The Ethical Way

Abbott is Jesuit trained, but has forgotten the ethics they taught  - Brennan is a Jesuit Priest.

This essay was written by Frank Brennan in response to the Houston Report.

I've met Brennan, participated in workshops which he led, and have always been impressed by his encyclopedic knowledge of the law, his moderation and his thoughtfulness.

We're also both Downlands old boys, but I was there about 15 years ahead of him. 

The essay is long, but written with clarity, and is recommended reading for anyone who wants to hold an informed opinion on the issue.

I'll comment as I go through. Brennan's words are in italics. My comments are in block text.

There is an ethical way to stop the boats

Frank Brennan

Behind all the legal technicalities and political argument about boat people, there is room for deeper
ethical reflection and a more principled proposal. But first, to clear away some of the debris.
Last week, the Australian Parliament led by a government in panic mode legislated to do three
things: lock the courts as far as possible out of reviewing government decisions about offshore
processing; set the course for re-instituting the Pacific solution in Nauru and Manus Island; and delay
any prospect of a Malaysia agreement until after the next election - which probably means never.

A brief word on each of these three matters:

1. In 2001, Philip Ruddock, keen to win Opposition support for the offshore processing of
asylum seekers on Nauru, agreed with Kim Beazley to specify minimum human rights
conditions to be considered by the Minister before declaring any country to be an
appropriate offshore processing country. Few members of parliament or lawyers thought
the High Court would ever buy into reviewing whether or not these conditions had been
fulfilled, mainly because they thought the Court would not want to open a door of judicial
review which might require consideration of the human rights record of foreign countries. It
is one thing for a court to observe that a foreign country is not a signatory to an
international human rights instrument. 

That is a simple question of law. It is another matter for a court to be hearing evidence about the human rights record of a foreign country, whether or not it is a signatory to any or all of the relevant human rights instruments. 

Last August, the High Court caused some surprise when deciding 6 to 1 that the court would
open that door of judicial review. The court found Malaysia wanting, and the arrangement
negotiated between Malaysia and the Gillard government defective. Both sides of politics
were keen to shut this door again as firmly as possible. A bill was introduced to Parliament
to do just that last September. It got nowhere because the Opposition wanted to insist that
Parliament provide that any future offshore processing country be a signatory to the
Refugees Convention. The Government would not agree to this because it wanted to keep
open the Malaysia option - Malaysia not being a signatory to the Convention. Parliament
has now closed the door as far as it can. The Constitution may still leave a glimmer of light
between the door and wall.

In 2001, the Howard Government instituted offshore processing on Nauru. It was premised
on the bluff that anyone being sent to Nauru would never be resettled in Australia. Some
.asylum seekers opted to return home. Those who called the government's bluff and stayed
'generally ended up in Australia or New Zealand. When elected, the Rudd government
enacted long held ALP policy for which it had a strong mandate at the election and abolished
the Pacific Solution. When the boats started coming again, the Government's best advisers
cautioned that the bluff would not work a second time. Last week, the Houston Expert Panel
recommended that Nauru be tried again but with an added disincentive for asylum seekers.
They should be told that they would get 'no advantage' by getting on a boat rather than
waiting in Indonesia. They would have to wait the same time for resettlement from Nauru,
as they would had they stayed in Indonesia.

Convinced by their advisers that Nauru would not work again as a deterrent, the Gillard
government had investigated the Malaysia solution. The Coalition and the Greens are
implacably opposed to any Malaysia proposal. Under last week's law passed by the
Australian Parliament, no country will be eligible to host offshore processing unless there is
agreement from both Houses of Parliament. The Senate will now overwhelmingly agree to
Nauru, with support coming from all ALP, Liberal and National Party Senators. Before the
next election, there is no way that the Senate will agree to Malaysia. The Greens won't have
a bar of any offshore processing arrangement. The Opposition describes the Malaysia deal as
'abominable.' 

The above, and the following puts the Coalition's objections to Malaysia in context. It is clearly a political wedge, and their objection relates only to the fact that it is Labor policy, not to the ethical merits of the proposal. 


The Houston panel thought there was merit in the Malaysia proposal. But like the High Court, they thought it fell short on human rights protections and recommended further negotiation of basic human rights review mechanisms with the Malaysian government. There is no way that Australian officials will credibly be able to reopen negotiations with Malaysia before the next federal election. 

The Malaysian officials will know that such discussions could never satisfy the Australian Senate as presently constituted, and that any discussions will simply be face-saving exercises by the Gillard
government. The Malaysians would find such discussions demeaning and a waste of time.
Between now and the next election, we can be fairly sure that anyone sent to Nauru will not
have been resettled. They will still be awaiting processing and/or resettlement on a time line
which follows the 'no advantage' rule. There will be no further development of the Malaysia
proposal. And the vain hope of a regional agreement to solve a regional problem, and not
just the Australian problem, will still be on the long finger.

We need another proposal which could pass ethical muster as well as being workable, given the
Parliament's newfound bipartisan hostility to onshore processing.

Why the Pacific Solution Mark 11is unethical.

Within the international order, the security, well-being and human rights of persons is primarily the
responsibility of the nation state. The community of nations respects the sovereignty of nation
states.

It is to be expected that some persons will face persecution at the hands of their own governments
because the government is either wielding the discriminatory fist or holding its hands behind its back
while others engage in the persecution. Thus the international community has a responsibility to
look to the security, well-being and human rights of those who are so persecuted.
Those fleeing persecution should be treated in a dignified manner, being offered basic protection.
They should be humanely housed, have their claims dealt with under a transparent, fair process and
be offered a durable solution in a timely fashion. Those fleeing persecution should not view their
plight as the basis for seeking their preferred migration outcome. Once offered an appropriate level
of protection, they should await local integration into their host community or resettlement in a
third country.

Ideally, each nation state should process onshore the asylum seekers arriving in its territory.
Alternatively, nations might seek a regional solution to regional asylum problems, even setting up
regional processing centres. Wealthy countries may want to consider outsourcing the
accommodation and processing of asylum seekers to impoverished client states or to other nations
seeking a bilateral advantage. Offshore processing, like onshore processing, should include humane
accommodation, transparent processing and prompt resettlement.

All countries - even those which are not net migration countries - have a responsibility to offer
protection to those persons fleeing in direct flight from persecution. All countries are entitled to
maintain the integrity and security of their borders. Being an island nation continent, Australia is
more able than most to entertain the notion of hermetically sealed borders. Nations sharing land
borders do not waste precious resources trying to exclude all unvisaed entrants.
Australia is less able to close off its borders because we want to retain possessions in the Indian
Ocean which are much closer to Indonesia than to the Australian mainland. With possessions like
Ashmore Reef, it is almost as if we share a land border with Indonesia.


Countries like Australia which are net migration countries should provide some humanitarian places
in the migration program, as well as places for business and family reunion. Given the vast number
of people facing persecution and human rights abuses in the world, net migration countries are
entitled to set an annual quota of migrant places, including a quota on those requiring humanitarian
assistance. The Houston panel has suggested a more generous humanitarian quota than Australia's
average in recent years. This is most welcome.Australia has a humanitarian interest in reducing the appeal of desperate asylum seekers making dangerous voyages in leaky boats from Indonesia. It is false to suggest that there is a queue or series of queues weaving like songlines across the globe - the right way to come being to join a queue and the wrong way to come being to jump the queue.

In some parts of the world there are queues. In other parts of the world (like Pakistan) there are not
- there is only mayhem (as for the Hazaras fleeing from Afghanistan to Pakistan). Once asylum
seekers have reached a place where an appropriate level of protection and processing is provided,
they should wait there, and governments are entitled to design measures which encourage such
waiting. The Houston panel suggested the need to enhance the prospects of people waiting, while at
the same time ensuring that those who take to the boats not enjoy any advantage.

This fairly comprehensively debunks the "queue jumpers" myth.


The ethical problem with the Pacific Solution Mark 11is that it is impossible to calculate the usual
waiting time for resettlement of asylum seekers in Indonesia. It is not as if everyone is placed in the
one queue with the same treatment. Needier cases are often dealt with first.

If people are to be held on Nauru longer than is required for their processing and resettlement,
either the Australian government officials will have to institute a 'go slow' on processing, or the
Nauruan government officials will have to breach numerous provisions of the Refugees
Convention once persons are proved to be refugees awaiting resettlement. A proven refugee, as
distinct from an asylum seeker awaiting processing, is properly entitled to be treated no less
favourably than other visiting foreigners and in some instances to be treated as well as the citizens.
For example, there is no principled reason why a proven refugee should be denied the right to travel
to other countries while awaiting resettlement. 

The Pacific Solution Mark 11needs to work on the bluff that asylum seekers sent to Nauru will be denied resettlement and other refugee entitlements for as long as it would take to resettle them had they waited in Indonesia.

So it's a bluff. That's a very strange brand of humanitarian policy.


So we need to find an ethically more appropriate way to stop the boats. A regional solution to the
regional problem will take many, many years, and Australia with its unduly sensitive, relatively small
problem will not be the key player to determine that progress.
Here is my suggestion for a short-term Australian initiative that is both ethical and workable.

The way forward 

Over the next 15 months, in the lead up to the federal election, Australian officials should redouble
their efforts to seek a bilateral arrangement with Indonesia, with the co-operation of both UNHCR
(which, will be responsible for processing) and laM (which will share responsibility with the
Indonesian government for offering humane accommodation during processing and while awaiting
resettlement). Under an enforceable memorandum of understanding (MOU) Indonesia would agree
not to refoule any person whose asylum claim was awaiting determination nor any person proven to
be a refugee.

Whereas UNHCR has 217,618 persons of concern on its books in Malaysia, it has only 4,239 in
Indonesia. Other than the Sri Lankans, all asylum seekers who head to Australia by boat come
through Indonesia. We need to set up a workable, transparent, honourable queue in Indonesia.
Persons in the queue would receive appropriately deferential treatment from UNHCR deciding that
the neediest cases would be dealt with preferentially.

Sounds a bit like what operated successfully with the Vietnamese. But that was before wee Johnny poisoned the issue with his wedge on Tampa. That single action may well have destroyed possibility of Brennan's suggestion bearing fruit.


What we need is for Indonesia to agree to an arrangement whereby Australia funds the
accommodation and processing arrangements in Indonesia, with Australia setting an agreed quota
of resettlement places from Indonesia. The quota needs the agreement of both governments being
sufficiently generous to assist clear the Indonesia case load, and being sufficiently tight not to
set up a 'honeypot effect,' thereby luring more asylum seekers to the Indonesian queue awaiting
passage to Australia.

The human rights safeguards would need to match the requirements set by the Houston panel when
reviewing the presently defective Malaysia proposal including 'the operational aspects need to be
specified in greater detail' and that 'provisions for unaccompanied minors and for other highly
vulnerable asylum seekers need to be more explicitly detailed and agreed.'

The MOU would need to be accompanied by 'a written agreement between (Indonesia) and UNHCR'
and 'a more effective monitoring mechanism' of human rights protection, including participation by
Australian 'senior officials and eminent persons from civil society.'

Any person leaving Indonesia by boat for Australia could then be intercepted either before or after
reaching the Australian mainland. They could be held briefly in detention while a prompt assessment
was made whether they genuinely feared persecution in Indonesia. Almost none of them will. They
could then be safely flown back to Indonesia and placed, quite literally, at the end of the queue.
Should they attempt a boat journey again, they could be flown back having previously been
informed that they would never be offered a resettlement place in Australia.


This would be a more ethical way of stopping the boats than indeterminate warehousing of people
on Nauru and Manus Island. The increase of the humanitarian intake proposed by the Houston panel
could then allow us to take more refugees from further up the transport chain.

Sounds reasonable to me. The problem would be cutting through the political effluvium that has been whipped up by the xenophobes.


*****
In the lead up to the election, Tony Abbott and Scott Morrison are sure to continue insisting that the
Gillard Government's Pacific Solution Mark 11will not work. In all probability, this will undermine the
efficacy of the Gillard Solution in stopping the boats. Just imagine if Kim Beazley had spent 2001
trumpeting that Nauru would never work and that people would end up in Australia anyway.
We can expect that there will be a cohort of people housed or detained on Nauru and Manus Island
until the next election. 

The Houston panel has made it clear that towing back the boats is not a safe option at this time. The panel declined to recommend the re-institution of temporary protection visas (TPVs), presumably because they are convinced by the evidence that TPVs being issued to men simply results in women and children family members feeling compelled to get on the next boat, given that there is no other way to be a reunited family.

While hoping that the Pacific Solution Mark 11- with the unworkable, unethical 'no advantage' rule
- will in fact stop the boats in the short term, despite the Abbott static, we need to build greater
trust and co-operation with the Indonesians so that those asylum seekers, other than Sri Lankans,
determined to get on a boat to Australia can be processed in Indonesia. If that works, we might then
look to a one-off co-operative solution for the Sri Lankans much closer to home.

Father Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic
University and adjunct professor at the College of Law and the National Centre for Indigenous
Studies, Australian National University. This article first appeared online at ABC Religion and Ethics.