It’s comin’ no matter what I say…More musings on #asylum seeker policy #refugees

I didn’t think it was possible, but the divide has actually grown between the ‘sides’ of the asylum seeker ‘discussion’.

Back in June, I argued that the asylum seeker discussion was so poor because nobody seemed capable of distinguishing between facts, opinions, and conspiracies:

What policy goals do we think we should pursue?  That’s a matter of opinion.  What mechanisms will work in order to obtain those policy goals?  That’s a matter of fact.  Are departments letting refugees rot, are politicians cynically trying to dodge responsibility, are there mind control drugs in vaccinations?  That’s a conspiracy theory.

As the months rolled by, we’ve seen that there are a lack of serious options on the table.  The Greens’ policy, for example, rebadges mandatory detention while at the same time arguing that mandatory detention should be abolished.  This culminated in the Expert Panel’s report which was immediately attacked on whatever possible spurious ground could be found by people who disagreed with it.

This past fortnight, we’ve seen further polarisation.  Despite returning to offshore processing, larger numbers of Sri Lankan asylum seekers have arrived.  In response, the government has decided to use Bridging Visas so people can stay in Australia (without the ability to work, &c., &c.) while they’re awaiting removal to the offshore facilities for their protection claims to be assessed.

Despite the raging passions when it comes to this debate, it’s very difficult to know precisely what the policy positions of the three major parties are.  The ALP appears to have adopted a pragmatic, ‘take the advice of the Expert Panel’ approach — an approach we can only wish they had taken with the Henry Tax Review and (most of) the other reports they’d received from experts.  This takes a lot of the content out of the policy debate, as far as they’re concerned.  What goal are they trying to achieve?  A fulfillment of the Expert Panel’s report?  Surely not.

The Coalition, meanwhile, is all over the place.  Not six months ago, Tony Abbott was saying that he would ‘pick up the phone to Nauru’ — but when the Expert Panel advised that course of action, he backed away from the policy and instead went to Temporary Protection Visas.  I cannot, in all honesty, tell you what the policy goals of their position are.

On the other side of the fence, we have the politics of reaction.  The Greens’ position is about disengaging from the conversation and saying no to whatever the ALP proposes.  Thus, the position of mandatory detention by any other name.  Thus, the position of onshore processing while rejecting the legitimacy of the discussion about reducing the number of boat arrivals.  Thus, the extremely odd position of opposing changes to the <i>Migration Act</i> which would allow the government to reject the applications of people who are deemed to be a security risk by ASIO.

I’m an agnostic in the asylum seeker discussion.  I think all proposals have their strengths and weaknesses, and that morally excellent people can have very different views on what the policy goals in this area should be.  Instead, we’re being treated to a public shouting match of three parties who absolutely refuse to work with each other, who absolutely refuse to distinguish between opinions about policy goals and facts about laws and mechanisms, and whose electoral success depends on pandering to particular segments of the reactionary electorate.

Let’s talk about two recent thoughtbubbles in this space: Julian Burnside’s proposal in The Conversation and Scott Morrison’s claims about Article 31 of the Refugees Convention.

Burnside appears to have an unlimited number of free kicks in the asylum seeker debate.  As patron of an organisation which survives only by maintaining a sense of moral outrage from lefties, Burnside has often been a source of wildly inaccurate policy memes.  On Twitter, he opined:

The idea is to spend vast amounts to mistreat people so badly that the Taliban look like a better option

With 117 retweets, it doesn’t seem anybody said: ‘Really?  So the option is Australian detention centres or Taliban?  There are no other options?  Even for Tamils?  What about refugee camps?  Aren’t they a thing?’

It’s clearly an insane thing to say, but Burnside isn’t interested in having a discussion about asylum seeker policy.  This is him stirring up attention.  When he gets the extremist attention — people slinging homophobic and racist slurs — he gets the confirmation he’s after: only terrible people disagree with him.

This is why he only gets interviewed by light touches.  The Conversation interviewed him, asking him such red-hot questions such as: ‘Don’t most asylum seekers turn out to be genuine refugees who are given visas eventually?‘

Which is a shame because it means nobody holds a highly influential contributor to the ‘discussion’ to account.  In September, he asserted:

“They say the problem is that people die at sea trying to get to safety in Australia.

“If that’s really the problem then I would’ve thought the obvious solution to it is to stop getting people on boats and the only way to do that … is for Australia to set up a fair dinkum, fair processing system in Indonesia with the co-operation of the Indonesian government.”  [Source: ‘Asylum seeker impasse “pathetic”: QC’s plan to stop the boats‘, Sydney Morning Herald, 29 June 2012]

Nobody appeared to find it particularly odd that Burnside was advocating for the Australian government to tell the Indonesian government its business.  Nobody appeared to find it prudent or wise to ask the question: ‘So, what work is currently being done in Indonesia to manage irregular migration flows?‘

So in June, Burnside was championing setting up a processing arrangement in Indonesia.  As of last week, his tone had changed.  In a widely praised article for The Conversation, Burnside outlined his new plan for managing Australia’s irregular maritime arrival caseload:

First, boat arrivals would be detained initially for one month, for preliminary health and security checks, subject to extension if a court was persuaded that a particular individual should be detained longer.

Second, after initial detention, refugees would be released into the community, with the right to work and access Centrelink and Medicare benefits. Even if none of them got a job, this would still be cheaper than keeping them locked up.

Third, refugees would be released into the community on terms calculated to make sure they remained available for the balance of their visa processing.

Fourth, during the time their visa applications were being processed, refugees would be required to live in rural or regional areas of Australia. Any government benefits they received would thus work for the benefit of the rural and regional economy. There are plenty of towns around the country which would welcome an increase in their population. [Source: ‘Four steps to more humane refugee processing‘, The Conversation, 23 November 2012]

Again, we have a policy of mandatory detention rebadged.  It includes an arbitrary timeframe (one month) for an activity which we know can take a lot longer.  ‘If you destroy your identity documents and make it as difficult as possible for authorities to identify you,’ this policy says, ‘You will be moved into the community with working privileges unless the authorities can persuade a court to keep you detained.’

Given that we know how long it takes for identity, security, and health checks to take, why is Burnside advocating for an upper limit of a month?  What is the policy relevance of one month?  Does it apply to everybody or just those who present a prima facie engagement of our protection framework?  If Indonesian fishers, for example, wanted to access Australian Medicare and Centrelink benefits — along with unfettered access to our labour market — would they also be included under Burnside’s processing mechanism?  Here’s the real joke: if you want a student visa to come to Australia, there’s a cap on how many hours you can work and you don’t get access to Medicare and Centrelink.  That cap exists to ensure people were coming for the purpose of study rather than for the purpose of employment.  Under Burnside’s scheme, students get treated worse than people who have yet to be found to engage protection frameworks.  

But it’s the fourth step that’s the real kicker.  Here’s a guy who was born in Melbourne, went to an elite Melbourne school, made his fortune in the legal costs of the rich and the famous… and now advocates for asylum seekers to be sent to rural Australia?

He probably hasn’t noticed the state of the rural Australian health service.  He probably hasn’t noticed the suicide rate of farmers because mental health services are practically nonexistent, nor the internal migration pressures pushing people into suburbia because job opportunities stink.

And yet this is where he thinks asylum seekers would be best supported?  Whatty what?

Not one of the people tweeting and retweeting his article engaged in policy analysis of his proposal.  The comments to the article itself quickly descends into the extreme left trolling and being trolled by the extreme right.  There’s no discussion about what his proposal would mean for the Humanitarian Support Services programme (check out how refugees are resettled in Greece, in comparison…  Warning: video includes eating from rubbish bins).  There’s no analysis about how this might affect migration flows to Australia.  If you had the option of staying in Malaysia or Indonesia where you don’t have work rights, &c., &c., or coming to Australia where you’d instantly get work rights after a month in a detention centre, you wouldn’t even wait for the thinking music.

We oughtn’t be surprised that the musings of a famous lawyer don’t make for a coherent or sensible policy.  Despite being published in The Conversation, he’s not an academic and he’s not a policy expert.  He’s simply a famous lawyer.

But this is the same website that ran a series of confusing articles criticising the Expert Panel — two guys who were at the zenith of asylum seeker policy engagement in Australia who had since moved into independent roles, and a third policy expert who had decades of experience with the NGO asylum seeker groups — for not being ‘expert’ enough.  I discussed The Conversation‘s non sequitur approach of blurring the  to the discussion here.

What this shows us is that we have the Carbon Tax debate playing out in reverse.  Overwhelmingly, the right wing claimed that the experts weren’t really experts (‘Here, check out my own experts!’) and that the resulting compromised position wasn’t as effective as predicted (even though everybody acknowledged at the time that it was a stepping stone to something more effective).  Here, we have the left wing claiming that the experts weren’t really experts (‘Here, check out my own experts!’) and that the resulting compromised position wasn’t as effective as predicted (even though everybody acknowledged at the time that it was a stepping stone to something more effective).

But it’s not just left wingers who talk the crazy talk.  On Friday 23 November, Opposition Leader, Tony Abbott, and Shadow Minister for Immigration, Scott Morrison, held a press conference to discuss their asylum seeker gripes.

Fair’s fair: Abbott and Morrison out-crazy Burnside any day of the week.  Even Burnsides unfortunate ‘paedoes in speedoes’ tweet (seriously, what was he thinking?  Yeah, I know the explanation but it was a stupid explanation) is still small potatoes in comparison to Abbott’s ‘died of shame’ lunacy.  Furthermore, Abbott and Morrison are more than celebrity lawyers, they’re supposed to be good with policy.  While we can forgive sloppiness and incoherence from Burnside, we can’t give Abbott and Morrison the same benefit of the doubt.

Especially when they cough up these little hairballs:

QUESTION:

When you talk about coming illegally by boat, what’s illegal about it?

TONY ABBOTT:

Look, obviously someone who comes to our country not in accordance with our law, not in accordance with our procedures, is coming to this country illegally and the terminology has been used by the Prime Minister, the terminology has been used by the former Foreign Minister, the terminology is enshrined in the terms and concepts that this government uses all the time, and I make no apologies for calling them for what they are: they are people who have arrived illegally in this country and I’ve got to say that the Australian people are sick of being taken for mugs; of being taken for a ride by criminals because that’s what these people smugglers are – they are criminals who have been taking us for a ride for too long.

SCOTT MORRISON:

Illegal entry is a term defined in Article 31 of the Refugee Convention. It is also a term that’s defined in the convention on people smuggling. People who arrive in Australia without a valid visa for entry, that is not a legal form of entry to this country, and I, Tony, no other member of parliament have ever voted for a law which has changed that. It is a method of entry that is illegal. There is no question about that. If someone then subsequently in Australia once they’re here applies for asylum, there’s nothing illegal about that. That suggestion has never been made by anyone on the Coalition side. But it is illegal to enter the country in the way that this is being done and that is backed up by the terminology of the UN itself and we make no apology for making that description.

[Source]

There’s just no excusing this but, to understand why, we need a lot of background.

It used to be illegal to enter Australia without a visa.  If we rewind back to the early 1990s, the term ‘illegal’ in this context was accurate.  It’s why the Joint Standing Committee on Migration Regulations was able to publish a report titled Illegal entrants in Australia: balancing control and compassion.  In 1991, for example, there was an amendment to the Act (Migration Amendment Act No. 2) which added:

Division 1A – Power to obtain information and documents about illegal entrants

In 1994 (I think), the term ‘unlawful’ came to be used instead.  This means it was no longer a criminal act to enter Australia without a visa, but it wasn’t lawful to do so either.  Is this mere semantics?  Abbott’s answer suggests that he believe it is: ‘obviously someone who comes to our country not in accordance with our law… is coming to this country illegally’.  His use of the word ‘obviously’ suggests that he’s appealing to some kind of folk legal notion about the word ‘illegal’ — perhaps in the same way that some people (cough, Sarah Hanson-Young, cough) use phrases like ‘duty of care’ and ‘negligence’.

If so, it’s inexcusably sloppy.

But the latter part of his answer suggests that it isn’t.  Like The Conversation, he slips between discussing the asylum seekers themselves and the people smugglers who direct their pathways:  ‘the Australian people are sick of being taken for mugs; of being taken for a ride by criminals because that’s what these people smugglers are’.  Soooo… they’re illegal in the sense of being beneficiaries of a crime?  Or is Abbott being even more semantically correct than everybody else in the discussion: the process by which they came to Australia was illegal even if the asylum seekers themselves are not doing anything illegal… or something?

This idea feeds into a broader discussion about the asylum seeker under international law: do asylum seekers have a right to enter a country in order to make a claim for asylum?  When it was written, it was intended that the Convention would only apply to a specific caseload of people.  They were people who had already fled and who were in need of protection due to persecution in their home country.  The Protocol extended the operation of the Convention to a larger group of migrants: people who would flee their countries in the future.

Nobody disagrees that the Convention is now being used in a way which nobody really envisaged when it was signed.  The jurisprudence around the Convention has expanded its scope such that it almost acts like a partially unwritten Asylum Seeker Convention.  Thus we get the central idea of non refoulement: even if a person is not assessed to be a refugee (because they fail to demonstrate a well founded fear of persecution due to a Convention reason), there’s a customary understanding that people will not be sent to countries where their life may be threatened.

But the consequence of the Convention being used in new and unusual ways is that there are fundamental differences of opinion about application.  We’ll get to Article 31 in a moment, but at the moment we’re considering the right to entry.  Nowhere in the Convention does it say that a person who is not a refugee may enter into another country in order to make an asylum claim.  It doesn’t say that because, when written, it was talking about people who had already moved into the countries where they wanted to make claims for asylum.

Some people argue that Article 14 confers that right.  It says:

Article 14.

• (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
• (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. [Source]

But does the Declaration of Human Rights confer rights to individuals?  Again, the original intent has been different to the application and it forms a kind of backdrop to customary international law.  Let’s say that it is binding, does the term ‘to seek’ mean ‘to enter illegally/unlawfully into another country’?  No.

But others have different opinions.  A number of left-leaning academics think that the Convention and Article 14 represents a move away from the sovereignty of states and creates a right for people to enter into countries for the purpose of seeking asylum.  Those academics tend to be disparaging in general of the notion of state sovereignty (I was trying to find the reference, but I have scribbled in a notebook the quote ‘sovereignty is something to get over’ but I cannot for the life of me find it in the essay I thought it was in.  Lesson: put quotes in your EndNote/Zotero database as you go).  This moves away from the idea of domestic law being anterior and superior to international law, and therefore puts it at odds with the intuitions of a lot of common, ordinary, lay folk…

More importantly, a number of the left commentators in the Australian ‘discussion’ seem to assert that there is a legal right for asylum seekers to enter Australia.  When they hear Abbott saying ‘illegal immigrants’ they believe he is incorrect not only because Australian law informs us that he is incorrect (a point which, incidentally, could be changed by amending the Migration Act back to pre-1994 state) but because international law says that he is incorrect.  It’s here that they slide around with language in the same way Abbott does: ‘It’s not illegal to seek asylum under international law’.  True, but what do you mean by ‘seek’?  Do you mean ‘enter another country in order to make a claim of asylum, or do you mean make a claim in a country which you have already lawfully entered’?

And now we can turn to Morrison’s claim: ‘Illegal entry is a term defined in Article 31 of the Refugee Convention’.

Here’s what the Convention says:

Refugees unlawfully in the country of refuge

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country. [Source]

Morrison appears to be reading a different version of the Convention, because I can’t see in that passage where the Convention defines ‘illegal entry’.

There are a few parts in this complicated mess which warrant attention.  This is a place in the Convention where we might wonder if ‘refugee’ is strictly defined.  The first part is what is meant by ‘impos[ing] penalties’.  Administrative detention is not a punitive measure; is it a penalty?  Paragraph 2 of this Article seems to suggest ‘unnecessary’ detention is wrong, but necessary detention can be applied until status is regularised.  What status?  Refugee status?  But this only applies to people who are refugees, therefore their status is regularised…

‘Impose penalties’ is further modified by ‘on account of their illegal entry or presence’.  So the Convention says that there are people who move illegally but the title of the Article only mentions unlawfully.  Does this mean that ‘unlawful’ and ‘illegal’ are synonymous under the Convention?

It’s a stretch and, to be frank, I don’t think it’s what Morrison is trying to suggest.  If he is, then it makes it difficult to explain Abbott’s claim that they will introduce temporary protection visas to people who arrive by boat.  Being denied access to a permanent visa (especially when denying it seems to be in contravention of Article 34) appears to be a punishment as it does not serve an administrative function (like administrative detention).  If ‘unlawful’ and ‘illegal’ are identical and interchangeable, then the Coalition is advocating imposing a punishment (as it’s not for administrative purposes) on account of their illegal entry.  If ‘unlawful’ and ‘illegal’ are not identical and interchangeable, then Abbott’s new policy is fine (as far as Article 31 goes).

There’s a bit of an escape clause for the Coalition: ‘Impose penalties, on account of their illegal entry or presence’ is then modified further by ‘coming directly from a territory where their life or freedom was threatened in the sense of Article 1’.  As irregular maritime arrivals come from Indonesia and not Iraq or Afghanistan, do they come ‘directly’ from a territory?  What does ‘direct’ mean here?  And let us not even contemplate those rare few who come directly from Sri Lanka by boat…

So, after all these words, where are we?

The explanation for why Abbott and Morrison use the word ‘illegal’ doesn’t stack up.  Article 31 of the Convention does not define illegal and, if it is taken to do so, then Abbott and Morrison have some questions to answer about the imposition of a punishment on these ‘illegal’ entrants.  It seems like the word ‘illegal’ isn’t supposed to communicate with people like most of my readers, but with that group in society who bellyfeel the answers to legal questions: ‘It might not be illegal in law, but it should be and it feels like it is.’  It’s sloppy reasoning and we deserve better from a Prime Minister.

The real losers in all of this is the public.  In a choice between leaders playing Humpty Dumpty with the word ‘illegal’ — it means whatever they want it to mean — and celebrity lawyers fantasising about refugees accessing mental health care and the jobs market in rural Australia, it’s not difficult to see why people take a shining to the latter.   But this means we do not form our ideas about asylum seeker policy based on what we want to see, but in opposition to things that we do not.  Burnside’s view of the world is appealing because it is antithetical to that of the LNP.  But as a policy, it stinks.  Abbott’s slippery way with words appeals to people who are tired of hearing the assumptive moralising of lefties who can’t back up any of their assertions.  But as a policy, it also stinks.  The merits of their respective positions do not rest in the content of those positions; it relies in its contrast with its opposition.

This is no way to have a debate.  If lefties want to have a better asylum seeker discussion, they need to start holding their own to account.  Marginalise us on the right by making us irrelevant to the discussion.  It’s sad to say, but development on this issue is not going to come from my side of politics.  If you continue to hold up Julian Burnside’s megaphoning as the zenith of asylum seeker policy, you’re not going to create the conditions for a reasonable, sensible discussion.