Key changes have nevertheless emerged. The first involves language. Demonstrating a dramatically different understanding of protection to that contemplated under the Refugee Convention, the Department of Immigration and Citizenship was refashioned as the Department of Immigration and Border Protection. The Minister issued an instruction to departmental staff within weeks of assuming his portfolio to refer to asylum seekers who attempt to reach Australia by boat as ‘illegal maritime arrivals.’ In a repeat of the ‘tow-back’ measures adopted under the Pacific Solution under the moniker of Operation Relex, the new government launched ‘Operation Sovereign Borders.’
The new government’s pointed use of language was accompanied by an absence of language; a refusal to provide information about attempted boat arrivals or the conduct of Operation Sovereign Borders. This silence was temporarily broken on 17 January 2014 when the government was required to apologise to Indonesia for breaching its sovereignty. Minister Morrison and Operation Sovereign Borders Commander Angus Campbell conceded that Australian vessels under the control of border protection command entered Indonesian territorial waters on a number of occasions.
A clear demonstration of the government’s use of language and silence with respect to asylum seeker boats was provided by Prime Minister Abbott to Channel 10’s Wake Up program. In rationalising the government’s new approach to the flow of information, the Prime Minister employed the language of war, declaring that ‘if we were at war we wouldn’t be giving out information that is of use to the enemy just because we might have an idle curiosity about it ourselves.’ He invoked the characterisation of asylum seekers as the deviant ‘other’, stating ‘let’s remember that everyone in these centres is there because he or she has come illegally to Australia by boat. They have done something that they must have known was wrong.’ In a further manifestation of disregard for the circumstances of asylum seekers, the government has introduced a Bill which seeks to repeal the complementary protection provisions in the Migration Act 1958 (Cth). These provisions extend the criteria for the grant of a protection visa beyond the narrow formulation set out in the Refugee Convention in order to give effect to Australia’s obligations under core human rights treaties, including the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.
For those processed offshore in Nauru and Manus Island, the protections in these instruments have been routinely denied. Asylum seekers detained in these regional processing countries continue to languish in appalling conditions, existing in situations of hopelessness and engaging in acts of desperation. The extent to which they are excluded from the rule of law has been illuminated by recent events in Nauru. Following the sacking and deportation (reportedly through use of force) of Nauru’s sole Magistrate Peter Law, Nauru’s Chief Justice Geoffrey Eames was denied entry into the country. The precarious state of the Nauruan justice system raises deep concerns about the treatment and processing of asylum seeker claims and highlights the absurdity of outsourcing Australia’s protection obligations.
TANIA PENOVIC teaches law at Monash University.