It is with great apprehension that I put this paper out there – into the big wide world that we call cyberspace.

I feel a need to explain why I’m doing so, also, because otherwise (out of context) my intentions may be misunderstood.

In my 2016 winter term (the term that sits squished between semesters 1 and 2 in the university year) I made a last minute decision to undertake a post-grad unit for credit in my undergraduate degree. The unit was called “Current Legal Issues”, and changes from year to year, focussing on hot topics in the legal world. In 2016, the unit was entitled “The Global Asylum Seeker Crisis and the Law”. Not being one to turn down an opportunity to learn about something so controversial, I enrolled in the unit, and soon found myself subjected to lectures by some 32 different experts from every side of the debate (some sides that I didn’t even know existed).

I say ‘subjected to’, but it was really an honour. It was a unit that incidently coincided with Brexit and issues within the EU, so it was fascinating to hear from Ambassadors, EU representatives, EU academics and so forth on the issue, alongside men and women who spoke with great conviction about their work in UNHCR, the Department of Foreign Affairs and Trade, Operation Sovereign Borders, directors of the Resettlement Services… and the list goes on.

I went into the 2-week intensive unit unsure of where I stood on asylum seeker policy, and I left perhaps even more unsure, but with a greater depth of understanding of the issues that the Government is burdened by in attempting to create good policy. I have my university, and in particular the Dean of Education for the Faculty of Business, Government and Law who convened the course and lined up such an amazing number and calibre of men and women to speak to us, to thank for the experience.

What you are about to read is the culmination of my learning over that period. It was my final assessment; an essay and subsequent policy recommendation for the Australian Government. I was honoured to receive an award for my efforts in the unit, but at the end of the day my hope is merely that more Australians educate themselves about the complexity of the issues, so that the debate about refugees doesn’t stop – but becomes more refined, more informed by knowledge, and more productive in it’s outcomes.

Click here for a downloadable link to the paper, so that you don't have to deal with all the weird footnote/endnote formatting issues below...

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THESIS

Australia’s refugee law is the outcome of policy choice by our elected representatives. The policy makers in a democracy make collective decisions on our behalf and, in doing so, need to balance the conflicting values and opinions. During this unit you have heard a variety of different value based perspectives on the subject of refugees. Drawing on the resources, ideas and evidence you have heard from the different speakers, identify key values positions you would need to consider, describe the realities of the policy process that constrain your decision making and, against this background, outline your key policy recommendations.

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I Introduction

An Aching World

The current global forced migration_[1] crisis has been described as the worst the world has ever seen,_[2] with the numbers of displaced people reaching a staggering 65.3 million at the end of 2015._[3] The United Nations Refugee Agency (‘UNHCR’) has reported that 24 people were displaced worldwide every minute._[4]More than half of these displaced persons were minors, _[5] and a mere 201,400 refugees were able to return to their countries of origin within the last year._[6] In a war-torn world of unstable governments, terrorist regimes and devastating disasters, to say that governments are changing their immigration policies regularly would be an understatement. Countries who initially welcomed refugees with open arms have built towering walls overnight, and erected fences to halt the flow of migrants._[7]Governments who do accept vast numbers of refugees are praised for doing so; yet fail to provide settlement support services._[8] Boats are coming, boats are turned back, boats are stopped, and boats are sinking. Asylum seeker camps that have been around for more than 20 years are unsustainable and crumbling._[9] The world is aching, the crisis worsening, and all the while States are struggling to reform policy to accommodate the overwhelming amount of need. But why are they struggling? What is preventing effective policies from being formed?

Value-Based Politics

As with any coin, humanitarian immigration policy has two sides, both of which are arguably crucial. On the face of it, the desperation of so many displaced people worldwide is an appeal to our humanity, and a cry for compassion to be shown. On the other side of the coin, stable countries need to remain so in order that the crisis will not be worsened, a factor which causes our economics, security and social welfare to be highly relevant. It is not a simple problem, and a well-balanced, sustainable solution is yet to be presented. For this reason, we must examine what is controlling our policy-making, in order that we might understand how an effective policy could come about. More to the point, we must recognise that our Australian democracy is dominated by value-based politics.

Value-based political theory recognises that at the heart of controversial issues are value conflicts that needs to be addressed but, ultimately, can never be fully resolved. Political scientist Roger Pielke Jr. illustrates the difference between types of political issues as being either issues of “tornado politics”, or “abortion politics”._[10] He argues that while scientific data informs our response to an oncoming tornado, it goes by unheeded in a debate about abortion. ‘Why? On this issue [abortion] among the group there is not a shared commitment to a specific goal; to the contrary, there are conflicting commitments based on different values’._[11] According to Pielke, no amount of scientific evidence can reconcile different values on issues such as abortion, because it is an issue dominated by emotions, subjective morality and persuasive narratives._[12]This illustrates well the dilemma faced by immigration policy-makers. While some argue that the Government ought to open the borders and allow all asylum seekers in, others wish that the current policies and regulations would be tightened further._[13] This is a prime example of emotive, conflicting values that are unlikely to be swayed by data reports. ‘The question of how values are weighted into decisions… is central to the study of public decision making, because government can be regarded in large part as machinery for resolving value conflicts’._[14] The difficulty for our elected government, tasked with the duty of representing the people, is to consider the various conflicting value arguments in order to form a well-balanced policy that will be effective, but will not cause uproar._[15] In this instance, key value positions that ought to be considered include those behind the current immigration operations and policies, the humanitarian position, and the protectionist view. Further consideration must be given also to areas such as economics and international obligations, as these realities may constrain policy reform significantly. It is vital to analyse and consider these views before proposing new policy ideas, as any policy reform that hopes to be effective must enable a balance of these conflicting value priorities.

II Considerations

Stop The Boats & Other Policies

I turn first to consider the current Australian immigration policy, much of which has been summarised in the slogan ‘Stop The Boats’. As a result of the onslaught of boats arriving on Australian shores, the Abbott government implemented tightened immigration regulations through the creation of Operation Sovereign Borders_[16] in 2013. While the new immigration department and policies have come under much scrutiny and criticism, Operation Sovereign Borders was devised to combat people smuggling and turn back boats in the hope that less innocent people would die at sea._[17] Though Australian authorities are unaware of what happens outside of our Nation’s waters, ‘Stop The Boats’ appears to have worked._[18] Despite the success of this operation, however, immigration issues surrounding Australian detention centres_[19] and visa application processing remain.

The latest available data suggests that Australian detention facilities_[20] are currently holding near 3500 people_[21]as their claims for asylum are being assessed._[22] While this is a significant improvement from mid-2013_[23], the conditions in which these people are kept have been found to be in violation of the UN Convention Against Torture._[24] While the Government has worked to remove children from offshore_[25] detention centres, there have been many issues associated with the treatment of minors._[26]Studies have demonstrated that immigration detention is ‘harmful to the health and mental health of young children and youth’,_[27] and disrupts their social development and educational progress significantly._[28] This is an issue that is yet to be comprehensively addressed by government policy.

When an unlawful non-citizen is taken to immigration detention, their claim for asylum begins being processed. Australia currently awards 13,750 humanitarian visas_[29]to people fitting the criteria and description of a refugee._[30] In addition to this, it was announced in 2016 that the Government was committed to expanding the humanitarian program to include a further 12,000 Syrian and Iraqi refugees, in light of the worsening crisis involving the Islamic State._[31] The processing of claims does not often happen quickly, resulting in people being detained for lengthy periods of time._[32]

Humanitarian Values

The opponents of these current policies are usually defined as “humanitarians”_[33], characterised by their emotional narrative and call for authorities to show compassion to asylum seekers, regardless of how they arrive in Australia. They argue that the Government’s actions are inhumane and in conflict with international obligations set out in various treaties._[34] They believe that, at the very least, Australia should increase their humanitarian program_[35], and are advocates for substantive equality_[36] globally. In the context of asylum seekers, substantive equality calls for Australians to recognise that displaced people have endured great hardship, and are significantly disadvantaged in comparison to Westerners, concluding that they are, therefore, deserving of a high standard of protection and care. Humanitarians are not satisfied with the treatment of asylum seekers in detention centres, and voice their disgust at reports of children being kept in centres offshore. Their call is for Australia to consider our claim of having ‘boundless plains to share’_[37]… yet our refusal to implement a boundless,_[38] or even generous,_[39] immigration program.

Protectionist Values

The argument largely considered to be “right-wing extremist” is that of the protectionist; that in order to preserve the great nation of Australia, strict policies and harsh regulations must be enacted. While people holding this view are often classified as being paranoid or heartless, their opinion does merit some consideration. Given the recent terrorist attacks in Europe,_[40] one cannot simply ignore the nature of current global warfare. While non-government organisations and institutions_[41] have been broadening protection of refugees with a humanitarian focus, government policies have suggested that protectionist values are of a higher priority at a State level._[42] As a result of the threat of terrorism,_[43] the scope of international refugee protection obligations is continually narrowed. Importantly, however, the Government is responsible for the welfare of the citizens already within it’s State, and to risk the safety of such people would only worsen the global crisis. This is particularly relevant throughout the processing of asylum claims, as decision makers must determine whether a potential candidate poses a threat to the people of Australia._[44] Asylum seekers recognise Australia as a safe place; that is why they are seeking to live here. Relaxing immigration policies too much may result in this no longer being the case, thus it must be a factor considered in the policy-making process.

Economic Considerations

Behind every government policy is a complex web of economic analysis. Policies regarding “abortion politics”_[45] issues will inevitably have ‘winners and losers’_[46], thus economists must make ethical judgements in order to determine whether the ‘costs experienced by the losers are justified by the benefits experienced by the winners’._[47] This is known as a cost-benefit analysis._[48] There are complications and flaws with using this model as the sole determinant for immigration policy,_[49]however such analysis should not go by unconsidered. It is valuable, for example, to weigh the financial cost of settling refugees in Australian communities against the economic and social benefits they are able to produce by being active community participants._[50] To this end, data from the Australian Bureau of Statistics has shown that there is a trend among humanitarian visa-holders to begin their own businesses._[51] This is of great benefit to Australian communities and National economy. Equally, however, the number of humanitarian visas awarded annually must not exceed the number of settlement service places available. Settlement services are provided to ‘ensure refugee and humanitarian entrants are able to plan, participate, connect and succeed in their new lives in Australia’,_[52] and are vital part of the humanitarian program. The Australian humanitarian settlement service for refugees is recognised globally as highly successful and generous; to accept more refugees to the program’s detriment would be unwise. This demonstrates how economic analysis provides a comprehensive overview of possible restraints on refugee policy, particularly when contrasted with the recommendations put forward by humanitarian value-holders.

International Obligations

It is important to note that, alongside these numerous considerations, there are international obligations_[53] released by the United Nations that Australia ought_[54] to abide by. Despite the fact that Australia is not legally required to ratify treaties into domestic legislation, such obligations weigh heavily into policy-making decisions and, thus, must not go by unmentioned. The doctrine of non-refoulement_[55] is of particularly significance when it comes to the global refugee crisis, as it requires Australia not to return any person to a place where they will suffer harm._[56] This doctrine has caused some strife for the government, particularly in cases where applications for humanitarian visas have failed, and the applicant has refused to voluntarily return to their country of origin. Many nations, such as Iran, are unwilling to accept involuntary returnees,_[57] leaving such persons in an indefinite state of limbo, held in a detention centre. This is a significant issue that policy ought to address. Furthermore, an international commitment to reducing the number of stateless persons_[58] requires that our policies do not contribute further to the problem._[59] Australia has failed to uphold international obligations on many fronts, and any policy reform must certainly seek to rectify this.

III Recommendations

Finding The Balance

The difficulty of this issue is that all of these conflicting value-based arguments are founded on truth. These arguments, advocated by citizens, institutions, and organisations, are handed to politicians who, in turn, must find a balance and churn out a workable policy. The Government, for example, cannot simply abandon Operation Sovereign Borders, because the people smuggling trade would be reactivated._[60] They cannot, however, continue to ignore international human right obligations by mistreating innocent asylum seekers in offshore detention centres. It then comes down to finding the balance.

A Humanitarian Immigration and Border Protection

In an attempt to balance these value priorities, I put forward the following recommendations regarding Operation Sovereign Borders;

Operation Sovereign Borders remains intact as a military-led naval turn-back operation with the specific goal of continuing to combat the people smuggling trade.
Australia seeks Indonesia’s assistance and cooperation in combatting people smuggling and dissuading asylum seekers from getting on the boats._[61]
The government make clear to the people of Australia their purpose in turning back boats through a strategic and well-planned advertisement campaign, demonstrating the humanistic argument_[62] for the scheme, which is currently perceived to be highly protectionist.
The government increase its humanitarian program from 13,750 refugees annually to 20,000_[63], with an aim to increase the program by 20% (4,000 refugees) each year throughout the refugee crisis._[64]
In committing to an increase in the humanitarian visa program, the Government agree to subject the Department of Foreign Affairs and Trade to scrutiny by non-government consultants for advice in relation to increasing the speed at which visas are processed in order that the department be more effective.
The Government agree to consider the advice of the consultants and commit to expanding the department to deal with the increased demand, ensuring that claims for asylum are processed more quickly and resettlement of the refugees begin.
The government continue in their negotiations with nations such as Iran in regards to the return of illegitimate refugees, in order not to worsen global statelessness, but to ensure also they are fulfilling their non-refoulement obligations.

B Offshore Processing

In relation to offshore processing and detention centres I propose the following;

Offshore detention centres be merged, and all resources be focused on maintaining one centre, rather than multiple facilities._[65]
The government’s aim be to empty offshore detention centres, through the processing of claims and quick action in settling refugees in Australia or in other cooperating countries._[66]
With resources focussed on one single offshore detention centre, the government work to improve the facilities and quality of life for people who, in the event of a slowly processed asylum claim, may remain in the centre for an extended period of time. This includes evaluating and resourcing medical facilities.
In the improvement of offshore detention facilities, the government partner with aid organisations and work to provide educational and vocational activities to benefit asylum seekers,_[67] along with English lessons in order that the settlement process_[68] will more be efficient._[69]
The improvement of detention facilities involve the training of centre staff as to the centre guidelines, specifically in relation to sexual harassment and culturally appropriate behaviours._[70]
The offshore detention of children under 18 years of age, and any other people identified as being particularly vulnerable,_[71] be strictly a measure of last resort._[72]

C Children

In relation specifically to child and youth asylum seekers I recommend;

They be removed from detention centres, and be placed into community detention_[73] with access to support services, such as medical practitioners and psychologists._[74]
Children receive access to education equal in value and quality to the public education received by Australian children, and be required to attend in order to combat the vast numbers of children who are behind in their education when they join Australian communities with their families.
A maximum time period (I recommend 2 weeks for children under 7, 1 month for children aged 8-10, and 2 months for those between the ages of 11-18)_[75] be set as the largest amount of time a child is required to go without being reunited with their family by whatever means possible._[76]
The Australian government begin to consider ways in which they can rehabilitate children under the age of 16 who have been conditioned or exposed to terrorist regimes, without endangering the lives of Australians, in an attempt to counter terrorism in the future and give young children a chance at a better future._[77]

Final Thoughts

While there are clearly a vast number of opinions on this issue in the public sphere, it must be recognised that value conflicts are complex and unlikely to be easily resolved. The humanitarian arguing for the intake of refugees ought not to be thought of as naïve; likewise the protectionist proposing stricter policy should not be considered incapable of compassion. These are value conflicts, and should be recognised as such. Government policy in a democracy will not be effective if it does not take into account these differing opinions. Finally, I recommend that the government instigate a scheme to educate Australians_[78] about the facts of the asylum seeker crisis and the complex nature of immigration policy-making, for as Nelson Mandela said, ‘education is a most powerful weapon you can use to change the world.’

IV Bibliography

A Articles/Books/Reports

Adams, B. 'The Limitations of Muddling Through: Does Anyone in Washington really think anymore?' (1979) Public Administration Review 39(6)

Amnesty International, By Hook or By Crook: Australia’s Abuse of Asylum-Seekers at Sea, 2015

Australian Government, Department of Immigration and Border Protection, Australia’s Response to the Syrian and Iraqi Refugee Crisis, 2015,

Australian Government, Department of Immigration and Border Protection, Historical Search and Rescue Incidents in Operation Sovereign Borders 2013-2014, (2014)<https://www.border.gov.au/OperationSovereignBorders/Documents/historicalsearchandrescueincidentsinoperationsovereignborders-september2013toseptember2014.pdf>

Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in Immigration Detention, November 2014

Commonwealth of Australia, The Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in Immigration Detention (2014)

Elliot E. and Gunasekera, H. The Health and Well-being of Children in Immigration Detention, 18 October 2015, Report to the Australian Human Rights Commission

Hathaway, J. C. International Refugee Law: Humanitarian Standard or Protectionist Ploy?, in Human Rights and the Protection of Refugees Under International Law, 1987

Lindblom, C. E., The Intelligence of Democracy: Decision-making Through Mutual Adjustment (New York: Free Press, 1965).

Moss, P. Review Into Recent Allegation Relating To Conditions and Circumstances at the Regional Process Centres in Nauru: Final Report, 6 February 2015

Pearson, The Principles and Practice of Economics, Section 1.1 ‘The Scope of Economics’, n.d, PDF

<https://www.pearsonhighered.com/acemoglu-econ/assets/pdf/acemoglu-ch01.pdf>

Pielke Jr, R.A., The Honest Broker: Making Sense of Science in Policy and Politics (Cambridge University Press, 2007)

Philips, J. and Spinks, H., Boat Arrivals in Australia since 1976 (Background Note), 11 February 2011

Philips, J. and Spinks, H., Immigration Detention in Australia (Background Note), 20 March 2013

Refugee Council of Australia, Australia’s Offshore Processing Regime, 24 June 2016

Richter, C. ‘Statelessness in Australian Refugee Law: The (Renewed) Case for Complementary Protection’ (2005) 24(2) University of Queensland Law Journal 545

Smith, B. From Wardley to Purvis – How Far Has Australian Anti-Discrimination Law Comes in 30 Years?, August 2007, The University of Sydney Law School Research Paper No.07/55

UNHCR, Protection Refugees & The Role of UNHCR, 2012

UNHCR, Global Trends: Forced Displacements in 2015 (20 June 2016), The United Nations Refugee Agency <http://www.unhcr.org/576408cd7>

B Legislation

Migration Act 1958 (Cth)

C Treaties

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature, ratification and accession 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)

Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 30 August 1961)

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

Convention Relating to The Status of Refugees, opened for signature 28 July 2051, 189 UNTS 137 (entered into force 22 April 1954)

Convention Relating to the Status of Stateless Persons, opened for signature 28 September 1954, 360 UNTS 117 (entered into force 6 June 1960)

Universal Declaration of Human Rights, 10 December 1948, 217 A (III)

D News Articles

Batchelor, T. ‘The New Iron Curtains’, Express UK (online), 6 December 2015,

<http://www.express.co.uk/news/world/624488/Europe-border-fences-migrant-crisis>

Bolt, A. ‘Gang Brawls in Melbourne. Why Did We Import This Danger?’, 13 March 2016, Herald Sun (online) >http://blogs.news.com.au/heraldsun/andrewbolt/index.php/heraldsun/comments/gangs_brawl_in_melbourne_why_did_we_import_this_danger/>

Brennan, F., Costello, T., Manne, R. and Menadue, J. ‘A Solution To Our Refugee Crisis’, 12 August 2016, The Age (online)

<http://www.theage.com.au/comment/a-solution-to-our-refugee-crisis-20160812-gqqvhl.html>

Chowdhry, A. ‘Australian PM’s solution to ending deaths of migrants at sea’, 21 April 2015, The Globe and Mail (online) <http://www.theglobeandmail.com/news/world/australian-pms-solution-to-ending-deaths-of-migrants-at-sea/article24044769/>

Dal Santo, M. ‘Refugee Crisis: Has Germany’s Compassion Moment Proved To Be Naïve?’ (21 January 2016) ABC News (online)

<http://www.abc.net.au/news/2016-01-21/dalsanto-germanys-compassion-moment-is-over/7103576>

Farrell, P., Evershed, N. and Davidson, H. ‘The Nauru Files’, 10 August 2016, The Guardian (online) <https://www.theguardian.com/australia-news/2016/aug/10/the-nauru-files-2000-leaked-reports-reveal-scale-of-abuse-of-children-in-australian-offshore-detention>

Foster, A. ‘Terror Attacks Timeline: From Paris and Brussells to Most Recent Attacks in Europe’, 27 July 2016, Express UK (online)

<http://www.express.co.uk/news/world/693421/Terror-attacks-timeline-France-Brussels-Europe-ISIS-killings-Germany-dates-terrorism>

Safi, M. ‘Refugees are Australia’s Most Entrepreneurial Migrants, Research Says’, 4 September 2015, The Guardian (online)

<https://www.theguardian.com/world/2015/sep/04/refugees-are-australias-most-entrepreneurial-migrants-says-research>

Shad, S. ‘Boundless Plains No Longer To Share’, 1 August 2013, SBS (online) <http://www.sbs.com.au/news/article/2013/08/01/comment-boundless-plains-no-longer-share>

Tomlinson, S. ‘World of walls: How 65 Countries Have Erected Fences On Their Borders’, Daily Mail (online), 22 August 2015

<http://www.dailymail.co.uk/news/article-3205724/How-65-countries-erected-security-walls-borders.html>

Whitbourn, M. ‘Sonia Kruger Calls on Australia to Stop Taking Muslim Immigrants’, 18 July 2016 The Sydney Morning Herald (online)

<http://www.smh.com.au/entertainment/tv-and-radio/sonia-kruger-calls-on-australia-to-stop-taking-muslim-immigrants-20160718-gq7uul.html>

E Other

Amnesty International, 2015 Has Seen The Worst Refugee Crisis Since WWII (28 December 2015) Amnesty International: Human Rights Now Blog

<http://blog.amnestyusa.org/refugees/2015-has-seen-the-worst-refugee-crisis-since-wwii/>

Asylum Seeker Resource Centre, Detention and Refugee Statistics (July 2016) Asylum Seeker Resource Centre

<https://www.asrc.org.au/resources/statistics/detention-and-refugee-statistics/>

Asylum Seeker Resource Centre, World Statistics, 2014, ASRC <https://www.asrc.org.au/resources/statistics/world-statistics/#1409812513717-3-5>

Australian Bureau of Statistics

<www.abs.gov.au>

Australian Government, Department of Immigration and Border Protection, Fact Sheet – Australia’s Refugee and Humanitarian Program, 2015,

<https://www.border.gov.au/about/corporate/information/fact-sheets/60refugee>

Australian Government, Department of Immigration and Border Security, Operation Sovereign Borders, (2016)

<https://www.border.gov.au/about/operation-sovereign-borders>

Human Rights Law Centre, ‘UN Finds Australia’s Treatment of Asylum Seekers to be in Violation of The Convention Against Torture’, 9 March 2015, Human Rights Law Centre News <http://hrlc.org.au/un-finds-australias-treatment-of-asylum-seekers-violates-the-convention-against-torture/>

Mir, M. The Real Costs of Asylum Seekers: A Critical Analysis of the Refugee Policies from the Perspectives of Cost-Benefit Analysis, Powerpoint Slides 2016, University of Canberra

Nagdy, M. and Roser, M. ‘Terrorism’, 2016, OurWorldInData (online) <https://ourworldindata.org/terrorism/>

Refugee Action Committee Canberra, ‘Deportation’, 2004, Refugee Action Committee

<http://refugeeaction.org/information/deportations/>

Refugee Council of Australia, Australia’s Refugee and Humanitarian Program 2014-2015, February 2014, RCA

<https://www.refugeecouncil.org.au/r/isub/2014-15_Intake%20sub.pdf>

Refugee Rights Action Network WA, The Mental Health Effects of Immigration Detention Centres, n.d, Refugee Rights Action Network WA

<http://rran.org/learn-more/detention/>

Schwarz, B. ‘Nothing To Go Back To’ (26 May 2016) Human Rights Watch <https://www.hrw.org/news/2016/05/26/nothing-go-back-kenyas-vast-refugee-camp>

UNHCR, ‘Refugees and Asylum Seekers in Kenya’ (February 2016) The United Nations Refugee Agency

<http://reliefweb.int/sites/reliefweb.int/files/resources/Infographics-RefugeesinKenya_v2-February2016.pdf>

Endnotes

_{[1] Those included in the category of ‘forced migrants’ include internally displaced peoples (‘IDPs’), asylum seekers, and refugees as classified by the United Nations Refugee Agency (‘UNHCR’), defined in Article 1 of the Convention Relating To The Status of Refugees.}

_{[2] Amnesty International, 2015 Has Seen The Worst Refugee Crisis Since WWII (28 December 2015) Amnesty International: Human Rights Now Blog <http://blog.amnestyusa.org/refugees/2015-has-seen-the-worst-refugee-crisis-since-wwii/>.}

_{[3] UNHCR, Global Trends: Forced Displacements in 2015 (20 June 2016), The United Nations Refugee Agency <http://www.unhcr.org/576408cd7>.}

_{[4] Ibid. This number equates to around 1 displaced person in every 122 people globally.}

_{[5] Approximately 51%, see UNHCR, Global Trends: Forced Displacements in 2015 (20 June 2016), The United Nations Refugee Agency <http://www.unhcr.org/576408cd7>.}

_{[6] Ibid.}

_{[7] Tom Batchelor, ‘The New Iron Curtains’, Express UK (online), 6 December 2015, <http://www.express.co.uk/news/world/624488/Europe-border-fences-migrant-crisis>; Simon Tomlinson, ‘World of walls: How 65 Countries Have Erected Fences On Their Borders’, Daily Mail (online), 22 August 2015 < http://www.dailymail.co.uk/news/article-3205724/How-65-countries-erected-security-walls-borders.html>.}

_{[8] Matthew Dal Santo, ‘Refugee Crisis: Has Germany’s Compassion Moment Proved To Be Naïve?’ (21 January 2016) ABC News (online) <http://www.abc.net.au/news/2016-01-21/dalsanto-germanys-compassion-moment-is-over/7103576>.}

_{[9] UNHCR, ‘Refugees and Asylum Seekers in Kenya’ (February 2016) The United Nations Refugee Agency <http://reliefweb.int/sites/reliefweb.int/files/resources/Infographics-RefugeesinKenya_v2-February2016.pdf>; Birgit Schwarz, ‘Nothing To Go Back To’ (26 May 2016) Human Rights Watch <https://www.hrw.org/news/2016/05/26/nothing-go-back-kenyas-vast-refugee-camp>.}

_{[10] Roger A. Pielke Jr., The Honest Broker: Making Sense of Science in Policy and Politics (Cambridge University Press, 2007).}

_{[11] Ibid, 43.}

_{[12] Ibid, 43-44.}

_{[13] A prime example of the latter was seen when TV personality Sonia Kruger claimed that, as a mother, she would feel safer if Australia closed it’s immigration program to Muslims; Michaela Whitbourn, ‘Sonia Kruger Calls on Australia to Stop Taking Muslim Immigrants’, 18 July 2016 The Sydney Morning Herald (online) <http://www.smh.com.au/entertainment/tv-and-radio/sonia-kruger-calls-on-australia-to-stop-taking-muslim-immigrants-20160718-gq7uul.html>.}

_{[14] Charles E. Lindblom, The Intelligence of Democracy: Decision-making Through Mutual Adjustment (New York: Free Press, 1965), 227.}

_{[15] Bruce Adams has said (of American politics) “The question before them is not: ‘what is the best policy for the nation’, but rather, ‘what is the best policy I can come up with by Tuesday that Congress would take seriously?’.”; Bruce Adams 'The Limitations of Muddling Through: Does Anyone in Washington really think anymore?' (1979) Public Administration Review 39(6), 549.}

_{[16] Operation Sovereign Borders is a military-led, border security operation… established to ensure a whole-of-government effort to combat people smuggling and protect Australia’s borders; Department of Immigration and Border Security, Operation Sovereign Borders, (2016) Australian Government <https://www.border.gov.au/about/operation-sovereign-borders>.}

_{[17] Former Australian Prime Minister Tony Abbott claimed that the “only way to stop the deaths [at sea]” was “in fact to stop the boats”; Affan Chowdhry, ‘Australian PM’s solution to ending deaths of migrants at sea’, 21 April 2015, The Globe and Mail (online) <http://www.theglobeandmail.com/news/world/australian-pms-solution-to-ending-deaths-of-migrants-at-sea/article24044769/>.}

_{[18] For details of the Operations, see the Department of Immigration and Border Protection, Historical Search and Rescue Incidents in Operation Sovereign Borders 2013-2014, (2014) Australian Government <https://www.border.gov.au/OperationSovereignBorders/Documents/historicalsearchandrescueincidentsinoperationsovereignborders-september2013toseptember2014.pdf>.}

_{[19] See Philip Moss, Review Into Recent Allegation Relating To Conditions and Circumstances at the Regional Process Centres in Nauru: Final Report, 6 February 2015.}

_{[20] This includes those held in detention centres on mainland Australia (1,577), offshore detention centres (1,296) and in community detention (623).}

_{[21] Under the Migration Act 1958 (Cth) all non-citizens who arrive in Australia without a valid visa must be detained. This is known as mandatory immigration detention.}

_{[22] Asylum Seeker Resource Centre, Detention and Refugee Statistics (July 2016) Asylum Seeker Resource Centre <https://www.asrc.org.au/resources/statistics/detention-and-refugee-statistics/>.}

_{[23] Ibid; in June of 2013, 12,974 people were recorded as being in Australian detention centres.}

_{[24] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature, ratification and accession 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85, entered into force 26 June 1987; Human Rights Law Centre, ‘UN Finds Australia’s Treatment of Asylum Seekers to be in Violation of The Convention Against Torture’, 9 March 2015, Human Rights Law Centre News <http://hrlc.org.au/un-finds-australias-treatment-of-asylum-seekers-violates-the-convention-against-torture/>.}

_{[25] Offshore processing is referred to as “regional processing” by the Australian Government; Refugee Council of Australia, Australia’s Offshore Processing Regime, 24 June 2016.}

_{[26] Paul Farrell, Nick Evershed and Helen Davidson, ‘The Nauru Files’, 10 August 2016, The Guardian (online) <https://www.theguardian.com/australia-news/2016/aug/10/the-nauru-files-2000-leaked-reports-reveal-scale-of-abuse-of-children-in-australian-offshore-detention>.}

_{[27] Professor Elizabeth Elliot and Dr Hasantha Gunasekera, The Health and Well-being of Children in Immigration Detention, 18 October 2015, Report to the Australian Human Rights Commission, 21.}

_{[28] Commonwealth, The Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in Immigration Detention (2014).}

_{[29] Department of Immigration and Border Protection, Fact Sheet – Australia’s Refugee and Humanitarian Program, 2015, Australian Government <https://www.border.gov.au/about/corporate/information/fact-sheets/60refugee>.}

_{[30] A refugee, under Article 1 of the 1951 Convention Relating to The Status of Refugees, ratified in Australian legislation under s5H of the Migration Act 1958 (Cth), is defined as being someone who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particularly social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country”.}

_{[31] Department of Immigration and Border Protection, Australia’s Response to the Syrian and Iraqi Refugee Crisis, 2015, Australian Government.}

_{[32] Many reports of men and women detained for extensive periods of time describe that they attempt to commit suicide and turn to self-harm, a clear indicator that Australia’s mandatory detention policy needs to be reassessed; Refugee Rights Action Network WA, The Mental Health Effects of Immigration Detention Centres, n.d, Refugee Rights Action Network WA <http://rran.org/learn-more/detention/>.}

_{[33] Humanitarian is defined as someone concerned with, or seeking to promote, human welfare. This often involves aid work aimed at reducing suffering and improving the lives of those who have undergone hardship.}

_{[34] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature, ratification and accession 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85, entered into force 26 June 1987; Convention on the Rights of the Child, opened for signature 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, entered into force 2 September 1990.}

_{[35] Beyond the current 13,750 humanitarian visa cap; above n 28.}

_{[36] While the Aristotelian theory of real equality means all people should be treated equally, regardless of their differences, the theory of substantive equality seeks to recognize differences and accommodate them, creating equal outcomes and opportunities; Belinda Smith, From Wardley to Purvis – How Far Has Australian Anti-Discrimination Law Comes in 30 Years?, August 2007, The University of Sydney Law School Research Paper No.07/55, 4.}

_{[37] A line from the second verse of Australia’s National Anthem.}

_{[38] Saman Shad, ‘Boundless Plains No Longer To Share’, 1 August 2013, SBS (online) <http://www.sbs.com.au/news/article/2013/08/01/comment-boundless-plains-no-longer-share>.}

_{[39] Australia hosts a comparatively small number of refugees under the humanitarian visa program, regardless of whether the statistics are based on population size, or GDP per capita. For a detailed report and comparison charts, see the Asylum Seeker Resource Centre, World Statistics, 2014, ASRC <https://www.asrc.org.au/resources/statistics/world-statistics/#1409812513717-3-5>.}

_{[40] See, for example; Alice Foster, ‘Terror Attacks Timeline: From Paris and Brussells to Most Recent Attacks in Europe’, 27 July 2016, Express UK (online) <http://www.express.co.uk/news/world/693421/Terror-attacks-timeline-France-Brussels-Europe-ISIS-killings-Germany-dates-terrorism>.}

_{[41] Such as the Red Cross and UNHCR.}

_{[42] James C. Hathaway, International Refugee Law: Humanitarian Standard or Protectionist Ploy?, in Human Rights and the Protection of Refugees Under International Law, 1987.}

_{[43] Though there is no ‘official’ definition of terrorism, it is generally understood to be “the use or threat of violence to further a political cause”; Mohamed Nagdy and Max Roser,‘Terrorism’, 2016, OurWorldInData (online) <https://ourworldindata.org/terrorism/>.}

_{[44] Where this leaves child soldiers, conditioned in the ways of terrorism and potentially able to be rehabilitated given the right programs and support, is unclear. Australian Government officials would likely argue that the humanitarian program is for people who’s lives are in danger and who are deserving of a better life in Australia – it is less concerned with the rehabilitation of terrorists.}

_{[45] Roger A. Pielke Jr., The Honest Broker: Making Sense of Science in Policy and Politics (Cambridge University Press, 2007).}

_{[46] Where ‘winners’ are the people happy with the policy decision and ‘losers’ are those who did not get their way.}

_{[47] Pearson, The Principles and Practice of Economics, Section 1.1 ‘The Scope of Economics’, n.d, PDF < https://www.pearsonhighered.com/acemoglu-econ/assets/pdf/acemoglu-ch01.pdf>.}

_{[48] CBA is a procedure for comparing alternative courses of actions by reference to the net social benefits they produce; Professor Monir Mir, The Real Costs of Asylum Seekers: A Critical Analysis of the Refugee Policies from the Perspectives of Cost-Benefit Analysis, Powerpoint Slides 2016, University of Canberra.}

_{[49] For example, such an analysis requires economists to put a monetary value on life.}

_{[50] This is not to suggest that the settlement of refugees in Australia is always easy or beneficial for local communities; indeed there have been many issues surrounding Sudanese refugees in Melbourne (see Andrew Bolt, ‘Gang Brawls in Melbourne. Why Did We Import This Danger?’, 13 March 2016, Herald Sun (online) <http://blogs.news.com.au/heraldsun/andrewbolt/index.php/heraldsun/comments/gangs_brawl_in_melbourne_why_did_we_import_this_danger/>).}

_{[51] Migrants who had arrived as refugees reported most of their income came from their family’s own unincorporated business (2010-2011 statistics); Australian Bureau of Statistics <www.abs.gov.au>; Michael Safi, ‘Refugees are Australia’s Most Entrepreneurial Migrants, Research Says’, 4 September 2015, The Guardian (online) <https://www.theguardian.com/world/2015/sep/04/refugees-are-australias-most-entrepreneurial-migrants-says-research>.}

_{[52] Refugee Council of Australia, Australia’s Refugee and Humanitarian Program 2014-2015, February 2014, RCA <https://www.refugeecouncil.org.au/r/isub/2014-15_Intake%20sub.pdf>.}

_{[53] I have mentioned already that there are various articles in both the Convention on Torture and the Convention on the Rights of the Child that Australia must consider, particularly in relation to mandatory detention laws and the conditions in which people are detained for extensive periods; see above n 34.}

_{[54] Australia law does not require the ratification of treaties it is party to in Commonwealth legislation.}

_{[55] Article 33(1) of the 1951 United Nations Convention Relating to the Status of Refugees, provides that:}

_{“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”}

_{[56] Ibid.}

_{[57] Negotiations between Australia’s Foreign Minister, Julie Bishop, and Iranian officials are currently being undertaken in relation to this issue; Refugee Action Committee Canberra, ‘Deportation’, 2004, Refugee Action Committee <http://refugeeaction.org/information/deportations/>.}

_{[58] See UN General Assembly, Convention Relating to the Status of Stateless Persons, opened for signature 28 September 1954, United Nations, entered into force 6 June 1960, Treaty Series, vol. 360, p. 117; UN General Assembly, Convention on the Reduction of Statelessness, opened for signature 30 August 1961, United Nations, entered into force 30 August 1961, Treaty Series, vol. 989, p. 175; UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III).}

_{[59] Christopher Richter, ‘Statelessness in Australian Refugee Law: The (Renewed) Case for Complementary Protection’ (2005) 24(2) University of Queensland Law Journal 545.}

_{[60] Though I have not discussed at length the people smuggling trade, the threat of being turned back by Australian military authorities and the strategic international promotion of the policy has worked as a significant incentive to detract asylum seekers from making the treacherous journey across the sea to Australia.}

_{[61] In a recent article, Frank Brennan, Tim Costello, Robert Manne, and John Menadue, put forward a joint proposal similar to this, arguing that historically (during the Howard Government’s years of 2002-2007), this policy was effective – indeed it proved so effective that the naval operation was able to be significantly reduced, and virtually no boats made their way to Australian shores. Returning to a policy that has proven effective in the past may well be a good idea in the current circumstances. See Frank Brennan, Tim Costello, Robert Manne, and John Menadue, ‘A Solution To Our Refugee Crisis’, 12 August 2016, The Age (online) <http://www.theage.com.au/comment/a-solution-to-our-refugee-crisis-20160812-gqqvhl.html>.}

_{[62] This would include statistics relating to the number of deaths at sea before and after the creation of Operation Sovereign Borders (of which many are unaware due to the government’s media freeze on this issue).}

_{[63] This being in addition to the government’s commitment to accept 12,000 Syrian and Iraqi refugees throughout 2016.}

_{[64] As I am unaware of the specific economic and budgeted figures related to the humanitarian program, I can only suggest this as a figure – obviously subject to greater economic analysis. I do, however, believe that the Government ought to consider the refugee crisis to be something worthy of our Nation’s finances.}

_{[65] At the time of writing, the Australian Government has announced their intention to close the Manus Island detention centre. This, I believe, is a step in the right direction (though they are yet to provide much detail as to what the effects of this closure will be).}

_{[66] I refer again to the policy proposal put forward by Brennan, Costello, Manne and Menadue – Australia (under Howard) has done this before, why can it not again?}

_{[67] For example, helping men by providing tools and equipment for a trade, such as woodworking, and equipping women with skills to sew and create art projects.}

_{[68] If their claim for asylum was to be accepted by Australia.}

_{[69] Given the number of refugees who go on to own small businesses within Australia, this process will undoubtedly also help to quickly get their businesses off the ground, which is of economic benefit to the government.}

_{[70] This, again, will require cooperation with the Nauruan government.}

_{[71] For example, those with a disability, pregnant women, or persons who are particularly ill.}

_{[72] This is provided by the Convention on the Rights of the Child.}

_{[73] Only as a last resort; ideally they would be given support and allowed into an Australian community with a bridging visa.}

_{[74] This should particularly be a focus of the government given the reports about the depletion of the mental health of young children and youth who have spent time in detention centres.}

_{[75] The government ought to seek advice from a mental health professional in regards to a specific time period for this policy.}

_{[76] I suggest this be the case even if it requires Australia to fly children back to an offshore detention centre for a day to see their parents. Unless exceptional circumstances apply (such as the child travelling and seeking asylum entirely independently), children should not be withheld from seeing their loved ones.}

_{[77] Perhaps this would involve using the facilities on Manus Island and setting up camps to maximize human relationship-building, alongside schools to educate children. As I am not an expert at counter-terrorism, the government ought to seek the advice of academics in this area.}

_{[78] Particularly those young men and women still at school.}

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