In defence of the 'Pacific solution'

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.

In effect, features (1), (3) and (4) operated as strong incentives for asylum seekers to chance their lives with the people smugglers, while features (2) and (5) were designed to provide a countervailing deterrent. Unfortunately, both deterrent features have proven ineffective while also having very undesirable side-effects.

Mandatory universal detention (at least in its current form) is simply cruel, and regarded with abhorrence by anyone who has seen how it actually works. This regime (introduced by the previous Labor government) has given rise to consistent and justified criticism, and causes significant damage to Australia's international reputation as a compassionate country honouring universal humanitarian principles.

Issuing temporary visas and providing little or no assistance to assessed genuine refugees is also counter-productive. Many of these people will have their visas successively renewed, for the simple reason that they are refugees and cannot safely be returned to their homelands. Making it more difficult for long-term residents to integrate into the Australian community and become productive citizens seems a high price to pay for general deterrence.

However, the main reason why these punitive measures have failed is that any deterrent effect is swamped by the system's attractant features. Australia's merits and judicial review system, despite restrictions, remains by far the most extensive in the world. Unfortunately, when it operates alongside universal mandatory detention, it results in unacceptably long periods in custody, especially for families. The combination of large arrival numbers and the multitude of successive avenues of review means that the entire process takes 18 months to 2 years to complete.

The interaction between onshore processing and extensive review rights has created an irresistible temptation for asylum seekers to take their chances with the system, despite its punitive elements. The reason is quite simple. Once asylum seekers reach the Australian 'migration zone', they are automatically entitled to a protection visa if they can prove refugee status. That right arises because of the fundamental Refugee Convention obligation not to return ('refoule') genuine refugees to their homeland while there is a real chance that they will face persecution on political, religious etc. grounds. However, the Convention obligation is only engaged once a refugee actually reaches Australian territory. There is no positive obligation to admit refugees into Australia. Hence the current emphasis on 'border protection' and offshore processing. Signatories to the Convention in 1951 were not prepared to compromise their sovereign rights to exercise border control. It is even less likely that any nation would do so today in the wake of September 11. John Howard's notorious statement that "we will decide who comes here and the circumstances in which they come", while clearly intended for electoral consumption, encapsulates the central attitude of all nations.

The automatic visa entitlement of onshore refugee arrivals stands in stark contrast to the plight of the vastly greater number of equally deserving refugees who remain offshore (more than 21 million of them at last count). Many of them find it impossible to apply in the first place. In many countries of 'first refuge', the queues are either non-existent or huge and difficult to join (due to lack of access to an Australian embassy or consulate). Moreover, they have no legal right whatever to a visa irrespective of whether they are assessed as genuine refugees. Australia can and does choose who it takes, when it takes them and in what numbers. Even when refugees manage to lodge applications, they may wait in the queue for years and then fail to gain a visa anyway. It is in some ways surprising that many more refugees do not attempt illegal entry. To reach Australia is to win a lottery where life and liberty are the prizes.

For these complex reasons, Australia's policy mix prior to 'Tampa' was largely ineffective to stem the growing influx of illegal asylum seekers, despite increasingly punitive measures. In the wake of 'Tampa', some of the 5 systemic features listed above have been significantly changed or are under review. In my opinion, the changes are largely welcome, but more reform is needed.

First, offshore processing of intercepted asylum seekers has several potentially desirable features, by comparison with the current onshore regime. I would not have said that about processing on Nauru or Manus Island, because the logistics of transporting intercepted people from the Indian Ocean to the Pacific, together with the cost of foreign aid (bribes) and construction of processing facilities on foreign territory, made it prohibitively expensive as a long-term option. However, the imminent construction of a 1,000 person facility on Christmas Island removes those objections. Moreover, because of its relatively isolated location, it should be possible to create a much more pleasant, open and less punitive processing regime, without in any way compromising security. Operation of these facilities should be removed from ACM and returned to accountable public sector management.

From a government viewpoint, offshore processing means that successful applicants do not gain an automatic entitlement to a protection visa. They remain in exactly the same position as applicants who stayed in the 'queue' in Pakistan (or wherever). That is due to the government's legislative gambit of deeming Christmas Island and Ashmore Reef to be outside Australia's 'migration zone'. Because offshore processing removes the central incentive for asylum seekers to attempt illegal entry, there is no reason why the punitive aspects of detention should not be largely removed. They haven't worked anyway, and will now be superfluous. For the same reason, there is no need to discriminate against attempted illegal arrivals by granting them temporary visas and withholding normal entitlements.

Finally, there will still be a need for residual detention facilities in Australia itself, not only for any asylum seekers who manage to reach the mainland, but also for at least some applicants who arrived on valid visas but have been rejected and are in the process of exhausting their judicial review rights prior to deportation. I agree with Chris Sidoti's assessment in a recent On Line Opinion article that detention for a limited period remains necessary while applicants' identities and health, criminal and security status are verified. It is also clear that even stringent reporting conditions will not prevent significant numbers of applicants from disappearing into the illegal economy once their applications have been rejected.

Next month I will deal with Australia's merits and judicial review system for refugee applicants. We need assessment processes which are both expeditious and fair. The present system arguably meets neither of these criteria.