Australia makes a U-turn with the revival of the Pacific Solution: should asylum seekers find a new destination?

• Published date: 22 September 2014
• Author: Pennington-Hill, Kaitlyn
• Date: 22 September 2014

I. INTRODUCTION

"The picture we had in our mind changed suddenly because the Australian authority started to treat us like criminals. They transferred us to the Detention Centre in the middle of the desert, far, far away from any people. We were just behind the razor wires with security around us all the time, day and night, watching us." (1)

This was the experience shared by a myriad of the 1,637 (2) asylum seekers who remained detained in Australian offshore detention centers between 2001 and February 2008 (3) while their asylum claims were processed and reviewed. (4) Mandatory detention in Australia is not a new policy, (5) nor is the country's policy of offshore processing, known as the "Pacific Solution," (6) which was formally ended on February 8, 2008. (7) However, what is new is the resurrection of the Pacific Solution by Prime Minister Julia Gillard just four years after she described the policy as "costly, unsustainable and wrong as a matter of principle." (8)

Human rights and refugee advocacy groups (9) widely criticized the Pacific Solution as being "contrary to the spirit and the letter of international law, is inhumane, is largely ineffective in reducing/containing the number of unauthorised arrivals and ... economically very costly." (10) Nonetheless, after an increase in deaths at sea," subjection to political attack for soft border protection, (12) and failed attempts to introduce alternative measures to deal with the increasing number of asylum seekers arriving in Australia by boat, (13) Prime Minister Gillard agreed to opposition pleas to reopen offshore detention centers. (14)

The purpose of this Note is to examine how, if at all, the reintroduced Pacific Solution differs from the highly criticized Pacific Solution of the Howard Government, and whether the Pacific Solution serves its purpose of discouraging new arrivals. (15) Part II of this Note provides a historical overview of Australia's refugee policy and the Pacific Solution; Part III examines international law relating to the Pacific Solution and the humanitarian and economical issues involved in such examination; and Part IV recommends changes that should be made to the Pacific Solution to ensure that Australia's U-turn is a step in the right direction.

II. HISTORICAL BACKGROUND ON AUSTRALIA'S REFUGEE POLICY AND THE PACIFIC SOLUTION

Australia historically supported strict immigration policies due to racial and ethnic discrimination, commonly referred to as the "White Australia" policy. (16) The Immigration Restriction Act of 1901 (17) used a difficult language test to favor Europeans and subtly exclude uneducated non-Europeans from admission. (18) Legislation following World War II concentrated on the removal of "Asian and other non-white migrants" (19) who fled to Australia to evade the war. In fact, to ensure that immigrants permitted to enter between the 1940s and 1950s did not compete with citizens for union jobs, legislation required immigrants to sign two-year contracts allowing the Australian government to determine their initial employment. (20)

The 1958 obliteration of the Immigration Restriction Act of 1901 and the abolishment of the "White Australia" policy by the Whitlam Labor Government in 1973 marked a movement towards migration policies absent overt racism and discrimination. (21) This movement continued as a bipartisan effort made by successive governments to foster the development of improved non-discriminatory migration legislation. (22) Since 1945, Australia has admitted approximately half a million refugees, making it "one of the highest rates of refugee resettlement per capita among industrialized states." (23) This has contributed to the international perception of Australia as a "leader among nations" (24) in providing protection for refugees. (25)

However, this perception is lost with regard to Australia's policy on "boat people.'" (26) Initially, the Australian public received the first influx of boat people, seeking asylum from the aftermath of the Vietnam War (1976-81), with sympathy. (27) Sympathy quickly turned into antipathy as continuing arrivals, (28) referred to in the press as an "invasion, flood and yellow peril," (29) created a skewed perception that Australia was losing control over its borders. (30) In reality, "[t]he number of unauthorized arrivals in Australia--whether by boat or other manner of transportation--is ... rather small by comparison to other industrialized asylum-providing states." (31) By the late 1970s Australia had three immigration detention facilities in Sydney, Perth, and Melbourne, (32) although only a little more than 2,000 people embarked to Australia in the first wave of Indochinese boat arrivals (1976-81). (33)

The next wave of boat people, who arrived beginning in 1989, (34) were met with the enactment of the Migration Legislation Amendment Act 1989, which "allowed officers to arrest and detain anyone suspected of being an 'illegal entrant.'" (35) This new policy essentially called for the "'administrative detention' for all people entering Australia without a valid visa ... while their immigration status was resolved." (36) Due to the relatively limited number of arrivals, some argued that "policy responses by governments to unplanned migration in Australia over the years [has] been excessive." (37)

Nonetheless, these protests did not stop the Keating Government from introducing mandatory immigration detention for unauthorized arrivals in 1992 with bipartisan support. (38) Initially, the Migration Amendment Act 1992 (39) was understood to be a "temporary and exceptional measure" (40) used to address "designated persons." (41) Subsequently, The Migration Reform Act 1992 (42) extended mandatory detention to all 'unlawful noncitizens' (43) when the Act commenced on September 1, 1994. The Act made a distinction between visa "overstayers" and boat people in that the former were able to avoid detention by acquiring lawful status with the grant of a bridging visa. (44) In contrast, bridging visas were not made available to boat people. (45) The Act also allocated liability to an unlawful non-citizen for the costs of his or her immigration detention due to the high costs of mandatory detention. (46)

The purpose of extending mandatory detention to all unlawful non-citizens was to "effectively regulate not only the determination of refugee status but also the removal of people who do not establish an entitlement to be in Australia." (47) Successive governments have claimed that mandatory detention is an integral part of supporting "the integrity of Australia's immigration program" and ensuring "the effective control and management of Australia's borders." (48) When John Howard won the federal election on March 2, 1996, he was sworn in as the Prime Minister of a country "preoccupied with domestic control over transnational human movement." (49) The Howard Government sustained this preoccupation by proposing legislation designed to reduce further boat arrivals and limit the number of people in detention. (50)

This legislation began with the introduction of Temporary Protection Visas ("TPVs") in October of 1999. (51) TPVs allowed for many detainees who had been granted refugee status to be released into the community, but only on a temporary basis. (52) Although TPVs were widely criticized (53) by many, this did not discourage Howard from pushing a step further in response to the events of August 2001.

On August 26, 2001, Australian search and rescue authorities located the "biggest boatload of asylum seekers ever to attempt to reach" Australia (54) between Indonesia and Christmas Island. (55) The sinking boat (56) was in need of assistance when Captain Arne Rinnan of a Norwegian container ship, (57) called the MV Tampa, diverted from his route from Fremantle to Australia in order to respond to a rescue request from the Australian government. (58) The Tampa rescued the passengers and headed toward Indonesia, the closest port. (59) However, in acceding out of fear (60) to passenger demands to be taken to Christmas Island in order to seek asylum in Australia, Captain Rinnan reversed course and headed for Christmas Island. (61)

Before the Tampa reached Australian territorial waters, Captain Rinnan received a note from an Assistant Secretary of the Department of Immigration ("DIMA") on August 27 directing him not to enter Australian territorial waters and not to advance on Christmas Island. (62) Captain Rinnan was advised that if he attempted to disembark the asylum seekers aboard within Australia, he would subsequently be "subject to prosecution under the Migration Act 1958 for people smuggling." (63) As a result, the Tampa hovered approximately 13.5 nautical miles from Christmas Island for three days. (64) Soon thereafter, the captain issued a distress signal as the Tampa was only equipped to hold 50 crewmembers, not provide basic services to 433 rescued passengers. (65) Concerned about declining health and safety conditions (66) on board, Captain Rinnan entered Australian waters despite Australia's prior orders. (67)

Following government orders, Special Air Service Forces seized control of the Tampa in order to prevent passengers from disembarking. (68) Ultimately, arrangements were made for New Zealand (69) and Nauru (70) to accept the asylum seekers with Papua New Guinea serving as a transit point. (71) This marked the beginning of Australia's new policy: the Pacific Solution. (72) The Pacific Solution required asylum seekers who arrived aboard unauthorized vessels at excised places to be transferred to offshore processing centers on Nauru (71) and Manus Island in Papua New Guinea (74) while their asylum claims were assessed. (75)

The Pacific Solution consisted of three key pieces of legislation. (76) In September 2001, Parliament passed the Border Protection Act, the Migration Amendment (Excision from Migration Zone) Act, and the Migration Amendment (Excision from Migration...