What The Refugee Bill’s Defeat Means (Australia)

What the refugee bill's defeat means
It's a victory for the human rights activists, but it also reveals the flaws in the 1951 convention, writes Editor-at-large Paul Kelly
The Australian

August 16, 2006

THE Australian Parliament has decided that the 1951 Refugee Convention be seen essentially as a human rights instrument, thereby defying the reality of global refugee policy for the past half century.

John Howard's withdrawal of his migration bill is a political defeat for the Prime Minister, a victory for the Labor Party and, in the battle over ideas and values, a triumph for the lawyers, non-government organisations and human rights lobby routed in 2001.

The only conclusion is that Howard misjudged the political mood and should not have advanced this bill. But moods on border protection are dictated by boats. Any future arrival of boats from Papua with refugees who wave their flag and champion their independence will provoke another shift in public opinion. The mood has oscillated a lot since 2001 and volatility is to be expected.

The agony of refugee policy lies in its duality. The convention is a landmark in global human rights and a powerful political instrument. This duality of humanitarianism and politics is the source of its complexity and the disputes that it triggers.

The Howard Government's measures in 2001 and 2006 arose from the manipulation of the convention. In 2001 it was manipulated by an organised people-smuggling industry that targeted Australia and took high profits to transport people across several national jurisdictions to Australian shores. In 2006 in different circumstances the convention was manipulated in the political cause of Papuan independence.

None of this should be a surprise. The convention was conceived in political manipulation.

It originated in a world shocked by the Holocaust and the Nazis and locked in the Cold War, a world that no longer exists.

The convention initially operated as a de facto arm of Western foreign policy. Refugees from the Soviet bloc were prizes welcomed in the West as proof of the superiority of liberal democracy. The system's viability depended upon three factors.

First, the border controls of the communist bloc in Europe limited the number of outflowing refugees (Hungary in 1956 and Czechoslovakia in 1968 being rare exceptions).

Second, refugee flows outside Europe did not become a political issue. This was because, until 1967, the formal responsibility of the United Nations High Commissioner for Refugees did not extend into Asia, Africa or the Middle East and such refugees were resettled within their own regions or under special UN arrangements (refugees from communist China were settled in Hong Kong and refugees from African wars usually settled in nearby nations, often returning home when hostilities ceased).

Third, refugee flows during the Cold War were often facilitated by an overlap between human rights and national polity – witness refugees moving from Cuba to the US, from Tibet to India, and, above all in the 1970s, from Indochina to Western nations involved in the Vietnam War where the US and Australia accepted the responsibility that flowed from their foreign policy.

As Harvard University's Monica Toft argued: “The end of the Cold War changed every variable of the refugee equation. Instead of trickles of skilled, educated and enterprising refugees, OECD countries would soon be bracing to receive floods of peoples of all ages, skills and backgrounds” – a situation where “criminals, the infirm, mentally ill, drug addicts and fanatics of all stripes would join with the masses of normal citizens seeking asylum in the West where they would be greeted with as much enthusiasm as a plague of locusts.”

Yet the convention remained the only effective global instrument to govern refugee policy. It had to be adapted to new challenges. Without a convention there would be no basis for refugee responsibility and UN chief Kofi Annan said the convention remained as “a perfectly good basis for separating those who genuinely need international protection from those who do not”.

Post Cold War the definition of a refugee became more complex – state persecution was difficult to separate from state failure. The reasons for refugee flight and people movement became more numerous. In the West, the human rights case for refugees was decoupled from the national interest case for refugees. This was the decisive event.

It leads directly to Australia's dilemma – the refugee argument has been reduced to a human rights argument and, in the cause of Papua, a human rights argument mounted against the foreign policy interest. This is an unstable political compromise that will endure only until it is tested with more boats.

Howard's 2006 bill brought to its zenith this conflict over whether refugee policy should be devised for human rights or the national interest. Frankly, Australia is in a lose-lose situation until the two elements can be brought back into harmony.

The Papuans who came here earlier this year are both refugees and agents of the Papuan independence campaign. To pretend they are one and not the other is an exercise in denial. Howard decided that Australia would not be hostage to a tactic that saw asylum-seekers “make the hazardous canoe journey to Australia rather than walk to Papua New Guinea” to quote parliamentary secretary Andrew Robb.

But Howard failed because Labor was able to turn the populism inherent in border protection against the Government by depicting his reaction as appeasement of Indonesia. This was always the weakness in Howard's case because he was reacting to Jakarta. Labor found in the Indonesian appeasement a deeper populism than Howard could sustain with his border protection mantra.

It was a stunning reversal of the politics of 2001 made possible because the absence of boats drained urgency from the Government's case and because the Papuans are seen as victimised neighbours (a variation of the victimised East Timorese).

The Australian Parliament, in its rejection of the bill, accepted the force of the human rights position. It is an intellectual victory for the lawyers and human rights lobby and its interpretation of the convention – namely, that its sanction lies in law and morality. This is a compassionate position yet it defies the experience of the past half century and the need for a national interest rationale to sustain public support for refugee policy within democracies.

The unpalatable truth is that the 1951 convention would not be ratified by Western nations today. It exists in uncertain balance as governments weight their international responsibility with their national interest responsibility to their own citizens.

There is morality on both sides of these equations, a further truth incomprehensible to most of the Australian media.

Australia is now left hostage to Indonesia and the Papuan independence movement. It has opened the door to becoming a staging post for Papuan independence in a decision by the Australian Parliament taken honourably but whose viability remains to be tested.