AUSTRALIA’S POLICY SHIFT REGARDING ‘BOAT PEOPLE’ ISSUE:
THE RE-ESTABLISHMENT OF OFFSHORE PROCESSING FACILITIES
IN NAURU AND PAPUA NEW GUINEA
(2010-2012)
ABSTRACT
The practice of transferring asylum seekers who arrive to Australia by boat (boat people) to countries in the Pacific was first introduced by the Howard
Government in 2001. This policy became widely known as the ‘Pacific Solution.’
It provided boat people to be sent to offshore facilities in Nauru and Papua New Guinea’s (PNG) Manus Island, where their refugee status was being processed. Yet, the Australian Labor Party, United Nations, and international human rights groups strongly opposed it. They accused the implementation of Pacific Solution over the issue of human rights violation, inadequate offshore processing location, and political interest.
Meanwhile, Kevin Rudd, Australia’s Prime Minister from the Labor party abolished the Pacific Solution in February 2008. A ministerial press release noted that a total of 1637 people had been detained in the Nauru and Manus facilities between 2001 and 2008, including 786 Afghans, 684 Iraqis and 88 Sri Lankans.
However, Rudd’s Labor colleague, Julia Gillard resumed Howard’s Pacific Solution in 2012 when she became the Prime Minister. Gillard’s decision was
highly provocative, considering her refusal on the implementation of offshore processing before. Despite the controversy, the policy is still adopted by the Australian government until now. The qualitative method in the form of literature review will be the guidance througout the data colelecting. This research will employ Foreign Policy Analysis of Domestic Influnces to investigate the driving
factors of Gillard’s change. The author argues that; (1) legislatures and (2) public
opinion are two factors which influence the policy shift of Australia on ‘boat people’ issue.
Keywords: boat people, offshore processing facility, Australia, Nauru, PNG.
ACKNOWLEDGEMENT
Alhamdullilahhirabbilalamin...
I would like to express my gratitude for those who have supported me
throughout the making of this thesis. I realized without their support I could not
even sit here at the moment and wrote this testimony. I want to appreciate them
with a few words that came deep from my heart:
1. My immense gratitude to Allah SWT for the endless blessings. So that I
can finish my skripsi and fulfill my duty as an undergraduate student.
2. I present this thesis as gift to my parents, my sisters and brother. They are
my true champion.
3. Mrs. Mutiara Pertiwi M.A, my thesis advisor. She poured many positive
impacts in me. Thank you for being honest with me for all this time,
therefore I can learn from my mistakes and take actions to remedy them.
4. My friends, Qory, Andri, Sutan, and all HI Inter 2010 classmates.
Batusangkar, 5 April 2015
TABLE OF CONTENTS
ABSTRACT... v
ACKNOWLEDGMENT... vi
TABLE OF CONTENTS TABLE OF CHARTS... viii
TABLE OF TABLES... ix
TABLE OF FIGURES... xi
TABLE OF ABBREVIATION... xii
CHAPTER I INTRODUCTION... 1
A. Problem Statement... 1
B. Research Question... 6
C. Objectives and Benefits... 7
D. Literature Review... 7
E. Theoretical Framework... 9
F. Research Method... 12
G. Outline... 13
CHAPTER II AUSTRALIA, THE ‘BOAT PEOPLE,’ AND THE ‘PACIFIC SOLUTION’...15
A. Australia’s commitment on refugee under international conventions... 15
B. John Howard’s ‘Pacific Solution’ in 2001... 17
2. The opening of offshore processing facilities in
Nauru and Papua New Guinea’s Manus Island in 2001... 22
3. Critics from international human rights
organizations…... 25 C. The Evaluation of Offshore Processing Facilities under
Kevin Rudd in 2008... 27
1. The Australian Labor Party position on the
Howard’s offshore processing arrangement…..…….
... 27
2. The shutdown of offshore processing facilities in
Nauru and Manus Island in 2008... 30
CHAPTER III THE RE-ESTABLISHMENT OF OFFSHORE PROCESSING
FACILITIES IN 2012... 33
A. The attitude shift of Labor party: from Rudd to Gillard
government... 33
B. The re-opening of offshore processing facilities in Nauru
and Manus Island in 2012... 37
C. Critics from international human rights organizations...
CHAPTER IV. THE DRIVING FACTORS CONTRIBUTED TO THE
AUSTRALIA’S POLICY SHIFT ON ‘BOAT PEOPLE’... 43
A. Legislatures... 43
B. Public Opinion... 56
BAB V. CONCLUSION... 64
BIBLIOGRAPHY... xiv
LIST OF CHARTS
Chart IV.A.1. Boat Arrival to Australia (2003-2013)
Chart IV.B. 1. Concerns on asylum seekers arriving by boat Chart IV.B. 1.
Number of Permanent Visas Divided by Categories
Chart IV.B. 2. The percentages of whether Australians are concerned or not
LIST OF TABLES
Table IV.A.1. Composition of the Senate after 1 July 2011
Table IV.B. 1. Whether policy towards asylum seekers has been too soft or
LIST OF FIGURES
Figure IV.A.1. Progress of Legislation
TABLE OF ABBREVIATIONS
AES Australian Election Study
ALP Australia Labor Party
CAT Convention against Torture
FAA First Administrative Agreement
ICCPR International Covenant on Civil and Political Rights
NGO Non-Governmental Organization
OPC Offshore Processing Centre
PNG Papua New Guinea
SAR Search and Rescue
SRR Search and Rescue Regions
TPV Temporary Protection Visa
U.N United Nations
UNCLOS United Nations Convention on United Nations Convention on
the Law of the Sea
CHAPTER I
INTRODUCTION
A. Background
According to the Australian government‟s policy statement of human rights,
an asylum seeker is someone who declares that he or she is a refugee but whose
claim has not yet been assessed.1 Meanwhile a refugee is an asylum seeker whom
their refugee status has been granted by a certain government.2 Many asylum
seeker try to jump the refugee processing queue and try to reach Australia by any
means, mostly via small boat. These asylum seekers were labeled as „boat people‟
by the Australian government.
Since the first boat arrival in 1976, asylum seekers who have managed to
arrive by boat to Australia reveals a significant number. According to the
Parliament of Australia, the number of „boat people‟ in 1976 was 111, and has
risen up to 13.108 in July, 2013.3 In contemporary era (after the Cold War), these
people are coming from various countries in Asia, such as Afghanistan, Iraq, Iran,
and Sri Lanka, places that are suffering from long periods of serious human
insecurity.4 Despite the serious human security concerns, Australia does not have
1 2012 Face the Fact Chapter 3. Australian Human Rights Comission. 2012. Available at:
https://www.humanrights.gov.au/publications/face-facts-2012/2012-face-facts-chapter-3, accessed in the 10th of September 2013.
2 People on the Move. Amnesty International. 2013. Available at:
https://www.amnesty.org/en/refugees-and-migrants/rights-of-refugees-and-migrants, accessed in the 10th of September 2013.
3 Boat Arrivals in Australia since 1976. Parliament of Australia. July 23, 2013. Available at:
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2011 -2012/BoatArrivals, accessed in the 10th of September 2013.
4Asylum seekers: Let‟s have a Mature Discussion, media release. Available at:
consistent responses against the boat people in the past decade. In 2001, after John
Howard‟s term was over, Prime Minister Kevin Rudd dismantled the offshore
processing facilities in Papua New Guinea (PNG) and Nauru. Then Julia Gillard
readopted it in 2012. This thesis is an analytical effort to understand the changing
response of Australia to boat people in the period of Julia Gillard.
The boat people issue has created certain dilemma for Australia since at
least 433 asylum seekers were rescued from a sinking boat by the Norwegian
freighter Tampa on August 26, 2001.5 While Tampa was headed for Australia‟s
Christmas Island, Australian authority informed the rescues would not be allowed
to disembark.6It appears to point out Indonesia, the country in which the „nearest
feasible port of disembarkation‟ was located.7
The plan that the rescues ought to have been taken to Indonesia was highly
debatable. In fact Indonesia is not the signatory of United Nations Refugee
Convention. A state without legal asylum systems generally considers refugees
are susceptible to „detention, expulsion, refoulement and other serious protection
risks.‟8
Therefore asylum seekers in its territory may not have the same levels of
protection as they could arrange in Australia. But from the Australian
government‟s perspective, they came to Australia illegally.9
So that Australia
5 Tampa Final Chapter as 12 Get Approval. The Age. 2004. Available at:
http://www.theage.com.au/articles/2004/05/19/1084917654069.html, accessed in the 30th of July 2014.
6 Maritime Report,
supra note 16, 1.3. Available at
http://blog.hawaii.edu/aplpj/files/2011/11/APLPJ_06.1_taylor.pdf, accessed in the 13th of June 2014.
7 Ibid.
8 2015 UNHCR Subregional Operations Profile-South East-Asia. The U.N Refugee Agency. 2014. Available
at: http://www.unhcr.org/pages/49e488116.html, accessed in the 5th of September 2014. 9Maritime Report, supra note 16, 1.3. Available at
could not accept them. The point was Australia would not allow the Tampa
survivors to enter Australian soil.10
In its efforts to counter the above problems, John Howard, Australia‟s Prime
Minister at that time planned to establish the „Pacific Solution.‟ This is a struggle
to transfer Tampa‟s boat people to several Pacific countries, such as Fiji, Palau,
Tonga, and Tuvalu throughout September and October 2001, it was however
unsuccessful.11 Eventually, the Australian government carefully resolved the
replacement of Tampa rescue by making arrangements for 150 of the Tampa
survivors to have their claims considered in and by New Zealand and for the
remainder was going to Nauru to process their refugee status.12
To manage similar cases occur in the future, an offshore processing facility
was made. The Australian Government completed its negotiations and signed
administrative agreements with the governments of Nauru and PNG on September
and October 2001, which was known as Pacific Solution today.13 On 15 April
2002, there are approximately 1155 people was transferred to Nauru and 356
people to PNG‟s Manus Island.14 If they are found as refugees, soon they would
be sent for a resettlement to other Western countries. In Australia‟s press, this new
arrangement with PNG and Nauru was an achievement.
10 Ibid.
11 Maritime Report,
supra note 16, 1.3. Available at
http://blog.hawaii.edu/aplpj/files/2011/11/APLPJ_06.1_taylor.pdf, accessed in the 13th of June 2014.
12 Refugee Deal a Shambles, Sunday Age (Melbourne, Austl.), Sept. 2, 2001, at 1. Available at
http://blog.hawaii.edu/aplpj/files/2011/11/APLPJ_06.1_taylor.pdf, accessed in the 13th of June 2014.
13The „Pacific Solution‟ revisited: a statistical guide to the asylum seeker caseloads on Nauru and Manus
Island. The Parliamentary of Australia. September 2012. Available at:
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2012 -2013/PacificSolution, accessed in the 23th of August 2014.
Despite the success, these offshore facilities were also under hard criticism.
The Australian Parliamentary Joint Committee on Human Rights reveals that the
Government‟s Pacific Solution has failed to hold on fundamental human
protections in key human rights treaties.15 Moreover, the condition on Manus
Island was inadequate. United Nations High Commissioner for Refugees
(UNHCR) examined the majority of asylum seekers live in „cramped
accommodation‟ conditions, with some of them placing their bedding on the floor
to desert the „particularly oppressive‟ hot conditions.16
Moreover it said, there is a
block „smelt putrid‟ and broken shower equipment which made filthy water filling
the floor.17 It also noted that all asylum seekers showed signs of mental health
issues and mental illness.18
Meanwhile, a strong opposition towards the issue is also displayed by the
Australian Labor Party. As documented by the Parliament of Australia, in
November 2008, the Labor Party expressed its disagreement and declared that
Labor committed to abolish „Pacific Solution.‟ They argued it was „neither
humane nor fair,‟ the Pacific Solution was „ineffective and wasteful.‟19 One of the
Labor prominent political leaders, Julia Gillard, also stated in 2007:
„Labor will end the so-called „Pacific Solution‟, the processing and detaining of asylum seekers on Pacific islands, because it is „costly
15 Ibid.
16U.N Refugee Agency Condems Australia‟s Offshore Detention Regime. The Guardian. November 2013.
http://www.theguardian.com/world/2013/nov/26/un-refugee-agency-condemns-australias-offshore-detention-regime, accessed in the 1st of August 2014.
17 Ibid. 18 Ibid.
19 Gillard Reinvents the Pacific Solution. Solidarity.net. August 2011. Available at:
(spent more than $500,000), unsustainable and wrong as a matter of principle.‟20
When John Howard was replaced by Kevin Rudd in 2007, the offshore
processing arrangement was evaluated. It was considered unsuccessful as the boat
arrival raised and put Australia‟s border in jeopardize.21 The Rudd government on
8 February declared to dismantle Howard's „Pacific solution‟ which involved the
end of offshore processing facilities in Nauru and PNG‟s Manus Island.22
United
Nations High Commissioner for Refugees welcomes the shutdown of Australia's
„Pacific Solution.‟23
Yet, only in the period of five years, the offshore facilities were resumed by
Julia Gillard in 2010. The impetus for change was as well considered after she
found the growing death toll of asylum seekers. Immediately, her government
embraced „22 Recommendations of Expert Panel‟ into asylum seeker policy.24 It
was including the reestablishment to offshore processing arrangement in Nauru
and Papua New Guinea.25 Julia Gillard eventually readopted John Howard's
Pacific Solution, agreeing to reopen offshore processing centers in Nauru and
Manus Island.
20 PNG Confirms Talk to Reopen Manus Island Detention Centre. ABC. May 2011. Available at:
http://www.abc.net.au/pm/content/2011/s3210106.htm, accessed in the 2nd of August 2014.
21 Rudd Reveals His Pacific Solution: MP. The Sydney Morning Herald. October 2009. Available at:
http://news.smh.com.au/breaking-news-national/rudd-reveals-his-pacific-solution-mp-20091013-gups.html, accessed in the 5th of September 2014.
22Immigration Detention in Australia. The Parliament of Australia. 2013. Available at:
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2012 -2013/Detention#_Toc351535442, accessed in the 1th of August 2014.
23UNHCR Welcomes Close of Australia‟s Pacific Solution. The U.N Refugee Agency. 2008. Available at:
http://www.unhcr.org/47ac3f9c14.html, accessed in the 5th of September 2014.
24 Australia Asylum MPs Back Offshore Processing. BBC News. 2012. Available at:
http://www.bbc.com/news/world-asia-19264516, accessed in the 6th of August 2014.
Her decision to re-establish the offshore arrangement in PNG and Nauru
was not untouched by hard criticism. The Non-Governmental Organizations
(NGO) such as Amnesty International firmed that it opposes any measure of
offshore processing and policies aiming on deterrence to punish people based on
their mode of arrival.26 Beyond the critic, Gillard‟s decision to re-establish this
offshore processing facilities also implied such a contradiction with the promise
she made once to her political constituent.
Having these offshore facilities re-opened, Gillard and the rest of Labor
Party‟s leaders are being inconsistent with their previous position. Eight years
earlier, Labor parliamentarians including Gillard had demonstrated very
differently upon the issue as she in 2007 quoted „We have committed to ending
the so-called „Pacific Solution.‟27 The shift of Australia‟s policy of offshore
asylum processing from Rudd to Gillard government, despite their similar
political party base, raises an analytical inquiry to investigate. This thesis takes an
effort to clarify the driving factors that have contributed to this provocative shift.
B. Research Question:
What are the driving factors contributed to the policy shift of Australia
under Julia Gillard government on „boat people‟ issue?
26 United Opposition Migration Legislation Amendments. 2012. Available at:
http://www.hrlc.org.au/files/united-opposition-migration-legislation-amendments.pdf, accessed in the 2nd of August 2014.
27The Gillard‟s Government Offshore Dumping Policy. Available at:
C. Objectives and Benefits
The objectives of this research will be:
1. To analyze the driving factors that lead the Gillard government
re-established one of the most controversial elements of the Howard
government's „Pacific Solution,‟ by reopening the offshore facilities in
Nauru and Manus Island.
2. To explain the attitude shift of the Australian Labor government under
Rudd to Gillard government upon the case of offshore processing
facilities on Nauru and Manus Island.
Furthermore, the benefits of this research will be:
1. To inform the readers upon the topic of Australia‟s asylum policy.
2. To contribute International Relations analysis on asylum seeker issues
in Australia.
D. Literature Review
The discussion of Australia‟s asylum policy asylum has been always
debatable. The response towards the issue usually leads into pros and cons. Thus
there are many scholars or academicians have done academic writings about it.
Meanwhile only a few research have focused the discussion on the actor‟s
behavior. The author thinks there is a political shift of Australian under the
processing facilities in Nauru and Manus Island. Hence the explanations of
literature reviews below are expected to support the author‟s research is
significant to be discussed in International Relations discipline.
The research from State Crime Journal „Back to Future: Australian Border
Policing under Labor, 2007-2013,‟ Michael Grewcock analyses the border
policies of Australia‟s federal Labor governments between 2007 and 2013. He
argues that the policies of „externalization‟ pursued by Labor inevitably directed
to the reestablishment of the Pacific Solution. Which was introduced for the first
time by the previous Liberal-National Party Coalition government.
Meanwhile, in 2012, Caroline Fleay from Curtin University, wrote an article
on Journal of Centre for Human Rights Education „Repeating Despair on Nauru:
The Impacts of Offshore Processing on Asylum Seekers.‟ Generally, she
examines that the Australia‟s legislation passed by Federal Parliament in August
2012 allows for men, women and children to be sent to Nauru and Manus Island
for offshore processing was inhumane and is about to repeated under Gillard
government. She argues that the experiences of asylum seekers held on Nauru
highlight the depression and mental health problems. It is caused by the poor
detention system. Meanwhile, it is deteriorated because it was located in isolated
island, where living conditions were inadequate and refugee claims processing
was uncertain. Furthermore, Fleay concludes that offshore processing will
continue to be a form of punishment for asylum seekers arriving by boat to
Lastly, from journal Universitas Airlangga, Muhammad Rizki Herdianzah
wrote a thesis of „Kebijakan Pemerintah Australia Terkait Permasalahan Irregular
Maritime Arrivals Periode Kepemimpinan Perdana Menteri Julia Gillard Tahun
2010 – 2012.‟ Herdianzah discovers that Australia‟s asylum policies in response
to Irregular Maritime Arrivals (boat people) under the Gillard government as
punitive. The policies were encompassing several attempts made by Gillard, such
as „Regional Offshore Processing Centre‟ in Timor Leste,the „Malaysia Solution,‟
and the reestablishment of Pacific Solution. There are three of factors which were
considered as the influential factors on the policies making. They are bureaucratic,
partisan, and mass media factors. Yet he found that state‟s interests was not an
influential factor on the policy making.
Referring to the literature reviews above, we may conclude the three of
these research have particularly focused on the policy. The researches scrutinize
the Australia‟s asylum policy of offshore processing arrangement as punitive.
Meanwhile, in this research, the author will focus on the actor‟s behavior. The
author indicated there is a shifting attitude of the Australian Labor government
under Kevin Rudd to Julia Gillard on issue of offshore processing arrangement.
E. Theoretical Framework
In order to establish a rigid research in explaining and understanding this
research, the theoretical framework will be employed. The theoretical framework
question that was raised in this thesis. For the purpose of analysis, this research
will use the concept of Foreign Policy Analysis of domestic Influence.
In the book „Foreign Policy,‟ Pearson underlines that the actions (foreign
policy) of a state is resulted from decision making process, influencing by the
state‟s internal structure, which are:
1. Legislatures
In parliamentary systems, legislatures play a key role in
designing and implementing foreign policy. Although, in executing an
international agreement, the consent of Parliament is not needed. Yet
the Prime Minister requires the Parliament‟s vote if the international
agreement is affected to the change of the state‟s Law. Normally, most
international agreements include a few changes, therefore the
Parliament allows to exercise its right to approve or disapprove the
international agreements.
Since Australia embraces the parliamentary system, Julia Gillard
as the Prime Minister is allowed to implement Malaysia Solution
without the Parliament approval as long the policy does not entail
some changes to the Australian Migration Act. Unfortunately, in order
to pass the policy, Gillard requires the House of Representative and the
Senate approval. Because according to the Migration Act, a
non-member to the U.N Refugee Convention cannot do offshore
processing. In fact Malaysia is not signatory to the Convention.
the Migration Act will success or otherwise. As Pearson explained on
the book „Foreign Policy,‟
„In parliamentary systems, executives, for example, prime ministers are chosen by the political parties that hold a dominant position in the legislative bodies. Often parliamentary executives do not need to submit treaties or policies for formal approval by the legislatures. Yet legislatures in parliamentary systems still hold power regarding foreign policy.‟ 28
2. Public Opinion
The importance of foreign policy issues held by the citizens of a
state. Due to citizen‟s direct vote on the presidential or ministerial
election, public opinion has greater influence on foreign policy in
democracies than in authoritarian governments. Political leaders must
pay attention to what citizens think. As Pearson explained on the book
„Foreign Policy,‟29
„It must persuade people to accept its policies, because in the end, policies are carried out by ordinary people like soldiers, workers, and bureaucrats.‟
The Gillard government can success in governing democratic
society as it needs public support to survive. Because the government
failure on Malaysia Solution can shift public opinion. Consequently,
public prefers to favor Coalition Party‟s policy of Pacific Solution in
order to heal their disappointment.
28 Foreign Policy. The White House Oval Office. 2010. p, 136. Available
at: http://www.pearsonhighered.com/assets/hip/us/hip_us_pearsonhighered/samplechapter/0205059570.pdf. Accessed in the 5th of December 2014.
F. Research Methods
The research employs the qualitative method in the form of literature
review. In his book „An Introduction to Qualitative Research,‟ Hancock expounds
upon the features of qualitative research. Hancock explains qualitative research is
concerned with the opinions, experiences and feelings of individuals producing
subjective data. It describes social phenomena as they occur naturally. Also, there
is no attempt is made to manipulate the situation under study as is the case with
experimental quantitative research. For understanding of a situation is gained
through a holistic perspective. In qualitative method, data are collected through
literature studies and direct encounters with individuals or one to one interviews.
The primary resources of this research are collected from the international
and local media, relevant journals, and articles from trusted sources, such as
Australian government website, educational institutions, and academic research
centers that have been uploaded from internet. Other references are taken from the
official website of Australian, UNHCR Australia, Amnesty International, library
of UIN Syarif Hidayatullah Jakarta, the library of FISIP UIN Jakarta and the
G. Outline
CHAPTER I. INTRODUCTION
A. Problem Statement
B. Research Question
C. Purposes and Benefits
D. Literature Review
E. Theoretical Framework
F. Methodological Research
G. Outline
CHAPTER II. AUSTRALIA, THE ‘BOAT PEOPLE,’ AND THE ‘PACIFIC
SOLUTION’
A. Australia‟s commitment on refugee under international conventions
B. John Howard‟s „Pacific Solution‟ in 2001
1. The Tampa case
2. The opening of offshore processing facilities in Nauru and Papua
New Guinea‟s Manus Island
3. Critics from international human rights organizations
C. The Evaluation of Offshore Processing Facilities under Kevin Rudd in
2008
1. The Australian Labor Party position on the Howard‟s offshore
2. The shutdown of offshore processing facilities in Nauru and Manus
Island in 2008
CHAPTER III. THE RE-ESTABLISHMENT OF OFFSHORE
PROCESSING FACILITIES IN 2012
A. The attitude shift of Labor party: from Rudd to Gillard government
B. The re-opening of offshore processing facilities in Nauru and Manus
Island in 2012
C. Critics from international human rights organizations
CHAPTER IV. THE DRIVING FACTORS CONTRIBUTED TO THE
AUSTRALIA’S POLICY SHIFT ON ‘BOAT PEOPLE’ ISSUE
A. Legislatures
B. Public opinion
CHAPTER II
AUSTRALIA, THE ‘BOAT PEOPLE,’ AND THE ‘PACIFIC SOLUTION’
A. Australia’s Commitment to Refugees under two International
Conventions
Australia has international obligations in relation to asylum seekers who
come to Australia, regardless of the method of their arrival. Australia ratified the
United Nations 1951 Convention Relating to the Status of Refugees in 1954 and
the Protocol in 1973.30 Under the agreement, Australia is responsible to accept
asylum seekers who arrived on Australian soil.31 Later on 13 August 1980,
Australia bound to the International Covenant on Civil and Political Rights
(ICCPR).32 The ICCPR requires Australia to take all necessary legislative and
other measures to avoid cruel detention and punishment towards asylum seekers.
Under these two agreements Australia holds three major obligations.33 The
first is to not return refugees or asylum seekers to their home country. As the
principle of non-refoulemet in the U.N (United Nations) Convention relating to
the Status of Refugees, in Article 33(1) provides:34
„No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or
30 Australia Refugee Policy. Australian Prime Minister Centre. Available at:
http://static.moadoph.gov.au/ophgovau/media/images/apmc/docs/81-Refugees.pdf. Accessed in the 11th of December 2014.
31Ibid
32 Human Rights Explained: Fact sheet 5: the International Bill of Rights. Australian Human Rights
Comission. Available at: www.humanrights.gov.au/human-rights-explained-fact-sheet-5the-international-bill-rights. Accessed in the 11th of December 2014.
33The Pacific Solution: Assesing Australia‟s Compliance with International Law. Bond University Student
Law Review. January 3, 2007. Available at: http://epublications.bond.edu.au/buslr/vol3/iss1/, accessed in the 3rd of September 2014.
34Refoulment. UNESCO. August 23, 1977. Available at:
freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.‟
This is also known as the principle of non-refoulement. Importantly, refoulement
is not restricted to returning a refugee to the place where they come from.35 It also
forbids Contracting States not to locate refugees to a territory in which refugees
are at „risk of persecution.‟36
Secondly, the Refugee Convention also prohibits discrimination of asylum
seekers based on the mode of their arrival to the country where they are seeking
protection.37 The 1951 the Refugee Convention article 1 forbids „...penalties such
as limitation and prevention to immigration access may not be imposed on
refugees „on account of their illegal entry.‟38
The cause of discrimination in this
article includes the differentiation between classes of visas provided by Australian
Immigration for asylum seekers based on their legality in entering Australian
territory.
Thirdly, the ICCPR guarantees that every refugees and asylum seekers will
be free from arbitrary arrest or detention.39 This Convention provides many
fundamental rights, including prohibition of torture, cruelty, inhuman and
degrading treatment.40 In its article 7 and 6(1), ICCPR claims:41
35Convention and Protocol Relating to the Status of Refugees. The U.N Refugee Agency. Available at:
http://www.unhcr.org/3b66c2aa10.pdf., accessed in the 16th of October 2014.
36Ibid.
37Convention and Protocol Relating to the Status of Refugees. The U.N Refugee Agency. Available at:
http://www.unhcr.org/3b66c2aa10.pdf., accessed in the 16th of October 2014.
38The Refugee Convention, 1951. Available at: http://www.unhcr.org/4ca34be29.pdf, accessed in the 15th of
October 2014.
39Convention and Protocol Relating to the Status of Refugees. The U.N Refugee Agency. Available at:
http://www.unhcr.org/3b66c2aa10.pdf., accessed in the 16th of October 2014.
40Core Human Rights in the Two Covenants. United Nations Human Rights Office of the High
Commissioner. September, 2013.
„No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.‟
Detaining refugees in this treatment may be widely considered as unlawful under
the ICCPR, and may also constitute a penalty for illegal entry as prohibited under
the Refugees Convention.42
B. John Howard’s ‘Pacific Solution’ in 2001
1. The Tampa Case
The arrival by boat of asylum seekers on Australian territory is not a new
phenomenon. The first arrival occurred in 1976, and it brought at least 111 asylum
seekers in the aftermath of the Vietnam War.43 Ever since, the Australians use the
term „boat people‟ to address asylum seekers who arrive by boat to Australia.44
In
the following waves, more people from Vietnam, Cambodia, and Southern China
came ashore. Australia under the Prime Minister Malcom Fraser received the
„boat people‟ flow from Vietnam gladly. Between 1976 and 1982, more than 2000
Vietnamese boat people were resettled in Australia.45 They were not detained in a
camp and were issued a temporary protection visa.
41 International Covenant on Civil and Political Rights. United Nations Human Rights. December 16, 1966.
Available at: http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. Accessed in the 11th of December 2014.
42The Pacific Solution: Assesing Australia‟s Compliance with International Law. Bond University Student
Law Review. January 3, 2007. Available at: http://epublications.bond.edu.au/buslr/vol3/iss1/1, accessed in the 3rd of September 2014.
43 Boat Arrivals in Australia since 1976. Parliament of Australia. July 23, 2013. Available at:
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2012 -2013/BoatArrivals, accessed in the 3rd of September 2014.
44 Ibid.
45 Migration Policy Institute. July 11, 2012. Available at:
The government's good treatment of the Vietnamese boat people was a
golden period of Australia's immigration history.46 In the 1970‟s, Australia
displayed its welcoming humanitarian treatment to refugees. Australia had three
facilities as immigration detention centers, in Sydney, Perth and Melbourne.47 The
facilities were adequate for basic protection and refugee processing occurred
efficiently.
This resulted in a change of Australia‟s treatment on refugees after 1992.48
It was due to the number of boat arrivals increased between November 1989 and
January 1992.49The „boat people‟ issue then became a serious concern not only in
terms of the lack of control over Australia‟s borders, but also of whether the
arrivals were „genuine refugees.‟50
The anxiety continued and drove Australia to
establish „mandatory detention‟ in 1992.51
In 1993, the Parliament extended the
application of mandatory detention to all persons whose arrived without visas or
who were in Australia on an expired or cancelled visa.52 Unfortunately, this Act
continues to influence asylum seeker policy until today.
The most intriguing „boat people‟ arrival issue was the case of Tampa. It
occurred on August 26, 2001, when Indonesian fishing vessel Palapa sunk on its
46Ibid.
47 Ibid.
48 Boat Arrivals in Australia since 1976. Parliament of Australia. July 23, 2013. Available at:
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2011 -2012/BoatArrivals, accessed in the 16th of 2014.
49Australia‟s Immigration Detention Policy and Practice. Australia Human Rights Commission. Available at:
https://www.humanrights.gov.au/publications/last-resort-national-inquiry-children-immigration-detention/6-australias-immigration, accessed in the 16th of October 2014
50 Malcolm Fraser's Response to 'Commercial' Refugee Voyages. ECU Publications Pre. 2011. Available at:
http://ro.ecu.edu.au/cgi/viewcontent.cgi?article=7219&context=ecuworks. Accessed in the 25th of December 2014.
51 Boat Arrivals in Australia since 1976. Parliament of Australia. July 23, 2013. Available at:
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2011 -2012/BoatArrivals, accessed in the 16th of 2014.
way off Christmas Island, Australia.53 It was then rescued by the Norwegian cargo
ship MV Tampa with 433 Afghani asylum seekers found alive.54 Australia
prohibited survivors from accessing Australian territory and requested the Tampa
to return survivors to Indonesia.55 Its action referred to the 1979 International
Convention on Maritime, Search and Rescue (SAR), of which Australia and
Indonesia were signatories.56
According to the agreement, the area where the Palapa sunk was part of
Indonesia‟s Search and Rescue Regions (SRR).57 However Indonesia turned down
any obligation to assist the Tampa survivors. Indonesia believed these survivors
were not refugees but illegal immigrants.58 Moreover, on an interview on 30
August 2001 to Australian Broadcasting Corporation, Indonesia‟s Parliamentary
Commission on Migration and Security, Yasril Ananta Baharuddin, defended
Indonesia‟s stance on Tampa case:59
„...because these are not refugees and this is not a political asylum according to the international law, Geneva Convention 1951.This is illegal migrant, so basically, economic reason from that point of view, we are under no obligation, international obligation I mean, based on law international and our national legislation. We cannot accept the
53Australian Border Deaths Database. Monash University Arts. Available at:
http://artsonline.monash.edu.au/thebordercrossingobservatory/publications/australian-border-deaths-database/, accessed in the 3rd of September 2014.
54Taylor, Savitri. The Pacific Solution or A Pacific Nightmare?: the Difference Between Burden Shifting and
Responsibility Sharing. Asia Pacific Law and Policy Journal. Vol, 6. Issue, 1. Winter 2005. Available at: http://blog.hawaii.edu/aplpj/files/2011/11/APLPJ_06.1_taylor.pdf, accessed in the 13th of June 2014.
55Tampa Enters Australian Waters with 433 Asylum Seekers on Board on Board. ABC News. 2001.
Available at: http://www.abc.net.au/archives/80days/stories/2012/01/19/3412121.htm, accessed in the 17th of October 2014.
56Does Indonesia have to take asylum seekers rescued by the Australian Navy? ABC News. November 22, 2013. Availablet at:
http://www.abc.net.au/news/2013-11-14/asylum-seekers-rescued-at-sea/5088168, accessed in the 17th of October 2014.
57Does Indonesia have to take asylum seekers rescued by the Australian Navy? ABC News. November 22, 2013. Availablet at:
http://www.abc.net.au/news/2013-11-14/asylum-seekers-rescued-at-sea/5088168, accessed in the 17th of October 2014.
58Indonesia defend its stand on the Tampa. Australia Broadcasting Corporation. July, 30 2001. Available at:
http://www.abc.net.au/7.30/content/2001/s355372.htm, accessed in the 17th of October 2014.
responsibility because they are not Indonesian citizens. They came from Afghanistan and other countries.‟
According to the 1982 United Nations Convention on United Nations
Convention on the Law of the Sea (UNCLOS), ships have an obligation to rescue
persons in distress at sea.60 Yet no clear legal obligations were imposed on any
state to take responsibility for ship crash survivors who did not wish to return
home.61 Meanwhile the UNCLOS Article to rescue persons in distress at sea had
convinced Arne Rinnan, the Tampa Captain, to rescue the wrecked Palapa.
Rinnan even pleaded to Australian authorities to receive the survivors.22 His act
relied on the commitment of Australia to treat boat people according to the
International Rules of Sea Rescue, as codified in UNCLOS.62
Yet more than two hours after his plea, Australian authorities continued to
eschew responsibility for the sea rescue operation.63 The proposal to have
Indonesia as the spot of disembarkation was un-agreed upon. In fact, at the end,
Indonesia agreed to allow the Tampa survivors to disembark on the Merak port of
Indonesia, but unfortunately the survivors rejected it.64
Australia‟s response delivered a clear message that it would assist the
Tampa survivors to disembark on any place but Australia. To confirm it, a policy
has been executed by the Australian government, assigning their regional
60Preambule to the United Nations Convention on the Law of the Sea. Available at:
http://www.un.org/depts/los/convention_agreements/texts/unclos/part7.htm, accessed in the 4th of September 2014.
61The Pacific Solution or A Pacific Nightmare?: the Difference Between Burden Shifting and Responsibility
Sharing. Asia Pacific Law and Policy Journal. Vol, 6. Issue, 1. Winter 2005. Available at: blog.hawaii.edu/aplpj/.../APLPJ_06.1_taylor.pdf,accessed in the 13th of June 2014.
62The State of The World‟s Refugees 2006. The UN Refugee Agency. April 2006. Available at:
http://www.unhcr.org/4444d3c320.html, accessed in the 4th of September 2014.
63Ibid.
64Refugee Ship: Who should take Responsibility? BBC UK. September 4, 2001Available at:
diplomats to find location on which the survivors could be temporarily settled.65
Meanwhile Australian also approached the government of Timor Leste for a
negotiation but it did not succeed.66
The Tampa case was eventually resolved in a dramatic twist. After their
efforts, Australia‟s search ended when New Zealand agreed to be the host for the
208 survivors in 2001.67 It was unclear whether New Zealand was giving its favor
or disdain in agreeing Australia‟s suggestion to receive the survivors. As New
Zealand Prime Minister, Helen Clark, recalled, the event of Tampa was an untold
lesson. Australia's refusal to accept the asylum seekers made her learned of „the
stand-off.‟68 In 2002, New Zealand had accepted 208 Afghan refugees from the
Tampa, including 131 Tampa survivors and another 77 who waiting their refugee
status determination in Nauru by UNHCR.69
On 17 September 2001, Australia established an emergency bill named
„Border Protection Bill 2001.‟70
The bill provided Australia with the authority to
remove the MV Tampa and any ships or other vessels found in the territorial
waters of Australia.71 The United Nations, the government of Norway, legal
65. Accessed in the 13th of December 2014.
66The Pacific Solution or A Pacific Nightmare?: the Difference Between Burden Shifting and Responsibility
Sharing. Asia Pacific Law and Policy Journal. Vol, 6. Issue, 1. Winter 2005. Available at:
http://blog.hawaii.edu/aplpj/files/2011/11/APLPJ_06.1_taylor.pdf, accessed in the 13th of June 2014.
67We are the Truly Lucky Ones. The New Zealand Herald. April 9, 2005. Available at:
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10119544, accessed in the 20th of September 2014.
68Ibid.
69UNHCR warmly welcomes New Zealand citizenship for 'Tampa Boys.' The UN Refugee Agency. April 8,
2005. Available at: http://www.unhcr.org/4256678014.html, accessed in the 20th of September 2014.
70Border Protection Bill 2001. Parliament of Australia. August 29, 2001. Available at:
http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd0102/02bd041, accessed in the 17th of
October 2014.
71How Tampa Become a Turning Point. Amnesty International. June 14, 2007. Available at:
commentators, and human rights advocates strongly opposed this Bill.72 The
Border Protection Bill 2001 was accused of breaching the 1951 Refugees
Convention of non-refoulement73and for humanitarian reasons.
2. The Opening of Offshore Processing Facilities in Nauru and Papua New
Guinea’s (PNG) Manus Island
The Tampa case became a turning point in Australian history.74 This event
totally transformed Australia‟s point of view and attitude toward „boat people‟.
Immediately Australia took precaution from the Tampa incident to strengthen its
border and immigration policy. As Australian Prime Minister, John Howard on 28
October 2001 displayed his distaste on boat arrivals, he declared, „We decide who
comes to this country and the circumstances in which they come.‟75 Thus Howard
initiated the establishment of the „Pacific Solution‟ as a deterrent policy to stop
the arrival of „boat people.‟
Pacific Solution initiated a significant change to the Australian Migration
Law. Under the new policy, the territories of Christmas Island, Ashmore Reef,
and the Cocos Islands were excluded from „the apprehension of Migration Act.‟76
In fact, these outer territories are the locations for „boat people‟ to disembark.
72Ibid.
73The Refugee Convention, 1951. Available at: http://www.unhcr.org/4ca34be29.pdf, accessed in the 15th of
October 2014.
74How Tampa Become a Turning Point. Amnesty International. June 14, 2007. Available at:
http://www.amnesty.org.au/refugees/comments/how_tampa_became_a_turning_point/ accessed in the 20th of September 2014.
75Terror and Performance. Routledge 2014, p, 176, availabet at
http://books.google.co.id/books?id=jgxgAwAAQBAJ&pg=PA176&lpg=PA176&dq=statemen t+%E2%80%9CWe+decide+who+comes+to+this+country+and+the+circumstances+in+which+they+come% E2%80%9D&source=bl&ots=94as2mtq_k&sig=B4W7g7egrJHmjmVRV5tDU4kn4cE, accessed in the 22th of September 2014.
76Border Protection Bill 2001. Parliament of Australia. August 29, 2001. Available at:
According to the 1958 Australian Migration Act, refugees who reach Australian
territory would have the opportunity to access Australian courts of law.77
Therefore, for refugees who reach the excised parts of Australia, the right to seek
asylum would be denied. Furthermore, the Pacific Solution commanded the
Australian Navy to intercept and transfer arriving „boat people‟ to detention
camps on the small Pacific islands of Nauru and Manus for status processing and
detention.78
Nauru and PNG have agreed Memorandum of Understanding (MoU) with
Australia to receive „boat people‟ arrivals. On September 10, 2001, Nauru signed
a Statement of Principles and First Administrative Agreement (FAA) with
Australia agreeing to host 283 of the Tampa survivors and 237 other asylum
seekers intercepted by the Australian Navy.79 Later on December 11, 2001 the
FAA was replaced by a new agreement to host up to 1,200 asylum seekers at a
time.80 Meanwhile, on October 11, 2001, Australia and Papua New Guinea signed
a Memorandum of Understanding to host 225 asylum seekers.81 After they are
taken to Nauru and PNG, their claim would be examined through a series of
administrative processes. Once it is granted, Australia and the UNHCR would
search for third-party countries willing to resettle them.82 However, recognized
77Ibid.
78 Asylum Seekers and Refugees What are the Facts. Parliament of Australia. February 11, 2013. Available
at:http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/20 122013/PacificSolution#_Toc334509636, accessed in the 23th of September 2014.
79Chapter 10 : Pacific Solution: Negotations and Agreements. The Parliament House of Australia. Available
at:http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Former_Committees/maritimeincident /report/c10, accessed in the 23th of September 2014.
80Ibid. 81Ibid.
82 UNHCR: Australia-Papua New Guinea asylum agreement presents protection challenges. The U.N
refugees also given the same treatment as rejected asylum seekers and asylum
seekers who awaiting status determination.83 They disallow to go outside but to
spend months within the offshore processing areas while waiting for their
placement.84
The opening of the offshore processing facilities in Nauru and Manus Island
were highly provocative. Neither Nauru nor PNG were parties to the Convention
against Torture (CAT) and the International Covenant on Civil and Political
Rights (ICCPR).85 Consequently, asylum seekers right is limited. Therefore, the
offshore processing needed to be done under sufficient watch to keep the
prosperity and human rights obligations in order. In the long term it could cause
some problematic issues. In 2003 for example, 9 residents of the processing
centers in Nauru launched „a hunger strike‟ protesting their detention.86
Ironically,
both Australia and Nauru responded by blaming each other. Nauru‟s Finance
Minister accused Australia of having failed to provide adequate medical
assistance.87 On the other hand, Australia argued that it was not responsible for
the protest, since it occurred outside Australia‟s authority. Sadly, the protest
which launched by the asylum seekers failed to free them from the detention.
83Ibid.
84The Pacific Solution or A Pacific Nightmare?: the Difference Between Burden Shifting and Responsibility
Sharing. Asia Pacific Law and Policy Journal. Vol, 6. Issue, 1. Winter 2005. Available at: blog.hawaii.edu/aplpj/.../APLPJ_06.1_taylor.pdf,accessed in the 13th of June 2014.
85 Monitoring the Core International Human Rights Treaties. United Nations Human Rights. Available at:
http://www.ohchr.org/EN/HRBodies/Pages/TreatyBodies.aspx, accessed in the 23th of September 2014.
86Migration Information Source. December 1, 2012. Available at:
http://www.migrationpolicy.org/article/top-10-2012-issue-8 -major-immigration-countries-take-crack-addressing-thorny-issue-immigrant, accessed in the 24th of September 2014.
87 Hunger strikers are Nauru's problem: Ruddock. Fairfax Digital. January 7, 2004. Available at:
3. Critics from International Human Rights Organizations
The Refugees Convention and the ICCPR questioned the „Pacific Solution‟
as it might harm three legal obligations of: (1) „the prohibitions on refoulement;
(2) discrimination due to illegal entry; and (3) detention.‟88
The ICCPR has
clearly stated its non-acceptance of refoulement of refugees at a state‟s frontier.89
However Australia‟s policy of sending refugees to excised territories imply
otherwise. While the Refugee Convention has declared that refugees may not be
penalized despite their legality coming on a territory,90 in actuality, „boat people‟
were detained in inhumane offshore facilities for uncertain lengths of time as the
result of Australian policy. Moreover, Australia has been applying detention
system for arriving „boat people‟ since 1992. Unlike Australia, PNG and Nauru
are not familiar and inexperienced to implement the detention system.91
Therefore, the offshore processing arrangement stands in stark contrast to the
standard of lawfulness in the ICCPR.
In response, Philip Ruddock, Howard‟s Immigration Minister
responded that he would like to reevaluate Australia‟s obligations under the
United Nations Refugee Convention on Refugee Status.92 He argued that the
structure of the UN Refugee Convention was no more suitable to the present
88Australia International Obligations. Parliament House of Australia. Available at:
http://expertpanelonasylumseekers.dpmc.gov.au/sites/default/files/report/attachment_3_australia_internationa l_obligations, accessed in the 17th of September 2014.
89Ibid.
90Convention Relating to the Status of Refugees and its 1967 Protocol. UNHCR. 28 July, 2951. Available at:
http://www.unhcr.org/496365eb2.pdf. accessed in the 25th of September 2014.
91Fact sheet 82 - Immigration detention. Australian Department of Immigration and Border Protection.
Available at: https://www.immi.gov.au/media/fact-sheets/82detention.htm, accessed in the 25th of September 2014.
92The Conversation. July 18, 2013. Available at:
condition of refugees who seek asylum through countries in search of „preferred
countries.‟93
More he said:
„There are something of the order of 14 million, I think, people who are found to be refugees by the United Nations and they‟re right around the world. We can‟t take them all. We are one of the largest per capita re-settlers of refugees and what is happening is our capacity to re-settle and help is being diminished because we‟re being now very close to overrun by those who are in a position to pay people smugglers and are coming here... Humane policy is about protecting our borders and maintaining our capacity to help those who need it most.‟94
Human rights groups, legal scholars, and United Nations bodies have
criticized the treatment of refugees as incompatible with the international
treaties.95Australia‟s offshore processing laws in Nauru and Manus Island were
not considered as suitable with fundamental human rights principles.
93The Australian. July 16, 2012. Availablet at:
http://www.theaustralian.com.au/national-
affairs/immigration/post-war-refugee-convention-short-changes-australia/story-fn9hm1gu-1226426694966?nk=7c5b6b7bd33002fce712e0e890eb8d30, accessed in the 10th of September 2014.
94Transcript: Afternoons with Tim Webster (2UE) Interview with the Hon Philip Ruddock MP. Parliament
House Canberra. Available at:
http://www.ruddockmp.com.au/BerowraElectorate/Speeches/tabid/78/articleType/ArticleView/articleId/1549/ Transcript-Afternoons-with-Tim-Webster-2UE-Interview-with-the-Hon-Philip-Ruddock-MP.aspx, accessed in the 18th of October 2014.
95Australia: "Pacific solution" one year on -- punishing the refugees. Amnesty International Press Release.
C. The evaluation of Offshore Processing Facilities under Kevin Rudd in
2008
1. The Australian Labor Party Position on the Offshore Processing
Facilities Issue
The controversy of the offshore processing implementation developed
among Australians politicians in 2004.96 The Australia Labor Party (ALP) as a
major political party in the country began itself to oppose the policy. Actually, at
the beginning, it agreed on the establishment of Pacific Solution. As Australia‟s
Official explained on the Parliamentary Document:97
„Both of the major parties believe that tough deterrence measures are necessary to stem the flow of asylum seeker boats to Australia. In particular, both parties currently support the practice of transferring asylum seekers who have arrived by boat to offshore processing centres in Papua New Guinea (PNG) and Nauru; the practice of mandatorily detaining all unauthorised maritime arrivals; and the need to maintain tough anti-people smuggling and border protection measures in cooperation with neighbouring countries in the region.‟
Later on in 2004, Julia Gillard, the prominent member of the Australian
Labor Party denounced the Nauru and Manus Island facilities, acknowledge it
were „too costly‟ and the Pacific Solution was „unsustainable.‟98 A joint report
called A Price Too High: The cost of Australia’s approach to Asylum Seekersby
Oxfam and A Just Australia, explained since 2001 offshore processing facilities in
Nauru and PNG have cost the Australian taxpayer more than $500,000 per person
96The Gillard‟s Government Offshore Dumping Policy. Available at:
http://www.safecom.org.au/offshore-dumping.htm, accessed in the 2nd of August 2014.
97A comparison of Coalition and Labor government asylum policies in Australia since 2001. Parliament of
Australia. February 28, 2014. Available at:
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1314 /AsylumPolicies#_Toc381358238, accessed in the 18th of October 2014.
to process fewer than 1,700 asylum seekers in Nauru, Manus and Christmas
Island.99
In 2006, the Labor Party leader, Kevin Rudd, and his deputy Julia Gillard,
shared the same opinion on the issue. They both were eager to bring the „Pacific
Solution‟ to an end and find a regional offshore center with Timor Leste instead.
The parliament of Australia highlights the Report of the Inquiry into a Certain
Maritime Incident outlined that asylum seekers endured a lots of difficulties in
Nauru and Manus Island such as limited access to water, sanitation and
electricity.100 On the contrary, the ruling government was led by John Howard, the
leader of the Liberal-National Party Coalition, which priors the policy of „Pacific
Solution.‟ Therefore, since the establishment of „Pacific Solution‟ in 2001, „boat
people‟ became of the most important issues of competition between the two
political parties.
The Labor Party and Liberal-National Party Coalition were in disagreement
on the method to stop the „boat people‟.101
This included the question of whether
„boat people‟ should be given temporary visa instead of permanent protection.‟102
The Coalition has argued that the abolition of Temporary Protection Visa (TPV)
99The Pacific Solution: A $1 billion “living hell”? Oxfam. 23 August, 2007. Available at:
https://www.oxfam.org.au/media/2007/08/the-pacific-solution-a-1-billion-living-hell/ Accessed in the 24th of September 2014.
100Asylum Seekers and Refugees What are the Facts. Parliament of Australia. February 11, 2013. Available
at:http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/20 122013/PacificSolution#_Toc334509636, accessed in the 23th of September 2014.
101 Back to the Future: Australian Border Policing Under Labor, 2007–2013. State Crime Journal, Vol. 3, No.
1 (Spring 2014), pp. 102-125. Available at:
http://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/back_to_the_future_published_ver sion.pdf. Accessed in the 24th of September 2014.
and Pacific Solution would increase the number of unauthorized boat arrivals.103 It
had declared that TPVs were „an effective deterrent to boat arrivals.‟104
Meanwhile, Labor argued that the introduction of TPVs was „ineffective‟ in
decreasing the number of boat arrivals.‟105
Labor believed the TPV actually have
increased the number of women and children came to Australia by boat, as TPVs
did not provide family reunification rights.‟106
Labor argued since there was no family reunification, families could not
rely on men arriving to Australia alone.107 It implied that they were disable to
apply visa for their family member once they are resettled. Therefore, it was
necessary to take the whole family including women and children together on the
risky journey to Australia.108 Since 2005, the numbers of children in offshore
detention have increased significantly. Between July 1999 and June 2003, 2,184
children arrived in Australia without a valid visa.109
103A comparison of Coalition and Labor government asylum policies in Australia since 2001. Parliament of
Australia. February 28, 2014. Available at:
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1314 /AsylumPolicies#_Toc381358238, accessed in the 18th of October 2014.
104Restoring Sovereignty and Control to our Borders. Joint Press Conference, Transcript. May 25, 2010.
Available at:
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1314 /AsylumPolicies#_Toc381358238, accessed in the 18th of October 2014.
105Failed Policies and Cheap Politics Offer no Solutions. C Evans (Minister for Immigration and
Citizenshipmedia release). 27 May 2010. Available at
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1314 /AsylumPolicies#_Toc381358238, accessed in the 18th of October 2014.
106Failed Policies and Cheap Politics Offer no Solutions. C Evans (Minister for Immigration and
Citizenshipmedia release). 27 May 2010. Available at
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1314 /AsylumPolicies#_Toc381358238, accessed in the 18th of October 2014.
107Restoring Sovereignty and Control to our Borders. Joint Press Conference, Transcript. May 25, 2010.
Available at:
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1314 /AsylumPolicies#_Toc381358238, accessed in the 18th of October 2014.
108Ibid.
109Australia Detention Profile. Global Detention Project. July 2008. Available at:
In 2007, the Australia Labor Party won the federal election. The Labor‟s
candidate, Kevin Rudd was popular with its soft asylum seeker policy as he
detested the „Pacific Solution.‟110 Rudd had been leading the Coalition‟s
candidate, John Howard in the poll as preferred Prime Minister. Rudd's approval
ratings had maintained from levels above 60%.111 At the end of 2007, Kevin Rudd
officially became the new Australian Prime Minister. After his election, his
commitment to dismantling the offshore processing awaited to be proven.
2. The Shutdown of Offshore Processing Facilities in Nauru and
Manus Island in 2008
Once elected as the Prime Minister, Kevin Rudd‟s vow to dismantle
Howard‟s offshore processing facilities on Nauru and Manus Island has been
fulfilled. The new Prime Minister ended the controversial policy in February
2008.112 From that point on, no more refugees would be sent to Nauru and Manus
Island. Yet, Australia would remain strict on the border policy. The Rudd
government would send arriving „boat people‟ to processing center on its Indian
Ocean territory of Christmas Island instead.113
110Labor Seeks Compromise on Asylum Seekers. La Trobe University. March 1, 2012. Accessed in the 11th
of December 2014. Available at: http://www.latrobe.edu.au/news/articles/2012/opinion/labor-seeks-compromise-on-asylum-seekers. Accessed in the 11th of December 2014.
111Election Summary. ABC Elections. Available at:
http://www.abc.net.au/elections/federal/2007/guide/summary.htm. Accessed in the 11th of December 2014
112The Sydney Morning Herald. July 4, 2013. Available at:
http://www.smh.com.au/federal-politics/federal-election-2013/dont-hold-your-breath-for-asylum-seeker-solution-kevin-rudd-20130704-2pd3r.html, accessed in the 18th of October 2014.
113Australia Winds Up the Pacific Solution. Amnesty International. February 15, 2008Available at:
Furthermore, his government also abolished Temporary Protection Visas for
the refugees.114 As the Rudd government argued, the Temporary Protection visa
was one of the Howard government‟s punitive treatments of refugees. A data from
Australia Parliamentary Document informed about the refugee‟s limited rights
under the TPVs on travel, family reunification, and settlement services such as
English language programs, employment and income assistance.115 To resolve the
problems, Chris Evans, Rudd‟s Minister for Immigration and Citizenship replaced
the TPVs with Bridging Visa as he deeply stated:116
„As a result of the abolition of the TPV policy, any existing Temporary Protection visa or Temporary Humanitarian visa holder will be processed for permanent residency in Australia (Bridging Visa). From early 2008-09, people found to be refugees will receive a permanent visa, regardless of their mode of arrival.‟
The shutdown was also remarked with the departure of 21 Sri Lankan refugees for
resettlement in Australia.117
Although Rudd had shown his commitment, public concerns emerged about
what to do next. „Mandatory detention‟ policy is still in order. Christmas Island,
Cocos Island, and Ashmore Reef persistently remain excised from Australia's
migration zone.118 Consequently, „boat people‟ intercepted inside the excised
location would still have their claims assessed not in the mainland. They would be
114Asylum Seekers. The Monthly. Available at:
http://www.themonthly.com.au/nation-reviewed-robert-manne-comment-asylum-seekers-2706, accessed in the 17th„of October 2014.
115Rudd Government scraps Temporary Protection visas. Parliament of Australia. May 13, 2008. Available at:
http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F4JG Q6%22 Accessed in the 17th of October 2014.
116Ibid.
117Asylum Seekers. The Monthly. Available at:
http://www.themonthly.com.au/nation-reviewed-robert-manne-comment-asylum-seekers-2706, accessed in the 17th„of October 2014. 118 Labor abandons its 'Small „Excision Zone. Safecom. Available at:
sent to neither Nauru nor Manus Island but Christmas Island.119 Christmas Island
was a remote area that used to be detention facilities for arriving asylum seekers
before the Tampa incident.
119Direct Action. December 7, 2008. Available at:
