A short history of Australian refugee policy
Most refugees in the world cross the border to a neighbouring country. The largest hosts of refugees are not developed countries, but countries much closer to home, such as Turkey and Lebanon for those in the Middle East, and countries in Africa. The easiest way to flee is often over a land border.
Australia is relatively unusual in that it it does not border another country. Our isolation means that it is much easier to control who comes into our country. This makes it much harder for refugees to seek asylum in Australia, but also means that refugees coming by boat can be seen as a threat by ordinary Australians.
This sense of threat and fear has been stoked by politicians on both sides. This is a choice made by politicians. In the 1970s, when people started fleeing Vietnam in boats, then Prime Minister Malcolm Fraser took the lead in resettling thousands of Vietnamese refugees.
However, when the Cambodians first started fleeing by boat to Australia in the early 1990s, the reaction was very different. The then Labor Government of the day immediately introduced laws to automatically detain these people – laws that remain the foundation of our detention policies today. The laws were challenged in the High Court, but in a fateful ruling the High Court found those laws were mostly constitutional.
As the numbers of people seeking asylum by boat and plane began to increase, governments in the 1990s of both persuasions introduced new measures, such as restricting their rights before Australian courts and tribunals.
The turning point was the election victory of John Howard in 2001, widely credited to his dramatic turning away of people seeking asylum on the Norwegian boat the MV Tampa. The Norwegian boat had rescued hundreds of people seeking asylum in danger on the sea, at the request of the Australian Government.
Facing an election that they were tipped to lose, the Australian Government then determined that they would not let these people into Australia. Instead, they were left on the boat for days while the Australian Government wrangled over what to do with them. Eventually, fearing a humanitarian crisis on his ship, which was not equipped to deal with so many humans in medical need, the Norwegian skipper started bringing the ship into Australian territorial waters. At this point, the SAS (the elite defence corps in Australia) boarded the boat in military uniform and commandeered the boat.
The sense of crisis, and the popularity of the government’s actions, allowed the then Liberal Government to pass a series of punitive laws which are the basis for our policies today.
The Pacific ‘Solution’
The signature policy was the so-called Pacific ‘Solution’. The people on the MV Tampa were sent to Nauru, a small island that was formerly a territory of Australia and, following the virtual collapse of their economy, is now heavily reliant on Australian aid and trade. A hasty agreement was made for Nauru to host the refugees while their claims were being determined. If they were found to be refugees, they would be resettled in Australia or elsewhere. An agreement was also negotiated later with Papua New Guinea for a similar arrangement on Manus Island.
This was the first version of the ‘offshore processing’ policy that has come to dominate Australian asylum policy again. Along with this policy, the Australian Parliament also passed laws which ‘excised’ Australia’s islands, such as Christmas Island, from our ‘migration zone’. This meant that anyone who did not first land on an island that was not ‘excised’ would not be able to apply for protection under Australian law, and the rights that applied to refugees and people seeking asylum in Australia would not apply to them.
This was enforced by Operation Relex, a naval operation which effectively turned back any boats with refugees that came to Australia. These ‘boat turn backs’ clearly undermined Australia’s obligations to refugees, and did nothing to ensure that they could find safety or dignity when they returned.
As well, John Howard also introduced the first version of temporary protection, where refugees would be given only three years on their visa and would be required to apply again after that to prove they still needed protection. This applied only to refugees who came by boat. The policy meant that many people could not feel safe, worrying always that they would be returned, and that they could not see their families again. However, one key difference is that once they got their second visa, that visa was permanent.
These policies were extremely controversial. The conditions on Nauru and Papua New Guinea were very harsh. Many objected to the underlying logic of denying refugees protection, and of rejecting our obligations under the Refugee Convention and as a humanitarian nation. There were unsuccessful court challenges and long protests.
Although most of the refugees on Nauru and PNG were resettled within a couple of years, there were still a handful of refugees left there by the time the Labor Government was brought back into power in 2007. Labor ended offshore processing formally in February 2008, and also ended temporary protection, granting all those with temporary protection visas permanent protection. There were also other modest efforts at reform.
However, the timing of these reforms coincided with a dramatic increase in the numbers of refugees in the world seeking protection. The wars in Iraq and Afghanistan, in particular, displaced millions of people, who sought protection elsewhere. The persecution of Tamils in Sri Lanka also increased in this period. A combination of factors led to an increase in boats coming back to Australia, typically from Indonesia.
The increase in boats became a strong political point for the then Liberal Opposition, which promoted a revised version of its punitive policies as the ‘solution’ to a complex problem. Meanwhile, the Labor Government scrambled to find other ways of dealing with the problem.
During this time, for example, the Labor Government introduced a system of processing refugee claims on Christmas Island differently from the way refugee claims are processed in mainland Australia. However, this policy collapsed after a High Court decision undermined the parallel system. The Labor Government also suspended the processing of some claims for several months.
A turning point came when dozens of people died in a dramatic crash on Christmas Island in December 2010. Australians were rightly horrified at the spectacle of desperate people drowning before our eyes. A sense of urgency now took over to resolve the crisis. In the midst of this, internal politics within the Labor Party had also resulted in the toppling of the Prime Minister in controversial circumstances.
One of the ‘compromise’ policies was known as the ‘Malaysia solution’, in which the country of Malaysia would agree to host people seeking asylum being processed in return for greater resettlement from Malaysia to Australia. In effect, refugees in Australia would be ‘swapped’ for refugees from Malaysia.
The policy was morally dubious and, as refugees in Malaysia do not enjoy many basic rights including the right to live and work lawfully, would have sent many people seeking asylum to conditions that fell well short of the protection owed them by Australia. In the end, though, the policy was doomed by a decision of the High Court, which interpreted the Migration Act as requiring that the government could not send them to Malaysia because Malaysia did not satisfy the conditions of an ‘offshore processing country’ established under the Act.
The new Prime Minister, Julia Gillard, established an Expert Panel. This Panel had barely a month to provide a compromise asylum policy. Its recommendations led to the re-establishment of offshore processing, and the introduction of a ‘no-advantage’ policy which meant that people already in Australia seeking asylum effectively did not have their claims processed at all. This was to be offset by a more generous Refugee and Humanitarian Program, which increased briefly up to 20,000.
The Panel’s report was handed down on 13 August 2012, when the ‘no-advantage’ policy was introduced. Soon after, the Australian Parliament passed legislation which removed the conditions in the Migration Act that had prevented the Labor Government from implementing the Malaysian solution. Instead, the Migration Act now gave the broadest of discretions to the government to send people offshore.
Further, the Act also extended the ‘excision’ policy so that even refugees who made it to mainland Australia would no longer be entitled to apply for protection. Instead, for refugees who came by boat, their claims would be ‘barred’ by the legislation until the Minister personally decided otherwise (known as a ‘bar lift’). This meant that all of these people could not even begin the process of claiming protection.
In September 2012, after another hasty agreement with Nauru, offshore processing resumed again to Nauru. Shortly after, an agreement was also made with PNG to resume offshore processing on Manus Island again. However, the numbers of people in Australia claiming asylum made it impossible to transfer all people to Nauru or PNG, and as with the first Pacific Solution, the agreement was to resettle them in Australia or elsewhere if they were found to be refugees.
This changed dramatically once again when Kevin Rudd was restored briefly to power after more internal politics within the Labor Party. One of his first acts was a surprise announcement on 19 July 2013 that, from then on, all people seeking asylum by boat would be sent to Nauru and PNG, and those sent there would not be resettled in Australia. This dramatic change in policy applied from that day, effectively trapping people seeking asylum in limbo. It was not clear then how Australia would manage to find a third country to resettle them, as neither Nauru or PNG agreed to resettle them permanently.
The return of the Liberal Government
By this time, Australia was facing another election, and the Liberal Party had come up with an even tougher set of asylum policies which it saw as a vote-winner. It was a harder version of the series of policies that were first introduced by John Howard, and they were introduced promptly when they won the election in September 2013.
These policies included:
- a hardening of the deterrence policies including the continuation of offshore processing, with the introduction of a new quasi-military Operation Sovereign Borders and the establishment of the Australian Border Force
- the introduction of a new and unfair process for determining the claims of those who came by boat, together with the removal of government-funded legal help for those claims, and
- the re-introduction of temporary protection, but this time without the possibility of permanent residence.
These policies are described in more detail in the next section.