Commentary | 24 July 2015

Labor’s unsettling dilemma

Labor’s unsettling dilemma

Alan Dupont

The Australian

24 July 2015

Click here for the online text.

  • Alan Dupont

Labor’s unsettling dilemma

Alan Dupont

The Australian

24 July 2015

Click here for the online text.

  • Alan Dupont

Executive Summary

As the ALP debates the vexed question of asylum-seekers at its annual conference, Labor hardheads know that any softening of the party’s position will be ruthlessly exploited by the Coalition and almost certainly condemn Labor to an extended period in opposition, such is the toxicity of the issue in the electorate.

This is why Bill Shorten is prepared to risk a fight on the conference floor with his pre-emptive declaration that Labor must accept boat turn-backs and offshore processing as essential elements of a reconfigured asylum-seeker ­policy.

Unfortunately, the emotion and passions generated by nearly two decades of heated domestic debate has made it extremely difficult to have a rational discussion about asylum-seekers in Australia; it is simplistically and erroneously framed as a humanitarian or national security issue when in fact it is both.

Shorten knows he has to craft a workable, politically palatable policy on asylum-seekers that bal­ances competing national security and humanitarian considerations. But this won’t happen unless the party, and the Left in particular, better understands the push-pull factors that are inducing people to leave their countries of birth for an often uncertain future in foreign lands.

A critical first step is recognising that the dramatic increase in the number of people seeking asylum in Australia across the past decade is neither unique nor likely to diminish with time. On the contrary, the unremitting, unregulated flow of people seeking a new life in a country other than their own is a global phenomenon the scale of which is historically unprecedented. So new policy responses are urgently required.

Last month, the authoritative UN High Commissioner for Refugees released its annual global trends report. It declared that the forcible displacement of people at the end of last year had risen to 59.5 million, the highest number recorded and the biggest leap in a single year (8.3 million).

This means that one in every 122 people is a refugee, internally displaced within the borders of their own country or actively seeking asylum. If the 59 million people were a country, it would be the world’s 24th largest.

In his accompanying comments, high commissioner Antonio Guterres said: “We are witnessing a paradigm change, an unchecked slide into an era in which the scale of global forced displacement as well as the response required is now clearly dwarfing anything seen before.”

The historical record bears this out. There have been two comparable surges of displaced people, both of them after the 20th century’s two most destructive wars. The Russian Revolution and the collapse of the Ottoman and Austro-Hungarian empires in 1917-18 caused an exodus of 20 million Europeans and Russians, leading to the establishment of the first international refugee regime under the aegis of the League of Nations.

A second major displacement of mainly Europeans, numbering between 20 million and 30 million, occurred immediately after World War II. This resulted in the creation of the UNHCR and the foundational 1951 UN Convention Relating to the Status of Refugees. Along with the 1967 protocol, this remains the definitive international agreement governing the treatment of refugees.

However, these displacements, including those stemming from smaller regional conflicts in Korea and Vietnam, were episodic, relatively short-lived and largely the result of wars between states. Today’s displacements, by contrast, are longer lasting, endemic, involve far greater numbers of people and have multiple push-pull causes.

Conflict is one of them. But as the fragmenting Middle East illustrates, contemporary conflicts are likelier to be within states rather than between them, although their consequences are seldom confined inside the borders of a single country.

The burgeoning number of seemingly intractable conflicts globally has made it difficult to safely repatriate refugees, the preferred outcome for the UNHCR.

Last year only 126,800 refugees were able to return to their home countries, the lowest number in 31 years.

But conflict is only one of many push factors contributing to the upsurge in asylum-seekers. Unregulated population movements also are being stimulated by a dramatic rise in violence perpetrated by terrorist groups; intensifying ethnic and religious tensions; government policies; environmental decline; economic opportunism; and the involvement of criminal groups in people-smuggling.

The numbers tell the story. In 1975, there were only about 2.4 million refugees globally. But by 1995 the number of refugees and “people of concern” to the UNHCR had increased more than tenfold to 27.4 million, before more than doubling again in the following two decades.

The impact of two other linked push factors — population growth and reduced living space — makes it likely that the mass displacement of people will be with us for many years to come.

When the UN refugee convention was written in 1951, the world’s population was 2.5 billion. In the intervening 65 years, our population has nearly tripled to 7.3 billion while living space has shrunk because of demographic pressures exacerbated by environmental degradation.

Unlike the 19th century, when 5 per cent of all Europeans migrated to distant imperial colonies and emerging proto-states in Africa, Australasia and the Americas, there are no bountiful new worlds beckoning the victims of war, persecution and poverty. So asylum-seekers are forced to share already crowded space by crossing borders when conditions in their own country become fraught.

If they have a choice, then increasingly they bypass countries of first asylum and head for the modern equivalent of the new world — developed countries, such as Australia, that offer more attractive lifestyles and the promise of a better future.

For better or worse, such ­choices are available to more and more people as the barriers to movement come down. Witness the removal of border controls in Europe, the ease of international travel, the explosion in knowledge and information associated with the internet, and the emergence of sophisticated people-smuggling networks.

Employment opportunities, wage levels, generosity of welfare systems, ease of access and accessibility of refugee determination tribunals are other influential pull factors in determining asylum-seeker choices, as Labor under Kevin Rudd discovered to its cost after first denying their relevance.

Shorten’s next task is to dispel the myth that Australia’s response to the problem has been cruel and unfair, and has tarnished irrevocably our reputation internationally, including within our own region.

Much has been made of the need to find a regional solution and to adhere to the Bali process, an exhortation frequently made by former Indonesian foreign minister Marty Natalegawa, in his persistent criticism of Australia’s approach to asylum-seekers. Yet Australia’s regime for managing and assessing asylum-seekers is, in most respects, no less fair or ­humane than elsewhere in the world, especially in Asia.

Camp conditions for those awaiting refugee assessment or repatriation in Southeast Asia are far worse than those at Australia’s offshore processing facilities on Manus Island and Nauru. And despite Natalegawa’s claims, there is no workable regional solution. Indeed, it is the absence of one that has complicated Australia’s response and forced countries to deal with the issue on an individual, ad hoc basis.

The plight of the Rohingya is ­illustrative. In April this year, thousands of Rohingya fleeing persecution in Myanmar were left stranded in the Andaman Sea for weeks when Thai authorities refused them permission to land and pushed them back to sea, as did Indonesia.

The Association of Southeast Asian Nations, the region’s premier multilateral organisation, was impotent in dealing with the crisis and conspicuously silent on the underlying human rights dilemma posed by Yangon’s treatment of its Rohingya minority.

The domestic focus on Australia’s controversial boat turnback policy obscures the fact many of our Asian neighbours have effectively adopted the same strategy. The hard-pressed Europeans may soon follow suit by taking more aggressive measures to disrupt people-smuggling, borrowing from Australia’s experience.

It is also an unfortunate but seldom mentioned fact many of the kingpins of the people-smuggling trade live in Southeast Asia and are protected by the local police and military in exchange for bribes and even equity in this illicit and iniquitous trade, which is morally indistinguishable from human trafficking.

Far from being an outlier, Australia’s present asylum-seeker policy may well be the future as more and more states struggle to deal with the rising tide of dislocated people and undocumented migrant labour that has put enormous human, financial and social strains on the resources and goodwill of receiving countries, as well as exacting a toll on the asylum-seekers.

These costs are often ignored or downplayed in Australian debates about asylum-seeker policy. But they are substantial and must be balanced against the rights of asylum-seekers in determining what is a fair and reasonable policy, not least because of the opportunity costs involved.

Every dollar spent on the enormous industry that has grown up around asylum-seekers is a dollar not available to spend on foreign aid, immigration, health, education, disabilities or aged care. These costs clearly had become unsustainable by the time the Coalition returned to government, rising from $85 million in 2007-08 to nearly $3 billion by the time Labor left office.

Given the record numbers of asylum-seekers and displaced people globally and Australia’s much weakened fiscal position, any softening of Labor’s position would risk a budget blowout and make a return to surplus even more problematic.

The costs for our neighbours are also considerable, rising in line with surging asylum-seeker numbers. In the past three years, about 160,000 people have sought refuge in Thailand, Malaysia and Indonesia, while across Asia as a whole there was a 31 per cent increase in displacements last year alone, taking the overall figure to nine million.

If these trends continue, tougher measures inevitably will be taken by regional states to slow the incoming flow of people, including boat push-backs and tighter border control measures.

As to the prospects of a regional solution, we are still a long way from this nirvana. However, even if one is found it is likely to result in large numbers of asylum-seekers returning to their countries of origin from the many holding or transit camps in Asia.

This was the game changer that, in 1998, brought to a conclusion the long-running Vietnamese boatpeople crisis after ASEAN issued an ultimatum to Vietnam that it must take back the remaining 40,000 asylum-seekers still living in camps across the region as they were not bona fide refugees and therefore not entitled to resettlement in another country.

A third problem for Shorten and the Labor leadership is how to address significant flaws in the refugee convention, an issue on which the Left has been all but silent. Designed in an earlier era for a different set of political and social circumstances, the convention is outdated and manifestly ill-equipped to deal with the irregular mass movement of people, a point many UNHCR officials privately concede.

It must be remembered that the convention was written primarily to manage the post-World War II resettlement of European refugees dislocated by the war, or who had been forced to flee Adolf Hitler’s ethnic pogroms and targeted persecution of so-called non-Aryans.

Winston Churchill’s 1946 Iron Curtain speech, presaging the Cold War, provided a clear political subtext for the convention, enshrining the notion that the right to live without fear of persecution was universal and ought not be subject to the whims of dictators and oppressive regimes.

European governments in the 17th century had accepted the notion of refugees as entitled to the status of political exiles and the convention codified this historical understanding.

But the notion of exile is hardly a solution for today’s irregular migrants, many of whom, if not most, do not meet the definition of a refugee under the terms of the convention — that of a person who, owing to a “well-founded fear of being persecuted … is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”.

They include 38.2 million internally displaced people within the borders of their own countries; 1.8 million asylum-seekers awaiting a determination of their status; and an estimated 30 million undocumented labour migrants who are working illegally in a foreign country but do not feature in UNHCR statistics.

In response, the UNHCR has formulated a concept of “people of concern” that goes well beyond its original, narrowly defined remit, widening the scope and therefore the number of people requiring international care, support and potentially a new home.

A further problem is that the refugee assessment process has become more complex and less rigorous because of the difficulty of obtaining reliable documents and carrying out reliable background checks in the world’s many conflict zones. Coaching by people-smugglers, who typically advise their clients to throw away their bona fide travel and identity documents, has not helped.

Aside from definitional creep and assessment flaws, there are equally worrying failures of proportionality and fairness. For example, the convention does not penalise signatory countries for persecuting or expelling their citizens. Nor is there a requirement for burden-sharing between states. It takes no account of the costs or impact on receiving states and priority is given to asylum-seekers on the basis of their mobility rather than need.

The convention’s obligations do not extend to non-signatory states such as Indonesia and Thailand, which are important transit countries in the people-smuggling trade. There is also a significant disparity between what Australia gives to support the UNHCR and the much greater costs of running a supplementary asylum-seeker regime, which was never intended to be the case when the convention was first conceived.

These are the complexities and hard realities confronting Shorten as he begins the necessary and long overdue process of reforming Labor’s unworkable and unpopular asylum-seeker policy.

As the Opposition Leader argues, boat turn-backs and offshore processing must be integral to a policy that properly allows Australia to control its borders and regulate its immigration and refugee programs, as no serious government would tolerate an open-border approach.

When emotion clouds judgment the inevitable result is bad policy. Boat turn-backs and offshore processing are the best guarantees that we won’t see a repeat of the deaths of hundreds of innocents at sea, which is surely a better human­itarian outcome than a resumption of the people-smuggling trade. Those who view the asylum-seeker issue exclusively through the lens of human rights must understand that the unregulated flow of people poses security challenges for receiving countries that should not be dismissed as an exaggeration or subordinated to the rights of asylum-seekers.

These are particularly evident in Australia’s neighbourhood where the existence of large enclaves of displaced people and undocumented labour migrants has shifted international attention from the plight of these itinerants to the consequences of their flight.

Receiving states understandably worry about the harmful effects of irregular migration, especially during periods of political and economic turbulence. Cross-border movements of refugees and illegal migrants can ­impose heavy economic and financial burdens on developing countries, seriously destabilise border regions and aggravate ethnic and religious tensions.

Even in cosmopolitan, migrant-friendly states such as Australia, the sudden influx of significant numbers of people from completely different societies can be difficult to absorb ­without social and political perturbations — especially if they are seen as having entered Australia illegitimately, a criticism often made by migrants who have gone through a rigorous and lengthy process to qualify for citizenship.

Add to that genuine concerns about asylum-seekers with criminal backgrounds and terrorist sympathies, and it is not hard to see why governments across the world are adopting tougher, more discriminating asylum-seeker regimes.

But Shorten needs to go further if he wants to create a forward-looking asylum-seeker policy fit for the times. He should explicitly acknowledge that pull factors, such as the ease of admission, welfare support and employment opportunities, are often key arbiters in determining the preferred destination of asylum-seekers.

Australia is already an attractive receiving country because of its prosperity and attractive lifestyle, so any policy retreat could well have a multiplier effect, exponentially increasing the number of people wishing to come here.

Finally, Shorten should take the bit between the teeth and call for reform of the refugee convention and the UNHCR.

It is a sobering reminder of how entrenched the asylum-seeker problem has become that the UNHCR initially was given only a limited mandate and was not expected to last more than three years. But it also highlights how much the problem of asylum-seekers has outgrown the coping capacity of international agreements and the existing refugee instrumentalities.

It won’t be easy to rewrite the convention or to reform the UNHCR. But they are necessary steps on the way to creating a more efficacious regime for managing one of the world’s most pressing humanitarian and national security challenges.

 

Alan Dupont is professor of international security at the University of NSW and a non-resident fellow at the Lowy Institute.