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“Australia and many other States are now facing and will continue to face the challenges that arise from the movement of people,” Kaldor Centre Professor Guy S Goodwin-Gill told the Griffith University Law School, in the 2018 Michael Whincop Memorial Lecture on 23 October. "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 policymakers from the realities of globalisation, conflict, poverty and climate change, of systemic incompetence, and of the failure to link principles to outcomes.

“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,” Goodwin-Gill said in his lecture, titled ‘Principles and Purpose – Stepping up to Refugee Protection in this Era of Displacement’

He noted that despite 70 years of the United Nations, more than 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 – such as 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,” he said.

We invite you to read the full speech below, and we will post the audio podcast soon.


‘Principles and Purpose – Stepping up to Refugee Protection in this Era of Displacement’

Professor Guy S. Goodwin-Gill’s Michael Whincop Lecture at Griffith University on 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 the 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 non-State 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 policymakers 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 its 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 was 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 abstruse visa categories which do not clearly indicate their manner of arrival, and which might suggest border permeability, but we just don’t know, any more 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. 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 servant.
  • Decision-making by an independent, statutory body
  • Front-end loading to ensure prompt, effective and reasoned decision-making 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 refugees.
  • Detained in the absence of good cause other than for an initial short period for the purposes of identification, registration and documentation.
  • Denied reunion with their family or, if a child, separated from their parents.
  • 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.

Recognising 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 democratising 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...

 

The Kaldor Centre plays a vital role in developing legal, sustainable and humane solutions for displaced people around the world.