By Adam Fletcher

On Monday the Prime Minister’s Expert Panel on Asylum Seekers delivered its hotly‑anticipated report on ‘how best to prevent asylum seekers risking their lives by travelling to Australia by boat.’ Therefore, 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 here.

In just six weeks, and within the confines of its terms of reference, the panel has put together a detailed report which sets out a policy framework and seeks to place it in the context of the best available data. Some figures which stand out are the 964 known deaths at sea (of both asylum seekers and crew) since 2001 and the estimated 3.6 million refugees in the Asia-Pacific region alone. In addition, although more than twice as many asylum seekers have arrived in Australia by air as by sea in the past 14 years, the number of boat arrivals has recently begun to climb sharply. All of this data can be found in Chapter 1.

Not Coalition Policy

Although adoption of the panel’s recommendations has been portrayed as a complete capitulation to the Coalition by the ALP, the report does in fact depart significantly from the Coalition’s approach. The Malaysia Solution is not endorsed as is, but it is not be ‘discarded or neglected.’ The Report rejects the policy of turning back boats by force, at least for now, while Temporary Protection Visas (TPVs) are only mentioned under ‘Historical Approaches’ (see Attachment 4) and are not endorsed.

Increase in Humanitarian Intake

An excellent recommendation is to increase the Humanitarian Program, under which visas are allocated to refugees and their families, from an annual intake of 13,750 to 20,000 immediately and to 27,000 by 2017 (Chapter 3 and Recommendation 2). The panel also recommends that we accept far more refugees from our region (we currently accept relatively few), which would have the dual benefits of giving people more hope for an official resettlement solution and improving strained relations with Indonesia and Malaysia.

Family Reunion

On family reunion, the panel’s recommendations (Recommendations 11 and 12) initially sound like a return to the old TPV regime. However, digging deeper into the report reveals that the net result would in fact be more than 3,000 extra family reunion places. At present, the Special Humanitarian Program (SHP) under which families of accepted refugees are currently brought in provides only around 700 places for 20,000 applications annually, creating a large and increasing backlog. This is because, as a matter of policy, each new boat arrival reduces the number of available SHP places.

In practice, the ‘offsetting’ policy means that accepted refugees have little prospect of obtaining visas for their families under the SHP (DIAC currently estimates a delay of at least 10 years). In order to remedy this, the panel proposes to remove the right to apply for family reunion under the SHP for adult boat arrivals, and to create 4,000 new special humanitarian places in the Family Migration stream of the regular Migration Program to compensate. The panel explains that this will still operate as a disincentive for boat arrivals, principally due to the high costs associated with sponsoring family members under the Family Migration stream.

Nauru and Manus Island

After the long debate over push versus pull factors, the panel skewers both sides’ bald assertions by acknowledging what has become apparent – that determining what drives people to get on boats is ‘more a matter of judgment than science’ (Chapter 2). However, having acknowledged this, the panel goes on to hedge its bets by recommending the resumption of processing in Nauru and Manus Island (in PNG) (Recommendations 8 and 9). This is the part of the report that has received the most attention and has been the subject of rushed legislation in the Commonwealth Parliament this week.

When pressed on their reasons for recommending Nauru and PNG despite Department of Immigration assurances that they would no longer be effective as a deterrent (especially given that 70% of those previously detained on Nauru were eventually resettled; the majority in Australia), the panel simply said they were the most ‘implementable’ option. There are many poor policy options which are capable of immediate implementation, so this is hardly compelling reasoning.

 “No advantage” Policy

The panel recommends a strict ‘no advantage’ policy to ensure that those arriving by boat do not receive a visa any sooner than those who apply offshore. Those who have come to Australia after waiting in the big refugee camps such as Kakuma in Kenya are there for an average of 14 years before being granted resettlement visas. Other, smaller camps and those residing illegally in transit countries may have shorter wait times, but these are still in the order of several years and in equally awful conditions. Therefore, under the best case scenario, strict adherence to a ‘no advantage’ policy means asylum seekers who arrive by boat will be kept on Nauru for several years. Chances are they will end up traumatised and extremely ill like Mohammed Faisal, who suffered exactly that fate after being detained on Nauru between 2001 and 2005. His is not an isolated case – panel member Paris Aristotle said in the press conference launching the report that his organisation (which helps survivors of torture and trauma) is still helping those scarred by offshore detention several years after the centres were last closed. The panel acknowledges this possibility with a recommendation that those with ‘special needs’ or the ‘highly vulnerable’ should be transferred to Australia temporarily.

Julian Burnside points out that the present rate of boat arrivals would see tens of thousands of asylum seekers being sent to Nauru and Manus Island – dwarfing the local populations, which sounds extremely impractical. The panel, somewhat optimistically, estimates that 1,500 will be processed on these islands (at a cost of $1.2‑1.4 billion), and Paris Aristotle has said four or five years would be too long for individuals to be kept on Manus or Nauru. However, if the boats keep coming (and reports already suggest that the announcement of the resumption of offshore processing will not deter some currently in Indonesia) these figures will inevitably blow out.

A Regional Solution?

The panel seems to envisage the ‘no advantage’ policy becoming less punitive as regional processing mechanisms develop, hence improving waiting times for resettlement visas. The problem with this assumption is that the panel relies heavily on the Bali Process of regional Ministerial meetings, which has now been going on for a decade with little relevant progress other than ‘enhanced information sharing and the exploration of areas of policy convergence.’ The Regional Cooperation Framework which underpins the panel’s recommendations (especially the key Recommendation 7) is still very much at the ‘capacity building’ stage.

The lack of progress on a regional solution is at least partly due to a fundamental lack of congruence between Australia’s policy aims on asylum and those of our regional neighbours (we give the appearance of wanting to shift the burden rather than share it). The panel implicitly recognises this when it observes that the ‘highest levels of Australian leadership and diplomacy’ need to develop better bilateral relations with Indonesia and Malaysia before a ‘more productive and coordinated regional framework’ can be achieved (see Chapter 3).

What about the Refugee Convention?

In addition to all of this, the Refugees Convention provides that asylum seekers must not be penalised for their ‘illegal entry or presence’ in a country of asylum, which is the explicit rationale of many of the Panel’s recommendations. It is easy to say that the policy recommendations should be implemented consistently with Australia’s international obligations (see Recommendation 1), but it will be much harder to achieve this consistency in practice.

Other Recommendations

To finish on a more positive note, the panel makes some other interesting recommendations which have received very little attention. One is that the designation of future offshore processing locations not be at the whim of the Minister (Recommendation 7 – addressing an issue with the last offshore processing Bill identified in this blog in October last year). This recommendation appears to be the subject of Government amendments to the Bill tabled on Tuesday. Another is that the law in relation to boat crews – the ‘small fry’ of the people smuggling world – be amended to treat them more fairly and improve relations with Indonesia, which are crucial to regional cooperation on asylum seekers (Recommendation 4).  It is to be hoped that the government will introduce appropriate amendments in this respect soon.

Conclusion

Advocates of adherence to human rights and refugee law have every right to be upset by the effective resurrection of the Howard Government’s Pacific Solution. Certainly, it is important that events and conditions in Nauru and Manus Island be consistent with human rights protections and monitored independently (which is part of the panel’s recommendation).  Furthermore, it is important to focus on ensuring that the government does not cherry-pick the unsatisfactory parts of the report and neglect to implement its more positive recommendations.