Margaret Piper: Australian refugee policy
past and present, warts and wounds
"At first glance, refugee policy is much the same as Tehran traffic: complex, chaotic and behaving like an untethered hose. It is only when you understand the complex interplay of international and domestic factors that you can perceive that there are rules ... again not our rules ... but rules understood by the players. If we want to change policy we have to understand the rules and develop arguments that challenge the premises on which they are based. Only then can advocacy be truly effective."
7 December 2002: The Mudgee Muster: Rural Australians for Refugees, its Mudgee National Get-Together - 'We might have had the idea, but unless you'd turned up in your numbers and proved to be the energetic, dedicated, passionate people you are, Rural Australians for Refugees would still be just an idea.' The Events' Program, Report, and Presentations of various speakers at this event.
7 December 2002: The Mudgee Muster photos: RAR Supporters and Friends in Mudgee - Some casual shots, by Grace Gorman, of the Mudgee RAR get together: From politicians to refugees, they were all there!
7 December 2002: Chilout's Kate Gauthier at the Mudgee RAR Conference: The Cruel Facts - We must fight this government policy with every method at our disposal, which includes acts of civil disobedience. Every one of us has a skill or a resource available to us for this fight. It is our duty to our fellow humans to find this skill, and more importantly, use it.
7 December 2002: Justice for Asylum Seekers Alliance: Reception and Transitional Processing System - Speaking at the Mudgee Rural Australians for Refugees Conference, Grant Mitchell presents an alternative approach to dealing with the processing of asylum seekers for Australia: The Reception and Transitional Processing System provides a realistic, detailed and soon to be costed reform of the immigration detention system which resolves many of the serious problems...
7 December 2002: Martin Ferguson MP outlines Labor's Asylum Seekers and Refugee Policy - Labor's new policy for asylum seekers and refugees is a better way of protecting Australia and a better way of meeting people's legitimate concerns about how this nation is treating individual asylum seekers. The policy addresses three important strategies - protection of Australia, a new processing system and treating asylum seekers decently.
Australian refugee policy: past and present, warts and wounds
by Margaret Piper, Refugee Council of Australia
The first national conference of Rural Australians for Refugees is a very significant event. It is usual to think of rural Australia as the conservative heartland but here we have people who have travelled from far and wide - quite literally through drought and fires - to learn more about Australia's refugee policies and to show their disquiet about the current practices.
I understand that this weekend is about empowerment. It is about gathering the tools that will enable you to translate your concern into cogent arguments. It is also about gaining an understanding of the seeming chaos of current refugee policy in this country and this is where I come into the equation.
Chaos is something I came face to face with when I made my first visit to Iran 15 months ago. There I encountered drivers who made those in Rome and even Cairo look like rational and orderly beings. My emotions during my stay vacillated between white-knuckle terror when I was in a car and latent terror when not travelling - but knowing that all too soon I would once again be hurtling down an expressway at 160km/hr with no seatbelt and the driver having turned off his headlights to save the battery, or careering into a major intersection at 60 or 70km/hr.
You can therefore understand my excitement at the prospect of returning in September this year! My second visit enabled me to expand my repertoire of stories of near death experiences but it also gave me some interesting insights. With acquaintance came the recognition that the seemingly random acts of recklessness and disregard for human life were actually underpinned by a pattern. There were, in fact, rules ... not the rules that you and I know about ... but rules never the less. Rules that made sense to those behind the wheel and which somehow made the system "work".
At first glance, refugee policy is much the same as Tehran traffic: complex, chaotic and behaving like an untethered hose. It is only when you understand the complex interplay of international and domestic factors that you can perceive that there are rules ... again not our rules ... but rules understood by the players. If we want to change policy we have to understand the rules and develop arguments that challenge the premises on which they are based. Only then can advocacy be truly effective.
Let us begin first with the international dimension in recognition of the fact that what is happening in Australia with regard to refugees is inextricably linked to international developments, and that many of the tools on which we can draw in our efforts to assist refugees come from the international arena.
While there have been people fleeing persecution from the earliest recorded history, the international protection system as we know it today had its genesis in the chaos that prevailed throughout Europe after the Second World War.
There had been previous international agreements on refugees - in particular under the League of Nations - but these were considered obsolete and in need of revision. Concerned governments got to work to draft a new international agreement that would operate on a number of levels:
The statute of the agency charged with oversight of the Convention - the United Nations High Commissioner for Refugees - was adopted in 1950 and the Convention itself was brought into force in 1951 with the signature of the country that had been one of its most enthusiastic proponents - Australia.
The Convention both set out the definition of a refugee and the responsibilities of states towards refugees.
Later a Protocol was added to the Convention (the 1967 Protocol Relating to the Status of Refugees) which, most significantly, removed the geographical restrictions of the original Convention.
Over the next 40 years, the Convention and Protocol proved very resilient and effective, establishing in the collective consciousness important principles of refugee protection including:
In other words, the international community had developed a regime with a strong legal content, premised on a particularly strong conception of human worth and upon the individual's entitlement to respect for his or her dignity and integrity as a human being.
And this was the case - at least until the late 1980s when the interplay of a series of phenomena - some related, some not - began to unravel the refugee protection system that had operated for some 40 years.
Principal amongst these were:
The end of the Cold War
When the world was divided neatly into pro-communist and pro-capitalist camps, there was both a clear understanding of where responsibility lay and a commitment to meet this responsibility. Since the collapse of the Berlin Wall, the clarity has gone and so too has the commitment. It has become so much easier for States to abrogate any responsibility for brokering peaceful solutions to conflicts or for assisting the countries that are hosting large numbers of refugees.
A change in the nature of warfare
Wars are no longer between armies and about land. Rarely are they between States. Increasingly warfare is about religion, ethnicity or access to resources (such as oil, diamonds and tantalite) and is fought between those within (often internally imposed) borders. At the same time, external forces - more often than not the arms dealers - have a strong vested interest in prolonging the conflict. Increasingly too, civilians are the direct targets of combatants and sexual violence has become a weapon of war.
When we talk about globalisation it is often in the context of the movement of capital and commodities - but we have also seen a parallel increase in the movement of people. There are some 150 million people today living outside their country of origin and about one third of these migrants do so without the permission of the countries in which they are working. In the vast majority of cases, it is a desire for a better life that has motivated this migration but the same access to technology (first radio, then television and now the internet) that told people that there was a better standard of living for the having in other places, also told victims of persecution that they had rights and that they could escape the persecution they were experiencing. Similarly, increasingly informed refugee populations began to recognise that they had options other than to meekly accept deficient protection offered to them in overstretched countries of first asylum.
A rise in people smuggling
As indicated above, not all people move through conventional channels and for many fleeing persecution, access to a passport and a visa is entirely out of the question. In many parts of the world, those who had previously been involved in the lucrative but risky trade of drug smuggling, turned their skills to the equally lucrative but much less risky (from their perspective) trade of moving people.
A diminished commitment to burden sharing
As alluded to earlier, with no political points scoring to be made, there is no longer the same motivation for States to support the victims of oppression. Last year the United States, Canada and Europe spent 500 times more on keeping people out than on assisting refugees in countries of first asylum and in this year's Australian Federal Budget we saw an allocation of $2.8 billion for border protection compared to $7.3 million for core funding for UNHCR - in this case not 500 times but a staggering 3,800 times more for border protection. Meanwhile countries of first asylum - many of which are amongst the poorest countries on earth - are forced to bear the burden with minimal assistance. Take the case of Iran, host to 2½ million refugees and recipient of a mere $60 million per annum which amounts to only 2.4% of the direct costs to the Iranian Government of hosting the refugees. The lack of adequate support to host countries has had a direct impact on the effectiveness of the protection provided. This in turn has generated a lucrative market for people smugglers resulting in the aforementioned growth in the number of people seeking protection outside their region (a phenomenon often referred to as secondary movement).
A revival of the Far Right
In many parts of the developed world we have seen a swing away from political parties that espoused so called socialist principles towards right-wing hard-liners, running on exclusionist and economic rationalist platforms.
Initially the impacts of these developments on refugee protection was either hidden or ignored. "Business as usual" prevailed until events so catastrophic occurred that the pretence of an effective protection regime could no longer be sustained. First came Rwanda where not only did the international community fail to avert the massacre that observers foretold but also very large numbers of refugees - no one knows how many, but easily numbers in the hundreds of thousands - who were under international "protection" disappeared in the Democratic Republic of Congo. We also saw the events in Srebrenica where the UN showed they were powerless to prevent Bosnian Serb militias from massacring over 7,000 men and boys who had been under UN protection.
Blame flew in many directions. I recall that the 1997 meeting of the UNHCR Executive Committee, heated exchanges occurred in the plenary session and behind closed doors. Many blamed the UN, failing to recognise in doing so that the UN is not an entity unto itself but a functionary of governments. Others focused attention on the UN instruments, in particular the Refugee Convention, arguing that is outdated and unworkable in today's complex geo-political climate.
The international refugee debate that was sparked by Rwanda and Srebrenica soon moved on, however, to encompass issues flowing on from the aforementioned international developments and which were closer to the hearts (or political aspirations) of many western states. Two opposing schools of thought emerged.
The first could best be described as the Sovereignty Model. Those who ascribe to this, believe in the primacy of notions such as sovereign rights, the security of borders and the importance of control. They argue, often with much passion, that the Convention is outdated, unworkable, irrelevant and inflexible - and simply serves as a complicating annoyance in today's environment of mixed migration flows and people smuggling.
The fact that the Convention takes away a state's sovereign right to control entry (albeit for very sound humanitarian reasons) is at the heart of these criticisms. They have felt compelled to devise a range of measures to remove or minimise this interference, measures such as:
Underpinning these is the strongly held belief that while there may be problems in this world, they are not ours.
Proponents of the sovereignty model also seem intent on winning popular support for their ideas and wherever you see the dominance of this model, you also encounter strong discourse in the media about threats to national security and public order originating from the arrival of unauthorised and undocumented entrants. The government then positions itself to be able to respond to protect the community through the introduction of new and more restrictive measures. This discourse almost inevitably leads to fuelling community fears, and this in turn leads to racism, xenophobia and intolerance.
Fortunately there is another school of thought which can best be described as the Rights Model. You will detect in this remark a declaration of personal preference. I should also at this point acknowledge the contribution of the writings of UNHCR's Director of the Division of International Protection, Erika Feller, and Oxford University professor, Guy Goodwin Gill, to my opinions on this matter.
The Rights Model opposes the aforementioned claims of states on the grounds that they are based on generalised and suspect powers. It demands that refugees, asylum seekers and migrants be considered as individuals, each with a potentially justifiable claim to protection, whether from persecution or in respect of other relevant human rights.
This model has at it core the centrality of protection and holds firm to the view that refugee rights are human rights - a point most eloquently argued by Erika Feller at the recent session of the UNHCR Executive Committee.
Adherents to this model also believe that the Refugee Convention is not obsolete. A close examination of the Convention and its application over the years will show that it has proved to be an remarkably robust and flexible instrument that has stood up remarkably well. Many of its supposed shortcomings are not, in fact, failures of the instruments but of state interpretation of what it is, and what it is not. The Refugee Convention is not and was never intended to be the panacea for all forms of displacement. Further, refugee law is not static. Rather it is a dynamic body of principles which has - and must retain an inherent capacity for adjustment.
Global Consultations on Protection
Fortunately for refugees there are a sufficient number of adherents to the Rights Model within governments, UNHCR and the NGO community who were able to seize the opportunity presented by the 50th anniversary to take concrete steps to re-examine and refocus the Convention for the 21st Century.
This was begun under the umbrella of the Global Consultations on Protection that were run under UNHCR auspices to mark the 50th anniversary of the Convention. This process aimed to seek to promote the full and effective implementation of the 1951 Convention and to develop complementary new approaches, tools and standards to ensure the availability of international protection where Convention coverage needs to be buttressed.
The Consultations were designed along three parallel tracks:
The 1st Track sought to strengthen the commitment of States Parties to respect the centrality of the 1951 Convention and its 1967 Protocol in the international refugee protection system - and to promote further accession to both instruments.
The 2nd Track comprised a series of "expert roundtables" intended to arrive at greater clarity about various aspects of refugee law about which there is contention. The topics covered included the thorny issues of exclusion, cessation, membership of a particular social group, gender-related persecution, internal flight alternative, illegal entry and family unity.
Track 2 also allowed for an important discussion about an area of refugee law that has received comparatively little attention during the last 50 years: that of supervision. Article 35 of the Refugee Convention vests in UNHCR certain supervisory powers for the implementation of the Convention that have never been clearly defined. What the round table sought to do is to set down how this can operate.
The 3rd Track allowed discussion about a number of protection policy related matters, including issues not covered adequately by the 1951 Convention. Topics covered were the aforementioned gaps - things like protection in situations of mass influx and the refugee protection with individual asylum systems.
The results of the Global Consultations were consolidated into the Agenda for Protection which was adopted in Geneva in early October. The Agenda sets out six goals for UNHCR and States for the years ahead:
It is likely that as a result of this process we will see the development of complementary protection mechanisms such as:
This is undeniably a very important and exciting process and for those who wish to follow it more closely - it is documented on the UNHCR website at http://www.unhcr.ch/
The Agenda for Protection is complemented by other initiatives that are very much the creation of the High Commissioner for Refugees, Ruud Lubbers. These include:
Convention Plus: there is acknowledgement that the Refugee Convention, by itself, neither addresses all of the concerns of States nor meets the protection needs of all displaced people in today's world. The High Commissioner is thus promoting the "Convention Plus" process that will seek to supplement the Convention in areas that it does not adequately cover. This will involve building new alliances and developing plans of action to cover specific circumstances, underpinned by a realisation of the need to define more clearly the responsibilities of various parties and to ensure that assistance is provided when and where it is needed.
The UNHCR 2004 Process
The UNHCR 2004 Process: UNHCR's current mandate from the UN General Assembly is due to expire at the end of 2003. The High Commissioner has set himself the goal redefining UNHCR's governance structure, position within the UN system and funding mechanisms so that when the new mandate commences of 1st January 2004, UNHCR will be have greater operational strength and greater capacity. As the High Commissioner explained:
Currently UNHCR is boxed as a purely "humanitarian" agency. Yet UNHCR's work also relates to prevention, conflict resolution, peace building and development. To achieve durable solutions in accordance with UNHCR's mandate requires close cooperation and strengthened partnerships with the UN's development actors, the Breton Woods institutions and the peace and security pillars of the UN.
Such international initiatives are very positive but we must not loose sight of the fact that the overall trend in western states is towards the adoption of more and more restrictive measures. Given that the implementation of the Agenda for Protection and the associated measures is entirely dependent on the goodwill and commitment of these same states, the challenge that lies ahead is formidable.
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Let us turn now to the domestic arena where the international developments about which I have spoken are juxtaposed with some characteristics that are peculiar to the Australian political and legal environment. There are of course quite a number of these but I suggest that the following might be key:
1. Adherence to the "Orderly State Theory":
This is the notion that the world is a nice neat place and everything should occur according to predetermined criteria. UNHCR says that there are three durable solutions for refugees (repatriation, local integration and resettlement) and thus all refugees should either go back, stay where they first went or go through UNHCR to move to another country. But what happens when you cannot go back, and when it is not safe for you to remain, and when it is not possible or feasible for you to seek resettlement? In many countries of first asylum violence is endemic and there is no effective protection. Refugees are thus looking further a field for protection, and some will engage assistance to get this. The world is not a nice orderly place. Durable solutions remain elusive for many refugees and it is a function of basic human nature that people will go to extraordinary lengths to find protection for themselves and their families - as is their right. This fundamental truth is, however, apparently lost on the Australian government.
2. Politicians will go to any lengths to win votes:
In the lead up to the 2001 election we had the alarming spectacle of senior politicians grasping at rumours and lies and scurrilously twisting these to convince the public that asylum seekers are unworthy of sympathy. We saw the unqualified pronouncements that children were thrown overboard (which they were not), that parents stitched their children's lips together (which they did not) and that asylum seekers were terrorists (despite a denial of this by no other than the head of ASIO).
This demonstrates some very worrying things about our politicians. It shows that either they see no need to check their facts if given a nice juicy story that is likely to capture the public's imagination or, more worryingly, that they will knowingly lie to the Australian public. Take this one step further, we now have a situation where it has been proven that politicians and senior staffers did mislead the public, and not a single person has been publicly held accountable. We have also had proof that the politicians involved have no respect either for who refugees and the international protection system on which their lives depend.
3. Refugees are used for many political ends:
So much of what is said and done in Australia on refugees is not ABOUT refugees. I suggest that politicians are not as obsessed about refugees as many would think. There are many issues that are of far greater concern to them and refugee policy has become a cunningly used tool to further their larger agendas. Refugees are variously used as:
4. The absence of a human rights framework:
Australia is unique in the developing world in that we have taken no systematic steps to give substance domestically to our international human rights treaty obligations. We do not have a Bill of Rights, nor have we incorporated the treaties into domestic law. This means that while we have signed all of the relevant human rights treaties, there is no real obligation on the government to comply with them. Further, there is no real domestic remedy for anyone whose rights have been abused because the courts have no jurisdiction.
The absence of a domestic system of rights protection worked well enough when there were governments that were prepared to accept guidance from the UN human rights monitoring bodies but in recent years we have seen a predictable reluctance by the Government to countenance any form of criticism or any negative determinations. Further, the Government has used the "sovereignty" excuse ("we are the elected government of this country and we will not have foreigners telling us what to do"), to convince an ill-informed public that it is justified in rejecting the external findings.
I fear that most Australians are not aware of the implications of this situation. We have already seen the passage of legislation in the refugee and indigenous affairs arenas that is contrary to international treaty obligations. This sets a very dangerous precedent and the practice could well extend to other areas with far broader application. We need to become more informed and more vigilant. We need to come to terms with the fact that "human rights" are not just the things we criticise other countries for not having. and we need see ourselves as "rights holders".
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So how do we bring about change?
This is not gong to be easy. This is not a new issue - there have been a group of us working on detention issues for over a decade - long before they hit the headlines. We have learnt from bitter experience that it is a hard slog, with many setbacks along the way. Experience has, however, also taught us that change is possible.
This weekend is very much about working out how to make that change happen. It should also be about learning about how to recognise when change happens - and the importance of some seemingly minor changes. Take for instance the changes announced to the Government's detention policy during the week. They might not have seemed much of a back down and I suspect did not satisfy you - but the amount of work that went into making those changes must not be under-estimated, nor should we overlook the courage of the politicians who worked very hard to make them happen. So too with the new ALP policy. Yes, it does not go far enough - but it does represent the first real break from bipartisan policy that we have seen in the last decade. It is a step towards where we all want to go.
This is an issue on which I could speak for much longer but I do not have time. Besides, it will be the subject of discussion in many sessions over the next day and a half. Rather, I will take the liberty of using the time I have left to share with you some of the lessons I have learnt over my years as a refugee advocate:
recognise the complexity of the issue
Remember the injustices that have brought us together do not occur in isolation but are part of a complex matrix of domestic and international factors that I have only scratched the surface of in my presentation today. If you focus only on the micro level, you leave out many relevant facts.
don't forget the positive
All of the focus on asylum and detention issues - however warranted - has meant that we often lose sight of the fact that the vast majority of refugees coming to this country arrive through the Refugee and Special Humanitarian Program. Australia has been, and remains, one of the most generous countries on a per capita basis in terms of assisting refugees identified by UNHCR as being in need of resettlement. Further, the settlement services provided to these refugees are, without doubt, more advanced than in any other country. Yes - there are problems - many resulting from the recent changes to funding structures - but this does not detract from the relative superiority of services such as the national network of torture and trauma centres, the Adult Migrant English Program (AMEP), the Translating and Interpreting Service (TIS) and the Migrant Resource Centres. We have to be careful not to give the impression that everything to do with refugees is "bad". This devalues the excellent work being done by those in the settlement field and also influences the way that refugees feel about the support provided to them.
think carefully about your actions - avoid collateral damage
Sometimes actions motivated by the very best of intentions can have negative and even dangerous consequences for the people we are trying to help - and many times these are not obvious. It is very important that care be taken not to do anything that will identify an asylum seeker in the public domain (especially in emails) without the informed consent of the person concerned. Protest actions, especially in the vicinity of detention centres, can also have unintended results detrimental to those we want to help. Hosting asylum seekers and TPV holders is another area where there are traps for unwary players. Think carefully - and please seek advice from groups like the Refugee Council.
I know that when things are bad we want them to change NOW but the reality is that this is unlikely to happen. This is a marathon not a sprint and we must pace ourselves accordingly. If we give up because we are burnt out by frustration, the policies will never change.
don't canonise asylum seekers
We accuse the Government of portraying all asylum seekers as rorters, queue jumpers and criminals but going to the opposite extreme in their defence is not helping the debate. Not all asylum seekers are refugees. Not all asylum seekers have claims worthy of consideration or support. Not all asylum seekers are honest and upstanding people. But all asylum seekers have rights. All have a legitimate right to have their cases processed fairly and expeditiously. All have a legitimate right to be treated with respect and in accordance with international human rights norms. These are the things we should be focusing on.
It is so easy to tell someone in distress that everything will be alright and that they will be able to stay, but unless you know for a fact that this is the case, this can be seriously counterproductive. The reality is that some people will be required to return to their countries of origin or to a third country. If this is the case, it is much more humane to help that person to think constructively about their future after return than to allow them to keep grasping at straws.
There is more than enough for all of us to do - and then some - so the best advice I can give is to look around at what others are doing and think about the best way to either link in with this or to complement it in some way.
check your facts
There is an awful lot of misinformation out there - and lots of things that are purporting to be facts that are just plain wrong. Make sure you check and double check before you go to print - otherwise you can expend a great deal of effort and not get anywhere near hitting the nail on the head. And there is nothing the Minister for Immigration likes better - it seems - than pulling holes in other people's arguments on the basis of factual slips.
There are a number of us at the Refugee Council, Amnesty International and other established groups that are more than happy to help you check facts and develop arguments so that they are sound. Call us. Ask our advice.
care for yourself
This is the most important one - especially for those working with asylum seekers and TPV holders. Vicarious traumatisation is a very real and debilitating consequence of this work. You need to learn about it, look out for signs and give yourself permission to take remedial action. You also need to look out for vicarious trauma in others and be responsible for encouraging them to seek help or take some time off to become strong again. I have said it before and I will say it again - we are part of a long, hard struggle and we have to ensure that we have enough good people still standing to take us over the finishing line.