This is part of a major series called Advancing Australia, in which leading academics examine the key issues facing Australia in the lead-up to the 2019 federal election and beyond. Read the other pieces in the series here.
With a rapidly changing climate and increased instability in the world order, patterns of people movement are likely to change dramatically in the future. It is not a tenable response to isolate Australia from the shocks of these changes.
Sadly, the politicisation of refugee policy since the Tampa crisis of 2001 indicates that our major political parties are incapable of the kind of honest and open decision-making that is required in this complex and vexed policy space. However, the passing of the Kerryn Phelps-led amendments to the Migration Act to facilitate medical evacuations from Manus Island and Nauru may point to a shift in the nation’s mood on the issue.
In the second half of the 20th century, Australia transformed the idea of itself into a multicultural nation. An important part of this story has been Australia’s contribution to the resettlement of refugees.
Australia was the first country outside Europe to accede to the 1951 Convention Relating to the Status of Refugees. Australia was also an early adopter of the 1967 protocol that extended the convention beyond Europe. Australia’s generous resettlement of refugees under the convention has reinforced its identity as a nation built on migrants.
Australia’s acceptance of refugees remained uncontroversial while the numbers of refugees could be strictly controlled through its immigration program. The first serious challenge to control was the arrival of boatloads of Vietnamese refugees in 1976. However, the Fraser Coalition government maintained control through an arrangement with South East Asian countries that Australia would resettle a high number of Vietnamese refugees if those countries stopped redirecting boats that arrived on their shores back out to sea.
How the Tampa changed Australian asylum-seeker policy
When boats began arriving in larger numbers from 1999 to 2001, the struggling Howard Coalition government used the rescue of 438 asylum seekers by the MV Tampa as an opportunity to implement a more restrictive policy. This included boat turn-backs, offshore processing and detention, and issuing temporary protection visas for people arriving by boat whose applications for asylum were accepted. The boats stopped arriving within months.
In 2007, the Labor government dismantled these policy settings. Asylum seekers arriving by boat were rescued at sea and processed on the Australian territory of Christmas Island. If they were found to be refugees, they were granted permanent protection visas. This policy was premised on boat arrivals being at similar levels to those experienced previously. But this proved mistaken.AAP/Wallenius Wilhelmsen
By 2013, refugee policy was in disarray. In 2012, 17,204 people arrived by boat, rising to 20,587 in 2013. This far outnumbered the planned refugee intake of 13,750 and reinforced the fear that Australia was in danger of being “swamped” by asylum seekers.
Prior to this rapid rise in boat arrivals, the Labor government had attempted to introduce a novel policy response, the Australia-Malaysia asylum-seeker transfer agreement. The Malaysian government agreed to the return to Malaysia of asylum seekers who tried to reach Australia by boat via Indonesia. Malaysia guaranteed housing, education and work rights for these asylum seekers, but also that they would receive no advantage in resolving their application for refugee resettlement.
This arrangement removed the incentive to take a risky boat journey to Australia. We will never know if it would have stopped the boats, as the High Court held the government did not have the power to implement the arrangement, and the Coalition and the Greens blocked an attempt by the government to amend the Migration Act to provide it with the requisite power.
In mid-2013, the Labor government changed direction radically. It committed to offshore processing for the first time, stating categorically that no asylum seeker reaching Australia by boat would ever be resettled here.
When it was returned to government in 2013, the Abbott Coalition government readily adopted Labor’s policy and added a policy of aggressive boat turn-backs covered in a veil of operational secrecy. It also reintroduced temporary protection visas for the 30,000 asylum seekers who had entered Australia during the six years of Labor government. Within a few months, boat arrivals had ceased completely.
Asylum-seeker policy becomes a national security issue
The current Coalition government has successfully cast refugee policy as an issue of border security. The ministers for immigration, first Scott Morrison and then Peter Dutton, have spun a narrative that any softening of the government’s stance on resettlement would risk relaunching a flotilla of boats.
The line they have drawn is breathtaking in its strictness. The government has been unwilling even to accept New Zealand’s offer to resettle 150 refugees a year from offshore detention for fear they will then have backdoor entry to Australia. It has also made it very difficult for asylum seekers to get emergency medical treatment in Australia.
The government’s narrative of border protection does not acknowledge the human cost of long-term offshore detention. Since detention centres on Nauru and Manus were opened in 2014, 3,127 people have been transferred there. As of early February 2019, as a result of third-country resettlements and voluntary returns, about 1,000 remain. The last children on Nauru were resettled in the US in February 2019.
Despite strictly controlling access to information from Nauru and Manus, the government has not been able to prevent courageous medical officials bearing witness to the human suffering of refugees. This includes suicides and self-harm, and children simply giving up. It has not been able to prevent Behrouz Boochani using mobile phone messages to write an award-winning book bearing witness to the official strategies used to break the spirit of refugees on Manus Island.Amnesty International handout
Finding a more humane way forward
As on so many policy issues facing Australia, we need an honest discussion on refugees. On the one hand, it needs to be acknowledged that refugees are victims of regimes intent on persecuting them and are deserving (and entitled) to our protection.
As a nation, we continue to have a policy of high levels of immigration, and refugees can be a significant part of our strategy for future prosperity. We have a responsibility not to contribute further to people’s suffering, and thus long-term detention of refugees is untenable.
On the other hand, Australians believe they are entitled to determine who is provided access to the benefit of membership in the Australian state. This being the case, refugee policy must be able to control the number of people who are accepted for resettlement. The most effective mechanism of control is to prevent onshore arrivals by boat and plane, and to use planned resettlement from refugee camps in consultation with the UNHCR.
The unprecedented number of boat arrivals in 2012-13 tilted the equation towards control over compassion. However, there is a sensible middle ground more in line with Australian values.
First, it is possible to resettle all the asylum seekers on Nauru and Manus in Australia expeditiously, without triggering large numbers of boat arrivals. This resettlement must be the immediate priority of a new government. It was never envisaged that refugees would spend up to six years in offshore detention.
Retaining the architecture of offshore detention and processing for the future and the possibility of boat turn-backs is more than adequate deterrent to prevent people risking the perilous journey to Australia by boat. The Coalition governments in 2001 and 2013 demonstrated that if this proves to be wrong, introducing a hard-line policy can stop the boats very quickly.
Second, all those refugees on Temporary Protection Visas and Safe Haven Enterprise Visas in Australia need to be offered permanent protection. Temporary visas create a huge psychological and social burden on refugees in Australia, with no benefits.
Third, the movement of refugees, particularly from the Middle East, through South East Asia to Australia is a regional problem. The Australian government needs to resume discussions with Indonesia and Malaysia about a more nuanced solution.
With the Coalition cutting through with its narrative of fear of invasion and Labor still spooked by policy failure during its previous term in government, it has taken independent MPs to begin to push Australian refugee policy to a sensible middle ground.
Kerryn Phelps’ amendment to the Migration Act, supported by Labor and the Greens, provides for the evacuation of asylum seekers and refugees to Australia if two doctors assess that they require medical treatment not available on Nauru or Manus Island. The minister for home affairs retains the power to reject a transfer on security grounds. The law is also limited in its application to refugees already on Nauru and Manus Island.
In parliament, Prime Minister Scott Morrison and Opposition Leader Bill Shorten framed their positions on the “Medivac” law as a test of character. Morrison focused on the importance of “mettle” and “holding the line”. Shorten focused on “compassion” and “balance”.
The passing of the law ensures refugee policy will be a key election issue once again. The Australian people will determine what version of character prevails.
Authors: Alex Reilly, Director of the Public Law and Policy Research Unit, Adelaide Law School, University of Adelaide