by Dominique, Ashley and Brayden
Historical and Geographical Context
Since the end of World War 2, Australia has been active in the acceptance and resettlement of refugees. Over 75 years the island nation has accepted over 800,000 refugees for permanent resettlement (Parliament of Australia). However, in recent years the number of asylum seekers who arrive in Australia have steadily increased, sparking a nation-wide political debate and change in policy.
Due to Australia being a relatively secluded island nation, and the difficulty of obtaining valid travel documents due to the harsh conditions of refuge seeking, many asylum seekers arrive to the country by boat. While this is not a new phenomenon, the spike in the number of individuals arriving by boat has made national news many times, causing asylum seekers in Australia to become known as “boat people,” often with a negative connotation. These new arrivals were usually sent to Christmas Island, an Australian territory about 2000 kilometers off the north west shore of the mainland while their asylum claims were evaluated, before eventually being resettled on the mainland (Parliament of Australia).
| Year | Number of Asylum Seekers Arriving by Boat |
| 1994 | 953 |
| . . . | . . . |
| 1999 | 3721 |
| 2000 | 2939 |
| 2001 | 5516 |
As the number of boat people increased, so did general public alarm about national security and the refuge seeking process. The “boat people” were thought to be ‘queue jumpers,’ ‘illegals,’ and as having taken the spot of a more deserving refugee. The Prime Minister of Australia at the time, John Howard, expressed verbally that it was “increasingly difficult to explain how long we [the Australian government] could go along accepting this [resettling asylum seekers arriving on boats]” (Metcalfe, 2010).
Then came the Tampa.
The Tampa marked the beginning of a new era of Australian policy toward asylum seekers. In August 2001 a Norweigian freighter named Tampa arrived near Australian waters. The crew of the Tampa had intercepted the Indonesian fishing boat Palapa, which due to being crowded with over 400 refugees mainly Hazara from Afghanistan, Iraq and Pakistan had become stranded in international waters on the verge of sinking (Metcalfe, 2010). This time, the reaction was different. Instead of redirecting the boat to Christmas Island, Prime Minister John Howard insisted that the asylum seekers were returned to the Indonesian mainland. The Tampa was not allowed to enter Australian waters, much to the distress of the asylum seekers on board, and the crew members of the freighter who did not have the clearance to be carrying that load.
The table turned to Foreign Affairs Minister Alexander Downer to find a solution on how to deal with this new batch of boat people. On September 1 2001 an agreement had been reached with the president of the Republic of Nauru, an island nation some 4500 kilometers of the the north east coast of the Australian mainland. In exchange for financial support from the Australian government, the Nauruan government agreed to take up the task of processing the refugee claims of the Tampa asylum seekers (Metcalfe, 2010)
Described as “policy making on the run”, the new engagement was called the Pacific Solution, and became Australia’s main policy for processing asylum claims from 2001-2008 (Metcalfe, 2010). Under the Pacific Solution all asylum seekers arriving in Australian waters were automatically redirected to processing centers on Nauru, and eventually Manus Island, in Papua New Guinea. While officially this engagement ended in 2008, as stated by the UNHCR, Australia continues to send those arriving in their waters to these processing centers (UNHCR, 2008) . This practice was picked up again regularly in 2012 (Gleeson, 2016). The question that must be asked is whether or not Australia’s policies are legal, and what effect do they have on the populations who are simply seeking a new beginning?
Legal Arguments
What is happening on the Island of Nauru , although a humanitarian disaster, is not in violation of any laws. In 2001 the Australian government passed a migration amendment, excising the mainland along with Chritsmas , Ashmore and Cartier Island, from its migration zone. Under the 2012 legislative migration amendment, Australia added provisions to the preexisting 1958 migration act solidifying its new immigration practises. Anyone who lands on Australian soil through the means of illegal maritime transportation is considered an ‘unlawful non citizens’, who can not apply for a visa or claim asylum, they are taken to a ‘ regional processing facility’ which will then assess the claim of refugee status. ( Australia Parliamentary Library). These amendments also only affect the domestic law of Australia, meaning that all areas of Australia, whether in the migration zone or not, are still under the obligations laid out by the refugee convention of 1951, therefore Nauru is not breaking international law. ( Australia Parliamentary Library ). However the island of Nauru does not fall under Australian immigration law and those at these facilities are not under the domestic law of Nauru, essentially they are within a legal limbo, legal and administrative errors go unattended to. ( Australia Parliamentary Library ) The argument for such changes is the no advantage principle, those arriving by boat do not have the ability to avoid regular migration laws and practises(Australian Parliament). There has also been an argument about the legality of the ways in which Australia has been intercepting migrant vessels,however this is also not illegal. Under Australia’s 2001 Immigration act ‘a ship may be detained or brought to another place if it is suspected to be in violation of that act’, which means those circumventing protocol by attempting to gain access to Australia in unauthorized migrant ships, are in violation of the act. ( Papastavridis, Efthymios, Pg, 194-195). As well under international law intercepting migrant vessels is not illegal, countries are protected by legal grey areas such as the protection principal. A state can claim jurisdiction over crimes injurious to its national security on the high seas, and under UNCLOS article 110 ‘ the right to visit ‘ a country can board a ship on suspicion of illegal activity , including the slave trade or without nationaltiy ( ie not flying the country of orgin flag ). ( UNCLOS Article 110 ). What this means is that migrant ships, with no flag and overpacked with bodies could potentially be considered a suspicious vessel. Australia is essentially operating their immigration policy through deterrent tactics on the fringes of the law and within obscure loopholes and areas that are not properly defined within international law.
Humanitarian Solution/Practice/Activism
The holding of migrants, refugees, and asylum-seekers within detention centres, such as the one on Nauru, is based upon a “technology of distance, which not only removes asylum seekers from the territory of the state, but also relies on ambiguous geographies of responsibility and operational invisibility” (Dickson, 441). Australia’s manipulation of legal loopholes has been previously established, but just as important to the operation’s success was the government’s repeated attempts to block journalists and humanitarian groups from accessing the camps to evaluate their conditions. Their success in this aim was largely dependent on collaborating with the government of Nauru – Australia used its foreign aid in a “neo-colonial” manner, in which the amount of aid Nauru received directly correlated with their level of cooperation in handling the migrants detained on their shores (Dickson, 442). One such example of this collaboration to censor the media was the Government of Nauru’s decision to drastically raise the price of a journalist visa from 200 to 8,000 Australian dollars (ABC News, 2014). The sole purpose of this policy was to restrict information from going back to Australia, and reducing domestic political pressure.
Nonetheless, despite the efforts of the Australian government, information of the harsh conditions within the detention centers would eventually flow back to the Australian people. With pressure mounting, an Australian Senate Committee came to the conclusion that “due to their financing of the centre, [Australia] was legally responsible for the individuals in the centres, and that their refusal was contrary to their international obligations” (Dickson, pg 443). Subsequently, the centres became slightly more transparent as outside sources were allowed to investigate and provide aid. Initially, conditions were found to be prison-like, and despite slight improvements due to international pressure and intervention, even four years later the detention centre on Nauru was plagued with health crises. In 2018 alone, there were over 78 cases of self-harm or suicide due to a combination of awful conditions and detainees feeling an acute lack of hope (The Guardian, 2018).
Humanitarian organizations and NGOs such as Médecins Sans Frontières were initially granted access to provide services to detainees, but following their repeated condemnation of the Australian government many were expelled from Nauru over the subsequent years (The Guardian, 2018). These expulsions and the growing humanitarian crisis within the detention centres sparked thousands across Australia to take to the streets in protest of the Australian government, and the domestic political pressure has forced the government to change course. The Morrison government had promised to remove all children from the detention centres by the end of 2018, a goal that they are still working to accomplish. Today, the detention centres remain open, and while some have been able to be processed, thousands remain in these camps with even their “bare needs” failing to be met.
Works cited:
Dickson, Andonea. “Distancing Asylum Seekers from the State: Australia’s Evolving Political
Geography of Immigration and Border Control”
Gleeson, M. (2016). “Offshore: Behind the Wire on Manus and Nauru”. University of New South Wales Press
Metcalfe, S. (2010). “The Pacific Solution”. Australian Scholarly Publishing.
UNHCR (2008). “Australia’s Pacific Solution draws to a close”. https://www.unhcr.org/news/latest/2008/2/47b04d074/australias-pacific-solution-draws-close.html
https://www.abc.net.au/news/2014-01-09/nauru-visa-fee-increase-censorship/5191108
Dr. Meredith Terretta 