Lawyer and author Madeline Gleeson says there are positive elements in Australia’s asylum-seeker policy, but a lack of political will to abide by the Refugee Convention. By Karen Middleton.

Madeline Gleeson on an end to offshore processing

Lawyer and author  Madeline Gleeson.
Lawyer and author Madeline Gleeson.

Karen Middleton I wanted to start by asking you a big-picture question. In a perfect world, if you were allocated the job of designing Australia’s refugee and asylum policy, what would you retain from the current policy and what would you change?

Madeline Gleeson That’s a great question. Often people go straight to “What would you change?” and don’t take a moment to focus on the positives. What I would retain are the two things on which Australia really is a world leader. That is integration of people from other countries and other cultures, and the settlement services that we provide to refugees once they get to Australia. There is a lot that Australia can teach the world about these two things, and be a model – together with countries like Canada. In fact, efforts and programs that promote integration and settlement should be increased, and receive greater funding and support. Bringing people to safety is just the first step; the next important part is supporting them in establishing their new lives in Australia and promoting social cohesion once they are here. That’s the positive, but apart from that there’s not a lot I would retain. It probably comes as no surprise that as an international human rights lawyer, with a good understanding of the realities of displacement in this part of the world, I would propose an approach that brings what we are doing completely into line with international standards.

In terms of specifics about what should be changed: offshore processing needs to cease immediately. There is indisputable evidence of how damaging this policy is for men, women and children offshore. This evidence is also consistent, with little dispute about how destructive offshore processing is for the people who are in Australia’s care. This practice needs to end, ideally in a matter of days or weeks from what I’m told by the people who are there.

KM You say that offshore processing has to end but we have the major parties, the Coalition and the Labor opposition, both endorsing offshore processing and arguing that it is the tool, the main tool, preventing or dissuading people from coming. What is your response?

MG That claim has certainly been made, but in the first six months of offshore processing in 2012 more people arrived by boat than at any other time in Australia’s history. So if we’re going by numbers alone, offshore processing in itself had no effect on deterring people from seeking asylum in Australia. In July 2013, then prime minister Kevin Rudd made a further announcement removing the possibility of resettlement to Australia for anyone who was sent offshore, and a few weeks later we had the election, and Tony Abbott came into power and started boat turn-backs. Now, the number of boat arrivals did drop after this time – though they did not stop entirely – and because of how quickly the resettlement announcement and the start of turn-backs happened there are differences of opinion about which policy had the effect on boat arrivals. I do think, though, that the evidence is increasingly clear that offshore processing does not serve as any form of a deterrent. Indeed every person that has arrived by boat since 2014 has not been sent to Nauru or Manus, they’ve been turned around and sent back to their point of departure. And I think that decision to stop transferring new people offshore is the clearest evidence that the government itself knows that offshore processing does not stop people from fleeing harm.

KM What does the government and the opposition rely on legally for the turn-back policy?

MG Very little. The biggest problem with turn-backs is the secrecy. The complete and utter secrecy shrouding every aspect of how they occur. It makes it very difficult to assess whether what Australia is doing is compliant with international law, but it does raise a lot of questions. One of the biggest ones is, “How are you actually convincing people to turn around at sea?” People fleeing persecution and risking their lives on a boat are very motivated to reach safety. So how are they being forced onto boats headed back to where they came from, and turned around? What measures are in place to make sure that they will be safe in the place they are returned to? We know nothing about these things, and that’s the biggest issue in terms of testing its legality.

KM What about the Refugee Convention itself and the basis upon which applications are assessed? Is that out of date?

MG Absolutely not. The convention serves an incredibly important purpose and has done so ever since its drafters got together after the Second World War to come up with its terms. But the Refugee Convention was not designed to provide an answer to every human rights violation and every case of displacement in the world. For that, it is supplemented by the full body of human rights law. Anyone who is not covered by the Refugee Convention is still protected not only by the Universal Declaration of Human Rights, but also the various covenants and treaties that have come later and through which countries have agreed to offer protection to those in need. So if you look at that whole set of agreements together there is ample law. The issue is not one of creating a new or different law, the issue is with improving enforcement, with improving the willingness of countries to implement the obligations they’ve signed up to, and with having an effective response if a country doesn’t do so. The problem is not with the Refugee Convention, it’s with the lack of political will to abide by it.

KM How much should Australia consider the moral obligation to uphold human rights and be compassionate in difficult circumstances? Do you think our policy has to have a moral dimension?

MG Every country’s policy on every issue must have a moral dimension, and it’s for the people of that country to decide what their moral obligations are and the extent to which they will be reflected in their policies. But there is an important point of overlap to note between human rights law and morality, and that is that most of the basic human rights are already familiar to us. If we take the word “law” out of it, most of us would recognise human rights standards as simply affording common dignity to people, and as basic principles of good behaviour in how you treat another human. A number of these principles have been distilled into conventions and given the name law, but their root is in what many of us would think of as strong morals and decent behaviour.

KM What about the now-famous argument that “we will decide who comes to this country and the circumstances in which they come”? On one level that’s fair enough, isn’t it? We don’t want an immigration policy that anyone can come at any time, do we?

MG It’s a very destructive binary to say that we must choose between either a policy that violates human rights, or one that “throws open the borders” and encourages deaths at sea. It is a political trick to say that there are only those two options, but reality is very different. In fact there is a whole range of polices we could implement that would comply with international law and ensure that people in need of our protection receive it, as well as recognise that countries do have the right to regulate who and what comes into their territories.

KM What can you tell us about the interviews you did with people who’ve been in offshore centres?

MG The one thing that struck me most when I was speaking to people working offshore, either on Nauru or Manus or both, is the overwhelming consistency in their descriptions of those centres as a “parallel universe”. I heard that exact expression from multiple people trying to describe what it is like there. They said nobody in Australia who hasn’t been there can ever really get it. We can never really understand just how removed from normal structures those centres are.

I was also struck by the consistency with which people spoke of how damaging these centres are for the people held there. I heard this from people all along the spectrum of employment. So there are medical professionals – nurses, doctors, mental health experts, psychologists and psychiatrists – as well as case workers and social workers through to security guards. There are former soldiers who have come from war zones, Australian prison guards, police officers et cetera. There are people who have strong political views one way or another, or no political views at all. And that is what really got to me. These were not people coming forward with an agenda. I’ve seen a grown man, a typical Aussie bloke, reduced to tears recounting what he saw offshore. Now he was not a particularly political man, but he was distraught by the human suffering he had witnessed.

That’s what was most persuasive to me. It’s not a matter of “Where are your politics?”, it’s a question of where is your humanity?


This is an edited transcript from A Month of Saturdays, hosted by Karen Middleton at the National Portrait Gallery in Canberra. The conversations run every Saturday in September at 3pm.

This article was first published in the print edition of The Saturday Paper on September 10, 2016 as "Offshore matters".

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Karen Middleton is The Saturday Paper’s chief political correspondent.

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