Why Labor should change its policy on refugees and asylum seekers

Ian Rintoul of the Refugee Action Coalition says it's time to overhaul the ALP's refugee policy at next year's national conference

Until June 2002 when legislation was introduced excising thousands of islands from the effects of the Migration Act, federal Labor had supported all of the Howard government’s changes to refugee policy: from the One Nation policy of temporary protection visas (TPVs) to the Tampa legislation. Thanks to Labor’s bipartisan support for Howard’s policies, the refugee movement has suffered under an effective senate majority for almost the entire period of the Howard government.

This year Labor committed to voting against the Pacific Solution Mark II laws introduced in the wake of the arrival of the West Papuan refugees in January. This legislation would mean all arrivals by boat would be processed offshore and resettled in third countries. More than 75,000 people have signed the online petition against these laws.

With the second Liberal backbench revolt over refugee laws in a year, it seems that Howard is about to suffer his first major parliamentary setback. It seems likely that the legislation will not be introduced into the senate. This loss will reverberate beyond the immediate issue of refugees and holds a powerful lesson for Labor.

Bipartisan support for the government-initiated 'tough-on-refugees' policies has only served to strengthen Howard’s position and entrench anti-Muslim stereotypes, and the fear-mongering on which the coalition government has relied.

Labor’s recent pragmatic shifting is a welcome change from the previous nine years. However it is a good time to take a more substantial look at the policy framework and the detail of Labor’s refugee policies.

The risk in the present Labor approach is that despite small policy shifts, the ideological underpinnings that have been the foundation of Labor and Liberal punitive refugee policies will remain in place.

At it’s national conference in January 2004, the Labor Party, although defeating Labor for Refugees' substantive amendments, did make some positive shift in the detail of its refugee policy. The new policy committed the party to restricting temporary protection visas to two years (from the Liberals’ three) and to determining 90 per cent of asylum claims with in 90 days, with a goal of processing all claims with in 12 months. It committed to closing the Pacific Solution detention centres on Nauru and Manus Islands and to taking management of the detention centres away from private companies such ACM an GSL, and placing them under direct government control.

Mandatory detention, however, remains in place with an aim of ensuring that those whose claims have failed are available for removal. The 90-day period for initial processing is a goal rather than a statutory limitation, leaving the way open for indefinite detention. Temporary protection visas remain with all their consequent insecurity and denial of travel and family reunion. “Processing claims quickly” is actually based on restrictions on legal avenues of appeal. Significantly in ALP policy, Cocos, Christmas, Keeling islands and Ashmore Reef remain excised from the operation of the Migration Act.

Besides these outstanding issues, the policy is placed in the context of Labor being tough on border protection and people smuggling - more severe penalties, greater surveillance (using the fabled coastguard) and arrangements with neighbouring countries to “eradicate people smuggling”.

To meet the demands of the refugee movement Labor’s policy would need to embrace five things: an end to mandatory detention, permanent protection for refugees, the return of all Australian territory (including Christmas Island, Ashmore Reef, etc) to the migration zone, closure of the Christmas Island detention centre and work rights for asylum seekers on bridging visas. The need to replace the Refugee Review Tribunal with a genuinely independent tribunal concerned with the rights of asylum seekers seems already to be common ground.

A future Labor government would also need to address much unfinished business – the last two Iraqi refugees on Nauru, the Afghans and Iraqis on Lombok Island, the wrongful repatriation and deportation of refugees, compensation and expanded services for those so damaged by mandatory detention.

While some in the refugee movement accept a period of detention for initial processing, this is usually more a concession to conservative opinion and is advocated on the basis of what is electorally acceptable. Detention is not needed for identity or health checks. As for security checks, ASIO has discovered no security concerns among thousands of boat people screened. Before 1992, asylum seekers were not locked up in detention centres as a matter of course - arrivals were taken to migrant hostels to be processed and supported. The system used to be based on the recognition of human rights, not the adversarial and exclusionary approach that is the foundation of the present system - from initial interview to detention centre to the Refugee Review Tribunal to the denial of judicial appeal or oversight.

The details of any initial detention of asylum seekers will continue to be debated. Even so, the movement is committed to community processing, ie refugees should be free to live in the community, with work rights and access to health and welfare services while their claims are being processed. For more radical sections of the movement – among them the Refugee Action Coalition in New South Wales and its counterparts in other states - detention itself is something that must be abolished.

The contradictions and limitations of Labor’s policy positions could be discussed in turn but for the purposes of the present discussion the substantial point is that the limitations have a common foundation – Labor’s refugee policy remains mired in the politics of deterrence, not human rights.

Mandatory detention was introduced by the Keating government (under the leftwing immigration minister Gerry Hand) in 1992, explicitly to deter boat arrivals (and save costs!). Similarly, the One Nation policy of TPV’s, introduced by Philip Ruddock (requiring Labor support) in 1999, was based on showing that “unauthorised arrivals” would be harshly dealt with.

Of course the refugee movement will welcome any shift in Labor policy towards a more just treatment and recognition of the rights of asylum seekers but without an examination of the underlying rationale for the policy, any changes are likely to be piecemeal and inconsistent.

As far back as 2002, Labor ACT senator Kate Lundy warned that Labor had accepted Howard’s rhetoric of “border protection”. “We should stop using the language of John Howard … We should not reinforce the perception that asylum seekers are a threat and should be feared,” she said. She spoke of the need to show leadership in both “language and substance”.

Fours years later and refugee policy is still couched in the rhetoric of border protection and national security. This nexus must be broken if we are to see the introduction of a refugee policy based on human rights fulfilling the letter and spirit of the Refugee Convention.

The failure of the Labor leadership to contest Howard on these issues means that refugee policy remains subordinate to Liberal Party opinion - it assumes that Labor must be seen to be 'as tough as Howard' on these questions. In reality this means that Labor allows the Coalition to set the policy agenda and is constantly outflanked. Labor loses out on the issue of national security and on refugee policy.

Perhaps the policy question that most explicitly reveals this problem is Christmas Island. What possible reason could there be for maintaining the excision of the island and a commitment to the detention centre being built there? Labor’s immigration spokesperson Tony Burke rightly opposed the recent West Papuan asylum seekers being taken to Christmas Island, so why doesn’t this particular opposition extend to a total opposition to the use of Christmas Island as an offshore processing centre?

It is difficult to avoid the conclusion that while Labor is opposed to the Pacific Solution Mark I (ie Nauru and Manus Island), it wants to retain the option of an Indian Ocean solution – if not for West Papuans then for other arrivals. It is also likely that Labor regards the excision of Christmas, Keeling, Cocos islands and Ashmore Reef as a way to bolster its anti-people smuggling credentials. Again, refugee policy loses out to rightwing populism and boosts Howard.

We see the same rationale at work in the recent debate over the treatment of the West Papuan asylum seekers. Labor has managed to frame the issue, not as a question of human rights, but to compete with Howard in terms of national security and foreign policy.

Opposing the introduction of the Pacific Solution Mark II laws, Kim Beazley reprised Howard’s infamous and disgraceful declaration of the Tampa election in 2001, saying: ” I thought that we were meant to decide who came to this country and the circumstances in which they came.” Unwittingly or not, such statements serve to reinforce Howard’s ideology and the xenophobia that has fuelled the Coalition’s anti-refugee policy.

Similarly, Labor spokesperson on immigration Tony Burke has situated Howard’s “betrayal of the positive changes made last year”, in (rightwing) foreign policy terms of what he has called “ a callous attempt to appease Indonesia”.

Rather than use the crisis surrounding the West Papuans to promote a consistent, humanitarian refugee policy, Labor managed to stress the need for a coastguard, increased patrols and agreements with near neighbours (ie Indonesia) as the essential ingredients of a solution to the “problem” of West Papuan refugees. Kim Beazley declared that “good fences make good neighbours”. Nothing about refugee rights there. Quite the contrary.

Tony Burke interviewed on Nine's Sunday program on April 16 effectively admitted that Labor’s policy of intercepting refugee boats would have seen the same outcome for the West Papuans as they received at the hands of the Liberals: ie offshore processing at Christmas Island with all that would entail. Frighteningly, he also went on to say that Labor’s policy would mean that refugee boats with Afghans, Iraqis, Iranians, would be turned around: “In the situation we saw in 2001, if you had a people smuggling operation, the coastguard would do exactly what happened in those search situations, which is turn those boats around.”

In recent celebrations on the 10th anniversary of coalition government, Howard repeated his boast that mandatory detention, like industrial relations, was one of the foundations of the success of his government. Howard has used the lies about children overboard to vilify “those people” (read Muslims) who come without authorisation, the myth of an invasion of queue jumpers or of terrorists on refugee boats to boost the support for the government.

The refugee movement has campaigned tirelessly to turn this around. There are good signs that public opinion is now sufficiently in favour of a more humane approach to refugees, to undermine Howard’s ability to play the refugee or the Tampa card with the success of 2001. Even businessman Dick Smith has campaigned for the release of long-term detainees, going so far as to echo the Marxist call for the abolition of all borders. He said: "Borders are really – they’re immoral, really if you analyse it.”

The pressure of the refugee movement and the self-interest of some sections of business (refugees are good workers in the meatworks and fruit-growing areas) has created the Liberal backbench revolt against Howard’s policies.

It is only a matter of time before another boat of West Papuans arrives. Perhaps the next arrivals will be refugees from the Middle East – the thousands living in Jordan and Syria driven out by the war in Iraq or the Israeli pounding of Lebanon, or the revival of the Taliban in Afghanistan. That’s when refugee policy will really be tested – will Fortress Australia hold out? Or will a Labor leadership embrace a far more progressive policy to put Australia on the international stage on the side of refugees and the oppressed?

For months Kim Beazley baulked at adopting a position opposing individual Australian workplace agreements only to find that by taking an unequivocal position against AWAs, Labor’s popularity has been boosted. A similar stand on refugee policy, establishing a clear difference not at the margins, but in substance, could undermine one of the pillars of the social conservatism of the Howard government and bolster further support for Labor. It’s time.