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Preparing for the fifth wave

In the introduction to this book, Frank Brennan invites us to engage in a simple thought experiment: imagine that every country in the world adopted Australia’s ‘slam the back door’ policy on refugees. A person suffering persecution would be confronted by two stark choices—either endure the situation while waiting in a theoretical ‘queue’ for a protection visa, or flee across a border without a visa and be incarcerated in a remote detention centre for an indefinite period, with no recourse to a judge or right of appeal to the courts.

This prompted me to ponder another thought. Imagine that Australia had succeeded in its initial response to the Tampa (refusing to allow it to land or disembark its rescued asylum seekers) and that every other nation in the world had adopted a similar policy. We would have seen a repeat of the ‘voyage of the damned’, the infamous 1939 journey of the St. Louis which took 1000 Jews from Hamburg to Havana, only to be denied entry both by Cuba and the United States. The vessel returned to Europe and many of its passengers ultimately died as victims of the Holocaust.

Such scenarios amply demonstrate Brennan’s thesis that Australia’s ‘tampering with asylum’ has been a detour on the path to ‘a more decent and workable asylum policy for first world countries’. He describes the Howard government’s response to the Tampa as a ‘firebreak’ policy, one designed to stop the refugee problem spreading across Australia’s borders but doing nothing to address it at the source. The analogy is apt. It suggests the peculiarly Australian nature of the response—few other nations have the geographical characteristics that would allow for such a firebreak. It also suggests that this kind of policy must be temporary and unsustainable. (Unless the fire itself is put out, how long will it be before the conflagration becomes so fierce that the firebreak is jumped?)

The great strength of Brennan’s book is his long engagement and close familiarity with the issues, both as a humanitarian and as a lawyer. He describes the four waves of asylum seekers who have arrived on Australia’s shores by boat since the end of the Vietnam War and outlines the construction of an increasingly harsh policy response. In this way he is able to trace the lineage of the misnamed ‘Pacific Solution’, seeing its antecedents in the 1991 opening of the Port Hedland detention centre by a Labor government. The detention centre was first used to hold a group of Cambodian asylum seekers. In Brennan’s reading of this episode, mandatory detention was primarily introduced as a way of isolating the asylum seekers from lawyers and other ‘do-gooders’ in the community. Rationales such as deterrence or ensuring that failed asylum seekers were available for removal came later; the main consideration in 1991 was to avoid any challenge to the portrayal of the Cambodians as economic migrants.

As early as June 1990, Prime Minister Bob Hawke had told Jana Wendt emphatically on A Current Affair that the Cambodians were not ‘political’ but ‘economic’ refugees and that he would not allow Cambodian asylum seekers to ‘jump the queue’ of Australia’s orderly migration program. The government was concerned to protect the peace plan for Cambodia formulated by then Australian Foreign Minister Gareth Evans, which involved the repatriation of 300,000 Cambodian refugees from camps along the Thai border. It feared that confidence in the plan could be undermined if Cambodians in Australia were found to be refugees or if their personal stories were allowed to become public.

The continuities with more recent events are only too apparent. Removing asylum seekers to another jurisdiction such as Nauru or Papua New Guinea has made it all but impossible for lawyers to intervene on their behalf. And consider the directive issued during Operation Relex in 2001 by the press secretary to Defence Minister Peter Reith, instructing that no ‘personalising or humanising images’ were to be taken of asylum seekers intercepted by the Australian  navy. Clearly there was an official realisation that an enforced distance from the media and ‘do-gooders’ was necessary to shore up the perception that asylum seekers arriving by boat are a threat that must be kept at bay at all costs.

But Brennan does not only have an eye to events in Australia. Throughout the book he compares Australian policies to those in Europe and the United States. There is a great deal of useful and interesting information here, such as Brennan’s detailed account of US policies towards Haitian asylum seekers arriving by boat in the early 1990s—policies that were in many ways a precursor to Australia’s so-called ‘Pacific solution’. There are the attempts by European countries like Germany and France to declare part of their international airports to be ‘an international zone’ so that an asylum seeker landing at the airport would be deemed not to have arrived in the country (and therefore would not be in a position to invoke the protections enshrined in the 1951 Refugee Convention). Or the frank admission, by British Home Secretary David Blunkett, that Britain has shifted its ‘border controls from England to the French coast’ to ensure that ‘people will not get here’. As Brennan comments:

Rarely has a modern first-world government minister made the purpose so clear. The preferred outcome is to move the border offshore so prospective asylum seekers can be turned away before they enter the territory.

Again, the comparison to Australia is obvious. After the Tampa, the federal government redrew Australia’s frontiers so that a person landing on a remote Australian territory in the Indian Ocean is deemed not to have entered Australia’s ‘migration zone’ and so is prevented from seeking protection as a refugee.
This highlights a fundamental flaw in the global system of protection for refugees. Under international law, persecuted individuals have the right to leave their country and have the right not to be returned to their country but they do not have the right to enter another country without invitation. It is only after
crossing a border that a refugee can seek protection. As Brennan tells us, this flaw in the system is not the result of some slip-up in drafting but the product of a deliberate choice of words. When the Universal Declaration of Human Rights was drawn up at the end of World War II, Australia was among those countries that resisted any recognition of a general right to be ‘granted asylum’. As Tasman Heyes, Secretary of the Department of Immigration, wrote at the time—in language eerily prescient of recent public pronouncements by Prime Minister Howard—recognition of such a right ‘would be unacceptable to Australia as it would be tantamount to the abandonment of the right which every sovereign state possesses to determine the composition of its own population and who shall be admitted to its territories’. Instead of a general right to asylum, the Universal Declaration of Human Rights only recognises the individual’s right ‘to seek and enjoy’ asylum, a formulation that puts no onus on the receiving state to admit the individual across its frontier. We witness the consequences of this flaw every day: nation states do all they can to keep asylum seekers out and asylum seekers do all they can to evade border controls and get in.

Brennan does not offer simple or utopian solutions. He acknowledges political realities and his specific proposals for change in Australia could be seen as a minimum program that is both modest and achievable. When the fifth wave of boat arrivals begins to enter our territorial waters (as Brennan says it inevitably will) he wants to see the navy escort those boats to Christmas Island for processing. Initial detention should only be for the purpose of health and security checks on arrival and to screen out manifestly unfounded claims. Asylum seekers should then be transferred to the mainland on a structured release program while their cases are assessed. A degree of judicial oversight would be restored to the refugee determination process to ensure that decision-making remains just and lawful. Refugees would be entitled to family reunion and to travel overseas. Those still in need of protection after three years would be eligible for permanent residency in Australia. Finally, Brennan would like to see Australia legislate to recognise the protections enshrined in the Convention Against Torture and the International Covenant on Civil and Political Rights. This would offer some protection to refugees who do not fit the narrow definition of a refugee contained in the 1951 Refugee Convention, but who nonetheless would be at risk in their homeland. (Currently the only fall back protection mechanism is personal intervention by the immigration minister.)

I have only two minor complaints about Brennan’s book. The first is that it could have benefited from more rigorous editing to streamline the argument and remove duplication. His ‘thought experiment’, compelling as it is, need not appear twice in almost identical form (in both the introduction and the conclusion). To take another example, on p159, Brennan cites statistics to demonstrate the growing burden of refugee and asylum cases before Australian courts. (‘In 1993–94 there were only 381 applications to the courts; in 2001–2002 there were 1423.’) On p161 the same point is repeated, using very similar statistics taken from slightly different years. (‘Back in 1987–88 the court received a modest 84 applications under the Migration Act. … By 2000–2001 there were 1312 applications.’)

My second complaint is that Brennan’s argument does not seem entirely resolved. On the one hand he seems to be suggesting that Australia’s policies are far more extreme than those of comparable nations dealing with far larger numbers of asylum seekers. The implication is that by looking elsewhere, we might see the error of our ways. If Australia were to adjust its approach, he says, we could ‘join again those nations who wrestle daily with the dilemma’. On the other hand, Brennan’s detailed comparisons with the US and Europe suggest that commonalities in policy approach outweigh the differences. All developed nations are treading a similar path, aiming to deter asylum seekers and contain the refugee problem to the developing world. There is evidence of a race to the bottom in refugee protection and at the moment, Australia happens to be in the lead. While this tension in Brennan’s argument remains unresolved, it does prompt him to pose a searching question about Australia’s approach:

Our present policy can be posited only on one of two options. Either we want to be so tough that no other country will dare to imitate us and so we will maintain the advantage that asylum seekers will want to try anywhere but here. Or we are happy to lead other countries to a new level of toughness, leaving bona fide asylum seekers more vulnerable in the non-existent queues.

Overall, Tampering with Asylum makes for compelling and disturbing reading. Familiar as many of us are with the human side effects of Australia’s recent obsession with border protection, individual case studies never fail to shock. For example, the story of a seven-year-old boy hit with a baton and exposed to tear gas in Woomera detention centre.

(Brennan had seen the bruises with his own eyes.) Even more shocking is the dissimulation and inaction of the federal bureaucracy in the face of complaints. Allegations about a rape in Curtin detention centre were never investigated because it was unclear whether it was the responsibility of federal or state police. After a decade of detaining children in immigration detention in WA, the Department of Immigration, Multicultural and Indigenous Affairs has yet to finalise a protocol on child protection with state authorities. The result is that kids in detention fall through the bureaucratic gaps with no agency to take primary responsibility for their welfare.

The ‘firebreak’ that John Howard put in place after the Tampa offers us an opportunity to think again about our approach to asylum, freed from the panic and distraction associated with new boat arrivals. It is possible to design a set of policies that secures the border while honouring our international obligations and basic human rights. As Frank Brennan says: ‘[it] is no answer to say that we close the door on the asylum seeker at our doorstep in order more readily to assist the refugee in the faraway camp.’   

Tampering with Asylum: A Universal Humanitarian Problem, Frank Brennan.
University of Queensland Press, 2003. isbn 0 7022 3416 8, rrp $30

Peter Mares is a journalist with ABC Radio National and an adjunct research fellow at the Institute for Social Research at Swinburne University. He is the author of Borderline: Australia’s response to refugees and asylum seekers in the wake of the Tampa (UNSW Press, 2002).




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