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Humane policy thrown overboard by dry souls



19 July 2013

Once again the Refugee Convention has become the whipping post for political discontent about boat people and "border protection". The Prime Minister thinks it is outdated and queries its "effectiveness", echoing the concerns of Philip Ruddock under the Howard government. Both the Prime Minister and shadow immigration minister also believe that it is interpreted too generously in Australia.

Already the government has directed refugee decision makers to consider the government's views on the safety of countries of origin, politicising and compromising decisions. It also complains that "economic migrants" are abusing the system. Policy changes are afoot, though the devil will be in the detail. There is a grave risk that further changes will undermine, not strengthen, refugee protection.

The Refugee Convention is certainly old, originally adopted in 1951 to deal only with the postwar refugee crisis in Europe, and amended in 1967 to cover refugees globally. It is true that the convention does not cover every conceivable aspect of the world's refugee problems. It does not address the different ways that refugees move, including through transit countries such as Indonesia, or the different types of refugee populations, such as those "warehoused" for protracted periods in camps.

But the convention's limits are not a good reason to throw out the baby with the bathwater. The convention's essential principles remain eternally valid, and precious, including that governments must not return anyone to persecution. Any retreat by Australia from that principle would have catastrophic consequences for human safety. It would also signal to other countries that refugee protection is no longer an important global value.

The convention does not protect economic migrants. Australian decision makers have never interpreted it to do so, though there are other powerful moral reasons for helping the world's poor. The majority of "boat people" are found to be refugees because they are refugees. If they are not, the convention allows them to be sent home. Our refugee decision makers are skilled and should be respected, not denigrated by politicians.

The convention was never intended to be the last word on refugees. Countries have always had the option of pursuing additional bilateral or regional co-operation to address refugee problems. The convention does not impede such efforts, as long as people are not returned to persecution. Such measures are the only way to resolve the current difficulties, in a region where most Asian countries are not parties to the convention. It is reasonable to expect other countries in the region to assist in managing the common challenge of refugees.

The convention is also a flexible instrument, leaving many issues to national discretion, including refugee determination processes. Indeed, one of its flaws is that it concedes too much to states, and does not demand enough of them in protecting refugees.

Realistically, Australian politicians are dreaming if they think they can convince other countries to amend the convention. There is no political appetite for it internationally.

Many countries would find it laughable that an astonishingly rich and underpopulated country like Australia would seek to amend the convention in response to its extremely modest refugee flows.

Many poor and overpopulated countries are staggering under the weight of huge refugee populations, without seeking the concessions Australia demands. Any effort to amend the convention would risk undermining, not strengthening, refugee protection.

The problem is not the convention or its interpretation. The problem is our politics. In recent decades, governments have tried every trick in the book to deter refugees, including detention, restricting the refugee definition, "safe country" provisions, limiting review by tribunals and courts, excising territory and offshore processing, naval push-backs, and temporary protection.

Yet, still the refugees come. This should tell us something about the refugee experience. If the risk of drowning at sea is no deterrent, nothing short of eliminating refugee status altogether will stop refugees coming. Refugees know the risks, but make the calculated decision that the chance of a new, safe life is worth the danger at sea. There is no orderly "queue" to speak of that they can be expected to wait in so as to acquire "no advantage".

We are not facing a "national emergency" as suggested by Tony Abbott. We are merely facing the real world, the awful everyday experience of millions of refugees, which a sheltered Australia tries so desperately to insulate itself from. Talk of stopping the boats is a proxy for stopping more refugees coming. If this is our collective policy choice, we should be honest about it and stop speaking in euphemisms.

If not, then our policies should save life at sea while also protecting refugees. The way to do this is not to shunt our refugee problem onto our neighbours, where refugees are not safe from return to persecution, and where those countries have vast problems of their own. Currently, refugees in Indonesia wait for years in detention, or penniless and illegally in the community, making getting on boats very attractive.

The solution is to support UNHCR and regional governments to swiftly process refugees and provide them with real solutions. Then they will have no need to get on boats. It would be cheaper, more effective, and more humane than the current fiasco. Australia already funds much of UNHCR's operations in Indonesia.

We cannot simply blame our politicians or the media for turning against refugees. People get the politicians they deserve. Politicians naturally pander to electorally decisive prejudices. The average Australian enjoys extraordinary fortune by world standards, but privilege has bred concern for ourselves not others. In the internet age, it would take little effort for Australians to educate themselves about the real state of the world's refugees. Not enough could be bothered to do so, yet still feel entitled to express an opinion on the subject.

We should expect more of ourselves. We should not become a hard country of dry souls.

Ben Saul is Professor of International Law at the University of Sydney.

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