Australia's Boat People: Asylum Challenges and Two Decades of Policy Experimentation
The images viewed worldwide in 2011 of asylum seekers in Australia mounting the rooftops of their detention centers in protest and later setting fire to the buildings, were a visible consequence of the Australian government's inability to find a successful solution to its asylum challenges. The riots were a manifestation of anger and frustration with the government's policy of mandatory detention for asylum seekers until their status is determined — a process that can take more than two years. Mandatory detention, however, is not the only controversial element of Australia's position on asylum seekers. The country has been criticized for avoiding its responsibilities under the United Nations refugee conventions by making it difficult for asylum seekers to claim refugee protection on Australian soil.
For two decades, Australia has experimented with different asylum policies in response to an increase in refugees and asylum seekers entering the country. This article focuses on the various policies regarding asylum seekers who attempt to reach Australia by boat in order to claim refugee status — those colloquially known as boat people. These migrants typically make their way from some of the world's trouble spots — such as Afghanistan and Sri Lanka — to Indonesia or Malaysia, where they engage professional smugglers who arrange travel to Australia on small freighters or large fishing boats. Despite a relatively small number of boat people, their fate has sparked a contentious public and political debate, which has resulted in the current political stalemate.
Refugees and Asylum Seekers in Australia
Australia has historically been an ideal choice for asylum seekers fleeing numerous strife-ridden countries — from Vietnam during the 1970s to Afghanistan in the 2000s. Because Australia is a signatory to the United Nations' 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, any person who falls within the convention's definition of a refugee is entitled to government protection. (Asylum seekers are also entitled to refugee protection until their status is determined. The main distinction between refugees and asylum seekers is their location. Refugee determinations take place outside the country of settlement; asylum claims are considered within the country.) Asylum seekers are drawn to Australia because it offers a highly developed economy and infrastructure, a stable democracy with little conflict, and has a sizeable migrant population. However, the country's geographic isolation makes it expensive and difficult to reach.
Given this context, it is important to establish the size of Australia's refugee and asylee populations. While the Australian Bureau of Statistics reports that the population of resident refugees and asylees has grown for several decades, the numbers are relatively small. According to the United Nations High Commissioner for Refugees (UNHCR), Australia had 23,434 designated refugees living in the country in 2011. (By comparison, Canada had 164,883 refugees and Germany, which hosted the fourth-largest number of refugees worldwide, had 571,685. Pakistan hosts the greatest number of refugees, 1,702,700.)
Similarly, the number of asylum seekers awaiting a decision on whether they will be granted refugee status is relatively low compared to other countries. UNHCR reported that Australia had 5,242 official asylum seekers whose cases were pending at the end of 2011, which does not even place Australia in the top 40 states with the largest number of asylum seekers worldwide. Of the 9,200 refugees resettled in Australia in 2011, only about 4,800 of them initiated their asylum claims from inside the country. In 2011, there were some 4,500 migrants who entered Australian territory by boat, according to the Immigration Department and Minister for Home Affairs (up from about 2,700 boat people in 2009).
Notwithstanding their relatively small numbers, the issue of boat people is fiercely debated, spurred by extensive media reports of rescues from foundering ships and politicians from both sides of the aisle eager to use the issue to their advantage. For instance, in October 2001 the government harnessed anti-immigrant sentiment to electoral advantage in what became known as the “Children Overboard Affair.” The Liberal-National coalition claimed that a vessel full of asylum seekers had thrown children overboard off the coast of Christmas Island in an attempt to be picked up by the Australian coast guard and taken to the mainland for refugee protection. Immigration Minister Philip Ruddock and other officials made this claim the day before the writs were issued for that year's federal election, with the government portraying itself as strong on border security. After the election, it was revealed that photographs purporting to show children struggling in the ocean after being thrown overboard were in fact taken after the vessel had sunk.
As with immigration in other countries, some politicians have argued that without strict policy, the country's shores would be inundated with asylum seekers — genuine and otherwise. Others contend that in addition to being saddled with the financial burden of having to process and provide for these claimants, the presence of more migrants would lead to an increase in crime.
Scholars have noted Australians' hardening attitudes toward low-skilled, non-white migrants such as Middle Easterners and Asians for more than a decade, driven by fear the migrants could alter the national identity and culture of Australia for the worse. In a historical context, the country's national identity is rooted in its predominantly white immigration history. As well, Australia's boat people are seen by many as queue jumpers and unauthorized immigrants — not genuine refugees.
For two decades the Australian government has been walking the tightrope of satisfying its obligations under the UN refugee conventions, while not upsetting the conservative electorate by openly welcoming boat people.
Two Decades of Policy Experiments: Historical Context and Shifts
Though traditionally seen as a nation of immigrants, Australia has a historical preference for a certain type of immigrant. Under the provisions of the Immigration Restriction Act of 1901 — which formed the basis of the “White Australia” policy — the government used dictation tests in a European language selected by immigration officers to limit the number of non-white migrants to Australia. Until the end of World War II, Australia further legislated and entrenched a preference for admitting British migrants over all others, and it was not until the passing of the Racial Discrimination Act in 1975 that the “White Australia” policy was conclusively laid to rest. However, even with the policy's end, the country remains protective of which people are granted entry.
Australia's history of accepting refugees mirrors its general immigration policy. As with most countries, Australia had a fairly ad hoc process of accepting refugees until the UN Convention Relating to the Status of Refugees was ratified in 1951. Prior to this, the majority of refugees accepted came from Europe. According to the Refugee Council of Australia, in the 1930s Australia accepted more than 7,000 Jews fleeing the Nazi regime. In the 1940s and 1950s, Australia welcomed more than 170,000 refugees, the largest groups being from Poland, Yugoslavia, Latvia, Lithuania, Estonia, Ukraine, Czechoslovakia, and Hungary. The Vietnam War led to the first significant increase in non-European refugees. From 1976 until 1986, some 94,000 refugees from Laos, Cambodia, and Vietnam settled in Australia — with about 2,000 of those arriving by boat. In the 1980s and early 1990s, there was a clear demographic shift away from “typical” Western European asylum seekers in Australia. This resulted in concerns being raised by the electorate that Australia was becoming a target destination for asylum seekers from Sri Lanka, China, Vietnam, and states in Eastern Europe.
Incidents and Resulting Policy Experiments
Since the early 1990s, the government has experimented with a number of tactics to prevent and disincentivize these migrants from reaching Australia to claim asylum. In addition, the government has sought to divert asylum seekers to neighboring states by negotiating for those states to accept them. These policies have typically had their roots in the government's response to specific incidents involving boat people.
The Australian Policy of Mandatory Detention
In 1992 the government of Prime Minister Paul Keating of the Australian Labor Party introduced a policy of mandatory detention in the wake of an increase in would-be Chinese, Cambodian, and Vietnamese refugees. The policy — which remains today — requires asylum seekers be held in mandatory detention while they await a decision on their refugee claims, or be deported. The law limits the grounds on which Australian courts can hear matters relating to mandatory detention and places no time limit on detention, making detention indefinite, and, according to the Australian Human Rights Commission, effectively exempt from judicial review.
Extraterritorial Processing: The Tampa Affair and the Pacific Solution
Asylum in Australia came to international attention in August 2001 when a Norwegian freighter, the MV Tampa, rescued more than 400 Afghan asylum seekers whose vessel had sunk in the Indian Ocean as they attempted to reach Australia. Against the instruction of Australian authorities, but in accordance with international law and at the urging of the rescued asylum seekers, the Tampa sailed to the closest port, on Australia's Christmas Island. There, Australian authorities refused to allow the Tampa to dock; once on land, the asylum seekers could claim refugee protection.
From this emerged Australia's next policy experiment: extraterritorial processing. In what became known as the Pacific Solution, Australia negotiated with Nauru, one of its Pacific neighbors, to have those rescued by the Tampa sent to an extraterritorial detention center in the tiny island nation in exchange for a five-fold increase in development assistance funding. Eventually, 150 Afghanis detained in Nauru were accepted as refugees by New Zealand, and the rest were either granted Temporary Protection Visas in Australia and repatriated when the Taliban government was overthrown or granted refugee status in Nauru. The Nauru detention center was used until Australian Prime Minister Kevin Rudd's government announced in December 2007 that it would no longer make use of the center.
Excise of Territory
The Tampa Affair spurred the Australian government to quickly resolve the issue of its outlying islands becoming a closer landing point for potential asylum seekers. In September 2001, a month after the Tampa incident, the Australian federal Parliament passed legislation that excised island territories from the Australian “migration zone.” This law means that even if asylum seekers are successful in reaching Christmas Island, they are not eligible to claim asylum until they reach mainland Australia. The legislation limits the ability of boat people to invoke the state's obligations under the refugee conventions.
While many of the migrant-bearing vessels that run into difficulty en route to Australia are heading for Christmas Island, this is largely because of the position of the island — some 970 miles from the Australian mainland but only about 310 miles south of the nearest point in the Indonesian archipelago. The island remains a useful restocking point for the trip to the mainland and the sensible place to head if difficulties are encountered during the crossing.
Other Attempts at Extraterritorial Processing: The East Timor Solution and the Indonesian Solution
Nauru was not the only aid-receiving neighbor Australia approached in 2001 about taking asylum seekers from the Tampa. The newly formed government of East Timor had agreed to accept boat people; however, then UN Secretary General Kofi Annan stepped in to block the plan as he did not think the fragile Timorese government and infrastructure could yet cope with asylum seekers.
Similarly, having ended its use of the Nauru center in 2007, the Rudd government had to consider what to do with 78 Sri Lankan asylum seekers rescued at sea in 2009 between Indonesia and Australia by the Oceanic Viking. In what became known as the Indonesian Solution, the government negotiated with Jakarta to accept them. Rudd hoped this policy would distinguish his government as humane and respectful of international and humanitarian law — although Indonesia is not a party to the Refugee Conventions.
However, this solution ran into numerous problems. A long standoff ensued in an Indonesian port in which the asylum seekers refused to disembark the Oceanic Viking, various Indonesian local and provincial governments were loath accept asylum seekers in their territories, and reports emerged of inhumane treatment at Indonesia's immigration detention centers. Coupled with an estimated cost of $50 million to process asylum seekers on Indonesian soil, it became clear the Indonesian Solution was not a politically palatable way for the Australian government to move forward on the boat people issue.
With elections in 2010, Prime Minister Julia Gillard signaled a revival of the East Timor Solution. However, she did so without first consulting the Prime Minister of East Timor, who flatly rejected the proposal.
A New Attempt: The Malaysian Solution
Since the closing of the detention center in Nauru and the difficulty surrounding the Indonesian solution, asylum seekers have for the most part been mandatorily detained at Australian detention centers. By April 2011, extraterritorial processing resurfaced as a politically preferred solution. In what many saw as the policies of mandatory and indefinite detention coming home to roost, riots broke out at both the Christmas Island and Sydney immigration detention centers, and buildings were badly damaged or burnt to the ground. The protestors, some of whom had been held in detention for more than two years pending a decision on their status, demanded that government officials meet with them to discuss their concerns.
In the wake of the riots, Gillard's government announced a deal with Malaysia by which Australia would exchange asylum seekers for people who had already been assessed as genuine refugees. But the Malaysian Solution suffered from the same public relations problems as the Indonesian Solution. Like Indonesia, Malaysia is not a party to the UN Refugee Conventions and has a chequered history in its treatment of refugees. According to a 2009 report from the United States Committee for Refugees and Immigrants, Malaysia ranked among the world's worst in refugee treatment, with asylum seekers frequently deported as unauthorized immigrants and sold to Thai gangs, who then charge to smuggle them back into Malaysia. The human-rights issues associated with the situation made the new policy politically unpalatable in Australia.
In August 2011, a legal hurdle was added. The High Court of Australia ruled that such a transfer would be contrary to the Migration Act and thus invalid. The court directed the government to consider re-establishing onshore asylum claim processing. Still, Prime Minister Gillard and her government vowed to continue with the Malaysian Solution. But a legislative attempt to work around the ruling by amending the Migration Act was defeated in late 2011. This left the government at an impasse, with only the broken Indonesian Solution still technically in place. In 2012 a similar bill sought to amend the Migration Act, but failed when the Green Party indicated that it would block the legislation in the Senate.
An Australian Solution?
Australia has experimented with two basic solutions to the boat people issue. First, the country has tried to limit the number of boat people claiming asylum by excising island territories from the migration zone, turning vessels around before they reach Australian territory, and disincentivizing Australia as a target destination through a policy of mandatory detention. And second, Australia has used extraterritorial processing centers in neighboring countries to avoid allowing asylum seekers to invoke their right to claim refugee protection in Australia.
Recent debate has resulted in a political stalemate regarding how Australia should deal with boat people, with neither of the major political parties considering amendment to current policies. The argument has come down to which existing “solution” should be preferred. The current government's preference for the Malaysian Solution has not won favor with other political parties — even after a number of concessions. The main opposition party, the Australian Liberal Party, prefers a return to the Pacific Solution with a detention center based solely in Nauru. Only the Greens Party has noted it would abolish offshore processing and reconsider the policy of mandatory detention.
Meanwhile, the international media and global humanitarian groups continue to report on fatalities associated with asylum seekers attempting to reach Australia by boat. The response by Australian politicians, media, and the electorate to these events generally has not altered the debate. Significant challenges remain surrounding the formulation of a solution that might include a more permanent commitment to onshore processing of asylum claims, the reintegration of island territories into Australia's migration zone, and a review of the practice of mandatory detention.
_1901. Immigration Restriction Act 1901 (Australia).
_1975. Racial Discrimination Act 1975 (Australia).
_2001. Migration Amendment (Excision from Migration Zone) Act 2001 (Australia).
_2001. Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Australia).
_2001. Tampa Affair: How the U.N. Blocked East Timor Solution. Sydney Morning Herald. October 22, 2001.
_2011. Protesting asylum seekers set fire to Australian detention centre. The Guardian. April 20, 2011. Available online.
_2011. Extra Police Sent After Christmas Island Detention Centre Riots. The Australian. March 18, 2011. Available online.
Asylum Seeker Resource Centre. 2010. ASRC Fact Sheet and Myth Buster. Asylum Seeker Resource Centre, August 2010. Available online.
Australian Department of Immigration and Citizenship. 2011. Humanitarian Program outcomes for 2010–11. Canberra: Australian Department of Immigration and Citizenship, 2011. Available online.
Australian Department of Immigration and Multicultural Affairs. 2001. Immigration: Federation to Century's End, 1901–2000. Australian Department of Immigration and Multicultural Affairs: Canberra, 2001. Available online.
Australian Human Rights Commission. 2004. A Last Resort? National Inquiry into Children in Immigration Detention. Canberra: Australian Human Rights Commission, 2004. Available online.
Dunn, Kevin M., James Forrest, Ian Burnley, and Amy McDonald. 2004. Constructing Racism in Australia. Australian Journal of Social Issues 39 (4): 409-30.
Fitzpatrick, Stephen and Matthew Franklin. 2009. PM Kevin Rudd's $50m Indonesian Solution. The Australian, October 23, 2009. Available online.
Hammarberg, Thomas. 2011. Report Following Visit to Malta from 23 to 25 March 2011. Council of Europe Commission for Human Rights. CommDH (2011): 17, Strasbourg, June 9, 2011. Available online.
Hansen, Susan, Anne Pedersen, and Susan Watt. 2006. The role of false beliefs in the community's and the federal government's attitudes toward Australian asylum seekers. Australian Journal of Social Issues 41(1): 105-24.
Hathaway, James. 2005. The Rights of Refugees under International Law. Cambridge: Cambridge University Press, 2005.
Kelly, Joe. Greens Kill Off Rod Oakeshott Bill for Offshore Asylum-seeker Centre. The Australian, March 13, 2012. Available online.
Lowes, Sasha. 2012. The Legality of Extraterritorial Processing of Asylum Claims: The Judgment of the High Court of Australia in the 'Malaysian Solution' Case. Human Rights Law Review 12(1): 168-82.
Malkin, Bonnie. 2011. Asylum Seekers Torch Australian Detention Centre in Night of Riots. The Daily Telegraph, April 21, 2011. Available online.
Marr, David. 2006. Truth Overboard – the story that won't go away. Sydney Morning Herald, February 28, 2006. Available online.
Refugee Council of Australia. History of Australia's refugee program. Available online.
Simon, Kathryn. 2008. Asylum Seekers. Briefing Paper 13/08, NSW Parliamentary Library Research Service, 2008. Available online.
UN High Commissioner for Refugees (UNHCR). 2010. 2009 Global Trends: Refugees, Asylum-seekers, Returnees, Internally Displaced and Stateless Persons. Geneva: UNHCR, 2010. Available online.
UNHCR. 2001. Australia/Tampa: UNHCR brokering 3-point plan. UNHCR, Briefing Notes, August 31, 2001. Available online.
United Nations. 1951. Convention Relating to the Status of Refugees 1951 (entered into force April 22, 1954).
United Nations. 1967. Protocol to the Convention Relating to the Status of Refugees. (entered into force October 4, 1967).
United States Committee for Refugees and Immigrants (USCRI). 2009. World Refugee Survey 2009 – Malaysia. Washington, DC: USCRI, June 17, 2009. Available online.