THEY say that the road to hell is paved with good intentions. And by “they” I mean our federal parliamentarians in the course of debating the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012. Liberal senator George Brandis said it in relation to the good intentions of Chris Evans, the immigration minister who dismantled the Howard government’s Pacific Solution in 2008. In a similar vein, Andrew Wilkie, the independent who voted against the Bill, Labor MP Melissa Parke, who abstained from voting, and Labor senator Gavin Marshall, who voted reluctantly for the Bill, gave credit for good intentions to the Asylum Seeker Expert Panel – whose report broke the political deadlock which previously prevented passage of the Bill – but feared for the results. Senator Richard Di Natale, who was at one with his Greens colleagues in opposing the Bill, was prepared to concede good intentions on the part of many of those who were planning to vote for it. And to come full circle, the government was prepared to acknowledge the good intentions of the Greens, though somewhat churlishly not prepared to do the same in relation to the Coalition, which was actually assisting it to pass the Bill.
A partial response: the Regional Processing Bill
At the time of writing, Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012 had been passed by both houses of federal parliament and was awaiting royal assent. It will come into force one day after receiving that assent. It is almost, but not entirely, identical to the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011, which the government introduced into parliament on 21 September 2011 but could not get passed, and to the Migration Legislation Amendment (The Bali Process) Bill 2012, which the Senate rejected in June.
The primary purpose of all three Bills was to repeal section 198A of the Migration Act 1958 (Cth). Under that section, “offshore entry persons” (the legal category into which most unauthorised boat arrivals fall) can be taken to any country that the immigration minister has declared, in writing, to meet three criteria: that it provides asylum seekers with access “to effective procedures for assessing their need for protection” and protects them pending determination of their refugee status; that it provides protection to refugees pending their voluntary repatriation or resettlement; and that it “meets relevant human rights standards in providing that protection.” Prior to the High Court’s decision in M70, the orthodox interpretation of the provision was that the minister’s declaration doesn’t have to be true as long as the minister believes it to be true. The High Court found to the contrary. Moreover, according to the majority of justices, the countries concerned must, at a minimum, be bound under international law or their own laws to provide the specified protections to asylum seekers and refugees. Since Malaysia does not meet these minimum requirements, the High Court’s decision invalidated a declaration that the minister had purported to make in respect of that country. The invalidation of the declaration in turn prevented implementation of an arrangement to transfer to Malaysia up to 800 people who arrived in Australia by boat.
The reasoning of the majority judges in M70 also cast into doubt the government’s ability to take asylum seekers to any country in which they would receive less protection than they would in Australia. Transfer to any other country in the region, apart from New Zealand, would have been legally risky.
The 2011 Bill sought to eliminate that risk by replacing section 198A with a requirement that an offshore entry person be taken to “an offshore processing country” and giving the immigration minister power to “in writing, designate that a country is an offshore processing country.” The “only condition for the exercise of the power” was that the minister “thinks it is in the national interest” to make that designation. In determining the national interest the minister would need to consider whether or not the country had provided assurances (which did not need to be legally binding) that it would make refugee status determinations in relation to the persons transferred (or permit such determinations to be made) and would refrain from returning refugees to a place where they faced persecution. It would have been within the minister’s power, however, to make a designation even if no such assurances had been provided. Moreover, proposed section 198AB expressly stated that the rules of natural justice did not apply to a designation, thus ensuring that those facing removal to a designated country would not have a right to be heard in relation to the designation. It also expressly stated that a designation was “not a legislative instrument” and, therefore, not subject to parliamentary scrutiny and possible disallowance. The Coalition and the Greens were not willing to support the Bill because it would have enabled transfer of asylum seekers to Malaysia pursuant to the government’s arrangement with that country.
The Bali Process Bill differed from the 2011 Bill in specifying that the immigration minister’s designation of a country as “an offshore assessment country” had to be by legislative instrument, specifying that the designated country had to be “a party to the Bali Process,” preventing transfer in the absence of a written agreement between Australia and the designated country, and omitting the express exclusion of the rules of natural justice. It passed the House after being amended to include a twelve-month sunset clause proposed by Andrew Wilkie but was defeated in the Senate. The Greens voted against the Bill because it stripped away the human rights protections contained in section 198A of the Migration Act. The Coalition also voted against the Bill, supposedly for the same reason, implicitly rejecting, I would have thought, the proposition that parliamentary scrutiny and possible disallowance of a legislative instrument designating a country as “an offshore assessment country” was an adequate substitute for those statutory protections.
The Regional Processing Bill (which technically is an amended version of the 2011 Bill) differs from the 2011 Bill by specifying that the immigration minister’s designation of a country as “a regional processing country” has to be by legislative instrument and by spelling out the content and effect of such a legislative instrument. The specifications as to content, which were negotiated between the government and the Coalition, require that each legislative instrument can designate only one country and that the designation cannot include a sunset clause. The justification given for the latter provision, which does not preclude ministerial revocation of a designation, was that it would prevent people smugglers from building “an expectation that a designation will be coming to an end.” The specification as to effect is that such a legislative instrument commences immediately upon both houses of parliament approving the designation or after a copy has been in front of each House for five of its sitting days without being disallowed. This is a departure from the default rule, under which a legislative instrument takes effect from the day after it is registered, but ceases to have effect if disallowed by either house of parliament within fifteen sitting days of tabling. The other difference between the 2011 Bill and the Regional Processing Bill is that the former was to apply to offshore entry persons entering Australia on or after the date of its commencement as an Act whereas the latter applies retrospectively to all offshore entry persons entering Australia on or after 13 August 2012.
At the same time the High Court heard the M70 case, it heard the M106 case. The court held that plaintiff M106, who was an unaccompanied minor, could not lawfully be removed from Australia without the immigration minister’s written consent under the Immigration (Guardianship of Children) Act 1946 (Cth), or IGOC Act. No such consent had been given in the case because the government had not properly understood the manner in which the IGOC Act and the Migration Act interacted. Even if written consent had been given, I suspect that a court would have found the consent to be invalid on the basis that the minister’s satisfaction that the giving of consent would not be “prejudicial to the interests” of the minor, which is the test imposed by the IGOC Act s6A, was not formed reasonably, fairly, or on a proper understanding of the law. The 2011 Bill, the Bali Process Bill and the Regional Processing Bill contained identical provisions designed to overturn this aspect of the High Court’s decision as well.
Once the Regional Processing Bill comes into force the only safeguard against an unaccompanied minor being sent to a regional processing country against his or her best interests, a person being sent to a regional processing country in which he or she will face persecution, and a myriad of other occurrences which would constitute breaches of Australia’s international human rights obligations, is the immigration minster’s power under new section 198AE to determine in writing, if the minister “thinks that it is in the public interest to do so,” that a particular offshore entry person does not have to be taken to a regional processing country. The exercise of this power is expressly stated to be non-compellable and exempt from application of the rules of natural justice.
Procuring passage of the Regional Processing Bill allows the government to tick off recommendation 7 of the report of the expert panel, which proposed the urgent passage of exactly such legislation. It also clears the way for implementation of recommendations 8 and 9. Recommendation 8 is that “a capacity be established in Nauru as soon as practical to process the claims of IMAs” – irregular maritime arrivals – “transferred from Australia in ways consistent with Australian and Nauruan responsibilities under international law.” Recommendation 9 is that similar capacity be established in Papua New Guinea. The government says that it is implementing these two recommendations because it has accepted the expert panel’s argument that all twenty-two of its recommendations need to be implemented as a package in order to achieve the stated policy objective of “preventing asylum seekers risking their lives by travelling to Australia by boat.” The Coalition has indicated that it will be supporting the implementation of the two recommendations because they reflect existing Coalition policy.
Theoretically, the passage of the Regional Processing Bill also enables the immigration minister to implement the transfer provisions of the current Malaysia Arrangement after designating Malaysia as a regional processing country. But the panel’s recommendation 10 was that the government should first negotiate better human rights safeguards and accountability provisions with Malaysia, and the government has accepted this recommendation along with the rest. More to the point, the Coalition and the Greens would act to disallow any such designation in the Senate.
In recommendation 14, the expert panel made another recommendation for legislative change which was not, in fact, accomplished by passage of the Regional Processing Bill. It recommended that the Migration Act be amended “so that arrival anywhere on Australia by irregular maritime means will not provide individuals with a different lawful status than those who arrive in an excised offshore place.” The panel argued that the amendment is necessary “to avoid creating an incentive for IMAs taking even greater risks with their lives by seeking to reach the Australian mainland.” Excision of the mainland is what the Howard government tried and failed to accomplish in 2006, despite having a majority in both houses of parliament. It failed because of Labor opposition coupled with rebellion within its own ranks. By accepting all of the recommendations of the expert panel, Labor has committed to introducing yet another measure it previously opposed, and it seems unlikely that the Coalition will stand in its way.
Pacific Solution Mark II?
The governments of both Nauru and PNG have agreed in principle to host “regional processing centres,” and the International Organization for Migration has agreed in principle to manage such centres for the Gillard government as it did for the Howard government. Pacific Solution Mark II, as it has been dubbed, may well commence in a matter of weeks.
The expert panel and the government have tried to argue that implementation of recommendations 8 and 9 will not, in fact, amount to reinstitution of the Howard government’s Pacific Solution for two reasons. The first is that those taken to Nauru and PNG this time around are to be the beneficiaries of better protections and welfare arrangements than were in place previously. The second is that the underlying “no advantage principle” to which the recommendations are intended to give effect will set the new arrangements apart from the Pacific Solution, in which people were told that they would not be resettled in Australia and were left “to rot as a signal.” I am afraid I am not convinced.
In elaboration of recommendations 8 and 9, the expert panel calls for:
• treatment consistent with human rights standards (including no arbitrary detention);
• appropriate accommodation;
• appropriate physical and mental health services;
• access to educational and vocational training programs;
• application assistance during the preparation of asylum claims;
• an appeal mechanism against negative decisions on asylum applications that would enable merits review by more senior officials and NGO representatives with specific expertise;
• monitoring of care and protection arrangements by a representative group drawn from government and civil society in Australia and Nauru; and
• providing case management assistance to individual applicants being processed in Nauru.
In the Senate, the Greens moved an amendment to the Regional Processing Bill which would have made the immigration minister’s satisfaction that these protections and welfare arrangements were in place a condition of designating a country as “a regional processing country.” The government and the Coalition voted down the proposed amendment because it would, of course, have defeated the purpose of repealing section 198A, which was designed to ensure that a country could be designated despite the absence of such protections and welfare arrangements. Whether the expert panel’s good intentions in this respect are actually realised therefore remains to be seen.
Turning now to the “no advantage principle,” the only way in which this distinguishes Pacific Solution Mark II from the original version is in setting out to do deliberately that which the original version did incidentally – in other words, subject asylum seekers taken to a regional processing country to an extended state of limbo. The Howard government attempted to apply the principle that Australia would only resettle its “fair share” of the refugees subjected to Pacific Solution Mark I before finally accepting, several years later, that for most there was no alternative to resettlement in Australia. The “no advantage principle,” as articulated in recommendation 1 of the expert panel’s report, is that asylum seekers should gain no benefit “through circumventing regular migration arrangements.” The report explicitly spells out that if those taken to a regional processing country are found to be refugees they should not be resettled in Australia more quickly than they would have been had they not got on a boat. According to the immigration minister, in the case of each person determined to be a refugee in a regional processing country, the government will work out the length of time that would have elapsed between status determination and referral for resettlement in “places like Jakarta and Kuala Lumpur and Pakistan” and then make the person wait exactly that long for resettlement.
As several parliamentarians pointed out during the debate on the Regional Processing Bill, if circumstances remain unchanged then such a waiting period would far exceed the four or five years for which some refugees taken to Nauru pursuant to the Pacific Solution Mark I “rotted” there before being resettled in Australia. How then did the widely respected refugee advocate, Paris Aristotle, who was one of the three members of the expert panel, come to sign off on such a recommendation, especially given that he has since said, “I would be the first one to say you can’t leave someone on a place like Nauru for five years, or four years, or whatever the case may be”? Well, if the government moved immediately to implement the panel’s recommendations 2–6, 11–13, and 21, there is a possibility that there would be fewer refugees in the region requiring resettlement and there would be more resettlement places available resulting in quicker resettlement of those in need of it in the future than at present. The relevant aspects of the recommendations are as follows.
Recommendation 2: immediate increase of Australia’s Humanitarian Program from 13,750 places to 20,000 places per annum (including 12,000 places for UNHCR-mandated refugees) with more focus on “asylum seeker flows moving from source countries into South-East Asia” and with consideration given to increasing the program to 27,000 places within five years.
Recommendation 3: “in support of the further development of a regional cooperation framework on protection and asylum systems,” an expansion of Australia’s capacity-building initiatives in the region and a significant increase in the resources allocated for the purpose.
Recommendation 4: “allocation of an increased number of Humanitarian resettlement places for Indonesia.”
Recommendation 5: continued development of Australia’s cooperation with Malaysia on asylum issues including the annual resettlement from Malaysia of a substantial number of refugees.
Recommendation 6: enhanced engagement with regional countries in order to address root causes of movement in source countries, improve protection available in countries of first asylum, and increase resettlement opportunities for refugees in those countries of first asylum.
Recommendations 11: in relation to the current backlog of Special Humanitarian Program, or SHP, applicants, ceasing to treat a close family connection with a sponsor on a protection visa as a “compelling reason” for grant of an SHP place, if that sponsor is an adult IMA.
Recommendation 12: making IMAs, whatever their age, ineligible to sponsor family members under the SHP in future though allowing them to “seek reunion through the family stream of the Migration Program” and expanding that stream by 4000 places per annum.
Recommendation 13: promotion by Australia of “more actively coordinated strategies among traditional and emerging resettlement countries to create more opportunities for resettlement as a part of new regional cooperation arrangements.”
Recommendation 21: review within two years (presumably with a view to cessation) of Australia’s practice since 1996 of reducing the annual allocation of SHP places by the number of onshore protection visas granted in that year.
The rationale given by the expert panel for recommendations 11 and 12 is that immediate family of IMAs are presently crowding out other SHP applicants though they are not “necessarily those most in need of a humanitarian visa.” The government has accepted the recommendations as passing “the fairness test.” The Coalition has embraced them as being in keeping with a key element of the temporary protection visa regime which it had in place while it was in government and which it intends to reintroduce when it regains power. The Greens, by contrast, argue that implementation of the recommendations will simply lead, as temporary protection visas did, to more women and children getting on boats. I tend to agree with the Greens.
Apart from recommendations 11 and 12, however, the recommendations listed above are very welcome. Moreover, the recommendations relating to the expansion and refocusing of the Humanitarian Program are within the power of the government to implement by executive decision and probably will be implemented as long as Labor remains in government. There is no guarantee, though, that the government will make more than token efforts to implement the other positive recommendations of the expert panel. Even if my cynicism in this regard proves unfounded, whether their implementation leads to the outcomes for which the expert panel hopes depends on whether source countries, countries of first asylum, and potential resettlement countries, are prepared to cooperate with Australia. It can by no means be taken for granted that such cooperation will be forthcoming.
In short, it is possible that there will be a vindication of the expert panel’s optimistic expectation that the “no advantage principle” will not result in refugees being warehoused in Nauru and PNG for unconscionable lengths of time. But it is not very likely.
The Coalition alternative
As previously mentioned, the Coalition supports establishment of regional processing centres in Nauru and PNG because that amounts to implementation of longstanding Coalition policy. But its continuous refrain during the debate on the Regional Processing Bill was that the government would also need to adopt the other two “legs” of Coalition policy in order to “stop the boats.” These are reintroduction of temporary protection visas and the towing back of boats to Indonesia where it is safe to do so. According to the Coalition, the expert panel endorsed its tow-back policy in recommendation 19. This is somewhat of a stretch. What the expert panel actually said was: “the conditions necessary for effective, lawful and safe turnback of irregular vessels carrying asylum seekers to Australia are not currently met, but that this situation could change in the future, in particular if appropriate regional and bilateral arrangements are in place.” In my view, there is greater likelihood of pigs flying than of conditions for “lawful and safe turnback” ever being met.
The Coalition also has no problem with the following expert panel recommendations because, again, they reflect existing Coalition policy.
Recommendation 16: development of a more effective strategy for procuring the repatriation of failed asylum seekers.
Recommendation 17: provision to relevant Australian agencies of “appropriate funding on a continuous basis” for disruption of people smuggling.
Recommendation 18: continuation of law enforcement efforts against Australian residents involved in people smuggling.
Recommendation 20: development with regional countries of joint operational guidelines for managing maritime search and rescue activities.
Unlike the present government, however, the Coalition has not given any indication that it accepts and is prepared to implement the expert panel’s complete package of recommendations.
Means and ends
So where does all of this leave us? Well, it leaves the 404 irregular maritime arrivals intercepted between the time of announcement of the government’s proposed legislative changes and the date of writing (19 August) facing the prospect of an indefinite sojourn in Nauru or PNG in conditions which may, but probably will not, comply with all of the international human rights obligations of Australia and the host state. Possibly the expert panel’s strategy of being “cruel to be kind,” as Melissa Parke and Gavin Marshall described it disapprovingly, will deter other asylum seekers from attempting to make the dangerous sea journey to Australia. But, as I have argued elsewhere, all that the strategy really ensures is that they will suffer unnecessarily and die prematurely outside our gaze rather than within it.
Now, it may well be that the differently directed good intentions of the different actors involved in this sorry tale simply lead to different kinds of hell. But here’s what I believe. Whether any of us achieve the good ends for which we aim is usually, and in this particular context certainly, beyond our control. The only thing we can control is our own actions. If we use good means to achieve good ends and fail, I do not think we will be judged harshly by God or by history. But if we use dubious means to achieve good ends, then, succeed or fail, God may forgive us but history will not. •
Savitri Taylor is an Associate Professor and the Director of Research in the School of Law at La Trobe University.