People smugglers they are not, lawful and heroes instead - we have to change the language

Gerry Georgatos
The misappropriation of language and abuse of semantics in reference to ‘perceived people smugglers’ has to begin to change so we do not further erode compassion, and continue to skew the moral compass, bend and circumvent the rule of law- domestic and international.

People who are assisting people in their flight from persecution and in the right to asylum, in accordance to our laws, domestic and international, should be honoured as the heroes they are. The wait for this should not be a generation removed, as is generally the case in the unfolding of social justice and in the eliminating of racism and various abominable prejudices.

There is nothing more honourable than living the moral conviction of saving the lives of others. The 600 souls who have drowned since 2007 in their flight to our shores are the fault of the policies of the Australian government.

Winton Higgins in his book - Journey Into Darkness - describes a visit to the Holocaust Museum in Israel where a note from Australia rests. It is from the Evian Conference 1938 where 22 nations of the Western world convened to discuss the Jewish refugee ‘problem.’ Australia’s response, from T.W. White, is captured in 13 words alone on that note – “We don’t have a racial problem, we are not desirous of importing one.”

Contemporaneously, equivalent racism is mangling the Australian national consciousness. Many are arguing we don’t want to import the ‘Muslim faith’ when this should not even be a discussion point. What has this got to do with humanity? I have interviewed hundreds of Asylum Seekers and all they are seeking is a shot at life and liberty. Most of them don’t practice Islam, just like most Australians do not practice Christianity, it’s a moot point. It does not matter whether someone does practice a particular religion just as much as should not matter what the pigment of someone’s skin is. However to the biased and prejudiced it does matter.

Helping refugees is actually lawful, however magistrates are faced with mangled imposts upon their judgments generated from within the chambers of parliament, by political parties withdrawn from moral leadership and mongered by electoralism; a vicious cycle.

The tenuously political, and racist, mantra of “breaking the people smugglers’ business model” has caused unconscionable damage. I was stunned when a GetUP! Campaign against the Malaysian option quoted, “it is understandable that the Minister cannot offer a blanket exemption to any class of asylum seekers, for fear that the people smugglers will exploit it to their advantage.” Of the hundreds of Asylum Seekers I have interviewed each said to me there was no way to find safe passage from persecution and oppression and the prospect of death without the assistance of those demonised as people smugglers.

They are not people smugglers, they are heroes, whether a few make a quid out of this or not. No one is being smuggled to Australia, and rather people are being saved from the prospect of death or from being conscripted into for instance the Taliban. Australia has deported Asylum Seekers back to Afghanistan and Sri Lanka who were soon murdered.

These heroes are taking great risks and paying enormous amounts of money to officials, police and border controls, and various others, for them to turn a blind eye or to assist with the passage of desperate people, of families.

International human smuggling laws defines itself as human trafficking for prostitution and indentured labour, the forced removal of peoples across borders for “gain, slavery or exploitation.” So, why can’t our news media pick up our parliamentarians on this?

I do not question whether a very few have supposedly profiteered in assisting Asylum Seekers however is this a crime? Migration agents get paid for their services. Ali Jenabi did not profiteer.

If we want to buy into the misappropriated terminology and the myth of a business model then let us consider the words of the Director of Refugee and Asylum Law at the University of Michigan, James Hathaway, “Canada and other developed countries created the market on which smugglers depend by erecting migration walls around their territories. The more difficult it is to get across a border to safety on one's own, the more sensible it is to hire a smuggler to navigate the barriers to entry. Smugglers are thus the critical bridge to get at-risk people to safety. Which one of us, if confronted with a desperate need to flee but facing seemingly impossible barriers, would not seek out a smuggler to assist us?"

However we have to start having a good look at ourselves and what we have bought into - racism of course - when we label people as smugglers for merely saving lives, of families and children we have a real problem of identity and of morality.

Many perceived people smugglers were asylum seekers and refugees and they understand the predicament of their peoples, those persecuted and displaced. Iraqi Ali Jenabi's brother was killed by Saddam Hussein's forces. He arrived in Indonesia penniless and to earn passage for his family to Australia, and which included his mother, sisters, brothers and an uncle he worked for perceived people smugglers. His family finally arrived in 3 separate boats.

Ali Jenabi's humanity continued and he has since helped many others seek passage, including those with no money. He is a hero to the Iraqi communities of Australia however a perceived people smuggler to Prime Minister Julia Gillard. He could face ten years in prison.

Paragraphs 232 and 233 of the Migration Act support the right to Asylum and for Asylum Seekers to be assisted. A few years ago 27 legal experts explained to a Senate Estimates Inquiry that indeed there is nothing unlawful in assisting people with safe passage to foreign shores.

By 1938, about 150,000 German Jews, one in four, had already fled Germany. After Germany annexed Austria in March 1938, an additional 185,000 Jews were brought under Nazi rule. Many Jews were unable to find countries willing to take them in.

Many German and Austrian Jews tried to go to the United States however they could not obtain the visas - there were no "queues". Though news of the violent pogroms of November 1938 was widely reported, Americans remained reluctant to welcome Jewish refugees. In the midst of the Great Depression, many Americans believed that refugees would compete with them for jobs and overburden social programs to assist the needy.

In 1924 the US Congress had set up immigration quotas limiting the number of immigrants and discriminated against groups considered racially and ethnically undesirable. These quotas remained in place even after President Franklin D. Roosevelt, responding to mounting political pressure, called for an international conference to address the refugee problem - the Evian Conference, 1938.

In 2012, miniscule resettlement quotas blight the prospect of humanity and the coalescing of peoples - the concept of civil society is much pummelled by the Commonwealth government and its jurisdictions however it is not the lived experience. Because of the migration walls, people who should have been granted asylum will continue to be deported at higher rates than ever before - even when compared to the Howard/Ruddock years - many of the deportees will be cruelly persecuted and many will be murdered, as has already been the case with some. In protecting migration walls our governments will continue to rely on Kafkaesque principles - building brick by brick these migration walls with mortar that is the blood of those they keep out; who will die in transit, at sea, in detention centres and refugee camps, or languish destitute with no prospect of a helping hand. In an effort to wipe the blood from their hands governments will continue to deny their racism, their disconnection with humanity, and describe those who openly, and with great risk to themselves, assist refugees and displaced peoples in their flight to asylum, as people smugglers - and that they are 'evil scum'.

Gerry Georgatos
PhD researcher Australian Custodial Systems, Masters Social Justice Advocacy, Masters Human Rights Education, Refugee Advocate
0430 657 309

Recent update (15.8.2012):

Human Rights Alliance media release:

After having read the report by the three stand alone members of the ‘Expert Panel’ we have found no grounds to suggest that any lives will be protected or saved from returning to the Pacific Solution, and in a form and manner which evidences policy more draconian than John Howard’s Pacific Solution.

Vietnamese, Cambodian and other Indo-Chinese refugees were resettled between 1979 to 1996 predominately through regional camps, such as Galang in Indonesia, and Hei Ling Chau in Hong Kong, amongst others, however there were protections in place which the Panel’s report lacks. Importantly, these camps were overseen by the UNHCR and other government and non-government organisations, and nations such as Australia minimised bureaucracy and resettled expeditiously, comparatively, and in terms of resettlement numbers did not maintain a premise of quota however ventured by a needs-basis.

The regional camps are harsher in conditions, and in the taking of lives, than the Australian Detention Centre network, which in the last two years has cost 7 lives, 6 of them of very young men, and which has led to thousands of people enduring trauma, multiple trauma – acute and chronic, breakdowns – physical and mental – multiple breakdowns, self harm and multiple self harm, languishment in depressions, the onset of various clinical disorders, suicide attempts, multiple suicide attempts, and suicides. Regional camps have higher suicide rates, higher death rates than Australian detention centres – hopelessness is matched by the endemic illnesses and host of diseases, some borne from malnourishment.

The Panel’s report appears heading in the direction of turning back the boats when the boats will nevertheless come, and in the numbers they have been coming, which is in effect nevertheless only a trickle of humanity and of negligible impact upon the Australian society.

Australia’s nearly ten billion dollars, not five billion, of expenditure on mishandling and maltreating Asylum Seekers can be averted by leaving alone domestic legislation in relation to the Migration Act, by accepting those who come to our shoes in pursuit of Asylum and by processing their applications through community within 60 days. The Australian Detention network should be dismantled, Australia should resettle no less than 30,000 people per year and preferably 50,000 each year and set an example to the rest of the world, and invest monies saved from the dismantling of the Australian Detention Centre network in resourcing and assisting regional camps that already exist and all round just help people and save lives.

People die waiting while Australia pontificates over our standards of living and a selfish economy and puts humanity and what’s right last. The debate should not be skewed by racism and seen for what it is really about – that we are small and selfish population and this is what we are trying to protect, and in do so we are trying to disconnect from humanity and the moral compass.

Gerry Georgatos
PhD Law researcher, Australian Custodial System and Deaths in Custody
Human Rights Alliance spokesperson
0430 657 309

THE moral panic stirred up by the recent Four Corners story about Captain Emad, an alleged people-smuggler, was predictable.
A couple of weeks later, it was boatloads of Tamils floating towards Christmas Island that we were told we had to fear. Sadly, these are just the latest instalments in a national moral tragedy that has been running for two decades with no sign of a happy ending.
The "business model of migrant smuggling" was developed by me and a few colleagues at the Migration Research Unit at University College London during the mid 1990s.
So in some senses it has been gratifying to hear Prime Minister Gillard speak about "smashing the people smugglers' business model" including in her recent interview with CNN — academic research doesn't often make it into prime ministerial speaking points.
What is less gratifying is that the Prime Minister doesn't appear fully to understand the model, and thus her Government's efforts to "smash" it are unlikely to be effective.
Refugee advocate Ian Rintoul has likened people smugglers to WWII hero Oskar Schindler. Mr Rintoul made the comments on 6PR's Drive program following revelations people smugglers have been granted visas and are running their illegal business in Australia.
Who are ‘people smugglers’? Some so called ‘people smugglers’ are asylum seekers themselves or relatives of asylum seekers acting from compassion for no financial reward. Others are mpoverished Indonesian fishermen who have lost their livelihood to large scale industrial firms running factory ships which have depleted fish stocks in the area. Some do it for noble motives,
wanting to assist those in need; some are members of criminal syndicates after large profits. All kinds of people might engage in people smuggling for all kinds of reasons.
Do not cast a pall of aspersions on everyone who sacrifices much to help people seek Asylum – would parliamentarians want a swathe of aspersions cast upon them all by the Australian people in response for the misdeeds and improprieties of several of their own?
Let us honestly remind ourselves of the 1970s and 1980s in how we treated and resettled our Asylum Seekers, and who really stood up for them however let us not revise the past in some Camelot like myth as is happening by some and by others too young to remember, and by people ignorant of Galang and Hei Ling Chau and other like regional camps.
Australia breaks Convention on the Rights of the Child



I struggle with the explanation for this ethical failure as being simply - raccism. I worry that the accusation could be obscuring other possibilities, understandings of which may lead to solutions.
Could the reason for the disconnect between Australian society and the plight of the asylum seekers be a problem of proximity?
Gerry, do you believe that the majority of Australian's, if they were physically witness (as some were at Christmas Island) to the drowning deaths of men, women, and children, that they would change their attitude to asylum seekers?
Human smuggling and trafficking are matters of increasing concern to the Australian Government, and the Australian Institute of Criminology is currently taking part in the United Nations (UN) Global Program Against Trafficking in Human Beings.
Despite the public interest in interceptions of sea vessels carrying illegal migrants, the largest number of people detected by Australian authorities are those who overstay their visas and work illegally. The second largest group includes individuals intercepted at Australian airports, either because they are using false or fraudulent travel documents or because they intend to work in Australia in contravention of their visas. There are indicators that transnational organized crime groups are becoming increasingly involved in people smuggling in Australia. The sector that has received the most media attention relative to people smuggling is the sex industry. Australian government responses to people smuggling have encompassed legislation, law enforcement, international cooperation, economic assistance, victim services, education programs, and research and data collection. Because people smuggling is a transnational activity, however, it cannot be stopped by one country alone. The UN global program will collect data on different routes for people smuggling and on structures and methods used to transport and subsequently exploit them. In addition, a global inventory of best practices used to address organized crime involvement in people smuggling, including special legislation and institutional arrangements, will be created. An appendix contains the Bangkok Declaration on Irregular Migration, of which Australia is a signatory.
FIVE Indonesians military officers have been arrested as they helped 45 asylum seekers make their way to a boat headed for Christmas Island.
People smuggling (also called human smuggling) is defined as "the facilitation, transportation, attempted transportation or illegal entry of a person or persons across an international border, in violation of one or more countries laws, either clandestinely or through deception, such as the use of fraudulent documents".[1] The term is understood as and often used interchangeably with migrant smuggling, which is defined by the United Nations Convention Against Transnational Organized Crime as "...the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a state party of which the person is not a national".[2] The practice of people smuggling has seen a rise over the past few decades and today now accounts for a significant portion of illegal immigration in countries around the world. People smuggling generally takes place with the consent of the person or persons being smuggled, and common reasons for individuals seeking to be smuggled include employment and economic opportunity, personal and/or familial betterment, and escape from persecution or conflict.
Unlike human trafficking, people smuggling is characterized by the consent between customer and smuggler - a contractual agreement that typically terminates upon arrival in the destination location.
Smuggling operations are complex, working within networks of many individual players. As smuggling operations and its underlying infrastructure becomes increasingly intricate, so do the issues surrounding the matter of people smuggling. With major and minor players spanning the globe, people smuggling poses a significant economic and legal impact on society, and solutions to the problem of people smuggling remain contested and under continued debate and development.
A SYDNEY court case has laid bare the massive risks taken by people smugglers and the desperate asylum-seekers who pay them, Brenden Hills reports.
ARMED only with a ruler, hand-scribbled co-ordinates and a cheap GPS he didn't know how to use, an Indonesian fisherman smuggled dozens of asylum-seekers to Australia.
On March 26 last year, Nano Sutarno was handed almost $8500 to buy a wooden boat from a man he had recently met and knew as Ling. Three days later in the dead of night and an hour from shore, 64 Kurds who had paid their life savings were crammed on board. There were no life jackets and just 20 litres of water to last the 49-hour journey to Christmas Island.
This rare insight into the people-smuggling syndicates that have wreaked havoc on the Australian political landscape and caused massive budget blowouts were revealed in the District Court in Sydney on April 29 when Sutarno was sentenced to a maximum five years jail for people smuggling.

Aggravated offence of people smuggling (at least 5 people)

(1) A person (the first person ) commits an offence if:

(a) the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least 5 persons (the other persons ); and

(b) at least 5 of the other persons are non-citizens; and

(c) the persons referred to in paragraph (b) who are non-citizens had, or have, no lawful right to come to Australia.

Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.

Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section.

(2) Absolute liability applies to paragraph (1)(b).

Note: For absolute liability, see section 6.2 of the Criminal Code .

(3) If, on a trial for an offence against subsection (1), the trier of fact:

(a) is not satisfied that the defendant is guilty of that offence; and

(b) is satisfied beyond reasonable doubt that the defendant is guilty of the offence of people smuggling;

the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of the offence of people smuggling, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
Australia's overseas espionage service is waging a secret war on people-smugglers, sending teams of agents into Pakistan to disrupt the trade at its source.

The Australian interviewed security officials in the Pakistani city of Quetta, who said ASIS agents based at the Australian high commission in Islamabad were involved in tackling the Hazara smuggling trade at its source.
Predictably enough, the Four Corners people smuggling program has resulted in an outpouring of anti-refugee sentiment.

Both sides of politics have taken the opportunity to renew their calls to violate the human rights of asylum seekers and establish off-shore third country processing in Malaysia or Nauru.

The Minister has announced an investigation into allegations that people in Australia are assisting asylum seekers to get from Indonesia to Australia by boat.

“The Four Corners’ allegation that a people smuggler ‘posed’ as a refugee when he arrived in Australia is entirely unsubstantiated. But it would not be the first time that refugees have been involved in helping to organise boats from Indonesia,” said Ian Rintoul, spokesperson for the Refugee Action Coalition.

“In fact it is most common that so-called ‘organisers’ convicted of people smuggling are refugees. This puts the lie to the idea that informal travel to Australia is arranged through transnational criminal networks. It is driven by the need for protection.

“Under the Howard government, convicted people smugglers were not been denied protection visas, but served their time and went on to become Australian citizens.

“The hysteria about the role people smugglers and their supposed business model simply does not fit the facts. At least four boats this year carrying Tamil asylum seekers have come directly from Sri Lanka – no people smugglers required. But the vast majority of asylum seekers need to use the people smugglers’ services to get to safety from Indonesia.

“The people smuggling laws do nothing but make an already dangerous situation, more dangerous. They were introduced by successive governments for domestic political purposes. That’s why the people smuggling laws should be scrapped.”

“If Captain Emad has been as successful a business person as the program implied, he could have bought his way into Australia and permanent residency with a business visa.

“What really needs investigation is the role and political direction of the Federal Police. The Fairfax media has already revealed that the Federal Police had extensive connections with people smuggling networks and withheld information from rescue operations for fear of compromising their sources.

“It is clear that the AFP disproportionately targets Indonesian boat crew and refugee families in Australia. It seems the political motivation for the introduction of people smuggling laws may have compromised the Federal Police itself.

“People smugglers provide needed services to people fleeing persecution. The government’s demonisation of people smugglers is aimed at diverting attention from its own persecution of asylum seekers.”
Contrary to media reports, and the picture painted by the Four Corners program, Abu Ali Al Kuwaiti (also known as Abdul Khadem) and his family were victims of Howard and Ruddock’s shameful mistreatment of asylum seekers.

“It is impossible to understand the real story of Abdul Khadem unless you understand the shocking story of the abuse and victimisation of Abdul and his family at the hands of the Howard government,” said Ian Rintoul, spokesperson for the Refugee Action Coalition.

Four Corners and the ABC have portrayed Abdul as a people smuggler who arrived in 1999. But that is far from the truth. Abdul was only charged with people smuggling a year after his arrival and only after he was considered to be a trouble-maker by the Immigration Department. He was coerced to plead guilty to people smuggling and was never considered to be an organizer of the boat that he came on.

Abdul came to the attention of the Immigration Department and the notorious manager of Curtin Detention Centre, Greg Wallis, after he acted as spokesperson for striking protesters at the detention centre. Abdul spent two weeks in Derby prison but was never charged.

Released from prison, Abdul was sent to Juliet Block, the brutal punishment compound in Port Hedland. From there, the family was sent to Maribyrnong in Melbourne.

Suspiciously, Abdul was only charged with people smuggling in Melbourne, a year after his arrival even though he had revealed everything to the Immigration Department on arrival. He was moved to Perth, while the family remained in Melbourne. Splitting his family was something for which, Abdul never forgave the Immigration department.

Eventually, the family was released on bridging visas, but Adbul remained in detention. After three years – three years – his refugee claim was rejected by the Immigration Department. He never got the opportunity to appeal to the Refugee Review Tribunal.

The family applied to 20 countries for assistance after the Immigration department threatened to arrest and deport one of Abdul’s sons. The Immigration Department unsuccessfully tried to deport the family to Iran in 2003 and then to Vietnam.

“The real story of Abdul tells a very different story. The Australian government owes Abdul and his family an apology,” said Ian Rintoul. “His story is the shocking story of so many asylum seekers victimized by the Australian government.

“If Abdul has organized boats from Indonesia, they are boats of asylum seekers like himself, cruelly treated by mandatory detention. The people smuggling laws first introduced by the Howard government allowed Abdul to be victimized by the government.

“The people smuggling laws are doing the same thing today. Assisting asylum seekers to get to safety in Australia should not be a crime.

“It is a pity that Four Corners didn’t tell the real story of Abdul Khadem.”
Government policy costs lives

The Labor Government has tried to claim the humanitarian high ground, saying that its laws against people smuggling are designed to stop asylum seekers making dangerous boat journeys and avoid deaths at sea. They are nothing of the sort.

In fact the government’s criminalisation of people smuggling makes boat journeys to Australia much more dangerous. Australia has been pressuring the Indonesian government to imprison and harass asylum seekers in order to “stop the boats”. The Australian government has funded the upgrade of Indonesian detention centres and announced $654 million in 2009-10 to work with Indonesia and other countries in the region to “combat people smuggling”. This means asylum seekers are forced to find a way to escape Indonesia as quickly as possible, and take the risk of getting on unsafe boats.

The vanity and ego of politicians is such that they think they can control overwhelming forces, be they driven by markets or basic human yearnings.
Millions of people around the world have no choice but to flee their homeland to escape persecution and conflict. Refugees seek asylum in other countries so they can rebuild their lives, but they are often unable to obtain proper passports and visas.
Burkina Faso is playing host to more than 50,000 refugees from neighboring Mali. These refugees have been forced to flee their homes due to fear of possible attacks by the Malian army, banditry, and general lawlessness in the north
A Refugee is a person recognised as a refugee under the 1951 Refugee Convention/ 1967 Protocol or the 1969 OAU Convention.
An Asylum-seeker is a person whose application for asylum or refugee status is pending at any stage in the procedure or who is otherwise registered as an asylum-seeker.
Refugees were defined as a legal group in response to the large numbers of people fleeing Eastern Europe following World War II. The lead international agency coordinating refugee protection is the Office of the United Nations High Commissioner for Refugees (UNHCR), which counted 8,400,000 refugees worldwide at the beginning of 2006. This was the lowest number since 1980.[7] The major exception is the 4,600,000 Palestinian refugees under the authority of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).[8] The U.S. Committee for Refugees and Immigrants gives the world total as 62,000,000 refugees and estimates there are over 34,000,000 displaced by war, including internally displaced persons, who remain within the same national borders. The majority of refugees who leave their country seek asylum in countries neighboring their country of nationality. The "durable solutions" to refugee populations, as defined by UNHCR and governments, are: voluntary repatriation to the country of origin; local integration into the country of asylum; and resettlement to a third country.

Gerry there is a big difference between people who are assisting people in their flight from persecution and the right to asylum and people who charge these poor people crazy amounts of money to ride a death ship, so they can line there greedy pockets.Gerry you need to work out the difference!

Many asylum seekers flee their own country because there is a civil war there or because their human rights are not being respected.

The top five countries that people came to the UK from in 2007 were:

Afghanistan (2,500)
Iran (2,210)
China (2,100)
Iraq (1,825)
Eritrea (1,810)

In some countries, people can be arrested, sent to prison or even tortured for their religious or political beliefs.

If the situation in a country changes for the better then there are often fewer asylum seekers from there.

WA university academics have led a group of more than 200 refugee experts from across the country and South East Asia in signing an open letter deploring the federal political parties for failing to adequately address the asylum seeker issue.

Read more:

TO anyone seeking to take up the issue of refugees, asylum-seekers, internally displaced persons, returnees, stateless persons et al, I have one word of advice -- don't. You'll finish up a gibbering idiot trying to understand the myriad sets of figures provided by those trying to solve the problem.

Around the world women often suffer persecution just because they are female, and experience persecution differently because they are women. Women who are beaten by their husbands, raped with impunity, forcibly sterilized, ritually mutilated, sold into sexual slavery and targeted for death by relatives in the name of family honor can become refugees when their governments fail to protect them. Some of them flee to the United States in search of safety.

So I am presuming that you agree that loss of life is a fair price for the "right to asylum" as you put it.

Gerry, where is this "right to asylum" vouchsafed? What do you mean by a "right to asylum"? When was this term coined.

As a rough guess, if we accept that people have a "right to asylum," what ought to be Australia's response? An open-ended policy, where we take and facilitate the taking of as many refugees as would like to resettle in Australia? This I think is your position, and I am afraid it is an untenable and unworkable position. Much as I would welcome an approximation of this position myself, on humanitarian grounds, I am obliged to consider the practicalities of the situation.

Our cities are already burgeoning at the seams. We are losing green belts to expansion of population that is happening through other means of migration and natural increases in population. Dense population settlements are recipes for social disease and malaise. Australia has difficulty accommodating its expanding present population.

An open ended policy of taking the worlds refugees would see 15 million prospective applicants to our shores. This is simply too much to expect ourselves to deal with. Refugees are an international problem and require an international response. Certainly we should do as much as we can, but we ought not to be required to do more than we can. So the real question is, how much is enough?

And for guidance on this question we need to look internationally. And if we look internationally we will see that Australia is already leading the way in its refugee policy. But our policy has come to a stand still because of the intransigence of the Opposition and the Greens on this issue.

We cannot physically take upon ourselves the resettlement of the world's refugees. That is simply an ingenuous response to the problem. What we need to do is promote a workable resettlement program with the international community. But let us be honest. As long as there is war and conflict and economic hardship there will always be refugees, and they will always present a problem to communities in how best to resettle those people. Very many refugees who have settled into refugee camps in foreign countries are much worse off than any that arrive into Indonesia to partake in a perilous journey by boat to Australia.

We need to work on an international response. We need to work on an orderly intake of refugees according to Australian policy. Certainly lets improve that policy, lets fast track the safe arrival of more refugees for settlement in Australia. But nonetheless people will jump on leaky boats, hoping to gain an advantage in the settlement process. We cannot resettle them all, so it is up to us to manage it as best we can. One way of doing this is to provide a disincentive for people to risk their lives on leaky boats to get a perceived advantage int he resettlement stakes. The Labor Government's policy does this. It is not necessarily the only policy, or the best of all policies, but it is something that we can use whilst we work on better responses to the question of refugees.

Do people have the "right to asylum"? It is questionable at best. But is it better to discourage people from risking their lives at see whilst we work on a more workable international solution to the refugee crisis? I think it is.

Noel, Gerry isn't saying some of what you're claiming because you want to protect your almighty beloved Labor Party, can't you just step back from being all Labor through and through and like Young Labor and Labor for Refugees see that some things Labor these days just completely suck?

Where is Gerry saying that every refugee in the world, millions of them should come to Australia. He is talking about raising resettlement, and it's not about whether more will want to come, of course they will but at least we do our bit and then other countries may too, I've read many times where Gerry thinks resettlement should be at least 50,000 and even 100,000 per year out of the 300,000 migration quota we do anyway.

He is saying that those that help asylum seeking are doing a duty no-one is else is doing. If people helping them are being charged heaps by police and border officials to turn the other way so they can escape then this is why people ask asylum seekers for money so they can pay these bribes.

Gerry is saying it isn't a crime to seek asylum, it isn't a crime a to help asylum seekers, it shouldn't be a crime to do what you can to save lives, and I've read he has said that the Australian Navy should escort asylum seekers out at sea to prevent drownings, and Gerry is saying lets do our bit and raise our quotas, the man doesn't care where their applications are processed whether in Indonesia or Nauru or Australia as long as it is done fast and as long as resettlement is real and honest.

The Labor party is completely responsible for taking us back into the middle ages and it is Gillard who has disgraced this whole country, and sadly the Greens who I generally agree with have botched a real chance to increase resettlement and build camps in Indonesia where people have a chance to get here by posturing once too often.

I think Gerry is completely right on all counts of the asylum seekers debate. He should be the expert panel.


So we should treat people smugglers as heroes instead of treating them as criminals getting rich of weak and vulnerable people by putting them on overcrowded and unsafe boats to undertake a perilous journey to reach a foreign but desirable shore? i find this idea bizarre.

So we should increase the intake to 100,000? This sounds reasonable. We already have a migration intake of between 200,000 and 300,000, why not increase the refugee intake? Well there is one reason, and that is that our migration intake is not simply "migration intake for migration intake's sake." We reunite families through our migration policy. In many instances we reunite families of resettled refugees with their long lost loved ones through this policy. We also have a policy of taking in skilled labour to meet short falls in our labour force. So to increase our refugee intake to 100,000 would mean increasing our overall intake to 400,000, or else denying family reunions and taking in skilled labour. All three of these possible outcomes have disadvantages.

Moreover, and this is the important point, if Australia increased its intake to 100,00 of refugees this would give people MORE REASON to risk their lives at sea to get to Australia, because they would know that the first 100,000 to reach our shores will be accommodated by Australia's migration and refugee policy. It would not mean everyone would remain in camps overseas to be duly processed in an orderly fashion. It would be a further encouragement to those who trade in death.

It would also require Australia to take the extraordinary step of taking upon itself the leading position in the world in refugee policy. It would require us to undergo severe hardship within Australia in order to facilitate this new program. It would mean Australia was not interested in forming international policy to solve the refugee problem. And let us remember, there is no international solution to refugees. There simply is not. There are fifteen million refugees world wide. Do you have a policy to resettle them all? How can this be achieved? Tokenism, simply increasing our quota by 5,000, or 50,000, does not solve the refugeee crisis of the world. And it does not solve the refugee paralysis of position that we have in this country.

Lastly, and forgive me for pointing this out, but you criticise the Greens for not adopting the Liberal position to increase the refugee intake. And yet the Liberals would simply TURN THE BOATS BACK. That is the most inhumane position of all. So how you can trumpet the Liberal position over and above the Greens and Labor is certainly something I fail miserably to understand.

Mate, what are you rattling on about, of course the point is to raise the numbers to make a difference for as many people as possible even if every refugee around the world can't be saved, the argument that there are 15 million refugees and we can't save them all is a pathetic one when the point is we, Australia, need to as much as we can and if that's 20,000 or 50,000 then that is that many people saved. Your ridiculous argument that Australia should not lead from the front on the refugee issue is hypocrisy. You seem to protect the ALP at all cost. What is your position within the ALP? Are you part of the rank and file or are you higher up like some sort of aide or paid position? So Noel it's okay for the ALP to introduce a carbon tax and lead the world but it's not okay for them to lead the world on raising resettlement quotas? You use ridiculous arguments and then make them extreme and lampoon the debate just like your ALP leader Gillard, who is a disgrace as a Prime Minister given the shot she has been given at power. The boats will not stop just because of resettlement raised but it will help reduce the demand for people to travel by boat, and the fact is when there is crisis people will flee, but as Gerry points out again and again and again the Vietnamese and Cambodians of the seventies and eighties and nineties were resettled because resettlement quotas were increased and end of story mate.

I agree with Leesa and Gerry should be the expert panel and you should stop being an ALP minion and instead stand up to the ALP just like Young Labor and Labor for Refugees are - have you taken issue with them too? Are they traitors to the great ALP brand?

Abbott's turn back the boats is just hype he will never live up to as he tries to waltz into government but Gerry is right that the resettlement raise should have been grabbed and the Greens screwed up on that count, they did not have to agree to turn back the boats, just raise the numbers and make offshore processing work just like it did in the twenty years ago. If we make regional processing work as Gerry points out then we create a situation where people from everywhere have some hope rather than are forever trapped in no man's land.

AUSTRALIA'S leading authority on Afghanistan has called for a moratorium on the deportation of failed Afghan asylum-seekers.

The call came with the warning that they faced the risk of persecution or death if forced to return to their homeland.

The warning from William Maley, director of the Asia-Pacific College of Diplomacy at the Australian National University, is supported by research showing that at least nine Afghans deported when their asylum claims were rejected were killed after being forced to return to war-torn Afghanistan.

Professor Maley says the Gillard government's plan to repatriate a group of about 50 Afghans in coming months will put them in grave danger. Most of those facing forced removal are members of the ethnic Hazara minority, who have been persecuted by the Taliban, which controls large areas of the countryside.
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"In Afghanistan, there is a pervasive fear, fuelled by Western politicians talking openly about the need to reconcile with the Taliban, that the country is heading back to the dark days before September 11, 2001," Professor Maley told The Australian.

"It is therefore no surprise that ethnic Hazaras, a group ferociously persecuted at that time, are desperate to escape.

"Unfortunately the Immigration Department's processing of refugee claims has become so haphazard there is a grave danger that people in need of protection might be thrown, metaphorically, to the wolves. There should be a moratorium on returning anyone to Afghanistan until the integrity of the assessment process can be properly guaranteed."

Immigration Minister Chris Bowen told The Australian last week his department was finalising arrangements for the repatriation of an initial group of about 50 Afghans in the coming months.

"I have grave fears for Afghans who are sent back," said Phil Glendenning, director of the Edmund Rice Centre, a Catholic group that has followed the fate of about 270 failed asylum-seekers, including nine Afghans who were killed after being sent home by the Howard government.

In one case documented by the centre, an ethnic Hazara man, Mohammed Hussain, was deported to Afghanistan in 2008 from Nauru, where he had been detained under the Howard-era Pacific Solution.

Mr Glendenning says Hussain, who had formerly been an anti-Taliban fighter, was kidnapped by Taliban forces and taken back to his home village in Afghanistan's Ghazni province.

"He was thrown down a well in front of 35 members of his family, and then they threw a grenade down and decapitated him," says Mr Glendenning, who met Hussain in Kabul in September 2008. He says Hussain expressed fears at the time that he would be killed..

In a second case, another deportee from Nauru, Abdul Azmin Rajabi, saw his daughters aged six and nine killed when the family was targeted four months after their return to Afghanistan.

"If the government can't guarantee their safety, they should not be returned,' Mr Glendenning told The Australian.

Professor Maley says the targeting of returnees is "more likely now than in 2008".

According to the UN, 2010 was the most violent year in Afghanistan since the war began, with 2777 civilians killed, three-quarters of them by insurgents.

The Taliban has stated that its policy is to exterminate the Hazara people.

Hundreds of Afghans, mostly Hazaras, could face deportation as about 50 per cent of Afghan asylum claims are now being rejected.

Gerry Georgatos and Brad Chilcott reflect on why we are so divided over asylum seekers

plus the real reason Ruddock linked the two systems

5. The ‘good faith’ obligation
5.1 International law
25. In addition to the rights set out above, Australia has several obligations under the Refugee
Convention and international human rights treaties that may be relevant to policies directed at
deterring asylum seekers from arriving in Australia by boat, depending on the content and
operational details of those policies. For example, Australia must not:
(a) impose penalties on refugees on account of their illegal entry or unauthorised
presence in a contracting State (article 31 of the Refugee Convention);
(b) frustrate attempts by asylum seekers to leave any country, including their own (article
12(2) of the ICCPR); and
(c) discriminate against asylum seekers on the basis of their nationality (article 1 of CERD
and article 26 of the ICCPR).23


Politics rather than policy drove the Howard government to introduce the contentious link between the offshore and onshore humanitarian programs in 1996.

At that time John Howard was desperately looking to return the federal budget to surplus and Ruddock responded with a proposal to cut Australia's total offshore humanitarian intake (refugee and SHP) from 15,000 to 10,000 to save money in welfare payments.

But a leaked cabinet paper from that time reveals Ruddock proposed adding the onshore and offshore humanitarian intakes together, in part to help obscure the size of the planned cuts in the offshore humanitarian program.

"Presentationally we would gain benefits by adding to the humanitarian program the estimated number of grants of (onshore) protection visas in 1996-97," the document says.

Ruddock said this week the decision to link the programs was primarily budget-related. "Treasury was saying at the time we don't want payments for the humanitarian program to suddenly escalate in a manner which we cannot predict," he tells Inquirer. "The easiest way to do this was to link the onshore and offshore programs

next two posts will have the documents copy and pasted

Submission to the Expert Panel on Asylum Seekers
July 2012
Freedom. Respect. Equality. Dignity. Action.
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Human Rights Law Centre | Submission to the Expert Panel on Asylum Seekers
Page i
1.1 Background 2
1.2 Scope of this submission 2
1.3 Recommendations 3
2.1 International law 3
2.2 Application to Australian law and policy 4
3.1 International law 5
3.2 Application to Australian law and policy 6
4.1 International law 6
4.2 Application to Australian law and policy 7
5.1 International law 8
5.2 Application to Australian law and policy 8
Human Rights Law Centre | Submission to the Expert Panel on Asylum Seekers
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1. Introduction
1.1 Background
1. On 28 June 2012 the Prime Minister and the Minister for Immigration and Citizenship announced the establishment of an Expert Panel on Asylum Seekers to inquire into „the best way forward for Australia to prevent asylum seekers risking their lives on dangerous boat journeys to Australia‟. The panel has been asked to consider Australia‟s international obligations, among other things.
2. The Human Rights Law Centre (HRLC) is concerned that several policies proposed by the Government and the Coalition, such as proposals to transfer asylum seekers to third countries, including Malaysia and Nauru, breach Australia‟s international human rights obligations.
3. The HRLC‟s human-rights-based analysis of policies directed at deterring boat arrivals recognises that:
(a) asylum seekers do not want to make the dangerous boat journey to Australia. People get on boats as a last resort. Any attempt to eliminate the possibility of refugee protection in Australia that does not offer a better alternative forces asylum seekers to pursue more risky, life-threatening options; and
(b) there are 10.4 million refugees in the world.1 The vast majority stay in their region of origin and are hosted by developing nations. However, some will try to make their way to Australia. This is not a crisis or a threat. As a wealthy, secure country with a history of good international citizenship, we have an ethical and legal obligation to treat these people humanely.
4. The HRLC considers that these two considerations should be central to the Expert Panel‟s enquiry.
1.2 Scope of this submission
5. This submission examines Australia‟s obligations under international law concerning:
(a) unauthorised arrival of asylum seekers;
(b) non-refoulement;
(c) the use, conditions, length and reviewability of detention; and
1 UNHCR, A Year of Crises: UNHCR Global Trends 2011, 18 June 2012 at (viewed 12 July 2012).
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(d) particular rights pertaining to children.
6. This submission focuses on Australia‟s obligations under the human rights treaties to which it is a party. Obligations under the Convention Relating to the Status of Refugees (Refugee Convention)2 are considered in detail in the submission made by Australian refugee law academics on 11 July 2012.
1.3 Recommendations
2. Non-refoulement
2.1 International law
7. Australia has an obligation not to return a person to a territory where they would face a serious violation of their human rights.3 Non-refoulement obligations are contained in or arise from the:
2 Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
3 In this context a serious violation of rights includes a violation of the prohibition on torture or cruel, inhuman or degrading treatment or punishment, a breach of the right to life, or a flagrant denial of justice.
Recommendation 3:
To ensure compliance with its international law obligations, Australia should avoid policies involving the detention of child asylum seekers or their transfer to third countries.
Recommendation 2:
To ensure compliance with its international law obligations, Australia should not transfer asylum seekers to third countries that have not ratified the Refugee Convention or that do not have adequate procedures in place for determining eligibility for refugee status, or where they are otherwise at risk of being subject to significant violations of their human rights.
Recommendation 1:
To minimise the number of people who make the boat journey to Australia in a way that does not violate international human rights law, Australia should increase its humanitarian intake and provide additional resources for UNHCR to process and resettle asylum seekers in the region.
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(a) Refugee Convention;
(b) International Covenant on Civil and Political Rights (ICCPR);4
(c) the Second Optional Protocol to the International Covenant on Civil and Political Rights on the Abolition of the Death Penalty (Optional Protocol on the Abolition of the Death Penalty);5
(d) the Convention on the Rights of the Child (CRC);6 and
(e) the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)7.
8. The non-refoulement obligation extends to all people under Australia‟s jurisdiction or control, including those outside Australian territory.8
9. Further, the obligation extends to both direct and indirect refoulement.9 For example, Australia will violate its non-refoulement obligation by returning an Afghan refugee to:
(a) Afghanistan (direct refoulement);
(b) a third country where they would face a serious violation of their human rights (also direct refoulement); and
(c) a third country where they are at risk of subsequently being returned to Afghanistan (indirect refoulement).
2.2 Application to Australian law and policy
10. In order to comply with international law, the Australian Government must not transfer an asylum seeker to a third country unless it can ensure that the asylum seeker:
(a) does not risk being exposed to a serious violation of human rights in that country; and
(b) does not risk being returned to another country where they would be exposed to a serious human rights violation.
4 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 172 (entered into force 23 March 1976).
5 Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, opened for signature 15 December 1989, 29 ILM 1464 (entered into force 11 July 1991).
6 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 3 (entered into force 2 September 1990).
7 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).
8 See, for example, Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law (2007), 244-53.
9 UNHCR, Advisory Opinion on the Extraterritorial Application of the Non-refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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11. Whether or not these criteria are met in relation to a particular proposal will depend on the country that the asylum seekers are intended to be transferred to and the operational details of the transfer arrangement. The fact that the third country is a party to the Refugee Convention or a member of the Bali Process is not sufficient to fulfil the criteria.
12. In the HRLC‟s opinion, neither the „Malaysia Solution‟10 nor the proposal to send asylum seekers to Nauru complies with Australia‟s non-refoulement obligations.
13. The Malaysian Government‟s „assurances‟ that refugees would not be refouled were not legally binding and were not sufficient to meet Australia‟s non-refoulement obligations.
14. Proposals under which Australia sends asylum seekers to Nauru and maintains control over their refugee status determination, but does not guarantee resettlement in Australia, are also problematic. When such an arrangement was previously in place as part of the Howard Government‟s „Pacific Solution‟, 70 percent of those detained were ultimately found to be refugees and, despite their protracted detention with a view to resettlement elsewhere, a majority of those (i.e. 60 percent) were eventually resettled in Australia.11
15. If such a policy was re-introduced, refugees would face either return to their country of origin (in which case Australia would have indirectly refouled) or indefinite detention on Nauru while awaiting possible resettlement elsewhere, a possibility that may never materialise (in which case Australia has directly refouled and failed to comply with international law in respect of arbitrary detention, discussed below).
3. Detention
3.1 International law
16. Article 9(1) of the ICCPR provides that “no one shall be subjected to arbitrary detention”. To avoid being arbitrary, detention must be reasonable, necessary and proportionate in all the circumstances.12
17. The UN has criticised Australia‟s policy of mandatory immigration detention on several occasions. Significantly, several expert UN human rights treaty bodies have called on the Government to abolish mandatory immigration detention on the basis that it is a violation of
10 For background to this policy see: Minister for Immigration and Citizenship, Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement, 25 July 2011. At (viewed 12 July 2012.)
11 Chris Bowen MP, Last Refugees Leave Nauru, 8 February 2008 at (viewed on 12 July 2012).
12 Nowak, CCPR Commentary (2nd revised edition) (2005), p. 224.
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international human rights law.13 These criticisms apply whether detention facilities are in Australia or in another country but still under the jurisdiction or control of the Australian Government.
3.2 Application to Australian law and policy
18. In order to comply with Australia‟s international human rights obligations, any proposal that involves the detention of asylum seekers must:
(a) codify in law that asylum seekers are detained only where strictly necessary and as a last resort;14
(b) codify in law that no children are held in immigration detention;15
(c) codify in law that detainees have access to regular, periodic, judicial review of their detention;16
(d) codify in law time limitations on immigration detention;17 and
(e) ensure that all detainees have adequate access to legal counsel, interpreters, communication facilities, education, physical and mental health services and social, cultural and religious support networks.18
4. Children’s rights
4.1 International law
19. Article 3 of the CRC provides that a child‟s best interests must be a primary consideration in all actions concerning them. The CRC also provides that Australia must only detain a child “as a
13 See eg, Concluding Observations of the Human Rights Committee: Australia, 95thsess, UN Doc CPPR/C/AUS/CO/5 (7 May 2010) [22]; Concluding Observations of the Committee on Economic, Social and Cultural Rights: Australia, 42nd sess, UN Doc E/C.12/AUS/CO/4 (12 June 2009) [25]; CERD, above n 53 [24]. See also Human Rights Council, Universal Periodic Review of Australia, Recommendations 126, 127 and 131.
14 Article 9, ICCPR; A v Australia, HRC, Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993 (3 April 1997); Manfred Nowak, CCPR Commentary (2nd revised edition) (2005), p. 224.
15 Articles 3 and 37(b), CRC.
16 Article 9(3), ICCPR; Human Rights Committee, General Comment No 8: Right to liberty and security of persons (Art. 9), 30/06/82, [2].
17 Article 9, ICCPR.
18 Article 10, ICCPR; Human Rights Committee, General Comment No 21: Humane Treatment of Persons Deprived of Liberty, 10/04/1992.
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measure of last resort and for the shortest appropriate time”19 and imposes strict limitations and conditions on the detention of minors.20
4.2 Application to Australian law and policy
20. Child asylum seekers are particularly vulnerable members of an inherently vulnerable class, a status reflected in the special protections afforded to them under international law.
21. The Australian Human Rights Commission has detailed the serious risk of mental and developmental harm facing children in immigration detention.21 In the HRLC‟s view, no policy exposing child asylum seekers to the risk of ongoing detention is capable of complying with Australia‟s international law obligations.
22. Further, in order to comply with international law, the Australian Government must not transfer a child asylum seeker to a third country unless such decision is made after the comprehensive consideration of, and is compatible with, that child‟s best interests. In the HRLC‟s view, in the majority of cases, the forced transfer of a child asylum seeker to a third country will run counter to their best interests and, consequently, be in violation of international law.
23. This will be particularly so where the policy provides for transfers:
(a) in the absence of clear and enforceable arrangements for their guardianship and care;
(b) to a country to which the child has no ties; and
(c) to a country that is not a signatory to the Refugee Convention and with a poor record for the treatment of asylum seekers.22
24. The HRLC therefore urges that Australia avoid any policy involving the detention or international transfer of child asylum seekers.
19 Article 37(b) of the CRC.
20 UNICEF, Protecting and realizing children’s rights, 2 June 2011 at (viewed 20 January 2012).
21 Australian Human Rights Commission, Immigration detention and Villawood: Summary of observations from visit to immigration detention facilities at Villawood, 2011 at (viewed 12 July 2012).
22 In respect of Malaysia, see Australian Human Rights Commission, „Inquiry into Australia‟s agreement with Malaysia in relation to asylum seekers: Australian Human Rights Commission Submission to the Senate Standing Committees on Legal and Constitutional Affairs, 14 September 2011.
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5. The ‘good faith’ obligation
5.1 International law
25. In addition to the rights set out above, Australia has several obligations under the Refugee Convention and international human rights treaties that may be relevant to policies directed at deterring asylum seekers from arriving in Australia by boat, depending on the content and operational details of those policies. For example, Australia must not:
(a) impose penalties on refugees on account of their illegal entry or unauthorised presence in a contracting State (article 31 of the Refugee Convention);
(b) frustrate attempts by asylum seekers to leave any country, including their own (article 12(2) of the ICCPR); and
(c) discriminate against asylum seekers on the basis of their nationality (article 1 of CERD and article 26 of the ICCPR).23
26. Australia is required under the Vienna Convention on the Law of Treaties to perform these obligations in good faith.24 A State lacks good faith when it “seeks to avoid or divert the obligation which it has accepted, or to do indirectly what it is not permitted to do directly.”25
5.2 Application to Australian law and policy
27. Attempts to deter and prevent asylum seekers from travelling to Australia by boat that do not also provide an alternative safe, expedient and durable protection pathway will violate Australia‟s obligation to implement the Refugee Convention and various international human rights treaties in good faith.
28. For example, it may be a violation of the good faith obligation to intercept a boat carrying asylum seekers – whether directly or indirectly through cooperation with a third country such as Sri Lanka – and to then redirect it to a country that has not ratified the Refugee Convention or that does not have adequate procedures and protections under domestic law to ensure the non-refoulement of refugees.
23 For various reasons it is more likely that asylum seekers originating from particular countries will arrive in Australia by boat and without valid visas (these reasons include delays in processing by regional UNHCR offices, geographic proximity coupled with low levels of ratification of the Refugee Convention within the region and large numbers of refugees in Indonesia awaiting relocation. Consequently, policies that disadvantage „unlawful‟ arrivals have a discriminatory impact, not only against non-citizens, but also between non-citizens.
24 Vienna Convention on the Law of Treaties, 1969, article 26.
25 UNHCR‟s submissions in R v Immigration Officer at Prague Airport, ex parte European Roma Rights Centre [2004] UKHL 55, [2005] 2 AC 1, available as UNHCR, “Written Case” (2005) 17 International Journal of Refugee Law 427, para 32.
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29. Conversely, providing greater support to UNHCR-facilitated resettlement so as to dissuade asylum seekers from travelling to Australia by boat through promoting a safe alternative means of seeking protection would be consistent with Australia‟s obligations under the Refugee Convention.

THE federal government will not admit it, but Australia's entire humanitarian offshore refugee program is facing extinction without a steep fall in the number of asylum-seekers arriving by boat.
The imminent death of this once-sacred cow will be a lasting stain on both sides of politics and a blight on Australia's hard-earned post-war reputation as a generous resettler of refugees and displaced people from camps around the world.
This collapse in the program, one of the fundamental pillars of Australia's human rights commitments, is unfolding faster than the government can respond.
This financial year, for the first time since modern migration programs were born in 1977, both components of the offshore humanitarian program - the special humanitarian program and the refugee program - are set to be all but wiped out by the influx of asylum-seeker boats.
They will be crushed by a combination of two factors. The first is the Gillard government's inability to deter people-smugglers. The second is its decision to retain a policy initiated by the Howard government in 1996 of linking Australia's offshore humanitarian intake (the SHP and the refugee program) with its onshore humanitarian intake (arrivals by boat and plane) and capping the total, currently set at 13,750.

Therefore, as the number of boat arrivals has swelled, the number of places available for offshore applications has fallen proportionately, grossly distorting the balance and the original intent of the humanitarian program.
So far the government has confined the cuts in the total offshore intake to the SHP, which applies to people subject to gross human rights violations as well as family members of refugees already in Australia.
As revealed by The Weekend Australian last week, this category fell from almost 9000 in 2003-04 to only about 700 last financial year and will be completely wiped out in the present financial year.
It is a blow to people in the dusty camps of Africa who do not have access to people-smugglers and their boats, as well as to refugee families in Australia who have been waiting years to get their relatives out of the camps to join them in Australia.
But during the next 12 months we are set to witness a fundamental breach in what Immigration Minister Chris Bowen says is the government's "firm commitment to resettle significant numbers of UNHCR-referred refugees".
Only a swift political solution to stop or dramatically slow the influx of boats can prevent this outcome, yet with both parties deadlocked on the issue such a remedy seems remote.
So far, the government has honoured its commitment to the UNHCR by fiercely protecting its intake of refugees, which are the most politically sensitive part of its offshore humanitarian program.
This is a voluntary obligation Australia gives to resettle UNHCR-declared refugees. It is seen as a symbol of Australia's standing as a good and compassionate international citizen.
Since Labor was elected in 2007 it has kept this refugee intake constant at about 6000 a year, even during the past few years as boat arrivals surged.
But based on present trends this cherished program appears doomed by the unprecedented levels of boat arrivals.
So far this year more than 6000 asylum-seekers have arrived in Australia by boat.
Let's assume they arrive at a similar rate for the next 12 months. This means the government in 2012-13 would be faced with as many as 12,000 boat arrivals on top of the roughly 2500 visas it gives annually to those who arrive by plane and then seek asylum.
Under this scenario the "onshore" category (boats and plane arrivals) would completely swallow the 13,750 available humanitarian places, wiping out the entire offshore humanitarian program, including the cherished refugee quota. Even the government's own projections, which make the heroic assumption that only 5400 asylum-seekers will arrive by boat during the next 12 months (less than half the present rate of arrivals), would equal about 8000 onshore visas, wiping out the SHP and eating into the formerly untouchable refugee program.
This means Australia will, in effect, close its doors to the giant African refugee camps because the spots once available to those in the camps will have been taken by those who pay for a boat passage to Australia.
The UN High Commissioner for Refugees, the Greens and refugee advocacy groups blame the system for this unhappy outcome, which effectively pits boatpeople against camp people for a limited number of visas.
They say if the government were to abolish the 16-year-old link between the onshore boat arrivals and the offshore components of the humanitarian program, then this distortion would disappear overnight, allowing Australia to maintain its intake of refugees despite the surge in boat arrivals.
But the practical effect of such a move would be that the size of the humanitarian program would rise beyond the self-imposed cap of 13,750. The government believes this would be too expensive in the present fiscal environment.
"In broad terms it would cost in the region of $250 million for every extra 1000 refugees under Australia's resettlement program over four years," Bowen tells Inquirer.
His office declined to explain how that figure was calculated. It differs sharply from an estimates release a decade ago by the then immigration minister, Philip Ruddock, who said an extra 1000 people in the humanitarian program would cost an extra $23m a year.
Bowen says linking the offshore and onshore programs allows the government to budget properly for a fixed number of humanitarian places.
"Simply delinking the onshore and offshore intakes and delivering a virtually uncapped humanitarian program would remove the government's ability to control its asylum budget or plan for a total number in its humanitarian program," Bowen says.
The Greens say no other country in the world links its onshore and offshore humanitarian programs, so why should Australia?
Bowen counters that the policy is unique to Australia because "no other country is in the same circumstance".
"Australia is in a unique situation where we have a firm commitment to resettle significant numbers of UNHCR-referred refugees, as well as taking in asylum-seekers who arrive in irregular circumstances. The offshore and onshore link in the program exist to maintain that balance," he says.
"Developed countries generally act as resettlement countries (such as Australia, Canada and the US), offering a home to refugees referred by UNHCR, or simply deal with asylum-seekers who show up (such as Germany, Britain and many other European countries). This second group overwhelmingly (does) not offer resettlement programs."
The solution to the present humanitarian program crisis is mired in the politics of blame.
Bowen says the only way to end the distortion in the program is to introduce offshore processing of boat arrivals, and that the Coalition is blocking this.

"If the Coalition got out of the way and allowed us to implement offshore processing, we would reduce the number of places under the program taken by boat arrivals," he says.

Coalition immigration spokesman Scott Morrison counters that Labor has created the problem by "refusing to restore the proven border protection measures" of the Howard government. Morrison supports linking the offshore and onshore humanitarian programs but says an Abbott government would reverse the priorities so that UNHCR refugees were given priority over those arriving by boat.

"The government should quarantine a minimum of 5000 places for the offshore special humanitarian program, in addition to the 6000 for mandated refugees through the UNHCR," he says.

"The balance of the program should be available for onshore (boat and plane) applicants. Where the quota of 13,750 permanent visas is exceeded, only temporary visas should be provided until a place under the program is available. If someone is going to wait for a permanent visa, it should not be those who are so vulnerable they cannot afford a bus ticket, let alone a plane to Jakarta and a boat to Australia."

The most surreal part of this debate is that the government and Coalition say they aspire to lift Australia's overall annual humanitarian intake from 13,750 to 20,000. Bowen won ALP approval for the policy late last year but on the condition a solution is first found to slow the boat arrivals.

William Maley, of the Australian National University, says this condition is the wrong way around and self-defeating because one of the factors driving people on to boats is the lack of available places under the offshore humanitarian program. "If you are going to undo the dependence on people-smugglers you need to find a better way of offering the product through more resettlement opportunities," he says.

Maley also scoffs at the government's claim that it can't afford to fund a rapid and sizeable increase in overall humanitarian intake. "I think it is absurd - they could find the money if they wanted."

Politics rather than policy drove the Howard government to introduce the contentious link between the offshore and onshore humanitarian programs in 1996.

At that time John Howard was desperately looking to return the federal budget to surplus and Ruddock responded with a proposal to cut Australia's total offshore humanitarian intake (refugee and SHP) from 15,000 to 10,000 to save money in welfare payments.

But a leaked cabinet paper from that time reveals Ruddock proposed adding the onshore and offshore humanitarian intakes together, in part to help obscure the size of the planned cuts in the offshore humanitarian program.

"Presentationally we would gain benefits by adding to the humanitarian program the estimated number of grants of (onshore) protection visas in 1996-97," the document says.

Ruddock said this week the decision to link the programs was primarily budget-related. "Treasury was saying at the time we don't want payments for the humanitarian program to suddenly escalate in a manner which we cannot predict," he tells Inquirer. "The easiest way to do this was to link the onshore and offshore programs."

Australia has since become increasingly less generous with its humanitarian program although Bowen maintains it "remains the highest per-capita refugee resettlement country in the world".

The Refugee Council of Australia says "refugee resettlement in Australia is now at one of its lowest points since the modern Refugee and Humanitarian Program was introduced in 1977".

"The 2010-11 resettlement program was the fourth smallest in 34 years, and on a per capita basis was the second smallest program in 35 years," it said recently.

More than ever, Australia needs a balanced, orderly and functional humanitarian program. As both parties point the finger at each other, our offshore humanitarian program is crumbling fast, blackening Australia's once-proud reputation for accommodating the poorest of the poor from all corners of the globe.

Gerry you write the following "However we have to start having a good look at ourselves and what we have bought into - racism of course - when we label people as smugglers for merely saving lives." This language paints all people who want a different way forward to you as racists. I am not a racist.

And you write that these people are "merely saving lives." The reason this has become such an issue in Australia is because people are LOSING THEIR LIVES. The Australian Government wants to save lives. It also wants to placate the public by securing our sovereignty.

This is a question of sovereignty. We are a nation. We decide on what terms people come to Australia. When refugees arrive here we process them. The overwhelming majority are provided with a home and income once they have been demonstrated to be actual refugees. Australia should be applauded for this. We are doing what MOST NATIONS SIMPLY DO NOT DO. We provide a home for those most despairing in the world, most in need of our aid and comfort. But we do it in an orderly manner.

How many times must this question be asked? How many refugees will it take to placate you? How many deaths at sea will it take to tell you that something is amiss? You talk about the language being used to disenfranchise these "heroes," as you call them, but they are just smugglers trading in human misery. Nothing they are doing is heroic. What is heroic, WHAT IS HEROIC, is remaining in a settlement camp hoping wishing and praying that you will be processed, that someone won't get ahead of you and destroy your chance of becoming a citizen of a new nation. That is what these boat refugees do. They ensure that people who wait for due process will never be relocated, they will remain in the squalor of refugee camps in countries with no refugee policy.

And you will not even respond. You will not tell me what part of my humanity is racist. You simply use the language of racism to pain anyone who is not with you on this as racist. You too use language as a tool of political truth.

I live in Fitzroy. I see refugees resettled in Australia every day. They add colour and diversity to our culture. I am very glad for that. They also have loved ones overseas who they want to join with them in Australia.

We can't accommodate everyone. This is the simple truth. So we try to accommodate what we can. Certainly we should not adopt the Opposition's policy of turning back the boats. That is no solution, it just endangers more lives.

We need a policy that can safeguard life and resettle legitimate refugees at the same time. Labor has a policy framework that may or may not be effective in diminishing lives lost. Meanwhile we will continue to accommodate refugees with our intake policy. As we should. Should we take more? Yes, certainly, but should we accept the risk of people coming by boat by smugglers profiteering off the suffering of those who are at life's edge? I say no. This is not the way to come to Australia. Certainly it is one way, but it is a way fraught with danger. If we can discourage that, and encourage the orderly processing of refugees, then we have taken a mighty step.

But the refugee problem is and will remain an international problem, and it cries out for an international solution.

Noel, some of your suppositions are quite weak without antecedents and without any sound basis.

Racism and racists though intertwined are not necessarily the same argument or assertion - one can be enveloped by racism without being per se a racist although that same person may be ignorant, nescient, complicit by silence or prejudiced by views that belong to the veils and layers of racism rather than racism itself.

For example the ALP and Coalition Asylum Seeker and Immigration policies are for instance racist however those who uphold because they are part of the Caucus, rank and file, party loyal or see few other 'realistic' solutions are at least complicit in racism. For instance the ALP Senators and House of Representative parliamentarians who have confided in me their abhorrence to these racist policies, and some whom I've named in various news articles, however argue that they do their bit in Caucus or Cabinet, however remain party loyal and silent while Asylum Seekers are discriminated against are clearly complicit in racism.

Your argument of how many lives will it take for us to pick up the banter of the ALP policies is demonstrative of your ALP loyalism. Noel, you are obviously only writing about the tragedy of lives lost regionally in our waters. Noel, as someone else has written on this thread, what are you talking about? How are the vacuous ALP policies going to save lives from the risk of of the high seas? The Malaysian Option obviously will not, not a chance in the world. Resettlement quotas will assist however not necessarily stop people fleeing to our shores who are otherwise languishing. Regional processing, bona fide, will definitely assist however not necessarily guarantee people will not nevertheless risk the high seas. In the eighties the boats stopped because resettlement quotas were raised thanks to Fraser and Peacock and the regional processing for instance at Galang and Hei Ling Chau with the UNHCR present helped resettle peoples to Australia, New Zealand, Canada and the USA, and Australia then had the least red tape and people chose to not risk the high seas when they could choose to settle in Australia by waiting months only at a regional camp.

Keating made a mess of things along with some of his mob and gave it all on a platter for Howard and Ruddock to send us into this ongoing ugly spectre for now more than a decade.

Noel, the only way boats completely stop is when crises diminish and when they are turned back as Howard and Ruddock inhumanely did by instructing the RAN with Operation Relex to do so, however for a few years too coinciding with this some vacuum of inhumanity international crises had reduced in intensity, however I can assure if major crises occur as several did in 2007, and it was not necessarily Rudd's dismantling of the Pacific Solution which of course I fully supported, the boats will come nevertheless, such is the will for survival for oneself and ones family.

Noel, it is a poor argument to argue that there are 15 million refugees and that it is an international problem and needs some sort of World Summit - well where is it? We are all part of the international community, and our lot is to do as much as we can not as little as possible. Comparatively Australia resettles more folk than most nations, and this is the tragedy, if Australia's 13,750 is a standard then this is hopeless, and Noel if Australia can do 50,000 well then that's an additional 37,250 people we can help who do not need to be lost, and maybe other nations will follow the lead. If they don't then that will not be our fault.

Noel, it is not heroic to wait in a camp and watch all hope disappear, your children destroyed, and watch people around you die. This is a disgraceful argument. Let us understand that there are actually 62 million displaced peoples and refugees in the world, and at least 18 million are refugees with only 9 million in so called UNHCR camps. However most of those coming to Australia are coming from the the other 9 million who are not in camps. Noel, I have interviewed and come to know well many former refugees who were in Cape of Horn camps up to 26 years and they have all assured me that had they any opportunity to either afford or to get on board a boat to cross the Indian Ocean to Australia they would have. Let us not forget that South Africa accepts, though it does not resettle, more than 200,000 refugees each year.

Yes Noel I do believe that without the assistance of those demonised as people smugglers that many people who have finally resettled in Australia and now enjoy a shot at life, real hope, their children who are Australians that this for them would not have been so without the so-called poor old people smugglers - so for me these people have served the common good.

Yes Noel, the refugee and displaced peoples predicament cries out for a World Summit, for panacea, for an international solution however in the meantime we need to do everything we can and not the pathetic and at times keystone racism of the ALP and the Coalition.

Kindly, Gerry

Gerry thank you for your considered reply. However, you do me the disservice of pigeon holing me as a advocate of the ALP, and you also assume that whilst not being necessarily a racist per se, nonetheless my ideas vis a vis the present refugee situation is a signal of underlying racism.

Certainly what I am saying is that the Labor position ought to be supported. There are several reasons for this. The main one for me is that it is the least harmful policy. I do believe that people smuggling ought to be discouraged, so that lives can be protected, and to facilitate the orderly processing of refugees in camps. People smuggling is not a solution to the refugee problem. All it does is endanger lives whilst pushing some people to the front of the queue ahead of others who are at least as deserving as those who have the money to pat their way to get ahead of the queue.

This is not racism, it is due process. Will it work? I really don't know. But the Malaysia solution is only intended to transfer 800 refugees to Malaysia. In exchange we take 4,000 refugees I camps from Malaysia. I see this as a good exchange. These people in Malaysia have no options. Let us give them something. Instead of rewarding those who have paid with money, let us reward those who have no money. Is this racism? Surely it is rewarding the least powerful, the most disenfranchised.

Again, this probably won't alter the situation. I agree with you about why people come here. We both agree that it is an international problem, and that we ought as a nation to increase our intake. I'm not sure that 50,000 is achievable, but we can certainly argue the case for it. At present we are faced with the very real proposition that the Opposition will win the next election. Their solution is to turn back the boats. Labor's position is far and away above and beyond that. It is not perfect. It may not work . But by working against it we are working for an Abbott led coalition government that would be a disaster for this country.

Noel, my apology to you for pigeon holing you - you have rightly pointed this out and I am embarrassed in imputing this. You have every right to argue a case without being labelled an advocate of the ALP.

The folk demonised as people smugglers are a solution for those whom they do get to Australia for instance and whom gain citizenship and the full suite of rights like the rest of us, however they are not the solution to the whole refugee problem.

Neither do I want to see the Coalition gain power however likely this is being touted to be however it is for me a poor argument that we should let slide the ALP policies without criticism so as not to hand government to an even more meritocratic right wing body of politic.

I cannot accept it as humane that we hand over 800 people who have reached our shores in exchange for 4,000, even if people argue utilitarianism. Nevertheless the reliant argument that this premise of the Malaysian exchange will dissuade passage by sea doesn't make any sense to me whatsoever.

I can't agree that the ALP's policy is better than others. The Greens have a better proposition than both the Coalition and the ALP, however we should not have missed putting the Coalition on the spot with raising the resettlement numbers. However I do concede that behind the scenes because I know so too and have in fairness put it out there that the ALP is trying to get as many of the Asylum Seekers detained into community detention and housing and their applications processed, however they do not want this highlighted, however in my view they'd be better off standing up to the issues than pretending that many of them agree with them! Failure in getting people into community detention and housing and submissions quickly processed are because of a bureaucracy that includes DIAC, ASIO and so on.

In terms of political disaster - the toppling of a Rudd led government was a political disaster and a step away from everything he promised till end of February 2008 when the ALP was the promise of good direction - Kyoto, Climate Change discussions, The Apology, the dismantling of the Pacific Solution - however Rudd didn't know how to handle the naysayers, the ugly will to power by those around him, his own egomania (and this is important - the handling of it that is), and other nonsense, and his own immaturity in lurching from a political conviction that lays within the centre to the right (which is a body of politic he did not come into the prime ministership with) and especially on the rights of Asylum Seekers, and well since June 2010 we have had a perpetual political disaster. It's not the Asylum Seekers who are bringing down the curtain on the ALP, it's the ALP itself and a lack of sustained moral leadership, Noel it's them doing it, not you or I or people seeking Asylum.

My thoughts, Gerry

Gerry, I admire your advocacy of refugee rights. Indeed we need a fairer, more humane world where we can deal with human suffering on a broad scale.

The problem you are faced with is your advocacy of boat people refugees over and above the rights of other refugees waiting their turn in refugee camps. How can you legitimately promote one over the other? I think it is possible to promote the rights of those in refugee camps, and to say that they should be duely processed in accord withb international law. Perhaps boat people step outside of international law and we should create a refugee camp in Australia where these people can wait their turn LIKE EVERYBODY ELSE and be considered for settlement when their turn comes. So Australia then is treating boat people too fairly, considering their claims before th eclaims of those who do not come by boat. I understand that some come by plane as well. The same rules could apply to them.

Gerry, you are an advocate for refugees, but in this discussion you have become an advocate for boat people. I am an advocate for all refugees, and for all of them to be treated equally. It seems that you defend the right of those with money to fly or boat here to be treated unequally, to be considered before others who do not have the means to get here by their own endeavours.

This does not seem to be egalitarian or fair. Perhaps there is no fairness to be found here, but at the same time these people are being exploited, and their lives are being put at risk. They take a huge risk to come here, and for that perhaps they ought to be rewarded. But we ought not to reward those who are profiteering from this business. I do not call it a criminal business, I call it an obscene business, to profiteer from human suffering. The people who do this are not heroes. They don't do it selflessly, or altruistically. They do it to become rich. And I don't mean the deckhands, or the ship captain, I mean the organisers, who advertise their wares, for a price, to chance your life on a leaky boat to Australia.

Whose interests should we be promoting? The refugee who waits patiently, even hopelessly, in a camp in Malaysia? Or the person who has sold their second son to pay for a boat ride to Australia? These are legitimate questions, it seems to me that the people we ought truly to be advocating the rights of are those in these camps who have no rights, no protections, and no hope. I told someone tonight, don't hope, for hope only leads to despair. But all these people have got left is their hope, and their despair.

The population of the world is made up of 5602 million non-whites & 2401 million whites, its not exactly a fair playing field is it, thats why Australia should not open up its borders to these peoples.

and what's your point?

My point is that 70% of the worlds population is non-white & only 30% of the worlds population is white, thus it is not a fair playing ground for white people & thats why we should not open up the borders of this country to these peoples, don't you think thats fair.

Pollies and some people who write here on refugee issues make the ludicrous claim that Australia is one of the most generous admitters of refugees.

I’ve done sums about Germany and Australia, relating refugees they’ve taken in to their respective population numbers.

One in 42 people living in Germany is a refugee, one in 354 people living in Australia is a refugee.

I took refugee numbers from Australia 64,100, Germany 1.93 million.

I took the up-to-the-minute population projection for Australia from 22.68 million.

I took the 2011 German population of 81.8 million from

81.8 million divided by 1.93 million = 42.38 (Germany)

22.68 million divided by 64,100 = 353,8 (Australia)

I’m lousy at maths, so would be happy to admit I got the sums and the logic wrong if anyone cares to check.

Hi, I think this link provides a more accurate picture of refugee intake, between the years 2007-2011, I've hunted around and from what I can gather through the Internet this is the most reliable source for information that compares countries per head of population. The United States for instance is 0.2 per 1000 population. Germany is 0.6. Australia is 0.5. Some smaller countries are much higher than this, but of course each country has to be considered in terms of its population and its region. Certainly it demonstrates that Australia could do more. We are not leading the way (no-one is saying we necessarily should lead the way). We can do more, and I would encourage us to do more. But we need to rely on the best evidence available, and this is it.

So, for example, increasing our refugee intake to 50,000 per year would exceed most if not all other countries except perhaps some anomalies by a significant margin. For instance we have only taken a total of 40,000 for the past five years. In the past two years there has been a significant increase in our intake. If, say, our intake was 50,000 per year then per 1,000 population we would be at 2.5, which is significantly greater than any other country.

Moreover, the fact that this has actually increased over the past two years means that only now are we actually meeting our targets. Previously we had targets for intake that we were not fulfilling. So if the past two years was turned into a five year period of 12,000 per year we would have a total of 60,000 over five years instead of 40,000, which would increase our intake by 50% taking us from 0.5 to 0.75 which would place us significantly above Germany and a host of other countries. Instead of being ranged 15th we would be ranked in the top five.

So it is disingenuous to suggest that we are not doing our share. We have not done our share in the past, particularly during the Howard years, but we are accommodating more of the burden upon ourselves now. If we increased our rate to 20,000 per year as has been advocated by some and actually even suggested by Tony Abbott, this would mean an almost tripling of our intake over a five year period over and above 2007-11.

I think this is at least moderate proof that Australia can do more, but cannot be expected to do a whole lot more, and whether we place the rights of those who arrive by boat ahead of those who seek asylum through official channels is something we need to be mindful of. It is an issue. By promoting the rights of those who arrive by boat we are disenfranchising those who wait in refugee camps elsewhere, whether our intake for five years is 40,000, 70,000 or 100,000.

One in 42 people living in Germany is a refugee, one in 354 people living in Australia is a refugee.

Your numbes game doesn't refute those numbers.

Sorry, I tried to confirm your figures. I'm not trying to have a fight over statistics. I was unable to do confirm your I am not trying to provide a numbers game. Certainly historically Germany may be comprised of a greater number of refugees, I really don't know. I have provided a reliable link to some numbers that people can either accept or reject. I don't understand how it is possible to logically reject them, but I certainly see no reason to. Those figures demonstrate that Australia was really lagging in its refugee policy prior to the past two years.

So Julia Gillard has actually overseen a radical increase in our intake. it is simply wrong to say otherwise, based upon the evidence. But more can be done.

Again I ask, what is more deserving about a person that has arrived by boat vis a vis someone waiting in a refugee camp to be processed?

The reason I sought for reliable information was because if the figures you had provided were a reliable indication of Australia's refugee policy then it would leave a lot to be desired. The fact is that in the past two years Australia has far surpassed Germany's refugee policy per head of population, and aren't we talking here about Australia's present refugee policy rather than its historical policy?