Asylum seeker policy has long been awash with unhelpful, uninformative rhetoric. ’Stop the boats’, ’pick up the phone’, ‘deaths at sea’, ’people smuggler’s business model’, ‘queue jumpers’, ‘there is no queue’, ’no person is illegal’, ‘this is inhumane’, ‘we have excised the mainland and our hearts’, ‘gulags’ and ’race to the bottom’, to name but a few.
One of the persistent myths opportunistically encouraged by the Greens was the view that there was very little policy difference between the LNP and the ALP in this space. Both wanted offshore processing. Both sought to appease — frankly — the racist end of the political spectrum. And both framed the arrival of Suspected Illegal Entry Vessels as policy failures.
But now, two months into the LNP Government’s reign, we have been able to see more clearly differences between the two policies. Both are suboptimal, it’s true, but they are different.
To see how, we should start with some basic assumptions about what we want from an asylum seeker policy. Under an ideal system, a person in need of humanitarian protection should not need to reach Australian waters in order to be resettled here.
This was the underpinning assumption of the Regional Cooperation Framework (a.k.a. ‘Regional Protection Framework’, a.k.a. ‘Regional Cooperative Process’). Why should an asylum seeker detected in, for example, Thailand need to wait until they reached Australia before their refugee claim was assessed? Under an RCF, the asylum seeker could be detected, have their claim processed, and then be resettled somewhere in the region. The region — rather than any one particular country — would protect refugee rights.
It also reduces a very real problem within the global policy framework. Although there are no queues, it is possible for an individual asylum seeker to increase the odds of resettlement at the expense of another refugee somewhere in the world. The average wait for resettlement in a refugee camp is roughly seventeen years. The average wait for a person in Indonesia has varied wildly over the past decade, but it has been reported that the wait can be up to ten years. The average wait for a person who reaches a signatory to the Refugees Convention is only a few years. Under a RCF, you equalise two of the above waiting times. Regardless of where you are in the region, your waiting time is identical. There is no advantage in getting closer to Australia; there is no disadvantage to staying further away.
It’s not a bad idea on the face of it. People might make the claim that this is somehow a way for Australia to burden poorer neighbours with its refugee obligations, but that would be partisan quackery. The number of people who can be resettled in the region is far greater than the number of people who can be resettled in any one country.
This leads us neatly to another intuitively obvious assumption: that a person detected at any place within the RCF should be treated the same way as a person found at any other place within the RCF. That is, after all, the point — an asylum seeker doesn’t have to make it to Australia to have their rights respected.
In practice, this is difficult to achieve. First, it results in an uneven pressure on transit countries to the benefit of destination countries. More people will be detected in Thailand, Malaysia, and Indonesia than would be detected in Australian waters. Thus the need to balance the burden either through destination countries financially supporting transit countries, or through the proportional relocation of asylum seekers through regular migration pathways to destination/settlement countries for processing.
Second, securing equality for asylum seekers throughout the RCF is a legal nightmare, requiring consistent legislative frameworks in each country. Given the differences in constitutional frameworks within the region, this is practically impossible. Take the example of access to courts, for instance. In Australia, there is a strong presumption in favour of subjecting any act of the Executive to Judicial scrutiny. Traditionally, the way to circumvent that scrutiny was to process asylum seekers ‘outside’ of the domestic legal framework. The telos of this was the Gillard Government’s ‘excision of the Australian mainland’ (which, of course, was no such thing).
But getting that consistency is important. It makes zero policy sense to have a framework where a person standing in Jakarta, a person standing on Christmas Island, and a person standing at Broome are all treated differently. Asylum seekers — as rational, sensible people — will choose for themselves the option which they perceive will benefit them the most, even if that means risking their lives.
The policy challenge is how to move from our current, ad hoc, reactive model of asylum seeker management to this ideal state of the RCF. The ALP, in the space of about six years, held several different — at times incompatible — positions on this issue. There were processing freezes under Rudd as an attempt to reduce Australia’s ‘pull factor’. There was the Timor Solution… the Malaysia Solution… the Nauru Solution… under Gillard and then Rudd again.
And then we had options that were entirely inconsistent with setting up the RCF, such as the policy of not resettling illegal entrants in Australia. If the point of the model is to treat every person equally, penalising those asylum seekers who were detected in SIEVs is contradictory to the policy goal.
But for all of these flaws, there was one thing which remained consistent: there was an internal flow to the models proposed. A person making the journey from Indonesia to Australia wasn’t forced back to Indonesia. Instead, they were moved closer to a durable solution. In the final iteration, IMAs were transferred to Nauru and Manus Island with a different status to what they had in Indonesia. This was even true for the Malaysia Solution, where people were returned to Malaysia as part of a regular migration flow, creating an incentive for them to stay and an incentive for others not to move on.
Rather than opting for a ‘plug the gap’ approach, the ALP’s proposals were more similar to ‘overflow’ mechanisms.
We can compare this with the LNP’s current approach. When people arrive from Indonesia, we now seek to push them back. The idea is that you don’t need to release pressure on the flow coming to Australia when you can stem the flow at a particular point. We’ve recently seen a more dramatic version of this principle with Australia sending two Customs vessels to Sri Lanka. Now, people who feel the need to flee Sri Lanka (regardless of the legitimacy of their claims) will be hindered by their own government (the one they feel the need to flee). The only way to resolve this issue is if Australia drastically increases its intake from Indonesia and if it starts taking asylum seekers directly from Sri Lanka.
The difference between the approaches becomes obviously apparent: under various iterations of the ALP’s schemes, there was some idea of a pathway between an asylum seeker’s current position and a durable solution; under the LNP’s scheme, it is unclear how a person identifying as an asylum seeker is supposed to access a durable solution. We can also see why the LNP’s proposal won’t work: if you return a person to the same position they were before your intervention, they will simply repeat the behaviour until they get a better outcome. Besides the risk of death, there is literally nothing to lose. People returned to Indonesia are not prevented from permanent resettlement in Australia; people blocked from leaving Sri Lanka will simply try and try again.
This is not to look at the ALP’s proposals through rose-tinted goggles. I’m strictly an agnostic when it comes to approaches to achieve a Regional Cooperation Framework and I can understand that there’s a underlying rationality to just about every platform advocated. But saying that the ALP and the LNP were in a ‘race to the bottom’ with policies designed to be more cruel than the other just wasn’t accurate, as we’ve seen all too clearly this past week.
Mark Fletcher is a Canberra-based blogger and policy wonk who writes about conservatism, atheism, and popular culture. He blogs at OnlyTheSangfroid. This article was originally published on AusOpinion.com.
Share
