The recent leak of the ‘Nauru Files’ underscores what has been clear for years now: our government’s treatment of people seeking refugee protection inflicts serious harm on children and adults who have done nothing to deserve it.

This regime, now collectively organised under the militarised ‘Operation Sovereign Borders’, involves a number of strategies designed to deter people fleeing persecution from making the trip to Australia by boat.

Our government’s central deterrent policy involves the interception of boats carrying asylum seekers, and sending those on board to detention centres on Nauru, Manus Island and Christmas Island. Detained asylum seekers are told that they will never be resettled in Australia.

The inhumane conditions in these detention centres, highlighted in yet more detail within the Nauru Files, are a central part of the deterrence strategy, which has for years resulted in constant reports of suicide, self-harm, rioting, murder, sexual abuse of children and rape of women, assault against children and preventable death. A recent undercover investigation by Amnesty International graphically conveys the conditions in the Nauru camp.

Another deterrent measure has been to intercept “suspected illegal/irregular entry vessels” and tow them back to Indonesian waters, or hand to those aboard over to the navies of interested governments. This policy involves risk of death and refoulement to migrants and crew, and has:

frequently resulted in self-harm and threats of suicide by the migrants, and […] several turn-backs involved very tumultuous, dangerous, and sometimes violent circumstances” Andreas Schloenhardt and Colin Craig.

Each policy involves its own form of deterrence, in order to make the consequences of attempting to reach Australia worse than looking for protection elsewhere.

Is Australia In Breach Of International Law?

Each of these policies breach, or at least create situations that seriously risk breaching, international law in a number of ways.

Our policy of indefinite mandatory detention, for example, has led the United Nations Special Rapporteur for Torture, Juan Méndez, to report multiple violations of Australia’s obligations under the Convention against Torture. In response to the release of the Nauru Files, the UNHCR called for the immediate removal of refugees and asylum seekers from Nauru. Our boat turn-back measures risk returning people to face persecution in violation of the Refugee Convention and are ultimately:

a way for Australia to evade its international obligations and, in effect, render its signature under the Refugee Convention meaningless”  Andreas Schloenhardt and Colin Craig.

Where Do Our Major Political Parties Stand?

Both major parties support these measures. The regime is currently shaped and administered by Malcolm Turnbull’s Coalition government, but the Labor Party continues to hold that these offshore detention centres are the best way to manage asylum seekers arriving by boat, and that boat turn-backs are a legitimate option.

It is this agreement between the two major parties that has done the most to guarantee the continued misery that is at the core of Australia’s approach to asylum seekers. Because of this bipartisan support there is no serious, nationwide debate on the topic.

The last election season showed clear evidence of this paralysing effect on discussion – Labor did not want to raise the issue of refugee policy, as it would have been seen as too weak by one end of the political spectrum, and too cruel by the other.

Because there is no sustained attack on the current system from a sizeable group within our national parliament, debate at the highest level is stalled and has congealed around the childish notion that we face a choice between punishing asylum seekers or being inundated by a flood of foreigners.

There are some significant differences in refugee policy between the two major parties. At the last election, to the extent that the issue was mentioned at all, Labor wanted to sell itself to progressive voters as the more compassionate political party on this issue, and some of the details of its policy do reflect this. For example, Labor promised to establish an independent advocate for children in detention, to guarantee independent oversight of Australian-funded offshore detention centres, abolish Temporary Protection Visas and increase funding to the UNHCR.

But for all these minimal concessions to humanity, it remains the case that both Labor and Coalition policies maintain those central components of Operation Sovereign Borders, namely offshore detention and boat turn-backs, that most seriously risk continuing breaches of international law.

What Reform Is Desirable?

Our violent treatment of innocent people attempting to reach Australia continues despite criticism from the United Nations and continuing efforts to create change by refugee advocates and concerned citizens.

While finding a solution to a problem as multifaceted as refugee flows is always going to be complex, there are no moral complexities to Australia’s current approach. It cannot be defended by anyone who considers torture or serious mistreatment of innocent people unacceptable. The only way to endorse our current policy is to accept that keeping a certain subgroup of foreigners out of Australia is a good enough reason to justify institutional abuse of innocent people, including children.

The repeated, craven and fallacious assurance from our leaders that we have had to choose between one of two regrettable options, either punishing asylum seekers or letting them die at sea, has poisoned Australia’s national identity. If defenders of the current system really were concerned with the wellbeing of refugees, surely they would have the imagination to think of solutions beyond creating a terror more profound than the original persecution.

Australia is not under any obligation to give permanent residency to anyone who wants to live here. Australia is under an obligation to assess the claims of people who seek refugee protection, including those people who are desperate enough to make the trip to Australia by boat.

Given that there is no reason to out-source the detention of asylum seekers to countries like Papua New Guinea and Nauru, other than attempting to avoid responsibility for their protection, the most obviously desirable reform is to close the detention camps on Nauru, Manus Island and Christmas Island, to bring detainees to mainland Australia and to process their refugee protection claims. The detention regime must then be replaced with an intelligent alternative, through a sustained and evidence-based national dialogue. An example of such a dialogue can be found here.

While the camps remain open, reform of the secrecy surrounding the detention centres is crucial, particularly Part 6 of the Border Force Act which serves to punish whistleblowers who report on the conditions inside the detention centres. Meaningful compliance with Australia’s obligations under the Refugee Convention would also require a stop to the policy of boat turn-backs.

What Reform Is Achievable?

It is easy to be pessimistic, given that the consistent reporting of the brutality in our offshore detention centres has so far failed to convince the Australian public that the current approach is unacceptably vicious. After all, there is a reason that both major parties continue to implement these abusive practices: as it stands, Australians as a group have indicated that they are comfortable with the situation.

Will our current leaders be moved to reform as a result of the violence gleaned from the Nauru Files? There are steps that Malcolm Turnbull can take to adopt a more nuanced and somewhat less violent policy. Whether he is so inclined, and whether he could convince his colleagues to follow him in such a direction, are different questions. Either way, it would be unwise for citizens sickened by the situation to rely on Turnbull as conduit of reform given the government’s pathetic response to the leaks so far.

Will the Labor Party decide to change their position? As long as both major parties continue to endorse boat turn backs and offshore detention centres, the chance of significant reform is low. Ball and Webb see this collusion between the two parties as the final link holding the current system in place, and argue that it will soon be insufficient to stem the rising criticism. A reversal from Labor would obviously make a huge difference, not least in reinvigorating national debate in and outside Parliament. Again, it would be unwise to invest much optimism in this possibility. Labor’s long-term involvement in creating and maintaining the system makes a sudden reversal, driven from within, unlikely.

But despite the likely intransigence of the major parties, the pressure is mounting.

The detention centre on Manus Island may have to close after the PNG supreme court ruled the detention of refugees and asylum seekers unconstitutional. Those advocating for reform, in previous years stuck on the margins of political power, are making increasingly resonant arguments as the scale of the abuse becomes harder and harder to deny.

Refugee rights groups and religious groups have staged sit-ins outside onshore detention centres and inside politicians’ offices. Members of the public are becoming increasingly aware of those companies involved in the detention centre business – Transfield, which was paid billions by the Australian government to run the Manus Island and Nauru detention centres, felt enough pressure to change its name to ‘Broadspectrum’.

Ferrovial, the multinational that recently took control of Broadspectrum, has announced it does not intend to run the detention centres once it can extricate itself from the situation. In addition, protesters have been targeting Wilson Security’s carparks because of their involvement in Australia’s offshore detention centres.

Another encouraging point, made by RMIT’s Dr. Binoy Kampmark, is that the Australian government has not been able to prevent information from inside the detention centres from leaking out.

And through it all, the Greens continue to advocate for a humanitarian approach to asylum seekers in the House of Representatives and in the Senate.

Conclusion

As many commentators are now stressing, the current system is not sustainable, and it will eventually collapse under the weight of its own inhumanity when certain conditions are met. Whether that happens sooner or later is something that the Australian public can determine.

Ultimately, responsibility for the situation lies with us and, as recently emphasised by Australian Human Rights Commissioner Gillian Triggs:

Vocal demand for reform from a concerned citizenry is the most likely means of change.

To put it in language that a Federal Minister might understand: we have to make it more politically painful for our government to continue the abuse than to close the camps and consider the alternatives.

Further Information

• Nauru Files – How you can help people held in detention by Australia.
• Sign the #BringThemHere petition.
• Refugee Council of Australia myth-busters for more information about asylum seekers.

Have anything to add to this story? Leave a reply in the comments section below!

Australia’s international legal obligations to refugees 

The particular legal definition of refugee is contained in the Refugees Convention, as well as relevant Australian law.

This essentially says that a refugee is a person who has a genuine and well-founded fear of serious harm amounting to persecution. Any such persecution must occur because of one or more of several reasons set out in the Convention. These are: religion, ethnicity, nationality, political opinion or as a member of some particular group in society.

Australian law provides that if any asylum seeker is not a refugee under the Refugees Convention definition, they may be entitled to protection in Australia under other international obligations as set out in Australian law – this is known as ‘complementary protection’. The requirement is essentially that there must be substantial grounds for believing that there is a real risk that the person will suffer significant harm if they return to their home country. This does not need to be for one of the particular reasons detailed in the refugee definition. (However, there are important exceptions to the complementary protection provisions – including where the real risk of harm is one affecting the population generally).

Two distinct groups – How does asylum-seeker processing operate in practice?

The normal procedure for an asylum-seeker in Australia is that an initial application is assessed and determined by the Department of Immigration and Border Protection (the primary decision). Review of a negative decision on the merits can be sought through the Migration and Refugee Division of the Administrative Appeals Tribunal (this Division was formerly the Refugee Review Tribunal). Further, judicial review can be sought on grounds of legal error. Broadly speaking, Australia is faced with two distinct groups of asylum-seekers:

1. There are those (who in past years have overwhelmingly been the majority) who arrive in Australia legally with visitor, student or temporary business visas and who subsequently apply for refugee status in order to remain in Australia. Most of this group are unsuccessful in substantiating their asylum claims.
2. The other group, which has received the most attention in recent years, are those who seek to arrive directly by boat without visas: “irregular maritime arrivals”. These come from a relatively small group of countries, most prominently Afghanistan, Iraq, Iran and Sri Lanka – generally through Indonesia – but sometimes directly from Sri Lanka.

Off-shore detention of irregular maritime arrivals

Australia now intercepts this latter group at sea, and removes them directly to Nauru or Manus, where they are detained and processed by the Nauru and Papua New Guinea governments. Detention there is financed and controlled by the Australian authorities. Australia also effectively funds the determination process.

The review function is undertaken largely by Australians who have previously carried out the same function in Australia.

Although increasingly significant numbers of detainees on Nauru have been found to be refugees, Australia has refused to resettle them and has failed to take up New Zealand’s offers of resettlement. Resettlement has been offered in Cambodia, but very few have taken this up. The intention appears to be that resettlement should not be offered anywhere that might be seen as an improvement on conditions in their home countries. In consequence, even those found to be refugees, and released from detention, find themselves without a future – effectively trapped on a very small island with very limited education and employment opportunities and medical facilities. They often face open hostility from local people.

Rationale behind the government’s offshore detention policy

No elaboration is needed in relation to the physical, mental and physical security issues faced by those in detention on Nauru and Manus. These have been well documented and are chilling. As envisaged by successive Australian governments, it seems clear that such detention is consciously intended to be worse than the situation the asylum-seekers have fled, in order to discourage others from undertaking travel to Australia.

Australia is responsible for treatment of these people which is very much worse than how we treat serious criminals in Australian prisons, convicted through due process.

But these asylum-seekers are victims, not criminals.

The overwhelming majority of boat arrivals whose cases have been finally determined are consistently found by rigorous legal processes to be refugees.

Australia is responsible for subjecting them to serious and significant harm for reasons which a court would undoubtedly find comes within the Refugee Convention definition:

How much longer can our politicians trash the reputation and self-respect of our country and its people, and persecute vulnerable people? The ends do not justify the means. We cannot knowingly and certainly destroy lives in order to (arguably) save others. As Australians, we cannot evade responsibility for what is happening to asylum seekers on Nauru and Manus. History will not absolve us.

There are no easy answers. The alternatives are difficult and complex. But anything is better than our complicity in Nauru.

A way forward?

There are certainly other avenues which could be explored that would impact on boats moving through the region to Australia.

To check the flow of boats through the region to Australia in a constructive way, rather than simply trying to create an impassable moat draconically enforced, we should revive a genuine cooperative regional approach (not ad hoc bilateral arrangements with selected regional countries). We have failed to make any real effort in this direction in recent years, and have also failed to engage constructively with Indonesia on a bilateral basis.

There is, in fact, a very successful precedent for such an approach which, while not entirely analogous, offers enough parallels to merit some attention.

The Comprehensive Plan of Action for Indo-Chinese Asylum-Seekers (CPA) implemented over several years from the late 1980s was a hugely successful program, coordinated by UNHCR, which directly involved countries of origin, countries of first asylum, countries of resettlement (including Australia) and other interested countries and agencies. Australia took a leading role in this exercise.

In response to a flow of Indo-Chinese asylum-seeker boats through the region in the late 1980s (a number reaching Australia), the Comprehensive Plan of Action for Indo-Chinese Asylum-Seekers (CPA) was adopted at the International Conference on Indo-Chinese Refugees held in Geneva in June 1989. It was established as a framework for international cooperation at a time when asylum in South-East Asia was in crisis.

During its seven-year lifespan to June 1996, the CPA provided temporary refuge within the region, reduced clandestine departures, expanded legal departure possibilities and introduced region-wide refugee status determination procedures which helped stem the flow of asylum-seekers.

Regional countries such as Indonesia hosted very large UNHCR-run camps where processing took place resulting in both resettlement and returns.

Any new regional approach now would have to be negotiated under the aegis of UNHCR and eventually coordinated, if not run, by the UNHCR. Given recent policies and interactions, the region, and Indonesia in particular, is unlikely to embrace any purely Australian-run exercise.

Indonesia is the key to any such approach. Indonesia was left with some grievances at the end of the earlier CPA process, in particular, because of the slow clearance rate and any progress in this direction would have to be carefully negotiated and fully involve UNHCR from the start. Indonesia will not be bullied or patronised or taken for granted. It was deeply offended by the unilateralism of the Abbot government and will not accept some kind of semi-independent Australian operation in Indonesia or Indonesian waters. Screening in the region will have to be under the aegis of UNHCR (as it was for the CPA), not a thinly-veiled Australian operation.

Nor will Indonesia be easily bought off by simply being offered money to keep the asylum seekers in Indonesia. Indonesia is not a poor undeveloped country which will fall over backwards for a few million dollars of aid, but an increasingly dynamic South East Asian economy. However, very substantial resources will need to be provided as part of any arrangements, as a necessary but not sufficient condition.

An absolute pre-condition for Indonesia would be iron-clad guarantees that it will not be stuck for extended periods with large numbers of asylum seekers, but that they will be resettled elsewhere (if screened in) or returned home (if screened out). Some direct assistance to Indonesia to enable it to better police its waters, including its sea border with Malaysia where many asylum-seekers enter, would also be a very useful element in the mix.

There would need to be serious guarantees from appropriate countries about resettlement including, in particular, Australia.

It will not be sufficient to simply set up holding centres and screening in Indonesia. In a sense, that will of itself become a magnet while conditions in source countries continue to impel flight. There will need to be parallel efforts in potential countries of first asylum, through which asylum-seekers pass en route to Indonesia. As the CPA showed, this can be achieved and made to work even where such countries are not signatories to the Refugee Convention. Malaysia would have to be included. Pakistan, home to a huge Afghan diaspora in recent years (especially Hazaras), will be much more problematic.

It is difficult to see what might be done in the short term to mitigate push factors in countries such as Afghanistan and Iraq. The international community is already frustrated in making any progress in either country.

Iran produces many well-educated secular-minded people whose rising expectations lead them to look to the West rather than, in many cases, being motivated by persecution. A targeted skilled migration intake might well have an impact there.

In the case of Sri Lanka, the other large source country, there is evidence that economic conditions, particularly among the Tamil population of the west and north, are playing a large part and there are prospects for a large and targeted aid program to have some impact on this.

Conclusion

The above is not a blueprint for detailed arrangements about whose efficacy one can be confident. Rather, they are indications of a few directions which offer some prospects for improvement and amelioration of the present situation.

As noted above, any approach should be multilateral or regional, not bilateral and certainly not unilateral and will almost certainly have to be conducted in full cooperation with, and under the aegis of, the UNHCR if any such approach is to prove acceptable within the region.

2015 has been a year of mass migrations.

Between January to August 2015, 350,000 irregular migrants entered Europe. An estimated 800,000 migrants seeking asylum are expected to arrive in Germany alone this year.

With only four mass migrations occurring in Europe in recorded history, what can be done with so many people in a modern migrant crisis?

And who can pick a true refugee within the context of mass flows of people into Europe from middle eastern countries in war situations or experiencing political or social upheaval?

What Caused The Migrant Crisis And What Is Europe Doing About It?

According to BBC News, the mass exodus of people from the Middle East and Africa is being fuelled mainly by civil war and terror with conflicts raging in Syria and Afghanistan as well as human rights abuses in Eritrea.

https://www.youtube.com/watch?v=jhBlYwxcaLY

What Is A Refugee?

Under the 1951 Refugee Convention and 1967 Protocol on the Status of Refugees, a refugee is:

Any person who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his/her nationality and is unable, or owing to such fear, is unwilling to avail himself/herself of the protection of that country.”

If it were possible to identify many of the people fleeing into Europe as refugees under the Refugees Convention and Protocol, what recognition under these international instruments should now be given to them? What protection should be afforded to them and what can, and should, be done for them as well as the large number of people who have been dubbed migrants rather than refugees?

Australia’s Position

Australia’s past response to a mass influx of people from Iraq, Iran, Afghanistan, Burma and Sri Lanka in ‘turning back the boats’ was successful. It did, however, sublimate our international convention obligations by denying many true refugees the protection to which they were entitled.

At the time, this deliberate avoidance of our international obligation was, perhaps, considered ‘justifiable’ in order to save the lives of many people, including families undertaking such a dangerous sea voyage.

Which raises the question: Is this stance a proper or permanent position for Australia to adopt? According to international or domestic law, can we lawfully (or even morally) maintain this position while still adhering to our current international refugee obligations? The jury is still out on these questions.

Is There A Solution For Europe?

Whatever the legality or morality of Australia’s policy position on refugees, this type of ‘turn back the boats’ response is simply not available to landlocked European countries which are now desperate to find a viable solution for hundreds of thousands of people arriving at their borders daily.

Short of using unpleasant or violent state measures, there is no way to physically prevent mass people movements into Europe across open EU borders.

The migrant crisis is unlikely to improve in the near future without regime change, or complete political and economic solutions emerging overnight in countries being fled.

Who Are The True Refugees?

It is impossible for anyone to say now how many of these desperate people from war torn or repressive Middle Eastern countries are genuine refugees. But does it matter what label is given to them?

For Germany, France, the UK or other affected countries, there is no way to assess such numbers of people properly under their usual refugee assessment processes. Any attempt to do so would take many years and result in significant cost to affected countries, the claimants and their families.

Even Australia faces a herculean administrative and expensive task, under well-developed refugee assessment procedures, to resolve the refugee claims of tens of thousands of boat people who arrived in Australia more than two years ago. Refugee claimants who were removed to Nauru and Papua New Guinea are also still to be resolved.

Legal Change Needed

It is clear that the idea and legal definition of who is a refugee and, therefore, entitled to protection is no longer viable in 2015.

In recent years, Australia has introduced an additional form of protection called Complementary Protection. This is an extension of protection that can be given to asylum seekers. It is used for people who were not previously recognised as a refugee under Australia’s refugee assessment process, but whom the Minister finds substantial grounds for believing that they could face a real risk of suffering significant harm if removed from Australia. This is a positive step forward but does not go far enough.

Mass movements of people across the globe in response to political, social and economic crises as well as religious persecution that is unique to the 21st century require a new and robust solution.

Conclusion

The global approach to who is entitled to refugee protection, or other forms of protection, is in pressing need of review.

It is time for the United Nation’s High Commissioner for Refugees (UNHCR), perhaps, to review the obsolete definition of who is entitled to refugee protection and what obligations are imposed on countries that have ratified the Refugees Convention and Protocol.

Most importantly, the UNHCR needs to make a strong case to the United Nations for nation states to:

• find effective and enforceable solutions to mass people movements
• strive to remove their root causes more effectively; and
• resolve to develop ways to help people in need in their home countries.

This should be a priority, regardless of whether persons seeking asylum qualify for protection under the current outdated refugee definition; or under a new definition; or simply because law and order is breaking down in their home country and remaining there is not feasible without serious threat to life.

What do you think Governments should do about mass movements of people into their countries? Is there an easy answer, or will this issue continue to be placed in the ‘too hard’ basket? Let us know what you think in the comments section below!

For Information About Refugee & Asylum Seeker Policies And Processes Visit:

• Refugee & Immigration Legal Centre (RILC)
• Refugee Council
• United Nations Human Rights Commission (UNHCR)
• Asylum Seeker Resource Centre (ASRC)
• Department of Immigration and Border Protection