RMIT University
Power and Governance, 2022
Exemplar of Third Assessment Activity
Since the late 1980s successive Australian governments have implemented a policy of detaining all asylum-seekers arriving ‘illegally’ by boat in Australia in high security detention centres (Phillips 2015: 1-2). Since 2001 Australia’s ‘Pacific Solution’ has been the response adopted by all Australian government’s response to decades of displaced migrants landing on its shores seeking asylum. The policy involves holding all asylum-seekers, including children in offshore detention camps in Manus Island and Nauru whilst their application for refugee status are processed. This policy has proved one of the most contentious issues in Australia’s political history, on a par only with issues like conscription (1916-17 and 1964-73) and Aboriginal land rights (Greenock 2009). In this paper I consider the merits of two sharply opposed views. On the one hand many critics argue that establishment of these camps and the arbitrary detention of asylum seekers without trial or due legal process is a serious contravention of international human rights law and represents a profound moral failure. I share that view. On the other hand, the defenders of the ‘Pacific solution’ argue that that it is a proportionate response to the arrival of very large numbers of maritime asylum-seekers. In this paper I begin by outlining my argument that a liberal-democracy like Australia should have established an alternative approach to the ‘Pacific Solution’ so that it could discharge its basic legal and moral obligations to asylum seekers. I then consider the defence offered in support of the Pacific Solution. I outline three key claims made by those who argue that the Pacific Solution was a good policy. I assess that case, arguing that it relies on a mixture of non-credible evidence and unsound assumptions. Let me begin with my argument.
The case against the ‘Pacific Solution’
The arbitrary detention of asylum seekers without trial or due legal process is a serious contravention of international human rights law and it is not something therefore that a liberal-democracy ought to be doing. The claim to be a liberal-democratic state has conventionally been understood to include a commitment to enforcing international human rights covenants, and to protecting human rights generally. Yet at its peak between 2010-2016, successive Labor and conservative governments detained between 6,000-12,000 adult asylum-seekers and some 2,000 children annually (Home Affairs 2020: 2, 10). Australia’s policy of criminalising asylum-seekers clearly breaches international human rights law, exemplified by the 1951 Convention relating to the Status of Refugees, and the UN Convention on the Rights of Children (1989), both conventions to which Australia is a signatory. Article 37 (a) and (b) of UNCROC eg., stipulates that detaining children should be the last resort: Australian governments have consistently imprisoned children of asylum-seekers as the first -and only- resort (Gibney 2004; AHRC 2015). The fact that successive Australian governments are breaching fundamental human rights covenants while claiming to be liberal-democratic states, raises major political and interpretative issues (Bisley 2018). Not the least of these is that it problematises the fundamental assumption that Australia is a liberal-democracy. It may well be that this premise is somewhat problematic given that Australia does not have a robust human rights framework embodied eg., in a bill of rights or a Charter of Human Rights. This deficit notwithstanding, human rights experts, medical practitioners, lawyers and the Australian Human Rights Commission have all condemned the policy (Pickering and Weber 2014). It is significant as Jackson (2020) argues that a sizeable legal rights movement supporting the rights of asylum-seekers began in the 1990s when a small number of Australian lawyers and refugee advocates began using the courts to protect the rights of asylum seekers (Crock and Ghezelbash, 2011). From the early 1990s on, lawyers began mounting legal challenges to the use of detention (Crock and Ghezelbash 2011). That legal advocacy was not however successful in remediating the harshness of the policy let alone ending it (Hooper 2016). The one exception to this was the successful advocacy mounted over three decades on behalf of children imprisoned in detention camps, a practice that ended in 2019 (Dechent et al., 2019: 80-98). Let me turn to the moral case against the ‘Pacific Solution’.
The ‘Pacific Solution’ also represents a basic failure to discharge our moral obligations to asylum-seekers and to look after people who have typically experienced serious trauma: detaining them in prison camps was not the right thing to do. It is pretty clear from many studies that asylum-seekers coming to Australia suffer disproportionately from a range of mental illnesses and stress. One study found that the mental illness prevalence in the study population was 50.4% (N= 68/135)while participants (92.5%) reported having experienced a traumatic event with 22.9% (30/131) screening positive for PTSD-month and 31.3% (41/131) for PTSD-lifetime (PTSD-8) (Shawyer et al 2017). That the Pacific Solution is morally offensive is further suggested by the way asylum-seeker advocates have had to draw attention repeatedly to the negative impact of the policy on already severely traumatized asylum seekers, and especially children. In 2014 human service workers, employed by Save the Children Australia, in the off-shore camp (‘Regional Processing Centre No.3’) on Nauru, made public disclosures about the appalling conditions in which the inmates lived. This was done by making an ‘anonymous’ 53-page submission (‘Submission no.183’) to the Australian Human Rights Commission (AHRC) inquiry into Children in Immigration Detention run in 2014. The submission by the workers documented the conditions in the Nauru camp including substandard housing and lack of basic resources along with critical assessments of how poorly the detention camp was being managed. They reported how ‘children on Nauru had been subject to multiple violations of their human rights and wrong-doing from multiple parties’ (Submission 183:1 in Australian Human Rights Commission 2015). The workers also documented a series of criminal and sexual assaults, and repeated violations of the human rights of children and young people (Submission 183:1, 12, 22 in Australian Human Rights Commission 2015). High profile lawyers, doctors and social networks like ChilOut, the Asylum Seeker Resource Centre, Teachers for Refugees, Mums for Refugees, Doctors for Refugees Grandmothers for Refugees. have been equally vocal about the harm especially children suffered in the camps. Arguably the #Let Them Stay campaign that began in 2016 was the most successful of the protests (Hall et al 2018). Refugee activists began a protest against the transfer of 267 asylum seekers (including 54 children and 37 babies) from Australia to Manus Island and Nauru, two offshore detention camps (Hodge 2019). The #LetThemStay campaign also focused on ‘Baby Asha’ who was detained in Nauru, and had been flown to Brisbane for medical treatment. Despite the threat of arrest and prosecution, Australian doctors refused to release her for transfer back to Nauru. A spontaneous around-the-clock community picket was established outside the Lady Cilento Children’s Hospital for 10 days, preventing her deportation (Bavas 2016). (n a rare back down the Turnbull government capitulated on 20 February 2016 and Baby Asha was released into ‘community detention’ in Australia.
This kind of evidence highlights the failure of the ‘Pacific Solution’ to acknowledge our legal obligations under the Refugee Convention of 1951. The reliance on offshore detention camps further highlights the failure of Australian governments to recognise and address our moral obligation to help people already harmed by their experience of seeking asylum. Let me turn now the case made by those who support the ‘Pacific Solution’ like Jonathan Holmes (2016) who make a number of claims in support of the ‘Pacific Solution’.
The case for the ‘Pacific Solution’
Supporters of the ‘Pacific Solution’ like Jonathan Holmes (2016) claim that since 2000 Australia was not and would never have been able to take all the asylum-seekers arriving by boat, especially from Indonesia. Holmes argues eg., that :
… the people in Indonesia and Malaysia who want to come to Australia are not Indonesians or Malaysians. Overwhelmingly, they are Hazaras from Afghanistan, and Iranians; if the way to Australia were open, they would now be Syrians too (Holmes 2016)
Holmes on this occasion claims, presumably on the basis of some evidence that “there are hundreds of thousands, possibly millions of asylum seekers wanting to take the journey by sea to Australia”:
We cannot, without risking social disruption, take more than a tiny fraction of them. Taking a large proportion of would-be Australian migrants from Indonesia would only induce more to follow; very soon there would be far more than any orderly migration program could accommodate (Holmes 2016) .
It is odd however that Holmes does not present any evidence to support this claim. Let me turn to the second claim.
Supporters of the ‘Pacific Solution’ claim that the arrival of asylum-seekers by boat was undermining Australians’ belief that Australia ran a fair and orderly immigration program. The ‘Pacific Solution’ was warranted because justifiably or otherwise – the arrival of maritime asylum seekers was undermining Australians’ belief in a fair and orderly immigration program. Holmes cites as evidence a Four Corners TV program by Sarah Ferguson which documented that:
the criminal people-smuggler networks were ‘not just a fantasy dreamt up by immigration ministers. They exist. And a lot of Australians know it’. They don’t see why people who can pay criminals should be able to buy a chance at a life they themselves had to get by legal means(Holmes 2016) .
Other political leaders have made the same point. As PM Turnbull put it in 2016:
Strong borders are not just about security. They are crucial to ensuring social harmony and public support for migration domestically … Australia is a prime example; securing our borders has increased public confidence and enabled Australia to have one of the world’s most generous humanitarian regimes (Turnbull cited in Kelly 2016).
Those making this case can also point to evidence based on opinion polling. Lowy Institute polls have focused on the issue of asylum seekers and boat arrivals since 2008 and claim that the number of respondents who expressed the highest level of concern (“very concerned”) about “unauthorised asylum seekers coming to Australia by boat” have remained steady. In 2018, “large numbers of immigrants and refugees coming into Australia” was seen as a critical threat by 40% of Australians, essentially unchanged from the last time the question was asked in 2009 when it was 39%. Among the assumptions made by those who make this case is the premise that public opinion is taken seriously by governments and that nation-states should exercise their sovereignty by determining who can enter the country. As Prime Minister John Howard famously said in 2001, it ‘should be our government that decides who comes to this country, not a free-for-all scramble for a place on a leaky boat’.
Finally supporters of the ‘Pacific sslution’ make the moral argument that it is a pragmatic solution which has worked. Based on the explicit assumption that one should never ‘pontificate about a policy unless one has some vaguely practical alternative to propose’, Holmes says that whatever the moral arguments against it (which he allows were strong), the ‘Pacific Solution’ worked’ to stop the boats(Holmes 2016). If the ‘Pacific Solution’ was John Howard’s ‘desperate resort in the wake of the Tampa incident, ‘it worked because it stopped the boats. As the ALP government discovered in 2012, it was the Pacific Solution that stopped the boats a second time (Holmes 2016). Supporters of the ‘Pacific Solution’ like Craig Kelly (2012) point out eg., that between 1999 and the introduction of the Pacific solution in late 2001, over 12,000 asylum seekers had arrived by boat. In 1999 3,721 asylum seekers embarked to Australia on 86 boats. The following year people smugglers sent 2,939 asylum seekers off on boats. In 2001, 5,516 made a dangerous voyage on 43 boats. During that time over 353 people were drowned at sea. In the entire seven years of the Howard government’s version of the ‘Pacific Solution’ (2002-2008), just 278 asylum seekers arrived—an average of fewer than 50 a year (Kelly (2012). The fact is says the pro-Pacific Solution lobby, that the Howard government policies worked and boars stopped coming. Let me now comment critically on the strengths and weaknesses of these three elements in the pro-Pacific Solution position.
Reflexive commentary
In what follows I comment on a number of issue to do with the credibility of the evidence and the assumptions relied on by those who support the ‘Pacific Solution’. The claim that there was a vast flood of possible asylum seekers in Indonesia between 2000 and 2020 threatening to come to Australia by boat was never true. It is highly problematic eg that that Holmes (2016) does not present any evidence to support this claim that there “are hundreds of thouands even millions of asylum-seekers” waiting to come to Australia. As data gathered by the UNCHR shows, Australia has long faced only very small numbers of asylum seekers arriving by boat from Indonesia. Though there are varying estimates of the number of refugees and asylum seekers in Indonesia, UNHCR estimates that Indonesia hosts approximately 13,829 asylum seekers and refugees as at 29 February 2016 (up from 9,500 in mid-2014) (UNCHR 2017). More than half of all the asylum seekers registered by UNHCR in Indonesia were from Afghanistan. The remainder were from countries such as Myanmar, Somalia, Sri Lanka, Iran, Palestine, Pakistan and Iraq. As the UNCHR notes most people seek asylum in neighbouring countries close to them. In 2020, 73% of refugees and people seeking asylum resided in their neighbouring countries. The top hosting countries are
- Turkey (3.7 million)
- Colombia (1.7 million)
- Pakistan and Uganda (1.4 million)
- Germany (1.2 million)
Those who support the ‘Pacific Solution’ also argue that asylum-seekers are subverting a fair and orderly system and that this upsets many Australians. This claim relies in part on the use of public opinion polls to show that Australians are upset about the subversion of the refugee queue system. This argument relies on assumptions such as the premise that public opinion polls provide deep insight into what people think, that they can be used as a proxy for the whole population, and that governments pay a lot of attention to what ordinary people think It is well established that public opinion polling is a ‘science’ fraught with difficulty. None of these assumptions are particularly robust. Poll results eg., are affected by the specific wording of questions, the placement of questions within a survey, sample size and methodology, mode of administration and timing. The pattern of response is in part dictated by the type of question asked. Majority opinion on many issues is vague, half-formed and inconsistent, and only to be placed in dichotomous categories with caution. Further as the Lowy Institute points out Australians have never rated the threat posed by asylum seekers all that highly against other fears and threats Among eleven possible threats, it ranked third last in 2018; fourth last of fourteen in 2009; third last of twelve in 2008; and third last of thirteen in 2006.
This argument also relies on the claim-cum-assumption that Australia runs or is a part of a fair and orderly immigration program. However the notion that people seeking asylum who come to Australia by boat are “queue jumpers” who take the place of people who have registered with UNHCR or those who are waiting in refugee camps and are subverting a fair and orderly immigration program, is not true. The UN resettlement system does not operate in this way. A queue implies that resettlement is an orderly process and by waiting for a period of time, a person will reach the front of the queue. The UN resettlement system prioritises asylum seekers for resettlement according to considered needs and situations of vulnerability, rather than waiting time.
Finally let me turn to the idea that the moral objections to the ‘’Pacific Solution don’t matter as much as the fact that the policy works, ie., that it keeps the boats away. There can be no denying that the number of boats coming to Australia after 2000 declined. It is also clear that considered as a matter of law the ‘Pacific Solution’ has always been judged to be lawful. The High Court of Australia eg., has long found that a stateless asylum seeker could be detained indefinitely, and that this indefinite detention was lawful. This reminds us that at all times the development of asylum seeker policy has been lawful (Lacertosa 2014: 327). However the argument that a policy can be deemed to be good because it works to achieve a certain objective such as deterring asylum-seekers from coming to Australia begs one question. Granting that oner objective of the Pacific Solution was to stop asylum seeker boats from coming to Australia has been achieved does not in and of itself, demonstrate that the objective is morally defensible: it merely suggests that a certain means ends relation has been established. Makin g the trains run on time to Auschwitz may mean that the objective of efficiency has been established but this does not mean that the objective itself is morally defensible. This particular argument only works by begging the question of what kind of asylum seeker should Australia have adopted and on what basis. My contention that Australia needed to have established an asylum-seeker policy that was not like the Pacific Solution but respected the human rights of asylum-seekers while also discharging our moral obligations to help severely traumatized people remains a credible position.
REFERENCES
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