Towbacks an abrogation of our responsibilities PETER VAN ONSELEN THE AUSTRALIAN JANUARY 25, 2014 12:00AM I HAVE disagreed with the offshore processing of asylum-seekers for as long as I can remember. I regard it as an abrogation of our international responsibilities and an attempt to bypass national laws that would otherwise apply to the processing which occurs. The same goes for the decision to excise Christmas Island and, eventually, the entirely Australian mainland, from our migration zone. It is patently absurd for a government to exclude the consequences of its public policy decision-making from the very land in which its laws apply. Yet as a legislative initiative doing so had bipartisan support. If the political view is that our appeals processes are too generous (which they are) and need to be changed to bring them into line with UN guidelines on assessing refugee status, then the government should change the law. If that constitutionally requires a referendum, so be it. But bypassing the judiciary in this policy area is a dangerous precedent to set: exactly the sort of approach that leads to politicians thinking it is OK to hide behind a veil of secrecy when it comes to the manner of their military operation intercepting unarmed asylum-seekers doing what they have a clear right to do under international law: seeking safe haven in a signatory nation to the refugee convention, which Indonesia is not. That said, the refugee convention has clearly been gamed by people-smugglers in recent years, and the political and public will against such gaming means that if our government decided it no longer wanted to be bound by antiquated international laws pertaining to refugees, opting out of the regime would reflect the will of a majority of voters, Id accept that decision too. But that is not what is happening. Both sides of politics instead choose to claim, incorrectly, that we are within our international legal rights to deny asylum-seekers entry to this country. Tear up the convention we ratified, by all means, and governments can go right ahead and protect our borders against the threat these unseaworthy small boats apparently represent. But without a formal rejection of the conventions, we are breaking (albeit unenforceable) international law. The election of the Abbott government came hand-in-hand with a mandate to stop the flow of boats by adopting a suite of measures some, including me, dont agree with. Opponents cannot deny that the people have spoken. One of the pre-election criticisms was that the current policy wouldnt work. That appears to have been a misjudgment. Boats are being turned around, and the flow of arrivals has all but stopped (I assume it has: it is worth noting it is hard to be sure because secrecy, not accountability, is the leading dictate of Operation Sovereign Borders). This governments approach, not just the PNG solution, appears to be a strong contributing factor behind stopping the boats. To say otherwise is denialist. The outcomes-based success of Operation Sovereign Borders, however, doesnt change my opposition to the manner in which it is being conducted (for me the ends do not justify the means). This is where opponents of the Coalition approach should congregate: argue that the response is out of line with our legal obligations and therefore, no matter how successful, unacceptable in our democractic state. But most opponents of the turn-backs are not limiting themselves to such objections and criticisms, choosing instead to jump on the unsubstantiated bandwagon of claims of mistreatment of asylum-seekers by navy personnel. They do so as some sort of evidence that the towback policy is a failure. That says more about their ideological blinkers restricting objective analysis than it does about anything else. At one level Scott Morrison, the Immigration Minister, gets what he deserves when unsubstantiated reports of asylum-seeker abuses get an airing. He is so restricting in what he tells the public about what is happening that he virtually dares the media to go searching for evidence which inevitably leads to improper airing of (mis)information. If the damage of such fourth-estate failures was only left at the feet of the Minister, that would be a case of Morrison reaping what he sows. But the dodgy reports of asylum-seekers being ordered to hold on to burning pipes in a tow-back operation reflects on the navy, which is simply doing its job enacting the Ministers policy. A policy, I remind readers, that was clearly articulated ahead of last years election. The navy becomes collateral damage because some journalists put their passion for finding fault with a government policy they ideologically disagree with ahead of a professional duty to report facts (in this case visible burns to asylum-seekers hands) while remaining sceptical about accusations padded around those same facts. Despite my disagreement with this governments (as well as the previous governments) decision to use offshore processing, the reality is the majority of Australians want a tough border protection policy. Voters lined up in their droves to vote for a change of government last year. The Abbott opposition went to the last election with a border protection policy which was unashamedly harsh: towbacks, plans for a military operation, a willingness to talk tough and act on that rhetoric if circumstances dictated that doing so might help to stop the boats. No one should be surprised by what has followed; it was a whatever-it-takes pledge. I happen to regard the upsurge in arrivals that occurred under Labor as not quite the threat to our national security that so many think it was. Even during the extraordinary rise in numbers, our navy intercepted virtually every single boat before it reached Australian soil. Ultimately support or opposition towards this policy comes down to whether you ascribe to a philosophy that ends justify the means: in this case the end is stopping boat arrivals, the means is the very policy the Coalition has adopted, which appears to be doing just that. I do not, because of the precedent it sets for secrecy, the bypassing of domestic laws it requires and the sledgehammer it takes to a problem which could be addressed (albeit not as swiftly) with a rewrite of antiquated international laws. But most voters entirely disagree with me, and in a democracy that means they get their way on this one. Opponents should continue to fight the rhetorical fight, by all means. But they shouldnt buy in to every unsubstantiated accusation that surfaces. Peter van Onselen is a professor at the University of Western
Posted on: Fri, 24 Jan 2014 14:03:29 +0000
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