Volume 2, Issue 5 (Originally Published 20 August 2012)
The Expert Panel on Asylum Seekers led by former Defence Force Chief Angus Houston delivered its report on Monday 13 August, recommending ‘circuit-breaker’ proposals for asylum seeker policy and causing a legislative rush to welcome in the new parliamentary season.
The focus of the recommendations and the ‘single most important priority’ identified by the Report is a rebalancing of policy settings to ensure that no person arriving by a boat is advantaged over another who pursues a ‘regular migration pathway’. The proverbial stick used to achieve the rebalance, at least in the short-term, is offshore detention for indeterminate periods of time.
The Government was very quick to amend the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2012, a bill intended to circumvent the High Court’s finding against the Malaysian Solution in the Plaintiff M70 case, and place it once more before Parliament. It passed the House of Representatives on Wednesday, and the Senate late on Thursday night.
The 2011 Plaintiff M70 case held that s 198A(3)(a) of the Migration Act set out specific kinds of obligations and protections that must have been met in fact, before the Minister could declare them to be have been met. Unsurprisingly, the new bill effects a full repeal of s 198A, replacing it with a set of rather comprehensive provisions, ss 198AA-198AH, which provide a much greater latitude in declaring a country, by a disallowable legislative instrument, to be a “regional processing country”.
The reasoning in Plaintiff M70 turned partially on the legislative intent behind s 198A – to ensure that removal processes conformed with international obligations to refugees and asylum seekers. That is now repealed and replaced with provisions, the express purpose of which is, to legislate that appropriate locations for offshore processing “need not be determined by reference to the international obligations or domestic law of that country.” Perhaps it is also apposite to note that being even a slightly left-wing critic in modern Australia is a depressingly fulltime task.
It is this replacement of s 198A that led Andrew Wilkie MP to intone in Parliament last Tuesday that “this is a humanitarian crisis, and it escapes me how anyone in this place could seek to implement any solution not underpinned by our lucky country’s moral framework and our obligations, both written and implied, as one of the original signatories of the United Nations Refugee Convention.”
Julian Burnside QC was likewise unimpressed, reflecting that “underneath all of this, the most profoundly depressing aspect ... is that the Government is so enthusiastic about the idea that we really must prevent people from coming here and asking for our help.” For Burnside, the deterrent policy and the rush to implement it demonstrates not so much a concern for lives lost at sea, but a disregard for the conditions those people seek to escape.
Where there might be the slightest glimmer of hope is in the Panel’s recommendation that the way forward is not merely through isolated bilateral agreements, but through ‘regional capacity building’, involving increased, multilateral engagement with regional governments and NGOs, and increased funding for the UNHCR.
If we have to accept that onshore processing will never be and that ‘people smuggling’ is the central focus (now written into law) of our asylum seeker policies, then perhaps the most ‘circuit-breaking’ claim in the Report will be its most obvious:
“National policy settings alone cannot resolve the challenges that currently confront Australian policymaking, and the Australian community generally, in relation to asylum seekers using dangerous irregular maritime means to claim protection.”
Everybody should read that line. People should talk about it in pubs and clubs and over romantic dinners and children should read it before dessert and again before bedtime on Sundays and anybody who has ever yelled “Stop the Boats!” or “We will decide...” should have it tattooed across their knuckles.