‘Principles and Purpose – Stepping up to Refugee Protection in this Era of Displacement’ – The Michael Whincop Memorial Lecture 2018

L to R: Professor Don Anton, Professor Guy S. Goodwin-Gill, Ms Shelley Whincop and Associate Professor Therese Wilson

Guy S. Goodwin-Gill
Professor, University of New South Wales & Kaldor Centre for International Refugee Law, Sydney
23 October 2018

Sovereignty is an issue. No one challenges the right of the State, or the right of every
community, to decide central issues of membership, within the limits of principle, any more
than its right to adopt the political, economic and social system of its choice.

However, sovereign States – sovereign, independent and equal sovereign States, in the
language of the United Nations Charter – themselves exist within a community of other
sovereign States. The conundrum lies in the fact that between asserting sovereign rights and
them carrying them through commonly demands a measure of cooperation with others – not
necessarily compromise, in the banal pejorative sense of short-term political thinking, but in
simply recognizing that other sovereign States have interests.

For example, it is all well and good to witter on about the duty of every State to readmit its
citizens, and to imagine that’s an end to the matter. But there’s a real world out there, where
life is not so simple – where one State’s irregular migrants are another State’s natural
resource, even a critical income stream when abroad; or where return is unacceptable from
the perspectives of risk and harm; or where return is impractical or impossible, as often with
stateless persons.

Sovereignty, in its extreme unilateralist form, is commonly an obstacle to achieving the
humanitarian and other objectives for which States have established the UN and its various
agencies. Hence, the difficulties in the way of preventing genocide or ethnic cleansing, most
recently in Myanmar, or bringing to account those responsible for these and other crimes
under international law.

Background: The League of Nations
When, then, can refugees fit in this world of sovereigns? In 1921, no one in Europe knew
what to do with refugees. The very idea seemed anomalous in that State-centric world just
beginning to engage in international cooperation across multiple fronts. Everyone, it was
assumed, should be a national of one State or other, and every State should be responsible for
the diplomatic protection of its citizens abroad. Remove the protection element, and
imbalance resulted. The displaced and their displacement challenged basic premises about the
relations between States, and it was particularly their being without protection, rather than the
causes of flight, that engaged attention (even though the politics were never far away,
especially where the Soviet Union, a rogue regime, was concerned).

Nevertheless, initiatives were taken. The first High Commissioner for Refugees, Fridtjof
Nansen, recognized right away that refugees needed and wanted to work, and that keeping
them off the public purse was critically important if government and public support were to
be maintained.
States also recognized that protection had to be provided – not only to replace the diplomatic
protection lost through rupture with the country of origin, but also protection against return to
the risk of harm – what today we call non-refoulement – and, as near as possible, equal
treatment with nationals so as to facilitate integration.

While the 1920s saw some progress in dealing with successive refugee groups, the following
decade stood still, and even went into reverse as hundreds of thousands fled the end of the
civil war in Spain, the rise of fascism and the active persecution under nazism.

At the risk of over-simplification, those moments of stumbling ineffectiveness were due not
only to inherent weaknesses in international organisation, but also to States’ failure to look
question their preliminary assumptions.

In 1921, the Red Cross had turned to the League, not just because the resources for
humanitarian assistance were dwindling, but also because major political issues were
engaged, calling for a political response which only the League could provide. Nansen, too,
saw the limits of policies confined to aid, and urged long-term strategic thinking instead of
the ad hoc approach preferred by States for what they assumed were just temporary
problems.

Likewise, in December 1935, one of Nansen’s successors, James McDonald, resigned as
High Commissioner for Refugees coming from Germany (Jewish and Other), precisely
because the deep political question underlying the refugee exodus – the causes – was not
being addressed.

Moving on: the United Nations
The experience of the League and the experiences of World War Two led to one brief, bright
moment of unanimity in the United Nations, before the refugee question was overtaken by
Cold War politics.In February 1946, States agreed that the refugee problem was indeed an
‘international’ one, and that no State should have to carry responsibility on its own; that any
State admitting refugees on behalf of the international community should be entitled to call
on others for assistance, whether moral or political, material or financial. The problem then,
as now, would lie in translating the call among sovereigns into predictable outcome, but the
principles of solidarity and responsibility-sharing underpin the regime to this day.

One distorting consequence of the east-west divide was that weight and meaning were
attributed to the refugee. In fear of ‘persecution’, the victim of the ‘other’, our existential
enemy, had voted with their feet, had voted by boat; and none was turned away.

Today, however, the refugee no longer has political value, except to those who would
capitalise on the threat which those in flight are said to be; and humanitarianism is just not
enough.

In fact, there is nothing in the world of people moving between States that cannot be
managed effectively, humanely, in accordance with international law, and consistently with
those principles of protection which have consolidated within our international institutions
and, in many if not all cases, within our national conceptions of rights and due process.

It is that practice over decades that enables us, as advocates and international lawyers, to
speak with confidence of the right to seek asylum (though the road may be fraught); of the
right not to be refouled; of the right to claim protection and to be heard; of the right not to be
penalised for illegal entry or presence; of the right to be protected against torture or inhuman
and degrading treatment; of the right of the child in flight to decisions that take due and
proper account of his or her best interests, that do not rob the child of their childhood, or
damage their physical or mental health, or otherwise deny them, in the short time available,
of the opportunity to prepare for a meaningful life in community.

But (and there’s always a ‘but’…) as refugees have continued to move between States, as the
movements themselves mixed in with migratory streams, and as ‘secondary’ movements
from places of first if insecure refugee added to the momentum, States lost their grip on
principle and purpose, giving in to the deficiencies in organisation that had been anticipated
from the start, but never adequately addressed – the gaps in the system of obligations, the
missing links in the scheme for international peace and security.

First among the challenges are the causes, the drivers of displacement – persecution and
conflict, compounded all too often by underdevelopment and the impact of climate change
and disasters.

Second is the quest for solutions, in all their complex linkage to causes themselves.

Third is the task of fitting policy and practice on issues seeming to bear on national identity
within the framework of international law and obligation.

As we can see all too well, the international community – the United Nations and its Member
States – is just not very good at preventing conflict. Could the Sri Lankan civil war have been
avoided, or that in Somalia, or South Sudan, or Syria? And once under way, could more have
been done to mediate a peaceful solution?

And what of persecution, of government-sponsored ethnic cleansing in Myanmar?
Or of nonState violence in Central America? Or the complex, intersecting drivers of displacement in Venezuela?

Similarly, governments have not been particularly good at staying focused on the search for
solutions – on promoting voluntary repatriation, on supporting local integration and the host
communities that take in refugees, on ensuring resettlement for those in need.

Instead, many States seem only too ready simply to hope for the best, to ignore the human
dimension, and the hunger for a future for family and self that is no less a part of the refugee
experience, than it is of the human condition.

Refugees are not and never have been just the passive recipients of largesse from the Global
North. Yes, they are frequently required to live in camps and settlements with limited
freedom of movement and few opportunities for employment, education or advancement. But
refugees remain agents in their own destiny and it is hardly surprising that so many have felt
compelled to move on from first refuge, because of continuing insecurity and absent the
prospect of return or any meaningful life in the medium term.

This is a much more mobile world than once it was, it is replete with information and
opportunity. And where there are desperate people, so often there are others ready to ‘help’,
ready to capitalise.

Current and recent crises of displacement and secondary movement were always predictable,
in their occurrence if not their numbers, but State thinking seems not to have moved on.

Despite 70 years of the UN, over 55 years of UNHCR, and nearly 100 years of international
refugee law, organisation and practice, many of the old preconceptions are as deeply
entrenched as ever. Among them is the assumption that refugee situations are temporary and
exceptional; that much displacement is more voluntary than forced; and that sovereignty in
control over borders is sufficient to ensure unilateral solutions. Australia’s experience is a
lesson to the contrary…

The movement of people has always caused apprehension, but instead of investing in and
strengthening host communities, many governments have raised or sought to raise barriers to
movement, but few have stopped to think seriously about what it is that leads people to take
risks for themselves and their families that you and I would hardly dare.

The international legal regime
The 1951 Convention relating to the Status of Refugees, now ratified by some 148 States, is
often criticised, but little understood. It was never intended to prevent the necessity for flight,
but nor could it; neither did it anticipate all the challenges to State competences in migration
matters that would come to dominate the 21st Century agenda – only in 2016, did States come
to see migration, like refugees, as an international issue, the better management of which is beyond
the capacity of any single sovereign State.

What the 1951 Convention did, was to recognise the refugee as someone of international
concern, who needed special protection. That recognition drew on experience – the drafters
had been witness to persecution and the holocaust, although today we may need, for
empathy’s sake, to factor in a more contemporary understanding of the complex, multiple
reasons that compel flight…

The Convention nevertheless set out a body of rights, both to facilitate the integration of the
individual in the country of refuge, (for though it may not be permanent, the status of the
refugee is necessarily indefinite, not just temporary), and to ensure his or her security against
penalisation for illegal entry or presence, against expulsion, against return to persecution.
State interests, too, were accommodated, and the Convention excluded those undeserving of
protection, such as war criminals and threats to security.

At the same time, the UN General Assembly set up a subsidiary organ, the Office of the UN
High Commissioner for Refugees, with a universal responsibility to provide international
protection and to work with governments in seeking permanent solutions to the problem of
refugees.

That architecture has evolved into the present-day international refugee regime; but
organisationally and legally it was and is unfinished. There is a right to seek asylum, but no
obligation to grant it; there is an international obligation to cooperate in solving humanitarian
problems, but UNHCR cannot impose solutions; international law defines the refugee and
certain fundamental rights, but it leaves open certain critical issues: Which State is
responsible for deciding claims to protection? What principles, if any, govern the movement
of refugees and asylum seekers who have not yet found effective protection and a solution?
What practical responsibilities do States owe to other States receiving refugees, in terms of
financial or material support, or in accepting refugees for resettlement?

States had the chance to firm up their commitments in 1951, but chose not to do so, seeing
the gap between non-refoulement and asylum as much in their interest, as the dependence of
the international system on voluntary contributions.

In the absence of a fully functional refugee protection and solutions mechanism, and in a
context complicated by the frequently chaotic and ineffectual workings of a migration system
driven by unrealisable unilateralism, States frequently seek to maximise self-interest, in
particular, by displacing responsibility onto others.

That tendency has been helped along by local politics, itself influenced by the apparent
incompetence of government, on the one hand, to manage borders securely; and, on the other,
to respond with coherent policies and practices that produce principled solutions, nationally
and internationally.

Australia and many other States are now facing and will continue to face the challenges that
arise from the movement of people. We are witness to the bankruptcy of unilateralism, of
short-termism, of policies rooted not in evidence, but in attitude, of the wilful disconnect
among politicians and policy makers from the realities of globalisation, conflict, poverty and
climate change, of systemic incompetence, and of the failure to link principles to outcomes.

Lucy Mangan, reviewing in the Guardian last month, wrote of, ‘… the intransigence of
officialdom, blessed by its eternal ignorance of ground-level suffering and the arrogance that
enables it to dismiss the calls of experts.’ Was she writing of refugees? Or of climate change?
No, but of the flu that killed 50 million after the First World War. The disconnect was no
different, though, and getting an evidence base into the management of refugees and the
displaced remains an uphill struggle.

Australia
Australia was actively involved in negotiations leading to the 1951 Convention, and its
ratification in 1954 brought it into force. Like the other major immigration and resettlement
countries, the USA and Canada, Australia thought that the Convention would have little, if
any, actual impact on its sovereign competence to decide admission – after all, it was still far
away…

The Indo-China refugee crisis changed all that, with a slow trickle of asylum seekers arriving
by boat on Australia’s northern shores in the mid- to late 1970s. The government’s response
was prompt, positive, practical and simple, reflecting the ‘political’ need to reassure the
people of Australia that it was in control, that everyone who arrived was checked as to their
reasons for flight in accordance with international refugee law. As Claire Higgins has shown,
egregious policies such as interception, turn-backs, indefinite detention and the like were
rejected as ‘un-Australian’, while the policy and the practice also signalled a measure of
solidarity with parties in the western alliance and, more particularly, with countries of first
asylum in the near region.

All that would change, and morph over time into costly incoherence and inhumanity, driven
by xenophobia and a certain paranoia about arrivals from ‘above’, stoked by media keen to
profit, encouraged from within by the increasing recognition that there were no legal limits to
executive extremism, and no call for democratic accountability that could not be avoided by
secrecy clothed in the miasma of national security or yet another change in the law with
retroactive effect.

The Tampa incident in 2001 is often identified as the moment when it all really changed.
Focussing on a few aspects of recent Australian policy and practice will show how a
principled approach would have been no less effective in achieving certain policy goals,
particularly protection, and far less costly in dollars and reputational damage.

Changes are being discussed even now, not surprisingly, but despite the phenomenal cost in
ruined lives, there is little apparent readiness to recognize the harms done, whether to those
directly affected, to many of those required or contracted to implement policy, to relations
with countries in the region, and to Australia’s standing in the world.

Australia’s policy towards asylum seekers arriving by boat over the past ten years or so
comprises a mass of legislation, much of it with retroactive effect (itself a sure sign of failed
thinking and always suspect in a purportedly democratic system).

Since 2012, no one arriving by boat without a valid visa will be allowed to settle in Australia,
no matter their protection needs, family, or other connections. (In certain circumstances, and
if you plead strongly enough, you may be allowed to die in Australia, but that’s as close as
you’ll get to permanent settlement).

After September 2013, under Operation Sovereign Borders, those intercepted were
transported to so-called ‘regional processing centres’ in PNG (Manus Island) in the case of
single men, and in Nauru, in the case of women, children and families, although none has in
fact been transferred since 2014.

Notwithstanding the transfer and the involvement of other States, Australia remains legally
responsible under international law for the treatment of those transported, including health,
security and children’s rights, and for their future (though it often half-heartedly pretends that
it is not).

This legal responsibility derives from the incontrovertible fact that Australia has exercised
control and authority over those intercepted, including checks on identity, health and security,
and from the no less self-evident fact that no other State has formally assumed such
responsibility.

Australia periodically seeks to rely on the sovereignty of PNG, which is certainly party to the
process, and of Nauru, which is also party but whose independent as opposed to vassal status
is doubtful, given it’s 95 per cent dependence on cash hand-outs from Australia. Australia’s
continuing, if occasionally joint, responsibility is confirmed by its control and influence over
contracted services, including refugee status determination, health and welfare, and it remains
legally liable, as on the mainland, for ill-treatment and violations of, among others, the rights
of children under the Convention on the Rights of the Child.

Refugee processing centres
The so-called regional processing centres were never that – never places in which refugee
status would be determined promptly and fairly and solutions organised in the light of
personal needs, circumstances and family connections. The region was not consulted, the
assistance of other States w as not sought (until now…), and neither PNG nor Nauru had any
experience in refugee status determination or refugee settlement. The ‘Cambodia option’ was
always another costly illusion, while New Zealand (until now…) was consistently rebuffed
(although it was considered good enough to help out with the Tampa debacle in 2001).

In September 2016, President Barack Obama offered to take up to 1,250 of those confined to
PNG and Nauru, as was said at the time, ‘to relieve the suffering’ which already included
serious physical and mental pain, ill-treatment, rapes, beatings, family separation, inadequate
medical treatment, and the denial of medical assistance.

Detention
A particular feature of the present scheme of immigration management is mandatory
indefinite detention, which is prescribed by law for anyone who arrives without a valid visa,
whether by sea or air. In April 2018, there were 1,369 individuals in immigration detention
(349 boat arrivals), whose period of incarceration averaged 434 days; 34% had been detained
for over a year, and 204 for over two years. Gratuitous and arbitrary restrictions on visits by
family and concerned community activists, introduced last year, are apparently designed to
undermine yet further the dignity and self-respect of those detained.

As far as one can gather from the limited published accounts, the detention and processing
costs for boat arrivals for the period 2009-2014 increased from $118.4 million to $3.2 billion.
Off-shore detention (the phrase is not now used for those whose freedom of movement is
limited to Manus or Nauru) is estimated to cost $400,000 per person per year; on-shore
detention comes in at $239,000, community detention at $100,000 or less, and (monitored)
living in the community at $40,000. While there is evidence that lengthy indefinite detention
increases the likely need for mental health care by up to 50%, there is no evidence to suggest
that the cheaper options are any less effective in ensuring control and processing. While
security considerations may be relevant in a limited number of cases, the rationale for the
more extreme response must be found elsewhere – perhaps it’s part of seeming tough, or
maybe it’s just vindictive.

Indefinite detention is by no means unique to Australia. Sadly, it commonly reflects
frustration at not being able in practice to secure the removal of those not in need of
international protection to their country of origin; but this, more often than not, reflects
ineptitude and insufficient attention to relations with other States – the feeling once again that
unilateralism is what matters, and that there is no need, in migration matters, to deal on a
basis of equality and equity with other States whose citizens may be involved.

Indefinite detention, however, is essentially arbitrary, as that term is understood in
international law, and there is ample evidence (for example, Woomera from 1999-2003) that
it causes serious psychological harm often resulting in physical injury.

This certainly accounts in part for the fact that Australia has paid $70 million to settle 1905
claims of ill-treatment by those detained off-shore. It has paid tens of millions also for on-
shore claimants, and many more claims are in the pipeline. No minister or civil servant has
yet been surcharged for these entirely foreseeable costs to the public purse, to the people.

Transfers to the mainland
As we know, there have been now many transfers to Australia for medical reasons, thanks in
no small measure to the persistence of the medical profession, especially here in Brisbane.
But, until now…, practically every transfer has been resisted, necessitating costly and
avoidable court proceedings when bureaucrats sought to override expert medical opinion.
Yesterday, the Guardian reported that the government had spent nearly half a million dollars
in legal fees over three months, responding to court applications for urgent medical transfers.

But the situation of those transferred remains precarious and while they, and certain other
classes in need of protection may be allowed to live in the community, the general policy
appears to be, not to facilitate integration, but to perpetuate insecurity; to limit education and
qualification, and to pursue to the point of destitution, the social costs of which, once again,
will fall upon the community.

The rationale for such an approach beggars’ belief.

A principled approach
So what would a principled approach look like, and how would it lead to goals consistent not
only with Australia’s interests, but also with international obligations and international goals.
So far, border management has been all about Australia, and that is not enough today, when
international issues are concerned.

The stated aims of ‘Operation Sovereign Borders’ and its associated practices have included:
stopping the boats; breaking the smugglers’ business model; saving lives at sea; and deterring
onward movement in search of refuge.

Has it worked? We don’t really know, because accountability – narrative, fiscal or indicative
– has been avoided. A boat from Vietnam arrived in northern Queensland a few weeks ago,
the fate of those on board rapidly disappearing from the daily news. If one boat, then why not
six or seven, or sixteen or seventeen? Published government statistics list numbers of people
in various obstruse visa categories which do not clearly indicate their manner of arrival, and
which might suggest border permeability, but we just don’t know, anymore than we know
whether lives have been saved.

We do know that Operation Sovereign Borders has included so-called turnbacks. Between
December 2013 and February 2018, 33 boats and some 771 passengers are reported to have
been turned back. Who were they, and did they need protection? Where were they sent?
Again, we don’t know.

It may well be that smugglers have gone back to their day jobs, but desperation is a powerful
driver, and there is no evidence base to suggest that so-called ‘deterrence’ is more effective in
moderating movement, than dealing with causes, whether root causes or the drivers of further
displacement arising after first flight.

An alternative but still results-oriented approach, by contrast, would take its lead from two
complementary principles – that of protection, and that of solution – which have proven
themselves in the past.

In my view, radical re-thinking is needed, although I doubt that the political will exists to
change all that needs to be changed in the short term. First and foremost, governments need
to step beyond the facile, populist but unrealistic conceptions of sovereignty that have
characterised policy-making in the recent past, and aim for practical approaches which factor
in working co-operatively with other States, whether on refugees or migration more
generally.

There is no good reason why Australia should continue to be fearful of people arriving by
boat. The numbers have always been manageable and, if the appropriate international and
institutional measures are put in place, they will continue to be so. There is also no reason to
suppose that desperate people will stop taking desperate measures to escape intolerable
situations, or to suppose that deterrence will stop them. While the smuggling business model
may have been disrupted, there is no good reason why ordinary men, women and children in
flight should pay with broken lives.

The movement of people between States will be a continuing phenomenon in this globalised
world, and it would be better that it were ‘normalised’, regulated more effectively, and
managed consistently with international law, the interests of States, and the interests of those
on the move. The way ahead, however, will be in short steps.

There are alternatives, and many other States are exploring what how to respond, but, as in
Europe, by keeping within the rule of law and a system of values. The about to be adopted
Global Compacts on Refugees and on Safe, Orderly and Regular Migration are stepping
stones in the right direction, premised on co-operation, not on loss of sovereignty or new
obligations. But there is no need to wait, and initiatives can be taken now.

1. Manus Island and Nauru
There are currently 652 people on Nauru (541 recognized by Australia as refugees; 88
pending a decision; 23 found not to be refugees). The population includes 52 children, after
the transfer to the mainland yesterday of 27 people, including 11 children.
The most recent statistics for Manus (21 May 2018) indicated that 716 remain in PNG (567 in
Manus, 113 in Port Moresby, and 36 in the community).

The humane response now is to admit all those presently in PNG and on Nauru to Australia,
and to work for solutions from here on out, using any interim period to rebuild health and
well-being and to set the refugees on the road to recovery. Durable solutions should be
actively sought, either in third States, if that can be negotiated in appropriate cases, or in
Australia, if all else fails. Priority also needs to be given to family reunion and to ensuring
that the best interests of the child are a primary consideration in every decision taken in their
regard.

If there is no need for protection, and if returns are problematic, then Australia will need to
engage with countries of origin, but on a basis of equality and equity, not confrontation and
unilateralism. International law and international standards will govern, but there may be
room to develop bilateral or regional agreements on regular migration.

The life-long ban on every coming to Australia, currently being debated and seen by some as
reasonable and pragmatic, is unprincipled. The people to be targeted by legislation have been
intentionally and without due process transported by Australia to remote locations, and
confined indefinitely in conditions which, as policy-makers would have known from previous
experience, were foreseeably likely to result in abuse, and in psychological and physical
harm, not to mention breaches of specific obligations owed to children.

Such legislative targeting is reminiscent of acts or bills of attainder in the past. Once upon a
time, the High Court of Australia ruled that, even though not forbidden by the Constitution,
such acts are unconstitutional, violating the separation of powers doctrine, under which only
a Chapter III court may wield judicial power, including the making of binding and
authoritative decisions on issues relating to life and liberty.1 Would they decide the same way today?

No matter – the proposal is unethical.

2. A pilot project for future process
Secondly, and with an eye on present and future regional needs, Australia should develop a
pilot project focussing on the plight of Rohingya refugees, many hundreds and thousands of
whom have found refuge for the time being in Bangladesh, while others have travelled
further afield. They are without doubt refugees, even if Australia has been notably silent on
causes and ethnic cleansing, and even in-country its representatives have often failed to
support its allies and partner organisations in pressing for an end to violence, discrimination
and detention.

Australia is not so far away, and hugging the coastline, the voyage is not so difficult.
Working together with Malaysia, Thailand and Indonesia, Australia should ensure that it is
ready and able to support those countries if or when they are faced with an influx, so that
Rohingya refugees can be admitted and assisted to find a durable solution.

In anticipation of the real possibility that Rohingya may also arrive in Australia, a domestic
and regional strategy of protection and solidarity is called for, consistently with international
law. This will require revised and strengthened capacity to determine claims for refugee
status and protection promptly and efficiently.

In turn, this means:

  • A legislative framework which carefully sets out in law the criteria for the
    grant of protection by reference to Australia’s obligations and international
    legal standards.
  • Access to process as of right, not at the discretion of a minister or civil
  • Decision-making by an independent, statutory body
  • Front-end loading to ensure prompt, effective and reasoned decisionmaking
    in a non-adversarial environment by trained decision-makers
  • Counselling, legal advice and representation for protection claimants in
    order to promote good decisions and follow through

In addition, no one seeking protection in Australia,

  • Should be penalised by reason of their method of arrival.
  • Returned or sent to any country in which their life, liberty or security
    would be at risk, or which is unable or unwilling to provide protection
    in accordance with international law or to provide lasting solutions for
  • Detained in the absence of good cause other than for an initial short
    period for the purposes of identification, registration and
  • Denied reunion with their family or, if a child, separated from their
  • Denied medical care and such other assistance as will enable them to
    live in dignity in the community and, through gainful employment, to
    contribute to the well-being of themselves, their family, and the Australian community.

Recognizing that other States in the region will also be affected by any further movement of
Rohingya, Australia should consider now how it can provide political, financial and material
support to countries admitting refugees. If protection and treatment consistent with
international law, including such solutions-oriented measures as employment and education,
Australia may be able to trade away its apprehensions and negotiate returns to first countries
of refuge. Experience shows, however, that a principled approach will again be called for.

Absent express undertakings, no State has the right unilaterally to return or send a non-citizen
to any country other than that of their nationality. That is why the EU needed an agreement
with Turkey on the return of Syrian and other refugees. Deficient as it is, the lessons of that
exercise to date need to be recalled, in particular, the self-evident linkage between returns,
protection, security and opportunities for a reasonable way of life, including employment,
health care, and education for children.

If Australia, for reasons of domestic policy, wishes to maintain its policy of denying arrivals
by boat, then it will need to persuade the international community, and particularly its near
neighbours, of its commitment nonetheless to compensate them for the additional costs of
providing settlement and solutions. This is likely to require a considerable uplift in
Australia’s financial contributions, both to States bilaterally and to UNHCR, and in its
commitment to resettlement.

3. Democratic adjustment
Australia’s policy towards asylum seekers is characterised by a deeper malaise, which is the
current imbalance between the executive, the legislature and the judiciary. This has led to a
form of ‘executive extremism’, which no court today appears able or willing to curb, and to
distrust more generally in the competence of politicians and bureaucrats and in their readiness
to accept accountability.

This is clearly a long-term, political project, but so is democracy. It is a journey in which the
three arms of government are not only in shifting balance and constant tension, but in which a
democratic deficit can open up all too easily between government and governed.

On migration and refugee protection, the people need to be on-board, which is why
community sponsorship programmes like those in Canada have changed the perception of
refugees, successfully tapping into well-springs of common humanity and further
democratizing the response to those in need of protection. And it is the responsibility of
government to ensure that Australian communities receiving the displaced have the resilience
and the capacity to assure their integration and contribution to society. As the Canadian
Minister for Immigration, Ahmed Hussen, remarked in his recent visit to UNSW, to get
integration, you need to invest in integration; and no good ever came of forcing refugees into
destitution because of the manner of their arrival.

4. Finally…

Finally, there is the question of exactly what Australia is doing or proposing to do with regard
to present and future displacements of people.

What exactly does it propose for those displaced by climate change and by slow or sudden
onset disasters in the region?

What exactly does it propose to do with regard to ongoing or incipient conflicts, particularly
in the region?

What will it do about persecution and ethnic cleansing. Australia is a member of the Human
Rights Council, but strangely silent – what a waste…

Principles, then, and purpose…

 

1 See New South Wales v Commonwealth [1915] HCA 17, (1915) 20 CLR 54; Australian Communist
Party v Commonwealth [1951] HCA 5, (1951) 83 CLR 1; R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10, (1956) 94 CLR 254; Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36, (1909) 8 CLR 330; Polyukhovich v Commonwealth [1991] HCA 32, (1991) 172 CLR 501; Chu Kheng Lim v Minister of Immigration [1992] HCA 64, (1992) 176 CLR 1.

 

L to R: Associate Professor Therese Wilson, student Michelle Gunawan and Dr Kylie Burns