Mind the Ethical Gap: Australian refugee policy

Sara Davies[1]

What is it to be ethical in politics? We often talk about political action that is popular, legal, or indeed, legitimate.  But what if an act is popular and legal – but not ethical?  When should this omission concern the population in a democratic environment?

The issue of asylum seekers arriving by boat into Australian waters has been discussed in both parliament and election campaigns with much emotional rancour, even fear, since the Norwegian freighter Tampa rescued people at risk of drowning in international waters and attempted to bring them to port in Australian waters in 2001.  Even before this incident, Australian society, media and politics have a history of histrionics regarding boat arrivals.

Ethics – which is different from politics or legality – are something often called for but seldom honoured in political discussions concerning asylum seekers.  The introduction of the Abbott government’s Operation Sovereign Borders response to asylum seekers who arrive by boat (consisting of: no onshore processing, tow back into international waters if safe to do so, and no information released on arrivals, policy or interceptions to media).  The tragedy last week on Manus Island – long foretold and predicted – and in the last forty-eight hours, the Australian government’s request that the Cambodian government hosts asylum seekers intercepted from Australian shores have brought these issues to the fore once again.  Politicians discuss these events in terms of bureaucratic deterrence and efficiency, national security and legality. There is no doubt that politicians will attempt to message away these sorry events, but can they mind the ethical gap they expose?  Certainly, Australian politicians’ talking points on refugees have generally failed to silence other nation’s concerns regarding our policy and its regional ramifications.

Often when called by the media to comment on these stories, three questions commonly asked are: 1) what is Australia’s legal responsibility concerning situation X? 2) how will Indonesia/region respond to suggestion/situation X? and 3) will policy X work? I am increasingly concerned however with the question less asked: Is ‘suggestion/situation/policy X’ ethical?  What are our humanitarian obligations to people who request asylum, and what are the wider implications for Australia and the world of a policy that shows scant regard for our responsibility to protect asylum seekers, especially given our wealth, our political stability and history of peaceful migration?

Take, for example, the suggested Cambodian transfer scheme – even if the Australian government found a loophole to make this transfer legal, the Cambodian government proved to be a willing accomplice, and the policy deterred asylum seekers – would it be ethical? Is this how we should treat human beings, let alone one of our poorest neighbouring states?

Finally, is this the way in which Australia, a member of the United Nations Security Council for 2013 and 2014, wants to build its regional and international reputation?  In February 2013, Australia – sitting on the United Nations Security Council – agreed to a Presidential Statement in the Security Council that noted the Protection of Civilians is an obligation held by the international community.  In the statement it was specifically noted that the protection of asylum seekers and refugees fleeing situations of political instability, conflict and humanitarian crisis is an obligation shared by states and a burden that is relieved when all states fulfil their duties in this area.  When governments fulfil their duty to protect civilians who flee in fear of their lives through the provision of refuge the humanitarian burden in conflict situations is eased and the risk of wider regional instability reduced. Australia could have been an exemplary Security Council member – whose actions outside the Council could have been as commendable as its work at the table – had Canberra been prepared to meet the responsibilities it set for others in the Security Council chamber.

The Australian government has the capacity to protect Australia people and goods that seek to threaten and harm it. There is no legal remedy unavailable to our Australian government to protect Australian citizens from a person arriving by boat or plane should it be required.  Indeed, Australian citizens and travellers who arrive with a tourist visa – due to our large volume and relative ease upon entry – are more likely to be a security or health risk than those who arrive by boat seeking asylum.

Australia is safe and secure, and asylum seekers do not change these material realities.  It has a moral responsibility to do all it can to protect civilians fleeing humanitarian crises and human rights abuse.  Indeed, that is what Australia has agreed to when it voted in favour of Security Council resolutions saying as much.  When will politicians’ despair and horror for what civilians in Syria and Central African Republic currently endure extend to generosity to those who flee terror in these and other parts of the world?

Closer to home, what is the ethical legacy of our position regarding people who are trying to find a better life in our stable, wealthy democracy?  Events on Manus Island call upon us to ask deeper questions about our responsibility for the dangerous situations we place asylum seekers in to avoid caring for them.  GetUp’s LighttheDark events around Australia on 23 February 2014 showed that more and more people are concerned with both our main political parties failing to take an ethical stand on refugee policy. For those who think these questions do not matter should take heed of history. This year, on the 80th anniversary of the year that Adolf Hitler came to power, we should all reflect on the world’s failure to provide refuge to Germany’s Jews, thousands of whom were denied asylum by countries including Australia. It was the events that followed this monstrous moral failure that led to the 1948 Convention for the Prevention and Punishment of the Crime of Genocide and the 1951 Convention Relating to the Status of Refugees. Yet we seem to continue to miss the important lesson.


[1] Yes, this is a word play on the London Tube’s Mind the Gap posters.  This blog reflects a personal opinion and should not be associated with any institution with which I am affiliated.

Asylum Solutions: we need a regional refugee compact

This article was originally published at The Conversation. Read the original here.

Photo courtesy of IRIN. http://www.irinnews.org/photo/details/200904271305470378/at-umpium-refugee-camp-on-the-thai-border-close-to-myanmar-a-group-of-burmese-refugees-say-their
Photo courtesy of IRIN. http://www.irinnews.org/photo/details/200904271305470378/at-umpium-refugee-camp-on-the-thai-border-close-to-myanmar-a-group-of-burmese-refugees-say-their

The Australia-PNG regional resettlement arrangement and the “no advantage” policy are based on the incorrect assumption that asylum seekers come to Australia because it’s an “easy” entry point into the affluent Western lifestyle via established people smuggler networks. This makes the issue out to be about “pull” factors and diminishes “push” factors for refugees.

In order to address the asylum seeker problem, we first need to reframe the debate to reflect the facts. Then we can focus on protecting refugees in our region who resort to the dangerous sea voyage.

The first steps towards a “solution”? A regional refugee summit that brings together civil society, humanitarian groups, international organisations, academics and politicians. Let’s go with the working title: The Summit on Ideas for Durable Solutions. With genuine engagement and sharing of ideas, practices, tools and policies, the aim of the summit would be to establish a regional refugee compact.

Getting the right structure

Rather than having state chairs, the United Nations High Commission for Refugees (UNHCR) and International Organization for Migration (IOM) would be given dual responsibility to organise the summit. Such an arrangement has a precedent in the Rio +20 United Nation Conference on Sustainable Development in 2012.

If UN General Assembly endorsement required for such a process proved too ambitions, the summit could appoint a high-level organising committee to chair and report on the summit. The panel would include esteemed individuals with knowledge and experience in this area and the region, such as:

Erika Feller, a former Australian diplomat, recently retired from UNHCR
Sadako Ogata, former United Nations High Commissioner for Refugees
Vitit Muntarbhorn, UN Special Rapporteur and currently serving as Commissioner for Independent International Commission of Inquiry on the Syrian Arab Republic.

Hearing from organisations on the ground

There are a variety of refugee experiences in the region – which agenda-driven political processes ignore – that need to be heard in order to explore opportunities for further collaboration and investment.

There are refugees, for instance, who are UNHCR-recognised but survive and thrive in countries where their status remains “illegal”. There are countries – China, Malaysia, Philippines, Thailand, even Singapore – which have in the past have agreed to resettle refugees, in some cases thousands, if they are allowed to determine when and who they receive.

Non-government organisations in regional countries, such as Indonesia, Malaysia and Thailand, that work with asylum seekers must be engaged more fully beyond their current status as service providers. Their work with and experiences of the grassroots interventions to protect asylum seekers remains underutilised.

The regional refugee summit would provide an opportunity for these experiences to be shared with public service officials, law enforcement officers and politicians in an environment where the ideal objective is not an arrangement but an understanding of what drives the demand process, what satisfies demand, and what is durable for each and every state in the region.

Moving towards a regional refugee compact

The summit’s agenda will focus on local and regional initiatives to protect asylum seekers. We need to discuss what services countries can and will provide, what funding arrangements and humanitarian intake solutions can be given and received, and which durable solutions are acceptable under international refugee law and for the region.

The process would start with a wide participatory summit that moves discursively and creatively towards a regional refugee compact, guided by the high level panel of experts who are knowledgeable and engaged in the region. The panel would then report its findings to the region’s heads of state.

Burden-sharing would have to be clearly outlined and bilateral agreements may still flow from the compact as long as they adhered to its principles. These principles could be based on the 1951 Refugee Convention without forcing non-signatories to sign onto the convention.

Such a regional refugee compact could build on the languid Bali Process. Since 2011, all 40 signatory states (in and around the region) have agreed to five principles including asylum processing arrangements, refugee protection, and durable solutions. There is regional agreement on what should guide behaviour but there remain great deficiencies in the creation of arrangements that meet these five guiding principles.

The regional refugee compact, however, would focus the attention away from border protection and towards refugee needs and service provision.

Addressing the real problem

We need a discussion about what better protection outcomes can be achieved without relying on the 1951 Convention, as few states in the region are signatories. We also need to ensure that the protection that the 1951 Convention supplies (hence the passage to Australia) can be regionally sustained into the future via other instruments. None of the policies at the moment meet this criteria.

The Australian government should seek a regional approach that supports and enables engagement between local, national and regional NGOs, the UNHCR, regional governments and refugee groups. These discussions need to be outside of the migration focus and outside of the deterrence model that focuses on the supply side – people smuggling and trafficking. Rather, it must engage with the demand – the asylum seekers themselves.

An “individual asylum needs”-focused approach rather than a “state versus people smuggler” approach may start to yield a more sustainable solution if breaking the business model is the goal. Deterrence does not mitigate demand. It may provide a temporary limit on demand, but in the longer term, this makes people more determined and desperate to find a way to go where they need to go for protection.

Sara Davies, Griffith University and Gerhard Hoffstaedter, University of Queensland.

Factcheck: Asylum Seekers

Republished with the permission of The Conversation. Read original post here.

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The government says many asylum seekers are are arriving for “economic reasons”. AAP Image/Rossbach/Krepp

“People are coming here, not now as a result of persecution, but because they’re economic refugees who’ve have paid money to people smugglers.”

– Foreign minister Bob Carr, Meet the Press, June 9.

There is a political context to this statement as the government grapples with its perceived weakness on asylum seeker policy. Resurrected prime minister Kevin Rudd has backed Carr, saying there were a “whole bunch of people” arriving by boat as economic migrants purporting to be refugees.

The government has commissioned a review into the processing of asylum seekers in a bid to lower the acceptance rate – around 90% of asylum seekers who arrive by boat have been found to be refugees. The government’s view is thatmany are middle class Iranians and Sri Lankans, in particular, who are fleeing for economic reasons. “There’ve been some boats where 100% of them have been people who are fleeing countries where they’re the majority ethnic and religious group, and their motivations is altogether economic,” Senator Carr said last week.

The government says it has evidence to justify these claims, but so far we have not seen it. Putting aside the politics, the government’s assertions are not backed by the known facts.

Since the adoption of the Expert Panel Recommendations on Asylum Seekers, the “no advantage” test has been applied to all individuals who have arrived in Australian waters seeking asylum since August 13, 2012. This means they receive no benefit compared with people who stay in refugee camps waiting for processing. Because of this, as reported in The Guardian: “there has been virtually no processing of the claims made by the more than 20,000 refugees who have arrived since that time”. This was confirmed in the Legal and Constitutional Affairs Legislation Committee on May 27, 2013. So, if we have not processed claims, we have no idea whether recent arrivals by boat are “genuine” refugees or not.

We also know that the majority of asylum seekers are arriving from Sri Lanka, Iran and Afghanistan. Regarding Sri Lanka, the Human Rights Council on March 21, 2013, adopted the resolution on Promoting Reconciliation and Accountability in Sri Lanka, which called on its government to “conduct an independent and credible investigation into allegations of violations of international human rights law and international humanitarian law”.

The resolution expresses concern at:

…reports of continuing violations; concern at reports of enforced disappearances, extra-judicial killings, torture, threats to the rule of law, religious discrimination and intimidation of civil society activists and journalists.

As for Iran, this year the Security Council – of which Australia is a member state – extended the enforcement of sanctions. The Human Rights Council on March 22, 2013, passed a resolution on the human rights situation in Iran after hearing a report by the UN Secretary General. It concluded that:

…the Secretary-General remains deeply troubled by reports of increasing numbers of executions, including of juvenile offenders and in public; continuing amputations and flogging; arbitrary arrest and detention; unfair trials; torture and ill-treatment; and severe restrictions targeting media professionals, human rights defenders, lawyers and opposition activists, as well as religious minorities.

As for Aghanistan, the Security Council regularly hears from the United Nations mission in Afghanistan (UNAMA). In March 2013, it was reported to the council that there remains serious human rights violations and attacks on civilians by armed non-state actors. Regarding the likelihood of these asylum seeker claims meeting the UNHCR refugee definition – “the UNHCRhas identified 859,305 refugees in need of resettlement, of whom 180,676 require resettlement in 2013”. Afghanistan remains the number one source country for successful refugee claims around the world.

In summary, these three major source countries for boat arrivals have been repeatedly found by the international community to be unable to protect persons that may fall under the refugee definition – someone with a well-founded fear of persecution on the grounds of race, religion, nationality, social group or political opinion.

Finally, on the question of “economic migrants” versus “refugees”, the UNHCR provided an important qualification in their 2011 issue of the UNHCR Handbook on Procedures and Guidelines for RSD. They noted the distinction is “sometimes blurred”.

“Behind economic measures affecting a person’s livelihood there may be racial, religious or political aims or intentions directed against a particular group.”

The handbook goes on to note that “objections to general economic measures are not by themselves good reasons for claiming refugee status. On the other hand, what appears at first sight to be primarily an economic motive for departure may in reality also involve a political element, and it may be the political opinions of the individual that expose him to serious consequences, rather than his objections to the economic measures themselves”.

As signatories to the 1951 Refugee Convention, we have an obligation to hear – without prejudice – the testimony of each asylum seeker before presuming that their claim for refugee status is not valid because of their nationality or ethnic origin.

Verdict

Based on the available information, the foreign minister’s statement is incorrect.


Review

The author is correct that it is the political context surrounding current asylum debates that has prompted a shift in language, now likening asylum seekers to economic migrants. This shift in language heralds a potential future shift in asylum policies.

It is true that as the reference to UNHCR in this article notes, Convention-based persecution can lead to economic deprivation, and Australia should be wary of making blanket assessments of particular countries or groups. However on the matter of claims not being processed and the unavailability of data, there are a number of Sri Lankans in particular who have either returned voluntarily or involuntarily on the grounds that they have not invoked Australia’s protection obligations. It may be instances like this that Senator Carr is using to extrapolate to all boat arrivals. – Melissa Philips


The Conversation is fact checking political statements in the lead-up to this year’s Australian federal election. Statements are checked by an academic with expertise in the area. We then seek a second opinion from another academic expert, who gets an anonymous copy of the article to review for accuracy and fairness. Our Election FactCheck page launches on Monday 8 July.

You can request a check at checkit@theconversation.edu.au.

The Carr Doctrine Part 1

In November 2011, Mark Beeson asked ‘Can Australia save the World?’.  He noted that former Foreign Minister Kevin Rudd’s efforts as Prime Minister and then Foreign Minister were devoted to re-establishing Australia as a distinctive and ambitious ‘middle power’.  This ambition harked back to the days of former Foreign Minister Gareth Evan’s leadership and engagement with multilateral diplomacy.  Examining the fields of security, international economy and the environment, Beeson is sympathetic to Rudd’s ambitions but laments their practical applicability.

Continue reading “The Carr Doctrine Part 1”