Will Our New (Old) PM Be Better or Worse for Refugees?

By Jessie Taylor and Lizzie O’Shea | 02 Jul 13

The above image is taken from the Heartlands Refugee Art Prize exhibition. Click here to see more.

By Jessie Taylor and Lizzie O’Shea

The UN Refugee Convention gives every human being the right to seek asylum. Those who are found to have a well-founded fear of persecution or a fear of violations of their fundamental human rights are entitled to protection. Those two basic facts are inescapable for any country that is a  signatory to the Convention, though in recent years Australia has consistently engaged in all manner of legal contortions to try and avoid them.

For a number of years, the Coalition’s policy response has been simple, monotonous and menacing: “stop the boats”. During her Prime Ministership, Julia Gillard, bewilderingly, failed to call into question the self-evident stupidity of this unsophisticated excuse for a policy. Refugee advocates have been justifiably concerned, most obviously for the welfare of people lawfully seeking asylum by boat who are now going to add to their dangerous sea journeys the possibility of exposure to force from Australian officials. But the Coalition’s policy is also troubling politically. All the signs being read together, Abbott’s intention appears to be to withdraw from the Refugee Convention, if not as a signatory, then certainly in spirit and practice.

When Kevin Rudd rose from the political dead, there was certainly hope amongst refugee advocates that he would absolve the sins of his predecessor. To some extent, this was justified: in his previous stint as leader, he presided over a sort of depoliticisation of the issue that was widely welcomed by those sympathetic to refugees. The Pacific Solution was dismantled, Nauru and Manus were closed, and some sanity began to return to the process.  Unsurprisingly, this coincided with improved perceptions of refugees among the general public. There was a sense that as a political issue, it was coming to a close.  Things changed suddenly when Julia Gillard ascended to the top job and reopened this wound in Australian political discourse.  She implemented policy reversing the Rudd government’s initiatives, and stretching the policies he had dismantled to an unprecedented extreme. Intent on drawing electoral advantage, she fronted a government that perverted the right to seek asylum in appalling and imaginative ways (with the remarkable exception of the introduction of the complementary protection regime, added to the Migration Act by operation of the new s 36(2)(aa)). In doing so, she leaves a legacy that has jolted the entire debate away from the human rights of refugees.


In the short time since his return to the top job, Rudd has shown little desire to shift it back.  It seems that those hoping for a return to the spirit and the letter of the Refugee Convention may be disappointed. The first order of business – just a couple of hours after the spill – was Foreign Minister Bob Carr’s now infamous appearance on Lateline, setting the stage for a fresh political attack on asylum seekers. Carr declared that the Rudd Government will take a “hard-edged” approach towards asylum seekers.  He declared that the majority of people arriving by boat now are “economic migrants”, not refugees.

Rudd never really campaigned for his resurrection on the basis of any policy differences with Gillard. Their jostle for power was a popularity contest.

In a disappointing display of political expediency, Rudd’s supporters (particularly those quivering in fear for their political lives in notorious Western Sydney) have openly backed Carr’s statements about the so-called “illegal immigrant problem”.

But this should come as no surprise: Rudd never really campaigned for his resurrection on the basis of any policy differences with Gillard. Their jostle for power was a popularity contest, much more concerned with control over the party by unions, factions and polls. If the harbingers are real, then Rudd, like Abbott, will prefer to redefine our obligations under international law, rather than end the business of playing politics with the world’s most vulnerable people. Carr has flagged what he sees as a problem of definitions: “if someone is leaving a country and they are part of the majority religious and ethnic group,” says Carr, “then they’re not being persecuted in the way that the Refugee Convention describes.” There has been no apparent attempt to reconcile this statement with the fact that the vast majority of people arriving in Australia by boat are indisputably members of an ethnic minority. Tamils form around 11 per cent of the population of Sri Lanka. The Hazaras constitute somewhere between 9 and 19 per cent of the population of Afghanistan, and are public enemy number one of the Taliban.

Perhaps most extraordinarily of all, Carr stated that it is only by virtue of the nation’s courts and tribunals “getting it wrong” that more than 90 per cent of those arriving by boat are found to be refugees, owed protection under law.  This is a bizarre and unwarranted assault on the rule of law in this country. It will be interesting to watch how this plays out: the legislature, after all, is only one pillar in the separation of powers. Courts have the job of interpreting and developing the law, and have demonstrated willingness over the last three years to hand down bold decisions which clearly throw spanners in the works of Government policy in this area. Most notably, this included the striking down of the Malaysian solution and the power to detain refugees on the basis of adverse security assessments from ASIO. The problem for Abbott, and now for Rudd, it seems, is that the Refugee Convention has a long legal history of interpretation based on humanitarianism. Tinkering with legal definitions and expecting the judiciary to uphold such interpretations unquestioningly is hardly a risk-free political strategy.

This is a bizarre and unwarranted assault on the rule of law in this country.

It is important to remember that the task of refugee advocates remains the same, regardless of the policies the Rudd Government adopts or how Abbott’s take form if he is elected. We must patiently, persistently continue to explain the law and cite the facts: No, it is not illegal to seek asylum. No, we are not being overrun by queue jumpers. No, asylum seekers in the community do not receive higher welfare benefits than elderly pensioners.  No, there is no possible justification for a policy of mandatory, indefinite immigration detention, costing the taxpayer $2 billion every year. And no, the boats will never stop as long as their passengers are still fleeing persecution, and there is no other safe alternative available for resettlement. Fortunately, Greens Senator Ludlam did just this in response to Carr’s comments, in a welcome counterpoint.

We must patiently, persistently continue to explain the law and cite the facts: No, it is not illegal to seek asylum.

Those of us who are concerned about this issue must continue to talk sense.  We must answer the hostility and vitriol with reason and fact.  We must resist getting sucked into the mudslinging that happens in comments sections in the darkest, ugliest corners of the Internet.  We must put a human face on the statistics and remind people of the dignity of the human spirit. We must continue to tell the human stories so that the population of this country has some option other than to succumb to the fear that is so enthusiastically peddled by politicians and media alike.  The image of an “asylum seeker” allows us to witness the best parts of human nature, both in the determination and resilience required to flee persecution, and the strength and decency it takes to offer them protection, and welcome.

The change in leadership is an opportune moment to reconceptualise the issue: to strip away the politics, and return to the basics of international law. The appointment by Rudd of Tony Burke as Minister for Immigration, as someone who expressed logical and humanitarian objections to Howard Government policies in his role as shadow Minister, is probably the best chance in years to reframe the terms of the debate. But it will certainly not be easy: people concerned about refugees should seize the moment. We should write to local members, join our local refugee action collective and find ways to refocus the public discussion. We should encourage our representatives to stop using weasel words to evade our obligations, but approach the issue with simple human decency. We should take every opportunity to send the message that now is the moment to start afresh.

Jessie Taylor is a Melbourne barrister. She is senior Vice President of Liberty Victoria and co-creator of Between the Devil & the Deep Blue Sea.

Lizzie O’Shea is a lawyer for Maurice Blackburn’s Social Justice Practice, which runs cases in the public interest. She has represented refugees, Aboriginal and Torres Strait Islander people and those unfairly targeted by national security legislation. She is also the Chairperson of Right Now’s board.