The Report of the Expert Panel on Asylum Seekers contains some threads of a genuine shift from the prevailing framework towards a more regulatory model for responding to asylum seekers.
The panel has abandoned the language of deterrence (in favour of a more nuanced incentives and disincentives approach) and reflected the evidence that people seek asylum in Australia because there are few, if any, feasible alternatives in transit countries.
The panel has recognised that preventative measures to avoid deaths at sea must be adopted at various locations. But the lack of a real timeframe or strategy along side their recommendations makes the next steps rather unclear.
Importantly, the report does not suggest a return to temporary protection visas (although the removal of family reunion is a key plank). The panel has dismissed towing back the boats for now, and they build all recommendations around an increased annual intake of 20,000 in the short term, and 27,000 over the next five years, as well as improving processing capacity in the region.
Also worth highlighting are recommendations to remove mandatory penalties in relation to Indonesian minors and others crewing unlawful boat voyages from Indonesia to Australia; integration of the Humanitarian and Skilled Migration Programs to explore possible opportunities, however small, for irregular arrivals to access skilled migration avenues, and the doubling of funding for a regional cooperation framework jointly managed by DIAC and AusAID.
Finally, The Conversation’s commitment to evidence-based research has been rewarded with a Panel recommendation of $3m per annum for at least two years to establish a research program on asylum and irregular migration to inform future policy direction.
But tangled in those threads are some deeply disturbing proposals.
First and foremost the combination of the Nauru, PNG and Malaysia solution raises significant concerns that cannot be airbrushed over. All three are proposed as transitional arrangements until effective regional processing arrangements can be put in place.
But neither PNG nor Nauru are transit nations, so their role in responding can only be read as punitive. So while the language and framing of the recommendations sought to bury this kind of punishment, they remain for now the centrepiece of the approach.
Offshore processing has been proposed as an interim measure without time limits.
So if the regional arrangements required for a comprehensive and integrated regional program drag on, so will the use of facilities that have proved unpalatable to the Australian public in the past.
Would it be acceptable that people wait one, two or three years for processing? And how long thereafter would they expect to wait for resettlement? Time is critical in influencing decisions not to make dangerous onward irregular journeys – to Australia or elsewhere.
The High Court ruling on Malaysia is not given its due in the report. Instead, various legislative mechanisms to get around the findings have been proposed.
It also takes some time for the report to use the term “human rights”. But human rights are critical in relation to refugee protection and should be given far greater prominence as we track forward into a future likely to come with greater irregular movement in this region.
While the panel sought to stress their recommendations gave “no blank cheque” to legislators, it falls short of what many international and refugee lawyers have called for in ensuring Australia does not breach its international obligations.
That the report itself highlights how few countries in the region are parties to the 1951 Refugee Convention, should be justification enough of the need for Australia to set an example in regional protection and asylum standards.
Large parts of the report are concerned with the long-term regional collaborations required to ensure efficient and effective access to processing in transit countries.
The centrepiece is that those who arrive in Australia by boat should have “no advantage” over those that do not. The problem with this approach is over whom? The report contends those in transit countries.
It is pretty easy to have an advantage over these people – there is no co-ordinated, integrated approach to processing people in Malaysia, Indonesia or Thailand. So this “advantage” is meant to be over rights that actually do not currently exist. In the future this may be the case. But for now there is no advantage gained by coming to Australia by boat. Instead, the journey is the only option weighed against the alternative of decades in legal and social limbo.
The report still includes assumptions which the evidence at least disputes if not rejects.
Family reunion is pitched as a “pull factor”, or incentive, and the Expert Panel Report has recommended its removal. Under these recommendations, any asylum seeker who makes the voyage from Indonesia in the direction of Australia will not have access to family reunion (an aspect widely regarded as a key driver of women and children boarding boats during the TPV era, and of the high proportion of women and children drowned in the SIEV X disaster).
This blanket restriction of family reunion will, at least in the short to intermediate term, see greater numbers of women and children, or entire family groups, on the move. As has been detailed so often in the past six weeks, women and children die in far greater proportions in shipwrecks and drowning incidents.
As the report authors note:
it is impractical for Australia to encourage and support … a regional cooperation framework on asylum and protection issues without an Australian national approach to such issues that enjoys broad-based support and the prospect of sustainability over time.
This statement highlights the inter-dependence of a positive domestic response to matters of asylum, with a comprehensive regional framework.
With actual timeframes and clear strategies for implementation, the threads identified in the report could well be woven into a new approach for asylum seekers that shifts away from deterrence to prevention of deaths at sea. Until then, lives remain at risk.