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In defence of the 'Pacific solution'

By Ken Parish - posted Thursday, 16 May 2002

The current politically correct view of the 'Tampa' crisis, and the subsequent ad hoc development of the 'Pacific solution', is that both were just cynical, electorally-driven exercises. However, is that really the case? Although party political factors were clearly decisive in the way 'Tampa' and the 'Pacific solution' were portrayed by the Coalition during the federal election campaign, it may be that the strategies themselves were legitimate policy responses to very real threats.

Australian migration authorities had intelligence information that large numbers of asylum seekers were moving through the people smuggler 'pipeline' towards Australia. With the appalling Taliban regime then in control in Afghanistan, the prospect of Australia receiving a large and unmanageable flow of asylum seekers was very real. Even the actual arrival figures provided a cause for legitimate concern. The number of 'illegal' arrivals was only around 200 per year throughout the 1990s, but had increased to 5,000 in the year immediately preceding 'Tampa'. By contrast, no boats have attempted the crossing from Indonesia since early November 2001. This is not merely a result of monsoon conditions. There can be little doubt that the 'Tampa' exercise and the 'Pacific solution', along with belated efforts by Indonesia to restrict the people smugglers' activities, and the demise of the Taliban, have been successful exercises in the Federal government's terms. It would be naive to believe that no-one will ever again make the attempt, but the desired effect seems largely to have been achieved.

An 'illegal' asylum seeker arrival rate of 5 -10,000 people per year is much lower than some European countries, but it is nevertheless a significant number about which any responsible government should be concerned. Professor Geoffrey Blainey was howled down when he suggested some years ago that Australia should pay attention to the numbers, pace and ethnic mix of our migration intake. However, these are very real issues if we wish to maintain our proud record of popular support for the migration program, and continue integrating migrants smoothly and harmoniously into one of the world's most successful multi-cultural societies.


There were other under-appreciated factors which underpinned the Federal government's Tampa/Pacific solution response. First, the High Court in May last year handed down a decision in a case called Yusuf, which severely undermined the restrictive judicial review regime for asylum seekers. That regime had been enacted in 1994 by the previous Labor government, to control what both major political parties perceived as an inappropriately activist tendency by some Federal Court judges. The High Court's decision in Yusuf restored much of the Federal Court's contentious jurisdiction removed in 1994, and presaged a likely return to a judicially-enacted regime more favourable to asylum seekers' claims than either major party regarded as appropriate. Minister Ruddock has claimed (whether accurately I am not sure) that Australian courts' interpretation of the Refugee Convention is already significantly more generous than the approach adopted by UNHCR.

Secondly, DIMA had become aware of increasing reports from the Australian Afghan community that a significant minority of 'Afghan' asylum seekers, who had been assessed as genuine and granted protection visas, were in fact Pakistani 'economic migrants'. They had arrived along with genuine asylum seekers, destroyed their passports and then told false stories which had in many cases been accepted. The very high acceptance rate of the initial waves of 'Afghan' asylum seekers (up to 80 per cent) should perhaps have raised suspicions, but the fact is that many perfectly genuine asylum seekers arrive without identity papers. Sorting genuine from fraudulent applicants is no easy task, because investigation of identity in source countries is usually impossible. Stories must usually be assessed by their internal credibility and consistency with voluminous "country information" held by DIMA and the Refugee Review Tribunal. Well-schooled fraudulent applicants can defeat such a system, and DIMA had evidence of a large-scale, successful fraudulent scheme.

Thirdly, the risk of terrorist infiltration of Australia should not be dismissed (as some commentators have done). The modus operandi of the September 11 perpetrators demonstrates that terrorists' preferred mode of travel is by air, using their own passports and legally-obtained tourist or business visas. However, Australia's visa regime is very tight, with applicants from high-risk countries (including the Middle East and South-East Asia) being especially carefully scrutinised. Slipping into Australia with a boatload of asylum seekers and a well-rehearsed story of political or religious persecution might well provide a viable method of introducing 'sleeper' terrorists into this country.

Prior to 'Tampa', Australia's response to the challenge of irregular arrival of 'boat people' asylum seekers had these main features:

(1) Acceptance that arrivals were largely unstoppable and could only be processed onshore within Australia.

(2) Universal mandatory detention in isolated locations with quite basic facilities and a somewhat punitive supervisory regime operated by an American corporation with seemingly minimal official oversight or public accountability.


(3) Availability of independent merits review by the Refugee Review Tribunal for all applicants aggrieved by the initial DIMA primary determination.

(4) Availability of judicial review by the Federal Court, albeit on severely restricted grounds, for applicants aggrieved by the RRT's decision; as well as relatively unrestricted availability of High Court judicial review for applicants aggrieved by the Federal Court's decision.

(5) Under the Coalition, this has been supplemented by a deliberately miserly regime once applicants are assessed as genuine. Illegal arrivals are only granted temporary (3 year) protection visas, have no access to resettlement assistance beyond basic social security benefits, and are mostly released to smaller urban centres like Perth, Adelaide and Darwin.

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This is part one of Ken Parish's defence of the Pacific Solution. Part two will argue that the Pacific Solution will become more humane when it matures.

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About the Author

Ken Parish is a Darwin-based lawyer and former Labor member of the Northern Territory Legislative Assembly. He now teaches (mostly public law subjects) at Charles Darwin University, where he founded Australia's first fully online external law degree program. Ken is no longer associated with any political party, describing himself as a "committed sceptic".

Other articles by this Author

All articles by Ken Parish
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Department of Immigration, Multicultural and Indigenous Affairs
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