Cross-Examination: The Pot Calling The Kettle Black – Do we really treat asylum seekers better than Australia?

Naushyn Janah, Content Contributor

Australia continues to face widespread condemnation for its hardline border control policies and its attitudes towards asylum seekers. By contrast, New Zealand’s generosity in the area is often held up as exemplary. There is a sense of self-approbation in New Zealand – we commend ourselves because, at the very least, we’re not on par with Australia.[1] This sense of complacency ignores many of the ways in which New Zealand’s legislation and policies have quietly become more inimical towards refugees in recent years. New Zealand has also not had to face the practicalities of unauthorized migrants arriving by boat, which raises the question of whether we are escaping criticism simply because our policies and laws have never been tested.

Operation Sovereign Borders (OSB) is Australia’s military-led border control operation, introduced in 2013 by the Liberal-National Coalition government. Border security was one of the core tenets of the Coalition’s election campaign while in opposition. The Coalition’s border security policy was based on the premise that Australia was facing a “border protection crisis” which required “the discipline and focus of a targeted military operation” to mitigate.[2] Since then, the Australian government’s attitude towards border security has become heavily securitized and militarized. Asylum seekers are deemed enemies or threats that need to be intercepted and neutralized, thereby providing a discursive justification for the use of measures such as offshore detention centers.[3]

OSB is a policy of “total deterrence” which aims to prevent the arrival of any maritime asylum seekers to Australian shores.[4] In addition to ‘stopping the boats’, the Australian government also hopes to disrupt people smuggling networks by “breaking the people smugglers’ business model”.[5] The argument goes that if asylum seekers cannot get to Australia, they will not employ people smugglers to try to do so.

Australia’s Department of Immigration and Border Protection proclaims that any “people smuggling boats” attempting to enter Australian waters or to continue travelling on to New Zealand will be intercepted and “safely removed”.[6] In practice, this has meant that boats of asylum seekers are towed or turned away to countries such as Indonesia, risking the lives of those on board.[7] It also means that any asylum seekers hoping to reach New Zealand through Australian waters are effectively barred from doing so.

Preventing asylum seekers from reaching New Zealand could amount to a breach of international law obligations, an area that has not been without controversy in the past. The number of people claiming asylum in New Zealand dramatically decreased as a direct result of the advance passenger screening procedure introduced on flights under the Immigration Act 2009. The Human Rights Commission suggests that New Zealand may arguably be contravening the principle of non-refoulement under international law if an asylum seeker is prevented from boarding a flight in a country that is not party to the Refugee Convention, the International Convention on Civil and Political Rights or the Convention Against Torture.[8] Non-refoulement prohibits states from sending asylum seekers to territories where there is a real risk that his or her life or freedom would be threatened due to race, religion, nationality, membership of a particular social group, or political opinion.

A host of supplementary measures augment the OSB. The most notorious of these is Australia’s mandatory offshore detention policy. Under the Migration Reform Act 1992, the Australian government is authorized to detain anyone without a valid visa. The government is therefore able to transfer asylum seekers to offshore detention centers in countries such as Nauru and Papua New Guinea while their claims for refugee status are being assessed. Some of the justification for the detention of asylum seekers rests on the idea that detention is being used as an administrative measure, rather than punitively. This year, a narrow majority in the Australian High Court concluded that the offshore processing arrangements are authorized under Australian domestic law – although the question of whether those arrangements comport with international law obligations still remains open.[9] The Office of the United Nations High Commissioner for Refugees has expressed deep concern regarding Australia’s policies of interception, detention and removal of asylum seekers, and Australia’s possible contravention of its non-refoulement obligations under international law.[10]

This week, Papua New Guinea’s Supreme Court ruled that Australia’s detention of asylum seekers on Manus Island is illegal, stating the detention breaches human rights guaranteed by international law as well as Papua New Guinea’s constitution. The Court ordered both countries to immediately take steps to end the detention of asylum seekers in Papua New Guinea. However, Australia shows no indication of softening its stance in light of the decision – the Immigration Minister Peter Dutton reiterating that the asylum seekers who are being held at the Manus Island detention center “will not be resettled in Australia”.

Recent developments in policy and legislation in New Zealand suggest that the view towards asylum seeker arrivals has shifted from treating the situation as a humanitarian issue to a national security issue. This process is characteristic of the broader erosion of human rights and civil liberties for the sake of national security.

The Immigration Amendment Act of 2013 created a definition of “mass arrival groups”, and enables the detention of asylum seekers who are part of such a group.[11] Although this does not appear to breach the New Zealand Bill of Rights Act 1990 or flout any of our international law obligations, it does indicate the securitization of asylum seeker issues. The United Nations Working Group on Arbitrary Detention expressed concern in 2014 at New Zealand’s use of the prison system to detain asylum seekers.[12] As recently as February this year, asylum seekers were being held at Waikeria Prison and the Mt Eden Corrections facility – even when they were not guilty of a crime.[13]

There is also considerable debate around raising New Zealand’s refugee quota. New Zealand’s quota has remained unchanged for nearly 30 years, failing to reflect the mass displacement of people in the intervening years.[14] To put this in perspective, there are currently over 59 million people forcibly displaced in the world. New Zealand ranks 90th in the world in terms of refugee intake per capita, with Australia taking five times more refugees and asylum seekers per capita. These numbers indicate that we need to at the very least rethink our intake of refugees to better reflect present global realities.

New Zealand is complicit in many of the ways in which laws and policies have hardened towards refugees over time. While our stance may be less securitized and openly hostile than that of Australia, perhaps complicity and complacency is just as harmful.

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[1] Hon Michael Woodhouse “Budget 2014: Extra Money to Boost Resettlement of Refugees” (25 May 2014) National Party < https://www.national.org.nz/>.

[2] Liberal National Coalition The Coalition’s Operation Sovereign Borders Policy (July 2013).

[3] Andrea Tang and David Hammond “The Push Back Situation in Australia” (September 2014) Human Rights at Sea < https://humanrightsatsea-news.org/2014/09/10/hras-case-study-the-push-back-situation-in-australia-operation-sovereign-borders-and-stop-the-boats/>.

[4] Peter Chambers “The Embrace of Border Security: Maritime Jurisdiction, National Sovereignty, and the Geopolitics of Operation Sovereign Borders” (2015) 20 Geopolitics 404.

[5] Cat Barker The People Smugglers’ Business Model (Parliament of Australia, Research Paper No 2, February 2013).

[6] Australian Government Department of Immigration and Border Protection “Operation Sovereign Borders Fact Sheet” (September 2015) < https://www.border.gov.au/OperationSovereignBorders/Documents/fact-sheet-English.pdf>.

[7] Amnesty International By Hook or By Crook: Australia’s Abuse of Asylum Seekers at Sea (November 2015).

[8] Human Rights Commission Human Rights in New Zealand (10 December 2010).

[9] Daniel Hurst and Ben Doherty “High Court Upholds Australia’s Right to Detain Asylum Seekers Offshore” (2 February 2016) < http://www.theguardian.com/australia-news/2016/feb/03/high-court-upholds-australias-right-to-detain-asylum-seekers-offshore>.

[10] Office of the United Nations High Commissioner for Refugees “UNHCR Legal Position: Despite Court Ruling on Sri Lankans Detained at Sea, Australia Bound by International Obligations” (press release, 4 February 2015).

[11] Immigration Amendment Act 2013, s 317A.

[12] United Nations Office of High Commissioner for Human Rights “New Zealand: UN Expert Group Raises Concern Despite Legal Safeguards Against Arbitrary Detention” (press release, 7 April 2014).

[13] Amelia Langford “Govt Told Prison No Place for Asylum Seekers” (26 February 2016) Radio NZ < http://www.radionz.co.nz/news/national/297465/govt-told-prison-no-place-for-asylum-seekers>

[14] Amnesty International It’s Time For New Zealand to Double the Quota (August 2015).