Pearls and Irritations

In his message for this year’s World Day of Migrants and Refugees which is entitled ‘Building the future with migrants and refugees’, Pope Francis says: ‘No one must be excluded. God’s plan is essentially inclusive and gives priority to those living on the existential peripheries. Among them are many migrants and refugees, displaced persons, and victims of trafficking. The Kingdom of God is to be built with them, for without them it would not be the Kingdom that God wants. The inclusion of those most vulnerable is the necessary condition for full citizenship in God’s Kingdom.

There is no way that we Australians can accommodate all refugees, displaced persons, victims of trafficking and those who would like to be migrants to a wealthy, secure country like Australia. No matter who is in government, we will always fail the universal, borderless test put by Pope Francis. But we Australians need to admit that in recent years, our policies in relation to asylum seekers and refugees have been unnecessarily mean, cruel and disorganised. The election of the Albanese government provides the opportunity for a reset, putting behind us the past mistakes of both Coalition and Labor Governments in the last 20 years.

As part of the attempted reset, the Albanese government sent two distinct signals on refugee and asylum policy within a month of the May election. First, on 20 June 2022, the Nadesalingam family including their daughters Kopika, aged 7, and Tharnicaa, aged 5, were released from detention, issued with bridging visas and allowed to return to Biloela in Queensland, the community which had long accepted them. The Nadesalingam family were asylum seekers from Sri Lanka who had been taken into detention by the previous government when their asylum claims had been rejected. It was while the parents were resident in Australia that their younger daughter was born. In August, the government announced that the family would be granted permanent residence in Australia.

Second, at the very same time, the new Minister for Home Affairs, Claire O’Neil flew to Sri Lanka and gave high profile interviews surrounded by Sri Lankan and Australian military officials. She announced:

I have a very simple message: Australia’s border protection policies have not changed.

If you attempt to reach Australia by boat, you will be intercepted, you will be turned around, and you will end up back in Sri Lanka, far worse off than when you embarked.

The only way to enter Australia legally, is with a valid visa.

People smugglers sell lies, don’t buy into it.

You will end up back in Sri Lanka.

We will detect, intercept and return anyone who undertakes an illegal boat journey to Australia.

These two signals constitute the key message of the new government in relation to asylum seekers who seek access to Australia without authorisation. The Australian government will continue to do all in its power to stop the boats, while at the same time attempting to deal more decently with the residual caseload of applicants who made it to Australia without authorisation, hoping that any magnet effect of more decent treatment of this residual caseload will not induce future aspirants to attempt to break through the ring of steel around the Australian borders. Those of us who want more decent treatment of this residual caseload need to accept that governments of both political persuasions will remain committed to stopping the boats, and doing whatever it takes to keep the boats stopped. But our acceptance should be conditional on government being able to assure the Parliament that any turnbacks are effective, lawful and safe.

Australia’s refugee and asylum policy in relation to boat people has been a contested mess since the Tampa affair in 2001. No matter which party has been in power these last two decades, the government of the day has remained committed to an orderly migration program and secure borders. The disagreement has been over how to treat those asylum seekers trying to gain access to Australia without prior authorisation and then how to treat those who succeed in gaining unauthorised access.

‘Australia was a great supporter of the Comprehensive Plan of Action which set up regional processing centres for Vietnamese boat people. Australian officials came to those camps and chose which refugees would be provided with permanent settlement in Australia. The lucky ones who were chosen were then flown to Australia and provided with a suite of settlement services. Both sides of politics were adamant that they did not want unsolicited boatloads of asylum seekers turning up in Darwin Harbour.’

When the first boatloads of unauthorised asylum seekers started arriving after the Vietnam war in 1976, both sides of politics expressed a strong preference for Australian government officials determining ahead of time which asylum seekers would be granted residence in Australia. Australia was a great supporter of the Comprehensive Plan of Action which set up regional processing centres for Vietnamese boat people. Australian officials came to those camps and chose which refugees would be provided with permanent settlement in Australia. The lucky ones who were chosen were then flown to Australia and provided with a suite of settlement services. Both sides of politics were adamant that they did not want unsolicited boatloads of asylum seekers turning up in Darwin Harbour.

When Cambodian boat people started arriving in 1990, putting at risk the Cambodian peace process in which Bob Hawke and Gareth Evans had invested so much, the then Labor government set up the first detention camps for boat arrivals, with Bob Hawke telling us:

‘Do not let any people, or any group of people in the world think that because Australia has that proud record, that all they’ve gotta do is to break the rules, jump the queue, lob here, and Bob’s your uncle. Bob is not your uncle on this issue, other than in accordance with the appropriate rules. We will continue to be one of the most humanitarian countries in the world. But it’s not an open door policy.’

During the Tampa showdown in 2001, John Howard as Prime Minister told Parliament: ‘Australia has sought on all occasions to balance against the undoubted right of this country to decide who comes here and in what circumstances, a right that any other sovereign nation has, our humanitarian obligations as a warm-hearted, decent international citizen.’

Many of the asylum seekers who came on boats after 2001 came from faraway countries such as Afghanistan, Iraq and Iran, many of them having stayed for long periods of time in countries like Pakistan. They were not in direct flight from conflicts in our region in the same way as were the Vietnamese and Cambodians who constituted the earlier waves of boat people.

The Howard government was very punitive in its approach to unauthorised boat arrivals, arguing that this was the only way to maintain secure borders and an orderly migration program. After publishing a book Tampering with Asylum, I held regular meetings with Philip Ruddock, the Minister for Immigration, and with officials in his department. One of the most competent officials was Peter Hughes who one day put to me the predicament. There will always be millions of refugees and asylum seekers in the world. Their persecution by their home governments will rarely occur in countries close to Australia. But wherever there is civil war or great disturbances, there will be refugee flows to all corners of the globe, with asylum seekers engaged in secondary movement from countries like Indonesia, seeking more benign migration outcomes in countries like Australia. Australia might be able to offer permanent settlement to some tens of thousands of proven refugees each year, but there will not be community acceptance of hundreds of thousands arriving by sea. Peter Hughes put to me the blunt questions: ‘Who should have the franchise on those treasured places? Who should set the annual quota and decide where it is allocated? The duly elected Australian government or the people smugglers in Java?’

When Kevin Rudd was elected prime minister in 2007, his government enacted laws and policies which undid some of the key punitive measures which had been put in place by the Howard government. I was one of the advocates who applauded this initiative. The boats started coming again.

The steadily increasing flow of asylum seeker boats was one of the key challenges facing Julia Gillard when she replaced Kevin Rudd as Prime Minister.

Peter Hughes remained at his post in the Immigration Department advising the new government on how they might arrest the flow of unauthorised boat people. Turnbacks at that stage were not an option and both arrivals and detention caseloads were growing in Australia. He was one of the key bureaucratic architects of Julia Gillard’s Malaysia Arrangement. The Arrangement envisaged a refugee ‘swap’ so that those setting out on boats from Indonesia would be returned to Malaysia, through which most had transited at that time, while Australia accepted a larger number of the refugee resettlement caseload that existed in Malaysia.

Asylum seekers sent to Malaysia were to be allowed to remain in the community there while the United Nations High Commissioner for Refugees determined their future. It was thought that this ‘swap’ would provide a disincentive for desperate asylum seekers in Indonesia paying big money to people smugglers, only to have the purchasers ending up in Malaysia rather than Australia. The proposal ran into problems both in the Senate and in the High Court. Boats continued arriving.

Following the Malaysia arrangement being blocked, Prime Minister Gillard set up an Expert Panel on Asylum Seekers to find a new pathway forward. The panel was chaired by Air Chief Marshal Angus Houston who had been Chief of the Australian Defence Force from 2005-2011. In one of its recommendations, the panel noted ‘that the conditions necessary for effective, lawful and safe turn back of irregular vessels carrying asylum seekers to Australia are not currently met, but this situation could change in the future, in particular if appropriate regional and bilateral arrangements are in place.’ The panel was careful to spell out the preconditions for turnbacks:

• The State to which the vessel is to be returned would need to consent to such a return.
• Turning around a vessel outside Australia’s territorial sea or contiguous zone (that is, in international waters) or ‘steaming’ a vessel intercepted and turned around in Australia’s territorial sea or contiguous zone back through international waters could only be done under international law with the approval of the State in which the vessel is registered (the ‘flag State’).
• A decision to turn around a vessel would need to be made in accordance with Australian domestic law and international law, including non-refoulement obligations, and consider any legal responsibility Australia or operational personnel would have for the consequences to the individuals on board any vessel that was to be turned around.
• Turning around the vessel would also need to be conducted consistently with Australia’s obligations under the SOLAS Convention (International Convention for Safety of Life at Sea), particularly in relation to those on board the vessel, mindful also of the safety of those Australian officials or Australian Defence Force (ADF) personnel involved in any such operation.

By July 2013, as the game of prime ministerial musical chairs continued, Kevin Rudd replaced Gillard as prime minister in preparation for the next federal election. The Opposition Leader Tony Abbott, aided by his shadow minister for Immigration, Scott Morrison, played hard ball, announcing new punitive measures which they would introduce to stop the boats. The central plank of Abbott’s policy was boat turnbacks. No explanation was offered as to how turnbacks could be rendered safe, effective and legal. Kevin Rudd matched Abbott, in what was a race to the bottom of punitive inhumane solutions. Having announced his own Pacific Solution on 19 July 2013 with full page advertisements simply stating, ‘If you come by boat without a visa you won’t be settled in Australia’, Rudd appeared on the Today show with Lisa Wilkinson saying the issue was deaths at sea and the increasing numbers which were swamping the humanitarian migration category. He put out this challenge, presumably to the Churches, as well as all the other do-gooders in the community:

‘I think you heard a people smuggler interviewed by a media outlet the other day say that this was a fundamental assault on their business model. Well, that’s a pretty gruesome way for him to put that, but the bottom line is this, I challenge anyone else looking at this policy challenge for Australia to deliver a credible alternative policy.’

This wasn’t John Howard; this was Kevin Rudd. He was putting to the public what Peter Hughes had put to me some years earlier. Rudd was out to smash the people smugglers’ franchise on entry to Australia. In the lead up to that 2013 election, all major political parties were committed to stopping the boats heading for Christmas Island. They were prepared to do whatever it takes — or almost. Being in election mode, they were not willing to embrace each other’s options. Each thought there was still electoral advantage in avoiding bipartisan support for the means even though they were in furious agreement about the end to be achieved.

On 5 August 2013, Doug Cameron from the Labor Left appeared on the ABC Q&A. Cameron had been one of Labor’s strongest critics of John Howard’s Pacific Solution set up after the Tampa. He tried to distinguish Howard’s 2001 dilemma from Rudd’s 2013 dilemma claiming that ‘John Howard was operating in a completely different atmosphere, a completely different situation’. According to Cameron, ‘The situation at the time was conducive to making sure boats stop. That’s the international situation. It is changed. You have got international people smugglers. They are all over the world now putting people through in Australia and that’s the big problem and we’ve got to try and deal with it.’ John Howard’s ex-chief of staff Grahame Morris was on the panel. He retorted: ‘I used to think that Doug was roughly where the heart and soul of the Labor Party was but what he just said is essentially what John Howard would say and you wonder where is the heart and the soul of the Labor Party now?’ Morris was right. There was now not even a sliver of light between Howard’s 2001 position and Rudd’s 2013 position. If anything, Rudd’s position was more unyielding because he had vowed that no one on any of these boats would ever be able to settle in Australia.

When elected in September 2013, Abbott enacted Operation Sovereign Borders which was aimed at disrupting people smugglers in source countries such as Indonesia, Sri Lanka and Vietnam, and turning back boats which were headed for Australia. As a result boat arrivals fell dramatically to 5 boats per month when Operation Sovereign Borders commenced. ( Boat arrivals were running at 42 per month before Kevin Rudd advised that, in future, arrivals coming by boat would never be resettled in Australia). The job was almost done. The Abbott government maintained Rudd’s commitment that any asylum seekers taken to Nauru or PNG for offshore processing would never be allowed to resettle in Australia even if they were proved to be refugees. The Abbott government enacted laws ensuring that unauthorised boat arrivals would never be granted permanent residence in Australia, at best being able to have a three-year renewable temporary visa which precluded all possibility of family reunion.

Between August 2016 and February 2019, I joined John Menadue, Robert Manne and Tim Costello in the publication of five opinion pieces* urging the acceptance of effective, lawful and safe boat turnbacks, trying to move the focus to decent treatment of those being held in long term detention on Nauru and Manus Island and of the increasing numbers being held on the Australian mainland in a limbo situation. This ‘legacy caseload’ of more than 30,000 persons, even if no longer in detention, were eking out an existence without work rights or access to adequate health and welfare services. The community was growing more concerned about these people who often were on a road to nowhere. Meanwhile, by November 2021, members of this residual caseload had given birth to over 2,000 babies who, like Tharnicaa Nadesalingam, were deemed not to be Australians. These were children growing up without the basics of life who were being treated in a most unAustralian way.

A year before his death, my own father who had been Chief Justice of Australia, highlighted the moral horror of our treatment of these children when he wrote Letter to the editor of the Sydney Morning Herald:

Are other Australians ashamed, as I am? How can Australia, proud of our freedoms, respectful of all our peoples, and insistent on human dignity, inflict cruelty on Australian children as a means of achieving a goal of government policy? The cruelty suffered by Tharnicaa – Australian-born and now in a Perth hospital – is not an unintended consequence of a general policy; it is cruelty inflicted on a child deliberately as a warning to others not to come to Australia by boat without a visa. Tharnicaa has committed no offence; she presents no danger. Cruelty is being inflicted upon her to punish her parents who came by boat without a visa and thus to discourage others from breaching one of our immigration policies.

If we want to enforce a policy to stop people smuggling, we must do so by action taken against the people smugglers or the people being smuggled. It is a hard policy to implement, but if action is ineffective to prevent potential parents from settling in Australia, and the parents do settle and have children here, it is unconscionable to impose deliberate cruelty on those children to rectify the earlier failure to exclude the parents.

The family had settled in the small central Queensland town of Biloela which had welcomed and valued Tharnicaa and Kopika. It would be a cruelty obnoxious to Australian values to deprive those children of their parents and it is cruelty obnoxious to Australian values to isolate them with their parents to discourage future people smugglers. Basic and important Australian values are at stake. They must not be discarded by a show of heartlessness towards Australian children.

After the recent election, Michael Pezzullo, the long-time Secretary of the Department of Home Affairs, provided the new government with a report telling us more about Operation Sovereign Borders than we have been told in the past. Explaining what had occurred on election day 21 May 2022 when the Morrison government in desperation released details about the interception of an asylum boat on the high seas, Pezzullo reported: ‘The Joint Agency Taskforce of Operation Sovereign Borders was established on 18 September 2013 as a whole-of-government enterprise to combat maritime people smuggling. JATF OSB’s mission is to protect the integrity of the Australian border and prevent loss of life at sea by denying an irregular pathway to settlement in Australia and deterring vulnerable people from attempting dangerous maritime ventures. To achieve this mission, OSB is led by a two-star military Commander who coordinates the efforts of 16 contributing government agencies to ensure the delivery of six core effects — deterrence, disruption, detection, interception, return and resettlement.’

There was no election commitment and there is no desire by the Albanese government to undo Operation Sovereign Borders. I accept that Operation Sovereign Borders will remain in place, but continue to insist that there be some transparent parliamentary process to ensure that turnbacks are effective, lawful and safe.

Our focus now needs to turn to pressuring the new Albanese government to enhance and quicken the decency of treatment for the legacy caseload and those still being held offshore. There is much to be done. Peter Hughes, having retired from the public service, has been free to speak his mind publicly of late. Before the election he wrote: ‘The resulting legacy of the Abbott/Turnbull/Morrison Coalition government is a degraded immigration administration, a policy vacuum, unprecedented case processing backlogs and the unresolved status of thousands of maritime asylum seekers who arrived nearly a decade ago.’ Accepting the political reality of turnbacks, he wrote: ‘The sad political history of maritime asylum seeker policy in Australia means that Labor will have no real political choice but to turn around any new asylum seeker boats to Indonesia and to contemplate recourse to offshore processing centres as a last resort.’

‘Australia is a nation founded on migration but we reached the stage under the last government where there were more than 200,000 applications for citizenship waiting to be processed. Political decisions and bureaucratic bungling resulted in too many needy people having to put their lives on hold.’

Sensing that there would be a change of government and appealing to our better nature, Hughes said, ‘A starting point would be to finally resolve the cases of tens of thousands genuine asylum seekers/refugees now stuck in limbo in Australia for many years. People in long-term immigration detention should have their cases urgently reviewed with a view to releasing them into the community under appropriate conditions so that their long-term future can be resolved there. Generally speaking, immigration detention should only be used as a last resort.’

We should remember that the majority of the 30,000 people who constitute the ‘legacy caseload’ in Australia, are unlike the Nadesalingam family, proven refugees. They are therefore even more deserving of permanent and prompt resettlement.

In his speech ‘The Administration of Australian Immigration’, at Sydney Policy Lab, in August this year, Andrew Giles, the new Minister for Immigration Citizenship and Multicultural Affairs, pointed out that almost 1 million visa applications were waiting for processing when the new government came to office. He pointed out that typically in the past there would be 40-80,000 people living in a holding pattern on bridging visas at any one time, but that presently there are over 330,000 people living on bridging visas. Australia is a nation founded on migration but we reached the stage under the last government where there were more than 200,000 applications for citizenship waiting to be processed. Political decisions and bureaucratic bungling resulted in too many needy people having to put their lives on hold.

With the election of a number of Teal candidates to the Australian parliament, it has at long last been possible to have a respectful debate about the topic of immigration detention in the Australian parliament. Zali Steggall, the Teal member for Warringah, raised a Matter of Public Importance (MPI) in the House of Representatives on 3rd August, highlighting that there are still many refugees who have ‘entered their tenth year in detention in Nauru and Papua New Guinea’. Mr Giles welcomed the debate saying, ‘I am determined to change the tone of debate on these issues. It is probably the case that we’re not always going to agree about every aspect of this very challenging area of public policy making, but I am determined that no more… will vulnerable human beings be used as political footballs in this place or more broadly in the political debate in Australia. It has been coarsened for too long. That must end.’

It would be naive to think that the new government and the Teals will agree on all aspects of policy. After all, the new Labor government is committed to keeping the boats stopped. On her trip to Sri Lanka, Clare O’Neil spoke of her committed resolve to continue working with the Sri Lankan government ‘to thwart people smugglers and to prevent the loss of life and risk to livelihoods of innocent people’. The Albanese government, like the Morrison government, will take whatever action it can to stop people smuggling operations or unauthorised boat journeys by asylum seekers setting sail from Sri Lanka or Indonesia. Mr Giles says he will not walk away from the tough political choices but he has repeated Prime Minister Albanese’s claim that ‘we can maintain strong borders without abandoning our humanity’, adding that ‘we can only maintain strong borders if we elevate our compassion and humanity’.

In this recent MPI debate, Matt Thistlethwaite, the Assistant Minister for Defence, told parliament that to ensure success, ‘it’s important that people come through the government program.’ ‘In the past some people have sought to arrive outside the resettlement program.’ He pointed out: ‘A tough policy was put in place in Operation Sovereign Borders. It’s supported by this government and it will remain in place because it has worked.’

‘The moral dividend has to include decent treatment of all asylum seekers in our midst (whether they be the few arriving by boat or the many arriving by plane) and a more generous migration program for those suffering in the most war torn parts of our world.’

Jacinta Collins is now the Executive Director of the National Catholic Education Commission. On the eve of the 2019 election, she retired from Parliament telling the Senate: ‘Australians do not want to see refugees languishing forever. While we all endorse the policy objective of deterrence, it is abhorrent to use people’s lives to achieve such a goal. I regret that officials did not alert Labor when we were in government that boat interceptions or turnbacks could safely occur. Much of what followed might not subsequently have occurred.’

While safe boat turnbacks and interceptions are to remain in place, we Australians living safe and secure on our continent need to do more to provide pathways to peace, security and prosperity to more of those who are desperate simply to have the opportunities in life that we take for granted. Providing permanent visas to all proven refugees living amongst us is a good start. Increasing our permanent migration places this year from 160,000 to 195,000 is a welcome development. Doing all we can promptly to empty the facilities on Nauru and Papua New Guinea is essential. Detaining asylum seekers only for a limited time and only for health, security and identity checks is long overdue.

We should do all we can to hold the Albanese government to their election commitments to abolish temporary protection visas, thereby providing a permanent pathway for all refugees in our midst. Minister Giles was right when he told the Migration Institute of Australia this month: ‘Keeping migrants “permanently temporary” is corrosive to some of the most important principles of Australian society.’ He went on to say:

‘There is little to no deterrent value in making people simply renew a visa every 3 to 5 years, especially when many have been here for over a decade. Temporary protection visas do everything to undermine a fair go. They are a unique form of cruelty — creating endless limbo for people owed our protection, and who having been working, paying taxes, starting businesses, and building their lives in our communities for a decade.’

Now is a time for rebuilding our migration program ensuring that those refugees who reach our shores (whether by plane or boat, whether on a visa or without) are treated decently and provided with a permanent pathway for building a new life whether in Australia or another country free from persecution. Labor went to the election with these commitments:

• Labor will meet its obligations to the maritime principle of safety of life at sea which requires a response to assist in the rescue at sea of vessels in distress.
• Labor will ensure asylum seekers who arrive by irregular means will not be punished for their mode of arrival.
• Unauthorised arrivals who enter for the purpose of seeking asylum will be mandatorily detained, for management of health, identity and security risks to the community. Labor will strive to ensure this is for no longer than 90 days.
• Labor aspires to progressively increase Australia’s government funded humanitarian intake to 27,000 places per year.
• Labor aspires to progressively increase the community sponsored refugee program intake to 5,000 places per year.
• Labor will abolish Temporary Protection Visas and Safe Haven Enterprise Visas and transition eligible refugees onto permanent visa arrangements.
• Labor will reintroduce the 90 day rule into the Migration Act.

Reporting on the ‘90 day rule’, which requires that refugee status determinations are concluded within 90 days from the time of application, has been an important accountability measure in ensuring the Government operates in a timely way in assessing protection applications.

We must hold the Albanese government to these commitments and aspirations and insist on a parliamentary process for ensuring that all that is done under Operation Sovereign Borders is safe, effective and legal. The outcomes won’t be perfect; and we still won’t get full marks from Pope Francis. The Teals and other crossbenchers will still advocate for further improvements in our policy, as they should and as they pledged to their electors. But meanwhile, we do have a better opportunity for a bipartisan reset on refugee and asylum policy than we have had since Tampa. Keeping the boats stopped as far as possible is part of that reset, ensuring the security of our borders and the integrity of our migration program. The moral dividend has to include decent treatment of all asylum seekers in our midst (whether they be the few arriving by boat or the many arriving by plane) and a more generous migration program for those suffering in the most war torn parts of our world. Hopefully it will also include the permanent closure of facilities on Nauru and Manus Island.

People of goodwill in Australia will welcome these changes as reflecting our better selves.

 

*You may also wish to read the five opinion pieces published in Pearls and Irritations:

1. A solution on our refugee crisis – 12 August 2016
2. We can stop the boats and also act decently -14 February 2017
3. Stopping Boats and Saving Lives Four Years On – 26 July 2017
4. Turnbull and Shorten need to accept that the Manus Island agreement is a failure – 3 November 2017
5. Boat Turnbacks and Medical Transfers – 15 February 2019

 

Original article published in Eureka Street.