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The Right to Seek Asylum in Australia: International Norms and Domestic Politics

Jonathan Kent (jonathan.kent@mail.utoronto.ca)

CPSA Annual Meeting Toronto, Canada

May 30 2017

PLEASE DO NOT CITE OR CIRCULATE

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Introduction Asylum and border policy have been contentious subjects in liberal democratic nations of late and the Australian case provides an indicative example of this tension. Since the late 1990s, both major political parties in Australia, the right of centre Liberal National Coalition (LNC) and the Australian Labor Party (ALP) have found themselves at odds with each other over an appropriate and sustainable response to boat arrivals of asylum seekers. The LNC has taken the tough border control approach to responding while the left of centre ALP has generally pursued a more humane response. This policy area has been the source of controversy in three federal elections in 2001, 2010, and 2013. Scholars have typically focused on the matter of electoral politics and the desire of each party to appeal to particular domestic constituencies as a way to capture the nation’s highest office. This explanation is appealing but it is only one dimension of a more comprehensive story. Australia received boat arrivals of asylum seekers prior to this period, but they did not foster the kind of polarization we see beginning in 1999 to 2001. Prior to this, the Australian government intentionally maintained bipartisanship on this challenging issue. So the question is not only why boat arrivals have caused policy divergence on this issue, but why it occurred at this time? In my paper I make two departures from the traditional understanding of Australian border control policy. First, I argue that the emergence of this public political debate in Australia was not simply a strategy to capture political power. It was part of a larger transnational normative process. Such an approach shares similarities with the familiar second-image reversed argument. The international norm governing asylum seeking shaped domestic political cleavages between Left and Right political forces. Prior to 1999, the international norm did not cause domestic political divergence and bipartisanship was closely maintained. By 1999 and 2001, ambiguities and gaps contained in the norm and opened up space in Australia for interpretation, contestation, and political debate. In this respect, the norm governing the right to seek asylum has partially structured domestic political cleavages between both major political groupings in Australia specifically those with competing cosmopolitan and populist perspectives. Second, some scholars have proposed a two-step approach to studying the interplay between norms and domestic politics whereby norms describe the evolution of the international structure and rational choice complements this by explaining how decisions are made on a case-by-case basis. For example, constructivism provides a description about a dynamic international social structure and rational choice enables us to evaluate actors’ choices within this structure by assuming egoistic self-interest. However, a focus on ideas, culture, and identity circulating within the domestic context can be valuable in studying how tensions among domestic groups can emerge and shift over time. The domestic political debate is at least as connected to the meaning of Australian national identity within the context of boat arrivals of asylum seekers as it is to strategic power and electoral advantage. Both the LNC and ALP parties have drawn from the ideational resources existing in the Australian national sovereignty norm

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In the first section I briefly review the empirical phenomenon more closely and the prevailing literature on the subject. In the second section, I discuss my proposed theoretical framework of norm contestation that engages with the interaction between the domestic and international levels of analysis. In the third section, I apply the framework to this case study through the analysis of three empirical developments: the LNC government’s decision to contest the right to seek asylum and the ensuing domestic political debate about boat arrivals; the changes to the norm occurring during 2001 to 2007; finally, I examine the Labor government’s effort to reinvent Australian national identity through a more humane asylum policy. I conclude with a brief review of the key points revealed and the implications for future research on the subject. The Narrative: Domestic Politics of Border Control It is difficult to identify another issue that has fostered as much political division in Australia as boat arrivals of asylum seekers. Prior to 1999 and 2001, this was not the case however. The debate was largely contained and both major political parties observed an implicit pact not to air their differences on this issue. During the Indochinese boat crisis, it was the LNC government of Malcolm Fraser who introduced Australia’s onshore asylum system when boats of Indochinese arrived during the late 1970s. A decade later, when Cambodians arrived to Australia by boat, the ALP government of Bob Hawke and then Paul Keating introduced mandatory detention and it received support from the LNC opposition. In 1993, political scientist Ian McAllister highlighted this bipartisanship on asylum and migration stating, “each successive party government had honored the sometimes substantial changes made by its predecessor and retained an effectively unpopular policy” (1993: 176). Hawke also stated that, “I don’t think there is any other issue of importance on the Australian political agenda of which it can be said there is such an implicit pact between the two major groups (Kingston 1993: 10). For LNC Senator Jim Short, maintaining bipartisanship was about “not scratching too hard” for fear that a “dark underbelly of Australian opinion, fed by racism, resentment at outsiders demanding resources, and fear of queue jumpers… could explode into an ugly and uncontrollable force in Australian politics” (1993: 9). Reflecting on the nature of bipartisanship on asylum and border control issues prior to 2001, former Deputy Minister, Mark Sullivan recalled: Boat arrivals were not the subject of political debate at this time. As a government official you briefed the opposition in almost the same way as you briefed the government as to what was going on, and therefore there wasn’t a political climate that saw the issue flair in a major way… It didn’t get any political wind behind it because the politicians would be briefed by the department and they’d go away and agree not to say anything. That was there for this policy to occur (2015). From 1999 to 2001, the number of boat people arriving to Australia rose from 200 in 1998 to 3721 in 1999, 2939 in 2000, and finally to 5516 in 2001 (Phillips and Spinks 2013: 22). The Howard government adopted a range of border control measures that undermined bipartisanship on this issue. The most important episode was the response to the MV Tampa, a Norwegian flagged vessel that had rescued a sinking boat of asylum

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seekers in international waters. The rescue occurred in late August 2001 close to Indonesia and the Tampa was instructed to disembark at the Indonesian port of Merak. The asylum seekers demanded to be taken to Australia however and the captain obeyed not wanting to cause problems. The Australian navy then stopped the Tampa and transferred the asylum seekers to the small Pacific nation of Nauru where refugee claims were processed. Australia’s response to the Tampa established a precedent that the Howard government would use as a larger strategy called the Pacific Solution. At first, the ALP opposition was ambivalent in response. The party did not support emergency legislation introduced on 29th August,1 arguing that they had not been consulted and the bill represented an excessive transfer of power to the executive branch (Kleist 2009: 86). In recalling his decision to oppose Howard’s legislation, ALP opposition leader Kim Beazley recalled, “our position in the polls collapsed over night” (Beazley in Leaky Boat 2011). The Howard government then introduced legislation in late September to implement its strategy and the ALP supported some pieces of the legislation but not others. In early October 2001, Immigration Minister Ruddock falsely reported that the Australian navy had encountered asylum seekers throwing their children overboard in a bid to allow them to enter Australia demonizing the asylum seekers with the Australian public. And just a few days later, another boat sank with all 353 men, women, and children onboard drowning. In combination with the 9/11 attacks, these incidents provided justification for strong border control. Political observers typically point to Howard’s strategy as an attempt to capture popular sentiment in the lead-up to a tight Federal election. By 2000 and into 2001, opinion polls highlighted Howard’s declining popularity (McCalllister 2003: 461).2 Liberal MP Bruce Baird indicated that the issue of boat arrivals was something that could be very helpful for the LNC in becoming competitive again (Leaky Boat 2011). Sure enough, the tough measures imposed against the Tampa captured the public’s sentiment and the 2001 election was even nicknamed the “Border Protection Election”. Howard increased his party’s seat count in Parliament to 82 seats while Labor dropped to 65. Observers argued that Howard’s Pacific Solution strategy was a “wedge” that exposed tensions between ALP’s two major constituencies. The strategy attracted blue collar voters to the LNC party because of Howard’s populist message to stop boat arrivals. On the other hand, Labor’s ambivalent position on boat arrivals compelled urban elites to defect to the more principled stand of the Green party on the far Left (McCallister 2003). The Australian historian, Robert Manne stated, “I can’t remember one single issue which

1The Bill would have provided the government with the power to remove any ship in territorial waters of Australia (s4), to use reasonable force to do so (s5), to provide that any person who was on the ship may be forcibly returned to the ship (s6), that no civil or criminal proceedings may be taken against the Australian government or any of its officers for removing the ship or returning people to it (s7), that no court proceedings are available to prevent the ship from being removed and from people being returned to it (s8), and that no asylum applications may be made by people on board the ship (s9). See DIMA. 2001. Bills Digest No. 41 2001‐ 02, Border Protection Bill 2001. 29 August. Available at http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd0102/02bd041 accessed on December 27 2015. 2This particular review of polling numbers from 2000 indicated that Howard needed a paradigm shift to win the next Federal election. Young, Graham. 2000. Howard behind in polls and issues for 2001 campaign. Onlineopinion: Australia’s Ejournal of Social and Political Debate. 31 October. Available at http://www.onlineopinion.com.au/view.asp?article=1826 accessed on May 14 2017

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more transformed politics than the decision taken by the Howard government late August this year to repel by military means all future asylum seekers and boat refugees” (2001). Kevin referred to the 2001 election as a Khaki election (2002: 31). Finally, a committee report was released the following year indicating that the Howard government’s representation of the “children overboard” incident was false because of either “deliberate deceit” or simply “an unwitting perpetuation of a falsehood because of inadequate advice” (SCCMI 2002: xxxvi). From 2001 to 2002, a view took hold among Australian politicians and observers that Howard had used the boat arrival issue for political advantage. From 2002 to 2007 boat arrivals to Australia virtually disappeared, allowing Labor to dismantle the Pacific Solution when it was elected in 2007. The ALP successfully reincorporated liberal elites and blue collar voters in the process. It was not long, however, before boats returned to Australia rising from 161 in 2008 to 2726 in 2009, 6555 in 2010, 4565 in 2011, 17204 in 2012, and 20587 in 2013. The issue of asylum seekers and border control once again became the subject of party rivalry and pre-occupied public debate during the 2010 and 2013 Federal elections. It was argued that ALP’s more humane stand on boat arrivals eroded as it attempted to maintain its favorability among Australians. The LNC opposition were also pressuring Australia to restore Howard’s Pacific Solution. The government tried but failed to set up an offshore processing regime in East Timor in 2010 and 2011 and then with Malaysia in 2011 to 2012. Eventually, the ALP brought back processing in Nauru and Papua New Guinea in 2012 and 2013 because it was supported by the LNC opposition. Most portrayals of Australian asylum and border politics during this period point to self-interested arguments about maximizing political advantage and appealing to party constituencies. There are of course elements of truth to these positions, but it is only a partial picture. We should ask why the issue of boat arrivals undermined bipartisanship at this time and not during other periods when Australia received boats? During the late 1970s, Australia received some 2,000 boat arrivals from Indochina and the prospect of many more was apparent. However, the government provided access to onshore determination and permanent residency for determined refugees. Likewise, from 1989 to 1999, Australia continued the practice of receiving boatpeople onshore arrivals while receiving several hundred each year. The position that I explore in this paper is the notion that transnational norms have influenced the debates, policies, and identities of both major political parties since the 1999 to 2001 period. Second Image Reversed and a Theory of Norm Contestation The notion that the international system shapes domestic politics is a familiar one. In 1978, Gourevitch summarized this literature under the title of “second image reversed”. The “second image reversed” concept describes how international system can influence the politics within a state and how state preferences are formed. The approach also allows us to see how developments occurring within the state may feedback onto the international system, reconstituting and redefining its structure and identifies a bridge between the subfields of comparative politics and international relations. Scholars have sometimes referred to the ongoing reciprocal relationship between state behavior

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internationally and preference formation domestically as structuration (Giddens 1984). Some propose studying this relationship using a “two-step” framework whereby constructivism explains preference formation and rational choice is the second step to explain state behavior as a function of preferences developed in the first step (Legro and Moravcsik 1999; Fearon and Wendt 2002). While sympathetic to this approach, I attempt to retain a coherent constructivist framework and norm contestation is one way to achieve this. Turning to rational choice does indeed provide a clear explanation of how egoistic actors pursue a specific set of preferences and interests within a structure of constraints and opportunities. But as is well recognized, rationalists have difficulty describing how preferences and interests form in the first place and how preferences are in a continuous process of construction and change. Constructivists and sociologically inspired political scientists reject the determining effect of international structure on the behavior of actors. But rather than turning to rational choice to explain why actors might contest international norms based on egoistic self interest, a constructivist approach would turn towards such features as actor identities, culture, and ideas in explaining contestation. Norm dynamics have been influentially addressed through Finnemore and Sikkink’s norm lifecycle. They describe how norms develop through an evolutionary process involving emergence, diffusion, and internalization (Finnemore and Sikkink 1998). International norms emerge within a small community of actors (with the help of a entrepreneur), they diffuse or cascade across a broader spectrum of states, and finally a norm is internalized constituting the identities and interests of states. This final stage involves the construction of actor identities and interests not through power or strategic self interest but through meaning and social value (Finnemore 1996). More recently, however, a second generation of constructivist norms research has extended this approach by looking into what occurs after norms are internalized and constitute actor identity (Hoffmann 2005; Wiener 2007; Sandholtz and Stiles 2008). Established norms describe the general boundaries for behavior and narrow the range of the possible. When new events and developments arise, actors must interpret what behavior is called for in light of their normative commitments. At times, interpretation may lead to the smooth adaptation of a pre-existing norm to meet the particular needs of society. At other times, norms may generate such severe unintended consequences that they will be subject to contestation and fundamental change. In this respect, norm internalization is not an end but a beginning. In this respect, norm internalization is not an end but a beginning. Contestation calls for a turn towards the agency of actors and interpretation. Since communities of actors create norms, these actors share a common identity with respect to that particular norm. For example, Western governments share a common identity in their commitment to find durable solutions for refugees and commit to not returning refugees to a place of persecution (non-refoulement). However, Western states are also diverse in that they have different ideas about how the norm should work. This is a consequence of actors having multiple identities whereby other subjective level features exert influence on their behavior within the context of a general albeit ambiguous normative framework. Though Western governments share a common identity with respect to the right to seek asylum, they are also nation states with deeply held normative commitments to national sovereignty and the idea that this is fused with a responsibility to control the entry and

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residence of non-citizens. When an established norm becomes contested, interpretive space is opened up whereby norm change can occur. Constructivists have drawn attention to the “domestic determinants of change” (Reus-Smit 1999; Risse et al. 1999) where national preferences are born and international practices are produced, reproduced, and transformed (Adler 2002: 108). A familiar approach to studying the relationship between domestic and international politics has been through two-level games whereby domestic groups play strategic power games (Putnam 1988; Moravcsik 1997). A norm contestation framework, enables scholars to engage with the second image reversed concept without turning to a rational choice-theoretic model. For instance, constructivists can examine ways in which domestic actors play “conceptual games” in which domestic groups bargain about who gets to impose meaning on material reality and thus to socially construct the situation in their own image (Adler 2002: 109). A constructivist framework is less concerned about questions about strategic bargaining for electoral advantage and more interested in questions about the interplay between ideas, culture, and identities. What may appear to be domestic actors manipulating the ambiguities and gaps of norms to pursue strategic self-interest may also be about the emergence of new forms of consciousness tied to efforts in reforming an ambiguous normative structure. Identity, culture, and ideas, therefore, can become the focus of a fruitful investigation into how norms are contested domestically and then deployed in the international arena. In the Australian context, these dynamics are evident. The political tension and policies proposed by the ALP and LNC do not simply represent strategic behavior to appeal to their respective constituencies and capture power. These two parties have interpreted the gaps and ambiguities of the international norm governing the right to seek asylum in light of the ideas, culture, and identities circulating in the domestic context. To study the interaction between these two normative contexts, we must focus on discourse. For Weiner, examining discourse can “make norms accountable” by revealing norm interpretation through an analysis of arguments and justifications actors use to contest, promote, and accept particular meanings of material reality (2008). It is not surprising that the ALP and other actors on the political Left would champion Australia’s normative obligation to provide boatpeople with access to asylum in Australia. What is interesting is that Australian officials and politicians are challenging the right to seek asylum using normative ideas and discourse of the international norm. Though the LNC and ALP have been at odds with one another over asylum and border control, there has been a rough convergence towards increasingly tighter border control. It is perhaps unexpected that the international normative context might play a role in this process, but it did. Norm Contestation: The Norms Governing Asylum and National Sovereignty The international norm governing the right to seek asylum has played a central role in the domestic debate regarding boat arrivals. From 1999 to 2001, the Australian government’s reception of and response to boat arrivals revealed gaps and ambiguities in the norm governing the right to seek asylum. Questions emerged about how to respond opening up space for domestic debate. The Howard government’s populist tendencies and vision of national identity guided it towards an enforcement driven interpretation that

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undermined bipartisanship and contested the norm governing asylum seeking. Australia’s efforts entrepreneurialism influenced debates and collaboration within the international normative community. A normative shift occurred at the international level with Western governments interested in pursuing similar approaches and the UNHCR taking the issue more seriously. From 2002 to 2007, however, Australia stopped receiving boat arrivals and a perception emerged within ALP that the issue had gone away. When the ALP came to office in 2007, it dismantled the Pacific Solution and returned to a traditional onshore asylum system seemingly ignoring some of the lessons learned by the Howard government in 1999 to 2001. When boatpeople returned to Australia from 2009 to 2013, the ALP government took steps to “stop the boats” through a UNHCR sanctioned regional burden sharing framework. The LNC challenged the ALP proposal, calling for a swift return to the Howard government’s Pacific Solution. The norm governing asylum seeking provides the right for all individuals “to disengage from an abusive society and to seek protection abroad” (Hathaway 1993: 687). The norm imposes constraints on the absolute national sovereignty of signatory states to exercise control over their borders. The norm calls on signatories to not impose penalties on refugees who arrive “illegally” and not to return refugees to a place of persecution (i.e. non-refoulement). However, the right to seek asylum and the treatment of refugees only corresponded to a specific category of individuals and governments emphasized the need to remain in control of their normal migration processes. The 1999 to 2001 boat arrivals blurred the distinction between asylum and migration and called for greater attention to be invested in ensuring boatpeople were not abusing the asylum system. The growing interest of Australia in imposing tougher border control measures indicates the rising prominence of the national sovereignty norm. This norm re-emerged through the narratives of both the LNC and ALP political groupings. Constructivist scholars point to the idea of national sovereignty and national identity being in the process of ongoing construction. Though scholars often examine questions of national identity and sovereignty within the context of countries experiencing turmoil, war, and crisis, the same developments occur in developed countries. In Doty’s study of national sovereignty and identity, she describes policymakers as continuously involved in the construction of the nation: “constructing the identity of a people is a continual and never-completed project, but it cannot appear as such. In other words, the people must simultaneously be presumed as given and at the same time be continually reproduced” (1996: 126). Consequently, it is interesting and important to note that both the LNC and ALP made use of a productive discourse around traditional Australian themes of “mateship”, a “fair-go”, and “battlers” to promote their respective approaches to handling the boat arrivals. In doing so, the government was re-defining what it meant to seek asylum and how Australia should respond as a sovereign liberal country. Leaving Howard’s Mark John Howard first emerged on the Australian political stage most forcefully during the 1980s for his outspoken support of the Australian historian Geoffrey Blainey. Blainey wrote a book titled All For Australia (1984) that made two controversial points. The first was that Australia’s immigration policy disproportionately favored Asian immigration at the expense of European which undermined Australia’s historic British heritage. The

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second point sense of resentment to what he saw as “an anti-democratic orthodoxy of multiculturalism” and that immigration policy was being crafting by elites in backrooms in Canberra (Blainey 1984: 65). Howard, then Deputy Leader of the Liberal Party, applauded Blainey for his courage in initiating the debate and recognized that he had been snubbed by many of his fellow academics at the University of Melbourne. This position would inform Howard’s politics when he came to power in 1996. In positioning himself in the lead up to the 1996 Federal Election, Howard accused the sitting Prime Minister, Paul Keating, of being “engaged in an attempted heist of Australian identity” (Howard 1995 in Johnson 2007: 195). He said Keating had undermined the “great egalitarian innocence, that egalitarian spirit… the birthright of most Australians only a short time ago, had significantly disappeared… [Keating did] betray the battlers of Australian society” (Howard 1995 in Dyrenfurth 2007: 217). Battlers here meant mainstream Australians who had been left behind by Labor’s elitism. In contrast, Howard argued that his vision of Australian identity did not arise from political correctness or social engineering, it came from the taken-for-granted conceptions of Australianess that emerged organically from Australian history (Johnson 2007: 196). Howard emphasized Australia’s British heritage: “To Australians, the British heritage is immense. Britain’s most enduring gift to Australia has been the institutions which have tooled our natural instinct for democracy” (Howard 2003 in Johnson 2007: 198). This traditional conception of Australian national sovereignty allowed Howard to channel themes from Australia’s history. For instance, the notion of “mateship” that was established at the Gallipoli campaign during World War One, was deployed by Howard during his speeches. For Dyrenfurth and Quartly, “mateship” formed part of a populist trope of abstract visions of solidarity, collectivism, and mutuality (2007). “Mateship” was also linked to the Australian notion of a “fair go” whereby egalitarianism and not class shaped national character and their understanding of the opportunities open to them. The irony was that “mateship”, “a fair go”, and “battlers” were themes that Labor had invented during the late 19th and early 20th centuries. According to Dyrenfurth, since the 1960s, Labor attempted to distance itself from these ideas because of the association with racism and sexism (2007: 213). Howard’s conception of Australian national identity as vulnerable to elitism and his deep-seated skepticism of international organizations and treaties made the government defensive in the imposition of constraints from above. He criticized Keating’s “resort to the alleged moral superiority of International treaties” and that Australian democracy should decide Australian values thereby rejecting “further entrenching the language and culture of rights in our public discourse (Howard 1995 in Johnson 2007: 199). Some observers said that the government pitted universal human rights against the popular sovereignty of Australia (Kelly 2005: 16). From 1999 to 2001, however, the international regime governing the right to seek asylum received the most critical attention from the Howard government. The norm governing the right to seek asylum called on Western governments to receive boat people, process them using domestic determination processes, and locally integrate determined refugees with the offer of permanent residency. The 1999 to 2001 arrivals exposed ambiguities and unintended consequences of the international norm and created the possibility for norm contestation. Unlike previous groups, these arrivals came from first asylum countries in Pakistan and Iran and had transited to Australia through

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Malaysia and Indonesia with the assistance of people smugglers. When the government questioned the boatpeople after they arrived they quickly came to understand the issue of boatpeople in a different light and sought to communicate that to the normative community. Most of the arrivals had been “recruited” by people smugglers who were spreading information about the opportunity of receiving permanent residency in Australia (Bedlington 2015). Smugglers have always been an element of refugee flows, but the Immigration Department developed a counter-narrative based on an economic model. Instead of delivering a service to meet a demand, the smugglers were generating demand for onward movement by spreading information. The government also argued that the structure of the asylum system was distorting the provision of scarce resources and creating incentives for onward movement. Though some 90 percent of the arrivals were recognized as refugees by Australia’s asylum determination system (JSCFADT 2001: 238), Article 31 of the 1951 Convention Relating to the Status of Refugees recognized that refugees that have already found a place of asylum should not migrate from a place of asylum.3 The UNHCR had a presence in both Iran and Pakistan where there were some 3 million refugees. It was reported that the agency had been trying to repatriate most of these individuals and that resettlement was only an option for fewer than 30 percent of them (JSCFADT 2001: 238). Australia argued that the structure of the international asylum system and the non-refoulement obligation were rewarding asylum seekers who show-up spontaneously in Western governments rather than waiting in first asylum countries for durable solutions. The asylum determination process in Australia was lengthy, costly, and judicious taking about 4 to 5 years to pass through. Immigration Minister Ruddock stated that the costs had risen to $300 million for the year 2000 (Research Note 2003-04: 2). In 2000, Ruddock also stated the $10 billion was being spent on asylum processing in Western countries for roughly 500,000 asylum seekers while $1 billion had been appropriated to UNHCR to deal with roughly 20 million determined refugees (2000). For Australia the international norm governing the right to seek asylum had created pull factors. Western governments would provide permanent residency promptly to refugees who arrived spontaneously while those who awaited durable solutions in camps in first asylum countries would often wait years. In short, Australia’s reception of boatpeople during 1999 to 2001 exposed weaknesses in the international norm’s guidance for handling spontaneous arrivals of asylum seekers. The ambiguities and unintended consequences of the norm were a perfect target for Howard’s critique and bold rhetoric. The government legislated temporary protection visas to replace permanent residency visas. When these proved ineffective in deterring boats, it took dramatic action in late 2001 by stopping the MV Tampa from accessing Australian territory. The subsequent efforts to turn boats back to Indonesia or transfer asylum seekers to Nauru and Papua New Guinea. The decision to intercept the Tampa 3Article 31 of the 1951 Convention states, ‘The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence’. The words ‘coming directly’ were inserted to preserve migration control. This inclusion was supported by the “travaux Préparatoires” reviewed in Goodwin-Gill, ‘Article 31 of the 1951 Convention Relating to the Status of Refugees: non-penalization, detention, and protection’, in E. Feller, V. Turk, and F. Nicholson (eds.), Refugee Protection in International Law, (2001) at 191-194.

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broke with past precedent of allowing boatpeople to access Australia’s onshore status determination system. Howard stated, “it [response to the Tampa] sends a message to people smugglers and others around the world that whilst this is a humanitarian, decent country, we are not a ‘soft touch’ and are not a nation whose sovereign rights in relation to who comes here, are going to be trampled on” (Howard in McLeod 2001). In a statement on Australia’s position on the Tampa, Ruddock even labeled the 1951 Convention as an “enabling tool for organized crime” (Ruddock in Afeef 2006: 2). Once the Pacific Solution was up and running, Howard gave a speech just prior to the election in November in which he stated his famous words: “It’s about this nation saying to the world we are a generous open hearted people taking more refugees on a per capita basis than any nation except Canada, we have a proud record of welcoming people from 140 different nations. But we will decide who comes to this country and the circumstances in which they come.” Within the ALP opposition, there was concern because they were basically retaining the same position in allowing asylum seekers to be processed in Australia. Beazley had support Howard’s TPVs but baulked Howard’s proposals to cut the courts out of the process entirely. According to Marr and Wilkinson (2003: 93), the ALP saw the Pacific Solution as an attack on the rule of law and decent government. It was noted that Labor simply did not have an effective response to the boldness and clarity of Howard’s border control and asylum policy. Norm Shift and Migration Management The Howard government’s bold maneuvers and arguments were the first of a series of developments occurring within the normative community. Other Western governments and the UNHCR also began to shift their positions and the Australian influence on these changes became apparent. The fact that Australia’s actions and rhetoric had such an influence and were consistent with the shared understandings beginning to express themselves in the normative community means that the Howard government’s approach was not simply about domestic politics. The right to seek asylum was slowly redefined and integrated into a broader framework of migration management and border control. From 1999 to 2001, Australia engaged in entrepreneurialism to challenge other Western governments and the UNHCR to shift their shared understandings concerning the right to seek asylum. The government was very active in the UNHCR’s Executive Committee (EXCOM) and Immigration Minister Philip Ruddock was one of the few ministers or executive branch officials to regularly attend emphasizing the importance Australia saw in the meetings. The EXCOM meetings occurred annually where governments discussed asylum and refugee issues and negotiated Conclusions recognized as forming soft law. Perhaps most importantly, but least well-acknowledged, was the push Australia made within the context of the Intergovernmental Consultations on Asylum, Refugee, and Migration Policies in Europe, North America, and Australia (IGC). The IGC was a collection of sixteen Western governments from Europe, North America, Australia and New Zealand. All were longstanding members of the refugee regime and the major donors to the UNHCR. The IGC was formed during the mid 1980s to collaborate on a response to rising numbers of arrivals filing asylum claims and a

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growing sensitivity towards abuse of the asylum system. In 2001, Australia took over the Chair’s position of the IGC meaning that it would set the agenda and organize the meetings. That year, Australia proposed various practices and a comprehensive strategy to respond to the pressures the asylum system was facing from other forms of mobility. The former Canadian Director General for Refugees and IGC Coordinator from 2001 to 2005 Gerry Van Kessel recalled Australia’s contribution: As coordinator of the IGC, I had on going dealings with immigration officials from all sixteen member countries. In my opinion the Australians were by far the most versed, most sophisticated, had the deepest knowledge of the issues that lay at the back of migration and asylum. Whether they were the most senior officials or subject matter experts who had come to our working groups in Geneva, I found them to be simply the most knowledgeable by a considerable margin (Van Kessel 2016).

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In 2002, the UK took over the chair’s position from Australia and picked up where they left off. The UK government entered into close consultations with Australia during 2001 to 2003 on a implementing a similar plan for Europe. Ruddock gave public addresses in the UK discussing Australia’s immigration policy in general and specifically the merits of its Pacific Solution as a response to complex flows of migrants, asylum seekers, and refugees.4 Later that year and after numerous meetings with Foreign Secretary, Jack Straw and other British ministers, Ruddock proclaimed that Australia’s experience with boat arrivals helped shape the UK’s approach to the issue (Taylor and Fray 2002). In 2003, the UK Blair government proposed an asylum and border policy modeled on the Australian model. In the past, regional processing and interception of as practice by Australia and proposed by the UK had been too controversial for Western governments to pursue collectively. The UK, Denmark, the Netherlands, Italy, and Spain supported the plan while the U.S. and Canada were also in favor. The change in perspective was not only limited to Western destination governments, the UNHCR also embarked on its own recalibration. The agency was critical of Australia’s labeling of asylum seekers as illegal migrants but recognized that something should be done. Erika Feller, who was UNHCR’s Director of International Protection from 1999 to 2006, had close contact with the Australian government as it rolled out its Pacific Solution and was an Australian herself. She played a central role in organizing the “Global Consultations on International Protection” that lasted from 2000 to 2001 and consisted of various meetings to discuss the continuing relevance of the 1951 Convention and key interpretive issues related to “secondary movement”. The Consultations produced a robust document called the Agenda for Protection that was endorsed by the UNHCR’s EXCOM and welcomed by the UNGA during 2002. The Agenda for Protection then led to the Convention Plus Initiative (CPI) introduced in 2002 and 2003. The new High Commissioner, Ruud Lubbers proposed the CPI to Europe to complement the UK’s proposal. When Sweden and Germany rejected these initiatives, the UNHCR took what it had learned from this intellectual activity and distilled it into ten principles that could be adapted to particular regional settings. The document was called the “Ten Point Plan and Mixed Migration” and was introduced in 2006. Labor Reconstituting Australian Identity In some ways, the Pacific Solution was a victim of its own success. From 2002 to 2007, boatpeople stopped arriving to Australia and dropped out of mainstream political debate. Instead, the media began focusing on the human impact of the government’s restrictive policies, particularly around the country’s detention system. The number of detainees rose from 1863 in 1997-1998 to 9321 in 2001-2002 (Phillips and Spinks 2013) and detention centres became sites of suicide attempts, mass hunger strikes, public protests, fires, and high-profile escapes. Prior to the 1999 to 2001 arrivals, detention had not caught the public’s imagination, but these dramatic incidents were widely publicized

410 December 2001. Are Australia’s Immigration Policies a Viable Model for the United Kingdom? Speech to the Foreign Policy Centre. London, UK; 16 August 2002. Managed Migration- Who does the Managing? Australia House. London, UK (speeches on file with author).

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in the media and the United Nations issued a number of critical reports.5 The UNHCR echoed these concerns identifying Australia’s offshore arrangements as possibly representing a penalty under Article 31(1) of the 1951 Convention (UNHCR 2006) with Nauru and PNG resulting in the separation of families, serious mental health problems, and refugees being unable to find durable solutions in a timely manner. In late 2002, Australians became aware of the Howard government’s dubious handling of the “children overboard affair” and other public controversies regarding immigration began to loom over the Howard government.6 In 2004, rights groups challenged the government’s detention policy in the HCA but the justices found that under Australian law the government could detain asylum seekers indefinitely.7 The decision outrages the elites of Australia, many of who began calling for an Australian Bill of Rights to be incorporated into the constitution. By 2006, the leadership within the ALP noted a “shift in national mood” and voted in Kevin Rudd as leader and Julia Gillard as his deputy. Much like Howard did a decade ago, the two attempted to reconnect with Australians by campaigning on a platform about national values and identity. Asylum policy was one of the more important issues on a list that included industrial relations, healthcare, educational policy, climate change, and the War in Iraq. Rudd and Gillard pledged to correct these policies and reincorporate “Howard Battlers” and liberal elites by drawing from traditional themes linked to Australian identity. Rudd published two articles in the glossy intellectual magazine called The Monthly in which he drew on political philosophers and attacked Howard for his lack of humanity on a range of issues. On refugee policy, Rudd cited the “parable of the Good Samaritan” for how Australians should respond to vulnerable strangers in their midst. When Rudd and Gillard gained the leadership positioned, they held a press conference announcing their intentions to reconnect with Australian values. Rudd argued that Australia had reached a fork in the road, “one not often talked about in this country, but I think it’s critical and that’s the actual fabric of our federation” (2006). Gillard followed up with her own statement emphasizing egalitarianism and her immigrant background: Australians are looking for a new style of leadership and they’re looking to protect fairness at work and fairness beyond work. They’re looking to protect that traditional Australian fair go. My family aren’t long-time Australians, they came here as immigrants because Australia offered them a fair go- a precious thing about our culture, and something that we’ve got to make sure is protected and enhanced, (2006). Rudd concluded stating, When it comes to fairness, a fair go, some people think that this just mysteriously grew out of

5The UN Working Group on Arbitrary Detention toured a number of detention facilities in 2002 and issued reports condemning the government’s policy as a violation of the ICCPR (arbitrary detention and access to legal review) and the UN Convention on the Rights of the Child (prohibiting detention of children except as a last resort (Millett 2002; Bhagwati 2002). The Human Rights Committee (HRC) also issued similar statements in A v Australia (1997), C v Australia (2002), Baban v Australia (2003), Bakhtiyari v Australia (2003). 6In 2005, the Palmer and Comrie reports were released to the public criticizing the Immigration Department’s handling of two incidents of malpractice. The both reports found deep-seated cultural problems within the Immigration Department and called for an overhaul. 7Al-Kateb v Godwin (2004).

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the soil one day in Australia. Do you know that it did not? Our movement etched it into the Australian soul through the 19th century and 20th century… With our industrial movement- which has been so criticized by those opposite today- and with our political movement from the 1890s on, we took fairness and a sense of the fair go, we won political office, we obtained concessions in the workplace and we entrenched fairness in the statutes of the nation. We etched the fair go also into Australia’s consciousness, our political consciousness. It is our legacy to the nation- a legacy that the current government seeks to peel apart bit by bit (2006). The ALP released its 320-page platform in April 2007 that mentioned the words “fair”, “fairness”, and “unfair” in excess of 200 times. With respect to asylum seekers, the platform included a chapter entitled “Respecting Human Rights and a Fair Go For All” and aimed to support all human rights instruments it was a signatory to, recognize entitlements of indigenous peoples, initiate a formal consultation on a bill of rights, and re-establish a human asylum and refugee policy. Rudd won the election by a majority of 83 seats to 65 seats and Howard lost his own seat. Interestingly, Howard made a conscious effort to avoid the issue of border protection because the LNC noted a change in national mood and a desire not to re-open the conversation for fear of reviving memories of “children overboard” and because of criticism about the government’s tough anti-terrorism policy (Browne 2010). Rudd appealed to a fair go, mateship, and used of the same themes Howard used to capture Australians’ support. During its first two years of office, the Rudd government reversed many of Howard’s policies. When Chris Evans took over the Immigration portfolio he dismantled the Pacific Solution, closed offshore processing centres on Nauru and Papua New Guinea, and brought the remaining 21 refugees to Australia. The government stopped intercepting boats and restored the offer of permanent residency to determined refugees. Evans also sought to bring cultural change to the Immigration Department and sought to redefine and tightly monitor its approach to detention. The government appeared not to have learned from the Howard government’s experience in 1999 to 2001 and saw the boat arrivals as being driven primarily by push factors in countries of origin. There is some evidence to assume this position. Iraq and Afghanistan now under reconstruction and it was thought that repatriation could be more ambitious. Indeed, the surge in boat arrivals from 1999 to 2001 was indicative of a larger trend among other OECD countries which had subsided in 2005 to 2007. It was not long, however, before boats returned and Australia received more than 50,000 boatpeople between 2009 to 2013. Once again, the government worked to stop boats from arriving. When the Howard government implemented its Pacific Solution in 2001, it did so within a different transnational normative context. The UNHCR had yet to grapple with the issues raised by secondary movement and the Pacific Solution’s practices of offshore processing were introduced into a normative vacuum of sorts. From 2001 to 2007, UNHCR engaged in intellectual and legal work to devise a new understanding of and approach to the phenomenon. When boats returned in 2009, the ALP government had access to new shared understandings and practices circulating in the normative community that could be used to respond to asylum and migration pressures. Rather than returning to the Howard government’s suite of unilateral deterrence measures then, the ALP government pursued some of these new options. Beginning in 2009, Australia provided funding and intellectual capacity for the creation of a “protection sensitive” approach to responding to irregular migration in the Asia Pacific region. Both Australia and the UNHCR worked through a regional arrangement

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called the Bali Process in the hopes of lifting the standard of protection in a region with very few signatories to the 1951 Convention. The goal was to develop practices that gradually improved the treatment of refugees. In 2011, the 45 members of the Bali Process approved of a UNHCR plan for a “protection sensitive” regional approach to irregular migration called the “Regional Cooperation Framework”. The UNHCR and Australia saw the statement as a breakthrough for a region that had historically been averse to human rights ideas and as a way to deter people from using smugglers to access Australia by boat. In 2010, Rudd lost the confidence of the ALP in part because of his inability to respond to boat arrivals effectively. Gillard was named as Prime Minister and in June she began promoting a regional burden sharing approach by appealing to Australians’ reason and morality. Gillard characterized the debate as polarized: “If you are hard-headed you’re dismissed as hard-hearted. If you are open- hearted you are marginalized as supporting open borders. I say to those engaged in this type of rhetoric: Stop selling our national character short. We are better than this” (Gillard 2010). She argued that those calling for tougher border controls were not simply racist but called opposition leader Tony Abbott’s plan to reinstate the Pacific Solution as inhumane and dangerous (3-4). She went on to state, Australia’s basic decency does not accept the idea of punishing women and children by locking them up behind razor wire or ignoring people who are fleeing genocide, torture, and persecution nor does it allow us to stand back and watch fellow human beings drowned in the water, but equally that there is nothing inconsistent between these decencies and our commitment to secure borders and fair orderly migration. The rule of law in a just society is part of what attracts so many people to Australia. It must be applied properly to those who seek asylum, just as it must be applied to all of us… No one should have an unfair advantage and be able to subvert orderly migration programs (6). Gillard said that the proposal represented a “sustainable regional protection framework” but warned Australians that it was not about “quick fixes” and that proper implementation would take time and patience. The RCF outlined a range of practices that Bali Process members could use to respond to asylum and migration flows and created specific roles for countries of destination, transit, and origin. In particular, the RCF envisioned the creation of a regional processing centre, transfer agreements, and the strategic use of resettlement to instill protection principles within broader migration management. During Gillard’s 2010 speech, she touched on Australia’s intention of setting up a processing centre with East Timor in order “to ensure that people smugglers have no product to sell. Arriving by boat would just be a ticket back to the regional processing centre (2010: 7). In the end, the processing centre was not built because the necessary groundwork with East Timor had not been laid (Hughes 2014). The second effort came in 2011, shortly after the RCF had been agreed to. The Gillard government struck an asylum seeker/refugee transfer arrangement with Malaysia whereby Australia would take 4000 determined refugees from Malaysia in exchange for 800 asylum seekers who arrived by boat to Australia. Australia would pay for the costs of the entire arrangement, roughly $292 million including transportation, welfare, health, and education (Spinks 2011). Australia saw the Malaysia arrangement as a way to deter boat arrivals by ensuring boatpeople would not have access to onshore status

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determination and permanent residency in Australia. Instead, asylum seekers would be transferred to Malaysia where they would have their claims processed by UNHCR, have work rights and not be detained as they were in Nauru and Papua New Guinea, while they awaited a durable solution. As part of Australia’s pledge to enhance the region’s protection space, the arrangement also ensured the 4000 determined refugees would be resettled in Australia. According to the senior Australian official negotiating the arrangement, there was also a “high probability” chance that the Malaysian government would allow the some 100,000 asylum seekers and refugees already there to have access to the same work rights accessible to the transferees (Hughes 2016). There very fact that Malaysia was discussing refugee issues with UNHCR was seen to be a significant breakthrough. Though UNHCR could not be a formal participant to the arrangement, it stated that the agreement was “workable” and recognized it was part of a broader regional approach to the asylum migration nexus. When the Gillard government attempted to implement the Malaysia arrangement it was blocked by domestic groups. Rights groups challenged the arrangement in the courts and the HCA ruled that it was unconstitutional catching the government by surprise. In 2001, the Howard government transferred and processed asylum seekers on Nauru without any challenge and Malaysia was a similar situation. When the Gillard government moved to change the legislation to enable the transfer it was again stymied. On the left, the Green party blocked it because of their principled stand that boatpeople be processed in Australia and refugees offered permanent residency. However, the LNC opposition did not support the arrangement and Shadow Minister for Immigration Scott Morrison opposed it on human rights grounds citing reports of Malaysian police who had beaten UNHCR card-holding refugees, including children, mothers, and the elderly (Morrison 2011). Ironically, it called for harsher treatment of asylum seekers by returning to the Pacific Solution policies. Secondly, the LNC opposition also pledged to dismantle the Bali Process’s RCF because its “focus on processing and resettlement over deterrence and border security creates a regional asylum magnet that only further encourages secondary movement and undermines the integrity of existing regional resettlement programmes” (LNC 2013). Instead, the LNC advocated for a Regional Deterrence Framework that removed all of the protection language from the Bali Process. Asylum and border policy continued to be a controversial affair, but there were signs that the new normative understandings might create some stability domestically. Amidst the failure of the East Timor processing centre and the Malaysian arrangement, the ALP government established an expert advisory panel to consider options for “the best way forward for our nation in dealing with asylum seeker issues”. The Committee conducted meetings and attracted over 550 written submissions and released its report in August 2012 recommending an immediate increase in the number of resettlement places from 13,750 to 20,000 and to 27,000 within five years. It recommended regional cooperation through the Bali Process, implementation of the Malaysian Arrangement, and for regional processing to begin in Nauru and Papua New Guinea with close monitoring of asylum seekers. The Houston Report represented an expert endorsement of the Gillard government’s attempt to find the middle ground on boat arrivals. However, with boats continuing to arrive and declining confidence with the Gillard government, Kevin Rudd came back to take over the leadership position in the lead-up to the election. He quickly negotiated an arrangement with PNG and Nauru for processing but also forbid refugees

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from gaining permanent residency in Australia. Unlike with Malaysia, the UNHCR did not see these arrangements as appropriate and stated that they raised “serious, and so far unanswered, protection question” (Redden 2013). Conclusion In this review of the Australian domestic debate over boat arrivals, I have argued that the norm governing the right to seek asylum played an important role in creating political cleavages between the Left and Right in Australia. Rather than simply a strategic game to capture popular opinion, the Australian government uncovered genuine ambiguities in the norm that fostered diverging interpretations of the right to seek asylum. The Howard government responded to this ambiguity by promoting a tough response to controlling boat arrivals. Labor did not have an effective response to the Howard government and generally adhered to the traditional approach. From 2001 to 2007, the UNHCR responded to the concerns of the Howard government and other Western nations and attempted to recalibrate the norm through a number of intiatives. When Australia began receiving boatpeople in 2009 after nearly eight years of record low numbers, the ALP government drew support from the new norm. Though domestic tension between the LNC and ALP continued to exist from 2008 to 2013, we can identify some middle ground but this has not been implemented to this day. The Australian case is likely an extreme example of what has been occurring in other Western countries since the 1990s and certainly in Europe during the last four years. Among other Western liberal democracies, Australia is sometimes regarded as a deterrence leader and other Western governments have learned from them. Why does Australia possess such an acute sensitivity to this issue? How might Australia compare to Germany or Canada? Germany and Canada are Western liberal democracies and actually receive far more asylum seekers on an annual basis. Finally, the Australian government’s response to boat arrivals from 1999 to 2013 represents a reassertion of national sovereignty. Historically, national sovereignty has been gradually linked to the idea of a central government’s control over entry and membership in the political community. This linkage was first established during the late 19th and early 20th century but was slightly compromised by the negotiation of human rights conventions, particularly the 1951 Refugees Convention. During the 1960s through the 1970s, the refugee regime made significant inroads into the sovereignty right to control borders. When the issue of boatpeople and spontaneous arrivals of asylum seekers challenged the traditional norm, Western governments reasserted of national sovereignty and border control. The re-emergence of national sovereignty, however, has not been a return to the historic norm of sovereignty. It has been modified by liberal human rights and governments’ commitment to provide protection to refugees. This insight feeds into other discussions about the temporally and culturally contingent nature of national sovereignty.

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