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The best that can be said for Bill Shorten's 24 November reply to several former Australians of the Year about Manus Island is that it could have been worse.

On the plus side, the fact that he replied at all, agreeing that Australia has a moral responsibility to care for the asylum-seekers held in its detention centres, could be read as a grudging admission that Labor bears some responsibility for the appalling developments in the centres on Manus and Nauru — although he took care not to say so directly. While the original letter was widely publicised, Shorten's reply was hardly noticed by mainstream media and said little that could be used against him by Coalition propagandists, News Ltd or commercial broadcasters.

While indirectly admitting responsibility, the reply itself recycles the tired Australian pretence that our surplus refugees can and should be resettled in other countries, giving the Coalition little to complain about. No risk there!

Yet the point I want to pick up appears towards the end of Shorten's reply:

'Australia can, and should, do more to respond to the unprecedented levels of irregular global migration that has resulted from conflict and environmental factors in other parts of the world.'

I agree, but this reference to unprecedented levels of irregular global migration has important implications and there is nothing in Shorten's letter to indicate that he or the party he leads have taken these implications on board.

First, if current levels of irregular migration really are 'unprecedented', it will be much harder than in the past for Australian governments to find third countries willing and able to take surplus asylum-seekers off our hands. Labor and Australian Governments more generally should abandon the pretence that this can be done quickly and easily.

Second, the appearance of 'unprecedented levels of irregular global migration' suggests that the 1951 Refugee Convention, designed to respond to European conditions at the time, as I discussed on IA on 5 November, is now seriously out of date and should be assigned to a convenient rubbish bin. This means that Labor and Australian Governments should stop using the Convention's outdated definition of a refugee as a bureaucratic hurdle that asylum-seekers must overcome or be turned away.

The key passage of this definition (Article 1(A)(2)) identifies a refugee as someone who

'... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country...'

In effect, we use the 1951 Convention as an excuse for refusing to admit asylum-seekers who don't fit neatly into its definition. Its long past time we stopped using this definition to distinguish "genuine" refugees from other – allegedly less deserving – asylum-seekers, as if the latter were fakes who arrive at our borders to dishonestly seek asylum.

And it gets worse.

The Convention also requires (Article 31) that participating states

'... shall not impose penalties, on account of their illegal entry or presence, on refugees...'

This looks promising since it appears at first sight to suggest that we are required to treat asylum-seekers decently — that is, not to penalise them. The catch here is that, since the geopolitical conditions leading up to the 1951 Convention no longer exist, many – perhaps most – of those requesting asylum may not be refugees as defined by Article 1. In that case, they are not protected by Article 31 of the 1951 Convention. Australia's practice has been to lock them away while we process their applications — while, in other words, we check their refugee status. Since many can be expected to not satisfy the 1951 definition, there is no governmental sense of urgency about processing them.

None of this mandates harsh treatment of asylum-seekers. Yet, the fear that they may be ripping us off has normally dominated Australian official responses to individual cases. Accordingly, asylum-seekers are presumed guilty until proven innocent, which could easily take a very long time and our Governments happily label them "illegal". We treat them with precisely the same spirit of generosity with which we expect Centrelink – and now NDIS – to treat Australian welfare recipients, albeit with more individually destructive consequences.

Barry Hindess is an emeritus professor at Australian National University’s School of Politics and International Relations. You can follow Barry on Twitter @barryhindess.

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