In the present controversy over Australia’s interception and forcible return policy, many facts are forgotten among the facile assertions of lawfulness and legitimacy.
We know, for example, that a significant majority of those reaching Australian waters by boat in the past had good reason to seek international protection – they were found to be at risk of persecution. We know, too, that all is not well in many a country of origin, and we can reasonably infer that refugees with a well-founded fear were among those just handed back by the Australian navy.
And then there’s torture, the crime in international law which any State may prosecute, no matter the place or the offender. Torture’s related offences – aiding and abetting, complicity, the joint criminal enterprise – are all of them broad enough to capture the captain, the commodore, the rear-admiral, the civil servant, even the highest minister, as General Pinochet had occasion to learn. Could there be criminal liability on this occasion?
We need the facts … now
Transparency and accountability are the hallmarks of a democratic society working within the rule of law; secrecy and denial, those of an authoritarian one, unconcerned with rule or principle.
What does go on at sea, within the jurisdiction and control of the Australian State?
Ironically, the present Government’s policy of secrecy and denial disables it from effectively countering claims that it has violated international law. Not letting daylight in merely reinforces suspicions, and to hear immigration minister Scott Morrison whinge about ‘shrill and hysterical’ criticism is a bit like listening to the knee-jerk and insubstantial protestations of the criminal or abuser of others (and we’ve heard a lot of that recently).
Behind these authoritarian measures and the un-, even anti-democratic practices, will be the age-old drivers of racism and xenophobia. These are not unique to Australia, of course. They contributed to the US denial of due process to Haitians in the 1980s, to the UK Labour Government’s propaganda on so-called ‘asylum abuse’ in the 2000s, to the Tory/UKIP discourse on migrants and ‘benefits’ today, and to Italy’s dressing up of interception and forcible return to Libya as just an exercise in saving life at sea. In the first and last of these cases, it was courts which exposed the excuses of officials and the pretensions of government to the bright light of the rule of law; not surprisingly, governments concerned only with political ends will often try to keep the courts at bay.
At the political level, every State and every community has to confront racism and xenophobia. Statesmanlike qualities are needed to deal with them on a principled basis, but today’s politicians (and their media bed-fellows) seemingly lack that ability, preferring instead to conjure fear and apprehension for the sake of short-term electoral ends or another sale-generating headline.
Not a flood
We know from experience in Australia and elsewhere that the numbers of those seeking refuge today are manageable, no matter the percentage of refugees, or of those believing themselves to be refugees, or of those simply trying to better their lives or join their family.
But managing the phenomenon of people moving between States – it’s not a ‘problem’, not something that can be ‘solved’, just like that – requires not just an investment in protection and in human rights, but also in grown-up international relations. For migration is precisely an international issue, involving many actors, and is not to be dealt with effectively by unilateral diktat. People-smuggling is certainly to be combatted internationally, but it will always have a place in people’s flight to safety; can it really be assumed that without smugglers, there will be no flows?
The past still lives
But old attitudes, particularly 19th century attitudes, die hard, especially in the migration context. After all, it is scarcely 40 years since the (official) end of the ‘White Australia’ policy, and Australia’s geographic location has spared it from the immediate humanitarian demands faced by many another State; here, it is able to exercise significant ‘pre-departure’ control through the visa system and, one might have thought, to be a little more pro-active on the protection front.
Australia has failed where once it had made progress – in developing cooperative and mutually respectful relations with partner States on the northern axis. Yes, it may participate in the ‘Bali Process’, but the recent Indonesia and Malaysia debacles are witness to the lack of balance, to what seems to be a wilful refusal to factor in others’ interests. At the same time, its ‘deals’ with PNG and Nauru simply confirm its own legal responsibility for what happens to those who happen to be dumped there at Australia’s request and Australia’s billing.
It is not that Australia lacks experience working in principled partnership with other States and the international community at large. Malcolm Fraser and Michael McKellar did it in the 1970s, blending humanitarianism and political sense at the time of the Indo-China refugee crisis. Australia did it again a decade or so later, playing a leading role in the Comprehensive Plan of Action, an internationally supervised response to migratory movements in changed and changing times; not without its faults, the CPA helped bring that crisis to an end, within a framework of principle which ensured the identification and protection of refugees, and the return to their countries in safety and dignity of those not needing that protection.
Of course, dealing cooperatively and equitably with others involves compromise; recognizing others’ interests, whether those of States or individuals, whether legal or moral, is not a cost-free exercise. Based on law and principle and conducted openly and transparently, it can produce long-term results, however, leading to improved international relations, enhancing the standing of those involved, and ensuring that just and humanitarian solutions are found for those in flight from their homelands.
Countering the climate of fear and apprehension fostered in the home constituency is one of the first challenges. A democratic government will do that within the rule of law, not for short-term, local political goals, but with an eye to a future in which asylum, protection and human rights are realistic and effective responses to those in need of protection, and where migration in both its other regular and ‘irregular’ forms can be managed fairly and equitably.
Australia led in the past in providing solutions and ensuring protection. It has only to gain by embracing principle and leading once more.
Guy Goodwin-Gill is a Senior Research Fellow of All Souls College, Oxford, Professor of International Refugee Law, and a Barrister at Blackstone Chambers, London.