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“We are generous to refugees on the one hand and we penalise undocumented refugees on the other. The two practices co-exist and one is often played off against the other.”

Barry Hindess
3 September 2016
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Asylum seekers gather on one side of a fence to talk with international journalists about the journeys that brought them to the Island of Nauru, 2001. Rick Rycroft /Press Association. All rights reserved. August 2016 saw a remarkable shift in Australian public opinion regarding refugees and asylum-seekers. Where it had seemed that most Australians supported or were indifferent to the current policy of offshore detention for asylum-seekers  (on Manus island in PNG or the small island state of Nauru), there was suddenly widespread public support for bringing this policy to an end. People protested outside ministerial and parliamentarians' electorate offices using placards saying, to  quote just a few, 'Bring them Here', 'Close the F..ing Camps' with or without the F-word and 'Mums for Refugees'.

The most important catalyst for this shift was undoubtedly the publication by The Guardian, Australia of a huge cache of leaked incident reports from the detention centre on Nauru, detailing numerous cases of child abuse, rape and self-harm. These 'Nauru files' were rapidly taken up by activists on university campuses and in social media, the ABC and a few print newspapers and equally rapidly dismissed by the Australian and Nauru governments and their supporters in the mainstream media.

What changed with the Nauru files is that the sheer weight of evidence – the files consisted of incident reports prepared by staff, few of which could be dismissed as 'mere allegations' –  appeared to confirm suspicions that had been building up in the community for some time. Many who had been aware of reports of abusive and destructive incidents in the camps, but were unsure of their significance, suddenly had their worst suspicions confirmed. Thus, for many Australians, the Nauru files simply forced them to acknowledge what, in a sense, they already knew but had somehow managed not to acknowledge. This realisation that they had already known about appalling conditions in the camps accounts, in part, for the relatively subdued level of public outrage.

It is a puzzle to outsiders, as it is to more than a few Australians, quite why so many Australians are comfortable with the idea of incarcerating asylum seekers. An important part of the answer is that this is what Australia has always done. It would require a substantial shock to shift this established practice. What is relatively new is the policy of moving immigration detention offshore and Australia's recognition that a clear majority of those in detention are refugees in the sense laid down by the 1951 UN Refugee Convention.  

Australia’s two faces

Australia has two different views of immigration. On the one hand, it has actively encouraged immigration, except for a short period in the 1930s during the Great Depression. Focusing initially on British and European migrants, the immigration program had opened up considerably by the late twentieth century. Since the early 1950s Australia has taken in substantial numbers of refugees in its humanitarian immigration program. Relative to population size, Australia has resettled more refugees than any other western state apart from Canada. Australian political leaders see this as a sign of our generosity towards refugees.

On the other hand, Australia has always discouraged unauthorised arrivals, imposing penalties both on migrants themselves and on those who brought them to Australia.  The Immigration Restriction Act of 1901 – one of the first Acts of the newly-established Australian Parliament –  specifies a penalty of six months detention for all prohibited immigrants and various penalties for the owner or Master of a vessel bringing prohibited immigrants, not of European race or descent, to Australia.

Building on the 1901 Act, subsequent Immigration Acts modified the penalties, eventually removing its overt racism, and added to Australian governments' repertoire of responses to unauthorised arrivals. For example, the Howard Coalition Government in 1999 introduced temporary protection visas for asylum seekers who had been recognised as refugees. TPVs allowed refugees to remain in Australia, and to re-apply for asylum after three years, but not to seek employment or to return if for any reason they left the country.

A recent addition to the repertoire of governmental responses is Operation Sovereign Borders initiated in late 2013, which brought together Australian Naval and Border Force programs of actively seeking out boats carrying asylum seekers and returning them to Indonesian waters. Asylum-seekers also came on boats directly from Sri Lanka. When their boats were stopped, they were subjected to 'enhanced screening' by border force officers and, if judged not to be refugees, would be returned directly to Sri Lanka.

The policy of returning boats exposed asylum-seekers to serious risk of drowning and/or whatever punishment Sri Lankan authorities chose to inflict on its runaway citizens. Australian officials acknowledge the risk but claim that there are also risks for asylum-seekers in the sea journey to Australia. Overall, the claim is that turning back the boats, thereby discouraging attempts to reach Australia by sea, saves more lives than the alternative.

Australia is bound by the terms of the 1951 UN Refugee Convention which it signed in 1954. Article 1A of the Convention, as modified by a 1967 Protocol, to which Australia also agreed, defines a refugee as a person who, "owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinions, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”

This is not the place for an extended analysis of the 1951 Refugee Convention. It is perhaps best seen as an extended apology for the millions of European Jews who were let down by the international order during WW2 and the years leading up to it. The Convention was drafted specifically to find solutions for those who had been displaced across Europe by Nazism and the Second World War.

One unfortunate effect of the Convention's efforts to produce a definition comprehensive enough to have avoided the difficulties of the recent European past is that it resulted in a set of criteria for governments to use in assessing the status of migrants who present themselves as refugees. This, in turn, promotes the suspicion amongst immigration officials and their political masters, particularly in Australia – which has made a habit of minimising irregular migration – that not all asylum seekers will prove to be legitimate or genuine refugees. As a result, whether or not an asylum seeker's fear of persecution is to be counted as 'well-founded' becomes a matter to be decided by public servants in the receiving country, many of whom have little or no knowledge of the conditions from which the migrant has fled.

Unfortunately, the Convention's provision that unauthorised arrivals should not be penalised for seeking asylum has little traction in Australian political debate and it has not been written into Australian domestic legislation. Australia is only one of many western states that has chosen to ignore this inconvenient aspect of international law. The USA, for example, is currently building a huge detention facility near the Mexican border – not offshore but sufficiently remote from American population centres to minimise public scrutiny – to be managed by CCA (the Corrections Corporation of America, one of America's largest private prison operators), although America, too, is obliged not to penalise unauthorised arrivals who seek asylum.

Removal from public scrutiny

Australian political leaders like to answer the charge of inhumane treatment of asylum-seekers by changing the subject and pointing to our 'generous' overall intake of refugees. Thus we are generous to refugees on the one hand and we penalise undocumented refugees on the other. The two practices co-exist and one is often played off against the other.

Prime Minister John Howard's notorious assertion, in a speech of October 2001, 'We will decide who comes to this country and the circumstances in which they come..' directly followed his proclamation of Australia's generosity in accepting large numbers of refugees, as if the latter had to be tempered by a whiff of toughness.

As another example, on ABC Lateline (28, May 2016), Amanda Vanstone, a former Liberal Immigration minister and the Jesuit lawyer and refugee advocate Frank Brennan discussed Australia's immigration detention regime. Brennan repeated the point that the offshore detention regime was unconscionable while Vanstone repeated her insistence on our generosity, but without either directly disputing any of the other's points. There was an interesting word-play going on here. Rather than old-fashioned debate, in the form of argument, counter-argument and rhetorical flourishes, good words (generous, generosity) were put up against bad (brutal, unconscionable), almost as if one excused or balanced the other.

Yet, perhaps the most powerful case for the camps is the claim that refugees have to be detained indefinitely offshore in order to send a message to people smugglers, and their clients. In effect, they should forget the protections offered by the Refugee Convention's requirement that unauthorised arrivals should not be penalised for seeking asylum and recognise, instead, that they would never be resettled in Australia. The point of this message is to ensure that the people-smugglers would have nothing to offer their clients.

Critics of offshore detention have argued, on the contrary, that all we need do to end the people-smuggling is continue our current system of stopping their boats and turning them back. Since stopping asylum-seeker boats and incarcerating asylum-seekers indefinitely are both clearly harmful this proposal exhibits the duality noted earlier. Generosity towards some – doing no more than Australia's adherence to the Refugee Convention requires – has to come at a serious cost to others. 

Yet, while there appears to be substantial public support for resettling the refugees in Australia, many immigration and border protection officials and senior figures in the Federal Labor and Liberal Parties still talk as if a 'harsh' –  Malcolm Turnbull, the current Australian PM's description – detention regime is required to stop the boats and thus to prevent unnecessary deaths at sea. Some may even believe it, but I doubt this is the reason our two major parties remain committed to offshore detention.

Whether or not it deters anyone, the great political appeal of offshore detention to any actual or potential party of government is that it removes the camps from public scrutiny and from the reach of troublesome Australian courts. (The PNG Supreme Court has recently ruled that detention of asylum seekers on Manus island is illegal.) Yet, perhaps the most substantial obstacle is politicians’ fear that closing the camps risks appearing weak on border protection, thereby losing support in crucial electorates in the outer suburbs of Sydney and other large Australian cities. The story about a harsh regime of immigration detention saving lives at sea is just a comforting tale to help them sleep at night.

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