The only way forward in dealing with Manus Island and Nauru is for bipartisan commitment to keep the boats stopped while settling refugees in Australia.
Frank Brennan AO is a Jesuit priest and Rector of Newman College at the University of Melbourne. He is a Distinguished Fellow of the PM Glynn Institute at Australian Catholic University and an Adjunct Professor at the Thomas More Law School at ACU.
The pseudo legality of one aspect of boat turnbacks is a declaration issued on 19 December 2013 by the then Chief of the Defence Force under section 12D(2) of the Work Health and Safety Act 2011 (Cth), after it was approved by the then Minister for Employment, Senator Eric Abetz. It purported to exempt each Operation Sovereign Borders “worker” from the duty under s.28(b) of the Act to “take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons”. It’s a pseudo legal instrument because s.12D only authorises an exempting declaration if, but for it, there could be an act or omission “prejudicial to Australia’s defence”.
Thank you so much for your very perceptive article and I write not to express disagreement but to seek clarification in the light of additional comment.
I note by way of background that Indonesia s not party to the Refugee Convention. My queries relate to those who are refugees in the Convention sense and have arrived in Indonesia from overseas and not to persons who have been persecuted in Indonesia..
With regard to overseas refugees in Indonesia who might wish to come to Australia, we should, in an endeavour to deter attempting that by boat, formally announce the willingness to accept UNHCR- approved refugees from Indonesia; and increase very substantially the 2014 limitation of 450 places. If Australia’s Humanitarian Intake were to be increased, the number of UNHCR – processed refugees, could be further increased, thereby further diminishing the temptation to resort to boats.
At last a coherent, rational and realistic proposal on how to end this living hell which is the refugee camps on Nauru and Manus Island. It invites a compassionate and non-partisan response from political parties, and I pray that this will be given.
From personal experience, travelling in the waters between Indonesia and Australia in a small boat can be extremely dangerous, despite the outstanding skill of many Indonesian boat captains. Therefore it is very likely that during that period when trafficking between Australia and Indonesia was a relatively common event, there were boats carrying victims of human trafficking which sank without coming to the attention of Australian maritime authorities and certainly of the Australian public.
It is important to remember that the real villains here are the international criminals whose business is human trafficking, not the sailors who are trying to earn enough to support their families or their passengers, who, for whatever reason, were so vulnerable in their country of origin they were prepared to risk paying human traffickers money to bring them here.
Supporting an ongoing policy of “stopping the boats” seems a reasonable way forward; but only if it is aimed at stopping human trafficking and not at continuing to punish its victims. While Australia continues to do so, it cannot expect the international community to regard its border control policy as humane.
Frank Brennan, Tim Costello, Robert Manne and John Menadue
Proven refugees who are still Australia’s responsibility have been languishing in camps on Nauru and Manus Island for well over three years. The Refugee Council of Australia and many community groups are “calling on both major parties to form a bipartisan commitment to immediately evacuate the camps and bring these people to safety”. This coalition of concerned citizens is right when they claim: “With the US resettlement deal in serious doubt, the most obvious and humane solution is to clear the camps and bring these people to Australia”.
If this call to action were to have any chance of success, Malcolm Turnbull and Bill Shorten would need to agree on the necessary preconditions for keeping the boats stopped, and those of us agitating for the resettlement of proven refugees in Australia would need to accept those preconditions.
Having now endured two federal elections in which both the Labor party and the Liberal/National Coalition are committed to stopping the boats, concerned citizens need to accept that the boats will remain stopped.
We should be aiming for both bipartisan commitment and support in the community sector for those diplomatic, intelligence and military initiatives in Indonesia and on the high seas aimed at keeping the boats stopped. Such commitment and support would be possible only if there were a new Australian consensus as to how to stop the boats decently and fairly.
Our politicians need to be transparent with us, telling us how the Australians and Indonesians with Australian assistance can stop boats. Refugee advocates need to accept that most, if not all, asylum seekers on boats coming from Indonesia are not refugees fleeing persecution in Indonesia. They are desperate people seeking a better life than is on offer in any transit country through which they have passed.
In August, we wrote: “Our government has a mandate to stop the boats, but they have no mandate to treat people indecently without end simply because they came by boat.”
For as long as refugee advocates remain opposed to, or silent about, the preconditions for stopping the boats, the major parties will continue to fudge the solutions for the residual caseloads onshore and offshore, in part because they think any loosening of the arrangements will lead to renewed community pressure not to stop the boats and in part because they argue that if the refugees on Nauru and Manus Island are settled in Australia the people smuggling trade will re-commence.
This is demonstrably false. Since the announcement of the US deal, despite the government’s fears about the possible response of the people smugglers and the creation of a naval “ring of steel” to safeguard our borders, not one boat has set out from Indonesia to Australia.
The major political parties are committed to stopping the boats. But their commitment needs to be tempered by their obligation to act decently, fairly and transparently.
While keeping boats stopped, our politicians would need to remain committed to prompt on-board assessment of any asylum seekers making credible claims of persecution in Indonesia. In addition, boats should only be turned back if that can be done safely, transparently, and legally.
Back in 2012, Sir Angus Houston, who had been head of armed forces, and Michael L’Estrange, who had been head of foreign affairs for the Howard government, were not convinced that it could be done safely and legally. The community is entitled to evidence. We need to know what has changed since 2012. We’ve often heard from government military advisers like Jim Molan that the boats can be stopped. We need to hear from those like Houston and L’Estrange that they can be stopped safely and legally.
Any asylum seeker intercepted at sea must be assessed immediately to determine that they are not fleeing in fear of persecution in Indonesia. If they are, they must be received by Australia for processing. If they are not, then they should be returned safely to Indonesia.
Australia must do what is necessary to assist Indonesia and the UNHCR to ensure that the necessary protection is provided in Indonesia while refugee claims are processed. This must be done in such a way as not to set up a magnet effect for asylum seekers travelling extra distance to reach Indonesia. With increased military surveillance, intelligence reporting and better diplomatic work, we should be able to keep the boats stopped, thereby reducing the residual caseload of asylum claims in Java.
Given that the boats have stopped and will stay stopped, there is no need for continued warehousing on Nauru and Manus Island, nor for ongoing punitive measures for the 30,000 asylum seekers living in the Australian community, still awaiting processing.
Those proven refugees on Nauru and Manus Island who cannot be resettled in the USA in the near future, or any other appropriate country, should be resettled in Australia, and the 30,000 in limbo in Australia should be processed and granted permanent residence if proved to be refugees. But this will be possible only if groups like the Refugee Council and the coalition of community groups can reach agreement with Messrs Turnbull and Shorten that the time for political point scoring and purist disengagement has past.
The Refugee Council and coalition of community groups says, “This is a crisis.” This crisis can be solved only by the advocates accepting political realities and the politicians agreeing to a bottom line of safety, transparency and legality in the securing of our borders. We Australians have a clear moral obligation to the refugees on Manus Island and Nauru. Discharging that obligation, we also need to assert that we are not prepared to humiliate ourselves at the capricious hands of the present US administration.
This statement was first published by The Guardian on 13 February 2017.
Frank Brennan SJ, is the chief executive of Catholic Social Services Australia; Tim Costello is chief advocate for World Vision Australia; Robert Manne is emeritus professor of politics at La Trobe University; John Menadue is a former secretary of the department of immigration.