How would you characterise Australia's national dialogue on asylum seekers? Is it an open and honest discussion directed towards achieving a principled and decent outcome or is it instead an exercise in denial and point-scoring?
I would think that most of us would want the former but admit that we're instead getting the latter from our political leaders and some elements of the media.
At some point denial becomes unsustainable because the weight of contrary evidence is too great to ignore. Similarly, point-scoring becomes irrelevant, particularly in a situation where it won't change the outcome of the next election. That more or less summarises the present situation.
No matter what Prime Minister Julia Gillard or Chris Bowen say or do, no matter which foot Cory Bernardi decides to place in his mouth, Tony Abbott will still win the next election. And the boats will keep coming.
It would take something spectacular, well beyond Keating's 'true believer's' election win in 1993, for Julia Gillard to defeat Tony Abbott. Even if that miracle did happen the boats would still keep coming.
Yet, a lot of our political rhetoric and policy action centers on stopping boats. As a proposed solution to a serious problem it is an exercise in denial.
The boats will still keep coming because (i) people are fleeing tyrants and their henchmen who are committing crimes with impunity and (ii) some people are fleeing the broken refugee system. It is the last part that is troubling. The official refugee system which could mean that people will stay in refugee camps for over a decade before getting accepted somewhere is clearly unacceptable to most people. The fact that some 'safe' countries don't offer refugees the option of citizenship is also problematic.
There is no simple solution to this problem. There are about 14 million refugees in the world. The safe countries that lie between the asylum seekers and Australia cannot be asked to accept or house all of them. It would be grossly inequitable for developed nations to ask developing countries to shoulder the lion's share of the refugee burden. Yet, this is the situation on the ground. At the same time Australia cannot feasibly accept large numbers of refugees.
The refugee situation is an intractable problem. Nonetheless, an intractable problem cannot be resolved or managed by adopting the language of denial.
So what does that leave us with?
Professor Bob Birrell has suggested that we should withdraw from the Refugee Convention. Regrettably, his aptitude for demographics does not extend to the law. In its substance, Birrell's suggestion is a bit like saying 'crime is still happening so let's abolish the Criminal Code'. It is a suggestion that does not account for the fact that people claiming refuge will still arrive in Australia and that we will still need a principled and lawful way of dealing with them. Getting rid of the established legal framework achieves nothing if the substantive problem remains in play.
Crucially, under Australian law once the Crown has people in its custody under administrative detention it owes them a non-delegable duty of care. As soon as the Australian Government takes any unlawful arrival into administrative detention or custody the duty arises. The extent of that duty is subject to some debate and arguably it could be breached if the Australian Government repatriates asylum seekers to countries where they will be harmed. Moreover, any other country, including the asylum seekers last port of departure, must be willing to accept them.
Criminalising unauthorised arrivals is not a feasible option. Australia is a country committed to the rule of law. The rule of law has at its heart a commitment to substantive justice. There is a big difference between the rule of law and rule by law. This should be obvious, but any solution to the asylum seeker problem should not destroy the moral fabric of Australia or its legal system.
This brings us to the other solution that tends to get floated in conservative circles; towing back the boats. There is one obvious drawback to towing back the boats, should the boats sink and should anybody drown, then the Australian officials who ordered and carried out the towing might face criminal liability under international law. There is also the question of how the asylum seekers and the vessel's crew might react to an attempt to tow boats. There seems little sense in pointlessly endangering Australian officials physically or legally.
If we do tow boats, and if when they begin to sink, Australian officials take the asylum seekers on board their vessel, then they will officially be in the custody of the Australian Government. That is, unless we excise our own navy and coastguard services from the Migration Services Act. I am not sure if there is precedent for this option. This brings us back to square one.
Now if the boats keep coming why don't we just admit that we cannot stop them. We can merely slow their progress. Perhaps that isn't catchy as an election slogan, but at least it's true.
We could turn our attention to the people that the asylum seekers are fleeing from. Some of the officials of those governments have personal assets overseas and even here. If we are meeting the costs of a refugee problem that they created then we have a right to ask for reparations. It is a question that is certainly worth raising with government officials from Sri Lanka, Burma and a few other countries. It might not work with countries like Afghanistan and Iraq where non-state actors are the primary source of concern. But, where the government officials who control and influence the criminals from whom people are fleeing are transnational in their financial and personal interests then it might have some effect. If all else fails, the hip-pocket might be a nerve worth pinching.
Yet, if the boats keep coming we might just have to accept that we can factor in a certain amount of these asylum seekers into our refugee program on an annual basis and that the remainder will have to be detained until we can repatriate them or another country can offer them refugee status.
That is not a happy solution. It would mean that the standard of care in detention centres will have to be raised to meet ethical and legal standards. The reality is that we cannot save everybody. We might just have to accept that and try to be as decent and humane as possible within our resource constraints.
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