Australia shouldn’t - and can’t - avoid its obligations, argues Peter Mares
THE federal government has attempted to buy itself some temporary goodwill in Jakarta by toughening its approach to asylum seekers reaching the Australian mainland by boat. Papuans and others who seek Australia’s protection will now be transported to offshore detention centres in third countries for refugee processing outside the bounds of Australian law. But the government is simply deferring problems at the cost of the wellbeing of vulnerable people.
If the experience of the ‘Pacific solution’ tells us anything, it is that legislative trickery to fiddle with the definition of the border does not render a country immune from its international legal and moral obligations.
The great majority of the Middle Eastern asylum seekers diverted to detention in Nauru and Manus in the wake of the Tampa were still found to be refugees, even under the scaled-back processing regime implemented in the offshore camps. Quarantining the refugee determination process from Australian law does not make it possible to implement unconscionable decisions - such as forcing a refugee or other vulnerable person back to a place of persecution or danger.
Moreover, most of the refugees processed on Manus and Nauru ended up being resettled in Australia, despite Canberra’s intense efforts to convince friendly nations to take them off our hands. If traditional resettlement countries like Canada, Sweden and the United States were unwilling to take Iraqi and Afghan refugees, it is hardly conceivable they are going to volunteer to solve Australia’s Papuan problem.
Presumably Australian diplomats are already busy putting a proposition to Wellington, inviting the New Zealand government to resettle any future Papuan refugees on our behalf. If New Zealand is not amenable to bailing us out yet again, then we can expect resettlement requests will go out to Vanuatu or Fiji or other Pacific Island nations in receipt of Australian aid. The face-saving argument will be put that this is an appropriate resettlement outcome given the cultural links between Papua and the Pacific.
Ultimately though, asylum seekers intercepted by Australia, detained by Australia, processed by Australia and found to be refugees by Australia are and will remain Australia’s responsibility. The prime minister has admitted as much, conceding that refugees processed in Nauru or PNG could ultimately be resettled in the ‘third country’ of Australia.
Whether or not any asylum seekers are actually transported for processing in Nauru or PNG is another question and the answer depends on what happens at the point of interception. What are the instructions to navy and customs personnel if they encounter a boat on the open water? Unfortunately we do not know, because relevant government ministers have been reluctant to reveal the ‘operational detail’ of the policies being implemented to protect our borders . We also have no idea where the ALP stands on this key issue, since opposition leader Kim Beazley’s tired insistence that we need a Coastguard tells us nothing about how Labor would instruct the Coastguard to respond to asylum seekers travelling by boat.
In fact we know more about what happens when the United States Coastguard intercepts boat people attempting to reach US shores than we do about the border protection operations carried out in our names. In the US, the response is determined by the nationality of the person seeking entry to the country and their relative status within the US political system.
Cubans benefit from the influence of a powerful lobby on Washington and are automatically alerted to their potential rights as refugees. All Cubans intercepted on the sea route to the US are read a statement explaining that they can request an interview to establish whether or not they have a ‘credible fear’ of returning to their homeland.
By contrast, Chinese boat people (who sometimes seek to enter the USA via Latin America) are given a less overt opportunity to express any fear of return: intercepted Chinese are provided with a written questionnaire asking why they have left China, which offers them an opportunity to express a fear of return, if they have one.
All other migrants, including Haitians who have been the most numerous in recent years, are automatically repatriated unless they pass what is called ‘the shout test’. In other words, officials ask intercepted boatpeople no questions about the reasons for their journey and do not probe their potential claims to protection in any way, unless those people indicate, spontaneously and demonstrably, that they are fearful of being returned from whence they came.
We don’t know whether the shout test will be applied to any Papuan refugees who seek protection in Australia, but if the operation of the ‘Pacific solution’ is to be extended into the future then we can safely assume that little or no attempt will be made to ascertain the potential status of intercepted boat people until it is abundantly clear that their boat cannot be forced back to Indonesia.
We do know (from David Marr and Marian Wilkinson’s book Dark Victory) that after the Tampa, customs and navy received specific orders direct from Canberra on how to deal with each boat on a case by case basis. We know that they were directed not to disembark asylum seekers or allow them entry into Australian territory until there was no alternative because boats were on the point of sinking. We know that the navy fired shots across the bows of vessels in an attempt to force them to refrain from entering Australian territory. We know that boats were forcibly boarded and commandeered and sailed back to Indonesian waters.
We also know that many sailors and officers were deeply uncomfortable with the nature of the task assigned to them. We can only speculate as to how they would feel if ordered, as has been proposed, to carry out joint surveillance operations with the Indonesian navy. Presumably their task then would extend beyond preventing the entry of Indonesian nationals to Australian territorial waters, to include assisting the Indonesian authorities in preventing their fellow citizens from leaving Indonesia in the first place. The Cold War notion that the restrictions on freedom of movement that applied in Eastern Europe were a fundamental breach of human liberty appears to be very old hat.
There is also a fundamental difference between Middle Eastern asylum seekers and asylum seekers from Papua or other parts of the Indonesian archipelago.
In the wake of the Tampa, the federal government defended its policy of forcing boats back to Indonesia with the argument - however questionable - that Middle Eastern asylum seekers could seek protection from the UNHCR office in Jakarta (even though Indonesia is not a signatory to the 1951 Refugee Convention). This was done under the rubric of ‘regional cooperation’ and fitted with the government’s arguments that Middle Eastern asylum seekers should have had their refugee cases heard in Indonesia in the first place, rather than ‘forum shopping’ for a better deal under Australia’s more generous procedures. But asylum seekers from Papua are fleeing directly from Indonesia; to force them back risks the most blatant breach of the Refugee Convention, which at its core requires that a refugee must not be sent back to a place of persecution.
Of course, if the new approach works as intended then these issues will be muted because Canberra’s tough line will deter Papuan asylum seekers from attempting to reach Australia at all. Instead, as in the past, they are likely to go to Papua New Guinea, which already cares for some 8000 Papuans from previous flights across the border. This will be convenient for Canberra in the short term, but could produce intractable long term problems that rebound on Australian foreign policy. Within PNG there is potential for conflict between displaced Indonesian Papuans and local landowners. Internationally, Australia’s border control measures could fuel resentment towards Canberra, and stoke tensions between Port Moresby and Jakarta.
Needless to say, implementing a ‘Pacific fix’ does nothing to address the problems that cause Papuan asylum seekers to flee in the first place. It should be possible for our diplomats and politicians to have an honest dialogue with Jakarta about abuse and injustice in Papua without it being portrayed as an attack on Indonesia’s territorial integrity. To bend the knee at the first expression of displeasure from Jakarta will only embolden nationalist politicians in Indonesia to demand further changes to Australian policy. •
Peter Mares is a senior research fellow in the Institute for Social Research at Swinburne University
Photo: US coastguard vessel. Natalia Bratslavsky/ iStockphoto.com