Why were we surprised by the Tampa?

Peter Mares, author of the bestselling book Borderline: Australia\u27s Treatment of Refugees and Asylum Seekers, argues that the government\u27s response to the Tampa was consistent with its longer-term strategy, but could usher in a dangerous new phase in people smuggling. Peter Mares was speaking at a seminar at Melbourne University.I’D LIKE to begin by sharing with you some recent comments by our Prime Minister, John Howard, on international “human mobility”. Speaking in early February this year, Mr Howard described Australians, especially young Australians as a “much travelled and much travelling people”. In this context he said the September 11 terror attacks were not only an “awful attack on a huge metropolis”, but also “an attack on the capacity of the world to maintain that human mobility, that easy movement of people, particularly amongst the young, which has become a constant characteristic of the experience of nations such as ours”. John Howard, “the young travellers’ defender”, as the headline in The Australian aptly put it . The same John Howard who prevented 433 rescued asylum seekers from setting foot on Australian soil, and then called out the national navy to intercept subsequent boatloads of Afghans, Iraqis and Iranians - most of them young, many of them in fact just children - and send them packing back to Indonesia. “Human mobility that easy movement of people.” John Howard’s comments give us an idea of what is really going on here - Australia, an affluent, developed nation, demands for its people the right of free travel throughout the world, while simultaneously constructing a fortress that will keep others from arriving on our shores, unless of course they too come from affluent, developed nations, or from the upper strata of society in poorer countries. In other words, if you can afford to visit Australia as a full fee paying student or a wealthy tourist, then we will let down the drawbridge and grant you entry. So why were we surprised by the Tampa? I am not trying to claim any special foresight here or to pretend that I could see the Tampa, or some similar vessel, steaming towards us through pre-election waters of 2001. No, quite the contrary, when the stand-off ensued, it took me a long time to realise its import and to understand the implications of the government actions. What I do mean to point out through my rhetorical question, is that the treatment of the Tampa, and of subsequent asylum boats, is entirely consistent with the thrust of Australian refugee policy prior to 28 August last year, and indeed, largely consistent with refugee policies as they have evolved elsewhere in the developed world. Simply put, the broad thrust of that policy is to stop people from ever crossing your frontier in the first place, in order to prevent them from invoking the protection obligations enshrined in the 1951 Convention on the Status of Refugees. Britain’s Foreign Secretary, Jack Straw acknowledged this in June 2000, when he was still Home Secretary and responsible for immigration. At a public forum in London, he pointed out that the 1951 Convention gives people facing persecution the right to claim asylum, but does not oblige any nation to admit people through its borders so that they can make that claim. The consequence of this contradiction, as Jack Straw admitted, is that asylum seekers are forced to break the law to escape persecution and seek safety . Abracadabra - “the refugee” becomes “the illegal”. When the Tampa arrived, these mechanisms were laid bare and those of us who were not busy applauding the government, were shocked to see how crude the business of border protection really is. But in fact, the very same processes have been operating for years, in an unobtrusive, bureaucratic way that does not discomfort us or offend our sensibilities. For example, Australia has immigration department officials posted at major airports in Southeast Asia, like Bangkok, or Kuala Lumpur. The job of these ALOs, or Airline Liaison Officers, is to help counter staff at the airport to detect document fraud - false passports, false visas - and to prevent people holding such documents from getting on a plane to Australia. In the 1999-2000 financial year, a total of 353 people were intercepted by Australia’s ALOs in Kuala Lumpur, Singapore, Bangkok, Hong Kong and Denpasar . We will never know how many of these people were refugees. To encourage the airlines to cooperate with this screening procedure, the Australian government also imposes hefty fines on any airline that inadvertently allows an inadequately documented traveller to land at an Australian airport, refugee or not. The current fine is $5000 per passenger. Of course such airport counter checks have already been preceded by another level of screening - the screening done when would-be travellers apply for a visa to come to Australia. Any applicant from a so-called “refugee producing country” will be screened against certain risk criteria. If Australia’s immigration officials assess that there is a ‘risk’ that a person might seek asylum after landing in Australia, then his or her application for a visa will be refused . This reached a level of absurdity in Indonesia when East Timorese who wanted to apply for a visa to visit Australia were forced to fill out their application forms on the footpath outside the Australian embassy in Jakarta - the fear being that if they were admitted to the embassy compound itself, then they might seek to claim asylum on the spot. Without a visa to get you past immigration controls, the only “legal” route to refugee protection is Australia’s much vaunted off shore humanitarian resettlement program, which has an upper limit of 12,000 places per year. This is the queue that Mr Ruddock so frequently accuses the boat people of jumping. I don’t have time here to go into all the detailed and varied reasons why the notion of a queue is a misnomer. Let me simply posit an alternative image in its place, one coined by David Corlett at La Trobe University, who argues that the more appropriate metaphor is “a ‘refugee heap’ out of which very few are plucked for resettlement in countries like Australia”. Given all the barriers erected on the legal route to Australia, it is hardly surprising that asylum seekers are willing to sell their land and whatever other possessions they have in order to scrape together enough money to engage the services of a people smuggler, and then risk a dangerous journey in an ill-equipped boat from Indonesia to an Australian territory in the Indian Ocean. So when the federal government prevented the Tampa from disembarking its passengers at Christmas Island, it was simply taking the next logical step in policy, closing off another route by which refugees might actually make it past our border controls, and so make a call on our obligations under the 1951 Convention. Again, this is not so different from what happens elsewhere, though it rarely happens so dramatically on the high seas, and so rarely attracts such scrutiny. The federal government’s ideal scenario was that the people rescued by the Tampa would simply be despatched back to Indonesia, and that the same would happen with any other asylum boats that enter our waters. This would be done under the rubric of “regional cooperation”. If the boat people wish to claim refugee status, they can do so at the UNHCR office in Jakarta, despite the manifest inadequacies of that option. This is the local equivalent of European policy where, for example, a Tamil asylum seeker who flies from Colombo to Warsaw, and then crosses the border from Poland into Germany, will simply turned be around at the German frontier, under agreements that asylum seekers must have their refugee claim assessed in the first European country in which they set foot. Of course Poland, unlike Indonesia, has signed the 1951 Convention, and so has undertaken to protect refugees and not to refoul them to a place of persecution. In choking off the maritime access route from Indonesia to Christmas Island, the federal government created the conditions in which children might be thrown overboard. I am not suggesting that this happened, as we know now it did not - but I must admit that when the story first surfaced, I did believe it. It was in my view conceivable that parents would throw their children overboard with life jackets on, though my conclusions about the reasons why they might do so were rather different to the views expressed at the time by the Prime Minister. Let’s look at the context. On the afternoon of Saturday October 6 2001, HMAS Adelaide, “a guided missile frigate designed to sink other warships” closed in on a 25 metre wooden-hulled boat carrying 223 asylum seekers . An inflatable craft was launched from the Adelaide and pulled alongside the boat, which was called the Olong. Sailors warned those aboard that they were heading into Australian waters without authorisation and instructed them to turn around. The Olong ignored the instruction and numerous subsequent warnings issued from the Adelaide in English, Indonesian, Lebanese and Arabic. By early morning on Sunday October the 7th, the Olong was just a few kilometres outside the territorial waters around Christmas Island. A couple of hours before dawn, after conferring with his superiors in Canberra, the Captain of the Adelaide shone a searchlight on the water in front of the Olong, and over a period of twenty minutes, sailors fired four bursts of warning shots into the sea. Still the Olong sailed on. The Adelaide then manoeuvred “aggressively close” to the Olong to slow it down, and sailors armed with batons and pistols boarded the boat and took control. They turned the Olong around and sent it back in the direction of Indonesia. By this time, there was great distress on board and some asylum seekers began attempting to disable the boat, by tearing off equipment and heaving it into the ocean. Eventually two people leapt into the sea. In this situation, would it really have been so surprising if a child were thrown overboard with a life-jacket on? Why might a parent do that? Perhaps because they believed that it was their child’s only hope of rescue; stuck abroad a listing, wooden ferry, overcrowded with hysterical and desperate people, choked by diesel fumes, having had warning shots fired over the bows in the dark, and now being forced away from the place where you were hoping to find sanctuary, a parent might indeed make the heart-wrenching decision to throw their child into the water, hoping that at least their son or daughter would be rescued and taken to Australia aboard the sturdy grey naval vessel that was both the cause of their anguish, and their only hope of salvation. Government senators have sought to muddy the waters in the kids overboard in inquiry, by demonstrating that whether or not children were thrown overboard, they did end up in the water as a result of the actions of asylum seekers in rendering their vessel unseaworthy. This may be true - the point however, is the context - these confrontations at sea were the product of Australia’s decision to stop the asylum seekers making landfall at almost any cost. The federal government’s response to the Tampa was policy on the run. All the signs indicate that the decision to prevent the asylum seekers from landing was primarily motivated by a desire to win the November federal election. The “Pacific solution” was really a “Nauru fix”, an arrangement cobbled together out of political necessity, and with an open cheque book, when it quickly became apparent that the government’s first preference of simply sending people back to Indonesia was not going to work, at least not initially. While the Tampa was still anchored off Christmas Island, the heads of Australian diplomatic missions around the region were receiving urgent cables, instructing them to sound out their host governments about the possibility of warehousing asylum seekers on Australia’s behalf. The pressure was coming from Prime Minister and Cabinet - the gut response in the senior ranks of the Department of Foreign Affairs and Trade was that the policy was wrong and that it would damage Australia’s reputation, as it almost certainly has done. But PM&C won the day and despite its shortcomings - despite the huge financial cost, despite the diplomatic damage, despite the uncertainty and distress experienced by the asylum seekers themselves - the Pacific solution nevertheless looks like succeeding, in its own narrow terms. There are many unanswered questions - what will happen to the refugees in Nauru or PNG who cannot find a resettlement place? What will happen to the non-refugees, who nevertheless cannot be sent back to their homeland? Will they, like many ‘failed’ asylum seekers in Australia, simply languish indefinitely behind razor wire because they cannot be sent anywhere else? Nevertheless, the narrow aim of the policy - preventing the arrival of asylum seekers on Australia’s shores - appears to have been met. Since the Tampa, no asylum seeker arriving by boat has managed to access Australia’s refugee determination system; since December, no boats have been detected even seeking to enter Australian waters. Three alleged smuggling syndicate bosses have been detained and intelligence reports suggest the number of people arriving in Indonesia en route to Australia has dropped dramatically. No doubt the changes in Afghanistan have helped. With the demise of the Taliban, Afghan refugees in Pakistan and Iran have more hope of returning home, and fresh outflows of refugees from Afghanistan itself have been halted, at least for now. There are still plenty of refugees from Iraq or Iran, Kurds and Palestinians and others who are seeking a durable solution to their plight, but they have been effectively deflected or diverted from Australia, for the time being. No doubt the smugglers will offer them passage to Canada, or the US, or a European destination, instead. And while many countries criticised Australia for its actions in the Tampa affair, there are politicians and bureaucrats taking note around the world, to see how this Australian experiment will pan out, and what might be gleaned from it to augment their own border defences. For example, the United States and Australia are discussing a kind of “refugee swap”. The US will resettle Afghan and Iraqi ‘Pacific solution’ refugees who were trying to make it to Australia, and in exchange, Australia will take Cuban and Haitian refugees who were trying to make it to the US. The logic here is that you offer a person protection as a refugee, but you make sure that they do not find that protection in a place of their own choosing - in other words, you thwart their “desired migration outcome”, to use one of Mr Ruddock’s favourite turns of phrase. As the Minister said recently in London: “What we\u27re looking to see is that people\u27s migration intentions of reaching Australia, even if they are refugees, is not realised - that is, that they will often go to places that they hadn\u27t anticipated they might be going to and hadn\u27t planned to go to.” The policy rests on an assumption that asylum seekers actually “shop” for their destination of choice - and in some cases, there is no doubt, asylum seekers will try to reach a country where they have relatives or friends. In my experience however, many “boat people” ended up in Australia by default, because that was the destination on offer from the smuggler they encountered. If they had been offered Canada or the US or Britain instead, then they would have gone there. Ironically the government’s success in November 2001 could be its undoing at the next election. Without the boat people, it may be harder for the Coalition to win an election. It could actually be in the interests of the Howard government to see a minor resurgence in people smuggling from Indonesia towards the end of 2004, so it can appeal once again to our base fears and beat the drum of border protection. For Labor meanwhile there must be a sense of relief. If the government’s harsh policies keep working for another three years, then the boat people are removed from the political equation, and the next election may be fought on ground more of Labor’s choosing, on issues like health care and education. Certainly Labor displays little inclination to unwind the government’s policies. Labor will not need to pursue the Pacific solution if the boats have stopped coming; except perhaps to wind it up quickly while revealing its true financial costs. Labor may tinker with detention arrangements on the Australian mainland, to allow some form of community release while asylum applications are assessed, particularly for families, but it will not walk away from a policy of its own making. In any case, if there are no boats arriving, then there will not be many asylum seekers in mainland detention anyway, only the few hundred who arrive each year by air, and the detention centres will slip back into the obscurity they enjoyed for most of the 1990s. If any asylum seekers do come by boat, they will detained at Christmas Island, where it is impossible for them to access the Australia’s refugee determination procedures, since Labor supported the government in declaring certain parts of Australia to be outside the operation of the migration act. That was one of seven far reaching pieces of legislation that Labor helped the government to rush through during the dying days of the last parliament. In the wake of the Tampa, the definition of a refugee was more narrowly defined in Australian law. A privative clause was introduced that prevents asylum seekers from challenging negative decisions before the courts. The actions taken in regard to the Tampa were made retrospectively legal, and Australian military and customs officials were empowered to board boats on the high seas, to take over the helm and direct them elsewhere. Political logic suggests that Labor will not move to rescind any of this legislation, because to do so would be to hand the Coalition a stick with which to beat it should any future boats arrive. However the success of the “Pacific solution” may be short lived, since history shows that the ultimate effect of policies of deterrence is not always predictable. An example of this is the Temporary Protection Visa, introduced in October 1999. TPVs limit the entitlements of those refugees who arrive in Australia without authorisation - in particular, preventing them from applying to sponsor family members to join them in Australia. The TPV was meant to deter people smuggling, by making Australia a less attractive destination. In fact it did the reverse, encouraging men who had already arrived to send for their wives and children to follow them on the boats, since it was now clear that they would never be able to come legally. For those just setting out on the journey, the TPV was an incentive for whole families to leave together, so men took wives and children with them, rather than going alone in an endeavour to establish a base first. As Mary Crock and Ben Saul document in their new book Future Seekers, children made up a third of the passengers arriving on the boats in 2001, an increase from around 13 per cent of passengers arriving in two years earlier. The post-Tampa legislation, which included increased restrictions on temporary protection visas, may well encourage a new twist in the people smuggling saga. Rather than delivering their passengers to Ashmore Reef or Christmas Island, and waiting to be spotted by CoastWatch as in the past, the smugglers may now seek to bring asylum seekers all the way to the Australian mainland, since only by arriving there, can they access Australia’s refugee determination procedures. The result would be a longer, more dangerous voyage, added suffering and more lives lost at sea. Another alternative is that people will seek to make it to the mainland, but rather than putting up their hands an asking for asylum on arrival, they may try to evade detection altogether. In other words, they will no longer actively seek to make themselves known to the Australian authorities which enables, quarantine health and security checks to be carried out. This would produce an even more highly criminalised, more violent and more sinister people smuggling trade, with the potential for migrants to end up in a kind of bonded labour until they pay off the cost of their journey. Whatever legal and physical fences Australia erects around its borders, in the longer term the pressure for greater “human mobility” will only grow. One year ago, 14 Mexicans - men and teenagers - died of exposure after trying to cross the Arizona desert to enter the United States. Smugglers had directed them onto a dangerous route known as “The Devil’s Path” in order to avoid stepped up border patrols elsewhere in the state. The Arizona desert itself only became a popular crossing point after stricter border controls were introduced in California and Texas in the 1990s. As the Economist magazine has commented developed nations “put up stronger barriers and force migrants to more dangerous measures”. The same logic saw 58 Chinese suffocate in the sealed back of a refrigerated truck while trying to cross the English Channel, and two boys from the Congo freeze to death after stowing away in the wheel well of a Brussels bound passenger jet. Unless there is a fundamental rethinking of refugee and migration policy world wide, to open up new, legitimate channels of movement, then we must expect to witness more such tragedies. • Peter Mares is a broadcaster with Radio National and Radio Australia and the author of Borderline: Australia’s Treatment of Refugees and As