Peter Dutton is a desperate man, clinging to the wreckage of a failed policy. The best he could come up with after the supreme court of Papua New Guinea’s (PNG) intervention in Australia’s migration policy is that asylum seekers and refugees on Manus Island should be shifted to Nauru — another dysfunctional, client state holding a desperate cargo of humanity for which Australia is responsible. Both the Coalition and Labor are obdurately stuck with barbaric offshore detention policies, as though sensible, humane and politically viable alternatives are beyond them.
Stopping the boats has been a politically successful outcome and the electorate seems unlikely to tolerate a return to waves of asylum seekers washing up on our shores. However, increasingly, voters are not happy with what they see going on at Manus Island and Nauru, which is why the government goes to such extraordinary and comical lengths to shroud these operations in secrecy.
Why alternative policies are not tried, let along suggested, is a profound mystery.
Much could be done to assist Indonesia — a country with more than 13,000 registered refugees and asylum-seekers waiting for years to be resettled. Indonesia has been the source of Australia’s boat people, so a management plan would assist Australia’s neighbour and assist us, because if properly executed, it would remove the incentive for people to get on boats. Instead, Australia caps its refugee intake from Indonesia at 450 a year and former immigration minister Scott Morrison turned off the tap completely for those registered in Indonesia after July 1, 2014.
There was a note of desperation from Indonesian Foreign Minister Retno Maraud when she was interviewed just before last month’s Bali round of regional ministers on how to manage the movement of the human tide. Foreign Minister Julia Bishop was banging the usual drum about taking a strong stance against “the criminal networks that engage in people smuggling and human trafficking”.
Labor’s immigration spokesperson, Richard Marles, echoes the same line. Frankly, it’s this lazy thinking that has got us into the current parlous policy position. For instance, if Australia were to offer 5,000 places a year from Indonesian camps and a similar number from Malaysia and Thailand together, there would be an incentive to come legitimately to Australia rather than get on boats and engage with “criminal networks”.
That would be one way to take down the people-smuggling trade. Indonesia also would be more amenable to Australia turning back those on boats who seek to bypass the programme, if we were actively assisting to reduce the pressure in their camps. The reason people risk their lives at sea is because there is no alternative, they have no hope. If we gave them hope with a properly structured resettlement scheme there would be no need for a primitive stop-the-boats policy that is predicated on capturing asylum seekers, detaining them (in PNG’s case illegally) and, in order to deter others, treating them wickedly and ruining their lives. At the moment, Australia recruits its refugees from camps as far away from Indonesia as possible while at the same time limiting the intake from its nearest big neighbour to 3 per cent of Australia’s annual refugee and humanitarian resettlements. It doesn’t make sense.
You will think by now policymakers will know that anything is better than running latter-day gulags in crumbling nooks of the Pacific. We need to cooperate with countries in this region more urgently than we do with Sudan, Afghanistan, South America, Turkey and Lebanon and that would mean realigning our refugee intake much more to Indonesia and Malaysia. There’s an argument that the refugees in the Middle East countries are directly the responsibility of the old imperial powers in Europe. We have pressing doorstep issues of our own. But back to PNG and the Supreme Court decision. The way the case was run by the government gave every indication that there wasn’t much sleep lost over the prospect of it going down in flames. Instead of an announcement that the government would seek again to amend the constitution to accommodate the thinking of the supreme court, as would have been perfectly possible, there was an prompt release from Prime Minister Peter O’Neill that he “welcomed” the court’s decision and “will immediately ask the Australian government to make alternative arrangements for asylum seekers currently held at the regional processing centre”.
What was fascinating to find in the supreme court’s reasons is the extent to which the PNG constitution is bound with human rights protections and freedoms — completely missing from the Australian constitution, whose framers though the common law was protection enough for the unruly citizenry. The PNG court found that not only was the imprisonment of people forcibly taken to Manus Island unconstitutional, but the constitutional amendment scrambled together in an effort to protect the memorandum of understanding with Australia was itself unconstitutional. Two of the supreme court judges wrote the court’s findings: Justice Ambeng Kandakasi and Justice Terry Higgins, the former chief justice of the Australian Capital Territory Supreme Court.
Higgins, in his reasons, reminded us that while mandatory detention in these circumstances in PNG is illegal, it is not in Australia. Our high court has said that mandatory detention is lawful, the only proviso being that the exercise of the detention power must be reasonably necessary and incidental to other powers in the Migration Act, such as deportation, issuing of visas, and consideration of applications, etc. Peter Dutton doesn’t have the “impediment” of human rights obligations around his neck. It was PNG’s obligations to protect the human rights of those involuntarily detained that, not for the first time, has rendered our political leadership on this issue so hapless.
— Guardian News & Media Ltd
Richard Ackland publishes the law journals Justinian and Gazette of Law and Journalism. He is a Gold Walkley winner and a former host of Media Watch and Radio National’s Late Night Live. He has written on law and lawyers for 40 years. He is a graduate in Economics and Law and has been admitted as a legal practitioner to the supreme court of New South Wales.
