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The Indian Ocean Solution

By Ken Parish - posted Thursday, 5 November 2009

In a blog post not long ago I observed that "Rudd is fooling himself if he imagines that immigration and refugee questions aren't every bit as powerful, divisive and potentially vote-changing issues as in the recent past." A Newspoll in recent days showing a sudden slump in Labor support suggests this remark was prescient.

Of course the Newspoll might just be a "rogue", or the asylum seeker issue might not be the predominant cause of the sudden reverse for Labor. However Rudd's seemingly ineffectual handling of the Mexican standoff with Sri Lankan Tamils on board the Australian customs vessel Oceanic Viking (and the asylum seeker issue more broadly) is the only obvious evident change in the Australian political landscape over the last few weeks, so it's a reasonable guess that it's a key factor.

Perhaps we need to grapple seriously with the proposition that John Howard's infamous "we will decide who comes to this country and the circumstances in which they come" line may have been on the money in a policy as well as populist sense. Australia is clearly facing an imminent and ongoing asylum seeker "pipeline" of at least 10,000 irregular boat arrival asylum seekers per year. Moreover, with refugee numbers worldwide estimated at 24 million, we may eventually face the prospect of even larger numbers if the current flow isn't stemmed.


However, even 10,000 boat arrivals per year would displace Australia's existing offshore humanitarian migration program. It has stood at around 13,500 per year for quite a few years now, and successive governments of both political persuasions have followed the practice of reducing the offshore humanitarian program in lockstep with any increases in irregular onshore arrivals granted protection visas.

It's in this very real sense that the boat arrivals are "queue jumpers". Many civil liberties exponents scoff at the phrase "queue jumper", arguing that no queue exists. It's certainly true that it's a very slow and disorderly queue, with asylum seekers genuinely fleeing their home country in haste and then waiting for years in an insecure and often unpleasant refugee camp in a third world country hoping that the UN will eventually arrive and assess them as real refugees, and that some western country might then grant them a visa.

That's why the people smugglers' services are so tempting to cashed-up asylum seekers. If they can make their way into Australian waters then they are taken to Christmas Island, assessed and processed within 100 days, and have a guaranteed protection visa giving them permanent Australian residence if they pass the test of refugee status. By contrast, not only does it take years to get assessed in the average third world refugee camp, but "successful" assessment as a refugee provides no assurance at all that you will actually receive a visa from any country. For example, it's said that at least some of the 78 Tamils on board the Oceanic Viking had been assessed as genuine refugees but had nevertheless still been waiting for years for a visa offer from Australia or some other country.

Given those huge incentives driving people to embark on the dangerous voyage to Australia almost whatever the risk or financial cost, you can hardly blame asylum seekers for taking radical pre-emptive action, including by sinking their own boats to prevent Australian authorities towing them back to Indonesia.  However, not only are the risks very large but, queue or no queue, "boat people" are probably less needy on average than those waiting patiently in third world refugee camps. People who can afford $5,000-$20,000 per head reputedly charged by the people smugglers are almost by definition not the neediest of refugees, although many muster the price of passage by subscription from large extended families they are later expected to support with their Australian wages.

Irregular arrivals also potentially undermine public confidence in Australia's migration program generally, and make it more difficult for migration authorities to maintain an orderly and balanced flow of humanitarian migrants who won't form large ethnic enclaves impervious to absorption into the broader Australian community. Current resettlement policies involve maintaining a balance between Africa, Middle East/South Asia and EastAsia/Pacific, and spreading them around various regional centres including Darwin rather than large cities like Sydney and Melbourne where they might be less welcome.

This policy has worked quite well, in that a relatively high humanitarian intake has been maintained throughout the Howard era and subsequently, without reigniting Hansonite social divisions. However it won't be sustainable if the current wave of boat people continues and increases. If the current wave of boatpeople continues, we will see a balance overwhelmingly skewed towards the Middle East and South Asia with very few from Africa, East Asia and the Pacific, and with Tamil and Afghan enclaves forming and creating social frictions and tensions which will tend to undermine public support for our overall migration program.


A tentative solution

The effective guarantee of an Australian visa to asylum seekers reaching Australian waters flows from the terms of the Refugee Convention 1951 itself. While it doesn't require signatory nations to grant a permanent resident visa (hence the Howard government's gambit of temporary 3 year protection visas to reduce the incentive to board the boats), the Convention requires signatories not to "refoule" refugees while the risk of persecution in their home country remains real. Australia certainly conforms to that obligation.

The combination of the non-refouler obligation and Article 26 is the major reason why reaching Australian waters provides asylum seekers with an effective guarantee of an Australian residency visa. Article 26 provides:

Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances.

Given that irregular boat arrivals displace more needy offshore applicants, Australia should decline to continue fully honouring Article 26 of the Refugee Convention. Asylum seekers brought to Christmas Island and found to be genuine refugees should not be automatically granted a visa entitling them to move freely within Australia. Instead they should be given a Christmas/Cocos Islands visa entitling them only to live on one or other of those Australian offshore islands until a place can be found for them in the ordinary offshore humanitarian migration program. They would not be "refouled" to their homeland nor would they be kept in detention, but they would have no more and no less entitlement to a permanent humanitarian/protection visa than any applicant in any offshore refugee camp in Asia, Africa or the Middle East. Places in Australia's humanitarian program, already one of the world's most generous, would continue to be allocated by an assessment of comparative need. The only benefit asylum seekers would then gain from paying tens of thousands of dollars to a people smuggler would be the experience of living in rather more comfort on Christmas or Cocos Islands than would likely be the case had they remained in a third world refugee camp.

In those circumstances, one would expect the flow of boat people to dry up rapidly, just as it did when the Howard government implemented the Pacific Solution. It was similarly posited on conveying a message that reaching Australian waters carried no assurance of getting an Australian visa. However, paying large amounts of money to the Nauru and PNG governments to keep these people in detention offshore proved unsustainable. Australia was eventually forced to grant visas to those found to be refugees, because no other country would take them. We will find the same will ultimately occur with Rudd's putative Indonesian Solution. Australia's possession of numerous reasonably pleasant but thinly populated offshore islands provides us with a viable ongoing solution to the increasing worldwide phenomenon of irregular migration. We can discharge the most important of our international obligations under the Refugee Convention, and devote our national humanitarian resources to those most in need, while avoiding perpetuating huge incentives for desperate cashed-up people to jump the asylum seeker queue with the assistance of unscrupulous people smugglers.

Finally, to emphasise that this is a humanitarian national response and not a selfish one, Australia should increase its offshore humanitarian program substantially, say from 13,500 per year to 16,000 or even 18,000. Only the most thick-headed mung bean lefty could then portray the Rudd government as heartless. We would be helping many more of the world's most desperately needy refugees, and maintaining any remaining determined queue jumpers in humane relative freedom while declining to indulge their attempts to achieve pre-emptive migration priority.

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This article first appeared in an extended form on November 3, 2009 as a post at Club Troppo.

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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".

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