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Leaky asylum boats and the Federal Election

By Frank Brennan - posted Friday, 28 September 2007

Thankfully, no more leaky asylum boats have arrived in Australia with an election in the air. But the announcement of refugee status being granted to 72 Sri Lankan asylum seekers detained on Nauru throws into relief the policy differences between the major political parties and the differing views of refugee advocates. The issues in contention are the Pacific solution operating out of Nauru and the use of the new Christmas Island detention centre. Labor is committed to abolishing the Pacific solution, while maintaining Christmas Island. Many refugee advocates want Labor to abandon Christmas Island as well.

On September 12, 2007, Kevin Andrews, the Minister for Immigration, announced the refugee status for the Sri Lankans and said, “Australia is now exploring resettlement options in other countries for the Sri Lankans that have been assessed as being refugees. They will remain in Nauru while arrangements are made to resettle them elsewhere.”

When he first became minister, Andrews was unaware that his own public servants would continue to process the refugee claims on Nauru, just as they would if the asylum seekers remained on Christmas Island. There are three differences between Nauru and Christmas Island.


Failed asylum seekers on Nauru have no right of appeal to any Australian court. Wisely, the government does not make too much of this difference in public because it leads to the inference that decent Australian public servants are more likely to decide that a person is not a refugee if their deliberations are immune from scrutiny by any court or tribunal. When you are trying to change the culture and the public image of a government department that has had a rough trot with cases like Cornelia Rau and Vivian Solon, this is not a good look - particularly for an earnest lawyer like Andrews. Second, Australian lawyers and do gooders can be more readily kept out of Nauru. Third, refugees on Nauru have never entered Australia and thus other countries may be willing to receive them.

The Howard Government’s Pacific solution was enacted because it was thought that even those boat people successfully claiming refugee status would never make it to Australia. But 95 per cent of them have eventually made it to Australia or New Zealand. They have just had to wait up to an extra five years. The justification for the Pacific solution has been the need to deter refugees from engaging in secondary movement by employing people smugglers.

This justification came horribly unstuck when the government tried to extend the Pacific solution to Papuan asylum seekers who would be engaged in direct flight without people smugglers. Bruce Baird, the leader of the backbench revolt in August 2006 on the extension of the Pacific Solution, told Parliament that the New Zealand Government would no longer take refugees from Nauru if Australia tried to apply the Pacific solution to all boat people. The Pacific solution is incoherent and it will go if Kevin Rudd is elected Prime Minister.

Christmas Island is a different story. In response to David Marr’s claim that the Christmas Island detention centre was established on such a remote island in the Indian Ocean “to keep the cost of investigating these stories very high”, Philip Ruddock, the political architect of both these offshore arrangements, has responded, “The truth of course is that the Christmas Island detention centre sends a very strong message to people smugglers and their clients. The message is that there is no fast-track to the mainland. There is no way to jump the queue.”

Those found to be refugees on Christmas Island will inevitably end up in Australia. Not even New Zealand will take them, and why should it? Though many refugee advocates are strong opponents of the new Christmas Island facility, I have continually conceded to government the place of such a facility in a border protection strategy aimed at isolating and detaining “unvisa-ed” boat arrivals until initial screening can occur, permitting immediate return of those with demonstrably unmeritorious asylum claims, and facilitating health and security checks of those asylum seekers whose claims will take some time to process.

It is important to give credit where it is due. The Howard Government has increased the size of our migration program, including the refugee and humanitarian component. The Rudd opposition has consistently opposed the Pacific solution and the unfortunate consequences of the temporary protection visa (TPV). Courageous Coalition backbenchers have heeded the call to end long-term detention of children.


At this election, there will be some people who will vote against the Howard government because of the appalling Pacific solution and the ongoing effects of the TPV. Hopefully there will be fewer people voting for the Howard Government because of policies like the Pacific solution. The deliberations of civil society might even make a difference in the policy formulation of the political parties and the people’s choice of government, providing a fair go for all refugees, including those who arrive by boat without a visa. Along with many other matters, this election will decide the fate of the 72 proven refugees now required to wait on Nauru.

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First published in Eureka Street on Septmber 20, 2007.

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About the Author

Fr Frank Brennan SJ is Professor of Law at the Public Policy Institute, Australian Catholic University, and Adjunct Professor at the National Centre for Indigenous Studies, Australian National University.

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