We clawed, we chained our hearts in vain… Why you should use the phrase ‘illegal entrants’ #auspol #asylumseekers

Language is important.  Over at AusOpinion, I’ve argued that claims of ‘neutral’ and ‘apolitical’ language are dangerous lies.  There is, in fact, no way of describing something in completely neutral terms (whatever ‘neutral’ may mean).

As part of my set up to discuss something even more interesting than language — images — I made a quick mention of the asylum seeker debate.

The Government — perhaps inspired by Genesis 2:19 — has begun a process of renaming the policy issues formed of the air, land, and sea.  Under the ‘Call A Spade A Spade‘ policy, ‘asylum seekers’ (already a contentious term — are all people who arrive by boat seeking asylum?) will be called ‘illegal entrants’ (a term the minister assures us is analogous to ‘stolen goods’).  Shadow Immigration Minister, Richard Marles, complained about the terminology, stating that it was ‘language being used for a political purpose’ which ‘clouds the debate and it acts to work against trying to achieve bipartisanship in the area of immigration policy.’  He didn’t explain what he meant by implying that language could be used for a non-political purpose, or why bipartisanship was the most important goal of immigration policy. [Source]

One day, I’ll learn my lesson and be sufficiently wise to leave well enough alone.  That day’s not today.

Many people are — entirely understandably — outraged at the new terminology.  They believe — entirely incorrectly — that other words and phrases are more ‘neutral’ or more ‘correct’.  Blinded by outrage, they don’t see that the change in terminology provides an excellent opportunity for asylum seeker activists to change the course of the public discussion.

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Quick Post: The Expert Panel on ‘Excising the Migration Zone’ #auspol #asylumseekers

One way you can tell if a person/group is irrational is that they assert things only knowable to a psychic or mystic.  ‘They say that they’re doing it for reason X, but really they are doing it for reason Y.’  I’ve now been told several times that Government policy regarding asylum seeker issues is to punish asylum seekers — they don’t really want to set up regional processing mechanisms, they actually want to create an expensive torture machine.  Because there are votes in it.  Or something.

Here’s what the Report of the Expert Panel on Asylum Seekers says on the ‘Excising the Migration Zone‘ question:

Reducing risk of longer maritime voyages to Australia

3.72 The panel considers that all possible measures should be implemented to avoid creating an incentive for IMAs taking even greater risks with their lives by seeking to reach the Australian mainland. As a complement to facilities in Nauru and PNG, the panel recommends the government bring forward legislative amendments to the Migration Act 1958 so that arrival on the Australian mainland by irregular maritime means does not provide individuals with a different lawful status than those who enter at an excised offshore place, such as Christmas Island (attachment 10).

3.73 Such an amendment will be important to ensure that introduction of processing outside Australia does not encourage asylum seekers to avoid these arrangements by attempting to enter at the Australian mainland. such attempts would increase the existing dangers inherent in irregular maritime travel. legislative change would ensure that all IMAs will be able to be processed outside Australia, regardless of where they first enter the country. [Source]

Oh.  How odd.  Does that mean the Expert Panel was also interested in votes?  How does that work?

Here’s the part that nobody else seems to have spotted: by the time September comes, a lot of the groundwork will be in place for regional processing arrangements.  Should the Opposition take Government after the election, they will not have to battle uphill to get these changes in place.  They can claim that Temporary Protection Visas and whatnot are effective, while all the while putting the regional processing arrangements into place.

Cynical politics at its worst.

Quick Post: Why ‘excising Oz from the migration zone’ is no big thing #auspol #asylumseekers @ASRC1

As a piece of language, it sounds like another example of stupid politicians and bureaucrats getting out of touch with reality: a piece of legislation has excised Australia from the migration zone.  ‘As a matter of law,’ said one person, ‘the Australian mainland no longer exists.’

Twitter was abuzz with people basically repeating the same memes over and over again.  Who could say the wittiest, snappiest thing about this policy?  Oh, things comedians say must be true because they’re funny.  Rightwingers ignore facts; comedians don’t.

Here’s a quick run down of the relevant facts and the policy questions:

What is the Migration Zone?

Section 5 of the Migration Act both defines and creates the Migration Zone:

“migration zone” means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:

(a)  land that is part of a State or Territory at mean low water; and

(b)  sea within the limits of both a State or a Territory and a port; and

(c)  piers, or similar structures, any part of which is connected to such land or to ground under such sea;

but does not include sea within the limits of a State or Territory but not in a port.

The Act uses this definition of the Migration Zone to do two things.  First, it determines the area within which (most) non-citizens must hold a visa in order to be lawful.  Thus, section 14:

non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.

A person who is within the Migration Zone (and is not exempt in some way) without a visa must be placed in immigration detention.  The detention of unlawful non-citizens is mandated by the Act (‘mandatory immigration detention’).

Second, it determines which visa applications can be made by a non-citizen.  For example, a person who is within the migration zone is not able to lodge a spouse visa (subclass 300).

What does excising a place from the migration zone mean?

Section 5 also describes what it means for a place to be excised from the migration zone:

“excised offshore place” means any of the following:

(a)  the Territory of Christmas Island;

(b)  the Territory of Ashmore and Cartier Islands;

(c)  the Territory of Cocos (Keeling) Islands;

(d)  any other external Territory that is prescribed by the regulations for the purposes of this paragraph;

(e)  any island that forms part of a State or Territory and is prescribed for the purposes of this paragraph;

(f)  an Australian sea installation;

(g)  an Australian resourcesinstallation.

Note:          The effect of this definition is to excise the listed places and installations from the migration zone for the purposes of limiting the ability of offshore entry persons to make valid visa applications.

This doesn’t make a lot of sense by itself.  Here’s a bit more of the story:

“offshore entry person” means a person who:

(a)  has, at any time, entered Australia at an excised offshore place after the excision time for that offshore place; and

(b)  became an unlawful non-citizen because of that entry.

And now we’re starting to get back to words that are a bit more familiar.  What is interesting is that second part of the definition: became an unlawful non-citizen because of that entry.  But in order to be an unlawful non-citizen, you need to be inside the migration zone (section 14).

It’s starting to sound like the hype is all bullshit

You’d be right.  Here’s the Act that was passed yesterday which allegedly ‘excised Australia from the migration zone’.  The major change is the substitution of ‘offshore entry person’ with ‘unauthorised maritime arrival’.  I’ve pasted an image below because it’s just easier than cutting and pasting from the PDF:

S5AA Migration Act

 

The practical effect is that you can be an ‘unauthorised maritime arrival’ if you arrive at an excised offshore place or if you arrive anywhere else in Australia.  This is what people appear to mean by ‘Australia has been excised from its own migration zone’.  In other words: utter bullshit.

How does this all play out in practice

Keeping with the language prior to yesterday’s amendment, here’s where section 46A comes into play:

(1)  An application for a visa is not a valid application if it is made by an offshore entry person who:

(a)  is in Australia; and

(b)  is an unlawful non-citizen.

Remember, an ‘offshore entry person’ is somebody who enters Australia at an excised offshore place and became an unlawful non-citizen by entering the migration zone there.  So a person who enters Australia at an excised offshore place and becomes an unlawful non-citizen by doing so is unable to make a valid visa application.

That is, until this:

(2)  If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.

(3)  The power under subsection (2) may only be exercised by the Minister personally.

This is referred to as ‘lifting the bar’.  If you’re an offshore entry person, the Minister has to ‘lift the bar’ so you can make a valid visa application.  (Under the new scheme, if you’re an unauthorised maritime arrival, you’re barred from making visa applications)

Wait!  Why should asylum seekers be ‘barred’ from making visa applications?!  Seeking refugee status isn’t illegal.  Don’t make me vandalise your billboard!

The short answer is: refugee processing is conceptualised as a problem for the international community, not for individual countries.

Imagine that my two brothers (Ian and John) and I flee persecution in our home country.  Our home country is the Kakistocracy of Fictionstan and it’s somewhere between Afghanistan and Pakistan.  We make it to Indonesia where we lodge applications with UNHCR.  I am unwilling to risk my life at sea making the final part of the journey, but my brothers know how long it could take to get refugee status in Indonesia.

Ian finds a smuggler who agrees to take him to Australia in exchange for a wad of cash.  John finds a different smuggler.

John’s smuggler arranges for the boat to arrive at Christmas Island (which is an excised offshore place).  Ian’s smuggler arranges for the boat to arrive on the mainland closer to Darwin (which was not).

The question for people who got extremely upset about ‘excising the mainland from the migration zone’ is not only ‘Why should Ian and John be treated differently?’ but ‘Why should Ian, John, and I be treated differently to each other?

Just because I happen to stay in Indonesia, why shouldn’t I get the same consideration that Ian and John received?

Onshore processing is nothing short of Darwinist: if you survive the final boat trip, you should have your visa application considered before everybody else.

Barring visa applications from unauthorised maritime arrivals means that, in theory, the asylum seekers are not considered under Australian law, but are considered as part of an international humanitarian programme.  For a variety of reasons, it doesn’t end up working that way, but that’s the goal.

Under a regional processing model, Ian, John, and I would have equal chance of getting our refugee status recognised and being resettled.  Under an onshore processing model, only those people who risk their lives do.

But we haven’t just excised Australia, we’ve excised our hearts!

Okay, well you haven’t listened to any of the above conversation.  ‘Australia’ hasn’t been excised from anywhere, and the migration zone is a fictional legal construct.

If this weren’t about asylum policy, most people would agree that a government policy which created an incentive for desperate people to endanger their lives would be a bad thing.

Under the previous arrangement, there was an incentive for people to try to get as close to the mainland undetected as possible.  If you agree with offshore processing (because you think Ian, John, and I should not be treated differently in the above example), then you can’t qualify that with: ‘Oh, yes.  But if they go to really, really extreme lengths, then they should be processed onshore.’  That’s a nonsense policy.  Worse, it’s cruel to treat people like this: ‘We will give you a better arrangement, but only if you risk your life first.’

But asylum seekers who arrive by plane are treated differently!

That’s true and it’s a crappy arrangement.

One of the key differences is that asylum seekers who arrive by plane are usually a lot easier to process.  Forget the success rate for a second (most asylum seekers who arrive by plane are unsuccessful because the claims are more obviously unsubstantiated).  For each individual in this case load, we already know who they are, their health situation, and their security situation.  Why?  Because they had to go through all of that process offshore in order to get a visa to arrive here.  Effectively, most of the work in this caseload has already been done offshore.

But didn’t Chris Bowen criticise the Howard Government for trying the same technique?

Yeah, but Chris Bowen was wrong to do so.  Another example of politicians going for populist reactions to policy.

Also, that’s the same Chris Bowen who’s been one of the key leakers trying to undermine the ALP, so his understanding of morally appropriate activities is somewhat shady.

The ALP’s border protection policy has been an expensive failure [because boats keep coming/because I disagree with offshore processing].

We haven’t seen the ALP’s border protection policy at work.  It’s been blocked by a tag team effort of the Coalition and the Greens.

Here’s the theory:

Why should an asylum seeker have to move undetected from their home country to Australia in order to receive protection?  The answer: because the current processing model is broken.  There are two slow points: having the protection claim affirmed, and having a resettlement option presented.

So what if you could speed up the protection claims and resettlement process for all the displaced persons in a particular region?  No matter where in the ‘pipeline’ an asylum seeker presented themselves, the international community could process the claims quickly and find a country in the region that would allow them to be settled.

But some asylum seekers would clearly prefer to be settled in Australia and New Zealand than, say, PNG or the Solomon Islands.  So if they can bypass the regional protection framework and come directly to Australia, they get a 100% chance of being resettled here than elsewhere in the region.

Thus, you need the measure that was passed otherwise people start selecting the options they want.

On the other hand, the regional protection mechanism isn’t in place yet, so should asylum seekers have to wait for that to be sorted out?

On the other hand to that other hand, given that we have advised what outcome we want, do we want to create an incentive to move early?

And so on and so forth.

Back to the first step: asylum seekers (at the behest of the smugglers) either move towards Europe or towards Australia.  If the perception is that it’s easier to get protection claims resolved in south east Asia, would that mean more people would come this way?

On the other hand, isn’t that a good thing?  That’s like saying: ‘Imagine all the water in the area is poisoned.  If we clean one water source, then everybody will drink from it instead of the poison water!’

On the other hand to that other hand, we aren’t the ones who will be impacted in the first instance from the move: our partner countries in the region will encounter more irregular immigration and have to deal with the social/economic/political consequences of it.

And so on and so forth.

So there are lots of subtle, nuanced issues at play in this debate.  So how is one of our most influential megaphones on the asylum seeker issue contributing to the conversation?

Oh.  Contributing to an informed public debate.  Nice.

Quick Post: How accurate is @TheAusInstitute’s ‘Oz is 3rd largest recipient of its foreign aid’ claim?

The Australia Institute is one of Australia’s far too many ‘think tanks’.  Like its right wing counterparts, it receives tax concessions — a bugbear about which I’ve written before.

In an ideal world, think tanks would be one of the mechanisms by which research and analysis were translated into policy options.  Instead, we have an environment where think tanks undertake the role of advocates.  Thus, in order for ideas to be advanced in the agora, you have to shout down the professional trolls like the IPA, the CIS, and the Australia Institute first.

An example of this was distributed recently by the Australia Institute.  On their website and Tumblr page, they posted the following picture:

The image was distrubuted with the text:

Quick quiz: Do you know which countries are the top three recipients of Australian foreign aid?

Answer: 1. Indonesia 2. PNG 3. AUSTRALIA ……. But hang on, you said foreign aid, right?

Yep – Australia is the third biggest recipient of its own foreign aid! And look what we’re spending it on …..

That’s poor policy for such a rich country.

Down the bottom, you can see where they’ve sourced the information.  The idea is that Lefties would get outraged, note briefly the source of the information to see if it’s reputable, and then distribute it to their friends.  There have been a few of these ‘argument by image’ things circulating the place recently, and all of them suffer the same problem: they’re deceptive.

If you’re familiar with how Australia’s foreign aid budget works, you’d think this is an odd way of accounting for the funds.  Quite a lot of funding is made on a regional basis for capacity building, for example.  Sure enough, if you dive through the APH website for Hansard, you find the conversation to which the image refers, starting on page 114.

Senator RHIANNON: How was the decision made to reallocate up to $375 million of Australia’s aid budget towards domestic refugee support costs, without clearly identifying which programs would be affected by this decision, consistent with our commitments under the Paris Declaration on Aid Effectiveness, and reaffirmed and strengthened in Accra and Busan to provide:

… reliable indicative commitments of aid over a multi-year framework and disburse aid in a timely and predictable fashion according to agreed schedules …

Senator Bob Carr: As I said in the Senate, I think in answer to a question from Senator Rhiannon, everything we do in our ODA budget is within the OECD guidelines.

We prioritised $375.1 million of official development assistance in 2012-13 towards funding some of the costs of supporting refugees in Australia. That represents seven per cent of Australia’s total ODA budget of around $5.2 billion 2012-13. The Papua New Guinea and Nauru country programs and payments already made were excluded from the reprioritisation. Other important exclusions included loans, promissory notes and assessed contributions to which Australia is subject.

We are minimising the impact of this reprioritisation by ensuring that, wherever possible, commitments are delayed rather than reduced and that the reprioritisation is distributed broadly, equally across regions. The bottom line is that one cannot spend money one has not got. It is inconceivable that we would borrow money for ODA. With a contraction in government revenues it has been necessary to reprioritise, but our aid budget has grown and it represents one of the most generous aid programs in the world. All Australians can be very proud that that $5.2 billion is being spent with maximum effect.

So about seven per cent of $5.2 billion is being spent with Australia as the ‘recipient’, an allocation which is consistent with OECD guidelines.  None of that information makes it into the graphic and yet it is important for the audience if they’re to understand the broader picture.

More information is provided on page 117:

Senator Bob Carr: […] I am just looking at Australia’s total ODA by partner country and region, and the increase in aid from 2006-07 to 2012-13 is altogether striking. When you ask about the attitudes of our partners, both nations and NGOs, they are very aware that Australia’s credibility is derived from the steep increase in aid that this government has delivered. I can quote three examples and I am happy to quote more: Papua New Guinea, in 2006-07 received $345 million; the current revised estimate puts aid to Papua New Guinea at $493 million. It has gone from 345 to 493. Another example—South and West Asia—it has gone from $143.6 million in 2006-07 to the current revised estimate of $475 million this year. In East Asia, the increase has been from $787 million to $1.207 billion. This is a steep trajectory—a big increase—and we are entitled, given the contraction of revenues, to say some projects in the context of this overall increase will be postponed and some reduced.

So there are two parts to consider.  Even if Australia really is the third largest recipient of its own aid (which, as we now know, it isn’t), we know that the amount of money going to all countries is increasing substantially (should it increase this much is another more difficult conversation).  So an informed person would look at the graphic and say: ‘Yes, if you ignore relevant details, Australia is the third largest recipient of its own foreign aid, but the amount of aid is increasing overall (even if you exclude the amount that goes to Australia).  If you ignore the allocation to Australia, things still look great.  Do I really care?’

The second part is that East Asia had $1.207 billion dollars allocated to it.  Why on Earth are we crying over $375.1 million?

Next, we might wonder what if other countries do the same thing.  The same source tells all:

Senator Bob Carr: […] The practice—that is, of finding money from an ODA budget to sustain refugee costs on our soil—is practised by the United States, with $895 million; France, $435 million; Sweden, $397 million; the Netherlands, $339 million: Norway, $335 million; and Canada, $284 million. These are all countries doing what we are doing: consistent with OECD practice, sustaining refugees on their soil as a matter of ODA as much as sustaining them in refugee camps offshore.

So… we’re only talking about 7 per cent of the ODA budget, we’re describing a small fraction of what goes to other regions, and other countries do the same thing?  Why would we be outraged by this practice?  Oh, because we don’t know much about it and The Australia Institute has fed us misleading ‘information’.

Let’s look at one final bit.  The arrow from our budget going to the right says that the money is spent on ‘domestic refugee policies’.

What is it being spent on (according to Peter Baxter, Director-General of AusAID on page 121):

Mr Baxter: That document is the OECD guidelines. It sets out that items such as food, shelter and training can be claimed as a legitimate ODA expenditure under the guidelines, as many other governments do around the world.

In the Universe next door, the Australia Institute might have run the following (but with better graphics):

TAI foreign aid revised

 

Ideally, this guff from the Australia Institute might make us all a bit more cautious about circulating these memes.

For the record, I don’t care much for the ALP; I’m historically an LNP voter.  But I also care about having an informed and reasonable discussion about these issues.  Think tanks like the Australia Institute are not contributing to an informed debate when they circulate these images.

Quick Post: Why Adam McBeth’s assertion about protection visa decision making is incorrect #auspol #asylum

Over on The Drum, the Deputy Director of the Castan Centre for Human Rights Law, Adam McBeth, argues that the success rate of appeals to the Refugee Review Tribunal demonstrates there is a problem with the Department of Immigration and Citizenship’s asylum seeker process.

On making a mockery of the initial assessment by DIAC, Mr Morrison is correct because it is plain that the initial case assessment in the majority of these cases is wrong. The majority of boat arrivals who come before the RRT have wrongly been denied the protection visa to which they are entitled under Australian law, and the RRT has recognised and corrected that error when it reviewed a case and decided to overturn the decision of DIAC to refuse a visa.

It’s an interesting article which reveals some rather horrible prejudices from the author.  He ponders whether the people assessing the case are influenced by a ‘“culture of no”, similar to the way insurance claims were once reputed to operate – the case officer’s default stance is to deny the application, on the assumption that anyone who has a serious and credible claim will take it to merits review and prevail, and the others will be weeded out‘.  There’s no evidence for this; it’s just easy for academics to take pot shots at bureaucrats.

But let’s look at the figures to see whether this mudslinging is warranted.

The article cited by McBeth reveals that, since July last year, the RRT has heard 676 cases and has overturned 503.  It doesn’t reveal what the success rate of the Department is (i.e. what proportion of the caseload are being rejected in the first place?).

Using more complete figures, we can take into consideration an entire year.

In 2011-12, a total of 7379 people who arrived by sea were screened into a refugee status determination process. [Page 25]

7,379 applicants and we’re freaking out over 676?!  Get a grip.

If Adam McBeth is correct and there is a culture of ‘No’, we should expect a really low success rate for IMA applicants, yeah?  At least less than half of applicants should be successful.

About 71 per cent of asylum seekers who arrived by sea whose claims were considered and decided in the first instance by officials were found to be refugees. [Page 28]

Boom.  Science.

So 29% are unsuccessful in the first instance.  Hardly a culture of no.

For a few years, there was a second level of assessment within the Department called an ‘Independent Merits Review’.  Applicants who were unsuccessful were permitted to make an entirely fresh case to a second decision maker.  Importantly, it also meant that if the conditions in the country involved had changed, the decision might change (you can’t make a claim for protection based on something which might happen in the future, no matter what the Greens argue).

In 2011-12, 2,224 people had a favourable decision from the IMR.  Again, it was the majority of cases reviewed were overturned (474 had their decision upheld).

Again, it doesn’t necessarily mean the original decision was incorrect.  We don’t know if the application changed between the two decisions (they often do).  We don’t know if the country conditions changed between the two decisions.  The philosophy behind the process is that the applicant gets every possible chance to make an application which favours their success.  If, at the end of the process, they still haven’t managed to do so, it’s hardly for lack of opportunity.

What’s interesting is that the IMR process no longer seems to exist which, frankly, I find worrying.

At any rate, when it comes to the RRT, the applicant again gets an opportunity to seek a decision and present new information.  I chose a recent decision at random and came up with 1209436 [2013] RRTA 21.  In this case, the RRT decided to remit the case for reconsideration with the direction that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

The delegate found that the applicant faced discrimination and mistreatment but no serious harm during his military service. The delegate determined that the applicant had not suffered serious harm amounting to persecution in Turkey. The delegate noted that the applicant had returned to Turkey after having been in [Country 1]. The delegate noted that the applicant delayed lodging his protection visa and did not seek protection in [Country 1]. The applicant did not apply for protection until after his spouses visa was refused. The delegate noted that the applicant had told the MRT that he was embarrassed to return to Turkey because of a money issue. The delegate had serious doubts on the genuineness of the applicant’s claimed fear of persecution in Turkey.

If you get the chance, read through the applicant’s history, particularly the original claim for a protection visa which included:

The applicant claimed that his wife had psychological problems. She threatened him with deportation and the applicant made an application to remain in Australia as a victim of domestic violence. The applicant claimed that his wife had been violent to her previous partner. The applicant was faced with removal from Australia.

In the RRT hearing, the applicant provided additional materials:

Although initially the Tribunal had some concerns regarding the applicant’s claimed political activities, the applicant’s evidence regarding these activities and his motivation and belief in the cause of the Kurdish people was highly persuasive and credible.

So we’re not comparing apples with apples.  When people come before the RRT, they are presenting additional information that was unavailable to the original decision maker.  Further, by this stage of the process, the applicant’s case has been refined and ‘lawyerised’ by various asylum seeker interest groups who believe there’s no such thing as an unworthy application.

Adam McBeth’s argument relies on a total misunderstanding and misrepresentation of the process.  If there were a ‘culture of no’, there wouldn’t be the high success rate before applicants went to the RRT (in other words, it’s a minority of people going before RRT).  Secondly, if you want to make the case that the RRT success rate indicates that there’s a problem with the primary decision making, the cases presented before each need to be identical.  We don’t have a requirement that the case be identical because this would breach the principle that applicants should be afforded every opportunity to make a successful case.

In conclusion, it’s just an academic hating on public servants because he knows they can’t argue back.

[See also the post about The Conversation‘s ‘Expert Panel’ which was pretty much the same thing]

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.

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.

Locked up with all of my people… A closer look at the #Greens’ #asylumseeker policies

Regardless of the side of the political spectrum, politics has become about appealing to the unexamined prejudices of the voters.  This is as true for the ‘Boat people should be shot’ crowd as it is for the ‘No boat person would ever make a fraudulent asylum claim crowd’.

Why is the debate so poor?  In this post, I said it was because the megaphones in the debate aren’t interested in actually debating anything.  You either agree completely, or you’re somehow intellectually/morally suspect.  That both sides of the debate demonise the public servant policy makers (i.e. the people with the most amount of information and have the most amount of time to research options) says something really telling about the discourse.

More worrying, from my perspective, is the way that the Greens have been able to brush off any scrutiny of their policies.  Glib one-liners from various media commentators shields them from scrutiny.  ‘Offshore processing is so they don’t die in our ocean but die in Southeast Asia.  LOL.  Here’s a picture of a cat.’

In the previous post, I noted that many people write off the problem completely.  ‘It’s a wicked problem and there are no solutions.  We know that because John Howard didn’t succeed and we’ve never tried the ALP’s approach.  Induction proves that if the former government didn’t succeed, no future government will.’

I didn’t note the other end of the same spectrum: the people who deny that there’s a problem at all.  So there’s an incentive for people to undertake a dangerous sea voyage.  According to the #auspol Lotus Eaters, this is perfectly fine and not a problem at all.  Why, just last year Europe had many more people risking their lives.  By applying the law of ‘If there’s a bigger problem somewhere else, there’s no problem here’, Australia doesn’t have a problem at all.

I’ve often complained that the Greens don’t really have policies, they sort of have vague position statements.  They got a lot better since the last election, but they’re still kind of garbage.  In theory, they’re supposed to be on their website here.

It’s a bit of a hunt, but under ‘Care for People’ (seriously? Whatever) we find ‘Immigration and Refugees‘.

The Australian Greens want:

  1. the elimination of the policies of mandatory detention, and other forms of harsh, punitive or discriminatory treatment of asylum seekers and refugees.
  2. asylum seekers who arrive without a valid visa to have their claims for asylum assessed while living in the community.

The Australian Greens will:

17.        abolish mandatory and indefinite detention of asylum seekers.

24.        house asylum seekers who arrive without a valid visa in publicly owned and managed open reception centres, where entry and exit to these centres are unrestricted except where prohibited for medical or security reasons specified in clause 28.

26.         grant asylum seekers an asylum application visa (AAV) and assist without delay their move into the community provided medical and security checks are satisfied or after 14 days has passed, whichever occurs first.

28.         deny an AAV if security checks demonstrate the person poses a serious criminal threat to the Australian community or if the person has not remained housed in the reception centre while the medical and security checks were completed.

31.         ensure that, if refugee status is refused and the person cannot be repatriated, the AAV will remain in force until he or she can be repatriated.

So they are going to ‘house’ asylum seekers in a centre until they’re given a visa?  And they don’t remain housed in the reception centre until they’re granted a visa, they will have their movement restricted?  Oh, so you mean you want mandatory detention?  But, wait.  Didn’t the Greens say that they didn’t want mandatory detention?  Oh, they mean they want mandatory detention but they don’t want to call it mandatory detention and they want it to look a bit more hip.

So if an asylum seeker comes to Australia and thinks that their case for refugee status isn’t certain, there is literally nothing stopping them from disappearing into the community.  And people with shady backgrounds (like the ones picked up by ASIO)?  And how would the Greens system deal with alleged people smugglers joining the asylum seeker processing processes?

What the Greens save in ‘harsh’ detention centres, they lose in these ‘urban houses’ (cough, detention centres, cough) and tracking down those who flee having their protection claims assessed.

All the while creating a reason for stateless people and the thousands of displaced people in Southeast Asia to move towards Australia.  All the while creating a reason to pay people smugglers.

How is this the humane approach again?  How is this more humane than supporting the UNHCR supported regional processing model?

I take too long to answer telephones… facts, opinions, and conspiracies in the #asylumseekers debate #auspol

It was an oft-heard lament from the left during the carbon tax debate: ‘The right keeps ignoring evidence and experts!’

As if to prove that no side has a monopoly on ignoring the evidence, up comes the asylum seeker debate in Australia.  Here is a debate which is thoroughly swamped by people who really can’t distinguish between facts, opinions, and conspiracies.  Worse, here is a debate which is swamped by people who can’t understand how two morally excellent people could  possibly disagree about the issue.

First, there’s the people who declare that the problem is just far too hard.  In New Matilda, Ben Eltham took the line that the processing of asylum seekers is a wicked problem:

It would be wonderful if someone — perhaps Andrew Metcalfe — could come up with a solution to the problem of seaborne asylum seekers. But that is unlikely, because there is no single solution to the problem. There may be no solution at all. [Source: Eltham ‘Asylum Seekers a Wicked Problem’]

Really?  Why isn’t there a single solution to the problem?

Put simply, there is no simple way to stop people getting on boats. We ought to know this already, because all the simple and easy ways have already been tried: mandatory detention, temporary protection visas, offshore processing in Nauru, turning boats around, burning boats, paying the Indonesians — even the SAS.  [Source: ibid]

Which seems like an odd thing to say.  All the simple and easy ways have been tried?  How do we know this?  We had eleven years of a government with a particular set of policy goals (‘Appear tough!’).  But, apart from the processing freeze during the Rudd years, we haven’t seen any mechanisms relating to new policy goals (‘Regional cooperation models’).  Why?  Because the Greens and the Coalition have blocked the government and refuse to negotiate.

Imagine that we are trying to play a video game.  I have a crack at defeating the dragon and try lots of different ways but fail because I am a total n00b.  You offer to have a go because you’ve got some ideas.  It would be pants-on-head-crazy for me to scream: ‘NO!  THERE’S NO EASY WAY TO DEFEAT THE DRAGON BECAUSE I’VE TRIED EVERYTHING ALREADY!  ALSO, YOU’RE A TERRIBLE HUMAN BEING!’

And yet that’s what we do in the asylum seeker debate.  And now that it’s all become too hard, we call it a wicked problem, even though wicked problems don’t exist.

But the debate is also swamped by megaphones.  The Asylum Seeker Resource Centre and the Refugee Action Collective are lobby groups which are funded based on how outraged the community is.  There is literally no fact on this planet that could change their opinions.  If there’s a negative interpretation to be put on anything to do with asylum seeker policy, these guys will find it.

Their toxicity infects the rest of the debate.  Take Sunili Govinnage’s article in The Drum on the issue:

In this context, Rob Oakeshott’s “compromise” position needs to be seen for what it is: a cynical attempt to outsource Australia’s obligations under international law. Rather than keeping asylum seekers from drowning, this approach is about trying to force them to stop bothering to get here. That’s why it’s about “deterrence”, and why the only thing we’re seeking to protect here are our borders.  [Source: Sunili Govinnage ‘Saving lives and the asylum seeker debate’]

How do you know this?  Why do you think this?  What would convince you that this wasn’t the case?

It is difficult to take many people in the commentariat seriously when they do whatever they can to dismiss expertise.  Govinnage’s article cites… journalists…?  So she accuses ‘opponents’ of having sinister motives based on bellyfeel, and then bases everything else on what she’s read in a newspaper.  This isn’t a debate; this is a slinging match.

Take, for example, her claim that regionalisation under Oakeshott’s bill is ‘a cynical attempt to outsource Australia’s obligations under international law’.  If it were such a cynical dodge of international law, why is the UNHCR a party to it?

It also renders her assumptions about our obligations invisible.  When the Refugees Convention was signed (and, later, the Optional Protocol), Australia voluntarily undertook a raft of obligations.  Over time, the interpretation of those obligations has changed markedly (even to the point where people now argue that there is a right under international law to cross national borders in order to make protection claims, which is a contested point).  To what extent did Australia undertake those obligations?  To what extent should Australia be held to those changed standards?  In the ‘International Law v State Sovereignty’ issue, why have we made international law the default rational position?

Govinnage also assumes that asylum seekers themselves are the only relevant decision-maker in the process.  There are good reasons to believe that asylum seekers are opportunistic: if they’re presented with an option, they’ll take it (which is entirely fair enough and anybody in the same situation would do the same).  The opportunities are presented by people smugglers.  So while Govinnage might well be correct that our policies don’t affect the beliefs of asylum seekers themselves, she hasn’t said anything about whether our policies affect the behaviour of the people smugglers who provide the opportunities.  Consider a policy to make people buy free range eggs.  One option is to make caged eggs less attractive to the consumer.  Another is to make it more difficult for the supplier to offer caged eggs.  It would be unreasonable for somebody to say: ‘Putting restrictions on suppliers did nothing to change the opinions of consumers.  Therefore, this was a policy failure.’  Yet this is exactly the reasoning pattern we see in the asylum seeker debate.

Australia protection of people with refugee status is better than nearly anywhere else in the world.  Our intake is, by volume, low (although high in ratio per capita terms).  We think, as Australians, that people with refugee status should be given healthcare access, housing support, language support, cultural support, trauma counselling, &c., &c.  We can only do that if we have control over the system.  But Govinnage appears not to believe that we should have any control over the system: whoever makes it here gets a visa.  Put bluntly, her position appears to be: those who can find the resources to pay for a smuggler and who have the good fortune to survive the trip are more entitled to a place in our humanitarian intake than people in refugee camps.  It’s like survival of the fittest for protection visas.  Imagine if we did this for university courses: those who can pay for a position and who have the good fortune to be selected by lottery are more entitled to a position at university than everybody else.  There would be a riot.  Yet here we are dealing with people’s lives in exactly the same way.

The asylum seeker debate desperately needs some critical thinking and a willingness of the commentariat to distinguish between facts, opinions, and conspiracy.  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.

Wire me up to machines… Should #refugees have access to ASIO assessments? #auspol

I don’t usually write about refugee policy because it’s vastly too complicated to do a good job.  As I’ve said before, there’s no real debate in Australia because there are too many megaphones.  Lefties believe every asylum seeker is sacred and incapable of the slightest evil; rightwingers tend to view Australia as being two border patrols away from Tomorrow When the War Began.

There are reasons for this situation.  A lot of the lefty groups exist by virtue of donations.  Keeping the bleeding heart do-gooders in a constant state of moral outrage is how asylum seeker advocacy groups stay funded.  Politicians, on the other hand, need a faceless enemy to demonise for political gain.  Rinse and repeat.  As such, advocates from both sides have a vested interest in keeping the mass

The latest outrage surrounds the security assessments for a group of asylum seekers.

In order to enter Australia, each asylum seeker undergoes a security assessment when they’ve satisfied the other criteria for refugee status.  According to the Refugees Convention:

The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations. [Source: Convention Relating to the Status of Refugees, Art1F]

It’s the part of the Convention that tends to get overlooked.  If the person has engaged in certain acts, the Convention does not apply to them.

Where this gets tricky is that Australia and the international community have stated their commitment to the Convention’s principle of non-refoulement.  Australia will not force a person to return to a country where they will be persecuted/killed.

So imagine S has reached Australia and claims that they are a refugee for one of the five Convention reasons.  They are successful in substantiating that claim, but it’s discovered that they were part of or supported a terrorist organisation.  S is in a situation where they cannot be forced to return to their home country (due to non-refoulement) but won’t be accepted as a refugee (because Article 1F applies).

As Australia has a system of mandatory detention for people who are yet to be or are unable to be cleared for community detention, people in S’ position will be kept in detention until either they voluntarily leave Australia or the conditions in their home country change such that they no longer have a well-founded fear of being persecuted in their home country.

Unlike a lot of people, I am comfortable with this regime.  Is there room for improvement?  Yes.  But the environment in which the system works is sub-optimal and there’s only a finite amount of money that can be spent, so there will always be room for improvement.

But the thing that has really upset people is that the security assessment isn’t reviewable.

Let’s go back to S’s situation.  Imagine there’s a negative security assessment made about S.  Under the current system, there is no obligation to tell S on what grounds the security assessment was made.

This has caused a number of people to get out their tired old soapboxes about rights and blah blah blah.  Yet another example of the State trampling the rights of little people.  Yet another example of why we can’t trust ASIO.  Yet another reason why all asylum seekers are incapable of the slightest evil.

When framed as a competition between the asylum seeker and the State, it’s easy to feel that this situation is inherently unfair and unjust.

But it’s not.

When making a security assessment, ASIO rely on a wide range of sources.  This will include reliable leaks from people in the area gathering information.  To give the asylum seeker access to the information used to discover their security risks, you potentially expose innocent people to repercussions.

The Wikileaks crowd have probably made up their minds about that.  Even Assange didn’t give a crap for informants helping the ‘Coalition of the Willing’.  But I feel that Australia has a responsibility towards people who provide us with information, especially if it’s corroborated with other information.

Further, providing access to the information gives the asylum seeker the opportunity to inform others how the information was obtained, making it easier for them to cut the flow of information.

There are therefore good reasons not to provide the asylum seeker with the reasons for the decision.  On the other hand, there are good reasons for improving the system.

A good suggestion was put forward to create either a chapter III court or an administrative tribunal that could review ASIO decisions.  A senior public servant position could be appointed specifically for the purpose of representing asylum seekers in this process.

At any rate, Art1F affected people present a difficult legal and policy issue.  Absolutists with megaphones won’t progress the discussion.

My memory is hazy, we’re moving away… Ideology and #refugees in #auspol

When it comes to asylum seekers and refugee policy, I just don’t know.

On the one hand, it is difficult to imagine a more vulnerable group of people than asylum seekers.  On the other hand, are those who arrive by boat more entitled to have their protection claims assessed than those who are waiting in refugee camps?  On the other other hand, are those in competition?  Why do we subtract those who come by boat from those we take from overseas?

I just don’t know.

What I do know is that we are still not having a rational debate about asylum seeker policy.  We have two sides of this ‘debate’ who are flatly disinterested in recognising the merest possibility that any disagreement could be the product of rational thought.

On the one hand, we have hate-mongers.  We have people who live in utter flood of Muslims descending into Australia, like a giant red arrow in a Liberal Party advert.  We have people who just worry about losing control of their privileged state.

On the other hand, we have people who will never be satisfied whatever the government does.  We have groups who exist for the sole purpose of complaining that the government is evil and inhumane towards the vulnerable.  We have people who cynically play on the word ‘detention‘, causing confused debates about children being in detention centres.

On yet another hand, we have people who think temporary protection visas and offshore detention centres deter people fleeing for their safety, because push factors don’t exist.  On a different hand entirely, we have people who think that if you can make it to Australia, you should be automatically granted a visa after fourteen days (unless you admit to being a security or health risk), because pull factors don’t exist.

In short, we have a lot of hands all of which are clutching at the same scarce fact-straws.

Nearly every week, Q&A discusses asylum seekers.  For the eleventy dozen weeks the show has been on air, nobody’s really said anything significant to change the debate.  Why?  Because people are far too interested in the sound of their own opinions in the air and aren’t at all interested in what anybody else has to say.

It’s not even a problem unique the the asylum seeker debate.  From carbon taxes to water management, people are only interested in voicing their own opinions rather than engaging in serious, critical, analytical discussion of another person.  To do so would be to admit that they were capable of stringing a coherent thought together.

It’s why nobody’s asked: ‘Hey, if Howard’s asylum seeker policy stopped the boats and he thought his policies were working, why did he blow millions of dollars constructing the Christmas Island Detention Centre?’

It’s why nobody’s asked: ‘Hey, why do so many people accept the views of activists uncritically?  Don’t activists have an interest in keeping the public outraged at all times?’

It’s why nobody’s asked: ‘Hey, why do so many asylum seekers need to resort to people smugglers in order to get refugee status?  Shouldn’t the international community be emptying the refugee camps as quickly as possible?’

It’s why nobody’s asked: ‘Hey, why should people smugglers determine Australia’s humanitarian intake?  Shouldn’t Australia be able to determine its own humanitarian intake?’

There’s nothing flatly irrational about any of the above questions.  Nobody asks them because they acknowledge a fabled Middle Ground where complex policy issues aren’t all black and white, where there aren’t goodies and baddies, where positions can’t be summed up in three-word slogans or in slacktivist e-mail campaigns.

For those who want to have a serious debate about these things, read the Centre for Policy Development’s A New Approach. I don’t agree with everything that they say (and I worry that there’s very little input from a conservative perspective), but at least I have to think about why I disagree.  It’s nuanced positions like the CPD’s — and not the clanging of the ideologues — that will eventually put these issues to rest.  People should either engage in serious debate and discussion, or pipe down.