Julian Burnside AO QC

About Julian Burnside AO QC

Julian Burnside is a barrister based in Melbourne. He specialises in commercial litigation. He joined the Bar in 1976 and took silk in 1989. He acted for the Ok Tedi natives against BHP, for Alan Bond in fraud trials, for Rose Porteous in numerous actions against Gina Rinehart, and for the Maritime Union of Australia in the 1998 waterfront dispute against Patrick Stevedores. He was Senior Counsel assisting the Australian Broadcasting Authority in the “Cash for Comment” inquiry and was senior counsel for Liberty Victoria in the Tampa litigation. He is a former President of Liberty Victoria, and has acted pro bono in many human rights cases, in particular concerning the treatment of refugees. He is passionately involved in the arts. He collects contemporary paintings and sculptures and regularly commissions music. He is Chair of Fortyfive Downstairs, a not for profit arts and performance venue in Flinders Lane, Melbourne, and Chair of Chamber Music Australia. He is the author of a book of essays on language and etymology, Wordwatching (Scribe, 2004) and Watching Brief, (Scribe, 2007) a collection of his essays and speeches about the justice system and human rights. He compiled a book of letters written by asylum seekers held in Australia’s detention camps. The book, From Nothing to Zero was published in 2003 by Lonely Planet. He also wrote Matilda and the Dragon a children’s book published by Allen & Unwin in 1991. In 2004 he was elected as a Living National Treasure. In 2009 he was made an Officer of the Order of Australia. He is married to artist Kate Durham.

The reality of boat people and a solution to the asylum seeker “problem”

The treatment of asylum seekers who arrive by boat has been one of the most divisive political issues in Australia’s recent political history.

It is worth knowing a few facts.

First, asylum seekers arrive in Australia by two paths. They may come by plane or by boat.

Those who come by plane must have travel documents from their country of origin, and a visa to enter Australia; if not, they are then put on a plane back to their point of embarkation, at the expense of the airline that brought them in. Asylum seekers who arrive by plane typically have a short-term visa (study, tourism, business) but when they clear passport control in Australia apply for asylum. When their original visa expires (typically, in a matter of months) they are allowed to remain in the community on a bridging visa while their asylum claim is resolved.

About 40 percent of this group are ultimately accepted as refugees.

Those who come by boat suffer several disadvantages. First, they come from countries that make it difficult or impossible for them to get travel documents. Second, they come from countries where it is practically impossible for them to get a visa to enter Australia. They come to Australia by boat because they can’t come by plane. The durable myth that they come by boat because they are rich is not only false – it is logically absurd. Why would a rich person pay to risk their life at sea? Typically, these people travel to Malaysia or Indonesia on forged papers. They do not pass through countries that have signed the UNHCR Refugee Convention, so their position is very precarious when their people smuggler takes back the dodgy travel documents. From that time, if they are found, they are liable to be jailed, or sent back to the country that has been persecuting them. Asylum seekers who get to Indonesia live in perpetual fear of detection.

In Indonesia, asylum seekers can go to the UNHCR office and seek refugee status. Those who are assessed as refugees may wait 20 or 30 years before they are offered a place in a safe country. In the meantime they cannot get jobs, and their kids cannot go to school, for fear of detection. In countries that have not signed the Refugee Convention, they are truly “illegal”. Not surprisingly, some of them – those with initiative and courage – place themselves in the hands of people smugglers, commit themselves to a dangerous boat trip, and end up in Australia.

Over the past 20 years, more than 90 percent of boat people have ultimately been assessed as refugees and are legally entitled to protection. The tragic irony of their position is that they are the focus of political attack, while the larger number of plane arrivals create hardly a ripple of concern.

The majority view – to which both major parties have tried to pander in the last few years – is that boat people who come to Australia seeking asylum are “illegals”, “queue-jumpers” and a threat to Australia’s borders, and thus to our sovereignty. This is the direct result of dishonest statements by Coalition governments: first the Howard government and now the Abbott government. But although it is Coalition governments who have actively lied about boat people, Labor has never – in opposition or in government – contradicted the lies.

By fostering these false views of boat people (or, at least, by not contradicting them) both major parties have succeeded in whipping up a kind of hysteria in the Australian electorate. The narrative started with “illegals” and “queue-jumpers”, then it matured to “smashing the people smugglers’ business model”, and finally evolved to “Operation Sovereign Borders” under the control of a military commander. From that point on, news about boat arrivals was restricted as “an operational matter”.

A promise to “stop the boats” fairly swiftly became a process of stopping information about the boats.

It is worth noting the trajectory of the public debate: people escaping horrors of a sort we can scarcely imagine are tagged as criminals; then the wickedness of the people smugglers is invoked to stir righteous indignation; and finally we have gone onto a spurious war footing, ostensibly to “protect” the country  – and now we shroud the whole thing in language calculated to make the public think asylum seekers are dangerous criminals. The truth is that they are frightened people looking for protection: often enough, protection from our enemies!

It is interesting that the public (or at least a working majority of the public) accepted without hesitation the tags applied to asylum seekers. This, despite the fact that boat people are not “illegals”: coming to Australia the way they do to seek protection is not an offence against any law. To the contrary, seeking asylum is a right promised by the Universal Declaration of Human Rights: a document Australia helped create, and to which we are a signatory.

In 2001, and again in 2012, Australia implemented a system of “warehousing” refugees in Manus Island (part of PNG) and Nauru. The so-called Pacific Solution is designed, ostensibly, to protect refugees from the perils of the sea. It does this, rather perversely, by waiting until refugees arrive safely in Christmas Island and then transports them, against their will, to Manus or Nauru. At present, people sent to those places are being processed at the rate of about two per year. The slowness of the processing is a reflection of two things. First, Manus and Nauru have no experience in refugee processing, so they had to set up the legal and system infrastructure. Second, Australia is explicitly pursuing a policy of deterrence: life in detention in Manus or Nauru is being made as harsh and prolonged as possible to maximise the deterrent effect. The theory is, apparently, that if we are cruel enough to people who have escaped persecution, others will prefer to stand and face their persecutors.

Like most refugee advocates, I am not opposed to the concept of off-shore processing: it all depends on what that means. The refugee movement is about resettlement in a safe place. From the refugee’s point of view, it does not much matter where the processing takes place. But the processing has to be fair and efficient, and resettlement has to be swift.

In the late 1970s, off-shore processing in Malaysia met these criteria. While refugees undertook a dangerous boat voyage from Vietnam to Malaysia, they were processed in Malaysia and resettled swiftly. This, despite the fact that Malaysia has not signed the Refugee Convention. But a group of Western nations, including Australia, undertook the task of helping clean up the mess left after the end of the war in Vietnam and the genocide in Cambodia. At the time the coalition Prime Minister, Malcolm Fraser, managed to enlist the support of Gough Whitlam, the leader of the Labor Party. As a consequence, Australia received around 25,000 Indo-Chinese refugees each year for a few years. It caused no discernible social trouble.

How different it is today, with both major parties scoring political points by inciting, then harnessing xenophobia. What we call off-shore processing now is a different thing altogether. The Federal election campaign of 2013 was the first time in Australia’s political history that the two major political parties have tried to out-bid each other in their promises to be cruel to a particular group of human beings.

While the real problem is that Australia’s treatment of asylum seekers is profoundly immoral, it needs to be borne in mind that it costs us about $5 billion a year to behave so badly. If we were to treat boat people decently, it would cost about 10 percent of that amount.

If I could re-design the system, it would look something like this:

  • Boat-arrivals would be detained initially for one month, for preliminary health and security checks, subject to extension if a court was persuaded that a particular individual should be detained longer;
  • After initial detention, they would be released into the community, with the right to work, Centrelink and Medicare benefits;
  • They would be released into the community on terms calculated to make sure they remained available for the balance of their visa processing;
  • During the time their visa applications were being processed, they would be required to live in specified regional cities. Any government benefits they received would thus work for the benefit of the regional economy. There are plenty of towns around the country that would welcome an increase in their population.

Let us make some bold assumptions. Let’s assume that the spike in arrivals that we saw in 2012 became the new norm (highly unlikely); and let’s assume that every asylum seeker remained on Centrelink benefits (also highly unlikely: they are highly motivated). It would cost us about $500 million a year. We would save $4.5 billion a year by treating them decently. And the $500 million would be spent in the struggling economies of regional towns and cities.

Not only is Australia wasting vast amounts of money to mistreat refugees, it is damaging its international reputation. While we pride ourselves as a generous, laid-back country that embraces the ideal of a fair go, we are seen overseas as selfish and cruel.

It is a tragedy for Australia that its international reputation is being so damaged.

It is a tragedy that most of us do not realise how badly both major parties are behaving.

It is a tragedy that we are so wantonly damaging people who are brave and motivated and who could make an immense contribution to Australia’s future.

 

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