Far away View of Brexit

I have never been a fan of the European Union or its institutional predecessors – or of that older European conglomerate, the United Kingdom. I would have voted SCOOT, or is it SCOUT?, for Scotland to leave – and I am unimpressed by the EU’s efforts to appropriate for itself, as the USA has done, the name of the continent on which it squats – an ambition that would seem obviously absurd had Greenland not opted out of the EU some years ago. Consequently, I have no reason to be appalled when parts of the EU fall away. Yet, I did not believe that a referendum on UK’s membership was a good idea, if only because a Brexit vote would probably leave Tory extremists in power (Theresa May is no moderate) and few would seriously expect the EU to negotiate a generous divorce settlement. Overall, the decision to leave the EU looks as if it would be a slow motion disaster, damaging the economy and undermining London’s role as an international financial centre (perhaps not such a bad thing).

Moreover, it seems odd for such an important decision to be placed in the hands of the people. Referenda have no legal or constitutional force in the UK, although the constitution is clearly open to interpretation. On most understandings, parliament – or rather, the Queen in parliament – is sovereign. This means that, while it may be politically difficult for parliament to overturn the referendum result, the decision to leave has not been made unless parliament makes it.

Yet the British decision to go to a referendum is also curious in another way. Like most contemporary ‘democracies’, UK has a regime of representative government that works to ensure that popular concerns have only a limited impact on the conduct of government.

In case this last point seems unduly cynical, a few comments on contemporary understandings of democracy may be in order. The etymology of the term – from the Greek demos (the people) and krátos (power or rule) – suggests that democracy should mean popular rule. Yet, in what has come to be seen as the history of Western political thought, democracy has only recently come to be well-regarded. The people and popular rule have usually been regarded with some suspicion, not least because the former were for the most part both poor and poorly educated and, whatever their individual qualities, were likely to be easily lead and collectively irrational – a theme that resurfaced in commentary on the Brexit vote.

The American authors of the Federalist Papers ( the winning side in early debates around the US constitution) rejected the idea of rule by the people ‘in their collective form’ in favour of government by representatives. Even the eighteenth-century English radical Tom Paine, an ardent supporter of independence for Britain’s American colonies, preferred ‘representation ingrafted upon democracy’ to pure democracy. Representative government, like democracy, allowed the people their say but, unlike democracy, kept them out of the way while persons of a superior kind, elected by the people, got on with the serious work of government. Given this continuing distrust of the people it was surprising to see a remarkably complacent British Government letting them people on an important policy issue. Cameron and the Tory Brexiters appear to have assumed that the people could be trusted to do what each expected of them, albeit with radically different expectations, and then, grateful for the opportunity to speak, crawl back into their hole.

During the late nineteenth and early twentieth centuries, representative government gradually came to be labelled ‘democracy’ and this usage has come to dominate discussion of democracy in Western states, the World Bank, UNDP and other international agencies. The earlier meaning of democracy as popular rule has survived, providing a democratic foundation both for left-wing and populist critiques of Western states and for governmental attempts to bring the people on-side through consultation and public ‘participation’

This sketch of representative government is perhaps a little too simple. Rather than being governed directly by the people in any straightforward sense or by elected representatives, contemporary ‘democracies’ are governed by untidy networks of elected representatives, unelected officials and institutions. In each case, much of the governing network has continued from earlier, considerably less ‘democratic’ governmental regimes. British ‘democratic’ arrangements sit awkwardly alongside an hereditary monarchy, substantial private landholdings, currently subsidized by the EU’s CAP, a collection of elite private schools, oddly labelled ‘public’ – when I first visited Australia, I was astonished to find, in many small regional communities, dilapidated buildings identifying themselves as ‘public’ school’s – elite universities and a major financial centre, all with significant links to the higher echelons of state apparatuses, a market economy and a semi-independent judiciary.
The EU has an elected parliament, a higher chamber the European Commission with representatives drawn from all member states and a variety of other ‘European’ institutions. The people elect members of the parliament but are trusted with no further role in EU government. The EU is therefore no less democratic, in the conventional sense, than any of its member states although it carries the separation of the people from the work of government to an extreme that none of these states has been able to match. We should not be surprised if the institutional distrust of the people that is an important part of the EU’s design has been reciprocated throughout Europe.

Now, while I was surprised, and should not have been, by the Brexit vote but not appalled, I have been appalled by much of the subsequent commentary. (I should add that I have not lived in Britain for almost 30 years and experienced the campaigns from a comfortable distance.) Perhaps ‘appalled’ is too strong a term. It is hard to be impressed by complaints about the size of the winning margin (few recent US Presidents have done better), anecdote dressed up as analysis, tales of popular rejection of elites (as if there were not elites on both sides), the worldwide growth of populism (meaning little more than that, in many states, established parties are now in trouble), the difference between winners and losers from globalisation and, not quite the same, the internet connected and the rest.

Still, one important issue stands out from the commentary. There are credible reports pointing to an increase in racist attacks in the period immediately following the referendum, linking this to the LEAVE campaign’s focus on border-control. The suggestion, as I understand it, is, first, that controlling borders functions in Britain, as it does in Australia, as proxy for racist policies designed to deter unwanted immigrants and penalise those who have already arrived and, second, that racist aspects of the LEAVE campaign legitimised the racist sentiments of its supporters leading directly to attacks on migrants from both the Eastern parts of the EU and the Commonwealth.

Australia has demonstrated how easy it is for Western powers can get away with ignoring their obligations under the 1951 UN Refugee Convention, especially the provision, repeated in subsequent Conventions and Protocols dealing with refugees, that refugees have the ‘right not to be punished for illegal entry into the territory of a contracting State’.

In retrospect, it seems clear that the 1951 Refugee Convention was one of those “ Never Again” gestures, like the European Coal and Steel Community, precursor to the EEC and later EU, designed, in this case, to ensure that if Nazis were again to take over much of continental Europe, the resulting refugees would be treated better than those who fled in the ’30s and ’40s. Unfortunately, the Convention’s definition of a refugee – as a person who, “owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinions, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country” – has since been established as a checklist enabling states to distinguish genuine or legitimate refugees from the rest, thereby promoting a suspicion of all undocumented refugees and empowering politicians and immigration officials to discriminate between those who are deserving of assistance and those who are not.

Obviously, this is an issue that deserves further discussion. My aim here, however, is simply to note Australia’s strategy for getting round inconvenient provisions of the Refugee Convention. On the one hand, Australia resettles more refugees relative to its population than other Western states except Canada, all certified legitimate according to the UN Convention’s definition. In fact, Australia’s refugee intake, like that of other Western states, is small beer compared with many African or Middle Eastern states. Even so, Australian officials and politicians describe its refugee intake as ‘generous’ . On the other hand, Australia treats undocumented migrants atrociously, suspecting them of not being ‘genuine’ refugees and incarcerating them away from public view in offshore detention centres on small islands, in spite of its obligation under the Refugee and other Conventions not to penalise illegal migrants seeking asylum – as if Australia’s refusal of its obligation to not penalise asylum seekers were outweighed by its ‘generous’ treatment of ‘genuine’ refugees.

If UK wished to emulate Australia’s shameful example in using ‘generosity’ to balance penalising refugees, it would have to lift its intake of ‘genuine’ refugees considerably. While I would not wish the UK, or any other state, to follow Australia’s lead, it was hard not to notice references to the Australian example during the referendum campaign. Unfortunately, while she is reported to have supported REMAIN, the new PM’s record on the treatment of refugees does not bode well.

Yet, it would be wrong to finish on this note. There were two sides to the referendum. While it would be a mistake to read every LEAVE vote as supporting the racist views of some of the campaign leaders, racist elements of this campaign have been widely noted. Yet there is an also unpleasant odour of superiority emanating from the other side. Let me approach this issue by disposing of the absurd claim that Brexit means Britain turning its back on Europe and even on the world. Prominent figures in the LEAVE campaign suggested that, after leaving, Britain would be able to maintain its trade and other relations with the people of the EU, while retaining control of its own borders, and there were indications in July that the EU might be prepared to allow Britain something like this for a limited period.

At least in the LEAVE campaigns public statements, there was no suggestion that Brexit meant Britain turning its back on Europe. Nor is it obvious that Britain’s departure from the EU would amount to cutting itself off from the world. Once Britain departed, it would be free to negotiate its membership of WTO and its own trade deals with other countries although these would take some time to eventuate.

If there is no straightforward sense in which Brexit means Britain turning its back on Europe, or even on the world, how could anyone have advanced this claim, and what point were they making? Brexit was sometimes represented as rejecting the cosmopolitan outlook that was said to be embodied in the EU. We can get a grip on what is going on here by returning to the cosmopolitanism of Enlightenment Europe. This was largely a matter of cultivating indifference towards national attachment while also promoting a vision of Europe as an harmonious system of balancing states. Many of these cosmopolitans took the superiority of European society and culture for granted. While some promoted a cosmopolitan vision that embraced all humanity, Enlightenment cosmopolitanism was usually little more than Eurocentric anti-nationalism.

This may seem a harsh judgement, but it is hard to read the non-economic aspects of the pro-EU campaign as anything more than an up-dated parochial cosmopolitanism.

Word Plays

Ross Gittins, economics editor of the Sydney Morning Herald, who writes some of Fairfax Media’s most insightful political commentary in its BusinessDay section, commented on the Coalition Government’s post-budget spin, or perception manipulation (Monday 9 May 2016), arguing that

“Key to the success of perception manipulation is the use of magic words – words with strong positive or negative connotations, words that arouse emotions.
What words are guaranteed to frighten punters? Try ‘debt’ and ‘deficit’. What word gladdens the hearts of business people? ‘Growth’”

‘Words’ with strong connotations are clearly significant but there is nothing ‘magical’ about them. Its not unusual for words to acquire connotations that cannot readily be derived from dictionary definitions and it is worth considering how this happens. Gittins’ expression ‘perception manipulation’ suggests that there is an intention to manipulate on the part of at least some of those who use these words. I’m sure that this is often the case: many professional party politicians are now trained in how to handle the media and how best to articulate the party line; but there may be times when Gittins’ ‘magic’ words are uttered unconsciously. They may have acquired their positive or negative connotations because political parties, newspapers or other media organisations have already worked at it. I am old enough to remember times when conservative politicians and commentators, some of whom clearly knew better, assiduously promoted the misleading analogy between the management of state and household budgets. Today, the analogy and the dubious formulae it sustains – ‘budget emergency’, ‘we have to live within our means’ and ‘how are they going to pay for it?’ – are trotted out preceded by no apparent pause for reflection. Moreover, the term ‘deficit’ has been tossed around in the 2016 Australian election campaign with no apparent appreciation of its consequences. A large and growing national debt would pose problems for Australia in the longer term, but it would be good to keep them in perspective.

The limitations of the analogy between national and household budgets are well-known, if insufficiently acknowledged (cf. ‘Why the federal budget is not like a household budget’ The Conversation, 17 December 2014 ). Few households issue their own currency or survive as long as contemporary states; and while households borrow from outsiders, much state borrowing is from its own subjects. This is not to say that national budgets and national debts are therefor unimportant, but it is to say that states and households face different budgetary problems, while states manage their’s in ways that are not normally available to households.

To illustrate the force of this analogy, consider ABC TV’s Lateline (June 21, 2016) interview with Tony Shepherd, former chair of the Business Council of Australia and subsequently of the relentlessly partisan Audit Commission established in 2013 by the incoming Abbott Government. Discussing the prospect of economic reform, Shepherd observed that Australians ‘run their budgets far better than government … I think if you explain it to them clearly and simply, using the analogy of the family budget, you can bring them with you on sensible reform – but it has got to be equitable as well.’ Shepherd should have known better, and almost certainly did. In effect, he supported misleading the public in order to gain support for policy reform. The interesting thing to notice about Shepherd’s appeal to this slippery analogy is less the fact of its existence than that he was allowed by his ABC interviewer to get away with it.

I return to ‘magic words’ and their connotations below but before doing so, it is worth noting that there are other, less magical yet still clearly powerful expressions, consisting of single words or of several, whose meaning cannot be determined by examining the meaning of their components. ‘Border protection’ (discussed in an earlier post), which in Australia today – and even, at times, in Btitain – means little more than ‘keeping out and/or penalising asylum-seekers’, is a familiar example. Other examples are ‘United Nations’, free-trade agreement’, ‘democracy’, ‘certainty’ and ‘political science’. Expressions may also be powerful in other ways, for example, when the significance of a term’s usage depends more on its connotations than its dictionary meaning, as in Gittens ‘magic words’ and terms like ‘illegal’ and ‘genuine’ used in relation to undocumented migrants and refugees respectively, which I consider briefly below.

However, beginning with the compound expressions just noted, the United Nations is an organisation of States, not of nations, and one would have to take great care in examining the organisation if one wished it to appear united. Like ‘United Voice’, the relatively new and optimistic name of a large Australian trades union, but unlike today’s ‘United States of America’, the first term in United Nations signals an aspiration not a secure condition. The confusion of state and nation in the UN’s name results, in part, from the fact that, when UN was founded, the expression ‘United States’ had already been taken by the most powerful of its founders and, in part, from the principle, promoted by the UN’s predecessor, the failed League of Nations, that nations have the right to self-determination. This principle is normally taken to imply that each nation should have a state of its own and that each state should govern a single nation. ‘United Nations’ thus expresses the double aspiration to an organisation that is, first, united and, second, made up of national states.

In the case of ‘Free-Trade Agreement’ the expression appears to mean an agreement to remove tariffs, quotas, subsidies for domestic producers and other restraints on trade between participating states. It is a commonplace of international trade theory that, while sometimes generating short-term difficulties, free trade works over the longer term to benefit all participating states – and it is to this presumption that the label ‘free trade’ seems designed to appeal. Yet, close inspection of the text of such agreements usually shows that while they open up some areas of trade between the signatory states – and in this respect, they do promote free trade – they normally contain other significant provisions that, for example, protect intellectual property and/or the interests of large corporations (cf Joe Stiglitz, ‘The Secret Corporate Takeover’, Project Syndicate, May 13, 2015) and sometimes restrict trade with states not party to the agreement. Whatever promoters of these agreements say about the indisputable benefits of free trade in general, it is often less than clear that the benefits of whatever trade may be freed by the agreement will outweigh the costs of the remaining provisions. In Australia the economically dry Productivity Commission has passed its sceptical eye over this issue several times, concluding that many ‘free-trade’ agreements offer little or no net benefit (See, for example, http://www.pc.gov.au/news-media/speeches/free-trade-agreements/20150721-jsc-trade-investment-growth.pdf ).

Turning now to the term ‘democracy’, it derives from the Greek ‘dēmokratía’, a term formed by jamming demos (the people) together with krátos (power or rule) to give something like Abraham Lincoln’s tripartite formula ‘government of the people, by the people, for the people’, which is itself one of the three forms of government distinguished in Aristotle’s Politics: democracy (rule by the many), aristocracy (rule by the few), and monarchy (rule by one), each of which he regarded as in danger of degenerating into something else. What democracy/’rule by the people’ looks like in particular cases will depend on what organisational arrangements – from referenda, as in the UK’s recent brexit decision and the proposed Australian plebiscite on same-sex marriage, though popular assemblies or chambers of elected reprsentatives to government by popularly elected leaders – are in place to realise it. Thus, it is hardly surprising that what is most commonly regarded as democracy today is something altogether more complex than the Greek model.

Today, democracy usually means representative government, government, in other words, not directly by the people but rather by a combination of elected representatives and unelected officials – the latter staffing a range of military, judicial and other state agencies. Many critics of representative government argue that, in practice, it is often far from democratic in the sense of giving decision-making power to the people, that the combination of representatives and bureaucratic state agencies serves to keep the people away from the work of government. Its defenders argue on the contrary that collectively the people cannot be trusted (Roberts 1997), as many commentators suggested after the UK’s Brexit decision, and that keeping the people away from the work of government is a good thing.

The term ‘democracy’ and its derivatives are also used in non-governmental contexts. The ABC website describes its Monday evening panel-show Q & A as ‘democracy in action’, in part, because members of the audience – along with selected viewers – ask the questions. Like those who favour representative government as keeping the people out of the work of government, the ABC’s view is clearly that ‘democracy in action’ has to be carefully managed. The panel to whom questions are directed is not chosen ‘democratically’ by the audience and there is an ABC chairperson who, along with other unelected officials, selects which questions are to be asked and in what order, and who ‘moderates’ discussion, often intervening to ensure that it moves on from some contentious issue because there are other questions ‘we have to get to.’

‘Certainty’, the other one-word expression in my earlier list, is harder to pin down. Standard dictionary definitions give variations on ‘the firm conviction that somehing is the case’. Yet, in Australian political debate it is commonly asserted that ‘certainty’ is required to encourage investment. Businesses will only invest if they have a firm conviction that ‘something is the case’. Clearly then, what is required is certainty about something but repeating the word ‘certainty ‘does not tell us what that is. Nobody who goes on about it, believes ‘certainty’ that the sun will rise tomorrow and again the day after will be enough to encourage business investment, which clearly requires certainty of another kind, and neither would the ‘certainty’ of 100% tax on profits for new business ventures. The mantra of certainty is always a proxy for something more substantive, and what that is will usually be clear from the context. In the business case, ‘certainty’ is usually proxy for a stable or improved climate for business investment – tax breaks, relaxed planning and environmental controls, etc. Yet, direct calls for one or more of the latter appear blatantly self-interested unlike apparently staight-forward requests for greater ‘certainty’.

‘Political science’, now the name of a respected, in some quarters, academic discipline, and ‘border protection’, designating an Australian policy objective, are different again. Neither expresses an aspiration that has yet to be realised, like the term ‘United Nations’, although political science could be seen as a limited exception, while at least one serves to obscure an unpleasant reality. A little history is needed to explain how these terms work. I begin with ‘political science’. When I was a student in Britain in the 1950s, politics was studied in many university departments, while departments devoted primarily to this study were named Politics, Political Studies or Government. A few were called Political Science but this last was usually regarded as something they did in America. Young Turks within the Political Studies Association campaigned, unsuccessfully for a change of name from Political Studies Association to Political Science Association, the point being to register the aspiration to study politics scientifically. In this objective, they failed but they did manage to establish a new journal The British Journal of Political Science whose title reflected the same aspiration.

Thus, while it might seem that, in the manner of well-behaved English adjectives, ‘political’ – generally taken to mean something like ‘pertaining to the government of a state’ – qualifies the noun that follows, in practice the noun ‘science’ qualifies the adjective ‘political’, with the combination meaning the scientific study of politics. To cut this untidy story short, ‘science’ here signals the presence of a discipline that, according to one’s perspective, harbours serious ambitions or no less serious delusions of grandeur. It would not be unreasonable to suggest that many of those who support the discipline’s ambitions identify its scientific status with the use of more or less sophisticated statistical analysis.

On such grounds there would have been little to choose between European astronomy and astrology in the seventeenth century. Both drew heavily on Arab sources and relied on observation and mathematical estimating techniques to predict the movements of the planets. With the benefit of hindsight, it is too difficult for us to distinguish them but they are not distinguished by the presence of quantitative analysis in the one case and its absence in the other.

In the case of border protection (or security), the first term ‘border’ usually denotes a line or region where the territory of a state comes to an end (or begins, depending on the direction from which one approaches) and its laws come into force (or normally cease to apply). Most contemporary borders are on land with a state on each side; some borders are maritime, with a state on one side and another state or international waters on the other. Borders are often disputed, with opposing states aiming to shift the border in an advantageous direction, and in such cases the idea of protecting (or securing) the border comes into play. Yet borders themselves are relatively insubstantial and the notion of protection refers more commonly to installations or communities on or near the border or to resources – fisheries, oil or natural gas fields inside them.

Security professionals are likely to interpret border protection/security rather capaciously, as referring to the regulation of whatever crosses the border and protection of people and resources on or close to the border. In the case of maritime borders, this might include protection of fisheries, mineral deposits and oil and natural gas reserves. The terms ‘security’ and ‘protection’ suggests that there are potential threats against which borders and communities and resources close to them borders require protection.
Yet, while there have been customs and/or naval patrols around Australia’s borders for many years – the Customs Coastal Air-Sea Operations Support (CASOS) Group was established in 1974 and the Border Protection Command in 1995 – the rhetoric of ‘border protection’ has been used in Australian political discourse to refer almost exclusively to the regulation and detention of asylum-seekers. Since asylum seekers at Australia’s borders do not normally arrive carrying guns or other weapons, it is hard to see why the borders, or anything within, might need to be protected from them.
However, rather than set out the tortuous processes through which ‘border protection’ came to be associated in Australian political discourse with refugees and asylum-seekers, let me simply note that this association plays a small but important part in the demonisation of asylum-seekers. I Australia’s borders are to be protected from asylum-seekers, the latter must be understood as posing some kind of threat
The association between ‘border-protection’ and ‘asylum-seekers’, although they rarely appear together in the one sentence, is a special case of the British linguist J. R. Firth’s point that you “know a word by the company it keeps.” Words acquire connotations, often without anyone directly intending this result, through their association with other words. For example, the word ‘tax’ appears so often alongside terms like ‘burden’, ‘cut’ or ‘relief’ that it now has inescapably negative connotations. But, it should be noted that this little word has sufficient problems of its own, including, in some varieties of English, its relation to task – depending on how you pronounce their ‘a’s, the ‘ask’ sound can be close to or clearly different from the ‘aks’ – see Kate Burridge’s excellent discussion ‘The linguistic dirt on that dirty little word tax’, The Conversation13 May, 2016 – that tax hardly needs to consort with other terms to establish its negative connotations.

While ‘tax’ acquires its negative connotations through its association with both positive (relief, break) and negative (burden, task) terms, terms and expressions can also acquire negative connotations by association with apparently positive terms. I suggested in an earlier post that the 1951 UN Refugee Convention has resulted in refugees being viewed with suspicion. This is a complex issue that requires some elaboration. Australia is bound by the terms of the 1951 UN Refugee Convention which it signed in 1954. Article 1A of the Convention, as modified by a 1967 Protocol, to which Australia also agreed, defines a refugee as a person who, “owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinions, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” (cf. Khalid Koser’s admirable Lowy Institute analysis, April 2015)

In his ‘Illegals’ – Australia’s latest smear on refugees’ (The Guardian 22, 2013) David Marr reads this Convention, not unreasonably, as an extended apology to the millions of European Jews who were let down by the international order during WW2 and the years leading up to it . There is a limited sense in which Marr’s title may be misleading since contemporary politicians and officials who insist on using the term ‘illegal’ with reference to undocumented migrants could say that they were only following Article 5 of the more recent (2000) Smuggling of Migrants Protocol, which describes all undocumented migrants as ‘illegal’. Those who rely on this lame excuse may find the term’s smearing of refugees an added bonus. Koser makes a related point to Marr: ‘The Convention’s definition reflects that the Refugee Convention was drafted specifically ‘to find solutions for those who had been displaced across Europe by Nazism and the Second World War. Hence, as originally drafted, it covered only those who were refugees as a result of “…events occurring before 1 January 1951…” and focused on “…events in Europe.”’

Perhaps we can take retrospective comfort in the thought that, had much of Europe fallen under Nazi control for a second time in the 1950s and had other states complied with the Convention’s obligations – as many states, not just Australia, now fail to do – the international community would then have had mechanisms in place to deal more humanely and efffectively with the ensuing refugee crisis than it did in the 1940s. The key point to notice, however, is that the Refugee Convention’s efforts to produce a definition comprehensive enough to resolve difficulties of the recent (at that time) European past resulted in a set of criteria that immigration officials and their political masters have since used as a checklist for assessing the status of migrants who present themselves as refugees.

In such cases, whether or not a fear of persecution is to be counted as ‘well-grounded’ becomes a matter to be decided by public servants in the host country, many of whom have little or no knowledge of the conditions from which the migrant has fled, and sometimes little sympathy for their chosen identities (LGBT migrants who flee persecution may receive little sympathy from officials who refuse to acknowledge any part of the LGBT spectrum:See ). http://daily.jstor.org/very-real-plight-lgbtq-refugees/?utm_source=internalhouse&utm_medium=email&utm_campaign=jstordaily_06232016&cid=eml_j_jstordaily_dailylist_06232016

Yet, it seems decidedly odd to assess claims on the basis of what a reasonable person would feel in such conditions. In the case of fear, as with other emotions, reason often has little to do with it. If fear drives a person or family to leave their home, it is certainly real enough and it would hardly be reasonable in such cases to penalise asylum-seekers for being overwhelmed by their fears.
Article 31 of the Refugee Convention, to which Australia is a signatory, asserts that refugees have the ‘right not to be punished for illegal entry into the territory of a contracting State’, a formulation which opens up the possibility that those who are not refugees in the Convention’s sense may be punished. Yet, as the Refugee Council of Australia’s submission reagarding the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 points out, the Bill removed from the Migration Act 1958 references giving’ effect to the provisions of the 1951 Convention, thereby deleting from Australian law refugees’ ‘right not to be punished’. The Fourteenth Report of the 44th Parliament, Parliamentary Joint Committee on Human Rights, (28 October 2014, paragraph 5.2) noted that the Bill would sever “the connection between Australia’s international obligations and [how] its domestic law engages”. (See Glenn Murray’s admirably clear discussion of these obligations, “The facts about ‘boat people’ – The government and media are lying” at http://theaimn.com/facts-boat-people-government-media-lying/). RCOA argued that the provisions of the Bill were ‘likely to obscure rather than elucidate the circumstances under which a person is likely to have a well-founded fear of persecution.’

Those who are judged to satisfy criteria designed to cover Europeans displaced by Nazism and WW2 are regarded as ‘bona fide’,’genuine’ or ‘legitimate’ refugees while the rest are not ; they are seen as cheating, as economic migrants, at best – as if there were something underhand about fleeing the threat or the reality of poverty.

The possibility that refugees may not be classified as ‘genuine’ according to these archaic criteria ensures that those who present themselves as refugees are often regarded with suspicion and that those who make an understandable effort to portray their situation as fitting the criteria are likely to be suspected of gaming the system. Thus, the Convention’s belated but otherwise commendable efforts to require states to protect anyone like the Europeans who became refugees during the 1940s creates an atmosphere of suspicion around ‘irregular’ migrants, who arrive without a visa and try to evade immigration controls.

Koser goes on to note that the Convention was updated in a 1967 Protocol and again by regional complements in 1969 and 1984 ‘to cover particular circumstances in Africa and Central America respectively [but not yet, we might note, the Middle East – bh] Nevertheless, significant gaps remain in the definition as it applies to contemporary circumstances. In particular, there is a growing consensus that over the next decade or so, the effects of environmental change are likely to compound other drivers of displacement, increasing migration pressures globally including in Australia…. [T]he 1951 Convention does not refer to asylum seekers and this is one of the main reasons why the Convention has proved so hard to implement in contemporary circumstances.’

Thus, even allowing for subsequent updates, the Convention is hard to apply in contemporary circumstances. In other words, it is out of date. Yet, the Refugee Convention has aways been out of date in this sense. Designed to regulate the conduct of states towards European migrants during a specific past emergency, it has little to offer migrants in case of emergencies that take a different form.

My point is not that the 1951 Refugee Convention has left refugees worse off but rather something more complicated. While the convention contains many positive features, notably the non-refoulement requirement and the injunction that undocumented asylum seekers-should not be penalised, these features are undermined by a definition of refugee that (a) is outdated and (b) serves to promote suspicion towards those who present themselves as refugees seeking asylum.

In the recent Australian context, this suspicion has encouraged Australian governments to continue their long-standing practice of incarcerating undocumented migrants – in spite of the Convention’s requirement that they should not be punished – and penalising those (people-smugglers) who bring them here. Thissituation is complicated by Australia’s history of taking in migrants. Between 1945 and the mid-50s Australia accepted large numbers of migrants from Europe and it currently accepts more refugees per head of population than other Western states. (African and Middle eastern States take in far more).

Australian political leaders like to represent our intake of refugees as ‘generous’. Thus we are generous to refugees on the one hand and we penalise undocumented referees on the other. The two practices co-exist and one is often played off against the other. John Howard’s notorious statement, in a speech of October 2001, ‘We will decide who comes to this country and the circumstances in which they come..’ directly followed his assertion of Australia’s generosity in accepting large numbers of refugees as if the latter had to be tempered by a whiff of toughness.

And again, on ABC Lateline (28, May 2016), Amanda Vanstone, a former Liberal Immigration minister and the Jesuit lawyer Frank Brennan discussed Australia’s immigration detention regime with Brennan repeating the point that the offshore detention regime was unconscionable and Vanstone repeating her insistence on our generosity, but without directly disputing Brennan’s points. There is an interesting word-play going on here. Rather than old-fashioned debate, in the form of argument, counter-argument and rhetorical flourish, nice words (generous, generosity) are put up against bad (brutal, unconscionable), almost as if one excused or balanced the other.

Obviously, there is more to be said about each of the points made here and there are other interesting political word-plays to be considered, for example, those employed by parties during the Australian 1916 election – particularly, Labor’s Mediscare campaign and the Coalition response – and by commentators in interpreting the results – ‘the people have spoken’ etc., – but I will have to leave them for another time