Frank Brennan SJ. Still seeking a way of stopping the boats decently

Apr 17, 2015

This is part of the Gasson Lecture which I delivered at Boston College today:

I return to Australia accepting that my political leaders will always maintain a commitment to stopping the boats, no matter what political party they represent;  but I return insisting that there is a need for international co-operation to determine how decently to stop the boats while providing an increased commitment to the orderly transfer of an increased number of refugees across our border so that they might live safe and fulfilling lives contributing to the life of the nation.

This cannot be done in Australia until we shut down the processing centres on Nauru and on Manus Island, until we accept that people should only be held in detention while issues of identity, security and health are determined, and while we negotiate arrangements with Indonesia, India and any other transit countries to which asylum seekers are being returned, replicating the new European regulation:

No person shall, in contravention of the principle of non-refoulement, be disembarked in, forced to enter, conducted to or otherwise handed over to the authorities of a country where, inter alia, there is a serious risk that he or she would be subjected to the death penalty, torture, persecution or other inhuman or degrading treatment or punishment, or where his or her life or freedom would be threatened on account of his or her race, religion, nationality, sexual orientation, membership of a particular social group or political opinion, or from which there is a serious risk of an expulsion, removal or extradition to another country in contravention of the principle of non-refoulement.

It might then be possible for Australian officials to conduct prompt, reliable onboard assessments of asylum seekers on vessels determining whether it is appropriate to return them to their last port of call, without the need for an onboard international lawyer to conduct any sort of ‘framing’ exercise.  It should then be possible to avoid the recent obscene scenario of 157 persons being detained on the high seas for a month, regardless of whether or not the non-refoulement obligation applies extra-territorially.

It is time to concede that none of us has a right to enter another country and that all of us have the obligation not to return anyone presenting at our border to a situation of persecution, torture, or cruel punishment.  Though I doubt the possibility of the EU negotiating appropriate returns of asylum seekers to Libya in the foreseeable future, I continue to entertain the hope that Australia can negotiate appropriate returns to transit countries such as Indonesia for Iraqis, Afghans and Iranians and India for Tamils, so that Australia might then decently extend the hand of welcome to more of the world’s 51 million displaced persons.  For the moment, my country is failing to strike the right balance between human rights and the national interest.  It is stopping the boats indecently, violating the human dignity of those being held in unsatisfactory conditions in Papua New Guinea and on Nauru and failing to ensure appropriate safeguards are in place for the return of asylum seekers to Indonesia.  For as long as international lawyers claim there is no possibility of a legally negotiated regional agreement for safe returns because they argue that asylum seekers have a right of entry to Australia to seek asylum, the Australian government, the Australian parliament, and the Australian courts will maintain, with impunity but with the occasional expression of outrage from international lawyers, a regime of returns insufficiently scrutinized for human rights compliance.  I return to Australia accepting that the boats will continue to be stopped (no matter which political party is in power), but that they should be stopped decently and in compliance with the legal regime enunciated by the European Union which has to deal with a far more pressing issue but subject to the more searching supervision of the European Court of Human Rights and of the European Parliament which has greater sensitivity to the human rights of asylum seekers than do their more pragmatic Australian colleagues.

By all means, stop the boats.  But also close the facilities on Nauru and in Papua New Guinea.  Abandon the Cambodian shipment plan.  Negotiate a regional agreement for safe returns ensuring compliance with the non-refoulement obligation.  Double the refugee and humanitarian component from 13,750 places to 27,000 places in the migration program, as recommended by the 2012 Expert Panel.  Encourage further community participation in a refugee resettlement scheme which allows refugee communities and their supporters to increase the number of refugees resettled without taking the places of those refugees who would come anyway without community sponsorship.  Why not increase the humanitarian program to at least the 20,000 places which were guaranteed prior to the election of the Abbott Government?  And provide another 7,000 places for community sponsored refugees.  I agree with novelist Tim Winton that there is a need for countries like Australia to turn back, to ‘raise us back up to our best selves’.  That can best be done by securing our borders and increasing our commitment to orderly resettlement of more refugees, rather than by opening the borders, undermining the community’s commitment to further assisting more of those 51 million people who are suffering displacement tonight, most of them having no prospect of employing a people smuggler to get them to the border of a rich democratic country.

Fr Frank Brennan SJ is finishing his term as Gasson Professor at Boston College Law School.  Anyone wanting a copy of his full address should contact him on [email protected]




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