by Sarah Joseph
The issue of asylum seekers arriving by boat to Australia has been massively politicised for over ten years. The arguments in this debate are well set. On one side is the rhetoric of hoards of queue-jumping illegal immigrants breaching our border security. On the other is the view that these are people to whom we owe international obligations, who are desperate and need our help, which we are more than capable of giving. It won’t surprise anyone that I am in the latter camp.
However, in the last year, another argument has come to dominate the debate. That is that we must stop these leaky unsafe boats to save the lives of those who would otherwise get on them. Such an argument has of course been prompted by the horrific scenes of the Christmas Island accident of early December 2010, and the more recent sinkings off the Java coast, the second of which led to the drowning of 150-200 people.
I am somewhat sceptical that the “saving lives” argument is the main motivator of many arguing to send asylum seekers offshore. I have little doubt that the traditional concerns regarding border protection, queue-jumping, and so on, lurk close below the surface. If “saving lives” was the main factor for government policy, then policies should be adopted which encourage the use of safer refugee boats, or to help refugees get here in another way (like increasing the annual intake of refugees from our region, which is present ALP policy but only in conjunction with the Malaysia solution).
Nevertheless, the “saving lives” argument must not be ignored. Indeed, it poses a significant challenge to those, such as myself, who favour the compassionate approach. One must confront the question of whether that “compassion”, even though it has been only begrudgingly pursued by the Gillard government, is luring people to their deaths.
Before addressing this thorny issue, I will digress and address some other salient issues.
Good refugees and bad refugees
Are those who arrive by boat “queue-jumpers”? Such statements assume there is a functioning queue for refugees, which clearly does not exist. Ironically, Australians seemed to recoil at their exposure to one manifestation of the queue, the mass of asylum seekers in Malaysia, in their apparent distaste for the Malaysia Solution.
Certainly, there are many refugees (and internally displaced persons) who have abided by “the rules”, and, having been assessed as genuine, are patiently (or probably impatiently) awaiting resettlement while living in limbo in a refugee camp. Such waits can be interminably long. Perhaps it is unfair that the boat arrivals, or at least the vast majority of them who are assessed to be refugees, take the place of those in refugee camps. Often it is said that the latter are more desperate and therefore more in need of assistance than the former.
In response, I note that Australia is one of the few refugee-receiving States which imposes a strict annual quota that includes both onshore and offshore applicants within it. That is, each successful onshore claim (whether the person arrived by boat or plane) displaces an offshore claimant. Along with the cruel policy of mandatory detention, the system that is adopted in this country is not inevitable. Secondly, it is a fool’s game to argue that priority regarding asylum should be given to “the most vulnerable”. How does one assess neediness and vulnerability? Should Australia only take child refugees? Or those who are the most psychologically vulnerable? Or those who are the poorest? A refugee is after all a refugee.
And the bare fact is that the vast majority of boat people are refugees. It is no wonder when one of the main source countries is Afghanistan, which generates charming anecdotes like this one from Wired Magazine about how Taliban ringtones are being downloaded by many to avoid being killed. Over 90% of those arriving by boat are found to be refugees, when they have access to proper appeal processes and the application of the standards in our Migration Act. Such appeals were denied to those who were detained in Nauru and PNG during the days of the Howard government’s Pacific Solution, so the number was lower but still healthy at around 70%. In order to deny that these people are refugees, one effectively has to doubt Australian laws and legal processes. An alternative and more disturbing scenario is that the Pacific Solution processes were inadequate, and some of the 30% were effectively refouled, meaning that they were genuine refugees returned to their place of persecution. Indeed, we know that some of those pressured to return to their homeland from Nauru, including those who had been on the Tampa, were killed upon their return. While below I dispute Australia’s responsibility for the deaths on sinking boats, the refoulement of a refugee is clearly within Australia’s responsibility.
How do we “stop the boats”?
Both major parties now support sending boat arrivals offshore, whether for processing (in Nauru or Manus Island) or not for processing (in Malaysia). I wish to assess their respective policies regarding “stopping the boats” in terms of their likely success in achieving that aim. Therefore, I will not be examining the humanitarian impacts of the policies.
The coalition points to the “success” of its Pacific Solution in stopping the boats and is demanding its reintroduction. Certainly, many fewer boats arrived while that policy was in place. While it is possibly true that “push” factors, those that create refugee outflows, have increased in recent years (eg the brutal end to the Sri Lankan civil war, increased instability in Afghanistan and persecution in Iran), it is difficult to deny the existence of pull factors. After all, simply consider the marked increase in boats to Australia since the Malaysia Solution was scuppered by the High Court.
However, I find it difficult to understand why offshore processing would actually stop the boats. Certainly, the head of the Immigration Department, Andrew Metcalfe, is sceptical of the utility of resurrecting Nauru. It does seem like Nauru would simply be a more remote and much more expensive version of processing on Christmas Island, which is not deterring the boats.
Of course, appellate processes may again be denied to anybody processed on Nauru, though that result is not certain given the likelihood of a High Court challenge. Even if appeals are denied, it is now open knowledge that 70% of those detained on Nauru made it to either Australia or New Zealand; I suspect many stuck in limbo in Indonesia would take those odds.
The Pacific Solution also included Temporary Protection Visas and the possibility of boat tow-backs. Yet TPVs did not deter people for the two years before the Nauru facility was opened, and may have encouraged more boats to come given that family reunification was no longer available through orthodox channels. And boat tow-backs are dangerous, and are not supported by those who have to actually do it, the Australian Navy, and occurred rarely under the Howard government before being abandoned altogether (on these arguments, see this blog from Jack the Insider). All of this points, in my view, to the Pacific Solution likely being a one trick pony.
All in all I think that the Malaysia Solution would have a greater deterrent effect, Primarily because the boat arrivals end up “at the back of the queue” in Malaysia, just as Gillard stated, quite spitefully in my view, when the policy was first announced. Who wants to be amongst those 800 people who undertake a dangerous journey only to end up in the situation in which they started, in a country which does not recognise their rights and indeed may abuse them quite badly? The brazen cruelty in the policy (notwithstanding its good point, the acceptance of 4000 asylum seekers from Malaysia) is the very reason that it could “work”.
On the other hand, people-smugglers are clever. They would seek to adjust their business model to get around the Malaysia restriction. Parents or spouses may be willing to be amongst the first 800, thus exhausting the Malaysia solution unless it should be renewed, if they are guaranteed that their loved ones would be amongst the first to benefit from the Malaysia logjam being removed. In any case, it seems unlikely that it would take long for the quota of 800 to be exhausted.
So, neither of the major party’s policies may in fact do much to stop the boats.
The right to life
The strongest argument, in my view, in favour of stopping the boats is that deterrence will stop people from dying on unseaworthy and/or overloaded vessels. It has been stated, by Immigration Minister Chris Bowen amongst others, that the premier right is the right to life, so it is irresponsible for Australia’s policies to “encourage” asylum seekers to jump on boats to come here.
The deaths by sinking are a tragedy. And the opportunistic behaviour of people-smugglers in crowding hundreds onto rickety boats meant for far fewer people is criminal. But no one is forcing asylum seekers onto those boats. While Robert Manne may ponder that the risks are unacceptable, they are not his risks to accept, nor are they those of the Australian government. There is such a thing as human agency, and it is asylum seekers themselves who are exercising it to get on those boats. Indeed, despite the horrific tragedy off Java a few weeks ago, some of the survivors have vowed to try again and get on another boat.
They are getting on boats that they know might sink because they are desperate. They cannot return home because they are refugees, and they have no future in Indonesia. They are making the considered decision to risk their enjoyment of the right to life in order to seek a life. It is a choice that many of us, safe in our secure lives, well might choose if we were presented with the same awful options.
Of course, governments sometimes adopt policies to stop voluntary risk-taking. Many of these policies are disparaged by the libertarian right as nanny state measures. In any case, those risks often jeopardise others (e.g. as in the case of speeding or drunk driving) or are the result of addiction. We don’t normally adopt policies which stop non-citizens from doing dangerous things overseas. It is an imperfect analogy but our government is generally supportive of the Arab Spring: it isn’t for example imploring the Syrian protesters to stay home because otherwise they might get shot. This again highlights that “saving lives” is not the main motivator, compared to other well-worn memes such as border protection.
Certainly, if Australia actually “stops the boats”, asylum seekers won’t be able to risk their lives and die on their way here. But the current proposed policies would not deter desperate people from doing something else desperate to seek a life somewhere else. Alternatively, they may join the deadly fate of many of their fellow countrymen who remain at home. The people smugglers would likely adjust to ply their trade towards different countries so their grim business, taking advantage of the desperation of others, would continue.
It would be preferable if refugees did not jump on dangerous boats run by (largely) opportunistic people-smugglers to come here. It would be far preferable if refugees could be processed and resettled in Australia and around the world in a timely fashion from functioning processing centres. But that world does not exist. The “business model” of people-smugglers will not be “smashed” so long as there remains such an egregious global “market failure” in dealing with refugees.
“Stopping the boats”, at least in the manners suggested by the major parties, would constitute a local political fix, which would make our politicians (and many Australians) feel better, but it is hardly a helpful response to a global humanitarian crisis. That crisis, in the absence of a sudden decrease in push factors, demands global action, or, at the least, proper regional action rather than piecemeal policies like Malaysia, Nauru, and Manus Island.
I do not pretend that such a solution is easily achievable. But the removal of some of the disproportionate political heat in our local debate would render Australia more able to play a leading role in seeking such a solution. Consider the fact that our regional developing neighbours have many tens of thousands of asylum seekers. Developing frontline states like Jordan, Pakistan or Kenya, are home to millions of unsettled asylum seekers and refugees. Fellow developed countries in Europe and North America receive many thousands more unauthorised arrivals of asylum seekers and also illegal immigrants, by boat and also across their land borders. Those countries must look askance at the self-centred and histrionic quality of our debate and I doubt they respect us for it.
Castan Centre for Human Rights Law 
26 responses to “Sinking boats: a reason to reconsider compassion?”
[…] at the outset the mandate of the panel was to come up with a plan of deterrence. The issue of sinking boats and lost lives has been addressed previously on this blog, so it will not be addressed […]
Sarah
The last paragraph is particularly good!
Thanks
Sarah….I forgot to say that this was an excellent article. Cheers
Sarah
You say about Nauru “Of course, appellate processes may again be denied to anybody processed on Nauru, though that result is not certain given the likelihood of a High Court challenge. ”
That HC challenge is done and dusted and the HC said that the Nauru processing which denied appeals was and is invalid. See this link below. The date ofthe decision was !! Nov 2010.
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 (11 November 2010)
The M61 case made no decision re Nauru (see eg para 34). It was about appellate processes for people in excised zone (Christmas Island) not totally offshore. Of course Nauru coukd be illegal but we don’t know yet. Suspect it’s illegal re minors at the least.
I was hugely gratified to read this piece. Finally, someone said it. Thank you.
Thanks!
Never has anyone explained to me how Howard could excise portions of our territories from the so called “immigration zone” but not make laws that allow us to process refugees better if they thought that there was otherwise a problem.
I agree with the thrust of the article. Perhaps we need to take larger numbers starting with those best placed to qualify as genuine refugees by simply processing them at some place or places proximate to likely embarkation points, with a view to obviating the need to take the boat journey. There will at least be some kind of queue, though in so doing I acknowledge the risk that those we’d inevitably deny or delay taking may embark in boats anyway. Mine is not a prefect solution perhaps but more humane and more capable perhaps of justifying the view that these dangerous boat trips are made by us to be as unnecessary as we reasonably can. I know they will at least be reduced to some extent and who knows whether we might not be able to get to a point where so few customers exist that it isn’t worthwhile for most of the smugglers to keep operating.
Thanks. I’m assuming first paragraph question is rhetorical. (in short: coz better processing of refugees wasn’t outcome sought – “stopping the boats” was)
Thanks for replying. Of course it was just the political reason, vile as that seems to me. Yet I feel a little crestfallen. Perhaps I had hoped there were legal impediments stopping us from acting better than we have. I still find it hard to believe we’re so scared of a few rickety old boats carrying refugees to our shores as to stoop to brutality as a “deterrent”.
[…] This piece from the Castan Centre unpacks the complexities with clarity. The author addresses the notion of saving lives by deterring asylum seekers from embarking in the first place. Perhaps, if our objective really is to save lives, we would supply safer boats? Or is the saving of life a cover for deeper concerns about border protection and just stopping the boats? […]
[…] This article by Monash University law professor Sarah Joseph was written in January 2012 in the wake of the Christmas Island asylum seeker boat sinking there. The author doesn’t shy away from the moral and practical dilemmas of asylum seeker policy and (like me) entertains the possibility that the Malaysia Solution might be the best of a bad lot of temporary solutions, at least from the standpoint of deterring voyages that too often result in deaths. […]
Very well said, Sarah Joseph.
The part I can’t fathom is that if people are prepared to risk the considerable likelihood of drowning, what further disincentive to embarking will be created by offshore processing?
I think none at all.
[…] – that tough off-shore processing is required to “save lives” – by Sarah Joseph. The follies of “ending people smugglers’ business model” via offshore processing […]
I work in the public-private housing sector for the intellectually challenged in crisis care homes: the ones the Salvos et al fall back on as a last resort instead of hospital beds or the street
I think you’ll find a lot of Australian-born people aren’t happy with the woolly haired intelligentia giving preferential treatment to the illegal economic refugees.
Two words for you: False dilemma
Two more words: petitio principii
Ignorant populism is the stock in trade of the tabloid press. It is, to paraphrase an old formula, ‘the socialism of fools’. People who know they have no power to act or determine policy, take comfort in venting against sections of the vulnerable approved as soft targets by the elite.
You might wonder how, if locally-born people with disabilities or other socially marginalised here are so worthy in the eyes of the elite, why they are so frequently homeless, and why we hear about them as grievable only when it’s a question of beating up on someone else. Victim cherrypicking is unseemly and merely reinforces the willingness of the tabloid media to repeat it.
I might also add that the persistent claim that those using irregular maritime passage to enable asylum application are ‘taking places’ from more ‘deserving’ refugees is also utterly without merit.
Firstly, and most obviously, the number chosen by the Australian government for refugees is a matter of political positioning rather than related in any meaningful way to Australia’s capacity to provide dignity and safety to vulnerable people. Currently the number is a mere 13,500. Doubtless, Australia could easily absorb 100,000 such refugees each year if it were so minded — and even more if it scaled back skilled migration.
What is also interesting is that those who apply for refugee status after coming in on some other visa are never accused of ‘taking places’ from refugees in camps located in places where the trolls making such claims imagine we will never reeceive applicants.
What the dichotomy between ‘genuine’ or ‘deserving’ refugees and ‘cashed up asylum shoppers’ or ‘queue jumpers’ underscores is the hatred borne to foreigners and the disingenuousness of concern expressed over deaths at sea or ‘exploitation’ by ‘smugglers’. It’s laughable that the same people try to run both arguments. It reminds me of that comment by Groucho Marx in Horse Feathers. In addition to the famous ‘whatever you say, I’m against it’ Grouch said:
You don’t like my principles? I have others
Adducing concern over deaths at sea, over ‘exploitation’ and ‘taking places from genuine/more deserving refugees’ is an attempt to wedge those of us who care, and provide space for bigots to self-delude or do cognitive dissonance. At the very least we ought to deny such posturers scope to try having both sets of arguments. Either they think refugees are ill-deserving and an existential threat to us and our welfare system, in which case them drwongin is at most, not something that should trouble us, or we should be troubled by deaths because they deserve our protection, in which case punishing them is not the way to go. Give them a version of Morton’s Fork.
I don’t disagree. However many people of genuine good will are deeply troubled by the deaths. It has swayed for example much of the ALP left, who were otherwise fairly solid on onshore processing. Hence my attempt to address the argument.
There are of course arguments about increasing intake which I only briefly alluded to in first part. I probably should have emphasized that more but I was more interested in addressing the “moral responsibility for deaths at sea” argument.
I’m deeply troubled by the deaths. Yet I don’t say that these deaths are more troubling than those that occur out of the glare of ‘black swan’ events. ‘Banal’ and unreported deaths, or suffering are not less compelling, or less certain or less numerous. That’s why there are ‘boats’.
You want to avoid deaths on boats? To will the end is to will the means. Prevent deaths and misery amongst people contemplating taking the risk of getting onto boats. All else is at best, vacuous handwringing however genuine the sorrow. What Malaysia hopes to achieve is to hide deaths and suffering and pander to xenophobic angst. People who feel genuine sorrow over deaths but let the government run this line are dupes. I see very few dupes though. I see mostly apologists and special pleaders.
Let us be clear. The government is not responsible for deaths at sea, except to the extent that it has not done enough to give vulnerable people better options. Nobody from the right is criticising the regime on those grounds however. It’s genuinely tragic that people are displaced and Australia (along with other nations) is so insistent on keeping them out. That needs to be our starting point.
Your discussion above is one of the better ones — though I cringed when you invoked the notion of a people smugglers’ business model without irony. There is no such thing. It’s scandalous that people here let Bowen and his ilk keep uttering this populistic furphy. As far as can be told, there is a series of adhoc arrangements to deal with the very real demand for human resettlement.
More broadly though, you are right. There needs to be a comprehensive ste of policies to effect human resettlement on humanitarian grounds which would include those qualifying as refugees. All nations ratifying the Refugee Convention should be parties and all of the first world states should either contribute places or suitable financial support or some combination. Importantly, resettlement need not be entirely in the developed world, but in conjunction with programs such as MDG, could be extended to the developing world, after suitable negotiation with potential host communities. I’ve blogged about this at some length in the past. Australia should be a major centre working with IOM/UNHCR doing this important work.
Do ‘we’ want to ‘stop the boats’? If so, why?
The short answer is that those with a genuine regard for the well-being that part of humanity beyond Australian borders (i.e. not the voters now being pandered to by both the majors) simply want people everywhere to have the best life-chances possible. If in practice as opposed to theory, the best life chances possible entail getting onto irregular maritime craft ill-equipped under foreseeable circumstances to safely convey their human cargo to places hwere they can seek a relief from prospective or actual harm, then those of us who care ought to conditionally welcome people ‘getting onto boats’ because this is the least worse choice. There can be no doubt that those who do ‘get onto boats’ are better placed than our government to make the call and are, unlike our government, prepared to back their judgement with their own lives, and those of their children. Until the governments of the world make some other options better than ‘getting onto boats’ nobody professing concern has any business being critical of the choices these people make, nor even of those facilitating their passage.
Consider this: Every summer in Australia, people die or are injured in large numbers on Australian roads. This spikes especially during holiday weekends. There can be no doubt that Australian governments are encouraging local tourism. People get holiday leave loading. Does anyone in parliament demand that any jurisdiction ‘stop the cars’? Of course not. Do they demand that heavy vehicles get off the roads? No. Do they lock up people for the holidays in administrative detention for their own good? No. Is the sale of alcohol banned? No.
People accept that risk is a part of life. We encourage safe driving practices. Book ahead and you can get cheap flights. In the end though, we accept that people can make their own calls — and here we are not discussing flights from humanitarian disaster.
There are many other examples.
The ‘stop the boats’ rhetoric (along with ‘people smugglers’ business model’) has nothing at all to do with concern for the safety of vulnerable people. It’s simply cover for the xenophobic and existential-angst-driven desire of some for Australia to avoid its obligations to vulnerable people. The use of the term ‘smuggler’ underlines that point. Once upon a time such people were regarded as an ‘underground railroad’.
Those of us who care should demand that unsafe ad hoc transport be replaced with safe transport. We should demand expeditious processing at the major aggregation points. We should insist that those who, prima facie, have claims are housed in the community until their matters are determined and that they be given such visas as are needed to function semi-autonomously. We should not permit governments to try to prejudice the calculus with punitive measures, since, by definition, these could only succeed if they force asylum seekers to accept a fate worse than risking high-risk irregular travel.
Well said. Though I was trying to use Bowen’s terminology sarcastically. Cheers. Will check your blog when on a proper device to do so
Actually the ‘entire last part’ seems to address a different point, being whether we we can be certain that stopping the boats really is an effective way to save lives.
The middle part addresses the argument, more so than I initially realised (mainly because I found the bad faith point and the conclusion so annoying!). I apologise for not re-reading carefully enough.
But that said I think I read it at least partly how you thought it. I think the whole post might have worked much better if you had stopped just before the heading about ‘right to life’. The stuff about global humanitarian crisis, for example, is largely beside the point about whether or not we should or can stop the boats.
Ok. Thanks for the feedback. The last part was actually the main bit I wanted to write. Oh well.
The entire last part of the blog is addressing the argument, rather than the issue of bad faith. “Bad faith” or rather prominence of reasons beyond “saving lives” is only mentioned in that 5th last para (at the end) and the third one (the third one being in a way cancelled out by the fourth).
You say:
Those countries must look askance at the self-centred and histrionic quality of our debate and I doubt they respect us for it.
I say:
Judging by the policies of many of those countries they must envy us for our physical isolation from central Asia and northern Africa. I don’t see much to indicate that any country anywhere respects us less for the quality of our debate on immigration.
Also, your fifth from last paragraph is very cleverly stuck in there, careless readers might not realise that it is purely ironic just to test if people are paying attention. (surely it is??)
At the end of the day it is well and good to ‘prove’ (if that is what you think you have done) that many of those who argue that we must stop the boats in order to save lives are doing so in bad faith.
But it would be far more interesting (and worthwhile) to address the actual argument, not just wring your hands.