23 July 2013

How many will die if we do stop the boats?

Will stopping the boats really save lives? That seems to be the one argument that gets any traction outside of redneck circles, but does it hold up?

Over the past decade around 35,000 asylum seekers have come to Australia by sea (about half in the past 12 months). Figures on how many have died at sea are obviously not so certain, but the number I hear most often is around 1,200. So, the argument goes, if no boats had come in the past 10 years twelve hundred lives would have been saved.

But what about those 35,000 who made it here? The government admits that up to 90% of them are genuine refugees. A refugee is a person who has a well-founded fear of persecution, which includes a fear of death. Obviously not all of those 31,500 genuine refugees would have been killed if they had stayed put, but even if 10% of them faced such a risk that would still be more than twice the number lost at sea.

I am speculating, of course. But my point is that the argument about drownings at sea ignores the total picture of what is going on. The main problem is the way the question is put: stopping the boats? Who cares about boats? They are only pieces of wood. It's what happens to the people that matters.

If we stop the boats, we stop the refugees. If we stop the refugees, some of them, I don't know how many, will die. Others will be tortured or imprisoned. It won't happen on our TV screens, but it will happen.

I don't know if the "PNG solution" will stop the boats. It seems many people have forgotten that a key element of Howard's "Pacific solution" was that the people sent to Nauru were told they would never be resettled in Australia. In the end, most of them were resettled here or in New Zealand. I suspect Tony Abbott is right when he describes the latest plan as held together by blue tac and sticky tape and only intended to last until the election.

Whether it works or not, it won't save lives. It just doesn't add up.

06 June 2013

Voices that won't be heard

Labor MP Laurie Ferguson has warned the Gillard government that it needs to tell people there are "no easy options" when it comes to asylum seekers arriving by boat.

One of the most respected researchers on global migration movements, Dr Khalid Koser, in an article published by the Lowy Institute for International Policy, put it simply: "If I were running for office in Australia this September, I certainly wouldn't be raising false hopes about stopping boats any time soon."

Meanwhile, the 457 debate rattles on in the background with the government promising "sweeping reforms" to a program it has had six years to reform already, while the real problem turns out to be not Australian workers losing their jobs but the exploitation built into any temporary visa model which is dependent on employer sponsorship.

I suppose it's hard to be heard from the tumbrel as you're being carted off to the guillotine, but the Gillard government isn't even trying to shout above the noise of the mob. Laurie's admonition will not be heeded, nor will Dr Koser's. Instead, the Labor aristos seem to be amongst the loudest calling for their own destruction. If the only idea you can come up with for dealing with asylum seekers is stopping the boats, and the only way you can think of for stopping the boats is cranking up the inhumanity shown to their occupants, then the government's failure is undeniable on the statistics (not that we can expect any better from Tony "Robespierre" Abbott). Ditto if you think the answer to abuses in a visa system riddled with mostly ineffective bureaucracy can be eradicated by "sweeping reforms", particularly if those reforms are just more ineffective bureaucracy.

No one is listening to the voices that are saying it's not how the asylum seekers are coming, it's why, or that there will always be abuse of the 457 visa because it is structured to bring together the desperate with the unscrupulous.

So we roll on towards the 14th (of September, not July).

16 May 2013

What does "excising the mainland from the migration zone" mean?

Whatever it means, it doesn't mean what it says. The "migration zone" is that part of Australian territory where anyone who is not an Australian citizen needs to have a visa. To any ordinary speaker of the English language, the act of excising something from a particular zone would mean that place was no longer in that zone. So no one would need a visa in the excised bits.

Not so in the weird world of Migration Speak.

It all began with the Migration Amendment (Excision from Migration Zone) Act 2001. That's the short title of the legislation, which is what most people refer to when talking about an Act of Parliament. But like all Acts of Parliament, this one has a long title:

An Act to excise certain Australian territory from the migration zone under the Migration Act 1958 for purposes related to unauthorised arrivals, and for related purposes.

It's the words I have emphasised that twist the whole thing around.

The original legislation applied to the islands around Australia's northern perimeter, particularly Christmas Island, Cocos (Keeling) Islands and the Ashmore and Cartier Island group, where most asylum seeker boats arrive. There was never any intention to cut these places out of the migration zone altogether. If that had been done, foreigners would not need visas to enter or remain there. The effect of the "excision" was no more (nor less) than the removal of the right of a person who had arrived in one of those places without a visa to apply for a protection visa on arrival. Australia thus became the first country in the world to treat asylum seekers differently depending on which part of the national territory they arrived at.

The legislation that has just passed the Senate does not "excise" the rest of the country from the migration zone. If it did, Australia would have no borders and no visas would be required for anyone to enter or stay here.

What the latest amendment does is even more astonishing.

Instead of distinguishing between the places of arrival of asylum seekers, we will now distinguish between methods of arrival. What matters under the new legislation is not where an asylum seeker enters Australian territory, but how they do it. Arrivals by air will have certain rights, arrivals by sea will not. Another Australian first in international law.

There are of course a few grey areas. What about flying boats? hovercraft? water wings? aquambulation? Indigenous Australians might be excused for thinking that these laws should have been introduced a couple of hundred years ago. They certainly highlight a fascinating paranoia in the white Australian psyche.

So what difference does it make how an asylum seeker gets here? Absolutely none, according to international law. If any distinction were to be made as a practical matter, the following facts would have to be taken into account:

  1. Asylum seekers arriving by boat are far more likely to be found to be genuine refugees than those arriving by plane.
  2. Plane arrivals are just as likely as boat arrivals to have lied about their intentions in coming here and/or to have paid a lot of money for fake documentation.
  3. There are no "good" refugees who wait patiently in camps while the "bad" refugees get into boats. Any genuine refugee would get into the first boat that came along if there was one.
  4. Being nasty to asylum seekers, being really nasty, being really really nasty, being downright bloody inhuman, doesn't deter them. It just adds to their suffering.

Well, four months to go before the day arrives when Tony Abbott wakes up as Prime Minister and has to face the question, how do you stop the boats? Er, Labor did its worst, so maybe... bring about world peace, end inequality, end racism and intolerance.... Go for it Tony.

20 March 2013

Watch out for a migrant bashing election campaign

Listening to the new Minister for Immigration about 457 visas I had to check on Google that he wasn't in fact the Opposition spokesperson. He seemed to be taking some pretty hefty swipes at the temporary visa program, which his own government has had the running of for the past five and a half years. The Prime Minister sounded similarly oppositional, as if it wasn't her government who was in charge. Maybe they are just getting in some practice for September, after which they are almost certain to be in opposition for real.

On the other hand, maybe they are being far cleverer than I thought. In attacking their own policies, the plan might be to get the Opposition to defend them. Abbott and Morrison seem to have fallen for it alright. I fear the subtlety may be lost on the electorate, however.

Seriously, though, subtlety has nothing to do with it. Gillard's speeches to the Western Sydney masses have all the finesse of old-time migrant bashing jingoism. We won't put foreign workers ahead of Aussies on the jobs queue (like we have been doing ever since we got into office?).

So much for the headlines. Now for the fine print (taken from the Department of Immigration website http://www.immi.gov.au/skilled/strengthening-integrity-457-program.htm):

What is labour market testing and how has it been used in the past?
Traditional forms of labour market testing involves [sic] advertising the position prominently in national and local newspapers, trade magazines and/or on job seeker websites over a number of weeks to prove that no suitably qualified Australians could be found for the position.
In the past, by the time an employer approached the Government to sponsor a skilled worker from overseas, they had already tested the local labour market thoroughly. However, they were still forced to go through the prescribed process which usually involved extra costs and delays for the employer.

Why is the government not reintroducing Labour Market Testing?
The 457 program is an important part of how Australia meets a number of our international trade obligations. These obligations mean we can't limit access to our economy of people who wish to do business with us. Part of doing business with us often involves sourcing skilled labour from other countries. Australia must remain open for business people and service providers and the reforms to the 457 program will not adversely impact these obligations.
You will probably have to read that last paragraph over a few times before you can make any sense of it. Apparently our international obligations prevent us from actually insisting that employers give preference to local workers. Never mind, thump the table hard enough and no one will notice.

Meanwhile, back in the real world, shouldn't we be asking questions like: if we are bringing in foreign workers to fill skill shortages, what are we doing to prevent those shortages from occurring in the first place?

Still, it has to be said that Labor is pretty amateurish at the migrant bashing thing, although they are learning. The real Opposition spokesperson, Scott Morrison, came up with the idea of "behaviour protocols" for asylum seekers living in the community, and Opposition Senate Leader Eric Abetz backed him up by saying it is necessary for a cohesive society that people be told if someone with less than perfect English or a traumatised background moves in next door. He went on to say that he wasn't comparing asylum seekers to paedophiles, "necessarily".

Watch out for a migrant bashing election campaign.

29 December 2012

Lock them all up (but give them the key)

My first chance to catch up with the blogosphere since before Christmas and I can't help going back to a suggestion I have made a few times before about asylum seekers.

First, what got me going again on this issue (in reverse chronological order):

Without direct comment on any of the above, except to say that Bernard Keane suffers from a whopping oversupply of credulousness when it comes to the Sri Lankan government, I am prepared yet again to go way out into left (or right) field with these suggestions:

1. Treat all asylum seekers the same. There is after all no justification in international or domestic law for having a totally different regime in place for people who arrive by boat or by plane. The plane people are just as likely to have used some sort of covert means to get here, including just simply pretending they were only coming for a visit when they intended all along to apply for asylum.

2. Don't give any of them permission to work, and lock them all up.

3. Give them the key.

Now, I realise that technically you haven't locked someone up if you give them the key, but at least it might help the pollies with their sound bites if they can say something like "Yes, we're locking them all up" then run off before the questioning gets to keys and stuff like that.

Actually what I mean is that all asylum seekers, regardless of means of arrival, should be accommodated in open hostels where they can live, be fed and clothed, but still come and go as they like providing they don't take up accommodation somewhere else -- a few rules like reporting in on a regular basis would be required, backed up by actual detention for non-compliance.

Having full room and board would mean they wouldn't need to work. A small daily allowance to allow people to take public transport to visit their lawyer or go to a movie would be a lot cheaper than social security payments.

Why not let them work? Well, as I said, Bernard Keane is way too quick to believe the rhetoric about the Sri Lankans, but in both the boat and plane arrival groups there are undoubtedly people who (OMG!) are desperately trying to find some way of feeding their families back home by getting work in a Western country by whatever means possible. In fact, from my own experience I am well aware that there are whole rackets at work sending people to Australia, mostly by plane as it happens, with instructions on how to apply for a protection visa, then appeal to the Refugee Review Tribunal, then have a shot in the courts, while getting legal permission to work throughout their stay.

Would this stop the boats? I doubt it. Actually I think it would have more of an effect on reducing the number of plane arrivals, but, and here I am really going out on a limb, THE BOATS ARE NOT THE PROBLEM!

(Sorry about the capitals, graphic equivalent of shouting I know, but I just lose it sometimes on this issue.)

People are dying at sea. They are also dying on the trek across North-East Africa to the camps in Kenya. They are dying in the Mediterranean, even in  the Atlantic. They are dying in the Arizona desert. We could do something to reduce the danger by increasing real offshore processing in Indonesia and Malaysia, but they will keep coming so long as they consider the danger of the voyage to be less than the danger of staying put.

23 November 2012

Back to the past -- temporary protection visas re-introduced, only worse

The recent announcement from Chris Bowen, Minister for Adopting Opposition Policies While Pretending Not To, has taken the art of political dissimulation to new lows. The dreadful Howard government policy of punishing "bad" refugees (the ones who pay to get on a boat rather than paying to get on a plane) by giving them time-limited visas with no security for the future and, most importantly, no way of reuniting legally with their families, has now been resurrected by the Gillard government as a "no advantage bridging visa".

So has the Labor government given in and adopted the rest of the Howard asylum seeker policy? Actually no, they have gone further. People who have been found to be genuine refugees, I repeat, genuine refugees, will be shoved out into the community with no permission to work, no future, some sort of minimal "living allowance". Importantly, they will have no right to reunite with their families, legally at least. Under the Howard TPV system this led to more boats, not fewer, with more women and children forced to take their chances at sea.

Unlike the old TPV, there will be no time limit. This fact alone is guaranteed to increase the despair and mental damage done to the refugees, as well as creating a threat to the general community in the form of a deprived, despised underclass at large with nothing to lose and no hope for the future.

Meanwhile, at least as many people who take the desperate option of a leaky boat arrive every day by plane, often having paid as much as the others for forged documents, bogus visa applications and airline tickets. Some of them, statistically far fewer than the boat arrivals, are genuine refugees as well, but there is no detention, no Nauru, no denial of work rights for them. Recognition as a refugee gets them permanent residence immediately, although if anyone has jumped the queue, they have.

Why? Spineless stupidity springs to mind as an obvious explanation. In fact, I think I'll leave it at that. Plane people don't get on the six o'clock news, boat people do. It's as simple as that.

Not to be deterred by the fact that Labor has adopted another of his policies without ackowledgment, Opposition leader Tony Abbott has been quick to up the ante. Not only would his government keep asylum seekers on starvation wages, he would make them work for it.

If anybody cares any more, here is a link to the Convention on the Status of Refugees. Jump to Article 17. It says "The Contracting States shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment." Read on from there to find obligations regarding self-employment, social security, housing, education etc., and then you get to Article 28 which says that the Contracting State has to issue refugees with travel documents to allow them to travel outside the country. All of these obligations apply to refugees, that is to people whom the country has recognised as coming within the definition of a refugee in the Convention.

Only Australia distinguishes between "good" refugees and "bad" refugees, entirely on the basis of their means of transport to the country. If the Gillard government manages to get its latest changes through Parliament, the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill, the distinction will be complete. An asylum seeker arriving by air will be given permission to work and allowed to live freely in the community, while one arriving by boat will be locked up, shipped out to a camp in a foreign country or forced to beg on the streets of our cities. Why? Oh yes, of course, it's our overriding humanitarian concern to stop people drowning at sea. If so, for a fraction of the billions of dollars we are spending now we could institute real offshore processing in our region so that people wouldn't need to get on boats, and enhance our maritime surveillance and rescue systems if they do.

Or we can just keep competing to come up with the most offensive measures we can think of to demonise, punish, humiliate, psychologically torture, physically demean, socially ostracise people whom we have an international obligation to protect and welcome into our society.

Meanwhile, the boats keep coming. You just can't deter some people.

02 July 2012

The self-delusion of "good" and "bad" refugees

Are there "good refugees" who deserve our help, and "bad refugees" who don't? It's become part of the self-justifying rhetoric of the "stop the boats" crusade that some refugees are better than others. The ones who do the right thing by waiting patiently in refugee camps in Africa are supposedly more worthy of our compassion than the ones who risk their lives on boats to reach our shores without prior permission.

As usual, the purveyors of these myths aren't interested in facts that spoil their fatuous arguments. The journey from Somalia or Sudan to the refugee camps of Kenya is every bit as dangerous, and unauthorised, as the boat trip from Indonesia to Christmas Island. The death toll is impossible to calculate, but the causes are well known: bandits who kidnap, rape and kill, hunger and thirst that leaves the weakest behind on the track, wild animals. Anyone who suggests that these people wouldn't take a boat to a Western haven rather than trudge on to the squalor of places like Dadaab in Kenya is engaging in the self-delusion that is all that Labor and Liberal can offer as a solution to the boat people problem. This is the self-delusion that pretends the problem is solved when you can't see it any more.

There are no good refugees or bad refugees. The urban Jews of Germany and Austria who had assets to sell and pay for their escape were no better or worse than the impoverished Shtetl dwellers of Eastern Europe who had nothing, and were machine-gunned in pits. The people in Dadaab are not waiting because they are better people. They just have no other choice. There are no refugee queues, no genuine refugee is more deserving than any other. We have to stop kidding ourselves about this.

If some Australian government did stop the boats, what would happen to the people? With the line choked off at the end, they would be forced back to squalid camps and precarious lives in Indonesia, Malaysia, and further up the line in Pakistan and Iran. Would that make them good refugees? Or just not our problem?

26 June 2012

Disinterest, fear or memory? Three ways of looking at asylum seekers

Former Immigration Minister Amanda Vanstone made her position crystal clear on the ABC's political talk show The Drum. Asylum seekers who take it upon themselves to come knocking on our door, as is their right under international law, should never be allowed permanent residence in Australia, nor should they ever be allowed to bring their families to join them. That way they will be discouraged from the attempt and will then, well, who cares what they do then?

Vanstone subscribes to the "out of sight, out of the headlines" school when it comes to the asylum seeker issue. Just stop them getting here, and the problem is solved. Where they might go, or stay, is no concern of ours.

Australia's delegate to a world conference on refugees in 1938 famously said that Australia had no racial problem, and "was not desirous of importing one". These words are now recorded, to our country's eternal shame, on the wall of the Holocaust Museum in Jerusalem. Yet there is little difference between the views expressed by the delegate, Thomas W. White, and Vanstone's. Just keep the problem away from us, over the sea wall, out of sight, and for us there is no problem.

Another participant in the show was Jennifer Hewett, a columnist with the Australian Financial Review. Hewett gave voice to the floodgates school of thought, worrying to the point of panic about where would it all end if we just keep letting them in? This school is yet to explain why Australia has not already been flooded by millions of better-life-seekers from nearby countries like Indonesia and the Philippines. It's hard to be rational when you are trembling in a corner.

Fortunately I stayed watching the ABC that night and got to hear Louise Adler on Q and A. Her mother was a refugee who slipped past the old guard in T. W. White's time. She took both the ALP and the Coalition to task by pointing out that the problem is an international one that should not be beyond the intellectual capacity of out leaders to address intelligently.

Three Australian women's consciences revealed: Vanstone doesn't have one, Hewett might but has let it be silenced by irrational fear, Adler remembers that who we are as a people is measured by how we treat others.

27 May 2012

Too much demagoguery clouds the immigration debate

Once again, discussion of immigration policy descends to the lowest (or most ill-informed) common denominator. Gina Reinhart gets 1700 foreign workers while Qantas lays off 500 Aussies! Something must be wrong with that!

There are plenty of valid grounds for criticising Australia's skilled migration policies. I have often referred to the negative impact of importing skilled labour for free rather than producing it here. The policy tweeks designed to "ensure" that employers maintain a commitment to training local workers are woefully inadequate, in my view. The long-term effect of creating a workforce in which the higher status, higher paid positions are held by foreigners while the local population is denied training opportunities worries me a lot. Heretically, I have even gone so far as to suggest we should look at importing low skilled domestic and hospitality workers rather than tradespeople and IT professionals, whom we should be training here.

But what we are hearing now from the likes of Paul Howes and others is uninformed demagoguery. Reinhart's 1700 construction workers are not taking the Qantas employees' jobs. The mining boom, providing the government has the guts to stand up to its bullying and tax it properly, is the best hope we have of finding the money to repair the damage done to our education and vocational training programs over the past two decades of neglect. Otherwise our young people may soon be packing off to China to look for work as kitchen hands.

11 January 2012

Temporary residents not "integrating" -- maybe because they're temporary?

The Opposition spokesperson for immigration, Scott Morrison, thinks that people holding temporary work visas are not "integrating" with Australian society.

His colleague Teresa Gambaro suspects this may have something to do with their unfamiliarity with certain cosmetic products.

Both of them seem to be missing the point: temporary residents are temporary, they aren't supposed to integrate. We only want them for their labour skills, not their ability to get outside of a cold beer, or whatever "integrating" means. If we wanted them to become part of our society, make their lives here, take part in our democracy, send their kids to school to become skilled Australians, we should give them permanent visas.

That's how it used to work, anyway. I can't think why we changed it.

But looking at this more closely, skilled professional politicians don't just let loose with statements like this without knowing exactly what they hope to gain by them. This is dogwhistling at its best. The art of the double entendre is to hide one meaning behind another. Migrants are smelly. So it's okay not to like them? Oh, no, I didn't mean that! Sorry if anyone took my comments the wrong way.

I suspect Ms Gambaro knows exactly how her comments are likely to be taken.

21 December 2011

The Great Offshore Processing Con

(This entry was amended after reading Robert Manne's views in The Monthly)

Christmas may be the silly season for television programming, but Australia is experiencing a long silly, or rather plain stupid, season in the politics of asylum seeker processing.

Both major parties appear to support something called "offshore processing" as opposed to "onshore processing". However, neither will accept the other's plan for how to go about it, so they have snookered each other. This allows each to claim the high (pseudo-)moral ground and blame the other for everything from the spectre of rioting in the streets to the tragedy of people drowning in unseaworthy boats.

Besides the politicians, the media and practically everybody else takes one side or the other on the onshore-offshore debate, without questioning the basic assumption that there is a real alternative on offer. Onshore processing is clear enough, though whether people should be locked up for the duration is another question. But what is this offshore processing that both sides are proposing as the dyke that will protect our fair land from being flooded?

Labor's "Malaysian solution" certainly doesn't offer anything in the way of offshore processing, as opposed to offshore dumping. Sure, the idea is that we would take a tiny increase in our overall refugee intake in return, but that would not involve any more processing of claims than is already being undertaken by agencies such as the UNHCR.

The Coalition's "Nauru option" might technically involve processing asylum seekers in another country, but apart from the flag flying over the detention camps there would be no difference between Nauru and Christmas Island. The only place they can go from there is the Australian mainland. The Coalition's real plan is to return to the Howard era of towing boats back to Indonesia (which, interestingly, Labor says its plan would achieve in a "virtual" manner) and the moral dead-end of temporary protection visas (which if anything led to more people taking boats because family reunion was not allowed).

Political scientist Robert Manne suggests that an amended version of the Nauru plan would be "the least bad asylum seeker policy". He suggests an annual quota designed to result in a "two or three year wait" which, he says, "should act as a powerful deterrent".

Prof. Manne does not appear to appreciate that almost every single one of these people will be found to be genuinely fleeing life-and-death situations in their home countries. They have acted out of desperation to save themselves and their families, and have cut off all avenues of return. To make a two to three year stay in a detention camp such a powerful deterrent that they would prefer the indefinite squalor of life as an illegal immigrant in Indonesia would take some effort, though perhaps it would not be beyond the capabilities of the architects of places like the Baxter and Scherger concentration camps in Australia.

What both sides really want is to stop the boats, or perhaps from the Coalition's perspective to stop Labor stopping the boats while trying to convince the electorate that they would stop the boats if elected. The aim is not to solve the refugee problem, it's to solve our refugee problem. It's like convincing yourself that you can end poverty by locking up beggars.

Stopping the boats is not about stopping people drowning. A genuine intention to dissuade people from risking their lives on the high seas would involve real offshore processing, in the places where the asylum seekers get on the boats. After all, why send people to other countries for processing if they are already there?

A recent study from the Centre for Policy Development points out that the Scandinavian countries, with roughly the same total population as Australia, process six times as many asylum seekers as we do, and they are nowhere near any third-world transit countries.

Instead of real offshore processing, what we have is a confidence trick being played by both sides to cover up their cowardice and ineptitude in the face of the threat of losing votes by confronting the old visceral fear of white Australia: that other people will come on boats and take our land away, just as we did.

09 December 2011

Privacy, sword or shield?

A couple of unrelated incidents this week got me thinking, again, about privacy and our relations with the State. Over many years I have often suspected that the idea of privacy, when raised by anyone in authority, is more of a repressive idea than a civil right.

First, a refugee family in detention in Sydney -- and I say refugee rather than asylum seeker because apparently they have been found to have a well-founded fear of persecution but are still awaiting security clearance before being released. According to the Sydney Morning Herald, the four-year old child of the family was attending a function at his pre-school under the watchful gaze of security officers protecting the community from the dangers posed by the toddler. When it came time for the photos, the officers stepped in and refused any snaps to be taken. Why? according to the SMH, they claimed they were protecting the family's privacy. Hang on a second, I thought, if a person is willing and happy to have their photo taken (or in the case of a small child, if the parents are), then surely they have waived their right to privacy. Or can privacy be thrust upon you? Apparently so, in this case at least.

In the second case, a woman attending an Occupy Movement protest in Melbourne probably wished her privacy had been so diligently defended by the organs of the State. As a protest against the confiscation of tents and sleeping bags, she had fashioned a dress into the shape of a tent. A group of male and female police officers surrounded her and forcibly removed the garment, at one point emplying a knife to do so, while the woman protested loudly and made it perfectly clear that she did not consent to what was happening. As the cops marched off with their booty, she was left huddled on the ground in her underwear.

It seems that privacy is something that can be thrust upon you, or torn and cut away from you, depending on the whim of the authorities. I'm not sure that is what it was supposed to be about.

23 November 2011

The Majestic Equality of the Law for asylum seekers

"The majestic equality of the law," observed the 19th Century novellist Anatole France, "makes it an offence for rich and poor alike to sleep under bridges, beg in the street, or steal bread."

The Senate Legal and Constitutional Affairs Legislation Committee has shown that the same majestic equality applies to foreigners attempting to enter Australia without a visa, and consequently to anyone who helps them.

The report is available here.

It is not actually a criminal offence to come to Australia without a visa to ask for asylum, any more than it is a criminal offence for someone to knock on your door asking for help of any kind. According to the Government and the Coalition combined, however, people who don't have visas have "no lawful right" to knock on our national door. This is nothing more than a simple statement of the fact, confirmed by High Court opinion, that international law is about relations between States, not about the rights of individuals.

Not having a right to do something, however, doesn't make it wrong. It just means you have to ask. That's why they are called asylum seekers.

Millions of people ask to be let into Australia every year. The overwhelming majority do so by applying for a visa: because they can. They don't get on leaky boats and risk drowning to try to get here: because they don't have to.

That's where Anatole France comes in. Rich people don't have to sleep under bridges, and people who can get visas usually aren't fleeing for their lives.

With bipartisan support (minus the Greens, or course), the Bill will get through. As I have previously commented, if it is only meant to confirm what everyone thought the law was for years, then calling it a Deterring People Smuggling Bill is a grossly optimistic.

02 November 2011

Do deaths at sea justify the Malaysia solution, or retrospective legislation?

Having previously attempted to replace its obligations under the Refugees Convention with a type of politician's carte blanche called the "national interest", Australia's minority Labor (yes, Labor) government has now thumbed its nose at the International Covenant on Civil and Political Rights (ICCPR) to which, like almost all other civilised countries, we are a signatory. Article 15 of the ICCPR has two parts:
  1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.
  2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

On the evening of 1 November 2011 the House of Representatives passed a piece of legislation called the Deterring People Smuggling Bill 2011. (It has become fashionable to give legislation names that look like they were thought up by an advertising agency, but let that go). What this legislation does flies in the face of Article 15.

Since 1999, sections 233A to 233D of the Migration Act have imposed sentences of up to 20 years, with a mandatory minimum of 5 years (s 236B), for people involved in "people smuggling", defined as bringing to Australia someone who has "no lawful right" to come here. In a case currently before the Victorian Supreme Court, defence lawyers have argued that a genuine refugee seeking to invoke Australia's international and domestic legal obligations of protection cannot be said to have no lawful right to come here. Ordinarily the case would be determined by the Supreme Court by judicially interpreting the legislation, and would then in all probability have gone on to the High Court to make a final interpretation. If the defence case were to be upheld, it would mean that when the accused brought the refugees here they were not breaking the law at that time. The Bill passed yesterday, in under an hour with support from Labor and the Coalition, changes the definition of "no lawful right" to mean simply that the person didn't have a visa or was not exempt from having a visa, regardless of whether Australia may have protection obligations under the Convention and the person may have been come here to seek that protection. That would mean that what was not illegal (assuming the defence case is correct) when it was done, would be made illegal by the amendment.

It would be impossible to argue, nor did the government try to do so in presenting the Bill to Parliament, that bringing refugees to Australia would be "criminal according to the general principles of law recognized by the community of nations". Article 15.1 of the ICCPR therefore expressly prohibits this retrospective criminalisation.

In its brief defence of the Bill in Parliament, the government made no mention of the ICCPR. Its justification was simply, "to clarify an existing understanding of the laws, and to ensure convictions for people smuggling offences already made as well as prosecutions underway are not invalidated." This is no justification at all. There can be no "existing understanding" of what legislation means if that understanding is ruled incorrect by a superior court. Since the US Supreme Court judgment in Marbury v Madison in 1803, a case long accepted as axiomatic in Australian jurisprudence, courts have had the final say on the meaning of the law. Any "existing understanding" to the contrary would be, quite simply, a wrong understanding.

Besides breaching Article 15, the Bill also in its specific reference to the Refugees Convention further distances Australia from that international instrument and raises the question again of whether this country should be taken to have effectively resiled from it.

Neither the government nor the opposition in supporting the Bill let go the chance of referring to the issue of deaths at sea of asylum seekers trying to reach Australia. The ultimate fall-back position of both sides is that travelling to Australia on unseaworthy boats is dangerous. Neither side, however, noticed the fatal flaw in their argument. The purpose of the law is to "deter" people smugglers by making their actions illegal. But, according to its supporters, it has been the "existing understanding" since 1999, presumably even amongst people smugglers, that these actions were illegal. Yet the 300 or so people convicted since then obviously were not deterred. It hasn't worked for over a decade, why should it work now? The fact is the law has only ever punished the impoverished and illiterate fisherman conned or coerced into crewing the boats by the real people smugglers who stay warm and dry in port.

But people do die at sea on those leaky boats. I would not accuse either side of disingenuousness in pointing this out. The fact that it is the most seemingly humanitarian argument they have to support their conflicting Malaysia / Nauru solutions doesn't mean they don't genuinely care about the tragic loss of life, and it would be fatuous to pretend that it is not a legitimate issue in the debate.

The problem is, in humanitarian terms we are offering nothing as an alternative to taking the risk of getting into one of those boats. It is as if a group of people were gathered on the balcony of a burning building, with people below warning them not to jump because it was too high. If one does jump, and survives, do we throw them back into the fire to deter the others?

Sending asylum seekers back to Malaysia or Indonesia, or forcing them to stay there, is denying them their internationally recognised legal right to seek asylum in a country that is a signatory to the Refugees Convention. We cannot deny them that right. If it is dangerous for them to avail themselves of it, then we must do all we can to reduce that danger by arranging for meaningful avenues to reaching safety legally. At the very least we must ensure they are fully aware of the danger, which the evidence seems to suggest some of them may not be. Instead, it appears our shadowy "disruption programs" do little more than force desperate people into the hands of the most unscrupulous of the smugglers, working with the most corrupt of local officials. Compelling evidence of this sort of collusion has been available since the infamous Siev-X sinking.

As a footnote, it is worth remembering that Australia is also a signatory to the Optional Protocol to the ICCPR, which allows individuals who believe their rights have been breached to take a case to the United Nations Human Rights Commission for adjudication. Australia may yet have some explaining to do.