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Edition 41


Groundhog Day

FOR TEN YEARS I lived and worked in Canada. It's a funny feeling, coming home. After years of living overseas the ex-expat (to coin a phrase) notices not the things that have changed, like the cafés, but the things that have stayed the same, like the politics. Ten years on and the news is weirdly familiar: a second airport for Sydney, high-speed rail for Canberra and asylum seekers invading us from the sea. Planes, trains and boats; it's Groundhog Day in Australia.

I began to write this essay because I was so frustrated by the lack of clear information around asylum seekers. I wanted to clarify as well as I could a debate I couldn't make sense of. But seeing the problem afresh, the hysteria that surrounds it suddenly reminded me of a political debate from ten or twenty years ago. The asylum problem now is like the drug problem then. Debate is framed in a moral language that excites a crisis completely unrelated to the dimensions of the problem. The asylum seeker, like the drug addict, is depicted as a piteous victim who must be locked up for their own good; the 'trafficker' or 'smuggler' is considered a villain against whom no action is too harsh. Policy settings in both cases depend on a zero-tolerance approach built around hugely expensive law enforcement strategies. The underlying assumption is that if only our laws are severe enough, people's behaviour will change. But the prohibition of drugs and the prohibition of boats make the same mistake. Supply-side responses to demand-side problems often fail to make real inroads into the underlying problems. Indeed, the case of drug policies shows that sometimes harsh law enforcement does not merely fail to stop the problem. It can actually make matters worse; much worse. Raising the stakes and driving people underground creates more profit, causes more deaths, and leads to more suffering. But rational arguments have little purchase in a climate fashioned by false assumptions as to what law can achieve, and a wilful blindness as to its unintended consequences.

In what follows, I explore the issues around Australia's treatment of asylum seekers by developing this comparison with drug policy. My aim is not only to demonstrate that we have been this way before, with disastrous results. What is especially interesting about the drug debate is that, remarkably, something has changed in the past ten years. The shift from zero-tolerance to harm-reduction strategies provides us with a model for how to rethink a policy agenda, which is just making things worse. What does the story of Australian drug policy teach us? What would a harm-reduction approach to asylum seekers look like? And how can we get there from here?


THE SO-CALLED 'war on drugs' featured a heightened moral rhetoric that long smothered it. Ever since anti-Chinese opium laws were enacted over one hundred years ago, drug users have been portrayed as pitiable, weak and doomed. 'Why not just shoot them?' asked one member of the New South Wales Parliament in 1927. The then premier regretted that while this 'might be desirable…it is not done in civilised countries.'[i] One need only recall Marijuana Weed of Madness from the 1930s, or the hysteria surrounding marijuana in Australia in the 1960s and 1970s. As late as 2000, Salvation Army Major Brian Watters, former Prime Minister John Howard's principal adviser on drug policy, declared that 'there are worse things than death when it comes to addiction.' John Howard's decade as prime minister, including Tony Abbott's four-year tenure as minister for health, marked the ascendancy of a 'tough on drugs' policy that sought prohibition through the 'ruthless pursuit of drug importers, traffickers and dealers,' while framing the battle as a 'moral crusade' against illicit drugs.[ii]

In the heightened rhetoric over drug use, morality and legality became hopelessly muddled. For many years, the illegality of certain drugs was justified because of their immorality, while their immorality was explained in terms of their illegality. Drug users were criminals because they were bad, and bad because they were criminals. A similar confusion clouds the hyperbole around asylum seekers. The Liberal Party under Tony Abbott brands asylum seekers as criminals. 'People should not come illegally to this country. That's the bottom line, mate.' [iii] In fact, there is nothing illegal about claiming one's rights under international law or making an application for refugee status under Australian law. Yet the Leader of the Opposition repeatedly fudges the line.

The Australian Labor Party sometimes speaks less about a moral crusade than a moral dilemma: the harsh treatment of asylum seekers is regrettable, but unavoidable. Nonetheless, both sides buy into the same rhetoric. They assume that an effective policy must stop 'Irregular Maritime Arrivals' (IMAs) once and for all, and they employ the same moral language of 'fairness', 'queue jumping', and 'no advantage'. [iv] 'People like my own parents,' said Julia Gillard in a widely reported speech shortly after she became prime minister, 'who have worked hard all their lives can't abide the idea that others might get an inside track to special privileges. And that finally, if this were to happen, it would offend the Australian sense of fair play.'[v] As with drug traffickers, people smugglers are singled out for particular moral opprobrium. In 2009, Prime Minister Kevin Rudd called them 'vermin' and 'the vilest form of human life.'[vi] While the 'user' of boats is imagined as the hapless victim of these evil smugglers, they are nonetheless portrayed as morally weak. In the words of Nancy Reagan, they should learn to 'just say no'.

Yet the language of morality and fairness is disingenuous. Most IMAs currently come from a few countries including Afghanistan, Sri Lanka, Pakistan, Iraq and Iran. These outflows are not a function of their lack of moral fibre or the trickery of smugglers, but directly related to insecurity, violence, and persecution in their countries of origin.[vii] The overwhelming majority of those who arrive in Australia, or are processed in 'off-shore facilities' such as Nauru, are found to be genuine refugees – more than double the rate of those who apply for refugee status in other ways. In 2011–12, the final grant rate for Afghani IMAs was 95.8 per cent, 93.1 per cent for Pakistanis, 86.9 per cent for Sri Lankans, and over 90 per cent of all applicants.[viii]

Indeed in the past few years our processes have attempted to artificially reduce the number of asylum seekers whose claims we accept. In 2008–09, only 189 IMAs were assessed; none was refused. The following year, with boats on the rise, over a quarter of 2,826 refugee-status determinations were refused by the Department of Immigration and Citizenship. The following year, 5,206 were processed, almost doubling again, but this time almost two-thirds of the claims were refused.[ix] It would appear then that the department's scepticism is directly proportional to the number of claims made. But Australia's legal review process largely undid this tendency. The higher the department's refusal rate, the higher the rate at which its decisions were overturned. In 2009–10 only fifty IMAs were ultimately refused protection visas: just on 2 per cent. In 2010–11, 313 were refused, still only 10 per cent. Overall, fully three-quarters of those whose applications for asylum were rejected were later found to be genuine.[x] In the December 2012 quarter, the department refused 581 applications – over half of status determinations; but two-thirds of those refusals were overturned. In the March 2013 quarter, refusals were down to 445, or just over one third of primary decisions; but the overturn rate continued over 70 per cent.[xi] The Shadow Minister for Immigration, Scott Morrison, commented that the figures 'made a mockery of the initial assessment of asylum claims'. [xii]

True enough, but the scandal lies not in the dishonesty of IMAs or the gullibility of the Refugee Review Tribunal. The scandal lies in the department's expedient reluctance to recognise genuine claims. If our magistrates were overturned at anything even remotely approaching that rate, the legal system would be in uproar. It would not be the appeals courts being hauled over the coals.

So if an IMA claims to be a refugee, that's because they probably are. To sidestep this uncomfortable truth, a new moral rhetoric has emerged around queues and fairness. We are asked to distinguish between 'bad' asylum seekers who 'jump the queue', and 'good' refugees who patiently wait their turn. But this argument reveals a basic misconception. The Refugee Convention does not distinguish between degrees of goodness in refugees. Neither international law nor Australian policy ranks applicants on the basis of their method of arrival or wealth (or lack of it). One either has a 'well-founded fear of being persecuted' or one does not.[xiii] The refugee who might have enough money or family connections to buy passage on a boat is not somehow less of a refugee than if they stayed put. Many Jews in Nazi Germany used money or family connections to escape. Did that make them somehow unworthy of our sympathy?

And the image of an orderly queue is facile nonsense. Australian embassies overseas refuse to accept direct applications from refugees. In some countries we don't even have diplomatic missions. You could try applying to our consulate in Afghanistan, but even its location is a secret. Nor will Australian airlines let anyone board a plane without their already having obtained a valid visa.

Our processes force refugees to become 'irregular entrants'. Meanwhile, the United Nations Refugee Agency (UNHCR) – the 'proper channel', so to speak – is swamped. There are currently about fifteen million refugees and a million asylum seekers around the world, a quarter in the Asia-Pacific region. UNHCR reports that 800,000 people became refugees last year alone, the highest figure this century.[xiv] Only a small proportion is even registered with the agency. In 2009, 119,100 applications were registered out of 923,400 new claims; Pakistan, for example, hosts almost two million refugees, and virtually none of them have been officially processed. On top of this, barely 1 per cent of registered refugees are resettled in new host countries in any one year.[xv] Waiting times are extreme throughout our region, and the chance of being eventually resettled is remote. The imaginary queue now stretches for one thousand years.


FOR MANY YEARS the moral rhetoric deployed against drug users generated intense social anxiety. Drugs posed an unprecedented danger to our community, were always out of control, always a new and 'insidious threat to Australian society which has been unsurpassed in the country's history.'[xvi] Illicit drug use grew in Australia during the 1960s, notably cannabis use by young people and, on a much smaller scale, heroin use during and after the Vietnam War; but the hysteria which met this change was out of all proportion to the specific social and health problems it posed. It was, in a term introduced in 1972, a 'moral panic.' [xvii]

Between 1971 and 1983 Australia endured no less than eight royal or parliamentary commissions into drugs and drug trafficking. Many of these reports implored politicians and the public to maintain a sense of proportion. The best of them, such as the South Australian Royal Commission into the Non-Medical Use of Drugs (1979)[xviii] insisted that the major drug problems in Australian society lay not with illicit drugs but on the contrary with the use and abuse of legal drugs, including alcohol, tobacco and pharmaceuticals. In 1977, the Senate Standing Committee on Social Welfare produced a celebrated report entitled Drug problems in Australia an intoxicated society? Its chair, Liberal senator (and future Minister for Health) Peter Baume, argued that Australia did not have a 'drug problem' but a 'drug problem problem';[xix] not a social or a health crisis but a crisis in how we framed and talked about an important but by no means unmanageable issue. We were in the grip of a kind of moral panic.

Australia does not have an asylum problem. It has an 'asylum problem problem,' likewise a crisis of language and perception. For as long as the drug issue was framed as a crisis undermining the very fabric of our society, politicians saw little mileage in trying to defuse the issue; to be 'against' law and order was a losing proposition. By the same token, for as long as the asylum issue is framed as a crisis undermining the very cohesion of our society, politicians see little mileage in trying to defuse the issue; to be 'against' border protection is equally a losing proposition.

The recent surge of IMAs is not a crisis. In absolute terms and in relation to the global population of concern, the number of people we are talking about is still small. It is true that we have seen a significant increase in IMAs. In 2008–9, twenty-three boats arrived, carrying 1,033 people. In 2009–10, 118 boats carried 5,609 people. In 2011–12, 110 boats carried 7,983 people. [xx] According to the Gillard Government's Expert Panel on Asylum Seekers, 'the number of IMAs who have arrived in Australia in the first seven months of 2012 (7,120) has exceeded the number who arrived in total in 2011 (4,733) and 2010 (6,850).'[xxi] More recent figures reflect a similar figure for this year; just over three thousand IMAs arrived in the first three months of 2013, and over seven thousand refugee determinations were commenced in the March quarter.[xxii]

But refugees remain overwhelmingly a Third World problem. Australia's current asylum population of 23,434 is equivalent to one for every thousand citizens (compare US 0.9, UK 3.8, Germany 7.2, Iran 14.5 or Syria 49.3). This puts Australia seventy-first in the world. There are 1.7 million refugees in Pakistan, almost a million in Iran and in Syria, and several hundred thousand in South Africa; the city of Dadaab in Kenya alone houses 559,000 registered refugees. [xxiii] Looked at more broadly, in 2011, Australia received around fifteen thousand asylum applications, or less than 1 per cent (ranked thirty-second per capita) of the 1.6 million applications globally.[xxiv] Of industrialised countries, Australia was responsible for 3 per cent of applications, which ranked eighteenth per capita.[xxv] While Australia is on track to receive considerably more IMAs in 2012–13, this will not significantly change its standing in the world tables.

Until August last year, the total quota of around thirteen thousand places allocated for Australia's Humanitarian Program remained unchanged for years, even as the refugee problem expanded in our region and despite the fact that the language of crisis was deployed on all sides.[xxvi] As recommended by the Expert Panel on Asylum Seekers, which reported to the Gillard Government in August last year, the quota has now risen to twenty thousand. [xxvii] Yet this figure remains a smaller proportion of our overall migrant intake than throughout most of our recent history: a mere 6 per cent in 2011–12, rising to an anticipated 10.5 per cent in 2012–13.[xxviii] In 1948–49, in the aftermath of World War II and in the context of the growing Soviet domination of Eastern Europe, Australia accepted 33,816 refugees (almost a third of Australia's total immigrant intake that year) – the next year 89,199 refugees made up a half of the total number of immigrants, and the following year the 36,912 refugees represented a quarter of all immigrants. Again in the years 1979–85, Australia accepted between fifteen and twenty thousand Vietnamese boat people annually, hovering around 20 per cent of the immigrant intake in each of those years.[xxix] The beneficial social and economic impacts of these decisions are now self-evident. Many of these new groups were the object of considerable short-term anxiety about 'refos' and 'boat people', a pattern of hostility that goes back to Irish Catholic and Chinese immigrants in the nineteenth century. But after a few years one wonders what all the fuss was about. Has there been a single period in which Australia would have been better off if we had just said no?

The current wave of IMAs reaching Australian waters has had hardly any effect on the overall size of the Humanitarian Program. Until last year the so-called 'quiet invasion' had been entirely offset by reductions to other parts of the program. That was indeed the effect of consciously linking the off-shore and on-shore components, introduced under Philip Ruddock. Every time on-shore migration (including maritime arrivals) increased, other parts of the program were reduced. Between 2006 and 2011, the Special Humanitarian Program, which allows Australian residents to bring in family members facing human rights abuse abroad, was cut by over two thousand places, while the number of IMA visas increased by the same amount. This was not the surreptitious expansion of Australia's refugee population, but largely its redistribution.[xxx]

In 2011–12, the 'on-shore' or IMA component of the Humanitarian envelope exceeded the 'off-shore' component (including family provisions, and refugees resettled from other parts of the world) for the first time. [xxxi] As recommended by the Expert Panel, this has led to an expansion in the Humanitarian Program to twenty thousand places, including a marked growth in the number of refugees accepted for resettlement via UNHCR, but nothing approaching historic highs.[xxxii] IMAs will probably ease off once conditions improve in source countries like Sri Lanka and Afghanistan or transit countries like Malaysia. It is towards those goals, rather than 'border protection', that our energies should be directed.

The Ruddock linkage has few parallels in other countries. As a direct result, the ever-shrinking Special Humanitarian Program now faces a backlog of over twenty thousand applicants who face a wait of many years to bring endangered family members to join them in Australia. The emotional hardship this is causing is enormous[xxxiii] and apparently intentional, since the policy seems designed to set up a zero-sum game pitting IMAs against established migrant groups looking to access the 'split family' provisions.

This linkage has had no discernible impact on the number of IMAs. As with many ill-thought-out deterrents, however, it did fall foul of the rule of unintended consequences. In 1999, when linkage was first introduced, children made up only 13 per cent of asylum seekers. By 2001, faced with the risk of never being able to bring their families out, the proportion of children on boats had risen to a third.[xxxiv] Even DIAC now acknowledges that more families began to arrive by boat due to the lack of family reunion options.[xxxv] In October 2001, the SIEV X disaster claimed the lives of sixty-five men, 142 women and 146 children.[xxxvi]

Yet since August 2012 the Australian Government now denies IMAs any right to access the split family program.[xxxvii] Not only will this surely increase the number of families on boats again; the policy will hit unaccompanied minors hardest of all. Unlikely to satisfy the sponsorship requirements of the regular family reunion program, these children will lose all contact with their parents – indefinitely, and no doubt at appalling psychological and emotional cost.

Astonishingly, the 2012 Expert Panel itself recommended this change, because it was thought it would prevent parents from sending their children out to Australia as an advance party. Even to the extent that this is true, which is unclear, the government appears to be going to outrageous lengths to punish children for the sins of their parents.


THE MOST IMPORTANT point of comparison between the drug problem and the asylum problem in Australia lies in the kind of legal and political response which moral panic produced. The 'drug problem problem' led to increasingly draconian legislation, increased law enforcement and the criminalisation of growing numbers of drug users. These reforms did nothing to stop rising levels of drug use. Cannabis and heroin use grew steadily through the 1970s and 1980s. The courts faced an endless procession of young people from all walks of life facing the lasting stigma of a criminal conviction.

In relation to drug policy, laws that simply prohibit the use of drugs make no inroads into underlying levels of use or addiction. Illicit drugs are as widely used and as easily accessible as ever.[xxxviii] Even government inquiries such as those in Canada and South Australia conceded as much.[xxxix] In recent years, their arguments have been bolstered by a parade of former premiers and government ministers, retired police commissioners, and weary public health officials, all bemoaning the pointless war to which they have been conscripted.

We tend to assume that if only deterrents are severe enough, people will change their behaviour. So if a policy centred on law enforcement fails, the solution lies in more law enforcement and heavier deterrents. But with certain kinds of problems, including, for example, prostitution and drug use, this is a kind of legal magic realism – it attributes a kind of abracadabra power to legal words. Here is Alfred Conroy, first member for Werriwa and a founding member of the Commonwealth Liberal Party, speaking during the first Australian parliamentary debate on drug laws:

We are assuming that all we have to do is to pass an Act of Parliament when, hey presto, all sin and misery will disappear from the world… [We are] ready to pass an Act for the prohibition of the opium traffic in the full belief that the evil will at once disappear.[xl]

That was 1905.

The very thing that worries people about drugs – the intensity of the desire that draws people to them – likewise makes crude deterrence relatively ineffective. But these laws are not just ineffective. They have terrible consequences. Prohibition is the opposite of regulation. Regulation works to the extent that it allows some level of social activity to continue; it becomes counterproductive when it drives users underground. Thus, in relation to alcohol and tobacco, we see a range of licensing controls, plain packaging laws, and so on, which limit the harms associated with these drugs precisely by adopting a regulatory approach. On the other hand, the terrible harms of un-regulation we know from the most notorious experiment of them all, 'Prohibition' in the United States. Gangsters like Al Capone had a field day; violence and corruption flourished as never before. Alcohol prohibition was a short-lived failure, introduced in 1918 and unceremoniously rubbed out fifteen years later. Drug prohibition – begun in the United States in 1914 and since exported around the world – has a longer but no less inglorious history. Policies directed at criminalising users and demonising traffickers do not stop drug use and have only a minor and temporary effect on drug importation. But the riskier it is, the higher the profits made by drug traffickers, and the more dangerous the conditions under which drugs are used.

Tragically, drug prohibition is itself responsible for the very problems that it claims to address.[xli] The consumption of alcohol and tobacco are clearly correlated with high levels of sickness, disease and death, to which the government responds through a complex web of legal regulations controlling sale, possession and use.

On the other hand, almost no illicit drug-related deaths in Australia are attributable to their bio-chemical operation. People die not because they inject heroin but because of the conditions under which they take it – conditions created by the legal framework itself. Illegal use ensures that dosages are unpredictable. A heroin user might consume a dangerously pure dose one time and a cocktail of toxins the next. The secretive conditions of illegality ensure that there is no medical or social support for the user. When users can't legally obtain clean needles, they share dirty ones, spreading diseases such as Hepatitis C and HIV–AIDS. In our inner cities, the criminal nature of the enterprise does not discourage traffickers – far from it – but sometimes leads to dangerous turf wars; thirty-six people were killed during Melbourne's recent methamphetamine gang wars. In many Latin American countries, escalating drug wars have corrupted the social and political structure with devastating results[xlii] – over 28,000 deaths in Mexico alone. Drugs are not the cause of these deaths; their (il)legal status is.


THE RELATIONSHIP BETWEEN harm, deterrence and unintended consequences is more complicated in relation to asylum policy but the lesson is the same. The logic of prohibition is not only failing, but counter-productive.

One of the main harms in question is the issue of deaths at sea. At least nine hundred asylum seekers have died since 2001. The SIEV X disaster took 353 lives; the loss of the Barokahoff the coast of East Java in December 2011 probably two hundred more.[xliii] Yet these deaths are clear instances of harms caused by the legal framework. The Refugee Convention places obligations on State parties not to return refugees to places where they may be in danger. This is called non-refoulement.[xliv] Australia is a party to the Convention; most of the other countries in our region, including Malaysia and Indonesia, are not. This legal distinction makes Australia a more attractive destination for asylum seekers, while making it harder for our government to return them to countries which lack similar legal protections, as the recent High Court case which overturned the government's Malaysia plan demonstrates.[xlv] In large part, asylum seekers are drawn here because of an imaginary legal line in the middle of the ocean.

Furthermore, asylum seekers use boats because Australia aggressively prevents their arrival by other means. We do not accept refugee applications in our consulates or embassies. We make it as difficult as possible for refugees to fly safely to Australia. We call them criminals if they don't have a visa; we call them liars if they do. As James Hathaway wrote, 'if you could lawfully come to Australia and make a refugee claim without the need of sneaking in with a boat, people would do it. But we make it illegal and create the market that smugglers thrive on.'[xlvi]

Two extreme responses come to mind. The first would be to withdraw from the Refugee Convention. Some make this suggestion not because the Convention places an unfair burden on countries like Australia but because the sheer volume of refugees is causing the system to break down.[xlvii] Yet although the Convention is proving an increasingly unwieldy instrument, it does accomplish something important. Its signatories are typically developed countries; the burdens of irregular migration fall overwhelmingly on developing countries. Without it, those burdens would be even more unequal.

We did not choose for IMAs to come here, true. But neither did the Malaysians or the Pakistanis. Neither do refugees simply 'choose' to leave their own country. The Refugee Convention brings home our small part in a global web of inter-dependence and responsibility. It is hard to accept this lack of freedom. But it is not so strange, really. In our own lives, too, responsibility is not something we choose but something that chooses us. Even when we accept our responsibility for another person – as parents or children, friends or neighbours – the forms that it takes and the demands that it makes are always unpredictable. In an increasingly globalised world, we can run but we can't hide.[xlviii] It is hard to imagine this country, our country, and this world, our world, surviving the twenty-first century without a greater consideration of the deeper and interconnected questions of global inequity and global mobility. The Phoenicians, it is said, used to beat the waves to calm the storm. Withdrawing from the Refugee Convention would be a similar exercise in futility.

The second response would be to get our neighbours to sign the Convention too. The less distinction between the treatment of refugees in different countries the less reason asylum seekers have to move. The High Court of Australia struck down the federal government's 'Malaysia solution' for complex reasons but essentially because Malaysia was not a signatory to the Refugee Convention.[xlix] If laws were in place there that recognised and protected refugees (for example, by guaranteeing non-refoulement), Australia could legally accept larger numbers of refugees from transit countries in exchange for returning IMAs there.

Precisely because of the heavy burdens that it imposes, there is no likelihood that transit countries will sign up any time soon. But in the long run and with our support such developments are not inconceivable. After all, the pressure to find real solutions is greater in Malaysia and Indonesia than in Australia. Over the next few years it may come to seem only practical for Malaysia and Indonesia to accept greater domestic legal obligations in exchange for a substantially expanded contribution from Australia. Our countries stand a long way apart, but they are being inexorably driven into each other's arms. What largely stands in the way at the moment is not the asylum problem, but the 'asylum problem problem'.


SINCE THE CONVENTION was drafted sixty years ago the number of refugees has grown fifteen-fold. Climate change and consequent political instability will surely make matters worse over the next sixty years. In Indonesia, for example, where there are about six thousand asylum seekers and recognised refugees, resettlement lags well behind arrivals. UNHCR appears not to start looking for resettlement possibilities for three to five years.[l] Meanwhile refugees find themselves in a state of limbo; children get no schooling, adults cannot work.[li] The situation in Malaysia is far worse. In a population similar in size to Australia's there are now 86,680 refugees and 10,937 asylum seekers, together with a further hundred and twenty thousand irregular migrants, vulnerable to exploitation, living under the constant threat of deportation and subject to draconian penalties for breaching immigration laws.[lii]

It is hardly surprising, then, that many should look for a safer haven. In an effort to stop them coming here, Australian policy aims to make us as unattractive a destination as possible. Economist Timothy Hatton carefully analysed the likely effect of different kinds of policies. He concluded that the treatment of asylum seekers once they arrive 'ha[s] little deterrent effect.'[liii] 'Push factors' which drive asylum seekers out of their own countries and away from transit countries are out of our control; 'pull factors' which draw them to Australia (as opposed to elsewhere), including our reputation as a prosperous and tolerant country, are likewise largely out of our control. Furthermore, it is doubtful how much sound information asylum seekers have about destination countries. A study in Britain showed that most asylum seekers relied mainly on vague impressions.[liv] Specific policies have little impact. Governments and international organisations are simply not trusted by the people they are trying to reach; dissemination strategies are inadequate; and there are serious practical barriers in terms of translation, literacy and access.[lv]

The greatest example of the failure of in-country deterrence is mandatory detention itself. In February 2013, 4,526 people were being held in immigration detention on the Australian mainland and 1,224 in detention on Christmas Island.[lvi] This includes over a thousand children, but not those currently held in 'regional processing centres' on Manus Island or Nauru. No other developed country thinks a policy on such a scale necessary or desirable. It was first introduced under Bob Hawke in 1989 and legislated in 1992,,[lvii] supposedly 'for a limited period',[lviii] in order to gather basic information about an asylum claim, health, identity or security issues.

It has long since exceeded these limits. Unauthorised arrivals are kept under conditions of isolation and hardship for years at a time and at a cost to the Australian taxpayer of over $700 million per year. As Robert Manne wrote with great power almost a decade ago,[lix] the policy inflicts psychological and physical harm, sickness, suffering and death on those who have committed no crime other than to claim their rights under international law.[lx] Yet mandatory detention has had no identifiable impact on rates of IMAs over the years.[lxi]

If there is some danger of rejected applicants for asylum going to ground if they are not kept in detention, the policy is ridiculously disproportionate. Given the very high levels of genuine refugees amongst IMAs, we lock up the vast majority of legitimate applicants for the sake of a risk, posed by a few, which can be dealt with more cheaply and humanely in other ways. Mandatory detention is often treated as Australia's sacred cow. In reality it is nothing but a white elephant.

The notion that we can 'send a message' to potential asylum seekers – to scare them off as it were – by treating those who make it here with exemplary severity, continues to befuddle the debate. On 21 November 2012, the Minister for Immigration announced a new category of bridging visas designed to reduce the pressure on Australia's overcrowded detention facilities. Chris Bowen said: 'Consistent with "no advantage", people from this cohort going onto bridging visas will have no work rights and will receive only basic accommodation assistance, and limited financial support.'[lxii] Not only will this policy do nothing to discourage asylum seekers coming to Australia; like many other examples of the logic of prohibition, it will have appallingly counter-productive effects.[lxiii] Those on bridging visas will be condemned to poverty and isolation.

But it is worse than that. The legal magical realists assume that if work is prohibited, hey presto, no work will be done. But the case study of drug policy reminds us that prohibition is not regulation; it is un-regulation. Visa-holders will work; on 80 per cent of the government's lowest benefit how could they survive otherwise? So work they will, in poor conditions, paid under the table, paying no tax, and undercutting Australian workers. They will find work on the margins of society, some no doubt as prostitutes, some in the drug trade. All of them will be vulnerable to exploitation and blackmail.[lxiv] And after several years, certain politicians will use the inevitable effects of the legal framework we set up as evidence that refugees make bad Australians. The cycle has already begun. Opposition immigration spokesman Scott Morrison recently used the occasion of an assault by a young man on a bridging visa to demand that asylum seekers should not be released into the community without special 'behaviour protocols' and the notification of police and residents in the area.[lxv] Illicit drug laws turned thousands of young people into criminals, and their criminality was then cited to justify ever harsher laws that stigmatised more and more of them. These laws will follow the same downward spiral.

The logic of prohibition assumes that if harsh policies are ineffective, the answer is simple; make them harsher. Thus the Leader of the Opposition responded to the government's bridging visa policy not by criticising its lack of generosity, but on the contrary, condemning it as too bountiful; Tony Abbott proposed cutting Australia's Humanitarian Program in half.[lxvi] Again, this is breathtakingly counter-productive. On the one hand, halving the quota will certainly not reduce the number of claimants or 'shorten the queue'. On the other hand, if there is any way forward it lies in attempting to help resolve the global resettlement crisis. At the moment Australia does little to relieve the very pressures that drive asylum seekers to take the risk of trying to reach Australia. Australia resettled only forty-eight refugees from Indonesia in 2005, thirteen in 2006, eighty-seven in 2007, and forty-five in 2008. Altogether, Australia resettled only 560 refugees from Indonesia from 2001 to 2010. Out of a hundred thousand refugees in Malaysia, Australia accepted a grand total of 340 for settlement in 2009–10 and 490 in 2010–11.[lxvii] While the recent increase in Australia's Humanitarian Program doubled the UNHCR-resettlement component to twelve thousand places, the program indicates only a moderate increase in resettlement from Indonesia and none at all from Malaysia. [lxviii] Reducing our Humanitarian Program would make life harder not only for Indonesia and Malaysia, but for ourselves.

Ultimately, 'a solution to Australia's asylum seeker problem that does not include Malaysia would soon prove to be no solution at all.'[lxix] The Expert Panel's central recommendations focused precisely on building adequate regional mechanisms.[lxx] One part of the solution clearly involves the 'local integration' of many refugees into Malaysian society. It is hard to imagine how Australia could lose more credibility than by going out of its way to reject for itself the very 'local integration' that it insists must be accepted by other, poorer countries. Such policy proposals undermine all our efforts to establish regional co-operation. They 'send a message' all right – Australia would like to cut off its nose to spite its face.


AUSTRALIA'S DETERRENCE POLICIES are centred on the establishment of off-shore 'regional processing centres' supported by a 'no advantage' test.[lxxi] By processing them in places like Nauru or Papua New Guinea, asylum seekers are no longer our concern, or rather they are no longer in our face. Yet given continuing demand pressures, this policy has already overloaded the facilities we have set up. Amnesty International describes conditions on Nauru as 'a human rights catastrophe…a toxic mix of uncertainty, unlawful detention and inhumane conditions.'[lxxii] No doubt immediate problems can be addressed, at least to some extent.

What cannot be fixed is the logic.[lxxiii] The same pressures that drive refugees from Afghanistan or Sri Lanka to Malaysia and Indonesia will continue to drive them to Australia. If we do not accept them straightaway they will be housed off-shore at hideous expense and with increasing harm to Australia's reputation. The 'no advantage' test does nothing to solve this inexorable logic; it merely postpones it. The Expert Panel reasoned that IMAs should incur no advantage over an asylum seeker who awaits resettlement in Indonesia, thus discouraging anyone from taking to the sea. All must wait their turn.

But the whole notion of an orderly queue is nonsense. It is impossible even to hazard a guess as to how many years those on Nauru should wait since there is no actual queue with which to compare them.

And in the end, most of them will be settled in Australia anyway. Of the asylum seekers sent to Nauru under the Howard Government's Pacific Solution, 586 were granted Australian resettlement, 360 resettled in New Zealand and a mere thirty-three were resettled elsewhere.[lxxiv] New Zealand has already indicated that it will take only half as many this time around. So the burden of resettlement will increasingly fall on Australia. Two things must follow. Either material and psychological pressures in these places will become so intolerable that resettlement will take place sooner, via bridging visas or otherwise. Ironically that is one reason why the boats keep coming – the more that come, the more pressure there will be to find an alternative. Again our policies have exactly the opposite results than intended. Or there will be a delay of several years, in which case the facilities will get more and more overcrowded and dangerous. In 2005 the Australian Government resettled all remaining detainees still held on Manus Island and Nauru, apparently in response to an independent report which expressed alarm at their deteriorating mental health.[lxxv]

Without a comprehensive settlement plan in which Australia will have to take the lion's share, we are merely creating a dangerous backlog of 'warehoused' refugees, ill-health and bad blood. This is 'no advantage' with a vengeance. In a bizarre piece of logic, Australia is attempting to reproduce on purpose the conditions that Malaysia and Indonesia have achieved quite by accident. Apparently we are prepared to pay billions for the privilege.

This is not to say that deterrence never works. Tim Hatton concluded that policies have a deterrent effect when directed towards 'access to the country's territory in order to establish a claim for asylum' and 'the toughness of the refugee status determination procedure.' Under John Howard the Pacific Solution accomplished the latter in a roundabout way. This too is buried in the statistics. In total, 1,637 asylum seekers were processed, but only 1,153 were resettled. A third were denied status as refugees and sent home.[lxxvi] As the Human Rights and Equal Opportunity Commission (now the Australian Human Rights Commission) noted in 2006, asylum seekers processed off-shore at that time had no access to an independent merits review.[lxxvii] Indeed, the return rate is similar to the Department of Immigration's own primary refusal rate in recent years. But as we know, in Australia close to three-quarters of those initial refusals are later overturned. If regional processing took any pressure off Australia during the Howard years it is clear how. The initial assessment made convenient but hasty assumptions about refugee claims. It was supported by a second-rate process that almost certainly sent back genuine refugees in order to keep the numbers down. Such a denial of rights would be difficult to justify publicly, even in Australia. Indeed, the failure to provide a proper determination procedure would itself place us in breach of our international obligations. Consequently Nauru's new refugee legislation allows for both independent merits review and judicial review,[lxxviii] probably staffed by officials and judges from a third country, such as New Zealand – with Australia, you guessed it, footing the bill.

The Pacific Solution also made access to Australian territory more difficult. It did so by a combination of interception on the high seas, the legal excision of places like Ashmore Reef and Christmas Island from the Australian mainland, and off-shore processing. This indeed seems to have made a difference to the number of boats that came to Australia after 2001. Yet several caveats need to be entered. It is unclear to what extent changing 'push factors' (such as the fall of the Taliban) were ultimately responsible for a decline in IMAs. As the Secretary of DIAC conceded before the Senate Estimates Committee,[lxxix] the dramatic turnaround in Afghani refugees post-9/11 was due in a significant measure to changing conditions in that country. John Menadue, former Secretary of the Department of Prime Minister and Cabinet, insists that 'if we compare the flow of asylum seekers to OECD countries and Australia in the years 2000 to 2009, it is quite clear that, with a few leads and lags, the flows of asylum seekers to Australia followed very closely those to other OECD countries.'[lxxx] Indeed, total asylum seekers rose by a quarter in the last two years of the Howard Government, again largely in line with global trends.[lxxxi] Tim Hatton concludes that this 'policy explains only about a third of the steep decline between 2001 and 2006 – a distinctly smaller effect than some politicians have claimed.'[lxxxii] The Expert Panel supported re-establishing regional processing centres as 'a necessary circuit breaker'.[lxxxiii] But it is not clear what circuits they are breaking. Since the resurrection of the Pacific Solution in 2011–12 corresponded with a steep rise in IMAs, it remains unclear just how effective deterrence actually is. Just over three thousand passengers arrived in Australia seeking asylum in the first quarter of 2013, compared with 1,302 in the corresponding period last year,[lxxxiv] while 7,464 determinations were commenced in the March quarter compared to 7,379 in the whole year 2011–12.[lxxxv] Regional processing in the last year or two has certainly not stemmed the flow.


AUSTRALIA'S RESPONSE TO IMAs might be described as 'zero tolerance'. In relation to drug policy, zero tolerance assumes that no level of illicit use is acceptable; the only proper goal for law enforcement is to wipe it out. John Howard argued that 'illicit drugs are highly dangerous, that there is no safe level of use, [and] that the only sensible objective is abstinence.'[lxxxvi] In other words, 'just say no.' Throughout the 1980s, the obvious failure of zero tolerance merely intensified the demand for extreme solutions. The steady development of punitive laws, reverse onus provisions, financial appropriations and other devices carved out a field of legal anomalies in which fundamental principles of justice were sidelined.[lxxxvii] The history of Australian drug policy highlights the collateral damage which such a cycle causes, both to the integrity of the Australian legal system and to those who are caught up in the law enforcement juggernaut.

The integrity of the Australian legal system is likewise jeopardised by our asylum policy. In order to advance a zero tolerance model that aims to remove all IMAs from Australian jurisdiction, come what may, Australia has 'excised' parts of Australian territory, thereby permitting their legal removal off-shore where they may be afforded significantly lesser protections than under domestic law.[lxxxviii]

This strategy reached its reductio ad absurdum on 17 May 2013 when Parliament passed legislation which excises the whole of the Australian mainland for the purposes of immigration[lxxxix] – authorising the government to gather up all asylum seekers and deposit them in off-shore centres, no matter where they land. Australia the continent is no longer 'Australia' the country when it comes to IMAs. The Act establishes an extraordinary Bermuda triangle with sides up to seven thousand kilometres long in the hope that Australia itself will mysteriously disappear into it.

In order, supposedly, to better protect us, governments around the world have, since 9/11, extended their capacity to exercise power unfettered by legal constraints or supervision.[xc] Guantánamo, which Lord Steyn famously described as a 'legal black hole',[xci] is one example. The growth of state-sanctioned bombings, drone attacks, assassinations, 'eliminations' and other acts of vigilante law, is another. Under the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act the whole of Australia is transformed into a 'legal black hole' for refugees and asylum seekers.[xcii]

These practices are not without precedent. After all, what was the founding of modern Australia but a state of exception outside the rule of law, Port Jackson and Port Arthur the Naurus of their time? The convicts' struggle for legal status marked early Australian history. Throughout the nineteenth century, Aboriginal populations were similarly herded into detention centres like Point Civilisation in Tasmania. The struggle for legal recognition marks Aboriginal history too. Throughout the nineteenth century, ideas of management, control and isolation were often invoked as a solution to problems posed by all kinds of undesirables, lepers, criminals, immigrants, black men, mad men, sick men, or radicals. As historians Alison Bashford and Caroline Strange have pointed out, perhaps the best metaphor for this archipelago of exceptional structures is that great Australian institution, quarantine.[xciii] We treat asylum seekers like strange fruit.

The other side of the collateral damage caused by zero tolerance is the harm done by aggressive law enforcement. Footage of spectacular customs hauls was the staple diet of television news in the 1990s (and Border Patrol more recently). But these dramatic actions failed to make any lasting inroads into the drug trade. Drug smuggling became slightly riskier. Drugs became more expensive, the drug trade became more lucrative and more violent, pushers and users became more dependent on enlisting new clients or stepped up the crime needed to support their habits – a classic example of a vicious circle in which tough law enforcement policies exacerbate the very problems they were meant to eradicate. Those with the least choice always suffer the most at the hands of a legal structure lashing out at its own impotence: members of the underclass in US cities, for example, or low-level couriers subject to the death penalty in places like Malaysia, Singapore, or most recently Indonesia. Several countries in the Americas are currently suffering from the ugly end-game of this particular logic, with unintended consequences that are steadily unravelling the fabric of their societies.[xciv]

Aggressive interdiction strategies are likewise an important element in our war on asylum seekers. Under the Howard Government, Operation Relex targeted people-smuggling boats and attempted to return them to Indonesian waters; now we have the Bali Process. [xcv] But, like the occasional Customs haul of heroin, such actions leave the underlying problems and pressures, here and in Indonesia, quite untouched.

'People smuggling disruption activities' are in fact far from benign. They might involve disrupting established smuggling routes, confiscating boats and in some cases even sabotaging them. The Australian government has provided significant funds over the years to support covert Indonesian police actions, and DIAC is said to have been involved in similar conduct over the years.[xcvi]

Robin de Crespigny's recent book The People Smuggler (Penguin, 2012) makes a powerful case for Ali Al Jenabi as 'the Oskar Schindler of Asia.' [xcvii] But the public discourse of 'vermin' who should 'rot in hell' continues to predominate – family members in Sri Lanka, Pakistani travel agents, poor Indonesian fishermen, vermin one and all. Predictably, severe penalties and confiscating boats only encourage smugglers to minimise their economic risk and to maximise their profit. Vessels are increasingly unseaworthy and overcrowded, crewed by inexperienced and impoverished young Indonesians, altogether increasing the risk of a tragedy at sea. On 25 March 2013, two asylum seekers died as a result of the inexperience of the 'sailors' who were handling their boat when it was boarded by Australian officials. [xcviii] We suppose that if we make smuggling secretive enough and dangerous enough, asylum seekers will just say no. We should know from our experience with drug users and drug smuggling that this is not so. But the fantasy of zero tolerance lives on in the politics of IMAs.


DRUG HISTORY OFFERS more than a cautionary tale of misplaced zeal. Since my return to Australia last year, I have been struck by a decline in the use of overblown rhetoric in this country, accompanied by what seems to have been a steady shift from a policy of 'zero tolerance' to one of 'harm reduction'. Zero tolerance assumes that any level of drug use in society is unacceptable. Policies that help drug users live better lives or avoid prison are seen as misguided. Illegal drugs are a law and order problem. But harm reduction strategies start from the opposite assumptions. They argue that some level of drug use in society is inevitable. Policies should therefore not aim to eliminate drug use entirely, but instead concentrate on modifying the dangerous conditions under which drugs are taken. Illegal drugs are reframed as a health problem.[xcix]

Inconsistently, incrementally, and in some ways almost unnoticed, Australian society has moved away from the hysteria of the 1970s and 1980s.[c] While it is certainly true that levels of police illicit drug interdiction continues to rise, up for example to 23.8 tonnes in 2011–12 from 9.63 tonnes the previous year, and with cocaine seizures at their highest level for a decade, these activities are increasingly focused at levels of commercial importation and accompanied by much less of the moral panic of the past.[ci] Drugs are no longer regular front-page news except when the hauls are displayed for the cameras. Meanwhile, the possession or growing of cannabis for personal use has been decriminalised in three jurisdictions, with clear benefits to users and to the legal system. Elsewhere, conviction for small levels of personal use is rare. All Australian jurisdictions now make extensive use of 'cannabis cautioning schemes' and/or divert users to education or counselling programs. In May 2013, after a thorough investigation, a New South Wales Parliamentary Committee unanimously recommended the legalisation of the medical use of cannabis.[cii] Such a decision would have been unthinkable ten years ago.

Meanwhile, court-based schemes frequently divert heroin users to treatment. Despite the continuing illegality of heroin, needle exchanges have been running successfully in Sydney, Melbourne and elsewhere for years. The public health outcomes have been impressive. Australia has one of the lowest rates of AIDS infection among intravenous drug users in the world.[ciii] Clearly these programs do not attempt to prohibit drug injection; instead they intend to regulate it better and make it safer. In a unanimous decision, the Supreme Court of Canada recently held that denying addicts access to such life-saving services violates the Canadian Constitution.[civ] Zero tolerance or harm reduction – that's the issue. Increasingly, it looks like prohibition is losing the war it started.

What would a 'harm reduction' policy in relation to IMAs look like? It would not seek to 'stop the boats', but to stop the conditions which lead tothem, and to alleviate the conditions of those onthem. In the face of increasing refugee populations across our region, Australia is more dependent on best practices in other countries than they are on us. There can be no alternative but to act as we urgently need other countries to act. For our own sake as well as for theirs, we need to increase the size of our settlement program from transit countries such as Malaysia and Indonesia. Likewise, we must remove all counter-productive measures in our treatment of refugees. This would involve reinstating a workable quota for the Special Humanitarian Program without treating it as a hostage to fortune. Linking the program to the number of IMAs creates more suffering for new arrivals, increases the number of children arriving by boat and seriously inhibits the integration and settlement of refugees. We should dismantle mandatory detention facilities and off-shore processing centres, and rescind our own denial of the right to work and education. These are entirely pointless gestures. They do not protect Australia and they do not discourage IMAs. They are mind-bogglingly counter-productive not only in terms of refugee health and safety, but also in terms of building viable regional processes.

Instead of spending exorbitant sums pursuing a counter-productive logic, Australia should increase its support for UNHCR operations and capacity-building in transit countries. The fundamental reason that IMAs keep coming to Australia is because of the lack of other options. Funding detention centres and interdiction efforts in neighbouring countries is a classic example of the problem with zero tolerance. Such measures only serve to make conditions worse for asylum seekers in Indonesia and Malaysia, directly causing more and more of them to try and reach Australia. Taking a leaf out of the harm-reduction handbook, Australia should instead actively support measures to improve conditions for refugees in those countries, including by the legal recognition of the status of refugees and asylum seekers, and supporting their right to work, education and health. Of course, we cannot seriously advance these policies elsewhere without walking the walk ourselves.

In any case we should stop deflecting blame for the loss of life caused by our own policies onto IMAs or 'people smugglers' – the inevitable by-products of Australia's self-inflicted 'asylum problem problem'. Just as we have seen in relation to illegal drugs, laws do have effects – just not always the ones we want. Bad laws turn good intentions into bad consequences. Cutting all access to family reunion programs increases the number of children who drown at sea; prohibiting visa-holders from working creates an underclass; supporting interdiction and disruption activities overseas does not save lives, but costs them; failing to take more refugees now stores up a bigger problem for the future.

Our current policies exhibit a dogged and self-destructive logic. In the interests of an unrealistic policy of prohibition and a counter-productive fantasy of zero tolerance, our governments have attempted to establish pockets of non-law in order to prevent IMAs from accessing protections to which they are entitled. These anomalies are justified by reference to a non-existent queue, in the interests of which the logic of 'no advantage' drives conditions on Nauru, Manus Island and so on, down and down. Deteriorating physical and psychological conditions create their own political pressures which ultimately import unhealthy and discriminatory conditions back to the Australian mainland and right in to the middle of our cities. Meanwhile, the costs of maintaining the system spiral out of control and prevent us from putting money in places that might make a difference. Each turn of the screw only amplifies the errors. Unless we begin to accept our responsibilities the problems will continue to metastasise and the debate will continue to fester. We have been down that road before.


THE GOOD NEWS for Australians is that shifting the debate by accepting that we need to do more, not less, is not simply a matter of 'doing the right thing' – a kind of cold comfort by which Australians seem largely unmoved. We are putting in place structures and processes that will improve the underlying problems as well. The growing acceptance of harm reduction in the field of drug policy gives us a model for real change. Australia's policy leadership there illustrates a lesson of enormous pragmatic importance: compassion and understanding are more successful social policy settings than anger and ignorance.

What factors allowed the seemingly interminable 'drug wars' to subside? As Bill Bowtell wrote in Griffith REVIEW 17: Staying Alive, the imminent threat of HIV/AIDS brought together a small but influential group of 'politicians, bureaucrats, advisers, doctors, nurses, nuns, sex workers, gay men, drug users, academics, journalists, advertising executives and social workers' around a pragmatic response that ended up saving many thousands of lives.[cv] In the process the drug problem finally managed to escape the populist rhetoric which had held it captive. That is the task we now face: to shift the narrative that frames the 'asylum problem problem' from zero tolerance to harm reduction, and from border protection to regional security.

Yet although the undoubted urgency of the HIV/AIDS epidemic and the dedicated influence of a few professionals was certainly vital, two significant elements help explain the widespread acceptance that harm reduction drug policies came to enjoy. The first was the horrendous cost of the law enforcement system. Many economists, conservative as well as left-leaning, have documented extensively the irrationality and expense of drug prohibition.[cvi] As Alex Wodak argued in a recent essay, 'In 2002–03 commonwealth, state and territory governments spent $3.2 billion preventing and responding to illicit drugs,' three-quarters of which went on law enforcement, 7 per cent on drug treatment and only 1 per cent on harm reduction. [cvii]

Despite minimal evidence of effectiveness and abundant evidence of serious collateral damage, gold bars continue to rain down on drug law enforcement. It's just the opposite for drug treatment and harm reduction where there is substantial evidence of benefit and minimal evidence of serious collateral damage… In contrast to the money spent on law enforcement, the $224 million spent in 2002–03 on drug treatment was an excellent investment. Methadone maintenance treatment saves between $4 and $7 for every dollar spent. The $32 million spent on harm reduction in 2002–03 was also a great investment. Needle syringe programs save $4 in healthcare costs and $27 overall for every dollar spent.[cviii]

In a political climate dominated by the language of economic efficiency –not morality – such arguments are increasingly hard to ignore.

The second was what we might call the 'normalisation' of drug users. We fear the unknown. Stereotypes create anxiety, but personal contact reduces it. Throughout the 1980s and 1990s many Australians came in contact with young people, in particular, who were suffering from the real physical and social consequences of drug laws – not as shock-jock fodder but as co-workers, friends or family members. Stereotypes began to fall; punitive measures seemed neither to reflect reality nor to do any good. Cases like those of Schapelle Corby and the Bali Nine have been the subject of huge media interest in Australia and dramatised the plight of rather normal, if foolish, young people who find themselves facing exorbitant prison terms and in some cases the death penalty for acts of stupidity. Even closer to home, Friends and Families for Drug Law Reform was one small group established in 1995 in response to four heroin-related deaths in the Australian Capital Territory. Rather than demanding tougher penalties, this group came to believe that 'prohibition laws are more the problem than the solution.'[cix] There is nothing so powerful as lived experience, even tragic experience, to wean people off the false comfort of conventional wisdom.

Of these two catalysts to pragmatic change, the economic implications of our current asylum policy are crystal clear. Deterrence and interdiction will cost Australia around $654 million over four years.[cx] Nauru will cost around $2 billion over that time; Manus Island about $1 billion more.[cxi] The cost of on-shore processing for refugees waiting to have their claims heard, including those on bridging visas and in mandatory detention, is now estimated at $375 million a year – money which has been taken directly out of the foreign aid budget.[cxii] Australia probably spends over $100,000 on every asylum seeker we attempt, largely ineffectually, to turn back. In comparison, Australia contributed $48 million to UNHCR in 2012; a significant contribution, but a reduction of over 13 per cent on the previous year.[cxiii]

Regrettably, Australia's political discourse at present does not seem to provide much scope for the kind of normalisation that helped to temper the 'drug problem problem'. The fewer refugees we take in, the harder it is for average Australians to become their friends, neighbours or co-workers. By defining the problem as one of 'border protection', excising the whole country from any relationship with asylum seekers, segregating them behind razor wire and holding them thousands of kilometres off-shore, we make it impossible for Australians to even see or hear their stories. This fanatical isolation is not only expensive and cruel: by 'immunising' ourselves against any interaction, we merely ratchet up the very anxiety which fuelled the 'asylum problem problem' to begin with. This is another example of the perils of unintended consequences.

The government of the day does not face a moral dilemma. It faces a political dilemma, which is a very different thing.[cxiv] Previous generations of mass migration were accompanied by a sympathetic rhetoric that matched Australia's prevailing world-view. The paradox is that there is no reason why this should not be the case now, too. Why should the post-war 'refos' or Vietnamese 'boat people' (fleeing a conflict in which we were implicated) be seen as repudiating communism, while Afghani and Iraqi asylum seekers (equally fleeing a conflict in which we are implicated) are seen as importing terrorism? Our support is surely a powerful political statement as well as a constructive step. Indeed, the development of moderate and stable Islamic states is our very best guarantee of regional security, and finding a long-term solution to their refugee problems is critical to that development. The less help we give Pakistan, for example (95 per cent Muslim), or Indonesia (87 per cent) or Malaysia (61 per cent) to deal with the refugee crisis on and within their borders, the more we encourage regional instability and perhaps even extremism. If one day not a thousand but a hundred thousand Indonesians took to the open seas, what exactly would Australia do then?

I said that Australian policy is cutting off its nose to spite its face. Actually, we are excising our brain to spite our heart.

Drug policy history not only shows us the characteristic failures and dead-ends of this kind of thinking. It also points the way to alternative approaches in which compassion and pragmatism are revealed not to be opposites but partners. Australians may yet appreciate how we are connected to the regional and global problems that now seem to surprise and bewilder us.

Our understanding of the global circumstances of refugees may yet outweigh our long-standing defensive anxiety. It is possible, after all, to wake up from Groundhog Day. And not a moment too soon. As an ex-expat I have chosen, on more than one occasion, the country in which I wish to live. Not everyone is that lucky. Not everyone is free to choose when they leave, where they go, and when – or whether – they come home again.

24 May 2013


[i]Manderson, D. 1993. From Mr Sin to Mr Big: A history of Australian drug laws (Oxford University Press), 95.

[ii]Mendes, P. 2001. 'Social Conservatism vs. Harm Minimisation: John Howard on Illicit Drugs', 6 Journal of Economic and Social Policy: Art. 2, 3-6.

[iii]Sydney Morning Herald.4 May 2013. 'Abbott rules out gay union'.

[iv]Gelber, K. 2003. 'A Fair Queue? Australian Public Discourse on Refugees and Immigration', 77 Journal of Australian Studies: 19; Pickering, S. (2012) '"It Would be Okay If They Came through the Proper Channels": Community Perceptions and Attitudes toward Asylum Seekers in Australia', 25 Journal of Refugee Studies: 113-133.

[v]Gillard, J. 2010. Moving Australia Forward (Lowy Institute Speech),6.

[vi]Australian Broadcasting Corporation.17 April 2009. 'Rudd wants people smugglers to "rot in hell"'.

[vii]Australian Government. 2012. Report of the Expert Panel on Asylum Seekers,59-63 : http://expertpanelonasylumseekers.dpmc.gov.au/report; Crock, M. and Ghezelbash, D. 2010. 'Do Loose Lips Bring Ships? The Role of Policy, Politics and Human Rights in Managing Unauthorised Boat Arrivals', 19 Griffith Law Review: 238, 248-52.

[viii]Australian Government, DIAC. 2013. Humanitarian Program Outcomes 2011-12; Australian Government, DIAC. March 2013. Asylum Statistics-Australia (Quarterly Tables),14.

[ix]Australian Government, DIAC. Fact Sheets #1-87,esp. #60-69:; Australian Government, DIAC. 2010-11. Asylum Trends-Australia, 30; Phillips, J. 2011-13. 'Asylum Seekers and Refugees: What are the Facts?', Parliamentary Library Background Note, fn 39-55.

[x]Australian Government, DIAC. 2011. Asylum Trends-Australia,30-34; Australian Government, DIAC. 2012. Asylum Trends-Australia,30-33.

[xi]Australian Government, DIAC. December 2012. Asylum Statistics-Australia (Quarterly Tables),11-14: http://www.immi.gov.au/media/publications/statistics/Australian Government, DIAC. March 2013. Asylum Statistics-Australia (Quarterly Tables),11-14 :

[xii]The Australian.18 March 2013. 'Rejected boat people sail through tribunal'.

[xiii]Convention Relating to the Status of Refugees(adopted 28 July 1951, entered into force 22 April 1954), 189 United Nations Treaty Series 137, Article 1.A.2.

[xiv]United Nations High Commission for Refugees. 2012. Global Trends 2011 (A year of crises).

[xv]United Nations High Commission for Refugees. 2012. Global Trends 2011 (A year of crises),3-7, 24; Karisen, E. 2011. 'Refugee resettlement to Australia: What are the Facts?' Parliamentary Library Background Note, 3-4.

[xvi]In Manderson, D. 1993. From Mr Sin to Mr Big: A history of Australian drug laws (Oxford University Press), 173.

[xvii]Cohen, S. 1972. Folk Devils and Moral Panics (MacGibbon and Kee); Garland, D. 2008. 'On the Concept of Moral Panic,' 4 Crime Media Culture 9-30.

[xviii]South Australia. 1979. Royal Commission into the Non-Medical Use of Drugs (Ronald Sackville, Chief Commissioner) (Government Printer)

[xix]Senate Standing Committee on Social Welfare. 1977. Drug problems in Australia - an intoxicated society? (Senator Peter Baume, Chair) (AGPS), discussed in Manderson, D. 1993. From Mr Sin to Mr Big: A history of Australian drug laws (Oxford University Press), 170. See also Marks, R. 1990. 'A Freer Market for Heroin in Australia' 20 Journal of Drug Issues 131-76, 132-3.

[xx]Parliament of Australia, Parliamentary Library Research Publications. 2011-12. Boat Arrivals in Australia Since 1976; Koser, K. 2010. 'Responding to Boat Arrivals in Australia: Time for a Reality Check'(Lowy Institute Analysis), 4.

[xxi]Australian Government. 2012. Report of the Expert Panel on Asylum Seekers, 7.

[xxii]Australian Government, DIAC. Fact Sheets #1-87,esp. #60-69; Australian Government, DIAC. March 2013. Asylum Statistics-Australia (Quarterly Tables),10.

[xxiii]United Nations High Commission for Refugees. 2012. Global Trends 2011 (A year of crises); Australian Government. 2012. Report of the Expert Panel on Asylum Seekers,61-63; Refugee Council of Australia. National and Global Statistics 2013-14, 14.

[xxiv]Refugee Council of Australia. National and Global Statistics 2013-14, 17; Australian Government. 2012. Report of the Expert Panel on Asylum Seekers.

[xxv]UNHCR. 2011. Asylum Levels and Trends in Industrialized Countries, 20; Phillips, J. 2011-13. 'Asylum Seekers and Refugees: What are the Facts?', Parliamentary Library Background Note; Australian Government, DIAC. 2012. Asylum Trends-Australia, 2-3.

[xxvi]Refugee Council of Australia. National and Global Statistics 2013-14,4; Australian Government, DIAC. Fact Sheet 60; Australian Government, DIAC. 2012. Asylum Trends-Australia.

[xxvii]Australian Government. 2012. Report of the Expert Panel on Asylum Seekers, 14; Australian Government, DIAC. 2013. Humanitarian Program Information Paper 2013-14, 2; Chris Bowen. 23 August 2012. Media Release, 'Refugee Program increased to 20 000 places'.

[xxviii]Refugee Council of Australia. National and Global Statistics 2013-14,7.

[xxix]Refugee Council of Australia. National and Global Statistics 2012-13 and 2013-14, 7-8.

[xxx]Refugee Council of Australia. National and Global Statistics 2013-14,4; Australian Government, DIAC. Fact Sheet 60; Phillips, J. 2011-13. 'Asylum Seekers and Refugees: What are the Facts?', Parliamentary Library Background Note.

[xxxi]Australian Government, DIAC. 2012. Asylum Trends-Australia, 2.

[xxxii]Australian Government, DIAC. 2013. Humanitarian Program Information Paper 2013-14,2; Chris Bowen. 23 August 2012. Media Release, 'Refugee Program increased to 20 000 places'.

[xxxiii]Refugee Council of Australia. 2012. Humanitarian Family Reunion: The Building Block of Good Settlement.

[xxxiv]Crock, M. and Ghezelbash, D. 2010. 'Do Loose Lips Bring Ships? The Role of Policy, Politics and Human Rights in Managing Unauthorised Boat Arrivals', 19 Griffith Law Review: 238, 262.

[xxxv]Senate Legal and Constitutional Affairs Legislation Committee, Immigration and Citizenship portfolio, Supplementary Budget Estimates 2011-12, 17 October 2011.

[xxxvi]Hutton, M. 2012. 'Drownings on the Public Record of People Attempting to Enter Australia Irregularly by Boat 1998-2012'; Kevin, T. 2012. Reluctant Rescuers, 143; http://sievx.com/FAQ.shtml.

[xxxvii]Australian Government, DIAC. 2013. Humanitarian Program Information Paper 2013-14, 3-4; Chris Bowen. 22 September 2012. Media Release, 'Government implements Expert Panel's family reunion recommendation'.

[xxxviii]Douglas, R. and McDonald, D. 2012. The Prohibition of Illicit Drugs is Killing and Criminalising Our Children: (Australia 21 Report), 12-14; Australian Institute of Health & Welfare. 2011. Drugs in Australia 2010: tobacco, alcohol and other drugs (Drug Statistics Series no. 27).

[xxxix]Canada. 1972. Commission of Inquiry into the Non-Medical Use of Drugs (Gerald Le Dain, Commissioner) (Government Printer); South Australia. 1979. Royal Commission into the Non-Medical Use of Drugs (Ronald Sackville, Chief Commissioner) (Government Printer)

[xl]In Manderson, D. 1993. From Mr Sin to Mr Big: A history of Australian drug laws, 43 (Oxford University Press).

[xli]Douglas, R., Wodak A., and McDonald, D. 2012. Alternatives to Prohibition: (Australia 21 Report); Marks, R. 1990. 'Prohibition or regulation: an economist's view of Australian heroin policy', 23 Australian and New Zealand Journal of Criminology: 65-87; Miron, J. 2004. Drug War Crimes: The Consequences of Prohibition (Independent Institute).

[xlii]Linton, M. 2012 Cocaina (Scribe Publications).

[xliii]Hutton, M. 2012. 'Drownings on the Public Record of People Attempting to Enter Australia Irregularly by Boat 1998-2012'.

[xliv]Convention Relating to the Status of Refugees(adopted 28 July 1951, entered into force 22 April 1954), 189 UNTS 137, Art. 33.

[xlv]M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32.

[xlvi]Hathaway, J. 20 September 2011. Australian Broadcasting Corporation, 'RN Breakfast'; Hathaway, J. 2008. 'The human rights quagmire of "human trafficking"'49 Virginia Journal of International Law: 1-59.

[xlvii]See Millbank, A. 2010. 'The elephant on the boat: the problem that is the Refugee Convention', 18 People and Place: 41-49.

[xlviii]Dauvergne, C. 2008. Making People Illegal: What Globalization Means for Migration and Law (Cambridge University Press).

[xlix]M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32.

[l]United Nations High Commission for Refugees. UNHCR - Indonesia; Crock, M. and Ghezelbash, D. 2010. 'Do Loose Lips Bring Ships? The Role of Policy, Politics and Human Rights in Managing Unauthorised Boat Arrivals', 19 Griffith Law Review: 238, 270; Taylor, S. & Rafferty-Brown, B. 2010. 'Waiting for Life to Begin: the Plight of Asylum Seekers Caught by Australia's Indonesian Solution', 22 International Journal of Refugee Law: 558-592.

[li]Taylor, S. and Rafferty-Brown, B. 2010. 'Difficult Journeys: Accessing Refugee Protection in Indonesia', Monash University Law Review

[lii]United Nations High Commission for Refugees. UNHCR – Malaysia.

[liii]Hatton, T. 2009. 'The Rise and Fall of Asylum: What Happened and Why?' 119 The Economic Journal: F183, F209.

[liv]Koser, K. 2010. 'Responding to Boat Arrivals in Australia: Time for a Reality Check'(Lowy Institute Analysis), 8.

[lv]Koser, K. 2010. 'Responding to Boat Arrivals in Australia: Time for a Reality Check' (Lowy Institute Analysis),8-9.

[lvi]Australian Government, DIAC. 2013. Immigration Detention Statistics Summary, February 2013,3.

[lvii]Migration Reform Act 1992(Cth.); Crock, M. and Ghezelbash, D. 2010. 'Do Loose Lips Bring Ships? The Role of Policy, Politics and Human Rights in Managing Unauthorised Boat Arrivals', 19 Griffith Law Review: 238, 255-57.

[lviii]Second reading speech by Hand, G. in Phillips, J. and H Spinks. 2012-3. 'Immigration detention in Australia', Parliamentary Library Background Note, fn 137.

[lix]Manne, R. 2003. Sending Them Home: Refugees and the New Politics of Indifference (Quarterly Essay #13).

[lx]Phillips, J. and H Spinks. 2012-3. 'Immigration detention in Australia', Parliamentary Library Background Note; Bem, K., N Field, N Maclellan, S. Meyer & T. Morris. 2007. A price too high: the cost of Australia's approach to asylum seekers(A Just Australia and Oxfam Australia, A Just Australia website); Welch, M. 2004. 'Quiet Constructions in the War on Terror: Subjecting Asylum Seekers to Unnecessary Detention', 31 Social Justice: A Journal of Crime, Conflict & World Order: 113-129.

[lxi]Menadue, J. et al. 2011. A new approach–breaking the stalemate on asylum seekers and refugees (Occasional paper no. 13, Centre for Policy Development), 13, 21, 31; Phillips, J. and H Spinks. 2012-3. 'Immigration detention in Australia', Parliamentary Library Background Note.

[lxii]Chris Bowen. 21 November 2012. Media Release, 'No Advantage On Shore for Boat Arrivals'.

[lxiii]Marston, G. 2003. Temporary Protection, Permanent Uncertainty: The Experience of Refugees Living on Temporary Protection Visas (Centre for Applied Social Research, RMIT University); Mathew, P. 2012. Reworking the Relationship between Asylum and Employment (Routledge).

[lxiv]Marston, G. 2003. Temporary Protection, Permanent Uncertainty: The Experience of Refugees Living on Temporary Protection Visas (Centre for Applied Social Research, RMIT University).

[lxv]The Age.28 February 2013. 'Libs push for asylum crackdown'.

[lxvi]Australian Broadcasting Corporation.23 November 2012. 'Abbott reveals plans to slash refugee intake'.

[lxvii]Karisen, E. 2011. 'Refugee resettlement to Australia: What are the Facts?' Parliamentary Library Background Note, 12-13.

[lxviii]Australian Government, DIAC. 2013. Humanitarian Program Information Paper 2013-14,3.

[lxix]Taylor, S. & Rafferty-Brown, B. 2010. 'Waiting for Life to Begin: the Plight of Asylum Seekers Caught by Australia's Indonesian Solution', 22 International Journal of Refugee Law: 558, 590-91.

[lxx]Australian Government. 2012. Report of the Expert Panel on Asylum Seekers, 15, 29-30.

[lxxi]Australian Government, DIAC. 2013. Humanitarian Program Information Paper 2013-14; Migration Legislation Amendment (Regional Processing & Other Measures) Act 2012(Cth.); Chris Bowen. 10 September 2012. Media Release, 'Nauru designated for regional processing'.

[lxxii]Amnesty International. 2012. Nauru Camp: A Human Rights Catastrophe With No End In Sight, 1.

[lxxiii]See Hathaway, J. 2006. 'The False Panacea of Offshore Deterrence',26 Forced Migration Review: 56-57.

[lxxiv]HREOC, Submission of the Human Rights and Equal Opportunity Commission to the Senate Legal and Constitutional Legislation Committee on the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, 4.12.

[lxxv]Sydney Morning Herald. 13 October 2005. 'Detainees to Leave Nauru;HREOC, Submission of the Human Rights and Equal Opportunity Commission to the Senate Legal and Constitutional Legislation Committee on the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, 4.16.

[lxxvi]Phillips, J. 2010. 'The 'Pacific Solution' revisited: a statistical guide to the asylum seeker caseloads on Nauru and Manus Island', Table 26, Parliamentary Library Background Note;HREOC, Submission of the Human Rights and Equal Opportunity Commission to the Senate Legal and Constitutional Legislation Committee on the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, 4.12.

[lxxvii]HREOC, Submission of the Human Rights and Equal Opportunity Commission to the Senate Legal and Constitutional Legislation Committee on the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, 4.13.

[lxxviii]Australian Broadcasting Corporation.8 October 2012. 'Nauru amending laws for refugee determinations'.

[lxxix]John Menadue, 'The Pacific Solution didn't work before and it won't work now', The Drum (Australian Broadcasting Corporation), 14 March 2012.

[lxxx]John Menadue, 'The Pacific Solution didn't work before and it won't work now', The Drum (Australian Broadcasting Corporation), 14 March 2012.

[lxxxi]John Menadue, 'The Pacific Solution didn't work before and it won't work now', The Drum (Australian Broadcasting Corporation), 14 March 2012.

[lxxxii]Hatton, T. 2009. 'The Rise and Fall of Asylum: What Happened and Why?' 119 The Economic Journal: F183, F209.

[lxxxiii]Australian Government. 2012. Report of the Expert Panel on Asylum Seekers, 47.

[lxxxiv]Sydney Morning Herald.27 March 2013. 'More asylum seekers arrive'.

[lxxxv]Australian Government, DIAC. March 2013. Asylum Statistics-Australia (Quarterly Tables),1; Sydney Morning Herald. 27 March 2013. 'More asylum seekers arrive'.

[lxxxvi]Mendes, P. 2001. 'Social Conservatism vs. Harm Minimisation: John Howard on Illicit Drugs', 6 Journal of Economic and Social Policy: Article 2, 6.

[lxxxvii]Manderson, D. 1993. From Mr Sin to Mr Big: A history of Australian drug laws, 157-88 (Oxford University Press).

[lxxxviii]Migration Amendment (Excision from Migration Zone) Act 2001(Cth.)

[lxxxix]Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013; The Australian.17 May 2013. 'Excision of mainland finally made into law'.

[xc]Agamben, G. 2005. State of Exception, K. Attell trans. (University of Chicago Press).

[xci]Steyn, J. 2004. 'Guantanamo: The Legal Black Hole' 53 International and Comparative Law Quarterly: 1-15.

[xcii]Brophy, S.D. 2009. 'Lawless Sovereignty: Challenging the State of Exception', 18 Social and Legal Studies: 199; Guild, E. 2007. Security and European human rights: protecting individual rights in times of exception and military action (Wolf, 2007); Guild, E. 2009. Security and Migration in the 21st Century Polity (Cambridge); Rajaram, P.K. and Grundy-Warr, C. 2004. 'The Irregular Migrant as Homo Sacer: Migration and Detention in Australia, Malaysia and Thailand', 42 International Migration: 33.

[xciii]Bashford, A. & Strange, C. 2002. 'Asylum Seekers and National Histories of Detention', 48 Australian Journal of Politics and History: 509.

[xciv]Linton, M. 2012 Cocaina (Scribe Publications).

[xcv]Fourth Bali Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime(The Bali Process) (March 2011).

[xcvi]Millbank, A. 2009. 'Kind or Cruel?' 17 People and Place: 8-17, 12-13; Kevin, T. 2012. Reluctant Rescuers.

[xcvii]de Crespigny, R. 2012. The People Smuggler (Penguin).

[xcviii]Sydney Morning Herald.26 March 2013. 'Asylum seekers drown with officials on board'.

[xcix]Wodak, A. 2011. Demand Reduction and Harm Reduction (Global Commission on Drug Policies Working Paper)(Geneva).

[c]Wodak, A. 2011. Demand Reduction and Harm Reduction (Global Commission on Drug Policies Working Paper)(Geneva); Manderson, D. 1993. From Mr Sin to Mr Big: A history of Australian drug laws, 181-98 (Oxford University Press).

[ci]Australian Crime Commission. 2013. Illicit Drug Data Report 2011-12; Herald-Sun.20 May 2013. 'Record Drug Haul'.

[cii]New South Wales Legislative Council General Purpose Standing Committee, No. 4. May 15 2013. The use of cannabis for medical purposes, x – xvi;Sydney Morning Herald. 15 May 2013. 'Cannabis treatment for pain wins MPs' approval'.

[ciii]Sendziuk, P. 2007. 'Harm reduction and HIV-prevention among injecting drug users in Australia: an international comparison,'24 Can Bull Med Hist:113-29; Paone D. Et al. 2005. 'Syringe exchange: HIV prevention, key findings, and future directions,' 30 International Journal of Addiciton :1647-83; see Bowtell, W. 2007. 'Applying the Paradox of Prevention', 17 Griffith REVIEW: Staying Alive.

[civ]Canada (Attorney General) v. PHS Community Services Society[2011] 3 S.C.R. 134.

[cv]Bowtell, W. 2007. 'Applying the Paradox of Prevention', 17 Griffith REVIEW: Staying Alive, 1.

[cvi]Sydney Morning Herald.26 May 2012. 'Prohibition could be a false economy'; Marks, R. 1990. 'Prohibition or regulation: an economist's view of Australian heroin policy', 23 Australian and New Zealand Journal of Criminology: 65-87; Miron, J. 2004. Drug War Crimes: The Consequences of Prohibition (Independent Institute); Stevens, A. 2006. The Economy of Drug Policy (Routledge).

[cvii]Wodak, A. 2013. 'Get Smarter About Illicit Drugs to Help Balance the Budget', The Conversation.

[cviii]Wodak, A. 2013. 'Get Smarter About Illicit Drugs to Help Balance the Budget', The Conversation: http://theconversation.com/get-smarter-about-illicit-drugs-to-help-balance-the-budget-13841.

[cix]See Friends and Families for Drug Law Reform.

[cx]Millbank, A. 2009. 'Kind or Cruel?' 17 People and Place: 8-17, 12.

[cxi]Radio Australia.14 August 2012. 'Australian Parliament to vote on Pacific Solution'.

[cxii]The Australian.18 December 2012. 'Bob Carr confirms aid budget shift'.

[cxiii]United Nations High Commission for Refugees. UNHCR – Australia.

[cxiv]Bleiker, R. 2012. 'The Politics of Illegalised Migration', 47 Australian Journal of Political Science: 311-16.

From Griffith Review Edition 41: Now We are Ten © Copyright Griffith University & the author.

Griffith Review