POLI1025 The Case Of Australia’s Asylum Seeker Policy, 2001-2020 Assessment

1.INTRODUCTION

TOPIC CLAIM Since the late 1980s successive Australian governments have adopted a highly controversial policy of detaining all asylum-seekers arriving ‘illegally’ by boat in Australia in high security detention centres (Phillips 2015: 1-2). BACKGROUND INFORMATION Initially asylum-seekers were mostly held in some six detention centres in Australia. Since 2001 all Australian governments have run an ‘offshore processing policy’. After 2012 Australia detained between 6,000-12,000 adult asylum-seekers and some 2,000 children annually in offshore detention camps either on Manus Island or on Nauru (Australian Parliament 2023:1). PROBLEM/DEBATE OUTLINE This policy has proved ‘one of the most contentious issues in Australia’s modern political history’ (Greenock 2009: 17). For many observers including human rights agencies this policy is illegal, because it breeches the UN Convention on Refugees (1951) or the UN Convention on the Rights of the Child (1989: also Samuelson 2020). 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 ‘offshore processing policy’ argue that that this was a proportionate response to the arrival of very large numbers of maritime asylum-seeker which simply gives expression to Australia’s sovereign right as a nation-state to determine who enters Australia (Brandeis 2019). KEY RESEARCH QUESTIONS In this paper I consider the merits of these two opposed views as I address three questions. Firstly what do those who argue against the ‘offshore processing policy’ present by way of evidence and reasons in support of their case? Secondly what do those who support the ‘offshore processing policy’ present by way of evidence and reasons in support of their case? Finally I ask how credible is the case made by those who support this policy with special reference to the assumptions on which they rely? STEPS TO BE TAKEN In this paper I begin by outlining my argument that a liberal-democracy like Australia should have adopted a policy that would discharge its basic legal and moral obligations to asylum seekers. I then consider the defence offered in support of the ‘offshore processing policy. I outline two key claims made by those who argue that this was a good policy. I assess that case, arguing that it relies on a mixture of non-credible evidence and unsound assumptions. LINK SENTENCE Let me begin with my argument.

The case against the ‘offshore processing policy’.

2. SUBSTANTIVE PARAGRAPH

TOPIC/CLAIM The arbitrary detention of asylum seekers without trial or due legal process is illegal and morally objectionable: as a serious contravention of international human rights law it is also something that a liberal-democratic government should not be doing. EVIDENCE/REASONING 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). CLAIM 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. EVIDENCE 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). EVIDENCE Human rights experts, medical practitioners, lawyers and the Australian Human Rights Commission have all condemned the policy (Pickering and Weber 2014). EVIDENCE 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 mounted some twenty five legal challenges to the practice of arbitrary detention (Crock and Ghezelbash 2011). That legal advocacy was not however successful in remediating the harshness of the policy let alone ending it because the High Court ruled in favour of the legislative power of Parliament and against international human rights law (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’.

3.SUBSTANTIVE PARAGRAPH

TOPIC/CLAIM The ‘offshore processing policy’ 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. EVIDENCE/REASONING It is pretty clear from many studies that asylum-seekers coming to Australia suffer disproportionately from a range of mental illnesses and stress. EVIDENCE 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). EVIDENCE That the ‘offshore processing policy’ 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, especially children. EVIDENCE 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. REASONING This kind of evidence highlights the failure of the ‘offshore processing policy’ to acknowledge our legal and moral obligations under the Refugee Convention of 1951. LINK Let me turn now the case made by those who support the ‘offshore processing policy’ like Jonathan Holmes (2016).

The case for the ‘offshore processing policy’

4 SUBSTANTIVE PARAGRAPH

TOPIC/CLAIM. Supporters of the ‘offshore processing policy’ like Jonathan Holmes (2016) claim that australai needed a policy like this. CLAIM Since 2000 Australia has not and never could 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). Let me turn to the second claim.

5. SUBSTANTIVE PARAGRAPH

TOPIC/CLAIM. Supporters of the ‘offshore processing policy’ also claim that the arrival of asylum-seekers by boat was undermining Australians' belief that Australia ran a fair and orderly immigration program. CLAIM 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. EVIDENCE 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) .

EVIDENCE 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).

EVIDENCE 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%. ASSUMPTIONS Among the assumptions made by those who make this case is the premise that public opinion is taken seriously by governments, that if enough people support a view it must be true 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’. LINK Let me now evaluate the credibility of this argument.

Critical Evaluation

6. SUBSTANTIVE PARAGRAPH

TOPIC/CLAIM.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 ‘offshore processing policy’. FIRST CLAIM 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 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. EVIDENCE USED TO CHECK CLAIM As data gathered by the UNCHR shows, Australia has actually 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 hosted 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)

7. SUBSTANTIVE PARAGRAPH

TOPIC/CLAIM SECOND CLAIM Those who support the ‘offshore processing policy’ 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. CREDIBILITY OF ASSUMPTIONS This argument partly relies on the ‘bandwagon fallacy’ and 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. The ‘bandwagon fallacy’ holds that if enough people believe something then it must be true. Also known as the appeal to the masses fallacy it seems that whether that belief is  true or not doesn’t matter. Majority opinion on many issues is often ignorant, delusional or vague: in any case it cannot trump the issue of truth. The assumptions are not especially robust either. 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. USE OF EVIDENCE 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.

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