Comment

Madeline Gleeson
How Australia shaped Britain’s refugee policy

When British prime minister Rishi Sunak held a press conference in March this year from a podium emblazoned with “Stop the boats”, Australian audiences could have been forgiven for thinking we had regressed a decade to Tony Abbott’s 2013 federal election campaign.

The re-emergence of this three-word slogan may have taken some by surprise, but Australian influence over British asylum policy has been growing for years.

In late 2015, newly ousted prime minister Abbott appeared in London at the Margaret Thatcher Lecture to warn Europe its “misguided altruism” was leading it into “catastrophic error”. In a speech riddled with factual errors about the legal rights of refugees and his own government’s asylum policies, Abbott urged others to abandon “what makes us decent and humane countries” and instead adopt Australian-style deterrence policies to “prevent a tide of humanity surging through Europe and quite possibly changing it forever”.

Alexander Downer has pushed a similar message, first as high commissioner to the United Kingdom, and more recently as the Home Secretary’s personal choice to lead a review into the UK Border Force. As foreign affairs minister under John Howard, Downer played a key role in establishing the first generation of Australia’s offshore processing and boat turnback policies. He, too, took this legacy to London. In an opinion piece for the Daily Mail in March this year, Downer cast people crossing the English Channel in small boats as “illegal” migrants who “must forfeit our sympathy”, proposing they be deported and hit with a lifetime ban on settlement in the UK. He even called explicitly for the deportation of children and for the UK to “ruthlessly” disregard the legally binding orders of the European Court of Human Rights (ECHR), or indeed pull out of the regional human rights framework entirely.

Such commentary does not reflect the true causes and trends of displacement, nor does it offer any meaningful solutions. It is not meant to. It is designed to whip up hysteria and win votes. It offers the false promise of tough-but-necessary policies that, in practice, are neither sustainable nor as effective as claimed.

There is a very grave danger in promoting the spread of unlawful, discriminatory and short-sighted policies that run counter to the principles of global solidarity and protection. Some of these dangers are currently being realised in the UK, as it struggles to revive a flailing plan to replicate Australia’s offshore processing policy and forcibly deport asylum seekers to Rwanda. The promise this model offered in theory has not played out in reality.

In September 2021, the public bill committee of the UK House of Commons asked the then high commissioner, George Brandis, to advise parliamentarians about Australia’s asylum policies. Brandis’s evidence about offshore processing in Nauru and Papua New Guinea made the case for the UK to adopt its ill-fated “Rwanda plan”, but it also contained serious errors that warrant scrutiny.

Brandis repeatedly claimed offshore processing had been introduced by the Abbott Coalition government in September 2013 as part of Operation Sovereign Borders, and he based his authority to speak to its effectiveness on the fact he had been a member of the National Security Committee of Cabinet at the relevant time. Indeed, Brandis claimed he was, “in fact, the attorney-general who wrote the legal advice on the basis of which the policy was founded”.

None of this was true. Offshore processing had been reintroduced by Julia Gillard’s Labor government a year earlier, in August 2012. Successive Coalition governments continued the practice, sending far more people offshore than Labor ever did , but as the policy started to unravel the Coalition sought to distance itself from it. Indeed, in 2017, as a spiralling health crisis engulfed Nauru and after a court ruled that detention on Manus Island was unconstitutional, then home affairs minister Peter Dutton sought to justify his government’s attempts to extricate itself from offshore processing as “cleaning up the mess” former Labor governments had made.

But inaccuracy about the time line did allow Brandis to conflate offshore processing with boat turnbacks – a policy that violates international law. He portrayed the two as part of an inseparable “policy suite”. In reality, the fact offshore processing operated independently of boat turnbacks for a full year does allow some analysis of its effectiveness. Government data on boat arrivals throughout that first year shows more asylum seekers arrived in Australia by boat than at any other time. Those numbers did not begin to drop until several months after Australia began boat turnbacks.

Moreover, there is no evidence for Brandis’s claim that, following the commencement of turnbacks, offshore processing became an “essential” part of a suite of deterrence measures. By 2014, the offshore detention centres were operating at or above capacity. They could not have safely accommodated any additional people. Australia stopped transferring new arrivals offshore and instead began going to increasingly extreme lengths to return asylum seekers arriving by boat to their countries of origin or points of departure.

Thus, Brandis’s repeated claims that offshore processing “worked” over time were unsupported by evidence. Given the comparable nature of the UK’s Rwanda plan, it would have been helpful for the House of Commons to receive accurate advice that offshore processing did not, in fact, achieve its stated goal of “deterrence”.

Brandis’s testimony also involved serious errors and inaccuracies about the legal challenges to Australia’s offshore processing regime. In a death knell for Australia’s offshore processing arrangements in Papua New Guinea, the Supreme Court of PNG ruled in 2016 that the detention of asylum seekers on Manus Island violated their constitutional rights to freedom and personal liberty and was unlawful. PNG’s then prime minister, Peter O’Neill, immediately announced the Manus Island centre would close.

When asked whether “offshoring had to stop” because of this ruling, Brandis gave a confusing answer about other alleged litigation and claimed it did not affect the processing centre on Manus Island.

When asked if he recalled the outcome of another case, the Kamasaee class action in the Supreme Court of Victoria, Brandis replied he was not in a position to speak about it and it was “entirely a matter” for the government of PNG. This was a bizarre claim, as PNG was not even a party to the proceedings. The Commonwealth of Australia and two of its contractors were accused of having falsely imprisoned and failed to take reasonable care of almost 2000 asylum seekers held on Manus Island between 2012 and 2016. The Commonwealth eventually settled the case in 2017 for a total of $90 million, and Brandis was the Commonwealth attorney-general for the duration of the matter.

Brandis then claimed the High Court of Australia had ruled the detention centres in Nauru and PNG were “in no respect under the jurisdiction of the Commonwealth of Australia”. This claim overstated the court’s ruling in Plaintiff M68/2015, which involved matters particular to Australian constitutional law and statutory interpretation. It also gave the false impression Australia had no legal liability for human rights violations and other failures to ensure the wellbeing of people detained offshore.

In fact, by the time Brandis gave his evidence, the Commonwealth had been forced to defend or settle dozens of lawsuits from people harmed by offshore processing, including asylum seekers, refugees and former staff and contractors. It had repeatedly been compelled by Federal Court orders to evacuate critically ill people back to Australia. There had been several Australian coronial inquiries with respect to asylum seekers and refugees who died after suffering harm offshore.

Finally, when asked directly if Australia’s policies had been the subject of any referrals to the International Criminal Court, Brandis claimed he did not think that was correct. In fact, Australia had been referred to the ICC in at least six separate communiqués since 2014.

These errors in Brandis’s testimony had the potential to misrepresent the legal risks the UK might face should it adopt a similar policy. As it turns out, those risks have already eventuated. After reaching agreement on an “asylum partnership arrangement” with Rwanda in April 2022, the UK Home Office began selecting asylum seekers for a first charter flight to Rwanda. Days before its scheduled departure on June 14 , the Daily Mail reported most of the 130 people on the flight list had filed legal challenges, with the rest expected to follow suit. The passenger list gradually dwindled to single digits, as the Home Office informed people they would no longer be sent to Rwanda. Among them were a former senior Iranian police officer turned human rights whistleblower, and a group of unaccompanied children who had wrongly been declared adults.

In a dramatic twist on the eve of the flight, the ECHR received a request for urgent interim measures concerning some of the final passengers. The flight was effectively grounded until the relevant legal proceedings in the UK had played out and, more than a year later, they are ongoing. In June, the Court of Appeal ruled it would be unlawful to send asylum seekers to Rwanda due to deficiencies in its asylum system. That judgement could yet be appealed, but even if the UK courts do not strike down the Rwanda plan, it may still be referred back to the ECHR to do so.

The cost of these challenges extends well beyond raw legal expenses. The UK has already paid Rwanda £120 million ($235 million) for an asylum deal that may never eventuate. The aborted flight is reported to have cost up to half a million pounds ($980,000).

The psychological impact on the adults and children who thought they would be deported, and who still fear what will happen next, must be extreme.

There are also reputational costs. Despite attempts to blame “lefty lawyers” for the Rwanda plan falling apart, the UK’s own courts blocked its implementation. It is an international embarrassment for the Home Office and for the successive governments of Boris Johnson, Liz Truss and Rishi Sunak. The UN Refugee Agency has condemned the Rwanda plan and issued a “rare unequivocal warning” that it is incompatible with the UK’s international obligations. The entire senior leadership of the Church of England criticised it as an “immoral policy [that] shames Britain”.

So why have former Australian government officials pushed so hard to promote their asylum policies abroad? Are there personal motivations? Or is it simply a matter of establishing a legacy – a middle power trying to assert itself on the international stage? Perhaps it is an attempt to rewrite history, casting offshore processing as something other than the failure it was, and seeking to validate Australia’s own unlawful approach.

Whatever the reason, it must stop. Unilateral deterrence policies contravene the international rules-based system, undermine global solidarity and exacerbate the challenges of mass displacement. Their spread poses an existential risk to the entire institution of asylum, and in doing so threatens both states and individuals alike. Migration can be managed in a humane, sustainable and lawful way, but it requires a commitment to what is fair and just, and to good policy over good politics. These are the ideas we should be exporting.

This article was first published in the print edition of The Saturday Paper on September 2, 2023 as "How Australia shaped Britain’s refugee policy".

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