In Australia, the quickening securitisation of unauthorised maritime migration and the de facto criminalisation of asylum seekers coincided with the events of 9/11. Australian asylum policy was securitised via interdiction at sea and the containment and slow processing of asylum claims offshore in third countries. These law and policy developments were, partly, justified on national security grounds (qua terrorism fears). However, Australia’s approach towards refugee protection seekers, from August 2001 to date, has largely been underpinned by a political drive to combat crime (qua people smuggling) and, relatedly, to exclude certain asylum seekers from refugee protection in Australia because of their ‘irregular’ (or, clandestine) mode of arrival.
In addition to employing immigration laws with significant border security-based exclusions, it is worth noting that the Australian government has enacted more counterterrorism statutes than any other Western democracy. This ‘hyper-legislative’ approach has been assisted by the lack of a national bill (or charter) of human rights, either in the federal Constitution or enshrined in legislation (Billings and Ananian-Welsh: 2020).
The Australian government’s agenda of progressive border securitization was, initially, sustained by counter-terrorism rhetoric in 2001, however, that rhetoric has waned subsequently. The focus of concern, I argue, has shifted away from the potential terrorist threat posed by asylum seekers towards deterring unauthorised maritime migration. Though the nexus between terrorism and asylum lacks an empirical basis in Australia, certain laws, policies and practices premised on counterterrorism in 2001 endure to this day – offshore processing of asylum seekers arriving by sea, notably. I argue that Australia’s deterrence model has had a negative ‘signalling effect’ on some European states’ contemporary asylum policies and practice.
Escalating exclusionary laws and practices
How then has migration regulation (and asylum seeker policy, in particular) developed over the past 20 years in Australia and the wider Asia-Pacific region?
From October 2001 onward, military interdictions of asylum seekers at sea (firstly conducted until November 2003) coupled with offshore regional processing (on Nauru and Manus Island, Papua New Guinea (PNG)) were critical aspects of the Howard Government’s approach to ‘irregular’ maritime migration. This policy and practice was part of the so-called ‘Pacific Solution’ and the suite of deterrence policies served to greatly diminish boat arrivals to negligible levels by 2005 to 2006 (Philips: 2017). The Howard Government partly justified tightened border securitisation and the de facto criminalisation of asylum seekers by constructing them as potential terrorists. Within two days of the 9/11 attacks Australia’s Defence Minister, Peter Reith, had linked the unauthorised arrival of asylum seekers by sea with national security, warning that boats “can be a pipeline for terrorists to come in and use your country as a staging post for terrorist activities.” This theme continued during the course of the 2001 federal election campaign, and it had substantial political traction and capital coming in the wake of the infamous MV Tampa affair (August 2001) (on which see, Sangeetha Pillai’s blog on the 9/11 debate).
After a five-year hiatus (from 2007 to 2012) under a centre-left government initially intent on restoring integrity in migration management and displaying compassion towards refugees, regional processing of asylum seekers in designated third countries (Nauru and PNG, once more) was resuscitated in August 2012. The revival of interdiction at sea practices under a newly elected right-wing party ensued, in late 2013, with ‘push-backs’ to transit countries (Indonesia) and ‘take-backs’ (to Sri Lanka and Vietnam). This backward-looking shift in policy (dubbed Operation Sovereign Borders) occurred due to rising numbers of unauthorised ‘boat arrivals’, peaking at 300 boats carrying 20,587 people in 2013 (Philips: 2017).
Operation Sovereign Borders was largely, though not exclusively, justified on the basis of addressing the lucrative activity of people smuggling (by ‘breaking the people smugglers’ business model’) and rested upon humanitarian grounds too (the mantra of ‘saving lives at sea’). Removing the ‘product’ people smugglers sell to asylum seekers, is achieved by a combination of interdiction at sea and turn-backs, backed up by offshore (third country) processing and a ban on resettlement in Australia (discussed below). The spectre of boats transporting a ‘pipeline of terrorists’ barely featured (as it had in 2001) in the political discourse sustaining the resuscitation of the ‘Pacific Solution’ in 2012, nor did it attend the launch of Operation Sovereign Borders, in late 2013. Even though one of its architects (Jim Molan – a retired major general) would, several years later, encourage Europe to follow Australia’s lead on border control because it would, he suggested, lower the risk of a terrorist attack (Sheftalovich: 2017).
Connecting terrorism with asylum
While political and media discourse since 2009 has, increasingly, associated asylum seekers arriving by boat with organised transnational crime, the alleged terrorist threat posed by refugees and asylum seekers (especially Muslims) has continued to be peddled by some politicians. For example, in 2016 a leaked draft Cabinet document pointed to perceived links between terrorist attacks in Australia and the official annual overseas humanitarian/refugee resettlement intake, as a justification for stricter controls over residency and citizenship, in order to mitigate supposed threats posed by refugees admitted through the regular resettlement program (Lipson: 2016). Additionally, (then) Minister for Immigration, Peter Dutton, intimated that asylum seekers who arrived in Australia by boat, without a valid visa or identity documentation, should be viewed with suspicion – as a national security risk. Specifically, he said:
„Secure borders, as Europe has learned at great cost, are an important part of national security. It is a concerning fact that a large number of IMAs [irregular maritime arrivals] who could afford to pay the people smugglers to bring them illegally to Australia arrived here without any identification. They needed identity documentation to fly into Indonesia, but disposed of it on the sea journey to Australia. Why?“ (cited in Billings and Ananian-Welsh: 2020).
Statements of this sort, insinuating that asylum seekers are potential terrorists, have nourished popular antipathy towards those seeking refugee status and legitimised the harsh border protection laws sketched out above. Now, almost two decades after 9/11, we are in a better position to assess the connection between asylum seekers, refugees and terrorism in Australia. It cannot be claimed with certitude that no refugees who have arrived in Australia ‘irregularly’ by boat have links to terrorism. However, counter-terrorism scholars have observed that there is no “obvious, compelling evidence” that any terrorist acts have been planned or commissioned by refugees who arrived by boat (Jones and McGarrity: 2015).
Indeed, Duncan Lewis, head of Australia’s national intelligence agency from 2014 to 2019 and now professor at the Australian National University, maintained that he had “absolutely no evidence to suggest that there is a connection between refugees and terrorism” when questioned by a parliamentary committee in 2017. He further ventured: “We have had tens of thousands of refugees come to Australia over the last decade or so and very few of them have become subjects of interest for ASIO [the Australian Security Intelligence Association] and have been involved in terrorist planning” (Kolziol: 2017).
Lewis’ conclusions about the lack of a connection between asylum seekers/refugees and terrorism in Australia carry substantial weight. Conversely, some may argue that the evidence connecting refugees to terrorism does not exist because Australia’s migration laws and policies have been successful in excluding potential terrorists, including those seeking to arrive ‘irregularly’. Nevertheless, the lack of demonstrable connection between a person’s asylum seeker/refugee status and their risk to Australian security challenges the resilient counter-terrorism justification for border securitization. Essentially, counterterrorism emerges as an unconvincing justification for stringent extra-territorial border controls, or residency and citizenship tests (Billings and Ananian-Welsh: 2020).
Border/national security laws and systemic rights violations
From 19 July 2013, asylum seekers transferred to third countries, pursuant to the resuscitated policy of offshore processing, were prohibited from seeking refugee status and (in a new policy twist) forever barred from resettlement in Australia. Essentially, Australia repudiated legal responsibility for any asylum seekers arriving by boat, instead forcibly transferring them to PNG and Nauru for refugee processing and resettlement elsewhere.
Australia’s attempt to divest itself of legal responsibility for asylum seekers and refugees sent offshore has attracted censure from several quarters. For example, the UN Special Rapporteur on Torture affirmed, in 2017, that the outsourcing of refugee protection obligations to third countries, in conjunction with the privatization of service delivery, did not permit Australia to relinquish her international law duties and evade legal responsibility for the harms caused to asylum seekers. Furthermore, in 2017 the UN Special Rapporteur for Migrants Rights emphasized that Australia was legally responsible for those under its effective control and ultimately accountable for any human rights violations that occur in the regional processing centres. In summary, Australia’s legal responsibility for the physical and psychological damage suffered by the asylum seekers and refugees was clear and undeniable.
Importantly, in the case of Namah v Pato, PNG’s Supreme Court decided that the treatment of asylum seekers at the Manus Island regional processing centre was unconstitutional and beyond legislative power. Mandatory detention was not for the permissible purpose of preventing unlawful entry of a person or effecting the expulsion, extradition or lawful removal of a person. Rather, it was used to facilitate the processing of asylum claims; therefore, the asylum seekers’ freedom of movement was curtailed unlawfully. The Supreme Court held that the asylum seekers’ treatment also breached international law. The closure of the processing centre slowly followed on 31 October 2017, intensifying the need for Australia to find third-country resettlement options for the former detainees it had forcibly transferred to PNG.
Relatedly, in late 2016 the ‘American solution’ was publicized as a way to end the prolonged period of uncertainty for refugees subjected to regional processing on Nauru and Manus Island (PNG). The Obama administration agreed to consider the resettlement of 1,250 refugees contained on Nauru and in PNG, including provision of settlement service support. In turn, quid pro quo, Australia pledged to resettle Central American refugees held in Costa Rica. Although incoming President Trump detested the deal brokered with Australia, because the US was, in his view, accepting ‘bad’ refugees who Australia had ‘imprisoned’ (ABC News: 2018), the arrangements were honoured and the first group of refugees were accepted for resettlement in the U.S. fiscal year ending 30 September 2017. Interview processes were slow, and the finalization of cases was delayed due to the COVID-19 pandemic. Matters were still ongoing in late 2020 at the time of the U.S. presidential election. By July 2021, 977 refugees had been resettled in the USA.
Now, nine years after the re-establishment of offshore processing, a cohort of 231 people remain in limbo (either in Nauru or Port Moresby, PNG) as the U.S. resettlement programme slowly draws to a close. Additionally, over 1,000 people (mostly ‘recognized’ refugees) are living in Australia temporarily, as ‘transitory persons’, having been evacuated from Nauru or PNG on emergency medical grounds. They have all experienced extreme hardship under conditions of restraint and containment for years. To be clear, Australia’s regional processing policy has resulted in “systemic human rights violations” (UN Special Rapporteur for Migrants: 2017).
Policy transplants: the demise of asylum in Europe?
European political leaders habitual interest in processing asylum seekers, rescued at sea, outside of Europe, must be viewed in the light of the foregoing analysis and Australia’s troubled experiences of offshore processing. There is an extraordinary human and financial cost associated with this policy and practice. Moreover, whether an adapted version of the Australian ‘model’ would be consistent, in principle and practice, with EU law and the European Court of Human Rights’ jurisprudence on refoulement, is doubtful. In addition to those legal constraints (that have no direct application in Australia), there are political hurdles too. In order to employ offshore processing, EU states would need the agreement of those states expected to serve as hosts, and establish and fund administrative institutions with fair and effective procedures, for refugee status determination and oversight (Brandt and Higgins: 2018).
In June 2021, Denmark introduced a contentious new law enabling authorities to forcibly transfer asylum seekers outside of Europe to an (as yet) undetermined destination country (possibly Rwanda) for asylum processing, accommodation and, potentially, protection. The policy and legal framework resembles Australia’s regulatory approach to offshore processing. The political objective is to secure borders by deterring irregular migration, to achieve a goal of ‘zero asylum seekers’ according to the Prime Minister. Moreover, in Denmark (as in Australia, in 2001 and 2013) there is, apparently, an electoral motive: deterring asylum seekers is a vote winner. The hard-line asylum policy seemingly contributed to electoral success for the centre-left Social Democratic Party in June 2019.
Whether Denmark’s new laws (and potential practices with/in a third country) will comply with EU law and human rights law, with respect to access to a fair and effective asylum procedure and protection, is difficult to assess at this time, given the lack of administrative detail. If Denmark’s Alien’s Act mandates compliance with Denmark’s international refugee and human rights law obligations (in principle and in practice) as a condition precedent of prospective third country designations and administrative arrangements, the courts will, unquestionably, be invited to carefully scrutinise the lawfulness of forcibly transferring asylum seekers to non-EU countries.
It appears that political disquiet about the (comparatively modest) scale of irregular migration to Denmark, since 2015, entwined with broader concerns around the integration of migrants from Muslim countries the Middle East and Africa, rather than fears about potential terrorists, has animated contemporary deterrence policies and migration law reforms. Indeed, Denmark (like Australia) exhibits a preference for accepting a limited quota of refugees, through the UN, in an orderly fashion from overseas.
Ad hoc national asylum and border security initiatives, such as those pursued by Australia and Denmark (also note analogous British proposals to deter irregular Channel crossings from France), serve to undermine international refugee law and global solidarity around refugee protection. Furthermore, this gives encouragement to other states to perform likewise and opt out of efforts to find joint and sustainable solutions. A proliferation of deterrence policies aimed at excluding all asylum seekers moving ‘irregularly’ and externalising migration controls, could well spell the demise of asylum in the Global North. This has already occurred for ‘boat arrivals’ seeking protection in Australia. Moreover, deterrence and externalisation of border controls sends the wrong signal to developing states in the Global South, many of whom host a far greater number of the world’s refugees than states in the Global North.