Five Questions: On the Spread of AustraDaniel Ghezelbashlia’s Asylum Policies

Offshore processing and boat turn-backs are often called the ‘Australia model’, but in his new book Refuge Lost: Asylum Law in an Interdependent World (Cambridge University Press), Dr Daniel Ghezelbash explains these policies were more quietly pioneered by the United States. Now countries from Europe to Malaysia, Thailand and Indonesia have tried variations of these practices designed to deter asylum seekers. Where do these policies fit legally, and where are they leading us?

Q1. Can you explain the US policies and how Australia drew on them?

Ghezelbash: Australia’s current asylum seeker deterrence policies were drawn directly from the US government’s play book. The United States began intercepting asylum seekers boats from Haiti in 1981. The program was expanded over the years to target other nationals including boats departing from Cuba, the Dominican Republic, Ecuador and China. At times, intercepted asylum seekers have been summarily returned to their country of departure. But since the mid-1990s, the US government has carried out preliminary screening for asylum claims at sea. In practice, the vast majority of migrants are screened-out and returned to their country of departure. Those lucky enough to meet the ‘credible fear’ threshold are transferred to Guantanamo Bay for the processing of their asylum claims. Guantanamo has a special legal status. The US exercises de facto sovereignty over the territory, but it’s technically part of Cuba. The government has used this loophole to deny asylum seekers the legal protections they would receive if held on the US mainland. It’s this characterisation of Guantanamo as a rights-free zone which led the US government to later use Guantanamo as the location for holding enemy combatants.

Australia’s current border protection policies can be traced back to the Tampa incident. In August 2001, the Howard Government prevented the Norwegian freighter, MV Tampa, from disembarking 433 rescued asylum seekers at Australia’s territory of Christmas Island. The ship was stormed by Australian special forces. The asylum seekers and crew were held at sea while the Australian government scrambled to find an alternative to letting them enter Australia. In moments like this where a solution is required urgently, policymakers often look abroad for inspiration. So, we looked to the US experience. A senior US policymaker involved in establishing the US offshore processing policy confirmed in an interview with me that he was summoned to provide detailed policy advice to Australian officials as the Tampa incident unfolded. And so the ‘Pacific Solution’ was born. We did not have a territory equivalent to the legal black hole of Guantanamo Bay. So we had to rely on the support of other countries. We entered into an agreement with Nauru to take some of the asylum seekers aboard the Tampa, and to also accept future asylum seekers who tried to reach Australia by boat. A similar agreement was reached with Papua New Guinea. The rationale was the same as in the US. The asylum seekers sent to Nauru and Papua New Guinea would be denied the legal protections they would have access to in Australia. The offshore processing policy was combined with push-backs at sea. After a short hiatus starting in 2007, offshore processing was re-introduced by the Rudd Government in 2012, and push-backs by the Abbott government 2013.

One interesting difference between the US and Australian approaches has been the degree to which they promote their activities abroad. The US has generally gone about its interdiction and offshore processing policy quietly. To this day, most US citizens are completely unaware that there is a migrant processing centre on Guantanamo Bay. Australia has adopted a very different path, with constant efforts to promote and justify its policies abroad. In 2002, our then-Immigration Minister, Philip Ruddock, went as far as to publish a book titled ‘Interpreting the Refugees Convention: An Australian Contribution’. Similarly, shortly after being deposed as Prime Minister in 2015, Tony Abbott embarked on a tour of Europe where he called on leaders to adopt Australia’s border control policies to stop the tide of migrants making their way to Europe. So that is the reason the policies are referred to as the ‘Australian model’, rather than the ‘US model’.

Q2: How have these Australian or US policies been drawn on by other leaders and governments?

Ghezelbash: It appears that European leaders have been tempted by Mr Abbott’s calls to follow Australia’s approach. At first it was mostly far-right parties. But now elements of the Australian model have been incorporated into the platforms of mainstream European parties. Even some traditionally left-wing parties have joined the chorus. For example, the Social Democrats in Denmark are calling for the implementation of an EU-wide offshore processing system. Barely a week passes without a major European newspaper running a story urging European policy makers to follow Australia’s lead.

Individual European countries have already engaged in push-back operations. However, a 2013 European Court of Human Rights decision finding Italy’s push-backs to Libya unlawful makes future use of the policy unlikely in Europe. Other countries not bound by similarly binding human rights mechanisms have and likely will continue to carry out push-backs at sea. For example, Malaysia, Thailand and Indonesia all carried out push-backs against Rohingya asylum seekers fleeing Myanmar in 2015. At the time, Prime Minister Tony Abbott infamously expressed support these operations.

Q3: What roadblocks have the policies encountered in other jurisdictions?

Ghezelbash: Some of the more extreme elements of Australian and US policies would fall foul of the European Convention on Human Rights. This was evident in the European Court of Human Rights decision in Hirsi, with respect to push-back operations at sea. Unlike courts in Australia and the United States, the European Court was unambiguous in confirming that legal protections can apply extraterritorially at sea. As such, the key protection against non-refoulement, which prohibits states from returning asylum seekers to a location where they would face persecution, was held to apply. This can be contrasted to the US Supreme Court decision in Sale, where the court found that non-refoulement obligations do not apply to extraterritorial actions at sea. The Australian High Court has not directly ruled on the point, but a number of High Court justices have expressed support for the US approach.

This highlights one of the limitations of legal protections in Australian and US law. The European Convention on Human Rights is universal, applying to all persons regardless of nationality or legal status. In the United States, arriving non-citizens generally cannot avail themselves to US constitutional protections, including those set out in the US Bill of Rights. This is known as the plenary power doctrine. We in Australia do not have a bill of rights, but even the very limited protections contained in our Constitution are implemented in a discriminatory way against non-citizens.

But more than legal protections, I think that there is a public belief in human rights that is present in Europe that we do not have in Australia and the United States. I recently hosted a launch for my book in Hamburg, and my European audience was absolutely aghast at the scepticism we have towards human rights in Australia. It is this scepticism which has allowed our restrictive asylum policies to flourish. The horrors of World War II are still fresh in the memory of many Europeans, and with this comes a belief in universal human rights as a bulwark against the repeat of those horrors. This is a sentiment that we lack in Australia, given our generally peaceful history. The mainstream of our society has never experienced systematic persecution. It’s only minorities that have been subject to state-sanctioned violence. Groups like indigenous Australians, asylum seekers and members of the LGBTI community. But I think history shows that exceptional restrictive measures designed to target the ‘other’ can often transform into policies targeting mainstream society.

Q4: What can you say about the evidence around the effectiveness of these deterrence policies? 

Ghezelbash: It all depends on what you mean by ‘effectiveness’. If it’s just about ‘stopping the boats’, I think it’s naïve to try and say that Australia’s policies have not been effective. However, I think there is a need for a more nuanced approach which weighs up the negative consequences of restrictive border control policies. This will ultimately be a subjective assessment, but I am confident that most people, when presented with all the facts in relation to the exorbitant financial cost and devastating human toll on asylum seekers would question the price of the ‘effectiveness’ of Australia’s approach.

For me the biggest concern is the continued viability of the international refugee protection regime. The hard-won institution of asylum, which grew out of the failure of states to grant refuge to those fleeing Nazi Germany, is now under threat. There is a perception amongst states that if they do not match the deterrent policies adopted in other jurisdictions, they may face in increase in asylum seeker flows. This has created a race to the bottom, as states compete to outdo measures introduced in other jurisdictions. The logical end point of this competition is states completely closing their borders to asylum seekers. This has pretty much already happened in Australia. If other states follow our lead, then people in immediate danger will have nowhere to flee to. I think this eventuality needs to be considered when we make any assessment of ‘effectiveness’ of deterrence policies.

Q5: Despite mounting international condemnation and reports of suffering among asylum seekers held on Manus and Nauru, Australians’ support of the policy has remained strong. What do you make of that?

Ghezelbash: We need work hard to change this dynamic. The only way we will see meaningful change in Australia’s policies, as well as prevent their spread to other jurisdictions, is to win the hearts and mind of the public. We need to approach this in a nuanced way, addressing valid concerns and by providing clear humane alternatives to the current deterrence paradigm. I think it is clear that many Australians have a problem with asylum seekers who come here by boat. I’m personally sympathetic to arguments about preventing deaths at sea. People should not have to risk their lives to reach protection. I’ve represented many orphans, widows and widowers who have lost their loved ones at sea while trying to reach Australia. It is absolutely heart-breaking. But if we are going to shut down our sea borders, we need to provide meaningful alternative pathways for those in need of protection in our region. It’s about sending the right signals to the rest of the world. If we do not do our fair share, then how can we expect other states to do so?

Join us April 17 for Refugee Deterrence and Diplomacy: How states influence each other's asylum policies, a panel discussion with Macquarie University Law School’s Dr Daniel Ghezelbash and Kaldor Centre Acting Director Guy S Goodwin-Gill.

Listen to our podcast All at sea: Comparative perspectives on turning back boats, featuring Dr Ghezelbash, Kaldor Centre Executive Manager Frances Voon, Rear Admiral James Goldrick AO and Dr Violeta Moreno-Lax.