Seven Pointers for Stopping the Boats Ethically

Is there any ethical discussion to be had about stopping the boats, or is it just a matter of whatever it takes? Professor of law at Australian Catholic University, Fr Frank Brennan offers his seven points for stopping the boats ethically in this article first published in Eureka Street.

There is no doubt that the 2008 reforms instituted by the Rudd Government contributed to a sharp increase in the arrival of boat people. The annual arrivals continued to spiral upwards — from 2856, to 6689, a brief drop to 4730, then up to 17,271, and then up again to 25,145. By the time Kevin Rudd had become prime minister for the second time in June 2013 the boat arrivals were running at 3300 per month (40,000 per annum).

There was intelligence available that the people smuggling networks were now so adept at plying their trade in Indonesia that the numbers could escalate even further. These increases were not related to increased global refugee flows nor to new refugee-producing situations in the region. There had been at least 900 deaths at sea since the 2008 reforms. Something had to be done — not just for crass political gain but for sound ethical reasons.

Having supported most of the 2008 reforms and having been a critic of the Malaysia Solution because of its unethical or unworkable treatment of unaccompanied minors, I had been trying since the Houston Panel reported in August 2012 to formulate a workable and ethical proposal for stopping, or at least, slowing the boats. The focus needed to be on Indonesia, the main transit country.

The day after Rudd was re-elected prime minister I spoke at a long-arranged National Asylum Summit. I proposed the need for a regional agreement involving at least Australia, Indonesia and Malaysia which, with UNHCR backing, could provide basic protection and processing for asylum seekers transiting Malaysia and Indonesia.

Asylum seekers headed for Australia could then be intercepted and screened to determine that none was in direct flight from persecution in Indonesia. They could then be flown back safely to Indonesia and placed at the end of a real queue.

I conceded that such an agreement would take many months, if not years, to negotiate and implement. Admittedly, it did not provide a short term solution to stopping the boats.

Provided the necessary screening was done, I would not rule out the suggestion put by former Foreign Minister Alexander Downer on Monday: 'Australia would fly back to Indonesia anyone who arrived here by boat without a visa. In exchange, Australia would take, one for one, UNHCR approved refugees from refugee camps in Indonesia.'

Rudd's pre-election agreements negotiated with PNG and Nauru and first announced on 19 July 2013 were aimed at stopping the boats. It was the equivalent of a 'shock and awe' measure, threatening dreadful outcomes for people, hopefully deterring them from even considering getting on a boat. During the election campaign, both major parties tried to convince the electors they would be able to design policies which stopped the boats.

During its last year in office, Labor had increased the humanitarian component of our migration program from 13,750 to 20,000 places — with 12,000 of those places being allocated to refugees offshore, 8000 being available for refugees onshore and the special humanitarian program. The Coalition initially supported the increase but reversed this commitment during the campaign. The Abbott Government says it will provide only 2750 places for onshore applicants.

During the election campaign, I set out six recommendations for the way forward, trying to give the 'shock and awe' response greater ethical coherence following upon some parliamentary scrutiny. These recommendations now need to be considered in the cold light of post-election day.

First, Tony Abbott should open discussions in Jakarta this week with an eye to a negotiated agreement with both Indonesia and Malaysia aimed at upstream improvement of processing and protection.

Second, the Abbott Government should return to its previous commitment to increase the humanitarian quota to 20,000.

Third, Scott Morrison should order an ethical reassessment of the plight of those who came by boat to Australia after the Rudd announcement of 19 July 2013 without notice of the new shock and awe policy, bearing in mind the admission by Minister Tony Burke on 22 August 2013: 'First week after the announcement, the figures remained very high, but let's not forget those figures include people who are already at sea.'

Fourth, Morrison should undertake to care for unaccompanied minors who arrive in Australia's territorial waters until they can be safely resettled or safely returned to their family or to the guardians in transit from whom they were separated.

Fifth, Morrison should institute safeguards, including a transparent complaints mechanism, in PNG and Nauru consistent with the safeguards recommended by the Houston Panel for both Pacific processing countries and for Malaysia under the Malaysia Solution.

Sixth, when Parliament convenes, Abbott should promptly introduce a bill detailing the measures aimed at stopping the boats, thereby putting beyond legal doubt the 'shock and awe measures' implemented on the eve of the election campaign without parliamentary scrutiny, and locking in the major political parties so that petty party point scoring might cease.

The debate on the bill will allow both sides of the Chamber to purge themselves of the hypocrisy that has accompanied Labor's unctuous condemnation of John Howard's Pacific Solution and the Coalition's unctuous condemnation of Julia Gillard's Malaysia Solution.

The bill would undoubtedly win the support of all major political parties.

I would now add a seventh condition. Last Tuesday, seven West Papuan asylum seekers reached Boigu Island in the Torres Strait. Without any determination of their refugee claims, they were removed to PNG on Thursday.

The Coalition's policy on asylum seekers published during the election campaign states, 'The Coalition will work with our regional partners to address the secondary movement of asylum seekers into our region as a transit point to illegally enter Australia through the establishment of a comprehensive Regional Deterrence Framework'.

These Papuans were not engaged in secondary movement. They were in direct flight from persecution. The Abbott Government should recommit to our obligation under the Refugees Convention to grant asylum to refugees who have entered Australia in direct flight from persecution.

About the author: Fr Frank Brennan SJ is professor of law at Australian Catholic University, and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.