The politics of immigration: a race to the bottom
The Gillard Government seems determined to overcome the setback to its asylum seeker policies occasioned by the recent High Court decision overturning its "Malaysia Solution". There is nothing wrong with that in constitutional terms.
If the High Court finds an action to be without power (but not unconstitutional), the Government always has the option to go back to the Parliament and seek to amend the law to give itself the power to do what it wants to do.
The key questions in any given case are whether this is a good idea, and whether it is an appropriate idea.
The 1951 United Nations Convention Relating to the Status of Refugees and the accompanying 1967 Protocol (see here) defines a refugee as a person who:
Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Note that under this definition the state of being a refugee is intrinsic to the person concerned: they are a refugee the moment they take flight "owing to well-founded fear of being persecuted...", not because some government official in a far-off land taps them on the shoulder with his sword and says, "I dub thee a refugee. Arise, Sir Refugee".
This means that the process of "processing" refugees is conceptually, and in any decent practice, not a matter of establishing which people are refugees, it is a matter of identifying any who are making a false claim and hence are not entitled to the benefits that refugee status confers as of right.
To illustrate by an analogy that is not too strained, you are not ill because a doctor says you are, you present yourself for medical assistance because you have a well-founded fear that you are ill.
This raises an issue akin to the presumption of innocence. Since the state of being a refugee is intrinsic to the individual(s) concerned, it is important to assume that everyone who makes a claim for asylum be treated as such unless and until the contrary is established.
The difference is important. It means that we should not withhold the benefits of refugee status from every asylum seeker until the merits of their claims are established. It means that, in a preliminary and precautionary way at least, we extend them to everyone and subsequently withdraw them from those found not to qualify. This approach does not preclude a preliminary period of detention to enable identity and health checks to be carried out, nor does it preclude requiring asylum claimants to remain in touch with the authorities until all procedures have been completed and a right of permanent residency is granted.
I would go on to argue that our obligations under the Convention and Protocol, and on the basis of human decency (the old-fashioned notion of doing what is right, which rarely enters into our political discourse these days), are engaged the moment an asylum seeker comes face-to-face with an Australian naval or customs craft and says "I am a refugee".
Forget all the fancy legal cleverness about excising bits of Australian sovereign territory (parts of our far-flung oceanic and island territory which we regard as fine for claiming fishing and mineral rights, but are less enthusiastic about acknowledging as the basis for the various responsibilities that go with sovereignty), and about offshore processing as a way of deeming people not to have arrived in Australia. An Australian warship is a floating piece of Australian sovereignty, and a person who communicates with it is communicating with the Australian state. John Howard seems to have understood that that is presumably why in a notorious incident he would not let an Australian frigate take refugees on board until their boat had actually sunk and the people on board had to be rescued from the water.
Sadly, in the race to the bottom that characterises the politics of immigration generally these days, we are no longer saying to refugees "You are not welcome here" we have been saying that ever since Paul Keating introduced mandatory detention, contrary to one of the fundamental provisions of the Convention, under which detention is a last resort. We are now saying, "You may not come here" (unless of course your circumstances are such that you can purchase a ticket on an aeroplane).
We should hang our collective heads in shame that we have allowed matters to come to this.
And if we as a society are determined not to live up to our obligations under the Refugee Convention, we should do the honest thing and serve notice that we are withdrawing from it.
Paul Barratt has had over 40 years' experience of policy advising and international negotiations in the areas of defence, foreign relations, international trade and climate change.