Deterring asylum seeking in Australia


Since 2001, successive Australian governments have increasingly used unilateral and bilateral migration and border protection policies to prevent refugees and migrants from reaching Australia, where they have the legal right to apply for asylum. Amongst many other measures, the Australian government uses mandatory detention and offshore processing in third countries, such as Nauru and Papua New Guinea, to deter asylum seekers from attempting to enter the country by sea without a valid visa. Turning back asylum seeker boats in the Indian Ocean is deemed to be another effective means to discourage future claimants. This and other border protection measures extend well beyond Australia’s internationally recognised borders, reaching into neighbouring transit countries, such as Indonesia and Malaysia, and even further away, to countries of origin for asylum seekers, including Sri Lanka and Vietnam.

Australian government policies tend to frame the purpose of preventing asylum seekers from reaching Australia by sea as disrupting and deterring people smuggling activities. They view irregular border crossings narrowly as transnational organised crimes, neglecting the fact that such crossings enable foreigners’ claims to a basic human right: asylum. Such perceptions have garnered substantial political support from the Australian electorate, on whose behalf the government bankrolls expensive anti-asylum measures to reduce the number of ‘illegal maritime arrivals’. Measures to deter entry ignore legal status like ‘refugee’ or ‘person at risk of harm in their country of citizenship’, as they are solely concerned with whether a person holds a valid visa or not. Some critics argue that the expenses of offshore detention and other related border protection measures are not value for money. Furthermore, international non-government organisations, such as Amnesty International, and various United Nations bodies have continually criticised Australia for abusing the human rights of asylum seekers.6 On occasion, too, neighbouring countries have also spoken out against Australia’s unilateralism as negatively impacting their region. As early as January 2014, Indonesia’s Minister for Foreign Affairs, Marty Natalegawa, had again labelled Australia’s policies ‘not a solution’ to the movement of asylum seekers through the region, in response to reports that the Australian government had turned back boats carrying asylum seekers within Indonesia’s territorial waters.

To complement the raft of scholarly and policy studies that assume the state is always an inhibitor of people smuggling, this article also examines the rarely discussed role of states as smugglers themselves. Gener-ally, people-smuggling is defined as a crime against the state, because the primary victim is deemed to be the state whose immigration laws are violated. But this narrow understand-ing ignores the possibility that states can and do facilitate crimes against other states. Here, we discuss one such case in which the Austra-lian government paid six Indonesian smug-glers to return to Indonesia with 65 asylum seekers. In the discussion and analysis that follow, we also draw attention to how the turn-back may have violated international as well as domestic laws in Australia and in the neigh-bouring country of Indonesia. We conclude that Australia’s turnback in this instance is not a deterrence model to be adopted by other sought-after destination countries for asylum seekers in the Global North.