Seven pointers for stopping the boats ethically


Piece of paper with the word 'Ethics' written on it, underwaterIs there any ethical discussion to be had about stopping the boats, or is it just a matter of whatever it takes?

There is no doubt that the 2008 reforms instituted by the Rudd Government contributed to a sharp increase in the arrival of boat people. The annual arrivals continued to spiral upwards — from 2856, to 6689, a brief drop to 4730, then up to 17,271, and then up again to 25,145. By the time Kevin Rudd had become prime minister for the second time in June 2013 the boat arrivals were running at 3300 per month (40,000 per annum).

There was intelligence available that the people smuggling networks were now so adept at plying their trade in Indonesia that the numbers could escalate even further. These increases were not related to increased global refugee flows nor to new refugee-producing situations in the region. There had been at least 900 deaths at sea since the 2008 reforms. Something had to be done — not just for crass political gain but for sound ethical reasons.

Having supported most of the 2008 reforms and having been a critic of the Malaysia Solution because of its unethical or unworkable treatment of unaccompanied minors, I had been trying since the Houston Panel reported in August 2012 to formulate a workable and ethical proposal for stopping, or at least, slowing the boats. The focus needed to be on Indonesia, the main transit country.

The day after Rudd was re-elected prime minister I spoke at a long-arranged National Asylum Summit. I proposed the need for a regional agreement involving at least Australia, Indonesia and Malaysia which, with UNHCR backing, could provide basic protection and processing for asylum seekers transiting Malaysia and Indonesia. Asylum seekers headed for Australia could then be intercepted and screened to determine that none was in direct flight from persecution in Indonesia. They could then be flown back safely to Indonesia and placed at the end of a real queue.

I conceded that such an agreement would take many months, if not years, to negotiate and implement. Admittedly, it did not provide a short term solution to stopping the boats. Provided the necessary screening was done, I would not rule out the suggestion put by former Foreign Minister Alexander Downer on Monday: 'Australia would fly back to Indonesia anyone who arrived here by boat without a visa. In exchange, Australia would take, one for one, UNHCR approved refugees from refugee camps in Indonesia.'

Rudd's pre-election agreements negotiated with PNG and Nauru and first announced on 19 July 2013 were aimed at stopping the boats. It was the equivalent of a 'shock and awe' measure, threatening dreadful outcomes for people, hopefully deterring them from even considering getting on a boat. During the election campaign, both major parties tried to convince the electors they would be able to design policies which stopped the boats.

During its last year in office, Labor had increased the humanitarian component of our migration program from 13,750 to 20,000 places — with 12,000 of those places being allocated to refugees offshore, 8000 being available for refugees onshore and the special humanitarian program. The Coalition initially supported the increase but reversed this commitment during the campaign. The Abbott Government says it will provide only 2750 places for onshore applicants.

During the election campaign, I set out six recommendations for the way forward, trying to give the 'shock and awe' response greater ethical coherence following upon some parliamentary scrutiny. These recommendations now need to be considered in the cold light of post-election day.

First, Tony Abbott should open discussions in Jakarta this week with an eye to a negotiated agreement with both Indonesia and Malaysia aimed at upstream improvement of processing and protection.

Second, the Abbott Government should return to its previous commitment to increase the humanitarian quota to 20,000.

Third, Scott Morrison should order an ethical reassessment of the plight of those who came by boat to Australia after the Rudd announcement of 19 July 2013 without notice of the new shock and awe policy, bearing in mind the admission by Minister Tony Burke on 22 August 2013: 'First week after the announcement, the figures remained very high, but let's not forget those figures include people who are already at sea.'

Fourth, Morrison should undertake to care for unaccompanied minors who arrive in Australia's territorial waters until they can be safely resettled or safely returned to their family or to the guardians in transit from whom they were separated.

Fifth, Morrison should institute safeguards, including a transparent complaints mechanism, in PNG and Nauru consistent with the safeguards recommended by the Houston Panel for both Pacific processing countries and for Malaysia under the Malaysia Solution.

Sixth, when Parliament convenes, Abbott should promptly introduce a bill detailing the measures aimed at stopping the boats, thereby putting beyond legal doubt the 'shock and awe measures' implemented on the eve of the election campaign without parliamentary scrutiny, and locking in the major political parties so that petty party point scoring might cease. The debate on the bill will allow both sides of the Chamber to purge themselves of the hypocrisy that has accompanied Labor's unctuous condemnation of John Howard's Pacific Solution and the Coalition's unctuous condemnation of Julia Gillard's Malaysia Solution.

The bill would undoubtedly win the support of all major political parties.

I would now add a seventh condition. Last Tuesday, seven West Papuan asylum seekers reached Boigu Island in the Torres Strait. Without any determination of their refugee claims, they were removed to PNG on Thursday. The Coalition's policy on asylum seekers published during the election campaign states, 'The Coalition will work with our regional partners to address the secondary movement of asylum seekers into our region as a transit point to illegally enter Australia through the establishment of a comprehensive Regional Deterrence Framework'.

These Papuans were not engaged in secondary movement. They were in direct flight from persecution. The Abbott Government should recommit to our obligation under the Refugees Convention to grant asylum to refugees who have entered Australia in direct flight from persecution.


Frank Brennan headshotFr Frank Brennan SJ is professor of law at Australian Catholic University, and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.

Topic tags: Frank Brennan, asylum seekers, stop the boats, Indonesia, Malaysia, Scott Morrison, Tony Abbott



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Existing comments

Well said. The key is giving people an option upstream so they never contemplate getting on a boat. I do think that supporting family reunions needs to be in there somewhere though.

Shaun Branden | 30 September 2013  

With all respect Frank, it was the 9 new wars that started the new influx of refugees, all Rudd did was grant permanent protection, he did not change any fundamental law. When even you are brainwashed to believe the lies there is no hope left. The issue for us is not to convince the world to care for refugees just because we can't be bothered, the issue is for us to be forced to uphold our own obligations. We don't get to take away the human rights of anyone just because it is annoying and you don't get to advocate such things because the bottom line will still be we accept almost no refugees under the voluntary scheme and pretend we are decent and not mention the thousands of asylum seekers who fly here. It is a legal right to sail here, it is not up to any lazy pollie, lawyer, media or anyone else to arbitrarily take that right away. It says so at Article 30 of the UDHR.

Marilyn | 30 September 2013  

And there is no secondary movement, that is an Australian invented lie that was cancelled out by the refugee protocol of 1967 which removed geographic barriers. The refugee convention has 34 legally binding rights and obligations, we just have to abide by them and stop the whining.

Marilyn | 30 September 2013  

Frank, is there any comprehensive research on so-called people smuggling? The motivations of people smugglers are portrayed negatively by politicians etc with little evidence cited to justify the claims. Is there any research being undertaken to illuminate the claims being made currently?

Jas | 30 September 2013  

It's to be hoped that fruitful discussions are taking place between Abbott and the Indonesian government on this issue. In relation to point seven, human rights abuses in West Papua should also be on the agenda - it may be more helpful to attempt to achieve a peaceful solution for West Papuans on Indonesian home soil. Those who choose to escape the persecution via the open sea (and survive) should be granted refugee status in Australia.

Pam | 01 October 2013  

Establish UNHCR Refugee Centre at Tindal RAAF base. Fly refugees from Indonesian Airports to NT. Process them and repatriate non-genuine applicants. Accept the majority. Compel them to work in 3 year bonded labour, being located at Govt discretion. Provide necessities of life. Credit the dole to a personal account. At term's end they accept full citizenship foregoing right to travel abroad for 5 years, freedom of movement, and full access to accumulated funds

Harry Spratt | 01 October 2013  

Good morning, Fr Frank. I always look forward to your writings but in view of this mornings SMH headline - INDONESIA AGREES TO TALKS ON BOATS - todays post may have been rendered irrelevant. Abbott seems to have accomplished more with Indonesia in one day than Howard and the Rudd/Gillard circus did in 10 yrs. Even the agressive Indonesian foreign minister who was sounding off last week in criticism of Australia and the Abbott government says he is now "reassured". Heartening to see Abbott's education in a Jesuit school coming through. I feel for some of ES's asylum seeker advocates, however, who regularly over the years have pasted Tony Abbott and conservative politics through a largely uninformed lens permitting only obsessive tunnel vision. Soon they may have nothing to complain about! Let us hope so. I wonder if we are to blame and have "blood on our hands" (as one of ES's regular contributors claims) for those lives lost last week when an unseaworthy boat sank 50 metres off the shore of an Indonesian beach.

john frawley | 01 October 2013  

To John Frawley: an agreement to talk is just that; it is not a finalised agreement for action. The conversation is just beginning with these new players at the table. That's why it is so necessary to ask if what is contemplated can be done (more) ethically.Let the conversation on the ethics begin.

Frank Brennnan SJ | 01 October 2013  

its one thing to agree on talks re the boats and another to actually do something. what about the west Papuans what is going to happen to them.

irenamangone | 01 October 2013  

Dear Fr Frank, In my allusion to the potential irrelevance of this morning's article, I refer not to the need for ethics, a matter on which I completely agree with you, but rather, to the prospect of bilateral talks on this matter which previous governments have failed to achieve and the possible irrelevance of all previously canvassed options. I think we might now see a whole new dialogue develope on this vexing matter and suspect that in Tony Abbott's caution and "gently Bently" approach we may be seeing the early evidence of an Ignatian penchant for discernment rather than the kneejerk populist approaches that have marked the debate in this country for so long. Keep on "keeping the bastards honest", Frank. God bless.

john frawley | 01 October 2013  

Sure John Frawley,"Heartening to see Abbott's education in a Jesuit school coming through." Do you mean the self announced pragmatic opportunism, the callousness, the economy before people, the shallow thinking, the rank materialism, the slogans, the disregard for our international obligations, the ignorance of cultural and social matters, the blind eye to newcomers who can afford a plane fare? It is heartening to see the lesson in human compassion given him by Infidel Indonesian commentators which contrast with Abbott's Christian Values? No John ever since Jesuit education has become the captive of their rich materialistic parent client body don't expect too much of that New Testament stuff. I left the Jesuits for several reasons one of which is that I could not teach in a Jesuit school with a good conscience any more.

Michael D. Breen | 01 October 2013  

The reality is that Australia is not doing enough. We need to develop a positive strategy of welcoming asylum seekers to the so called land of the 'fair go'. We need to increase our intake 4 fold and raise our foreign aid to the .7% of GDP as determined by the UN. The world has to share the tragic load. We are not doing enough by a long shot. Asylum seekers have been a great addition to our country. Our foreign aid needs to assist the poor world in reducing their hunger and fear.

Michael Gravener | 01 October 2013  

To John Frawley: this is why the vast majority of the population voted for Tony Abbott to fix the problems created by the Rudd/Gillard/Rudd governments

Ron Cini | 01 October 2013  

Frawley and Cin, the ALP did not create more than 6.5 million new refugees and displaced humans last year, we were watching the world implode with 9 new wars over the last 5 years and pretending we can continue to restrict visas for refugees here. Indonesia does not protect refugees, they torture and abuse and kill refugees and we morons pay for it. There is no legal way in the world to stop one person from sailing to one port in the world if they have innocent passage so why does everyone continue to whinge. International laws are not our toys, they are not bi-lateral and protecting Xmas Island from a few thousand refugees is not BORDER PROTECTION. And yes, I have done a good deal of work on the so-called smugglers, there are none because the smuggling protocols do not over ride the right to seek asylum and that right is not defined by how people do it or who they pay.

Marilyn | 01 October 2013  

Dear Michael Breen, I was deeply saddened by your comment on Jesuit education which is not my experience. I do note, however, that fortunately the Jesuit penchant for primacy of conscience has served you well and in acting as you did in abandoning teaching in a Jesuit school (because of what your informed conscience told you was the right thing to do) is probably a matter of pride amongst those Jesuits who knew you - in much the same way that many Jesuits admired Fidel Castro because of his committment to what he believed. I have always thought that acting according to what your conscience demands is one of the cornerstones of Jesuit education. Perhaps I'm wrong? I hope and pray that the Jesuit pope brings long needed healing to all of us - that is, to the Church. I think that might just happen. And I also think that the new government might just bring about healing of our nation, might bring healing to that ugly open wound on Australia's face embodied in Howard and the lethal sickness that has infected the once great Labor party. When my wife nearly died on us many years ago and left 7 children (aged 3- 15)effectively motherless, 50 mothers from the Jesuits schools in Sydney came to the house every day for a year on a roster system to care for my wife, to teach her all the things she had forgotten and looked after the children so that I could go back to work. The Jesuit headmaster of Riverview took 6 boys into the boarding school and looked after them and refused to send me a bill. That, Michael, is what a Jesuit community is about to me and perhaps you can see why it saddens me that you seemingly could not find that Jesuit community in your experience. I genuinely hope that you will one day find it again. Kind regards and God Bless

john frawley | 01 October 2013  

Nothing pleases you does it Marilyn/ What a sad day it will be for you if the government (of whatever persuasion) actually solves the problems of asylum seekers in this country. You will have bugger all to do! Your definitions of the problem are clearly not those used by most other commentators. There is a possibility, albeit remote in your mind I'm sure , that you could possibly be wrong occasionally and that not everyone with a different view from yours is necessarily uninformed. I suppose its difficult when you are not open to any opinion other than your own. What if you, like me and most others, are occasionally wrong? To recognise that fact occasionly can be quite uplifting, Marilyn. Perhaps you might try it sometime.

john frawley | 01 October 2013  

Marilyn, at the risk of incurring your moral wrath, might I offer a few legal comments on your oft-repeated statement: “It is a legal right to sail here, it is not up to any lazy pollie, lawyer, media or anyone else to arbitrarily take that right away. It says so at Article 30 of the UDHR.” Article 30 says no such thing. I think you may be referring to Article 14(1) which provides: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” Back in 1948, the drafters had suggested that a person have the right to be “granted asylum” – a legal right to sail here! Australia was one of the strong, successful opponents, being prepared to acknowledge only the individual’s right “to seek and enjoy asylum”, because such a right would not include the right to enter another country and it would not create a duty for a country to permit entry by the asylum seeker. That’s why Article 31(1) of the Refugee Convention deals as it does with the illegal entry or presence of an asylum seeker who has entered or is present without authorisation. It provides: “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” You will note that the immunity from penalty is restricted to refugees “coming directly from a territory where their life or freedom was threatened”. The highly respected Oxford don Guy Goodwin-Gill has written: “A categorical refusal of disembarkation cannot be equated with breach of the principle of non-refoulement, even though it may result in serious consequences for asylum-seekers”. The greatly respected A. Grahl-Madsen has written: “[Non-refoulement] may only be invoked in respect of persons who are already present—lawfully or unlawfully—in the territory of a Contracting State. Article 33 only prohibits the expulsion or return (refoulement) of refugees to territories where they are likely to suffer persecution; it does not obligate the Contracting State to admit any person who has not already set foot on their respective territories”. The Australian Government website is correct when it states: “International law recognises that people at risk of persecution have a legal right to flee their country and seek refuge elsewhere, BUT DOES NOT GIVE THEM A RIGHT TO ENTER A COUNTRY OF WHICH THEY ARE NOT A NATIONAL. Nor do people at risk of persecution have a right to choose their preferred country of protection.” More recently Guy Goodwin Gill has written in “The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement”, (2011) 23 International Journal of Refugee Law 443 at p. 444: “It is not yet unlawful to move or to migrate, or to seek asylum, even if the criminalisation of ‘irregular emigration’ by sending states seems to be desired by the developed world. Even so, the range of permissible restrictions on freedom of movement and the absence of any immediately correlative duty of admission, other than towards nationals, make the claim somewhat illusory. Perhaps Article 13(2) of the 1948 Universal Declaration of Human Rights was just a political gesture; perhaps the world today has in fact moved closer to what was then the Soviet position, that the right to freedom of movement should be recognized as only exercisable in accordance with the laws of the state.”

Frank Brennan SJ | 01 October 2013  

Thank you Frank. I too have wondered when we are going to realise we are part of a global problem and we have benefitted for many decades from unfair trade policies with poor economies, still reap profits from unsafe, exploitative Australian- owned third world manufacturing as businesses feel financial hard times.We cry'poor'!!!.Refugees are treated worse than cattle, and our politicians immediately react with moral outrage when our cattle are treated cruelly, as Abbott reminded us today of his priority to end our farmers loss of income.When there is a buck to be made it is all deemed fair.This hypocritical,arrogant, one eyed view is reflected in everything we do.We are out of step and Asia,NOT US is bearing the huge cost of true hospitality,welcoming refugees.NOT US.What sort of friendships do we have? We are the lucky country, lucky not to have war, cultural tensions, over population,dire poverty. Spoilt rotten>We do not have a fair-minded approach to anyone or anything.Only"A Fair Go" for the chosen few. This Redneck attitude is to be sustained for how long by isolation and ignorance?

Catherine | 01 October 2013  

In his 1963 commentary on the Refugee Convention undertaken when he was working as a lawyer for UNHCR (and published by the Division of International Protection of UNHCR in 1997) Professor Atle Grahl-Madsen wrote: ‘If a Contracting State has placed its frontier guards right at the frontier, and has fenced off its territory, so that no one can set foot on it without having been permitted to do so, the State may refuse admission to any comer without breaking its obligations under Article 33. Article 33 produces the strange result, as pointed out by Robinson, that, “if a refugee has succeeded in eluding the frontier guards, he is safe; if he has not, it is his hard luck”. And if the frontier control post is at some distance (a yard, a hundred meters) from the actual frontier, so that anyone approaching the frontier control point is actually in the country, he may be refused permission to proceed farther inland, but he must be allowed to stay in the bit of the territory which is situated between the actual frontier line and the control post, because any other course of action would mean a violation of Article 33 (1). However strange these results may seem from a logical point of view, they are nevertheless not devoid of merit. It must be remembered that the Refugee Convention to a certain extent is a result of the pressure by humanitarian interested persons on Governments, and that public opinion is apt to concern itself much more with the individual who has set foot on the nation’s territory and thus is within the power of the national authorities, than with people only seen as shadows or moving figures “at the other side of the fence.” The latter have not materialized as human beings, and it is much easier to shed responsibility for a mass of unknown people than for the individual whose fate one has to decide.’

Frank Brennan SJ | 01 October 2013  

No Frank I was talking about ARticle 30 of UDHR - Article 30. • Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein. See? As for entry into other countries, that is semantics. If people are allowed to leave their own country to seek asylum they are allowed to enter another country as they cannot hang around in limbo. And Article 36 of our migration act has made it a legal right to enter here. Article 13 (2) of the UDHR - Article 13. • (1) Everyone has the right to freedom of movement and residence within the borders of each state. • (2) Everyone has the right to leave any country, including his own, and to return to his country." The right to seek asylum is meaningless if people can't leave or enter. It is narrow legalistic mumbo jumbo to say otherwise. I know I am not a lawyer, but I can read.

Marilyn | 02 October 2013  

John Frawley, Tony Abbott like Michael D. Breen, went into the seminary to be a man for others, yet the catalyst to 'his' coming out, was being told by an old friend that he couldn't meet him because he had to fly to London to finalise a $1.5 billion contract. He, Abbott, was just working on an essay about the Desert Fathers. What am I doing, he asked, and returned to the world.

Game Theory | 02 October 2013  

John Frawley as you have written in your response to Michael D. Breen, " I was deeply saddened by your comment on Jesuit education which is not my experience". Frankly, I am more interested in what a refugee seeking asylum in Australia may think of Tony Abbotts morally correct convictions, as a result of his Jesuit education - not yours.

Annoying Orange | 02 October 2013  

Marilyn, for Article 30 to have any operation, you need to be able to point to a right or freedom set down in other provisions which is being interfered with. Yes, there is a right to leave your country. There is a right to re-enter your country. There is a right to seek asylum. But there is NO right to enter another country of which you are not a national – even to seek asylum. Should you have succeeded in entering another country not your own, whether legally or illegally, you have a right to enjoy asylum if you are a refugee. Article 30 has no operation in relation to actions such as the USA having previously denied Haitians access to US territory. Of course, the moral argument is another matter. But I do believe it is important for us all to be clear about Australia’s international obligations under the UNDHR and the Convention on Refugees. Unfortunately even the website of the Refugee Council of Australia is wrong when it states: “The UN Refugee Convention (to which Australia is a signatory) recognises that refugees have a right to enter a country for the purposes of seeking asylum, regardless of how they arrive or whether they hold valid travel or identity documents.” Given that most of our neighbours are not signatories to the Refugee Convention, there is no point in over-stating our legal obligations when we come to the moral arguments and the diplomatic negotiations that will be required to enhance the processing and protection of refugees in our region. It is your prerogative to regard all this as “narrow legalistic mumbo jumbo”. But if that’s all it is, we may as well abandon the international legal instruments and just rely on moral argument and diplomatic negotiations. It may be the lawyer in me, but I would like to see us maintain the safety net of law. The political atmosphere is such that the safety net will become so frayed as to be useless if refugee advocates continue to overstate and mis-state the law.

Frank Brennan SJ | 02 October 2013  

Has anyone examined the ethics of excising Christmas Island from Australia's migration zone?

Reddy | 02 October 2013  

Marylin, if I may point out, you often seem to me to be engaging in Asylum Issues with the demand that others use their free will they way you want them to and with a huge amount of judgment & condemnation of those who have responsibilities in the area, & cannot just attack & do nothing. And in case you haven't noticed-you cannot FORCE others to change or treat people better.The soul doesn't work like that-which is why I don't wat to project my own stuff onto you either, right here. Thanks, respectfully, Felix

Felix | 02 October 2013  

All this may be moot if Australia's current policy on boat rescue continues. We seem to have become extraordinarily careless in attending to the SOLAS convention. (Safety of Life at Sea) People are now being encouraged by their families not to try the crossing because of the risk. This risk has grown because of two factors- the criminal lack of care by the agents overloading boats for profit coupled with the criminal neglect of response to calls for help to the Australian authorities resulting in delayed rescue or refusal to rescue until the people are in the water actively dying. The evidence is that never before have so many people died at sea. In 2001 there was no GPS, No satellite phones. Why are so many dying when the means to find them are available? Labor oversaw a change of response and too many lives have been lost. The Coalition will reap this ignominious sobriquet for "Stopping the Boats". Australians can hang their heads in shame for this result but will they? Perhaps we are so morally extinguished, we are no longer able to value human life that does not look like us.

Pamela | 02 October 2013  

I'm so glad Frank has noted his concern and hopeful policy relating to the plight of West Papuan asylum seekers. When I read this week that West Papuan asylum seekers had been returned to PNG it appeared no one was picking up their plight. Thank God for Frank!

Anna | 02 October 2013 "shame on you that your new rulers have reached the stage of killing people Ali Khoder, Lebanese Shiekh" finally we get the complete human effect of what happens when people seeking Asylum and risk this terrible journey. SBS Dateline and Yaara Bou Melhem hats off to you for finally telling a part of the story that is missed in Australia. You have done a brilliant job . Well done Confronting stuff I am ashamed of Australia harsh policy they are a disgrace to the nation.

shame on us | 02 October 2013  

That's why the headline of the article refers to ETHICS, so that we leave the Christian, Catholic, Jesuit, leftwing, right wing BS out of this (ie the emotion) Ethic is objectively subjective - not subjectively objective like religion and politics. Jesuit was the ultimnate ethicist.

AURELIUS | 02 October 2013  

Of course our government should recommit to our obligations under Refugee Convention. However having appealed to our lowest common ethical and moral political reaction--don't hold your breath

Des Welladsen | 04 October 2013  

With three Senators being elected from the Palmer United Party, the Abbott Government will need to be attentive to the Palmer policy on asylum seekers outlined at the election. Here are the key points (not of all of which seem to be totally consistent): “Australia must meet its obligations under the UN Refugee Convention to assess in good faith all asylum seekers who arrive on our mainland or any of our islands. This must be done without discrimination based on the method of arrival. They should be quickly dealt with on arrival and if found to have a legitimate right to asylum then they should be allowed to enter and have access to welfare like all other Australians. If they are trying to enter our country illegally then they should be immediately sent home or back to their country of disembarkation.” “If they have a genuine claim, asylum seekers should have access to all aspects of our society and not be treated or made to feel like second class citizens.” “A move to onshore processing would deliver massive economic and moral dividends.”

Frank Brennan SJ | 04 October 2013  

With Papuan asylum refugees in direct flight from Indonesia where they were persecuted then being sent to PNG rather than being processed and given protection in Australia, it is important to remember that PNG, though a signatory to the Refugee Convention, still has reservations exempting itself from Articles 17(1) (employment), 21 (housing), 22(1) education, 26 (freedom of movement), 31 (no penalty for illegal entry or presence), 32(no expulsion) and 34 (naturalisation). The Rudd-O’Neill agreement of 19 July specified that PNG should “immediately take steps to withdraw its reservations”. As far as I know, we are still waiting.

Frank Brennan SJ | 04 October 2013  

Thanks, Fr Frank for the article and the subsequent comments. Just one point of contention. As I see it, the Coalition's response to the Gillard Malaysia solution wasn't in any way unctuous. It was highly critical on many levels, yes. But the criticisms were borne out by the subsequent collapse of the project. And, true, one aspect of the criticism was that Labor's attempts to deal with the problem stemmed from its obstinate and childish refusal, in the face of mounting empirical evidence, to admit that maybe Mr Howard had got it right after all. That's about as morally driven as the coalition criticism got. And it was valid on that point, too, so no "unction" there. On the other hand, the fateful rejection of the Howard solution by Labor was accompanied by bucket-loads of moral denunciation over several years, not only by the Rudd/Gillard regime, but by the left in general, including many writers on this site. I don't expect those critics will ever get around to apologizing to John Howard - heck, the Left has yet to apologize for backing the wrong side in the 20th century experiment with communism (Eugene Genovese and J.K. Galbraith among the heroic exceptions)! But it would be the just and Christian thing to do.

HH | 05 October 2013  

Frank, the courts here have stated that it is legal to enter without papers, I have read them, And we have thrown the entire UDHR in the bin with all other human rights instruments. And the discussions in the past about refugee movements are superfluous now, people can travel much more freely than ever, it's not 1950 anymore. As was stated in Al Masri and was held by the high court in Al Kateb: 61 The Refugees Convention is a part of conventional international law that has been given legislative effect in Australia: see ss 36 and 65 of the Act. It has always been fundamental to the operation of the Refugees Convention that many applicants for refugee status will, of necessity, have left their countries of nationality unlawfully and therefore, of necessity, will have entered the country in which they seek asylum unlawfully. Jews seeking refuge from war-torn Europe, Tutsis seeking refuge from Rwanda, Kurds seeking refuge from Iraq, Hazaras seeking refuge from the Taliban in Afghanistan and many others, may also be called "unlawful non-citizens" in the countries in which they seek asylum. Such a description, however, conceals, rather than reveals, their lawful entitlement under conventional international law since the early 1950's (which has been enacted into Australian law) to claim refugee status as persons who are "unlawfully" in the country in which the asylum application is made. 62 The Refugees Convention implicitly requires that, generally, the signatory countries process applications for refugee status of on-shore applicants irrespective of the legality of their arrival, or continued presence, in that country: see Art 31. That right is not only conferred upon them under international law but is also recognised by the Act (see s 36) and the Migration Regulations 1994 (Cth) which do not require lawful arrival or presence as a criterion for a protection visa. If the position were otherwise many of the protection obligations undertaken by signatories to the Refugees Convention, including Australia, would be undermined and ultimately rendered nugatory.

Marilyn | 05 October 2013  

Facts Check: Australia has resettled more than 750,000 refugees since Federation. That's around 7,000 annually. Until this year the average number had grown to 14,000 and in 2013 approximately 20,000 refugees (with full Medicare access) are being settled in urban, regional and rural locations around Australia. West Papua is an Indonesian province and the seven West Papuans who recently claimed asylum (refugee staus) from the Australian government are Indonesian citizens. Under the current 'shock and awe' legislation (as Frank so aptly terms it), they have been shoved off to PNG, their claims of persecution unaddressed. But does Frank REALLY believe that in this time of attempted rapprochement with Indonesia, that Australia should risk finding Indonesia guilty of persecuting its Melanesian citizens? Fair suck of the sauce bottle Frank!

Claude Rigney | 09 October 2013  

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