Bring them here

Asylum seekers gather on one side of a fence to talk with international journalists about the journeys that brought them to the Island of Nauru, 2001. Rick Rycroft /Press Association. All rights reserved.

August 2016 saw a remarkable shift
in Australian public opinion regarding refugees and asylum-seekers. Where it
had seemed that most Australians supported or were indifferent to the current
policy of offshore detention for asylum-seekers 
(on Manus island in PNG or the small island state of Nauru), there was suddenly
widespread public support for bringing this policy to an end. People protested
outside ministerial and parliamentarians' electorate offices using placards
saying, to  quote just a few, 'Bring them
Here', 'Close the F..ing Camps' with or without the F-word and 'Mums for
Refugees'.

The most important catalyst for
this shift was undoubtedly the publication by The Guardian, Australia of a huge
cache of leaked incident reports from the detention centre on Nauru, detailing
numerous cases of child abuse, rape and self-harm. These 'Nauru files' were
rapidly taken up by activists on university campuses and in social media, the
ABC and a few print newspapers and equally rapidly dismissed by the Australian
and Nauru governments and their supporters in the mainstream media.

What changed with the Nauru files
is that the sheer weight of evidence – the files consisted of incident reports
prepared by staff, few of which could be dismissed as 'mere allegations' –  appeared to confirm suspicions that had been
building up in the community for some time. Many who had been aware of reports
of abusive and destructive incidents in the camps, but were unsure of their
significance, suddenly had their worst suspicions confirmed. Thus, for many
Australians, the Nauru files simply forced them to acknowledge what, in a
sense, they already knew but had somehow managed not to acknowledge. This
realisation that they had already known about appalling conditions in the camps
accounts, in part, for the relatively subdued level of public outrage.

It is a puzzle to outsiders, as it
is to more than a few Australians, quite why so many Australians are
comfortable with the idea of incarcerating asylum seekers. An important part of
the answer is that this is what Australia has always done. It would require a
substantial shock to shift this established practice. What is relatively new is
the policy of moving immigration detention offshore and Australia's recognition
that a clear majority of those in detention are refugees in the sense laid down
by the 1951 UN Refugee Convention.  

Australia’s two faces

Australia has two different views
of immigration. On the one hand, it has actively encouraged immigration, except
for a short period in the 1930s during the Great Depression. Focusing initially
on British and European migrants, the immigration program had opened up
considerably by the late twentieth century. Since the early 1950s Australia has
taken in substantial numbers of refugees in its humanitarian immigration
program. Relative to population size, Australia has resettled more refugees
than any other western state apart from Canada. Australian political leaders
see this as a sign of our generosity towards refugees.

On the other hand, Australia has
always discouraged unauthorised arrivals, imposing penalties both on migrants
themselves and on those who brought them to Australia.  The Immigration Restriction Act of 1901 – one
of the first Acts of the newly-established Australian Parliament –  specifies a penalty of six months detention
for all prohibited immigrants and various penalties for the owner or Master of
a vessel bringing prohibited immigrants, not of European race or descent, to
Australia.

Building on the 1901 Act,
subsequent Immigration Acts modified the penalties, eventually removing its
overt racism, and added to Australian governments' repertoire of responses to
unauthorised arrivals. For example, the Howard Coalition Government in 1999
introduced temporary protection visas for asylum seekers who had been
recognised as refugees. TPVs allowed refugees to remain in Australia, and to
re-apply for asylum after three years, but not to seek employment or to return
if for any reason they left the country.

A recent addition to the repertoire
of governmental responses is Operation Sovereign Borders initiated in late
2013, which brought together Australian Naval and Border Force programs of
actively seeking out boats carrying asylum seekers and returning them to
Indonesian waters. Asylum-seekers also came on boats directly from Sri Lanka.
When their boats were stopped, they were subjected to 'enhanced screening' by
border force officers and, if judged not to be refugees, would be returned
directly to Sri Lanka.

The policy of returning boats
exposed asylum-seekers to serious risk of drowning and/or whatever punishment
Sri Lankan authorities chose to inflict on its runaway citizens. Australian
officials acknowledge the risk but claim that there are also risks for
asylum-seekers in the sea journey to Australia. Overall, the claim is that
turning back the boats, thereby discouraging attempts to reach Australia by
sea, saves more lives than the alternative.

Australia is bound by the terms of
the 1951 UN Refugee Convention which it signed in 1954. Article 1A of the
Convention, as modified by a 1967 Protocol, to which Australia also agreed,
defines a refugee as a person who, "owing to a well-founded fear of
persecution for reasons of race, religion, nationality, membership of a
particular social group or political opinions, is outside the country of his nationality
and is unable or, owing to such fear, is unwilling to avail himself of the
protection of that country.”

This is not the place for an
extended analysis of the 1951 Refugee Convention. It is perhaps best seen as an
extended apology for the millions of European Jews who were let down by the
international order during WW2 and the years leading up to it. The Convention
was drafted specifically to find solutions for those who had been displaced
across Europe by Nazism and the Second World War.

One unfortunate effect of the
Convention's efforts to produce a definition comprehensive enough to have
avoided the difficulties of the recent European past is that it resulted in a
set of criteria for governments to use in assessing the status of migrants who
present themselves as refugees. This, in turn, promotes the suspicion amongst
immigration officials and their political masters, particularly in Australia – which
has made a habit of minimising irregular migration – that not all asylum
seekers will prove to be legitimate or genuine refugees. As a result, whether
or not an asylum seeker's fear of persecution is to be counted as
'well-founded' becomes a matter to be decided by public servants in the
receiving country, many of whom have little or no knowledge of the conditions
from which the migrant has fled.

Unfortunately, the Convention's
provision that unauthorised arrivals should not be penalised for seeking asylum
has little traction in Australian political debate and it has not been written
into Australian domestic legislation. Australia is only one of many western
states that has chosen to ignore this inconvenient aspect of international law.
The USA, for example, is currently building a huge detention facility near the
Mexican border – not offshore but sufficiently remote from American population
centres to minimise public scrutiny – to be managed by CCA (the Corrections
Corporation of America, one of America's largest private prison operators),
although America, too, is obliged not to penalise unauthorised arrivals who
seek asylum.

Removal from public scrutiny

Australian political leaders like
to answer the charge of inhumane treatment of asylum-seekers by changing the
subject and pointing to our 'generous' overall intake of refugees. Thus we are
generous to refugees on the one hand and we penalise undocumented refugees on
the other. The two practices co-exist and one is often played off against the
other.

Prime Minister John Howard's
notorious assertion, in a speech of October 2001, 'We will decide who comes to
this country and the circumstances in which they come..' directly followed his
proclamation of Australia's generosity in accepting large numbers of refugees,
as if the latter had to be tempered by a whiff of toughness.

As another example, on ABC Lateline
(28, May 2016), Amanda Vanstone, a former Liberal Immigration minister and the
Jesuit lawyer and refugee advocate Frank Brennan discussed Australia's
immigration detention regime. Brennan repeated the point that the offshore
detention regime was unconscionable while Vanstone repeated her insistence on
our generosity, but without either directly disputing any of the other's
points. There was an interesting word-play going on here. Rather than
old-fashioned debate, in the form of argument, counter-argument and rhetorical
flourishes, good words (generous, generosity) were put up against bad (brutal,
unconscionable), almost as if one excused or balanced the other.

Yet, perhaps the most powerful case
for the camps is the claim that refugees have to be detained indefinitely
offshore in order to send a message to people smugglers, and their clients. In
effect, they should forget the protections offered by the Refugee Convention's
requirement that unauthorised arrivals should not be penalised for seeking asylum
and recognise, instead, that they would never be resettled in Australia. The
point of this message is to ensure that the people-smugglers would have nothing
to offer their clients.

Critics of offshore detention have
argued, on the contrary, that all we need do to end the people-smuggling is
continue our current system of stopping their boats and turning them back.
Since stopping asylum-seeker boats and incarcerating asylum-seekers
indefinitely are both clearly harmful this proposal exhibits the duality noted
earlier. Generosity towards some – doing no more than Australia's adherence to
the Refugee Convention requires – has to come at a serious cost to others. 

Yet, while there appears to be
substantial public support for resettling the refugees in Australia, many
immigration and border protection officials and senior figures in the Federal
Labor and Liberal Parties still talk as if a 'harsh' –  Malcolm Turnbull, the current Australian PM's
description – detention regime is required to stop the boats and thus to
prevent unnecessary deaths at sea. Some may even believe it, but I doubt this
is the reason our two major parties remain committed to offshore detention.

Whether or not it deters anyone,
the great political appeal of offshore detention to any actual or potential
party of government is that it removes the camps from public scrutiny and from
the reach of troublesome Australian courts. (The PNG Supreme Court has recently
ruled that detention of asylum seekers on Manus island is illegal.) Yet,
perhaps the most substantial obstacle is politicians’ fear that closing the
camps risks appearing weak on border protection, thereby losing support in
crucial electorates in the outer suburbs of Sydney and other large Australian
cities. The story about a harsh regime of immigration detention saving lives at
sea is just a comforting tale to help them sleep at night.