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There is an ethical way to stop the boats


Behind all the legal technicalities and political argument about boat people, there is room for deeper ethical reflection and a more principled proposal. But first, to clear away some of the debris.

Last week, the Australian Parliament led by a government in panic mode legislated to do three things: lock the courts as far as possible out of reviewing government decisions about offshore processing; set the course for re-instituting the Pacific solution in Nauru and Manus Island; and delay any prospect of a Malaysia agreement until after the next election — which probably means never.

A brief word on each of these three matters:

1. In 2001, Philip Ruddock, keen to win Opposition support for the offshore processing of asylum seekers on Nauru, agreed with Kim Beazley to specify minimum human rights conditions to be considered by the Minister before declaring any country to be an appropriate offshore processing country. Few members of parliament or lawyers thought the High Court would ever buy into reviewing whether or not these conditions had been fulfilled, mainly because they thought the Court would not want to open a door of judicial review which might require consideration of the human rights record of foreign countries. It is one thing for a court to observe that a foreign country is not a signatory to an international human rights instrument. That is a simple question of law. It is another matter for a court to be hearing evidence about the human rights record of a foreign country, whether or not it is a signatory to any or all of the relevant human rights instruments. Last August, the High Court caused some surprise when deciding 6 to 1 that the court would open that door of judicial review. The court found Malaysia wanting, and the arrangement negotiated between Malaysia and the Gillard government defective. Both sides of politics were keen to shut this door again as firmly as possible. A bill was introduced to Parliament to do just that last September. It got nowhere because the Opposition wanted to insist that Parliament provide that any future offshore processing country be a signatory to the Refugees Convention. The Government would not agree to this because it wanted to keep open the Malaysia option — Malaysia not being a signatory to the Convention. Parliament has now closed the door as far as it can. The Constitution may still leave a glimmer of light between the door and wall.

2. In 2001, the Howard Government instituted offshore processing on Nauru. It was premised on the bluff that anyone being sent to Nauru would never be resettled in Australia. Some asylum seekers opted to return home. Those who called the government's bluff and stayed generally ended up in Australia or New Zealand. When elected, the Rudd government enacted long held ALP policy for which it had a strong mandate at the election and abolished the Pacific Solution. When the boats started coming again, the Government's best advisers cautioned that the bluff would not work a second time. Last week, the Houston Expert Panel recommended that Nauru be tried again but with an added disincentive for asylum seekers. They should be told that they would get 'no advantage' by getting on a boat rather than waiting in Indonesia. They would have to wait the same time for resettlement from Nauru, as they would had they stayed in Indonesia.

3. Convinced by their advisers that Nauru would not work again as a deterrent, the Gillard government had investigated the Malaysia solution. The Coalition and the Greens are implacably opposed to any Malaysia proposal. Under last week's law passed by the Australian Parliament, no country will be eligible to host offshore processing unless there is agreement from both Houses of Parliament. The Senate will now overwhelmingly agree to Nauru, with support coming from all ALP, Liberal and National Party Senators. Before the next election, there is no way that the Senate will agree to Malaysia. The Greens won't have a bar of any offshore processing arrangement. The Opposition describes the Malaysia deal as 'abominable.' The Houston panel thought there was merit in the Malaysia proposal. But like the High Court, they thought it fell short on human rights protections and recommended further negotiation of basic human rights review mechanisms with the Malaysian government. There is no way that Australian officials will credibly be able to reopen negotiations with Malaysia before the next federal election. The Malaysian officials will know that such discussions could never satisfy the Australian Senate as presently constituted, and that any discussions will simply be face-saving exercises by the Gillard government. The Malaysians would find such discussions demeaning and a waste of time. Between now and the next election, we can be fairly sure that anyone sent to Nauru will not have been resettled. They will still be awaiting processing and/or resettlement on a timeline which follows the 'no advantage' rule. There will be no further development of the Malaysia proposal. And the vain hope of a regional agreement to solve a regional problem, and not just the Australian problem, will still be on the long finger.

We need another proposal which could pass ethical muster as well as being workable, given the Parliament's newfound bipartisan hostility to onshore processing.

Why the Pacific Solution Mark II is unethical

Within the international order, the security, well-being and human rights of persons is primarily the responsibility of the nation state. The community of nations respects the sovereignty of nation states.

It is to be expected that some persons will face persecution at the hands of their own governments because the government is either wielding the discriminatory fist or holding its hands behind its back while others engage in the persecution. Thus the international community has a responsibility to look to the security, well-being and human rights of those who are so persecuted.

Those fleeing persecution should be treated in a dignified manner, being offered basic protection. They should be humanely housed, have their claims dealt with under a transparent, fair process and be offered a durable solution in a timely fashion. Those fleeing persecution should not view their plight as the basis for seeking their preferred migration outcome. Once offered an appropriate level of protection, they should await local integration into their host community or resettlement in a third country.

Ideally, each nation state should process onshore the asylum seekers arriving in its territory. Alternatively, nations might seek a regional solution to regional asylum problems, even setting up regional processing centres. Wealthy countries may want to consider outsourcing the accommodation and processing of asylum seekers to impoverished client states or to other nations seeking a bilateral advantage. Offshore processing, like onshore processing, should include humane accommodation, transparent processing and prompt resettlement.

All countries — even those which are not net migration countries — have a responsibility to offer protection to those persons fleeing in direct flight from persecution. All countries are entitled to maintain the integrity and security of their borders. Being an island nation continent, Australia is more able than most to entertain the notion of hermetically sealed borders. Nations sharing land borders do not waste precious resources trying to exclude all unvisaed entrants.

Australia is less able to close off its borders because we want to retain possessions in the Indian Ocean which are much closer to Indonesia than to the Australian mainland. With possessions like Ashmore Reef, it is almost as if we share a land border with Indonesia.

Countries like Australia which are net migration countries should provide some humanitarian places in the migration program, as well as places for business and family reunion. Given the vast number of people facing persecution and human rights abuses in the world, net migration countries are entitled to set an annual quota of migrant places, including a quota on those requiring humanitarian assistance. The Houston panel has suggested a more generous humanitarian quota than Australia's average in recent years. This is most welcome.

Australia has a humanitarian interest in reducing the appeal of desperate asylum seekers making dangerous voyages in leaky boats from Indonesia. It is false to suggest that there is a queue or series of queues weaving like songlines across the globe — the right way to come being to join a queue and the wrong way to come being to jump the queue.

In some parts of the world there are queues. In other parts of the world (like Pakistan) there are not — there is only mayhem (as for the Hazaras fleeing from Afghanistan to Pakistan). Once asylum seekers have reached a place where an appropriate level of protection and processing is provided, they should wait there, and governments are entitled to design measures which encourage such waiting. The Houston panel suggested the need to enhance the prospects of people waiting, while at the same time ensuring that those who take to the boats not enjoy any advantage.

The ethical problem with the Pacific Solution Mark II is that it is impossible to calculate the usual waiting time for resettlement of asylum seekers in Indonesia. It is not as if everyone is placed in the one queue with the same treatment. Needier cases are often dealt with first.

If people are to be held on Nauru longer than is required for their processing and resettlement, either the Australian government officials will have to institute a 'go slow' on processing, or the Nauruan government officials will have to breach numerous provisions of the Refugees Convention once persons are proved to be refugees awaiting resettlement. A proven refugee, as distinct from an asylum seeker awaiting processing, is properly entitled to be treated no less favourably than other visiting foreigners and in some instances to be treated as well as the citizens.

For example, there is no principled reason why a proven refugee should be denied the right to travel to other countries while awaiting resettlement. The Pacific Solution Mark II needs to work on the bluff that asylum seekers sent to Nauru will be denied resettlement and other refugee entitlements for as long as it would take to resettle them had they waited in Indonesia.

So we need to find an ethically more appropriate way to stop the boats. A regional solution to the regional problem will take many, many years, and Australia with its unduly sensitive, relatively small problem will not be the key player to determine that progress.

Here is my suggestion for a short-term Australian initiative that is both ethical and workable.

The way forward

Over the next 15 months, in the lead up to the federal election, Australian officials should redouble their efforts to seek a bilateral arrangement with Indonesia, with the co-operation of both UNHCR (which will be responsible for processing) and IOM (which will share responsibility with the Indonesian government for offering humane accommodation during processing and while awaiting resettlement). Under an enforceable memorandum of understanding (MOU) Indonesia would agree not to refoule any person whose asylum claim was awaiting determination nor any person proven to be a refugee.

Whereas UNHCR has 217,618 persons of concern on its books in Malaysia, it has only 4,239 in Indonesia. Other than the Sri Lankans, all asylum seekers who head to Australia by boat come through Indonesia. We need to set up a workable, transparent, honourable queue in Indonesia. Persons in the queue would receive appropriately deferential treatment from UNHCR deciding that the neediest cases would be dealt with preferentially.

What we need is for Indonesia to agree to an arrangement whereby Australia funds the accommodation and processing arrangements in Indonesia, with Australia setting an agreed quota of resettlement places from Indonesia. The quota needs the agreement of both governments — being sufficiently generous to assist clear the Indonesia caseload, and being sufficiently tight not to set up a 'honeypot effect,' thereby luring more asylum seekers to the Indonesian queue awaiting passage to Australia.

The human rights safeguards would need to match the requirements set by the Houston panel when reviewing the presently defective Malaysia proposal including '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.'

The MOU would need to be accompanied by 'a written agreement between (Indonesia) and UNHCR' and 'a more effective monitoring mechanism' of human rights protection, including participation by Australian 'senior officials and eminent persons from civil society.'

Any person leaving Indonesia by boat for Australia could then be intercepted either before or after reaching the Australian mainland. They could be held briefly in detention while a prompt assessment was made whether they genuinely feared persecution in Indonesia. Almost none of them will. They could then be safely flown back to Indonesia and placed, quite literally, at the end of the queue. Should they attempt a boat journey again, they could be flown back having previously been informed that they would never be offered a resettlement place in Australia.

This would be a more ethical way of stopping the boats than indeterminate warehousing of people on Nauru and Manus Island. The increase of the humanitarian intake proposed by the Houston panel could then allow us to take more refugees from further up the transport chain.


In the lead up to the election, Tony Abbott and Scott Morrison are sure to continue insisting that the Gillard Government's Pacific Solution Mark II will not work. In all probability, this will undermine the efficacy of the Gillard Solution in stopping the boats. Just imagine if Kim Beazley had spent 2001 trumpeting that Nauru would never work and that people would end up in Australia anyway.

We can expect that there will be a cohort of people housed or detained on Nauru and Manus Island until the next election. The Houston panel has made it clear that towing back the boats is not a safe option at this time. The panel declined to recommend the re-institution of temporary protection visas (TPVs), presumably because they are convinced by the evidence that TPVs being issued to men simply results in women and children family members feeling compelled to get on the next boat, given that there is no other way to be a reunited family.

While hoping that the Pacific Solution Mark II — with the unworkable, unethical 'no advantage' rule — will in fact stop the boats in the short term, despite the Abbott static, we need to build greater trust and co-operation with the Indonesians so that those asylum seekers, other than Sri Lankans, determined to get on a boat to Australia can be processed in Indonesia. If that works, we might then look to a one-off co-operative solution for the Sri Lankans much closer to home.

Frank BrennanFather 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. This article first appeared online at ABC Religion and Ethics.

Topic tags: Frank Brennan, Houston report, Malaysia solution, asylum seekers, refugee convention



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Existing comments

i respect you frank but how many people is it ethical to let drown while some abstract notion of a deal with Indonesia is chased again. I agree the pacific solution is the wrong way to go but i am really disappointed in people who don't really respect the hundreds of people who die right in front of us. And the time for arguing against the pacific Solution has passsed, it is here now. It is how we move forward from here that matters and how we ensure that the other aspects of the report are fully implemented, including aspects relating to indonesia. More than 6,000 refugees will be resettled in Australia this year because of the report - no-one had been able to achieve that until now - so let's start by being happy that those thousands will have a much better life now and let's deal with the report and how much a dying government can get up in the next year.

kelly | 23 August 2012  

Thanks for your article. This issue is so vexed and so complex that virtually none of us understands it, so that we tend to divide into camps based on our 'gut' responses - those who sympathise with the refugees fleeing violence and persecution, and those who just don't want them here. But how informed are any of us? There is so much information that we just don't have, and so many ins-and-outs to be considered, but which we don't understand. I have learned quite a lot from your article, in bits and pieces. I didn't realise, for instance, the extent of the disparity in the numbers of known asylum seekers in Malaysia and Indonesia. Our ignorance plays straight into the hands of those in Canberra who can most effectively push their own agenda while we, the voters, remain bewildered. There is a great need for someone to outline the facts and the issues in down-to-earth, everyday English in a comprehensive way - a sort of Idiot's Guide. How many of us know, for instance, that IOM stands for the International Organisation for Migration? And of those who do, how many know what it is and what it does?

Kate Ahearne | 23 August 2012  

Yes Kelly it is heartbreaking to see, hear , read about asylum seekers drowning so close to possibly finding the safe haven they seek. However, it is just as heartbreaking to see, hear, read, listen to the stories of those whose families, friends, and fellow members of the Hazara Diaspora in Quetta, are being shot, bombed, terrorised until they can no longer move out of the Hazara enclavbes in Quetta. Busses are stopped as happened just last week, and Hazaras nre pulled off and shot. Hazara businesses and eveb small stands in the bazaar are blown up as are Shiite Mosques. These people cannot return to Afghanistan for fear of the resurgent Taliban targetting Hazaras there. They are no longer safe in Quetta. Where are they to go? How can they wait in Quetta, unable to even approach the UNHCR sub office which is across the areas that sees them ethnicly targetted by shooting and bombings and where they need to pay high bribes just to get inside the UNHCR complex let alone be processed by the same ethnicity who are killing them every week in their supposed safe haven of Quetta. Die before our eyes in the waters between us and Indonesia, or die in Quetta. Not such a great choice. They really do not have a queue anywhere to join.

Camilla | 23 August 2012  

Frank's solution posits the ethical, against the combined forces of the political and financial considerations. Perhaps what is needed now, is an alternative form of advocacy of the erhical approaches to teh Australian nation.It seems to me that unless the populace has an understanding of not only WHAT the alternative solution can provide, and WHY that is a better position for Australia to adopt, then the current political and financial forces of this couintry will prevail, and we will remain with a morally bankrupt "solution". We don't necessarily need another political party, just an effective advocacy strategy that influences the thinking of the Australian electors before the next election. Frank has offered a beginning. Who will be the concerned and committed who will "advance Australia fair?"

Garry | 23 August 2012  

The problems are complex; Frank's analysis is welcome. The hubris and self-absorption of Australians in wanting to keep refugees off our shores is perplexing. 'Out of sight out of mind' means we will be sending vulnerable people, including children, to likely abuse. Physical and sexual abuse of children, possibly leading to child suicide or suicide ideation, is rife in East Asia and the Pacific, as demonstrated by new UNICEF research, published by Australian Policy Online on 13 August. UNICEF states that ‘unacceptable physical abuse is causing long-term damage to the lives and futures of far too many children in East Asia and the Pacific’. From one in 10 children to 30.3% of children are believed to experience physical abuse; that almost a third of the kids in the region. Between 14-30% of the region’s boys and girls report experiencing forced sex. As well as prompting high risk behaviours, this abuse is believed to contribute to depression and other ‘mental health problems [and] to think about or attempt suicide’. The East Asia–Pacific region, with 580 million children (more than 1/4 of the world’s children), includes some of the most densely populated and culturally diverse places in the world. Malaysia and Nauru are included in the UNICEF East Asia and Pacific Regional Office’s research. That's the hellhole where our government, in flagrant disregard of its ethical and legal responsibilities, wants to send vulnerable young asylum seekers. How do we ensure their safety, without treaties to that effect? UNICEF’s work is billed as ‘the first-ever comprehensive analysis of existing studies undertaken by experts and academics about child maltreatment in the region [and] examines studies produced between January 2000 and November 2010’. Read it and weep: http://www.unicef.org/eapro/Child_Maltreatment.pdf

Barry G | 23 August 2012  

This is the most intelligent alternative to Nauru or Manus Island offshore processing I have seen. My present viw is to create a queue (with an annual quota to be re-settled in Australia) on these places as a disincentive to taking the potentially lethal journey. Frank proposes a queue in Indonesia to prevent the "honeypot" effect. The flaw in this idea is the unlikelihood of gaining Indonesian agreement. I have been told that the Indonesian government remembers the criticism they received as a consequence of the treatment meted out in the holding camps on their soil to refugees from Indo-China. Also could they afford to allow the asylum seekers from Afghanistan to be favoured by conditions--health, education, food, recreation--not available to their own people?

Robert Manne | 23 August 2012  

I reckon we might be getting close to the end of the boat arrival problem. With the number of boats arriving on Gillard's watch surely the people smugglers must be close to running out of boats.

john frawley | 23 August 2012  

I've been saying for years that Australia needs to be here in Indonesia working with Indonesians to deal with this problem. Your solution, Frank, is spot on and deals with all the issues others have raised. The cost would actually be less than the cost of the Nauru/Manus Island "solution". Kelly, if people are in a queue that they know will eventually get them to safe asylum, they are being cared for and they know they will be returned to Indonesia to the end of the queue if they try to go by boat to Australia, why would they go?

ErikH | 23 August 2012  

There may be a flaw in Fr Brennan's proposal. He wants the number of people resettled in Australia to be sufficiently tight so that there is no "honeypot effect". I am not certain that this would work in reality. If asylum seekers realise that you have to go to a camp in Indonesia to get to Australia, then I imagine they will just gather there in whatever numbers. It may stop boats coming directly here, but I fail to see how it would necessarily stop people coming to Indonesia in fewer numbers than they are now.

MJ | 23 August 2012  

Today it was announced that the evil scum of the earth people smugglers are really just poor Indonesian fishing crew and the mandatory sentences were dropped. So we now have the situation where it is the passengers who are the evil scum of the earth who must be exiled for life.

30,000 kids die every day of starvation, shall we withdraw food from those who don't so they don't have an advantage of some sort?

Everyone has the right to seek asylum. End of story.

And the UNHCR will have nothing to do with the repulsive expensive new Pacific non-solution.

And Kelly, who says that resettlement will stop one person from seeking asylum when over 12,000 people per day do it?

Marilyn | 24 August 2012  

Thx again Frank. Keep up the good work.
by all means stop the leaky boats.
why on earth stop the people?
We do not have an overwhelming number of refugees to consider.
We have an overwhelming amount of space.
We were all migrants...there is no Australian who was other than originally a migrant or from migrant settlers.
We need an overwhelming Ausgtralian heart of hospitality and compassion...
such as was the case in the 1970's when the boats full of Vietnamese arrived on the northern shores.
Welcomed and made valuable citizens...
who did your heart surgery, who is the best electrician you know? (thanks to PM Malcolm Fraser, a conservative)
As an Australian I fear for the spirit/heart/well being of Australian under the current trend of heartless exclusion, lack of compassion and hospitality.

the reverend patricia bouma | 25 August 2012  

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