FRANK BRENNAN SJ. A Welcome Deal and an Acceptable Legislative Compromise

Nov 14, 2016


The Turnbull government has struck a deal with the USA which provides hope at last for the 1600 proven refugees on Manus Island and Nauru. There’s still a lot of work to be done before these refugees, including children, can get on with their lives after three years of unnecessary, hopeless agony. I welcome the government’s decision, and await the further detail.

Sunday’s announcement was packaged in the usual Canberra wrapping with lots of military brass, restating the need to smash people smuggling rings, keeping the boats stopped, and turning back boats when it is safe and legal to do so. No boats have arrived in the last 840 days. 29 boats have been turned back.

The Liberal-National Coalition government remains resolute that the boats will stay stopped. The Labor Opposition is adamant that it is now on a ‘unity ticket’ with the government, being committed to keeping the boats stopped. The majority of the Senate crossbench are of the same view. Those who maintain strong moral and legal objections to the boats being stopped need to concede that there is no political alliance in the Australian parliament which will contemplate any other option for those asylum seekers wanting to transit Indonesia and who do not face the prospect of persecution in Indonesia. Australia will always offer better processing, security and long term life prospects for asylum seekers than its neighbours like Indonesia. But there is a limit on the number of places we Australians are prepared to offer each year for permanent humanitarian resettlement in Australia. Gone are the days of presuming that those who arrive without visas are in direct flight from persecution. Gone are the days when they get first option on the available humanitarian places.

The deal is short on detail. But I welcome it for five reasons.

First, the government has admitted that these proven refugees are still Australia’s responsibility and will be until they are permanently resettled. Second, the government has abandoned the fatuous claim that the proven refugees already had a durable, credible option – permanent resettlement in Cambodia. Third, the government has admitted that despite the 2013 MOU with Nauru, Nauru had not provided resettlement for any proven refugees. Should any proven refugees choose to remain in Nauru, they will now be offered a 20 year residence visa. Fourth, the government has abandoned the claim that indefinite warehousing of proven refugees is a necessary precondition for stopping the boats and a morally justified policy for sending a message to prospective clients for people smugglers. Fifth, it provides the circuit breaker which might put an end to this excruciating saga and provide the prospect for a more moral, more affordable, more workable border protection policy enjoying broad support in the parliament.

The Turnbull government is continuing negotiations with other governments seeking places for any of the remaining 1600 proven refugees on Manus Island and Nauru who cannot satisfy the US health, security and character tests. Even if all 1600 could satisfy the US tests, there is no published guarantee that the US will take the whole cohort.

The Turnbull government has now presented the Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 to the Senate. The Labor Party is presently opposed to it. In this policy area, the perfect is the enemy of the good, and the prospect of a bipartisan approach on ‘means’, despite agreement on ‘ends’, has been slight since the Tampa affair in 2001. The Turnbull government has legitimate policy objectives. But there is a need to separate out the illegitimate, petty and amateur partisan politics in which these objectives continue to be wrapped, marketed and reported. It’s time to get rid of the wrapping and achieve parliament’s commitment to the legitimate policy objectives. This could be achieved by appropriate Senate review of this bill.

After three years and three months, the Turnbull government needs to find a credible third country option for resettlement of all proven refugees. To date, the Abbott and Turnbull governments have not succeeded in resettling any significant number of the caseload. Some human rights and refugee advocates in Australia have been saying that Australia is the only possible country for resettlement. Theoretically that can’t be right. The longer these advocates say this, the more likely that proven refugees on Manus Island and Nauru will not accept voluntary resettlement in any third country with which Australia manages to negotiate a deal. So the Turnbull government needs a failsafe legal means which enjoys parliamentary support for ensuring that proven refugees on Manus Island and Nauru will not have an option of declining all other offers in the hope of being resettled in Australia. A law removing the possibility of permanent resettlement in Australia would achieve this.

The government also needs to be able to ensure that proven refugees resettled in a credible third country will not then have the option of applying to settle permanently in Australia. The government needs this in order to send the message that anyone coming by boat from Indonesia and who is not in direct flight from persecution in Indonesia will not be able to be permanently resettled in Australia. This objective could also be achieved by legislation.

But the Senate should do what it can to avoid the partisan politics which has arisen by the government’s addition of unnecessary provisions to this bill. The government has provided no coherent explanation for wanting to legislate a ban on temporary entrance visas ad infinitum for persons permanently resettled in a third country.

If only the Parliament could agree on means as well as ends. Senators could do this if the bill were restricted to precluding permanent resettlement in Australia for those who travel to Australia without a visa, not in direct flight from persecution in Indonesia, and who can be resettled elsewhere.

An acceptable legislative package would be one that:

  • Precluded permanent resettlement in Australia for IMAs (irregular maritime arrivals) resettled in a third country
  • Left unaffected the liberty of citizens and permanent residents of other countries to apply for temporary entry permits to Australia, regardless of their past status as IMAs
  • Allowed ministerial discretion to permit permanent resettlement in Australia. This discretion could be exercised with bipartisan support (after an undeclared but agreed date) for any remaining warehoused refugees on Manus Island and Nauru who could not be resettled elsewhere despite the government’s best efforts.

The best political outcome would be legislation which reflects a strong commitment to third country resettlement for those on Nauru and Manus Island, with Senators agreeing that there would be a need to resettle any remaining refugees in Australia.

I have been hugely and publicly critical of the Abbott and Turnbull governments for the continued warehousing of these refugees. I have also been hugely and publicly critical of the Shorten opposition for failing to get behind the proposal to put a time limit on resettlement and to allow resettlement in Australia should other credible options fail. Thus I consider it appropriate to endorse the Turnbull US deal and those parts of the bill before the Senate which would facilitate credible and durable resettlement in third countries like the USA, while criticising those unnecessary aspects of the bill which are punitive, symbolic and ultimately unworkable.

I remain convinced that an amended bill in the Senate which does not include a ban on temporary entry visas for permanent residents of other countries (regardless of their previous IMA status) but which does place a ban on permanent resettlement in Australia could be just the thing to draw a line on this whole saga, winning broad parliamentary support, allowing the country to move forward, and causing minimal if any risk to the border protection policies in place.  But I appreciate Canberra politics often does not work that way. For once, I think Messrs Turnbull and Shorten need to make a joint concession so that the parliament can be united in stopping the boats and in finding a humane solution for the 1600 proven refugees on Nauru and Manus Island who remain our responsibility and who we have damaged wantonly and needlessly for these last three years and three months. They should agree to take all steps necessary to resettle these 1600 persons in credible resettlement countries. If they cannot achieve this within a reasonable time, they should agree to the resettlement of the residual cohort in Australia, while jointly endorsing the military and intelligence efforts to keep the boats stopped.

This article first appeared in Eureka Street on 14 November 2016.

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