Regarding Rights

Academic and activist perspectives on human rights

The Politics of Australian Asylum and Border Policy: Escaping the Duelling Paradigms

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By Jonathan Kent, University of Toronto

The Abbott government’s Operation Sovereign Borders policy appears to have stopped irregular maritime arrivals to Australia. In the first six months of 2013 (under Labor), 13,108 individuals arrived by boat, while during the first half of 2014 (under the Abbott Coalition Government) there were no boat arrivals.

The Government justifies its tough border policy using the humane and noble logic that it prevents people from dying at sea and puts an end to the exploitation of desperate souls by people smugglers. Whatever the figures on arrivals are, it is far more difficult to estimate the number of individuals who no longer have a viable pathway to a ‘durable solution’ now that Australia has shut the door. Though the current policy meets its most practical objective of ‘stopping the boats’, it is neither a stable nor a viable longterm policy.

To demonstrate why not, in what follows I briefly review the last 15 years of Australian asylum and border policy. I argue that any policy that strongly pursues unilateral deterrence without concern for protection issues or human rights will encounter a legitimacy crisis. The inverse of this assertion is, however, also problematic. Any policy based on human rights alone will run into a sustainability crisis. Both policy options are unstable and dangerous.

Consistency in Australian policy on the issue of boat arrivals has been evasive since 2001. The last four Australian federal elections have led to reformulations of the country’s asylum and border policies. John Howard, Kevin Rudd, Julia Gillard, and now Tony Abbott have each deployed a different asylum and border policy from their predecessor. The task of developing a long-term policy on the matter is certainly daunting. One would be hard-pressed to identify an issue more closely identified with the intersection of human rights and state sovereignty than mixed or irregular migration. How do we know if these arrivals are refugees in need of protection or economic migrants? Deciphering the difference between these two categories (the ‘asylum-migration nexus’) is perhaps ‘the dilemma’ facing immigration departments in developed liberal democracies today.

A brief look at the statistics underscores the magnitude of the challenge. Earlier this year, the UN cited the number of forcibly displaced people at more than 51 million, the highest number in the post-World War II period. On the migration side, a 2009 Gallup poll found that an estimated 700 million people would migrate permanently if they could, and that Australia was one of the countries considered most desirable as a migration destination. For a variety of reasons, many migrants and refugees have entered the same irregular channels of movement: crossing borders without permission, employing people smugglers, and falling victim to traffickers. The implementation of strong national border controls is simultaneously the cause and consequence of irregular migration. Given continuing conflicts and state fragility in the Middle East, Horn of Africa, and South Asia, it is hard to imagine this challenge going away anytime soon. Boat arrivals to Australia are just one manifestation of this larger trend. So how have previous Australian governments responded?

Case number one: John Howard’s Pacific Solution. After the Tampa affair and the looming shadow of the 9/11 attacks, John Howard made his famous pledge to determine who could come to Australia and the circumstances in which they would come, sweeping him to popularity and re-election in 2001. This was the first time the issue had been captured by politics to such an extent. Howard’s pledge was embodied in the ‘Pacific Solution’, which was supported by Labor and involved offshore processing in Papua New Guinea and Nauru, excision of territory from Australia’s migration zone, and boat turn-backs. The Pacific Solution generated a storm of controversy from international lawyers and the UN. Yet the operational goal of “stopping the boats” appeared to work. From 1999 to 2001 over 11,000 people arrived to Australia by boat, whereas from 2002 to 2008 that number was fewer than 300 for the entire period. So why change something that was so popular and seemed to work?

To begin with, the policy deterred asylum seekers from travelling to Australia and thus largely removed the issue from the public spotlight. As the issue dropped out of mainstream politics, however, international lawyers, activists, and the UN continued their pleas for a generous onshore asylum policy. Divisions also arose within the Coalition over the Pacific Solution. In 2006, several Coalition members crossed the floor of Parliament regarding a proposed legislative amendment that would have toughened the Pacific Solution further. Regional neighbors criticized Australia’s approach while other Western liberal governments facing similar asylum challenges kept their distance. So despite being praised by the UN as a generous third country of resettlement, Australia developed a reputation for inhumane border and asylum policies.

Howard’s harsh policy certainly warranted criticism from a human rights perspective. It involved the potential refoulement of refugees, continued detention of individuals recognised as refugees under the UN Convention Relating to the Status of Refugees, and most problematic, dramatic impacts on individuals held in Immigration Detention Centres (IDCs) including on Nauru and Manus Island. Evidence pointed to severe depression, self-harm, and violence among detainees, some of whom were held in IDCs for up to seven years. These impacts nevertheless sent a strong deterrence message to would-be smugglers and asylum seekers. So without being too glib, the policy became a victim of its own success. Asylum seekers were no longer arriving and the issue had receded from mainstream political discourse, but the more successful Australia was in stopping the boats, the more difficultly the Government had justifying its draconian policy.

Case number two: Kevin Rudd’s ‘good Samaritan’ policy. During the 2007 Australian election, the issue of boat arrivals remained on the periphery. But perhaps recognising popular opinion, Labor’s leader Kevin Rudd did not diverge significantly from his predecessor. Once elected, however, Mr. Rudd’s political ideology of drawing closer to the UN and his stated concern for ‘strangers in our midst’ described in his Bonhoeffer essay, paved the way for a quiet dismantling of the major planks of the Pacific Solution. This remarkable restoration of a 1990s style asylum policy was praised by the UNHCR  and NGOs, but some commentators queried whether the new policy was genuinely sustainable.

It was not long before the boats began arriving to Australia again. In 2009 and 2010 over 9,000 asylum seekers reached the country. To be fair, developments in the Middle East and South Asia had something to do with the rise in the number of asylum seekers. The increased flow of asylum seekers to Australia paralleled an increase in asylum claims in most OECD countries during the same period. In a region with very few states recognising refugees, low state capacity, and economic development, Rudd’s generous approach made Australia a desirable destination once again. So in migration policy jargon, it was the unique combination of push and pull factors that caused the resurgence of boat arrivals to Australia.

As more boats arrived, the issue entered the realm of public and political debate. After an unusual leadership change in 2010, Labor’s newly elected leader, Julia Gillard, addressed the issue with a regional plan to deter irregular arrivals while maintaining some of the generosity of Rudd’s policy. But once again, the politicisation of the issue succeeded in fracturing any emerging compromise. Gillard’s proposed East Timor Assessment Centre could have established a consistent procedure for processing asylum seekers with the assistance of the UNHCR, but little to no diplomatic capital had been generated with that country prior to the announcement and it was eventually rejected. Subsequently, Labor’s signature policy, the Malaysia Arrangement, was overturned by the courts and then by Parliament as the Gillard Government tried to modify the legislation. In the meantime, Australia received an unprecedented number of asylum seekers by boat: over 34,000 between 2011 and June 2013. The only remaining piece of Gillard’s approach is the Regional Protection Framework (later called the Regional Cooperation Framework) welcomed by Australia’s international partners through the Bali Process.

Asylum policy in Australia has now come full circle with the Abbott Government’s reintroduction of off-shore detention and other deterrence policies reminiscent of the Howard era. The tension between the sustainability of a humane policy and the legitimacy of a unilateral deterrence regime remains, however. So how will Australian asylum and border policy play out in the future? In the worst-case scenario, Australia will repeat the policy cycle of the last 15 years, with slight variations. There are already signs of this. The current policy has succeeded in ‘stopping the boats’ and removing the issue from mainstream politics, but it is running into serious legitimacy concerns.

In August 2014, Immigration Minister Scott Morrison announced the transfer of 150 children from offshore detention to the mainland. This may make it more difficult to continue defending the detention of the 300 or so children who remain on Nauru and Christmas Island. In early September, Morrison also announced the ‘winding down’ of the IDC on Manus Island, although he re-stated the Government’s commitment to detention on Nauru and is also pursuing a policy of transferring recognised refugees to Cambodia. Despair and self-harm among detainees were cited as reasons for winding down the Manus Island IDC, along with the successful return of many asylum seekers to their home countries.

The Coalition’s policy has been consistently criticised by human rights advocates, left of centre politicians, UNHCR, UN Human Rights Council, and even Indonesia. If the consensus on the current policy (including the contentious Cambodia proposal) continues to weaken and boat arrivals no longer present a problem, it is not out of the realms of possibility that a future Labor government will once again dismantle those aspects of the policy directed at deterrence.

The problem with doing so is that while people will be saved from the despair and trauma associated with detention and the refusal of access to permanent protection in Australia, they will also be encouraged to risk their lives by seeking asylum in Australia. Critics of harsh border policies often fail to engage with the issue of the almost 1,500 people who have, since 2000, been lost at sea while trying to reach Australia. The pro-rights camp needs to acknowledge that a generous onshore asylum system can encourage people smuggling and lead to further tragedies at sea. One need only look at the recent actions of smugglers in the Mediterranean for evidence of this.

After observing the last 15 years of Australian asylum and border policy, I cannot help but be reminded of the famous economic sociologist Karl Polanyi. In his book, The Great Transformation, Polanyi described the rise and fall of the market economy in the 19th and early 20th centuries that cycled between liberal and conservative forces. Polanyi asserted that any initiative to deregulate the economy inevitably leads to problematic externalities causing society to reassert itself against the liberalizing forces that attempt to commodify land, labor, and money. Polanyi called this process the ‘double movement’, and the unsettling concern stemming from the work is that this cycle tends to repeat itself in different incarnations.

So how should Australian asylum and border policy move forward? The only sensible way to pursue a sustainable and legitimate policy is to work towards the middle. This is the opinion of most bureaucracies and Intergovernmental agencies that deal with the issue on a daily basis. And if the argument above is correct, a compromise (or in Polanyian terms, ‘embedded liberalism’) is the best option. A good place to start might be to revisit the regional proposal of the Gillard government from 2010 to 2012. While the approach was not successful the first time around, it may be possible to implement more effectively now that the boats have stopped and the issue is no longer a central concern of mainstream politics.

Regionalising the boats issue – not through bilateral agreements such as the Coalition’s Cambodia proposal, but through genuine multilateral engagement – will not only allow for a more nuanced asylum and border policy to emerge but may also keep it from the realm of highly politicised and publically divisive debate. It is often said that public opinion generally defers to elected representatives when it comes to foreign policy issues. But when and how the Australian Government will turn unilateral border control into intelligently designed foreign policy is much less certain.







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