Legal Muddling in the Muddy Pacific Solution

Frank Brennan

An edited version of this article appears today in the Canberra Times, 30/3/07

(in preparation for the Manning Clark House Weekend)

Kevin Andrews, the new Minister for Immigration, has sounded muddled in his statements defending the government’s decision to send 83 Sri Lankan asylum seekers to Nauru for processing. It is not all his fault. Even when he gets up to speed in the portfolio, there will still be much confusing complexity. The “Pacific solution” is now so morphed as to be incoherent. 

Philip Ruddock was the proud evangelist for the original Pacific solution. Having failed to convince the Indonesians to lease us an island or two from their archipelago for the warehousing and processing of boat people intercepted between Indonesia and Australia, he decided on the second best option – transporting asylum seekers to a Pacific island once they had arrived within the Australian jurisdiction but before they had reached the mainland. The government wanted to send a double message. First, in the wake of Tampa, it wanted to send a message to people smugglers and their prospective clients: “Don’t bother heading for Australia by boat and without a visa. You won’t get here. You will be intercepted. You will spend a long time in detention, in dreadful conditions, on a remote Pacific island. And even if you can prove that you are a refugee you will never be allowed to settle in Australia.” Second, in the wake of Pauline Hanson’s One Nation stand on refugees, the Coalition government wanted to send a message to the Australian people, “Vote for us because our border protection policy is tougher than Labor, the Democrats and the Greens.” The second message will backfire if the first message is no longer apt. 

Back in 2002, John Hodges, ex-Liberal Minister and the head of the government’s Immigration Detention Advisory Group, described Nauru as “by far the worst of the detention centres”. Given that detention without a court order was unconstitutional in Nauru, Mr Ruddock saw a need to change the description of the accommodation arrangements in Nauru. The Australian government websites were amended and all reference to detention was omitted. The first message started to change. 

By 2005, many Coalition members were feeling very squeamish about the long term treatment of asylum seekers who had been “housed” in Nauru for more than three years. Last year in attempts to appease Coalition senators, the government started talking up the delightful conditions on Nauru. The government website now declares that the centres in Nauru are “maintained on an ‘open centre’ basis which allows residents freedom of movement between 8am and 7pm from Monday through Saturday”. The website boasts air-conditioned accommodation, prayer rooms, recreation and sporting facilities, and holistic programs including: 

Under the Pacific Solution, 958 asylum seekers have established their refugee claims and been resettled. 96% of them have ended up in Australia or New Zealand – the majority of them in Australia. No failed asylum seekers have been forcibly repatriated. Most of those who cannot establish asylum claims are voluntarily repatriated on receipt of a financial payment. All this could be done within the Australian jurisdiction, on Christmas Island. So what is the difference in outcome? And what is the message being sent? It is no deterrent to bona fide refugees to tell them that they will end up in either Australia or New Zealand. It is no deterrent to tell them that they will be held in an open centre with appropriate facilities. They are fleeing dreadful persecution. 

Last week Mr Andrews was unaware that his own public servants would continue to process the refugee claims on Nauru, just as they would if the asylum seekers remained on Christmas Island. There remain two material differences between Nauru and Christmas Island. Failed asylum seekers on Nauru have no right of appeal to the Refugee Review Tribunal or to the courts. Wisely, the government does not make too much of this difference in public because it leads to the inference that decent Australian public servants are likely to make different decisions if their deliberations are made out of the jurisdiction and without the prospect of review. When you are trying to change the culture and the public image of a government department that has had a rough trot with cases like Cornelia Rau and Vivian Solon, this is not a good look – particularly from an earnest lawyer like Andrews. The Sri Lankans will be an interesting test case of the public service’s integrity. Last year, they ruled that all 43 Papuans on Christmas Island were refugees. There is every reason to expect that most or all of the 83 Sri Lankan Tamils are refugees or persons who could not return home for fear of torture. 

The second difference is that lawyers and do-gooders like me can be kept out of Nauru by a government that acts in an arbitrary and capricious manner. I speak from experience. I was issued with a visa to Nauru in 2003, having accepted hospitality and an invitation from the local Catholic parish. The government cancelled my visa at the last minute informing the parish priest, “Noting that Fr Brennan's request to enter Nauru is not for the purpose of conductive parish or pastoral work with the Catholic mission, I wish to inform you that his application is denied at this stage.” I appealed the decision. The Minister did not even acknowledge the appeal. 

The morphed, useless, expensive and discredited Pacific Solution now amounts to a policy aimed at keeping lawyers away from asylum seekers and immunising public servants from scrutiny by courts and tribunals. Mr Andrews was an accomplished barrister before entry to Parliament. Unlike his ministerial predecessors, he will continue to look uncomfortable and confused as he defends an incoherent policy from yesteryear. 

Fr Frank Brennan SJ is professor of law at Australian Catholic University and professor of human rights at the University of Notre Dame. His latest book is Acting on Conscience (University of Queensland Press, 2007.

Update: The Australian today reports that Indonesia could be included in the Pacific Solution under a proposal from Immigration Minister Kevin Andrews:
"Indonesia may join Pacific Solution: Andrews" (The Australian, 30/3/07)

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