“If a blind man leads a blind man, both will fall into a pit.” (Jesus in Matthew 15:13-14)
Australia’s new refugee policy and associated consequences for human rights in the region
Hot on the heels of the ‘planking’ fad, comes a new Australian craze: the asylum seeker shuffle! (Or for those who prefer a catchy acronym, let’s affectionately call it ASS). The general gist is that the Australian government sends asylum seekers who arrive to our shores via boat away to human-rights poor settings, and in return, the receiving country sends a few extra back our way. Re-set, breathe a sigh of relief, then play again! In fact, no need to limit the game to just two players… everyone is encouraged to come play the asylum seeker shuffle… come one, come all! The only rules of engagement are that you must NOT have signed the Refugee Convention and you must have a poor record on adherence to human rights. The other rules are… well… there are no rules!
Just like the planking phenomenon, ASS is in equal measure both inane and as(s)inine, and infinitely more dangerous. The policy announcement by the Gillard government on the 7th of May that a bilateral agreement had been entered into with Malaysia, under which 800 new arrivals by boat would be sent into Malaysia’s unwelcoming arms and detention centres in return for our acceptance of 4000 pre-screened refugees, is mind-boggling. The evidence of Malaysia’s treatment of migrants and asylum seekers in detention centres and residing in the wider community is widely known, and severely disturbing.
In certain respects, the ASS bears similarities to ‘planking’: the government for all intents and purposes is lying prostate with its head in the dirt, while Malaysia does whatever it wants out of eyesight, and hopefully, earshot. See no evil, hear no evil. Forget political posturing, we now have political planking! By promising to remain in a supine position while the Malaysian government continues its atrocious treatment of asylum seekers unabated, Australia is tacitly giving its assent to the violation of human rights, turning a blind eye not only to this but to its own international obligations under international human rights and refugee law. In criminal law we call this wilful blindness. In international refugee law, we call it refoulement, the prohibition against which is provided for in Article 33 of the 1951 Refugee Convention, which stipulates that:
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion.
Non-refoulement is a non-derogable obligation (an obligation from which no derogation is ever permissible) and has been described as the ‘cornerstone of international refugee protection’. In addition to this, Article 3(1) of the Convention Against Torture, of which Australia is also a party, provides that: ‘No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’ Clearly someone forgot to send Australia the memo.
As one friend I know put it, we appear to be enduring an epidemic of idiocy in regards to migration policy in Australia at the moment. And stupidity is becoming contagious. It started with Malaysia. Then Thailand piped up and said it wanted a piece of the pie too. Now Indonesia is considering jumping on the bandwagon. What do these countries have in common? For starters, a renowned poor record in regards to the humane treatment of migrants, asylum seekers and refugees. This prompts me to ask: what kind of example is Australia setting for our neighbours in the region? Our supposedly highly developed country; a fair, free and democratic land to be differentiated and delineated from the morally obtuse in our region above all else.
Burma? Malaysia? China? North Korea? Oh no, we are head and shoulders above all of those shady characters. And yet, here we are, again setting a terrible example internationally for others states to replicate (this brings to mind the ominous international precedent set by the 2001 Howard-era Pacific Solution in regards to offshore processing, which shamefully served as inspiration for the UK, supported by Denmark, the Netherlands, Italy, Austria and Germany, attempting to implement a similar policy in 2003). Countries with fewer resources mind you. So, is this a case of the blind leading the blind, or, more accurately, the politically calculating leading the morally pernicious? Should Australia be responsible for leading the way in the region? Are we hurting any chances that may have been open to us to convince our neighbours who haven’t signed the Refugee Convention to ratify it? And what is the real cost of this policy on the international human rights framework?
Australia is located in a dubious region when it comes to adherence to human rights principles. States in the region are underrepresented in terms of the ratification of major human rights treaties, and there is no regional human rights framework covering the Asia-Pacific such as those that exist in Africa, the Americas and Europe. As one of the most developed and democratic countries in the Asia-Pacific, we should be encouraging those around us to take human rights seriously. It is in our own interests, as well as clearly being in the interests of those who through no fault of their own find themselves within the borders of states who actively violate their human rights.
Indeed, Gillard’s new policy is entirely short-sighted and counter-productive. Considering that refugees by definition flee their countries to escape persecution, by turning a blind eye while countries such as Malaysia persecute human beings within their territory (citizen or no) with impunity, we thereby fail to address one of the root causes of the cross-border migration of peoples who leave in search of protection. Is this approach sustainable? No. Is it practical? No. Will it once and for all “solve” the “problem” of movement of peoples who fear for their lives? No. Will it encourage those with dubious human rights records to amend their ways? Most certainly not.
My firm belief that Australia should be leading the way in the region rather than engaging in a ‘race to the bottom’ perhaps derives from a lesson in childhood ethics 101: the lesson taught to us by our parents and teachers not to excuse our own behaviour by citing the poor behaviour of others (“But Mum, everyone was doing it!”). Or, as the lesson was commonly posed, in simple question format: “And if Joe jumped off a cliff, would you do it too?” The difference is that as children, while the temptation to take the low road, to do as others were doing even though we knew it was wrong, often proved too great, as adults it is far easier to understand the wisdom inherent in this advice. We understand that when we reduce ourselves to the lowest common denominator in order to secure instantaneous, however ultimately fleeting gratification, we lose out in the long run.
Australia is, unfortunately, acting like a child. It is shirking its responsibilities under international law for quick political gain. By refusing to take the high road, Australian society and the region in general thus loses out because human rights norms, where they are not adhered to, lose their impact. Where they are treated as fluid principles rather than a binding system of rights and correlative duties, the foundations become precarious and the whole point of the framework becomes muddied. We demonstrate to other countries that it’s okay to ignore human rights. We don’t take a stand. In fact, we take it one step further by engaging in ‘political planking’: lying down, rolling over and firmly burying our heads in the sand, and after we’re done performing said acrobatic manoeuvres, we get up, wash our hands, and deny any responsibility for the consequences of our actions.
The bottom line is – when states engage in such tactics, when they play new Great Games – they are playing with people’s lives. Every human deserves to be treated with respect, with humanity. Human rights, in the words of Jack Donnelly, are held ‘universally’, by all human beings, and against all other persons and institutions. Australia has promised to protect and promote human rights at home and abroad, and it should do what it promised. And that, my friends, was a lesson from childhood ethics 102.
 The full text of the 1951 Convention Relating to The Status of Refugees and the 1967 Optional Protocol can be found on the UNHCR website, at http://www.unhcr.org/3b66c2aa10.html.
 ‘UNHCR Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol’, available at http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=45f17a1a4 (accessed 20/05/11), p. 2.
 See U.K. Home Office, Concept Paper Presented by the Home Secretary to the EU Justice and Home Affairs Council Meeting: UK Proposals on Zones of Protection: New International Approaches to Asylum Processing and Protection (March 2003), available at <http://www.parliament.the-stationery-office.co.uk> (accessed 21/05/11); Schuster, Lisa, ‘The Realities of a New Asylum Paradigm’, Centre on Migration, Policy and Society Working Paper No. 20, University of Oxford, 2005 (accessed 21/05/11); Noll, Gregor (2003) ‘Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Protection Zones’, European Journal of Migration and Law 5: 303-341 (accessed 21/05/11); Amnesty International, ‘Australia-Pacific: Offending Human Dignity – the “Pacific Solution”’, 26 August 2002, AI Index: ASA 12/009/2002, p. 3.
 Donnelly, Jack, Universal Human Rights in Theory and Practice, 2nd ed., Cornell University Press, p. 1.