This essential book provides a comprehensive and uncompromising overview of the first three years of offshore processing since it recommenced in 2012. It explains why offshore processing was re-established, what life is like for asylum seekers and refugees on Nauru and Manus, what asylum seekers, refugees and staff in the offshore detention centres have to say about what goes on there, and why the truth has been so hard to find. In doing so, it goes behind the rumours and allegations to reveal what is known – and what still is not known – about Australia’s offshore detention centres.
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About the Author
Madeline Gleeson is a lawyer and Research Associate at the Andrew and Renata Kaldor Centre for International Refugee Law, where she is also Director of the State Responsibility and Borders, Offshore Processing, Protection of Children and Regional Cooperation and Protection projects.
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Behind the Wire on Manus and Nauru
By Madeline Gleeson, Josephine Pajor-Markus
University of New South Wales Press LtdCopyright © 2016 Madeline Gleeson
All rights reserved.
THE PACIFIC SOLUTION REVISITED
The Pacific solution was a cynical, costly and ultimately unsuccessful exercise.
Chris Evans, Minister for Immigration and Citizenship, 8 February 2008
ON 13 AUGUST 2012, AUSTRALIAN SEA AND AIR patrols in the Indian Ocean coordinated the rescue of more than 200 people floundering on three separate boats, all trying to reach Australia. Days like this had become the norm for the men and women of Australia's border authorities as they monitored the northern seas. In the five years since the Labor government had taken power, the number of people venturing onto treacherous sea routes and reaching Australia had risen from 110 in 2007 to well over 7000 in 2012. A further 610 people had drowned or disappeared before making it to their destination. Australian patrols were picking up vessels weekly, if not daily – most of them heading for outlying Australian territories in the Indian Ocean from where the people smuggled on board would be able to seek asylum.
As she monitored the latest rescue operations from Canberra, Prime Minister Julia Gillard and her government sat down, yet again, to confront the question that had plagued them since the start of their term: how to put a stop to the increasing number of boats and deaths at sea off Australia's northern coast? On this particular day there was a new document to discuss, received at 7 am that morning: the much-anticipated report of the Expert Panel on Asylum Seekers. The expert panel had been commissioned by the prime minister six weeks earlier to consult with all relevant stakeholders and 'provide advice and recommendations to the government on policy options available ... to prevent asylum seekers risking their lives on dangerous boat journeys to Australia'. The brief had not been easy. With the two major political parties in a deadlock over how to proceed, the panel had encountered 'a broad cross-section of views on asylum issues', all deeply held and strongly argued.There were no easy answers to be found.
The panel, led by Air Chief Marshal Angus Houston, presented a set of principles and policy objectives intended to be 'hard headed but not hard hearted'. 'The only viable way forward,' it concluded, 'is one that shifts the balance of risk and incentive in favour of regular migration pathways and established international protections and against high-risk maritime migration.' As a matter of priority, the government was urged to work closely with countries in the region to address the reasons people were fleeing their homes in the first place, and to make it easier for them to find protection both in Australia and elsewhere without needing to risk their lives on a boat. At the same time, there were steps the government could take to reduce Australia's attractiveness as a destination point for 'irregular' migrants – those trying to enter Australia without authorisation – and ensure there was no advantage to be gained by paying a smuggler to come by sea. As new and safer routes to protection became available, it was hoped that the incentive to get on a boat would diminish.
The question of how to address displacement before people got on boats and encourage them to flee their homes in an 'orderly' manner had been debated at length over the previous years. Then, as now, theory had to confront reality: for most people seeking protection in the region, there simply were no 'regular migration pathways' to circumvent. By 2012 the Asia-Pacific region was host to more than one third of the world's refugees – some 3.5 million people. They were joined by a further 6 million 'people of concern' to the Office of the UN High Commissioner for Refugees (UNHCR), including people who were stateless, or internally displaced within their countries. The vast majority were not trying to get to Australia, instead remaining in countries much closer to their own, but for those who were in need of protection elsewhere the options were few. As UNHCR noted: 'The protection environment in the Asia-Pacific region is fragile; few countries have acceded to the 1951 Refugee Convention and many lack legal frameworks that govern refugee protection. Among those which have acceded, many do not have the capacity to effectively implement their commitments.' Fearing arrest and deportation, unable to access basic services, and with limited prospects for the future, many had no choice but to keep moving in search of somewhere to stay.
Resettlement through a global program run by UNHCR provided one of the few so-called regular pathways by which permanent protection could be reached. But the places available in this program were few. By 2012 the only countries taking sizeable numbers of refugees from the Asia-Pacific region through the UNHCR program were Australia, the United States and Canada, and they hardly made a dent in the number of people displaced. Others in need of protection could apply through Australia's own Refugee and Humanitarian Programme – a resettlement program that incorporated but went beyond that of UNHCR, offering other refugees and vulnerable people a pathway to safety. Under both programs, though, the Australian government had the right to choose whom it would take and when. Those who applied first, or had the greatest need, or had family already in Australia, would not necessarily be selected. They might be left, together with everyone else, with no 'regular' or 'legal' way out at all – no 'queue' to line up in to reach safety. Getting on a boat was the only resort.
The expert panel, fully aware of this reality, recommended that the Gillard government 'substantially' increase the number of places in Australia's resettlement program, with a particular focus on people coming from Asia and the Middle East. It also urged the government to continue working with its neighbours to establish an 'enhanced regional cooperation framework on asylum issues', as a key prerequisite to creating the regular pathways that were currently out of reach for so many. But this framework would take time to build, and action was needed now. So, to complement the longer-term strategy, the expert panel recommended that the Australian parliament pass legislation 'as a matter of urgency', authorising the government to transfer asylum seekers offshore to be processed in Nauru and PNG. The re-establishment of offshore processing, suspended four years earlier, was intended to act as a 'necessary circuit-breaker to the current surge in irregular migration to Australia'.
The logic behind this crucial recommendation was not fully explained. It was unclear from the expert panel's report whether offshore processing would be a temporary policy to discourage irregular migration to Australia until an enhanced regional cooperation framework could be established, or a way of ensuring the framework's success after it was established, or both. Nor was it clear how offshore processing and the 'no advantage' principle would operate in practice: refugees processed offshore were not to be resettled in Australia until a time 'comparable to what would have been made available had their claims been assessed through regional processing arrangements', but no such arrangements existed. Moreover, the expert panel insisted that offshore processing should occur only within the limits of international law, but by refusing to process asylum seekers arriving at its borders and withholding settlement from people found to be refugees, Australia risked violating its obligations under both the Refugee Convention and international human rights law.
Unanswered questions and concerns about legality were matters for another day. Within hours of receiving the expert panel's report Prime Minister Gillard announced her government's 'in principle' support for the full package of recommendations. For the second time in its history, Australia would start sending asylum seekers offshore to be processed on small island nations in the Pacific. It was a momentous announcement. Four years earlier as deputy prime minister, Gillard had stood beside then prime minister Kevin Rudd as he dismantled the 'Pacific solution' – Australia's first offshore processing regime established in 2001 by Prime Minister John Howard. Rudd had condemned offshore processing in Nauru and PNG as 'just wrong', 'a waste of taxpayers' money' and 'not the right way to ... handle asylum seekers or others'. 'There will be no continuation of the Pacific solution under a federal Labor government,' he had insisted. Now, Gillard's announcement to the contrary was attacked as such a 'massive back-flip' and 'monumental change of policy' that opposition leader Tony Abbott called for her government to resign. A closer look at the previous year's events, however, tells a very different story, and goes a long way to explaining why Australia's second Pacific solution unravelled in the way it subsequently did.
* * *
TWO YEARS EARLIER, WITHIN A FORTNIGHT OF taking office in June 2010, Prime Minister Gillard had already announced plans to reinstate the processing of asylum seekers outside Australia and remove the 'incentive' for people smugglers to send boats to Australia. She proposed 'building a regional approach to the processing of asylum seekers, with the involvement of the UNHCR, which effectively eliminates the onshore processing of unauthorised arrivals and ensures that anyone seeking asylum is subject to a consistent process of assessment in the same place'.
A regional processing centre (RPC), she argued, would 'stop the boats not at our shoreline but before they even leave those faraway ports', ensuring that 'people smugglers have nothing to sell' and that arriving by boat would not 'give anybody an advantage' in settling in Australia. The urgency of this proposal was evident, with 2010 seeing the highest number of asylum seekers arriving by boat on record at that time. But the establishment of would prove easier said than done.
The first real progress towards this goal occurred one year later. In May 2011 the prime ministers of Australia and Malaysia announced that they had entered into a 'cooperative transfer agreement' for the movement of asylum seekers and refugees between their two countries, which was subsequently signed on 25 July 2011. Under the agreement, 800 asylum seekers who arrived in Australia by boat would be transferred to Malaysia to be processed by UNHCR, and in return Australia would resettle, over four years, 4000 refugees currently residing in Malaysia. Australia agreed to fund the arrangement, and Malaysia promised to ensure asylum seekers enjoyed an 'adequate standard of treatment' while their claims were processed.
Hours before the first sixteen asylum seekers were due to be sent to Malaysia, on a Sunday evening in early August 2011, in Melbourne lawyers for the group secured an urgent injunction preventing any removals until a full legal challenge to the 'Malaysian solution' could be mounted. By the end of August this temporary hold would become permanent, as the High Court found the entire agreement with Malaysia to be invalid under Australian law. The government had argued that the Migration Act gave the immigration minister power to declare any country eligible to receive asylum seekers for processing, as long as he or she was personally satisfied 'in good faith' that certain conditions set out in the law were met. The High Court disagreed, finding that the minister's personal satisfaction was not enough. Instead, a receiving country had to be legally bound, either by its national or international law, to provide the guarantees set out in the Migration Act: asylum seekers had to be given access to effective procedures to assess their claims, protection while they waited for a decision, and ongoing protection if found to be refugees. The receiving country also had to meet relevant human rights standards in providing this protection.
With Malaysia found not to meet these requirements, and the Australian Migration Act framed as it then was, the High Court said there was no way Australia could send asylum seekers there under its existing agreement. The judgment also cast doubt on whether Australia could send asylum seekers to any other country in the region, including Nauru or PNG, given their inability to perform refugee status determination (RSD) at that time. The Gillard government immediately drafted legislation to get around this prohibition. On 21 September 2011 the government introduced a new bill into parliament that sought to grant the immigration minister power to declare any country eligible to receive asylum seekers, so long as he or she believed it to be in the national interest to do so. This bill would sit in parliament for almost a year, as Gillard's minority government struggled to get the votes needed to make it law. Australia had entered a year of political impasse on asylum policy.
* * *
BETWEEN SEPTEMBER 2011 AND THE DELIVERY of the expert panel's report in August 2012, the Australian parliament failed to make any tangible progress towards addressing the rate of boat arrivals. Tony Abbott's opposition refused to approve any amendment to the Migration Act unless it stipulated that asylum seekers would be taken only to countries that were parties to the Refugee Convention. Such an amendment would rule out Malaysia, while keeping Nauru and PNG on the table. Shadow immigration minister Scott Morrison berated the government for trying to remove the existing limitations on the immigration minister's powers, which stipulated that human rights must be guaranteed in receiving countries. He argued that 'rather than seek to uphold these protections that have been a feature of this act for a decade, the government's response to the High Court decision has been to abolish [them] through this bill'. 'No one in this parliament should be compromising on the issue of human rights and walking away from the UN Convention on Refugees,' argued the shadow minister for foreign affairs, Julie Bishop. 'We should not compromise on human rights, and on this side we will not.'
For its part, the government insisted that changing the law was necessary to allow offshore processing to occur – in Malaysia, Nauru or just about anywhere – but rejected the idea that being a signatory to the Refugee Convention was the gold standard. This requirement alone, the government noted, would mean that countries like Afghanistan, Iran and Somalia – countries producing refugees – would become eligible to host offshore processing centres. The government rebuked the opposition for trying to take the moral high ground even while proposing to turn boats back to Indonesia, which was not a party to the Refugee Convention, and praising the Howard-era Pacific solution, which had operated in Nauru for seven years prior to that country signing on to the convention in 2011.
The two major parties were stuck in a gridlock, each blaming the other for the failure to move forward. Their positions were not that far apart, though. Almost every member of the lower house of parliament supported offshore processing, the only question being where it should take place. Even on this point there was common ground. Negotiations with PNG for the re-establishment of an 'assessment centre' on Manus Island had already begun the previous year, and Prime Minister Gillard had agreed to recommence processing on Nauru if the opposition agreed to Malaysia as a complementary measure. Compromise should have been within reach, but Abbott was firm: 'As far as the coalition is concerned – yesterday, today, forever – the Malaysia deal is a dud deal. It is a bad deal for Australia; it is a cruel deal for boat people. We will never, ever support it.'
* * *
SO IT WAS THAT PRIME MINISTER GILLARD CAME to be standing before the gathered press in Canberra on 13 August 2012, to announce the reopening of processing centres on Nauru and Manus Island in PNG. Every person who arrived in Australia by boat on or after 13 August 2012 would be sent offshore for processing under a new 'no advantage' policy, the details of which were yet to be determined. The government amended its bill to ensure that any designation of a 'regional processing country' by the immigration minister would be subject to parliamentary approval, and it raced through both houses of parliament to become law in record time. Within days the Australian Defence Force was be deployed to assess what work was needed to get the Howard-era detention facilities into shape, and negotiations began with the governments of Nauru and PNG to iron out the details of the new policy. Over the coming weeks both nations were designated regional processing countries under Australian law, and memoranda of understanding (MOUs) were signed with each government to finalise the new agreements. After more than two years of frustrated half-starts, the momentum was now unstoppable.
Excerpted from Offshore by Madeline Gleeson, Josephine Pajor-Markus. Copyright © 2016 Madeline Gleeson. Excerpted by permission of University of New South Wales Press Ltd.
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Table of Contents
Notes on terminology,
NO ADVANTAGE (2012–2013),
1 The Pacific solution revisited,
4 A new year, new problems,
5 Why me?,
6 On the brink of collapse,
7 The Nauru riot,
NO RESETTLEMENT (2013–2014),
8 Rudd and the regional resettlement arrangement,
10 Unaccompanied children,
11 Trouble brewing,
12 The Manus riot,
NO IMPROVEMENT (2014–2015),
14 No place for a child,
16 Free, but not safe,
17 Allegations and abuse,
18 Another year ends,
19 Not settled on Nauru,
NO END IN SIGHT (2015–),
21 Secrets revealed,
22 How did it come to this?,
23 Not settled on Manus,
24 How young is too young?,
25 Australian Border Force,
26 Three years on,