The New ‘People Smuggling’ Debate

Liam Blackford looks at the new political discourse in relation to asylum seekers.

The issue of asylum seekers is just as polarising today, as it was in 2001.  But in the era of Gillard and Abbott it has been completely reconfigured. As of 2010, the High Court has laid down a new set of rules for the government in their handling of boat people. However, the issue has been just as greatly affected by the new importance of ‘people smugglers’.

Boat people in the 2000s and the change in their legal rights

Asylum seekers has been one of Australia’s most long-running policy concerns, and has been subject to some fantastic political wrangling.

For those who believe that the solution to the issue is to ‘stop the boats’, John Howard and his Immigration Minister Phillip Ruddock remain heroes. It is Howard’s stance on asylum seekers which is considered to have won him the 2001 election, and the ‘Pacific Solution’ was successful in reducing the number of arrivals to Australia from 5516 in 2001, to just 1 in 2002.

The force of that policy was its curtailment of the rights of boat arrivals to have access to our courts.  By excising Australia’s offshore territories from our migration zone, boat arrivals to those territories no longer had the right to apply for a visa. The numbers speak to the success of the Pacific solution, but they do not change the fact that Australia was flouting its obligations under international law. Moreover, the denial of procedural fairness to refugees, and their access to Australian courts while on Australian soil, compromised our judicial system.

A strong stance on border security was merely one of many issues (such as population growth) on which Julia Gillard felt she had to distance herself from her increasingly unpopular predecessor.In spite of that, Julia Gillard’s ‘Timor solution’ in 2010 maintained reliance on regional processing in exactly the same way. There is no denying that this is smart politics, since by 2010 there was overwhelming conservative sentiment that Kevin Rudd, who had dismantled Ruddock and Howard’s scheme, had lost control of Australia’s borders.  It was easy to make that argument when 161 arrivals in 2008 grew to 2726 in 2009.

Thankfully, the judiciary has changed the game. As of November 2010 with the decision of Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia the High Court of Australia has decided that the process by which the Australian Government determined the status of refugees (effectively by the unreviewable decision of an independent contractor) denied the two plaintiffs procedural fairness.

The result for Julia Gillard has been a mandate to overhaul Government policy. Now, the determination of refugee status will be a decision made by an administrative body whose decision is subject to judicial review: as such, boat arrivals dissatisfied with the determination of their status can appeal to the Federal Magistrates Court, and to the Federal Court and High Court in turn.

Tony Abbott has been quick to criticise these changes. First, he has contended that they are ineffective in ‘stopping the boats’, which is absolutely the case, but absolutely not the purpose of the changes.

Secondly, he has contended that they constitute a ‘bureaucratic reshuffle’, which I reject. They are a critical policy change, in response to the High Court’s finding of a serious breach of law, but for Tony Abbott that’s not the point. Abbott has made it a central tenet of his agenda that ‘to stop the boats’, you have to change the government.

Asylum seekers vs. ‘People smugglers’

The issue of asylum seekers has undergone a transformation in popular political discourse. More specifically, the focus in the issue has shifted from a perceived need to provide refuge for boat arrivals (pursuant to Australia’s obligations in international law) to a focus on the need to suppress and eliminate the crime of ‘people smuggling’.

People smuggling’ denotes the illegitimate means by which illegal arrivals are brought to Australia, unregulated and very much out of Australia’s control. ‘People smugglers’ and ‘people smuggling’ are dubiously vague terms. Are all persons who are responsible for bringing asylum seekers to Australian shores ‘people smugglers’? No one seems to know, especially not the Australian newspapers who in July 2010 expressed their contempt that four Indonesian sailors were not prosecuted as people smugglers’; despite a finding that they were not guilty of any crime.

Fostering moral outrage at the people who approach our borders has been a great way to inspire antipathy towards the cause of asylum seekers since John Howard erroneously claimed that some asylum seekers were throwing their children overboard. A recent example is when Tony Abbott capitalised on the boat disaster at Christmas Island, making the argument, ‘it is important that we put policies in place as quickly as humanly possible that do offer the prospect of stopping the boats’.

In 2011, even Julia Gillard is using the language of ‘people smuggling’, in spite of the fact that it is a term that is disadvantageous to Labor, whose stance with regards to boat people has always been softer that the Coalition’s. It is smart politics for Abbott to characterise the issue as involving Labor’s failure fight the criminal activity of ‘people smugglers’.

Julia Gillard handled this problem well in 2010, by maintaining that while ‘people smuggling’ remained a concerning issue, turning boats back (asserted by Abbott as the most effective position) would unconscionably risk the lives of children at sea.

But what started the intrusion of the discussion of people smugglers into this issue? The Coalition needs to be able to create anxieties over Labor’s position, and appeals to Australian nationalism are getting weaker. The claim that asylum seekers pose a tangible threat to Australia’s society, economy and culture is baseless, given that in 2010 the number of arrivals peaked at 6535, a tiny fraction of our population.

Notwithstanding that asylum seekers cannot be shown to have compromised the stability of our society so far, conservative arguments to that effect still exist. In a recent article in The Australian, Paul Maley maintained that the recent High Court decision will result in administrative unworkability and will choke the Government’s ability to govern.

This is allegedly due to the opening of the floodgates; first for asylum seeker claims in our courts, and secondly for the need for prosecution of people smugglers. He also drew attention to the ongoing fact that a lot of refugee claims are illegitimate and opportunistic.

However, Maley’s argument is specious and politically harmful. The reality of illegitimate claims does not detract from the need to honour legitimate ones pursuant to our obligations in international law. Furthermore, Australian law demands procedural fairness for all people in Australia. Regardless of how much the government has to adapt so as to be able to process an increasing number of claims, the High Court correctly decided an issue of law and in doing so, rectified a situation that was unjust.

While the discourse of people smuggling is harmful to the cause of asylum seekers, there are some possible benefits.  Such as the fact that it is more likely for voters to demand action on crime, than to demand justice for individuals they don’t know. Especially in light of the recent High Court decision, this could see some very positive developments for the plight of asylum seekers in Australia.

People smuggling is morally culpable. However, this does not change the fact that getting the public to focus on the crime of people smuggling ignores the heart of the asylum seeker issue. Tony Abbott, who prior to the High Court’s decision still favoured regional processing and temporary protection visas, has made his position with regards to asylum seekers absolutely clear. His focus on ‘people smugglers’ ignores Australia’s international law obligations and makes it politically irrelevant to appeal to the public’s conscience with regards to the plight of asylum seekers.

Why the issue is still important

The asylum seeker issue entails a few matters of serious political risk for both parties.

For Labor, there is the lingering concern that they have not done enough to change the policies of Kevin Rudd, who for better or worse is discredited with ‘losing control’ of Australia’s borders.

For the Liberals, there is the fact that the High Court of Australia has finally put a nail in the coffin of the Pacific Solution and made it unlawful for asylum seekers to not have their claims processed in Australian courts. Tony Abbott has already been backed into a corner on the issue of whether or not to introduce legislation eliminating the jurisdiction of the Federal Court for asylum seeker claims, thus streamlining their processing.

Abbott’s political strategy so far has been to distance himself from Julia Gillard on almost every point, but to do so now would be an ideological rejection of Howard and Ruddock’s strategy from 2001, which was underpinned by restricting access to the courts. Abbott is not going to want to look like a hypocrite, but it is hard to imagine that if the Coalition was in power, their method of processing asylum seekers (which continues to be conducted offshore and in isolated regional Australia) would not resemble Gillard’s.

More importantly, Abbott’s catchcry of ‘stopping the boats’, which he has made a central tenet of his party policy, is setting him up for a fall. At a time when the rate of arrivals to Australia is rising fast and our courts have enforced their right to procedural justice on Australian soil, it looks less likely than ever that this is a promise that Abbott can keep.


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