Year in Review: Guy S. Goodwin-Gill at the Kaldor Centre Conference 2019

Welcome. On behalf of Professor Jane McAdam and myself, welcome to this, the Sixth Annual Conference of the Kaldor Centre for International Refugee Law. This Centre itself is a great initiative, which we owe to the kindness and generosity of Andrew and Renata Kaldor, and to the fantastic support which we have here at UNSW, from the Law School in particular, and from colleagues with intersecting and complementary interests.

It’s been a busy year, once again. Among other things, our Principles for Australian Refugee Policy were launched in June and have been widely distributed, including to every member of the federal parliament (so no excuses, then...). These principles are practical and pragmatic and draw on models of good practice, here and elsewhere. They are evidence-based, not airy-fairy, because when it comes to protecting refugees and finding solutions, we are all interested in what works, effectively, efficiently and humanely.

In like fashion, our Policy Brief on complementary pathways to protection was launched just last week. It sets out to show, clearly and concisely, how States such as Australia can do much more, and how they can ease the search for protection and solutions and so go some way towards reducing the necessity – and I emphasise, the necessity – for many of the world’s displaced to fall back on risky, life-threatening, and often deadly alternatives.

Over the past year, we have continued to collaborate closely with UNHCR, both through the Regional Representative in Canberra, and also on the basis of our long-standing working relationships with the UN and UNHCR colleagues in Geneva and around the world.

Our cadre of dedicated doctoral students keep us actively engaged and informed about regional and thematic issues, and their contact with what’s going on here and elsewhere keeps us grounded in real-life challenges. Added to that is our strong legal and international law capacity, which allows us to maintain an active support and information sharing role with legal centres and advocacy groups throughout and beyond Australia.

The importance of these linkages should not be underestimated, as we look to a future in which basic principles of refugee protection will continue to be challenged and where they will need to be advocated strongly from the ground up, filling the vacuum left by the proven inefficiency and harmful outcomes of too many top-down government policies disconnected from life at it is lived.

Looking towards that bright future, it is clear that we and our colleagues, all of us here today in body or spirit, will need to keep a weather eye on a series of overlapping, sometimes interlocking issues – the very future of the international protection regime itself; regional cooperation and developments, in the face of present or likely outflows; the accelerating impact of climate change; collaboration with partners, including emerging scholars, in the Asia-Pacific; and the possibilities and prospects, distant though they may be, of re-establishing Australian law and policy on an even keel, recovering that basic humanity which community outreach tells us, again and again, is still there...

Two years since...

It is two years since I last spoke to this conference, and it may seem that little has changed for the better. At one level, that is true, and it is sad to see elements within government and parliament still engaging in misinformation, in disinformation, and in propagandizing, for narrow parochial and political purposes, the often desperate situation of the refugee, the asylum seeker, the migrant, and even the local poor.

At many another level, though, there is some good news, even if it must sometimes be qualified.

Behrouz Boochani is free at last, though without prospect yet of a durable solution.

Hakeem Al-Araibi avoided extradition to his country of origin, in no small measure due to civil society support, though his case, too, raises still unanswered questions about the extent to which refugee protection has truly worked its way into the psyche of today’s bureaucracy.

And elsewhere there are models of commendable behaviour and capacity for good – Australians in Canada, combining to use that country’s tried and tested private sponsorship scheme to bring refugees otherwise left without hope in inhumane conditions in PNG and Nauru; and Australians in the USA, also following through and stepping up to welcome those rescued through President Obama’s initiative.

And of course, there are anniversaries to celebrate! 35 years since the Cartagena Declaration was adopted; 50 years of the OAU’s refugee convention; 100 years since the League of Nations was set up and the seeds sown of the present imperfect regime of refugee protection which, if that ever-elusive political will can be nailed down, may finally make that quantum leap from the rhetoric of cooperation, to the concreteness of action.

For since we last met in November 2018, the UN General Assembly has adopted those two Global Compacts called for by the 2016 New York Declaration for Refugees and Migrants. Unanimity was missing, but sufficiently large numbers of States have formally recognized the need for greater international cooperation and greater commitment on both fronts.

The Global Compact on Refugees was adopted by 181 votes in favour, two against and three abstentions; that on Migration, by 152 in favour, five against, and twelve abstentions. Australia voted for Refugees, but abstained on Migration – apparently, it thought it might get in the way of spending lots of money on detention...

But will a vote for refugees translated into a commitment to refugees? We will have to see...

The Global Compact on Refugees, not surprisingly, has received a considerable amount of critical comment. As a negotiated deal between States with limited input from refugees or host communities themselves, it left many dissatisfied (for a comprehensive selection of views, see last year’s special issue of the International Journal of Refugee Law). But what will count, is what happens next; and I’ll come to that in a moment...

For a moment, though, let’s celebrate today, this coming together for which we are especially appreciative of the University, the Faculty, our generous donors and sponsors, our hard-working volunteers. Today, we welcome participants from all over Australia, from Adelaide, Perth, Brisbane, Melbourne, Sydney, of course, and from Canada and New Zealand. We have among us scholars and judges and tribunal members; refugees and asylum seekers, NGOs and civil society. We welcome especially those with lived experience as refugees and displaced, not just among the ardent listeners, but also up here, sharing what they have been through and where and how they think we might go.

But...

Yes, there is always a ‘but’.

Not that we should be surprised, for the causes of displacement, multiple and complex as they are, still need to be addressed coherently and consistently, both within existing organisational frameworks, such as the United Nations; and by thinking and acting outside the box, using information technology, perhaps, to pinpoint incipient disasters more rapidly and accurately; and even to hone in on the polices, practices and those responsible, whose actions are a cause or exacerbation of displacement, or symptomatic of inhumanity in response.

We are still not that good with the deep questions: the Syrian conflict is not over, but it will eventually be followed by a complex of new challenges involving return, rebuilding, restoration, and the reconstruction of social relations. The price for failure, the price even for inadequate commitment to solutions founded in social justice, will be yet more displacement.

Myanmar is not over, either, and Bangladesh needs support, both moral and material; it needs pro-active, future-oriented assistance that will allow it, among other things, to leverage having acted on behalf of us, the rest of the international community, into local development to the benefit of their people and those they have welcomed. Again, the price of failure, will be further displacement – remember Europe, 2015-16.

Something worrying is going on in India, too, with so-called citizenship reviews shrouding what looks and feels like a hostile policy built on race and religious profiling. In the middle of UNHCR’s ambitious campaign to abolish statelessness by 2024, what will those deprived of their nationality then do?

And turning to look east for a moment, we can see still the near-perfect storm – multiple causes and drivers of displacement – that has settled over Venezuela. More than 4 million have left their country since 2014, most of them finding refuge in the Americas. But many are without documentation or formal permission to remain and work, which means vulnerability to trafficking and exploitation, while host communities themselves are increasingly overstretched.

As always, a mix of positive and less positive...

The tasks we set ourselves

One goal we set ourselves in the Kaldor Centre – and in this, we’re not alone – is to ensure that we produce quality research. This means research-backed and informed by scholarship, evidence-based research which can serve as the foundations for policies that best serve refugees, the nation and the people. That is why our research draws not only on the experiences of others, around and across the globe, but also factors in today’s concerns, many of them real enough if not always that well-founded – concerns about security, about costs, and about the apprehensions that always come with change.

Like most of us here today, we make certain assumptions and take them for granted. We think of government as accountable, in meaningful ways beyond the occasional ballot box. Above all, though, we assume that reason and progress have a symbiotic relationship, and that respect for human rights, for human dignity and truth are values necessarily shared in common.

Perhaps this speaks to a certain naivety on our part, or to some pitiable disconnect between the academic and the real world, between civil society and those who claim to govern. Time and again, here and in other countries we find that government has little or no interest in evidence-based policy, but rather the opposite. Just look at any Senate inquiry on, say, migration or citizenship, and at how the government responds. On the one side, copious well-detailed, well-founded submissions from civil society and a range of stakeholders, commonly offering viable alternative ways to reach stated policy goals; and on the other side, nothing – no attempt to engage in a reasoned discussion or counter-argument, but rather and too often, a simple parroting of old tropes, irrespective of cost, efficiency or harm done.

Examples of the negative discourse are almost too numerous to mention, but typical is one Treasurer’s fantasy of ‘negative globalism’ and what I suppose is a variation on Trumpism, the deep inter-State, that supposedly ‘unaccountable internationalist bureaucracy’ seeking to impose its will on poor little Australia.

Or listen to the meanderings of a former foreign minister, claiming that refugees are owed protection only temporarily, until they can return home. And how many refugee situations, former foreign minister, did you bring to an end? How many conflicts did Australia prevent, mediate or resolve? What are you actually doing, in our near neighbourhood, in our region or beyond, to make the ‘temporary’ real, to ensure that refugees can and do find a durable solution before their lives are wasted away by your platitudes and short-sighted, pointless, harmful policies?

Answers came there none, of course, but then the former foreign minister was talking in Hungary, which could explain a lot, including yet another facile remark, that migrants should integrate, not live together in ‘separate ghettos’. Is that, then, why government cuts back on language tuition, or on access to education, or on community support mechanisms, or why it fails to promote recognition of acquired skills and qualifications? You really should have been here in August last year, when the Canadian minister for immigration reminded us that if you want integration, you have to invest in integration.

All in all, listening to such nonsense can be quite a downer, but it does raise questions about what we are trying to do and whether we are going about it the right way.

Because it’s not just ignorance that blames the refugee for trying to find security; or pretends that paying smugglers for passage means you are unworthy, rather than utterly desperate; or that insists migrants should disperse, rather than live among a supportive community; or that pretends refugee crises are temporary, when it can’t even define ‘temporary’.

No, it’s not just ignorance (though ignorance and stupidity should never be entirely discounted). No, it’s deliberate, in the sense that political gain is thought to lie in demonising the ‘other’, whether she be a refugee, a migrant, or simply poor. It diverts attention from accountability for failure (and it seems to sell newspapers).

There’s none so deaf as those who will not hear, nor so blind as those who will not see.

So should we give up, abandon the challenge? Of course not. That’s not the way we are wired, it’s not the way we are. And we are here today precisely because we also are the ‘others’, keen to learn, keen to do the right thing, keen to ensure that, in our daily life, whatever the tasks at hand, the spark – no, the fire – of common humanity continues to burn bright.

It’s a multi-faceted belief, one of many parts, built of many creeds and united by common, immutable principles – that everyone should be protected in their life and person, and that none should be placed in harm’s way: No child, no woman, no girl, no boy, no man.

Only too self-evident today, however, is the fact that we can no longer assume that leadership on matters of principle and doctrine will come from above, whether from government, the United Nations or UNHCR. Too often, and at many a level, we find significant and worrying knowledge gaps among those who seek to formulate policy or to decide matters of moment.

There can be many reasons for this. There is a lack of knowledge out there, and there are many who, perhaps for understandable reasons, just do not know of the depth and breadth of international protection – its deep, historical foundation in law and principle and practice. Many also may now be too detached from the grassroots, from the challenges involved in fighting for protection in the front line, or from the lives of those whose claims must be made and for whom we, as refugee lawyers and community activists, must advocate now, as we have done in the past.

There are many gaps that remain to be filled, and of course, governments and international institutions will be part of the picture; but we need to do more, and to find other paths of influence and impact.

Doctrinal leadership begins from below, from the understanding that we develop in our work with the ‘cases’ that are peoples’ lives; and it often begins in that hard graft, which comes with searching for and locating all the ways – evidential, argumentative, principled – that will ensure that those in need find the protection to which they are entitled.

So, where next?

The Global Compact on Refugees contains the potential for change. With its orientation to commitments, pledges and follow-up – indicators of progress – it may be the catalyst, the quantum leap, that the international refugee regime has long needed.

Two caveats: ‘may’ reminds us that much will depend on the actions of others, States in particular; and a ‘quantum leap’ used to mean an abrupt change, but often a small one, and not the massive change that we tend to assume today.

That is actually quite a useful perspective, and it might help if we think of all the small or relatively small contributions to which States could commit, that together may lead to more fundamental re-configurations.

Next month the Global Refugee Forum – the first of the Global Compact’s follow-up sessions – will meet in Geneva and allow States like Australia to step up to the plate and make pledges on key components.

Will more refugees find protection and a solution – security, self-reliance, a living and a livelihood for themselves, and for their children, education and advancement? Will more host communities, acting on behalf of us for those displaced, be enabled and empowered, not just to cope, but to build resilience, become stronger, develop?

A few areas identified in the Global Compact give an idea of what’s needed, of what Australia could do:

■ Protecting access to asylum

That’s a difficult one for Australia, after so many years of unilateral off-loading. But the movement of people in search of refuge cannot be managed away, anymore than conflict and persecution. There will always be a need for a fair and efficient asylum process, and that means not only commitment to upholding international law and fundamental obligations, but doing it efficiently and effectively.

And that, in turn, means investing in front-loading, independent decision-making, credible appeal and review.

That means committing to avoid arbitrary detention and the deliberate wasting of human life and human resources.

■ Resettlement

UNHCR estimates that 1.4 million refugees will need a resettlement place in 2020. Far fewer refugees in Australia’s humanitarian program now come from those identified by UNHCR; six years ago, it was 80%, last year, only 23%.

Australia overall has a positive record in resettlement. It knows, or knew, how best to help and manage those who will be new Australians.

In solidarity with other States, it can, and should re-commit to the humanitarian imperative, increase the numbers, and pay heed to those in special need.

■ Complementary pathways

Humanitarian programs need not be the only way find protection and a future.

Australia should think outside the box, and commit to exploring and exploiting alternatives additional to the program – labour migration, education, training

■ Family reunion

It is empirically established that the mutually supportive environment offered by families eases integration and successful settlement; it brings closer the goal of a durable solution.

Too often, the family is narrowly construed, and seen as ‘naturally’ nuclear, rather than in the round – extended, mutually dependent and supportive.

■ Integration

Integration is a two-way process, and the evidence shows that investment produces results.

Australia can and should commit to avoiding marginalisation, by investing in integration through language tuition, skills recognition and acquisition, and other incentives.

■ The refugee voice

Whether in asylum, refuge, camps, or resettlement, the refugee voice has not been heard for far too long.

Australia can and should commit to supporting their agency, their involvement, and that of the communities who host them.

■ And beyond our borders

Australia should commit to being a voice for refugees, to speaking out for them, and against those who are the cause of displacement.

And so to today...

All of which brings me to the meaningful part of today’s conference – 'Good decisions: Achieving fairness in refugee law, policy and practice'.

Deciding whether someone is a refugee – RSD – is key to the effective, good-faith implementation of the 1951 Convention and the 1967 Protocol. Many States also see that good decision-making is key to what they are especially keen on these days, which is gate-keeping. Given that individual rights and international law are prominent also in the picture, the scene is set for a sometimes tense stand-off between competing interests. Perhaps we should not be surprised that some governments tend to load the dice...

But good decision-making in refugee matters is also a sub-field of good administration generally, in any democratic representative government that subscribes to the rule of law. As in that field, too, RSD demands due process, procedural and substantive; it demands, again as the empirical evidence shows, sensitivity to cultures and events that many of us can scarcely envision; it requires decision-makers to look at the past, but decide on the future; and then to give reasons for decisions – perhaps the most visible requirement of democratic process.

And with all that in mind and more to come, I am absolutely delighted to welcome as keynote speaker to this very full and textured program, Hilary Evans Cameron. She comes with a wealth of experience, and as you will discover, she is a wonderful speaker...