As a mother and her baby daughter test the legality of offshore detention, Peter Dutton looks to the possibility of a ‘Philippines Solution’. By Sophie Morris.

The next phase of the refugee debate

The 10-month-old daughter of Plaintiff M68.
The 10-month-old daughter of Plaintiff M68.

She is known only as Plaintiff M68, a Bangladeshi asylum seeker who was brought to Australia from Nauru with health issues late in pregnancy. This week, she asked the High Court to save her and her now 10-month-old daughter from being forcibly returned to the island republic. The case challenges the legality of offshore detention and asks whether in funding the processing centres Australia is legally responsible for them.

“Australia should not be warehousing anyone on remote Pacific Islands,” said Daniel Webb of the Human Rights Law Centre, which filed the case, “let alone newborn babies.”

While little is known of her circumstances, Plaintiff M68’s legal action has already forced changes to the law and to the operation of the detention centre on Nauru.

But even as the government defends the offshore processing regime, Immigration Minister Peter Dutton is under growing pressure to find safe settlement options for more than 1600 asylum seekers stranded on Nauru and Papua New Guinea’s Manus Island amid stories of rape and abuse.

The government is talking to countries, including the Philippines, about the possibility of resettling some there.

“You could be pretty sure they will have looked at the map of the region and said, ‘Who is a signatory to the refugee convention?’ ” says Frank Brennan, professor of law at the Australian Catholic University. 

“They will have said, ‘Philippines is one of the few. Cambodia hasn’t worked. We couldn’t do it in Malaysia. Well then, do we look at something like the Philippines?’ ”

Even though only four refugees have taken up the Cambodia option, Dutton’s spokesman insists it is still an alternative, adding that the government “continues to talk to a number of other nations about possible resettlement options”.

When the original Pacific Solution was wound back under the Howard government from 2004, many asylum seekers who had been sent to Nauru and Manus were gradually brought to Australia. 

The then immigration minister, Amanda Vanstone, said at the time that this showed Australia was committed to resettling its fair share of refugees from the offshore processing centres. The boats did not immediately start arriving again.

But neither the Coalition nor Labor will risk it this time. For a prime minister who says he likes to keep all options on the table, Malcolm Turnbull has categorically ruled out the possibility.

“It is absolutely clear that there will be no resettlement of people on Manus Island and Nauru in Australia,” Turnbull said last month. “They will never come to Australia. I know that’s tough. You could say we have a harsh border protection policy, but it has worked.”

Those comments came just hours after he had, in an interview on Sky News, said he shared “concerns” about the conditions on Nauru and Manus and that close attention was being paid to the situation there.

Brennan, who describes the offshore camps as “evil places”, says Turnbull is no doubt being advised against changing the policy early in his prime ministership for fear of signalling to people smugglers on Java that they should again ply their trade.

“I think they must be brought back to Australia,” Brennan says of the asylum seekers on Manus and Nauru. “But I understand that needs to wait some months.”

If the Nauruan government’s announcement on Monday that “detention has ended” implied all was well on the remote island republic, this apparent idyll was soon shattered.

A tale of two Naurus played out this week.

In the version told by refugees and their lawyers, a 23-year-old Somali woman who was allegedly raped on Nauru in August begged to be brought to Australia for an abortion as she struggled with her own health and refused to eat following the traumatic assault. Terminating a pregnancy is illegal in Nauru.

At least another two rapes have been reported recently, with one woman saying she had to wait four hours for the police to respond. These alleged assaults occurred outside the detention centre, raising concerns about security in the new “open” regime.

Following the announcement this week, Labor backbencher Melissa Parke tweeted: “ ‘Freedom’ for genuine refugees in Nauru means freedom to be raped, assaulted and ignored.”

It’s quite a contrast to the version promoted by the Nauruan government, which involves refugees living side by side with locals “shopping, relaxing, dining out, swimming”. They were, said Nauruan Justice Minister David Adeang, in some ways safer than they would be in Australia. 

“There is no gun violence in Nauru, people are not dying from domestic violence and our police don’t even have to be armed,” he said in a statement, “so let’s get some perspective into this discussion.”

Nauru also promised to process within a week all 600 asylum claims that were still outstanding, with those recognised as refugees to be given the option of staying in Nauru for up to 10 years or resettling in Cambodia. For now, they continue to live in the “open” detention centre while new accommodation is built. Fairfax Media reported on Thursday that about 150 would have their asylum cases rejected and face being sent home following appeals.

What is beyond dispute is that absorbing all these asylum seekers in the Nauruan community would place incredible strain on the tiny island that is home to only 10,000 people and which has become heavily reliant on the detention centre for employment and revenue. As of late August, there were 653 asylum seekers still in the detention centre. Several hundred had already been released into the Nauruan community. 

To put it in context, as a proportion of the population, it would be equivalent to Australia absorbing more than 2 million asylum seekers. Viewed in this way, the scale of the resettlement task for Nauru would be bigger even than the mass arrivals that Germany is anticipating from Syria.

David Manne, the executive director of the Refugee and Immigration Legal Centre, says it is increasingly clear it is not sustainable.

“Our nation – and our government – must urgently engage in a real and frank dialogue that acknowledges that the policy cannot be considered a long-term solution,” he says.

“Whatever one may think of the policy of reopening offshore processing on Nauru and Manus, it was never envisaged as more than a short-term ‘circuit-breaker’.

“Australia must shoulder responsibility for resettlement given legal, moral and practical imperatives. The necessity of this approach was ultimately recognised under Pacific Solution Mark I, when under the Howard government refugees were eventually resettled to safe third countries – the majority being brought to Australia.” 

And what of the Australian government’s version of events this week on Nauru?

Well, that’s where it gets complex. 

According to Dutton, the decision to open up the detention centre was taken by the Nauruan government.

“Already there was an open centre arrangement between the hours of 9am and 9pm,” he told the ABC’s Lateline on Monday. “But the Nauruan government now has made a decision that they will have that open centre arrangement 24 hours a day.”

Yet, as Crikey revealed, the Australian government had advance notice of it. Conveniently, it came on the day the Australian government had to file documents in the court case brought by the Bangladeshi mother, which tests the validity of offshore detention. 

And it underpinned the Commonwealth’s central argument in that case. When those court proceedings opened before the full bench of the High Court on Wednesday, Commonwealth solicitor-general Justin Gleeson, SC, immediately argued that all claims should be dismissed as “in no meaningful sense” could it be said that asylum seekers were still detained on Nauru.

That case, heard over two days this week, is linked to a series of challenges being run on behalf of more than 200 people who have been brought to Australia for medical treatment and are seeking to stay. It awaits judgement.

Ahead of the case, immigration officials had tried to return as many asylum seekers as possible to Nauru and Manus. 

After the case was filed in May, the government rushed to pass legislation with Labor’s support in a bid to retrospectively shore up the legal basis for funding offshore detention.

Representing the Bangladeshi mother, Ron Merkel, QC, argued this legislation was a “somewhat overzealous endeavour … to protect everything and anything the executive does offshore”.

He also argued that the detention regime that was eased this week could be reimposed at any time and that the funding of offshore processing was subject to Australian judicial review because the “day-to-day” operations of the camp were under the control of Australia, not Nauru.

The Commonwealth rejected this, arguing the Nauruan-appointed operations manager ran the detention centre and the agreement between Australia and Nauru did not specify that asylum seekers be detained.

The case of the Bangladeshi mother is one more pressure on the government to find durable and safe settlement options for those on Nauru and Manus Island.

Turnbull has been petitioned by some of his own MPs to end what Liberal backbencher Russell Broadbent has described as a “weeping sore” that could turn into a “raging ulcer”. Senate crossbenchers, including Ricky Muir, also intend to raise it with the new prime minister.

However, some in the Coalition remain staunchly opposed to any policy shift. They argue that those who have been on Nauru and Manus now for more than two years will eventually decide they can go home or be settled in Cambodia when they realise they are never coming to Australia. 

Dutton reflected this view when he said this week that resettlement processes were being undermined by those who gave refugees hope of settling in Australia.

“It is difficult when we’ve got probably well intentioned, but nonetheless refugee advocates back here, who are messaging up to these people on Nauru saying, ‘Don’t accept any offer, don’t leave the island, you’ll come to Australia,’ ” he said.

“We’ve been very clear about the fact that people are not going to come to settle permanently in our country.”

Brennan, a Jesuit priest and human rights advocate, has angered some refugee supporters and lawyers by arguing in a recent lecture that boat turn-backs, which are now also endorsed by Labor, are here to stay and there’s no point railing against that.

“The die is now cast,” he said. “There’s no revisiting this, unless and until the Greens are in government. We’ll wait for heaven on earth or pigs to fly overhead but it’s just not going to happen. It’s a given.”

From this point, he went on to argue in the Gaita lecture at the University of Melbourne law school in August, as turn-backs have stopped the boats it is time to close the camps. 

“Once you’ve locked the door,” he said. “There is no need or justification for maintaining a chamber of horrors inside the house to deter unwanted visitors.

“It’s time to close the facilities on Nauru and in Papua New Guinea; abandon the Cambodian shipment plan; negotiate a regional agreement for safe returns ensuring compliance with the non-refoulement obligation; and double the refugee and humanitarian component from 13,750 places to 27,000 places in the migration program, as recommended by the 2012 Expert Panel.”

Since then, the government has agreed to accept 12,000 refugees from the conflict in Iraq and Syria, but maintains those from Syria on Manus and Nauru will still not be settled in Australia.

The global refugee crisis further complicates Australia’s efforts to find places to resettle those who are still on Nauru and Manus, as other countries are already facing pressure to accept refugees who have fled Syria.

In this context, officials in the Philippines have recently noted that most of their population are still living in poverty and that they must be careful not to take on more refugees than they can handle.

As Brennan and others hope that Turnbull will find a way within months to shut the offshore camps and bring the refugees to Australia, it is worth remembering that offshore processing, like turn-backs, now has bipartisan support. It was Labor that reopened the camps and vowed those who arrived by boat would never settle in Australia.

What is more, the new prime minister – for all his concern – is prepared to stomach what he concedes is a “harsh” policy. 

And that leaves Dutton touring the region looking for alternatives as the financial and human cost of the revived Pacific Solution grows.

This article was first published in the print edition of The Saturday Paper on October 10, 2015 as "The next phase of the refugee debate".

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Sophie Morris is The Saturday Paper’s chief political correspondent.

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