. The Government is not serious if they say they are just trying to stop asylum seekers embarking on dangerous boat trips for their own good. The asylum seekers know the risks but decide to take them. The government is merely trying to pander to peoples unjustified fears. There is no real border problem. This is a humanitarian problem.

Tony Santospirito | 15 August 2012  

This is a major issue of Christian Charity but sadly the Church hierachy are very silent on this issue. The Catholic Church hierachy has been quick to advise and announce their position on social issues but on this matter they are loudly silent. Perhaps it may not be a populist issue but there is a more important and fundamental issue of Charity. This is the corner stone of our Faith or are we selective in matters of Faith. Fr Brennan thank you for being a lone voice of Christian committment.

The Good Samaritan | 15 August 2012  

Yet plane people have an advantage.

Marilyn | 15 August 2012  

My interviews arising from this article can be heard at http://mpegmedia.abc.net.au/rn/podcast/2012/08/rer_20120815_1730.mp3 http://mpegmedia.abc.net.au/rn/podcast/2012/08/rnd_20120815_1825.mp3

Frank Brennan SJ | 15 August 2012  

The forces of evil have triumphed, at least for a while. Almost all Parliamentarians either can't or won't think themselves into the shoes of the asylum seekers and have persuaded themselves that people smugglers are the heart of the problem. Last week Deborah Zion was on Eureka Street TV. What she said would be worth putting in writing and inviting comments from readers. Specifically she said: "We're very bad at looking at suffering", and "We want to keep the awful world out". Meanwhile God bless SBS and the miriad others who are trying to improve the level of debate.

Jim Jones | 16 August 2012  

Only Judi Moylan, Melissa Parke, the Greens and Andrew Wilkie have the honesty to see through the racist lies.

Marilyn | 16 August 2012  

I do appreciate that these 3 honourable men have a very difficult task but it is somewhat tainted when their recommendations deny the very mechanism that we cherish as our right to justice.

Why do these refugees have no right of access to our justice system. It seems to me that these unfortunate people have been denied a fair and just treatment or is this just another definition of the much touted Australian "fair go" cry.

Vernon Yen | 02 September 2012  

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