Michael Timmins: Australia's moral and legal failure on refugees

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Iranian asylum seekers who were caught in Indonesian waters while sailing to Australia sit on a boat at Benoa port in Bali, Indonesia. AP file photo, 2013 / Firdia Lisnawati
Iranian asylum seekers who were caught in Indonesian waters while sailing to Australia sit on a boat at Benoa port in Bali, Indonesia. AP file photo, 2013 / Firdia Lisnawati

We have a special relationship with Australia. Our close bond geographically and historically leaves us intimately tied. We love travelling to each other's countries and grant each other privileged immigration status. Our friendly rivalry on the sports field and beyond illustrates more what we have in common than any differences.

But there is one area where that difference is clearly marked. Australia's policy towards individuals seeking asylum shows both a moral and legal failure on behalf of its major political parties.

These failures present an opportunity for New Zealand to show leadership in the region. We have the skills and the expertise to play a critical and positive role.

In brief, Australia outsources its international human rights obligations and commitments by sending those asylum seekers arriving by boat to Papua New Guinea and Nauru for processing.

In Papua New Guinea, the asylum seekers are detained on Manus Island.

The conditions of detention have been criticised by human rights groups and the United Nations High Commissioner for Refugees (UNHCR). In 2013, UNHCR reported that on Manus Island the facilities "lack some of the basic conditions and standards required".

Clearly, these conditions are causing enduring negative mental health impacts on the detainees. In the last two weeks there have been two separate instances of detained asylum seekers setting themselves alight in a form of protest. One of those protesters has died, and the other, I understand, remains in intensive care.

Just stop for a moment. Can you imagine the decision to set yourself on fire? How do you make that decision? If you stop and consider it - to put yourself in that individual's position - the act is almost unimaginable.

It can only be seen as a call from those individuals to see their despair. In front of us is a pure injustice endured by those fleeing persecution who are then subjected to this further affront to human dignity. This is implemented through the deliberate policy choices of the Australian government and the level of desperation speaks directly to its moral failure.

But, late last month, the Papua New Guinea Supreme Court confirmed the legal failure of Australia's policy as well.

The Papua New Guinea Supreme Court determined that the detention of the asylum seekers was contrary to their rights to personal liberty and freedom of movement. The Supreme Court held that their detention could not be reasonably justified in a democratic society.

The immediate response from the Australian government has been to signal that while it will abide by the Court's ruling, the policy of off-shore processing and detention will remain.

In truth, this ignores why most people attempt to access Australia by boat.

It is almost impossible for individuals from refugee-producing countries to gain visas to Australia or New Zealand. Witness the recent event in New Zealand of an Iranian film maker initially being denied a visa on the basis that she might seek to apply for asylum while here. We simply deny the right to seek and enjoy asylum pre-emptively.

This forces those fleeing persecution to travel through South East Asia where they can obtain a tourist visa. But, once that initial two week (for example) tourist visa expires, these individuals are without legal status in Thailand, Malaysia or Indonesia.

They can apply to UNHCR for refugee status, but these applications take years to process.

During that time, the refugees are illegal, subject to being detained in those countries in terrible conditions, are unable to legally work, are unable to easily access medical care, and are unable to access education. The existence is bleak.

This is the biggest issue that refugees in the region face. The lack of legal status affects everything. Removing this barrier would remove a significant motivation refugees have in attempting to access Australia by boat.

But, Australia has lost any moral authority within the region to properly resolve this issue. It cannot, with credibility, approach countries in the region to discuss measures to mitigate against the harm to those fleeing persecution.

Australia's loss presents an opportunity for New Zealand. If we choose to, we could have an incredibly positive and constructive leadership role in the region to improve human rights standards.

Unlike Australia, we have the moral authority to work with our partners in the region to look at planned and safe voluntary repatriation (eg, with Burma), targeted resettlement, alternatives to detention, and moving towards legal status for refugees and asylum seekers (temporary or otherwise).

Any one of these steps would be a significant achievement. This can be done in a way that best takes account of the legitimate interests of states in the region as well as the needs of the refugees.

Such a leadership role would build on our current leadership at the UN Security Council. We can back our skilled public servants to deliver. Showing leadership on this issue, and working with states in the region, will lead to stronger relationships across the board. That has to be in New Zealand's wider public interest.

We can become the go-to country in this part of the world to facilitate resolving such difficult, complex issues. We have the skills. The only question is whether we are willing to do it.

Michael Timmins has worked in different regions, including South East Asia, with NGOs and the United Nations on refugee issues.

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