It’s time to rethink asylum-seeker policy

Not a day passes when, like many hundreds of thousands of Australians, maybe even more, I do not think about the unspeakable suffering our country is inflicting on 2500* innocent human beings, who have been marooned on Nauru and Manus Island for the past three or four years, or who are now living in Australia, because of their own serious ill-health or that of a member of their family, with the threat of return to Nauru or Manus Island casting a shadow over their lives.

Sixteen hundred* of these people had been found to be genuine refugees by November last year. Many assessments had not yet been finalised. A small number have returned to the countries from which they fled. Recently the Australian government has offered large amounts of money – reportedly up to $25,000 – as an incentive to return home, so far with small evidence of success. The deportees to Nauru and Manus Island are not, strictly speaking, political prisoners. In both places they have the right to move around the islands – although many are fearful, having experienced racism or brutality.

Report after report has documented the grievous mental condition of very large numbers of the people Australia has sent to Nauru and Manus Island. Some might recover; many will not. The Guardian has published the scarifying case files of the inmates on Nauru. Hundreds have engaged in self-harm. Two people we have imprisoned on Nauru have set fire to themselves. One lost his life. A small number of the people we have sent to Nauru and Manus Island have died from conditions that could have been treated if they had been transported in time to Australia. One of the detainees on Manus Island was bashed to death by Papua New Guineans involved in guarding the detention centre.

Scores of reports and several carefully researched books have been published documenting the legal, psychological and ethical aspects of the actions successive Australian governments have taken regarding those we have transported to Nauru and Manus Island. Television documentaries and films have been produced. The most respected human rights bodies in the world – like Amnesty International and Human Rights Watch, as well as our own Human Rights Commission – have published carefully documented reports concerning the legal, medical and ethical abuses that have occurred on Nauru and Manus Island over the past three or four years. In recent days, a case concerning the unlawful human rights abuses that the Australian government has allegedly inflicted on the people we have sent to Nauru and Manus Island has been filed before the International Criminal Court by several eminent legal scholars.

Almost every supporter of the refugees on Nauru and Manus Island knows all this as well as I do. It is not knowledge that we lack but a plausible plan for how their present plight and our present shame might be relieved.

What is most unbearable to me is not that the plight of those marooned on Nauru and Manus Island is the price our government is asking us to accept if we are to achieve an admittedly cruel but nonetheless necessary or desirable end. What is most unbearable is the purposelessness of the cruelty we are presently inflicting on these people.

This argument is not, however, self-evident, and requires careful explanation.

Between late August and October 2001, the Howard government responded to a small but steadily increasing number of asylum-seeker boats reaching Australian shores by instigating a new deterrent system – more radical than the existing system of indefinite mandatory detention in Australia. It came to be called the Pacific Solution. It was a complex administrative solution but in essence consisted of two principal parts. The first was offshore processing, on Nauru and Manus Island, of all asylum seekers who arrived by boat. The second was naval interception and return of the asylum seekers, where possible, to Indonesia, the country to which the vast majority of the asylum seekers had journeyed before purchasing a passage from a people smuggler.

The two-pronged Pacific Solution almost immediately stemmed the flow of asylum-seeker boats setting out for Australia, a self-evident fact that for a considerable time most supporters of the asylum seekers managed to deny. Facts, however, are facts. Between 2002 and 2007 virtually no boats of asylum seekers set out for Australia from Indonesia or anywhere else.

In 2008 the recently elected Rudd government abolished both prongs of the Pacific Solution. Gradually, as a probably inevitable consequence, the asylum-seeker boats returned, before too long in far greater and ever accelerating numbers than before the introduction of the Pacific Solution in the latter half of 2001.

Between 2009 and mid 2013, 50,000 asylum seekers reached Christmas Island on approximately 800 boats. More than one thousand drowned. There is no government in the Western world for which a situation of this kind would not have represented a problem.

In Australia the problem was exacerbated by the existence of an immigration department “culture of control”, related to the hundred-year history of the colonial and Commonwealth White Australia Policy, which found spontaneous human immigration unusually intolerable. It was also exacerbated by the presence of a ruthless Opposition leader, Tony Abbott, for whom the spontaneous arrival of asylum-seeker boats represented not a complex problem that required a solution through bipartisan cooperation but a splendid opportunity for grasping political power.

At first, as the number of asylum-seeker boats increased, the Gillard government re-introduced the Howard policy of offshore processing for a small proportion of the asylum seekers arriving by boat. This had no effect; the numbers of boat arrivals continued to increase. On his return to office, in mid 2013, Kevin Rudd transformed the situation by agreeing to send not some but all asylum seekers who arrived by boat to Nauru and Manus Island for offshore processing. Even more significantly, in order to blunt the edge of Abbott’s singularly effective attack on Labor as weak on the question of border security, Rudd radicalised even further the system of the Pacific Solution by pledging that any asylum seeker who reached Australia after July 2013 before being sent to Nauru or Manus Island would never ever be settled in Australia. In his diary, the foreign minister, Bob Carr, characterised Rudd’s never-ever in Australia decision as a political “masterstroke”.

As the research of John Menadue and Peter Hughes has shown, Rudd’s universalisation of offshore processing and his “never ever” pledge quite dramatically slowed the number of asylum-seeker boat arrivals. Once Tony Abbott was elected in September 2013, in addition to Rudd’s measures, Abbott re-introduced the Howard policy of naval interception and return to point of departure, which included now not only return to Indonesia but also, after perfunctory on-board refugee assessments, return to two countries from which the asylum seekers had fled directly – Sri Lanka in many cases and Vietnam in a few.

The Australian system of anti–asylum seeker deterrence was now complete. By combining offshore processing, the promise of no settlement in Australia ever, and naval interception and return to point of departure (a policy the Labor Opposition under Bill Shorten first resisted and then embraced), between 2014 and 2017 no asylum-seeker boats reached Australia. As the souls of those trapped on Nauru and Manus Island were slowly being destroyed, the more brutish of our politicians, like the immigration minister, Scott Morrison, and his successor, Peter Dutton, now began to speak of the Australian anti-asylum deterrent system not as a cruel measure necessary if we hoped to stem the tide of unwanted asylum-seeker boat arrivals and to prevent hundreds of drownings but as a towering Australian moral achievement that was “the envy of the world”.

Apart from the legal and the ethical issues raised by the creation in Australia of the world’s most effective anti–asylum seeker deterrent system, a practical political problem now confronted Australia’s cabinet ministers, and its most senior immigration and defence department officials. What was to be done about the 2500 innocent human beings now marooned on Nauru and Manus Island or temporarily in Australia, who shared the misfortune of having arrived between the beginning of the re-creation of the offshore-processing system under Julia Gillard and its completion under Tony Abbott?

Without succumbing to the presently still unthinkable idea of forcible repatriation to the countries from which those who had proven to be genuine refugees had fled – which would have involved Australia’s open resignation from the United Nations Refugee Convention, whose non-negotiable core is the principle of non-refoulement – the only solution was to find a country willing to settle the refugees Australia had warehoused offshore but refused absolutely to settle.

Four possibilities were investigated.

In principle, Malaysia accepted a deal whereby 4000 of its refugees would be settled in Australia in return for accepting the first 800 asylum seekers who reached Australian territory by boat. Unfortunately for the Gillard government, the High Court judged this plan unlawful.

Canberra now turned to Cambodia with the offer of a substantial bribe if it were willing to take the Pacific Solution detainees who voluntarily agreed to settle there. Unhappily for the Canberra policymakers, virtually no refugees were willing to make the move from Nauru and Manus Island to a culturally alien, impoverished and dangerous country where prospects for a safe and decent life were non-existent.

During the period of the Gillard government and consistently thereafter, New Zealand maintained an offer to settle 150 refugees from Manus Island. This was and is an offer that Australia has consistently refused, as recently as last week. As part of its modest act of generosity, New Zealand was unwilling to create a class of second-class citizens, forbidden from ever moving to Australia. Canberra has thus consistently rejected the offer on the ground that it has no intention of accepting a situation where New Zealand might provide refugees from Nauru or Manus Island with an eventual backdoor entry to Australia.

Late last year there finally appeared to be a breakthrough. In 2016, the Australian government despatched Andrew Goledzinowski to several countries as our ambassador for people smuggling and human trafficking. He eventually achieved a remarkable success. A deal with the Obama administration was struck by which – as the minister for immigration, Peter Dutton, recently admitted to Andrew Bolt – the United States would offer settlement places to 1250 of the refugees on Nauru and Manus Island in return for Australia’s willingness to settle a similar number of refugees from Costa Rica, for which the United States had assumed responsibility.

One major difficulty soon emerged. Following the election of Donald Trump, no one could be sure whether the US–Australian deal would hold. Trump had promised future hostile action against both refugees and Muslims as one of his signature presidential election campaign promises.

To his credit, in his first telephone conversation with Donald Trump, Malcolm Turnbull appears to have raised the question of the future Nauru/Manus Island–Costa Rica refugee swap in an upfront, even aggressive, way. Turnbull is a rank political opportunist – now spruiking, for example, the nonsense of “clean coal” he once derided as an energy source of the future – but he is not a political coward. In their first conversation, given the kind of person Trump is known to be, a more timid Australian prime minister than Turnbull might have raised the reciprocal refugee deal sotte voce or not mentioned it at all.

In the end it was probably only because of Turnbull’s willingness to press the issue on Trump to avoid some domestic humiliation, and even more because of the very considerable political capital Australia has amassed in the US Congress over the past 20 years or more – because of our willingness to participate in every recent American Middle Eastern or Central Asian military adventure, no matter how illegal, unethical and foolish – that the deal that President Trump publicly described as “dumb” has not so far at least been repudiated by the new US administration.

If things go as well as can be humanly expected, in the next several months 1250 refugees from Nauru and Manus Island will be settled in the United States, following a process, whose detail in practice no one yet understands, called extreme vetting. If things go badly, far fewer than 1250 refugees will be accepted by the US, and the time taken before their settlement will be lengthy. The future of at best half of those who have spent the past three or four years in agony on Nauru and Manus Island now rests in the hands of President Trump’s immigration team.

Even more significantly, however, even if the deal is consummated in the most perfect way imaginable, it will still leave some 1250 human beings, for whom Australia was and is responsible, stranded without hope. Their “crime” was to seek for themselves and their families a life not lived under the shadow of tyranny, and their basic misfortune was to have reached Australia by boat in search of protection at an unpropitious moment, not before but after mid July 2013.

What I find most dismaying about this situation is that with a combination of political courage and clear thinking the two groups most interested in the fate of the marooned on Nauru and Manus Island – the supporters and the opponents of these asylum seekers – could find a resolution to the tragic situation of these 2500 or 1250 people without the slightest cost to the nation.

This argument requires careful explanation.

For easily understandable and entirely cogent legal, moral and political reasons, the supporters of the asylum seekers – among whom I count many close and valued friends – seem incapable of accepting what appear to me certain obvious and uncontroversial facts.

These facts can be stated straightforwardly. If Australia returned to the situation of 2008 – where offshore processing and turn-back were abandoned by the Rudd government – it is as certain as anything in political life can ever be that within a relatively short time very large numbers of asylum-seeker boats would return to our shores; that considerable numbers of these asylum seekers would lose their lives at sea as they did between 2009 and 2013; and that the political party or parties who were regarded as responsible for this situation would be ceding significant ground both to the party or parties that opposed these measures and especially to the fastest-growing political party in Australia, One Nation.

What this means in practice is that as things stand neither major political force – neither the Liberal Party–Nationals coalition nor the Labor Party – will accept the situation that virtually every supporter of the asylum seekers presently insists upon: a return to the situation of 2008, that is to say the dismantling of the two main prongs of the Pacific Solution. Nor will public opinion press the mainstream parties to take that course. On the question of acceptance and settlement of spontaneously arriving asylum-seeker boats, as the meticulous research of Professor Andrew Markus of Monash University has shown, Australian opinion has on balance been remarkably stable and settled for many years: roughly two thirds opposed to settlement of spontaneous asylum seekers who arrive by boat; roughly one third in favour.

The following conclusion seems inescapable. The supporters of the asylum seekers marooned on Nauru and Manus Island or threatened with post-hospitalisation return are, almost universally, advocating a solution that has zero prospect of acceptance either by the mainstream parties or by the weight of public opinion in the coming years. What is especially significant is that a solution to the tragedy is more time sensitive than most political problems. It is hard to exaggerate the catastrophic mental and physical consequences that will be experienced by the inmates of Nauru and Manus Island if their re-settlement is delayed for even one or two more years.

For even less understandable and infinitely more unworthy reasons, the opponents of the asylum seekers and supporters of the current bipartisan policy also refuse to accept an equally straightforward fact: namely that if the Australian Navy is deployed to intercept asylum-seeker boats and return them to point of departure, the offshore processing centres could be emptied, and those inmates who were not accepted by the United States could be settled in Australia within the next few months without any risk of what they most claim to fear, the revival of the people-smuggling trade.

Once more, this argument needs to be explained as straightforwardly as possible. During the period following the dismembering of the Pacific Solution, under the governments of Rudd and early Gillard the numbers of asylum-seeker boats reaching Australia increased in accelerating numbers. As a consequence of this, an entrenched but irrational mindset took hold among otherwise intelligent policymakers in Canberra and their public supporters that provided for them a rigid and consensual framework for their policy thought. This mindset suggested that if even one brick were removed from the anti–asylum seeker deterrent system that had been constructed between 2009 and the end of 2013, the whole building would be in danger of complete collapse. The people-smuggling trade would thus re-commence. And as a consequence before too long Australian servicemen and servicewomen would be lifting the drowned bodies of asylum seekers, including children and women, from the waters between Indonesia and Australia.

This consensual framework of thought can now be shown to be altogether irrational – for three separate but interconnected reasons

First, it neglects the historical fact that the Howard government was able to settle the majority of the inmates of Nauru and Manus Island in Australia between 2003 and 2007, while retaining naval patrols in the waters between Java and Christmas Island, without any significant number of asylum-seeker boats returning.

Second, it flies in the face of more recent empirical evidence. For years the responsible ministers told us, for example, that if we even allowed the small numbers of former inmates of Nauru and Manus Island who are here for medical reasons to remain, or even allowed seriously ill asylum-seeker children in Australia to be released from detention, this would be enough to serve as a signal to the people smugglers for a resumption of their trade. At the time of the infinitely more significant signal – the announcement of the Obama–Turnbull deal – this kind of thinking led Turnbull to announce with great apparently unconfected drama that a naval “ring of steel” would have to be mounted in the oceans between Australia and Indonesia to repel the anticipated invasion of people smuggler-organised asylum-seeker boats.

The “ring of steel” announcement was an emblem of the paranoid fantasy prevailing in Canberra as late as last November, which I learned about in a private audience with a very senior border-control official. This fantasy ought now to be entirely discredited. Since the announcement of the US deal, more than four months ago, not one people-smuggling syndicate has convinced even one boatload of asylum seekers to set out for Australia.

Third, such thinking has not merely been refuted by evidence in the real world. It is also inconsistent with common sense. The apparently held conviction that there are significant numbers of asylum seekers who would be foolish enough to pay a people smuggler several thousand dollars for the privilege of embarking on an unseaworthy boat with a far from negligible chance of sinking, which is almost certain, if it does not sink, to be intercepted by an Australian patrol vessel, which is charged with the duty of transporting its human cargo to an uncertain future of indefinite detention on a frightful tropical island camp, represents the level of absurdity conventional group-thinking in Canberra has now reached.

Recent historical experience and elementary logic point then to two principal conclusions. One of these conclusions is discomfiting to the supporters of the asylum seekers. The other is discomfiting to their opponents.

The idea that asylum-seeker boats will return in large numbers if Australia abandons the policy of naval turn-back is almost certainly true. The idea that asylum-seeker boats will return if Australia settles the people presently on Nauru and Manus Island, either in the United States or in Australia, while retaining the policy of turn-back, is even more certainly, false.

What follows from this argument can be stated very simply. If the lives of those presently experiencing the agonies and the hopelessness of indefinite detention on Nauru and Manus Island are to be saved, both the supporters and the opponents of these asylum seekers will have to change their minds about one or the other of their most deeply entrenched convictions.

Supporters of the asylum seekers will have the following choice. They can accept the only even remotely plausible plan to save the lives of the people on Nauru and Manus Island in the near future whose settlement the United States refuses, namely settlement in Australia but retention of the policy of naval interception and turn-back. Or uncompromising adherence to those genuinely held and powerful legal, ethical and political principles can lead them to refuse to countenance the policy of naval turn-back no matter what the practical consequences for the people presently marooned on Nauru and Manus Island, at least half of whom will never be settled in the United States.

For their part, opponents of the asylum seekers will have to accept that the cruelty they advocate or tolerate with regard to the ongoing treatment of the inhabitants of Nauru and Manus Island is based on not a genuine but a counterfeit version of political realism. The offer of settlement in the United States has not revived the people-smuggling trade between Indonesia and Australia. Accordingly, the realpolitikal conviction that the people-smuggling trade will revive if the present marooned population of Nauru and Manus Island are settled in a desirable country – either in the United States or Australia – has been demonstrated to be false so long as the policy of naval turn-back remains in place for future arrivals. Refusing to settle in Australia those people on Nauru and Manus Island rejected by the United State is an act of thoughtlessness at best and gratuitous cruelty at worst that will ensure that the lives of very many hundreds of innocent fellow humans will be slowly but inexorably destroyed for no discernible reason.

Both my parents were refugees who fled separately from Nazi Germany and Nazi-dominated Austria shortly before the outbreak of war in 1939. Sympathy for the plight of refugees has been a fixed element of my political identity for the past 60 years. To have arrived at the position outlined in this article – that accepts that there is now no alternative to acceptance of naval turn-back if the inmates of Nauru and Manus Island are to have any chance of being settled in Australia reasonably soon – has not been taken lightly. Indeed, it would not have been taken at all if I were able to think that some realistic alternative existed.

In the choice between adherence to legal, moral and political principles or painful willingness to compromise on those principles in the hope that the lives of many hundreds of fellow human beings might be saved, both myself and a small handful of political friends – Frank Brennan, Tim Costello and John Menadue – have chosen, without pleasure, what is without doubt a minority and unpopular position that the overwhelming majority of the committed supporters of the asylum seekers marooned on Nauru and Manus Island have, so far at least, rejected.

There is of course a powerful objection to the compromise position outlined in some detail in this article. Some members of the present government, and many members of the departments of immigration and defence, and perhaps even the prime minister, might understand the logic and feel sympathy for the policy proposal outlined here. There is also some recent evidence whose implication is that public opinion would be willing to accept the settlement of the small number of refugees on Nauru and Manus Island if people could be convinced that this need not result in the resumption of the people-smuggling trade. However, while the Coalition government is under pressure from its own right-wing, pro-Abbott forces and from One Nation, there is little chance that the compromise proposal outlined here – settlement in Australia for those presently on Nauru and Manus Island in return for the retention of the policy of turn-back – will gain any traction.

This is probably true. There is nonetheless another reason for at least modest hope. The present Turnbull government is so riven by division between its left and right, and its majority in the House of Representatives is so thin, that in the coming months there is a reasonable chance that it might simply fall apart. If in those months the asylum-seeker lobby, led by the Refugee Council of Australia, the Kaldor Centre for International Refugee Law at the University of New South Wales and the Human Rights Law Centre in Melbourne, came to adopt the compromise position advocated here, it is possible that a new government led by Bill Shorten with Tanya Plibersek as his deputy would take courage, abandon the policy of inhuman cruelty to the people dying a slow death on Nauru and Manus Island, and at long last do the only decent thing.

Supporters of the marooned on Nauru and Manus Island might have a different but equally or more realistic plan. If so, there is no one keener than I would be to hear from them what it is.

* These figures come from personal communications with the Department of Immigration and Border Protection, 13 November 2016.