Operation Sovereign Borders, offshore detention and the 'drownings argument'

This article is based on Sarah Joseph’s presentation to the Castan Centre for Human Rights Law’s 2015 conference, delivered on July 24. You can click through her presentation using Prezi below.

On the day of the release of the Human Rights Commission’s report into children in detention, Prime Minister Tony Abbott said:

The most compassionate thing you can do is stop the boats. We have stopped the boats.

Upon being confronted in June by allegations of bribing people smugglers, Abbott replied:

There’s really only one thing to say here, and that is that we’ve stopped the boats. That’s good for Australia, it’s good for Indonesia and it’s particularly good for all those who want to see a better world.

And in response to nearly 2000 drownings in the Mediterranean in one quarter this year, Abbott’s advice to Europe was blunt:

The only way you can stop the deaths is to stop the people smuggling trade. The only way you can stop the deaths is in fact to stop the boats.

And one can see that this line is taken up by some in the media is well – as seen in this tweet from News Corp columnist Chris Kenny.

Under the period of the Rudd/Gillard government, it is widely accepted that around 1200 asylum seekers drowned on their way to Australia. That figure is backed up by Monash’s Border Observatory website, Marg Hutton’s sievx.com website and ABC Fact Check. It seems around 2-4% of those who attempted the journey died doing it.

Under the Abbott government, Hutton and the Border Observatory record about 40 likely deaths by drowning of people trying to make their way to Australia by boat, mostly in a single incident in the government’s first month.

So, the argument is that the government’s suite of harsh measures, including towbacks, offshore detention, offshore processing and resettlement, offshore non-processing and non-resettlement, are designed to deter people from seeking asylum in Australia by boat. They stop people from embarking on dangerous journeys where they might drown.

And now the opposition leader, Bill Shorten, is advocating the same policy, reasoning that the policy “saves lives”.

At first glance this seems a powerful moral argument. The drownings argument has swayed many who were once critical of harsh border measures.

The 50 deaths on the rocks at Christmas Island in December 2010 swayed the ALP left, which was long resistant to offshore processing – and also Paris Aristotle, of the Victorian Foundation for the Survivors of Torture, whose commitment to human rights cannot be doubted. Public intellectual Robert Manne also changed his mind, saying that opposition to offshore processing was part of “ineffectual and sometimes misguided humanitarianism”.

So, how to evaluate this “drownings” argument?

First, we must consider the “bona fides” – or sincerity – of the government’s position. Is it really pursuing harsh refugee policies in order to save lives? Many are sceptical about this. The mantra of “stop the boats” has been around much longer than the explicit concern about drowning.

Motivations are evidenced by actions. Australia has allegedly paid people smugglers to return to Indonesia with their human cargo. The government will neither confirm nor deny, but there is evidence from Indonesia indicating the payments took place. The vessel in question had to be rescued off a reef in Indonesia. That return trip was hardly safe.

The same might be said for the forced returns by way of the orange lifeboats. Three allegedly drowned in a river after such a return.

And just this week, it seems an asylum seeker boat from Vietnam nearly reached Western Australia and has been escorted away, to where we do not know. It is surely safer to let them dock, rather than to send them off to the wide ocean again.

However, the bona fides or sincerity of the argument may not be so important if the policy is saving lives. The ends may justify the means, regardless of alternative perverse motivations.

So, is the policy saving lives? We know that the boats have largely stopped arriving in Australia, leaving aside the boat from this week. But have they stopped leaving Indonesia? Or Sri Lanka? Or Vietnam?

Many of the 1200 assumed dead under the Rudd/Gillard governments disappeared and are assumed drowned. Could the same thing be happening under Abbott, but with less publicity? After all, “on water” matters are now of utmost confidentiality. Iron law, so we were told this week.

This is a spurious resort to national security. Asylum seekers, and even the crime of people smuggling, are not a national security issue. They are unarmed people arriving in this country seeking our help. They are not sneaking into the country; they are all intercepted at the border. In fact they surrender at the border.

To the extent that the government wants to keep information from people smugglers, I suspect the smugglers know a lot more about what is going on than the Australian public. They know which boats have left, which have failed to reach their goal, those which have returned, and perhaps those which have been bribed.

In these circumstances of utter failure in transparency and accountability, the government deserves no benefit of the doubt. It may say it has stopped the boats, but in the face of deliberate concealment of information, we are entitled to be sceptical.

Nevertheless, I tend to think that most or at least many drownings, or lost boats, would be reported. Information does come through from Indonesia (though we know less about what might be happening from Sri Lanka or Vietnam). I think the absence of evidence of drownings does, fairly, indicate there have been none or very few. Certainly less than the numbers under Rudd and Gillard.

So, I am going to proceed on the basis that the government’s core premise holds true. By stopping the boats from reaching Australia, the policy correlates with a drastic reduction in deaths by drowning en route to this country.

So, in that respect, are the harsh policies therefore justified? Do the means justify the ends, regardless of motivation, if the ends correlate with many fewer deaths by drowning. Do asylum seekers, to quote Chris Kenny, “owe their lives” to the Abbott government?

More than 90% of the asylum seekers who have arrived by boat in Australia have been recognised as refugees. At the risk of sounding trite, it is really dangerous being a refugee. Drowning by boat is drowning while fleeing. But it is very dangerous to flee via land. And it is very dangerous to not flee.

And it is very dangerous to go to a refugee camp. There is crime, violence, death, disease and even disaster. They are chronically underfunded.

The options, if one is a refugee, are not good. It is why so many resort to using people smugglers, due to an absence of safe pathways.

The refugee camps – if you can get to one, and that is not easy - are the so-called queues, the homes of the “good” refugees who wait to enter by the front door, not the “bad” refugees who are apparently jumping the queue.

But refugee camps don’t operate like queues – it isn’t first-come first-served. If it was, apparently it would take a refugee arriving in the “queue” now 170 years to reach the front. The average stay in a refugee camp is 17 years. So many stay much longer and even die there.

So there is another reason why people get on boats. People are making a conscious choice that their best option is to seek asylum via boat. Otherwise they have no future.

Furthermore, there is no future for refugees in certain countries in our neighbourhood such as Indonesia and Malaysia. It is hard to get work, hard to get education, hard to have one’s claim processed, and hard to be resettled even if one is found to be a refugee.

In those circumstances – limbo – people seek out a route to a country where they can find resettlement, which used to include Australia.

Like everyone, they care about safety, stability and having a future. And accordingly, many knowingly take a risk. I don’t deny that sometimes people might be forced onto boats unaware of the risk, especially women and children. But the majority are not oblivious to the news of sinking boats.

In December 2011, more than 200 drowned when an asylum seeker boat sank off the coast of Java. Most of the victims were Iranian men. Survivors were interviewed by the media afterwards. They were distraught, but they would try again. One quote:

We will continue this way again. We will go again by boat.

That is symptomatic of the plight of the asylum seeker. It is horribly reminiscent of the plight of migrants of old. I was in Ireland last week, and reminded of mass migration from that country in the 19th century – some of it to Australia but much of it to the US, where the Irish community is now huge and successful.

Yet so many died on the journey to get there. They were known as coffin ships, and the mortality rate aboard them was commonly around 30%. Many of today’s refugees have as few choices as those fleeing famine and persecution in Ireland 150 years ago.

Furthermore, what would you do?

If you would contemplate the boat, if you would take the boat, then the argument boils down to this. Our insistence that they not get on boats may seem compassionate, but it is also the sanctimony of the safe and the rich. We are basically telling desperate people to flee in a way that makes us feel comfortable.

We may have stopped the boats coming to Australia. But ultimately this strategy, which is pretty much erecting a “keep out” sign around our continent, will save nobody. This is because the refugee issue is global. And refugees all over the world are making necessary and dangerous and often fatal choices due to dire circumstances of which they have no control.

There are around 60 million displaced people in the world, including internally displaced people – more than at any time in human history: one in 122 people.

Last December, the International Organisation for Migration said there were a record number of asylum seeker deaths at sea in 2014, due to the increase in “desperation migration”.

As for Abbott’s advice to stop the boats on the Mediterranean – many of those attempting the crossing are from Syria, Afghanistan, Eritrea and Somalia. Does anyone doubt their need to flee?

And consider their options. For Syrians: stay, go to crammed refugee camps in Jordan and Turkey, where access is now restricted anyway, stay in dangerous limbo en route, or stay in Libya, where Islamic State is flourishing.

It was thought that the Italian rescue operation, Mare Nostrum, was a pull factor. But the numbers attempting the crossing did not stop when that rescue operation was significantly curtailed – just more drowned.

The boats are not even stopping in our neighbourhood. Twice as many boats have set out from Burma and Bangladesh in the first quarter of this year compared to 2014. On the news we all saw the macabre spectacle of stranded boats being pushed away from Thailand and Malaysia, while people died on them.

So, the bottom line – the boats to Australia might be stopping. But refugee boats and outflows and needs are not. Our current policy is the ultimate case of NIMBY. Leave it to the rest of the world to cope with this problem.

So, what else to do? If not Operation Sovereign Borders, what else?

Proportion is lacking in any discussion of Australia and refugees. There has been a deliberate hyping of the actual numbers, as well as an insidious narrative of illegals and invasion, including an unsubtle linkage between asylum seekers and terrorism. And yet the numbers arriving by boat since the topic became so politically toxic (ie since 1999) would not fill the MCG.

It is nothing compared to the hundreds of thousands hosted by states like Turkey, Jordan, and Kenya. For example, there are 1.2 million refugees in Lebanon and 1.7 million Syrians in Turkey.

Australia could substantially increase its humanitarian intake, and take many more from the region. Australia could decouple its largely unique link between offshore and onshore intake so we don’t play off refugees against each other.

Of course Australia can’t solve the world’s refugee problem on its own. But we should aim to be part of a solution, not an exacerbator of the problem.

That means real dialogue towards a real regional framework, rather than upsetting Indonesia with our boats policy, and saying “no no no” to the idea of taking in Rohingya refugees who have fled via boat.

Globally, more sustainable solutions are needed. Less than 10% of refugees who urgently need resettlement are resettled. The UNHCR estimates that nearly one million need resettlement but only about 80,000 will receive it. This severe disconnect between resettlement needs and resettlement places is ongoing and deteriorating.

A great increase in resettlement in Western countries is needed, including Australia, but it won’t solve the problem by itself. Other states need to get on board.

For example, by late 2014, the Gulf countries had taken no Syrian refugees. Japan, South Korea, the BRIC countries, and middle income States like Malaysia, are all capable of increasing their resettlement places in accordance with increased economic capacities. But countries with “economic capacities” do not include Nauru, Papua New Guinea or Cambodia.

Australia’s asylum seekers issues cannot be divorced from the global refugee crisis. And the solutions are therefore complex. That complexity can seem messy compared to the brutal simplicity of the government’s solution to simply “stop the boats”.

But, frankly, I don’t want to buy into a phenomenon which the critical legal scholar Mark Tushnet has called “blue-printism”. That is the idea that one can’t criticise a policy unless there is a readymade comprehensive blueprint for an alternative. Blueprintism inherently and unjustifiably entrenches the status quo.

Yet the burden of proof is on the government to demonstrate that its policy settings are correct. And I don’t think it can, given the numerous grave flaws in that policy.

• The expenditure of billions of dollars on the offshore warehousing of asylum seekers is not the answer, when humane policies are so much cheaper.

• High seas refoulement and disappearance is not the answer.

• The silencing of reports of sexual and other abuse in offshore detention is not the answer.

• The iron law of on-water confidentiality, restricting the info that the Australian people receive on the treatment of human beings under its own government’s policies, is not the answer.

• Australia’s mute response to breakdowns in the rule of law on Nauru and PNG are not the answer.

• The shredding of Australia’s international reputation is not the answer.

• The creation of what former Australian of the Year Pat McGorry has called “factories for producing mental illness” is not the answer.

• And finally, the use of people as means to ends, people who have plainly not drowned and are in no danger of drowning – the infliction of deliberate cruelty on such people so as to deter others from coming – is most certainly not the answer.

It is unlikely that we are saving lives, but we are definitely ruining them.