Ben’s Blog

Bernard Keane writes in Crikey that in the wake of the demolition of the Government’s “Maylasia Solution”,

We’re left with the policy problems of how many asylum seekers Australia should take, and how we can stop lives being placed at risk.

The point of the Malaysian deal — a deal seemingly more criticised than properly understood — was to try to address both at the same time. When all the cheering has stopped, we still need to address those issues. And doing nothing, warehousing people on Nauru before inevitably allowing them to come to Australia or only giving them Temporary Protection Visas, aren’t any more solutions than what’s left of the Malaysian deal now that the High Court has ripped it apart.

What I really don’t understand, though, about the latest High Court decision / policy train wreck for the Government, is why this was never tested before.

The High Court decision kind of appears to say that maybe transporting people to Nauru was different because – I paraphrase – Australia was still responsible for all the processing, and because the MOU between Australia and Nauru was really short and probably created formal obligations for both countries. Or because refugees had already been carted off to Nauru, so the relevant section of the Migration Act obviously can’t have meant that it’s not OK to cart refugees off to Nauru. (It’s paragraphs 128 and 169 if you’re really that nerdy).

But the broader logic of the decision seems to be that unless the international and domestic legal protections for the protection and welfare of refugees are in place in the country concerned – and it would seem that they were not present in Nauru in 2001 and, arguably, still are not today – Australia can’t send them away.

Father Frank Brennan, and other commentators are highlighting that the judgement at the very least raises serious questions about the legitimacy of processing refugee claims on Nauru or in Papua New Guinea. Don Rothwell, Professor of International Law at ANU is quoted all over the place, saying

At face value it would be difficult at the moment to see how either Papua New Guinea or Nauru would immediately meet [the High Court's] criteria.

Are you seriously telling me that we could have avoided Howard’s “Pacific Solution” entirely if someone had just mounted a challenge to the Government’s power to arbitrarily “declare” a country an appropriate place for warehousing people for their asylum claims to be processed??!!

Lawyers, lawyers, lawyers. What were you doing between 2001 and 2007?

There was a High Court challenge in 2001 to a Federal Court decision about the legality of the detention of people on board the Tampa. But the High Court basically refused to hear the challenge. I think the argument went something like, “Well, maybe these people were detained unlawfully and carted off against their will to Nauru. But they’re on Nauru now, so I guess we’ll never know.”

The High Court’s decision is probably good for asylum seekers. Though that depends on what else the Government is prepared to try in order to “stop the boats”.

It is also probably bad for the Government. Though that depends on what lengths the Opposition is prepared to go to in order to make political capital from a policy failure and ongoing human tragedy.

Oh…

Sorry. Definitely bad for the Government.

Under Australian law and policy, “indefinite detention, even for life in the worst conditions imaginable, is lawful.”

Julian Burnside QC, explores the legal history of Australia’s treatment of asylum seekers over at New Matilda.

Australian governments, both Liberal and Labor, have repeatedly shown that they are willing to ignore all the dictates of human decency when the object of their attention is a group of people who are politically unpopular.

The Centre for Policy Development has just released a new report on Australia’s policies on refugees and asylum seekers, entitled A New Approach: Breaking the Stalemate on Refugees & Asylum Seekers (pdf).

The report has been endorsed by 34 prominent Australians (their statement is here).

The report itself is very thorough and thoughtful, and a bonanza of facts and human stories – both welcome in a policy debate that largely ignores facts, and dismisses the human dimension of “border control” or mandatory detention.

They call for change in the public and political debate in Australia, renewed regional cooperation, better post-arrival support for asylum-seekers, an end to offshore processing and a move from mandatory to risk-based detention, with firm time limits (30 days for adults and 14 days for children) on how long someone can be detained unless they are deemed a security or health risk.

From a policy angle, everything they’ve written seems pretty sensible and would be substantially more humane and cost-effective than our current policies.

My big concern, though, is that the authors really present no plausible road-map for how we get there from here. What and who needs to change and how could that change come about for Australia to achieve a facts-based, non-hysterical, compassionate set of policies towards asylum-seekers and refugees? Apart from calling for more “national leadership”, what actually do the authors think can happen that will get us from where we are to where they want us to be?

In short, it seems like great policy, but not enough politics.

For example, the two recommendations for changing the public and political debate in Australia are to develop an independent commission to facilitate informed political and public debate and also an Independent Refugee Asylum and Humanitarian Assistance Authority to administer all aspects of policy. “What we need,” the report reads,

is a small independent and professional commission to promote informed debate about refugees.

Now, informed debates faciliated by independent and professional commissions are bound to be great. And I’m sure it would be wonderful if all public policy was formed after sober debates facilitated by independent and professional commissions.

But how is that independent and professional commission supposed to get traction in the public debate when every boat arrival is breathlessly reported on by media outlets? How is its supposedly informed debate meant to trump the political advantage which is there to be seized by whoever can most relentlessly stoke fear and portray refugees and asylum-seekers as threats to national security and sovereignty?

Because I think we have two rival views at work here. On the one hand we have a view (perfectly encapsulated in the slogan, “Stopping the boats”) which places “border protection” and “national sovereignty” higher than any other value. The appeal to national security and border protection, and its rhetoric exploits notions of boundaries and the prevention of bodily contamination or defilement (in this case, the defilement of the body politic by the unwanted, and potentially threatening, other).

Like an airborne virus or an invasive parasite attacking the body, asylum-seekers have transgressed certain physical and metaphorical boundaries and our response, or at least the response of many, is revulsion. I think the (at least partially) metaphorical nature of Australia’s borders is readily seen in the ease with which vast swathes of Australia can be legislatively removed from our “migration zone”.

And when asylum-seekers are viewed in this light, it is inevitable that they will also be subject to negative moral judgements. “Queue-jumpers.” “Illegals”. The kind of people who would throw their children overboard (except they didn’t).

It is also inevitable that our revulsion will be used to justify harsh responses (mandatory detention, removal of family reunion rights, towing boats back to sea, and so on).

The other view, that taken by the report’s authors, is that asylum-seekers are people. People who, because of certain traumas, have undertaken difficult and dangerous journeys to reach a place where they hope they might find safety and security. People who should be treated with, at a minimum, respect and, perhaps, even with a modicum of compassion and hospitality.

I’m completely with the report’s authors on this. And the facts, of course, are on their side. The tiny numbers of boat arrivals poses no meaningful threat to Australia’s “sovereignty”. Most people who arrive by boat are found to be refugees who are genuinely in need of a safe haven in Australia. Very few pose any kind of health or security threat to Australia, and a short period of detention for the purposes of security and health checks is entirely justifiable.

But my question is, how do we make it politically possible for Australia’s politicians and immigration system to treat asylum seekers differently?

How can we shape the national conversation and responses so that human rights and values trump abstractions of “border security” and “sending messages to people smugglers”?

How will we ensure that politicians flourish electorally by standing on principles of compassion and inclusion, rather than fear and exclusion?

How will we ensure that mercy wins out over sacrifice?

For a take on the politics of this, David Marr’s article is good.

Australia’s policy of mandatory detention (imprisonment for an indefinite period without judicial review) for asylum seekers arriving by boat is wrong on just about every level. It is immoral: degrading people’s dignity and harming their physical and mental health. It is expensive and inefficient. It is likely to breach Australia’s obligations to uphold human rights. And it is highly questionable whether it achieves any valid policy goal anyway.

But, none of that matters. Since the policy was first developed by the Labor Government in 1992, asylum seekers who arrive by boat (but not by plane) have been locked up sometimes for years on end. Often in remote locations with limited access to health care, legal advice, or educational and recreational opportunities for children and adults. And in the iterations of Australia’s “border protection” policies since the arrival of the MV Tampa in 2001, they have been carted to other countries (Papua New Guinea, Nauru, and – possibly soon – Malaysia) to be processed or warehoused.

The human cost doesn’t matter: stress-related physical health problems, self-harm, depression, suicide attempts and suicides. In fact, when the Australian Medical Association made the obvious point, that

the system of mandatory detention of asylum-seekers is inherently harmful to the physical and mental health of detainees. The harm is especially acute in the case of children.

their considered opinion was swiftly rejected as mere politicking.

The ridiculous financial waste doesn’t matter. Regarding the cost of keeping people in mandatory immigration detention, Bernard Keane’s back-of-the-envelope estimate of $113,000 per asylum seeker is probably not too wide of the mark.

The damage to Australia’s international reputation and the functioning of international human rights regimes doesn’t matter. The United Nations Refugee agency regularly asks Australia to live up to its international obligations. Navi Pillay, UN High Commissioner for Human Rights referred to our “hardline and unsustainable immigration detention policies” in her address(pdf) to the 17th session of the UN Human Rights Council last May.

Policy incoherence and ineffectiveness also doesn’t matter. After almost 20 years of mandatory detention, there is no evidence that it has deterred boat arrivals. There is no evidence that it has made processing people’s cases easier than it would otherwise have been (and given the remoteness of many of the detention centres, there’s no reason to see why it would be). There’s no evidence that it makes removing unsuccessful asylum applicants easier and none that it makes integrating successful applicants into the community easier. And, given everything we know about the impact of extended imprisonment on asylum seekers, it’s easy to intuit that mandatory detention probably makes successful integration harder. Which is a real problem, given that around 80% of people who arrive by boat are found to be refugees.

When even the Secretary of the Department is trying to feed politicians the questions they should be asking at a parliamentary inquiry (pdf), you know there is a serious deficiency in the rationale for the policy of mandatory detention.

Is immigration detention a deterrent? Does immigration detention facilitate case resolution? What range of facilities should be utilised? For how long is an immigrant arrival and status determination process in a detention centre environment required?

Why does none of this matter?

Because it’s what our Government and the Opposition want. The Minister for Immigration says that mandatory detention is “an essential component of border control.” The Shadow Minister agrees.

And because it’s what we want. According to this poll from October 2010, 53% of respondents would rather have children in detention centres, than to allow them to live in the community while their claims are being processed.

We want the costly and ineffective policy of mandatory detention for boat arrivals. We don’t mind that this policy fails to meet basic standards of human rights. We are happy to have a policy that has self-harm and suicide as its inevitable byproduct. And, when asked, we want to ensure that children are caught up in the policy drag-net too.

I chanced upon my physician as I was walking along the way. He proceeded to upbraid me and spoke exceedingly boldly,

“You really must give up fast food, you know. It’s terribly bad for your health and you’re storing up worse health problems for the future the longer you keep eating it.”

“My fine doctor,” I replied, in good humour, “I will most assuredly reduce my consumption of these foods of swiftness just as soon as all others have done so.”

“Sooner is better than later,” he remonstrated. “The food you eat today will contribute to health problems you may develop in coming months. And it could take years of abstinence and exercise to bring you back to good health.”

O’ercome with wrath, I thundered, “Do you mean to say, sir, that nothing I do will make the slightest bit of difference for years?”

And, cursing him for a fool and a blaggard and a supporter of godless political philosophies, I made my way to the nearest local outlet of a certain Scottish eatery.

I was extremely glad to be able to vote online, even from Nepal. ivote is brilliant and made me wonder why I had to spend 3 hours at the Australian Embassy voting for a hung parliament before the Federal Election last year.

While I normally love the festival atmosphere of elections, and take great delight in teasing the how-to-vote-card distributors by making as if to accept their offerings, only to snatch my hand away at the last minute, this election seems much more like a divorce, or an execution, or the regrettable putting down of a terminally ill animal, than any kind of political contest.

But the most annoying thing about the NSW Labor Party – I know, I know, how do you choose? – is that thanks to their utter repugnance to the voting public, the Liberal Party will be able to spend the next four years claiming whatever policy they like as part of their “mandate”. The most egregious example being Barry O’Farrell’s campaign against the federal move to implement a price on carbon emissions. (And this despite the fact that a majority of voters support the move when it’s clear that there will be compensation for low and middle income earners.)

But the truth of the matter is the Coalition will not be elected for any particular policy – I’m sure most people would be hard-pressed to name any specific policy they have put forward. They are not, in fact, being elected with a mandate to do any particular thing, whatever they might say.

They are being elected specifically and only to not be the NSW Labor Party.

It looks like AusAID may well be making the most of the golden opportunity it’s been handed if this story is anything to go by.

From the title, Australian aid school deters poverty and inspires dreams, to the very last word, Australia’s program to support school building and management in parts of Indonesia is presented in an overwhelmingly positive light.

From the personal:

Parhin, who is in year 8, says she is ‘‘approximately 14’’ but has no birth certificate.

Her parents married young, quickly divorced and left her in the care of her grandmother. The two live in a one-room shack next to a cow pen, relying on the generosity of neighbours and Parhin’s odd jobs to get by.

This is not atypical. Just 10 of the junior high school’s 104 students live with their parents, says Zainuddin.

Parhin’s teachers say she is smart enough to do anything, given the opportunity. ‘‘My ambition is to be a doctor,’’ she says.

What if she had left after primary school? ‘‘I would probably be married, more than once,’’ she said. ‘‘But [marrying so young] is just wrong.’’

To the political:

Jacqui DeLacy, head of AusAID in Indonesia, says the program, introduced by the Howard government in 2005, has ‘‘transformed the lives of hundreds of thousands of Indonesian children’’.

‘‘Education is the best way to break the cycle of poverty. It gives people the possibility of a productive life. It increases incomes, makes people healthier, reduces early marriage,’’ said Ms DeLacy. ‘‘It’s been a great investment in the stability and prosperity of Indonesia and generated enormous goodwill between our two countries.’’

How often do international aid stories make headlines in the Australian media? AusAID should probably crack open a bottle and raise a quick toast to Tony Abbott if they haven’t already. And all because the Coalition blockheadedly decided to announce “cuts” it will never make – being in Opposition and all. And to an aid program initially begun under the Howard Government.

If reports are to be believed, Julie Bishop, Shadow Foreign Affairs Spokesperson, is not happy about how this has made the Coalition in general, and herself in particular, appear. I think she’s right to be annoyed.

The Coalition certainly won’t have won any friends in the aid and development sector by proposing the cuts. They appear to be pandering to a base selfishness that exists in the some parts of the Australian community. And they’ve done it all in the cause of trying to stop the Government raising a levy to help Queenslanders who’ve been hit by flood and cyclone.

Not a good look.

Tony Abbott has today announced what he would propose to cut in order to fund disaster relief and reconstruction in Queensland without using a levy. I’ll let others comment on the merits or otherwise of his suggested domestic cuts – a lot of money taken out of schools, a lot of spending “deferred” on water buybacks in the Murray-Darling basin, money withheld from the automotive industry, and so on…

The whole list of what the Coalition would like to axe (and what it costs) is here (pdf).

I’ll only comment on the proposed cuts to Australia’s overseas aid. Tony Abbott admits that cutting Australian aid to Africa was “vigorously discussed” – which I take to mean that he pushed hard to gut the program – but was not added to their list of savings. There’s a bit more detail about how, exactly, the Bishop camp prevailed on this matter here.

So that’s the good news on aid. The bad news is that if he were Prime Minister (and, of course, he’s not but his plans give some indication of what the Coalition’s priorities would be if they did form Government) Abbott would defer – “subject to review” – a 4-year program to build schools and provide training and support for teaching and school management in Indonesia. The annual cost of the program is roughly $110 million. You can find out more about the program at Ausaid’s website.

So, the answer to yesterday’s question about what he would cut is, “The building of schools to provide basic education for poor Indonesian children, and the training of teachers, principals and school management groups to improve the quality of education for those children.”

He offers the expected “charity begins at home” nonsense to justify this. Now, I don’t think that an Opposition leader, an alternative Prime Minister, should be equating disaster relief and reconstruction with “charity”. Surely It’s a fundamental obligation of government. This is not to say that budget cuts might not be necessary to fund the disaster response – but it is not a charitable act by Government to help out its own citizens when disasters strike.

He’s on stronger grounds suggesting that overseas aid as currently construed is more a charitable gesture. There is no way a government can be required to give aid. But here, too, I think we have fundamental human obligations of solidarity and support to help fulfill the legitimate rights, needs and aspirations of all people wherever they happen to live.

Recognising this, Australian Governments of every persuasion have repeatedly committed to giving 0.7% of our national income in aid to support poverty reduction and development in poor countries. (Though the bipartisan commitment is to reach 0.5% of GNI by 2015). It is poor form for the Shadow Cabinet to be even considering delaying the achievement of this bipartisan goal.

And it is just not necessary to cut this program. Australia has a $1 trillion a year economy. Annual government expenditure is around $350 billion. The total reconstruction costs for Queensland from the flooding and cyclone will be upwards of $5 billion. Cutting this program will provide an annual saving (“saving” for the Australian budget, but “loss” for Indonesian children) of only $110 million.

The flood figure of roughly $5 billion of direct costs for the Australian Government comes from early estimates, and is no doubt now on the low side because of the further impact of Cyclone Yasi. However, it gives you an idea of the size of this cost relative to Government expenditure.

So whether the disaster relief and reconstruction is funded by a levy, by deferring the return to budget surpluses (shock! horror!) for a year or two more, or by other budget savings… Australia can afford to fund the cost of disaster response without cutting or deferring any part of its overseas aid program.

Tony Abbott said that this “deferral” of spending on education support for Indonesia is “subject to review”, so now would be a good time to get in touch with your Parliamentary representative and tell them to leave the aid budget alone.

And don’t let the Government off the hook either. Though the PM rejected calls to cut the aid budget in the wake of the flooding, with Cyclone Yasi, further flooding and now fires in WA, the Labor Party, too, will be looking for budget savings to fund the disaster response.

Update
Others weigh in on the proposed aid budget cuts: morally bankrupt, alarming, and (politically) needlessly damaging.