Shorten on Australians of the Year letter on Refugees

The best that can be said for Bill Shorten’s reply (on IA, November 24, 2017 ) to the open letter to the PM and Opposition Leader on Manus Island from several former Australians of the year is that it could have been worse. On the plus side, the fact that he replied at all, agreeing that Australia has a moral responsibility to care for the asylum-seekers held in its detention centres, could be read as a grudging admission that Labor bears some responsibility for the appalling developments in the centres on Manus and Nauru, although he took care not to say so directly. In fact, to reply by publishing a letter Independent Australia was a low risk strategy for the ALP. It ensured that his letter would be noticed by most readers of social media, who could be assumed to be more sympathetic to the plight of asylum-seekers than those who view the world mainly through the filters of mainstream media. While the original letter was widely publicised, Shorten’s reply was hardly noticed by mainstream media and said little that could be used against him by Coalition propagandists, News Ltd or commercial broadcasters

While indirectly admitting responsibility, the reply itself recycles the tired Australian pretence that our surplus refugees can and should be resettled in other countries, giving the Coalition little to complain about. No risk there! Yet, the point I want to pick up appears towards the end of Shorten’s reply:

Australia can, and should, do more to respond to the unprecedented levels of irregular global migration that has resulted from conflict and environmental factors in other parts of the world

I agree, but this reference to unprecedented levels of irregular global migration has important implications and there is nothing in Shorten’s letter to indicate that he or the party he leads have taken these implications on board. First, if current levels of irregular migration really are unprecedented, it will be much harder than in the past for Australian Governments to find third countries willing and able to take surplus asylum-seekers off our hands. Labor and Australian Governments more generally should abandon the pretence that this can be done quickly and easily.

Second, the appearance of unprecedented levels of irregular global migration suggests that the 1951 Refugee Convention, designed to respond to European conditions at the time, as I discussed on IA a few weeks ago (November 5, 2017), is now seriously out of date and should be assigned to a convenient rubbish bin. This means that Labor and Australian Governments should stop using the Convention’s outdated definition of a refugee as a bureaucratic hurdle that asylum-seekers must overcome or be turned away. The key passage of this definition identifies a refugee as someone who

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is out- side the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country (Article 1)

In effect, we use the 1951 Convention as an excuse for refusing to admit asylum-seekers who don’t fit neatly into its definition. Its long past time that we stopped using this definition to distinguish ‘genuine’ refugees from other, allegedly less deserving, asylum-seekers, as if the latter were fakes who arrive at our borders to dishonestly seek asylum.

And it gets worse. The Convention also requires that participating states “shall not impose penalties, on account of their illegal entry or presence, on refugees…” (Article 31). This looks promising since it appears at first sight to suggest that we are required to treat asylum-seekers decently, – that is, not to penalise them. The catch here is that, since the geo-political conditions leading up to the 1951 Convention no longer exist, many, perhaps most, of those requesting asylum may not be refugees as defined by Article 1. In that case, they are not protected by Article 31 of the 1951 Convention. Australia’s practice has been to lock them away while we process their applications – while, in other words, we check their refugee status. Since many can be expected to not satisfy the 1951 definition, there is no governmental sense of urgency about processing them.

None of this mandates harsh treatment of asylum-seekers.Yet, the fear that they may be ripping us off has normally dominated Australian official responses to individual cases. Accordingly, asylum-seekers are presumed guilty until proven innocent, which could easily take a very long time, and our Governments happily label them ‘illegal’. We treat them with precisely the same spirit of generosity with which we expect Centrelink, and now NDIS, to treat Australian welfare recipients, albeit with more individually destructive consequences.

Cancelling a House of Representatives sitting week

I make no claim to special expertise about Australia’s parliament but I write this because, like many of us, I find it difficult to understand how an Australian PM could imagine himself able to cancel a scheduled sitting week of the House of Representatives and how he could get away with it. After his announcement, there was media speculation about the reasons for Turnbull’s decision, much of it suggesting that his motive was basically one of fear, specifically a fear of losing a House vote over a banking Royal Commission, the minimum wage or the ongoing, government-created disaster on Manus. Yet, there seems to have been little informed discussion about what what in our system of government enables him or any other PM to unilaterally cancel a scheduled House sitting week

Since Australia’s system of government is often said to be modelled on that of the UK, in spite of important differences (we have an elected upper house and the UK does not), it is worth recalling the recent decision of the UK’s Supreme Court that Mrs May’s Tory Government could not formally commence the Brexit process without putting the matter to a vote of Parliament. The Court, in effect, ruled in favour of the sovereignty of Parliament, not of the Government appointed by a parliamentary majority.

Of course, Britain’s Brexit process and the cancellation of a few scheduled House sitting days are hardly equivalent, but Turnbull’s & May’s attempts to bypass the House of Reps & Parliament respectively display an impatience with, if not a contempt for, due process. So, what gave Turnbull the power to bypass the House (Mrs May, the Court decided, did not have that power)? The UK Supreme Court’s decision suggests that Turnbull’s small change may have overridden the sovereignty of Parliament, albeit on a smaller, less significant, scale than Theresa May’s Tories.

The Australian Constitution, which has been in the news a lot lately, does not even mention the office of Prime Minister or the Cabinet. So, whatever gives the PM the power to cancel a sitting week, it certainly is not the Constitution. But what of the House of Reps’ Standing Orders? These have changed over the years but the most recent set, as at 13 September 2016, does not give a PM this power either. Standing orders 29 & 30 give the House itself the capacity to determine its schedule of sitting days while enabling the schedule to be changed by a vote of the House or, when the House is not sitting, by the Speaker. Unlike Speakers of the British House of Commons in Britain, Australian Speakers are normally active members of their party and continue to attend party meetings – but they are nevertheless expected to perform the role of presiding officer in a more or less independent fashion.

The confusing usage of the word independent in Australian politics deserves a full discussion of its own. We might begin by noting, for example, that the NSW ICAC, Independent Commission Against Corruption, often touted as a model for a Commonwealth anti-corruption body, is funded by a vote of the NSW Parliament, in effect, by the NSW Government – a fact that, on many understandings of the term, might seem to compromise its independence. Yet, it is sufficient for the moment, simply to note the tension between active party membership and independence. If the cancellation of a scheduled sitting week simply followed a request from the Government, the Speaker’s Office clearly has questions to answer

Of course, the Constitution and Standing Orders do not entirely determine what happens in the House: custom & practice are also important . In practice, the House usually follows, without debate, pretty much the same schedule from one year to the next, with variations to make room for Easter, the date of which varies according to an esoteric Christian calculation that takes no account of Australian political conditions. This special allowance for Christian Holy Days is puzzling given that, according to our most recent Census, only a little over 50% of Australians identify with any version of Christianity while 30% identify themselves as ‘no religion’, many more than the 22.6% who identify as Catholic, Australia’s largest Christian sect. Fortunately, we have no need to worry about avoiding Christmas, which falls in the middle of our Summer and is sacred in a different, barely religious sense. No allowance is made for days sacred to other religions represented in Australia, not to mention the closet knot of devil worshippers who are reputed to convene around midnight in Peter Dutton’s office.

My guess is that the Speaker’s office normally draws up a proposed schedule for the year and consults with the Government & Opposition’s managers of House business and perhaps a few others before reaching a final decision. Governments are usually able to arrange for additional sitting days to get through what they regard as urgent business – again usually without debate. So, custom & practice do allow limited flexibility. Yets, to the best of my knowledge, there is no Australian precedent for a PM unilaterally cancelling a scheduled sitting period.

Turnbull’s decision to shut down a scheduled sitting week of the House of Reps is unprecedented and so, too, is the Speaker and the Department of Parliamentary Services’ decision to go along with it. Does this mean that Australia is moving away from the familiar combination of Legislature, Executive, & Judiciary, effectively relegating the Legislature to a secondary role? I sincerely hope not. To object to the PM’s attempt to bypass the House of Representatives is not to defend the way the House normally operates. There are many things wrong with what passes for Australian Democracy but stealthy, piecemeal reform by a Tory Government is not a promising way forward.

Concentration camp somewhere else

an earlier, slightly different version was published on IndependentAustralis, 22 November 2017.
While I was a junior academic in England, my Head of Department published a short collection of his own poetry, Earthquake Somewhere Else, with the title piece lamenting the fact that while we worried about a few deaths in road or railway accidents, news of thousands dying in an earthquake somewhere else – I think it was Iran – left most of us untouched. As so often happens with moralising writers, this author, John Barron Mays, a sociology Professor and minor British poet, managed to suggest that, because he was sensitive to this discrepancy, he was ethically superior to most of his readers and other compatriots.

Mays’ poem made such an impression on me that I remember little more than its title and its moralising tone. I was reminded of the latter by some of the twitter responses that followed my last posting on IA ( November 5, 2017). For example, the following tweet, asserted on the basis of no evidence – except, perhaps, the author’s impressions – attracted many likes

“unfortunate but its the reality, people care more abt their phones than others lives. When did we become so apathetic to human suffering?”

Here the word ‘unfortunate’ suggests that the author of this tweet and those who liked it do not count themselves among the apathetic people who care less about others’ lives than their own phones. Good for them! – but I think this tweeter’s judgement of other Australians may be both too harsh and politically counterproductive.

It is easy to get the wrong impression about the feelings of our fellow Australians. For example a headline in the Sydney Morning Herald (4 June, 2014) told us that 71% of Australians supported asylum-seeker boat turn-backs. This does look pretty bleak, but bear in mind that the poll tells us only how people responded to one of several questions in a single survey.

We all know that answers to survey questions depend on the specific wording of the question and the context in which it is asked, particularly on what was said before the question is put. What if, for example, respondents were told right before the question “ Australia introduced the turn-back policy, in part, to discourage asylum-seekers from embarking on the dangerous sea-journey from Indonesia” – a statement that may well be misleading in important respects but is not entirely false? This seems intended to dispose respondents to say they support the policy

It is not difficult to find poll results from recent years that suggest a rather different view of Australian attitudes. Moreover careful studies, which rarely produce such exciting headlines, conducted by Andrew Markus over several years for the Scanlon Foundation show that only a minority of Australians are consistently prejudiced against immigrants ( the results are carefully discussed in David Marr’s Quarterly Essay 65, The White Queen: One Nation and the politics of race).

Do Australians really care more about their phones than the lives of the asylum-seekers locked away on Manus? I really don’t know, but I’d be very surprised. My guess, based only on the evidence of my own impressions, is that a poll on the relative importance of our phones and the lives of asylum-seekers would show only a small minority coming down on the side of their phones. Mike Seccombe, writing in The Saturday Paper (11 November 2017), quotes Greens Leader Richard Di Natale:
“I’ve always maintained that when you drill down on specific issues, people are on the progressive side.”

This seems to me about right, except that you may sometimes have to drill down a very long way.

Why do I say the tweeters judgement of other Australians quoted earlier is not only harsh but counter-productive? The general point is that alienating people you want on your side is not a good look. To say that someone cares more about their phones than the suffering of others would be seen by many as offensive, even if it describes exactly how they behave, just as it would be offensive in Australia today to call them stupid, even if they persist in saying stupid things, or racist, even if they are.

This last issue is complicated. White Australians of my generation will have grown up in contexts in which casual racism was commonplace among English-speaking whites. Most of us learned later in life that we should not be or not be seen to be racist – which was mostly a matter of watching what you say. Others will have learned this lesson at school or at home. The complication here is that there are class and educational dimensions, not do much in the lesson itself, but rather in the extent to which it has been taken on board. A minority of white Australians have not learned how to watch what they say – that is, to dissimulate – and resent the idea that they should have to.

For all his faults, John Howard was a master at not talking in explicitly racist terms. He said nothing that could be pinned down as obviously racist when he described One Nation’s supporters as

a group of Australians who did not have a racist bone in their bodies, who believed that in different ways they had been passed over.

Rather than endorsing what are often thought to be their racist sentiments or criticising them for feeling that way, Howard simply implied that he knew how they felt and that it was nothing to be ashamed of. He was trying to win their support. Similarly, when he rejected the ‘black armband’ view of Australian history Howard did not deny that massacres of indigenous people too place inAustralian history, only that this history should not be defined by these massacres – suggesting, in effect, that, even if there were massacres, they were no big deal, but not saying so directly

Compare Howard’s cautious approach to those he regarded as his party’s actual or potential working class supporters to the Left’s treatment of these same working class voters when they accused Howard of ‘dog-whistling’. This accusation draws on the image of the dogwhistle once commonly used in sheep herding. It was designed to sound at a frequency, 20,000Hz or more, which would be inaudible to normal human ears but would be noticed by dogs, whose hearing is generally more sensitive to high-frequency sounds than that of humans. Where humans would be unaffected by the whistle, except for a few splitting headaches, suitably trained or habituated dogs would receive both a sound and the instruction that came with it – telling them, for example, to stop where they were or to round up sheep that had broken away from the main flock – and could be trusted to respond accordingly.

To accuse Howard of dog-whistling is thus to say that Howard’s working class supporters voted his way without thinking – not a flattering image. The accusation that people care more about their phones than the lives of others is not much better as a way of winning them over

What is a refugee?

The shambolic, destructive closure of Australia’s detention centre on Manus Island and New Zealand’s offer to take some of the survivors off our hands offer yet another opportunity to reconsider Australia’s refugee regime.

So, what exactly is a refugee? After noting that the term was first used to refer to Protestants fleeing religious persecution in seventeenth & eighteenth century France, the Oxford English Dictionary identifies the following meaning as one that is in extended use today:
A person who has been forced to leave his or her home and seek refuge elsewhere, esp. in a foreign country, from war, religious persecution, political troubles, the effects of a natural disaster, etc.; a displaced person.
There are two elements here: someone who (1) has been forced to leave home for reasons ranging from war through persecution to natural disaster; and (2) is now seeking refuge elsewhere. However, in today’s Australia, the more specific definition provided by the 1951 UN Refugee Convention is probably the most prominent: it says that a refugee is

any person who… As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is out-side the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country (Article 1.A(2))

This differs from the OED definition, first, in the specific time-frame, before 1951, and second in the reference to a “well-founded fear,” neither of which figure in the OED definition. The reference to 1951 reflects the fact that the Refugee Convention was designed to acknowledge the widespread European failure to provide for refugees, mostly Jewish, from the Nazis or for those displaced by the changes to national boundaries that followed the war. Article 1B specifies that “events occurring before 1 January 1951” should be taken to mean “events occurring in Europe before 1 January 1951”; or “events occurring in Europe or elsewhere before 1 January 1951”. Signatory sates were asked to choose which interpretation they would opt for. European refugees are central here. Care for anyone else appears to be optional

Its hard not to notice the Eurocentric wording of the Convention. The “or elsewhere” reads like the product of non-European states’ efforts to get round the original focus on Europe. At the time of the Convention, there were many displaced persons in other parts of the world, notably in Palestine, South Asia (following partition) and China (from the civil war). Palestine is covered by another part of Article 1: “This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance” (1D) – an introductory note from the UNHCR gives the example of refugees from Palestine who fall under the auspices of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Here, Palestinian and other refugees from the Near East are not Europe’s problem! Refugees from South Asia & China may be covered by the Convention’s “or elsewhere”, otherwise they don’t rate a mention.

After a few years, it became clear that any remaining refugees from Nazi oppression and Europe’s post-WW2 chaos were declining in numbers. The reference to 1951 was finally removed by a 1967 Protocol, which left “well-founded fear…etc..” still in place. As David Marr suggested some years ago ( this part of the Convention’s definition appears to have been written more as an apologetic gesture towards those who fled Nazi persecution and post-war chaos and who Western states so conspicuously failed than as a comprehensive definition of those who might need support in the future. Yet governments, in Australia & throughout the world have read it as the latter. In fact, the Convention’s definition tells signatory states who they are obliged to offer asylum – nothing more. Migrants who do not fall under the definition are people to whom Australia is not obliged by the Refugee Convention to provide asylum.The Convention does not say that we have no responsibilities for theme nor does it give us licence to malign or penalise them – for example, by asserting they are ‘economic refugees’ or not ‘genuine refugees’ or to incarcerate them in conditions that reflect, at best, Australia’s traditionally mean-spirited treatment of welfare recipients. We now have the absurd situation in which ABF officials are left to decide whether undocumented migrants fear of persecution is well-founded. Isn’t it enough that someone is sufficiently afraid to up sticks and run?

In fact, this part of the 1951 definition has always been incomplete. As the OED definition recognises, fear of persecution has never been the only reason people flee their homeland; also important are war and natural disasters. We should bear in mind that ‘natural disasters’ may result from, or be exacerbated by, government policies – as they were in famines in nineteenth century Ireland, in Bengal under British rule, 1930s USSR & the American dust-bowl disaster. Moreover, in dry regions and many Pacific Islands, even small changes – a shift from very little rainfall to none at all, increasing salinization of groundwater or changes to the level of the water-table – can render existing agricultural/pastoral practices unviable. Here, New Zealand’s decision to recognise climate change as producing a legitimate category of asylum-seeker should be a welcome model for Australia.

Its high time that Australians faced up to the world in which we live and in which, for the foreseeable future, there will be many people fleeing droughts, floods, wars and other conditions they regard as intolerable. There is no excuse for not respecting their judgements on such matters. For the moment, Australia can decide who to allow in and who to keep out, but this fortunate condition is unlikely to last. Meanwhile, we should, at least, recognise that our responsibilities to others are not exhausted by the 1951 Refugee Convention.

[An earlier version of this post appeared on Independent Australia, Sunday, November 5, 2017]