Right: The island Republic of Nauru, where 11,500 people occupy a total area of 21 square kilometres. Note the airstrip taking up a large portion of the island.
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Arguments for permanently denying access to Australia to asylum seekers who attempt to arrive by boat
1. Harsh deterrents directed at asylum seekers arriving by boat prevent people drowning
Some of those who defend a life-long prohibition disallowing asylum seekers who attempt to come to Australia by boat ever being able to reside here believe this would act as a means of saving lives. They argue that if asylum seekers can be prevented from making unauthorised boat journeys to Australia then many drownings will be prevented.
This point was made by Foreign Affairs Minister Julie Bishop who argued, 'I will never forget 1200 people that we know of drowned at sea coming to Australia under these people smuggling networks. We cannot have situations where people are drowning at sea...'
When outlining the new prohibition to be included in an amendment to the 1958 Migration Act, Mr Turnbull stressed the extent to which the Coalition's 'tough' border protection policy was about reducing drowning. He stated, 'Since 2013 the Coalition has been diligently working through the mess we were left by Labor. The mess - the failure that Kevin Rudd acknowledged. First, we acted to stop the boats and stop the deaths at sea - and I'm proud that under the Coalition, there has not been a successful boat arrival in over 800 days, and there have been no deaths at sea...
We accept thousands of refugees, and we do so willingly, but we will not tolerate any repeat of the people smuggling ventures which resulted in over 1200 deaths at sea under the Labor Party and 50,000 unauthorised arrivals.'
The Prime Minister, Malcolm Turnbull, has made this point before. When challenged in October 2015 about the number of children of asylum seekers still in detention, Mr Turnbull responded that while the government recognised its border protection policy of turning back boats and offshore processing was 'tough' and 'many would see it as harsh' he insisted that it was the only 'proven' way to stop deaths at sea.
This same argument for harsh deterrents against those attempting to reach Australia by boat as an asylum seeker were expressed by Michael Pezzullo, secretary of the Department of Immigration and Border Protection, before the Senate Legal and Constitutional Affairs Legislation Committee in February 2016.
Mr Pezzullo stated, ' If you have...a policy that is tough - and indeed, to paraphrase [the Prime Minister] further, one that cannot really be described, in parts, other than as harsh - it has to be applied universally.
The moment you have a chink of light, the moment you give someone a clue as to how to game the system, you will put people's lives in danger.'
This appears to be part of the rationale behind the Government's proposed amendment to the Migration Act. Denying asylum seekers who have attempted to arrive in Australia by boat the prospect of ever coming to this country would act as an absolute disincentive to their taking such a voyage. This disincentive would then prevent them risking their lives at sea.
2. Harsh deterrents directed at asylum seekers arriving by boat undermine people smugglers
Prime Minister Malcolm Turnbull stressed the need to discourage people smuggling when he announced the new policy at a joint press conference. Mr Turnbull stressed the need for 'a united and concerted answer to the people smugglers that if they seek to bring people to Australia, those passengers will never settle in this country. That absolutely, unflinching, unequivocal message has to be loud and clear.'
Mr Turnbull continued, 'It is a critically important, strong message to send to the people smugglers. They must know that the door to Australia is closed to those who seek to come here by boat with a people smuggler. It is closed. We accept thousands of refugees, and we do so willingly, but we will not tolerate any repeat of the people smuggling ventures which resulted in over 1200 deaths at sea under the Labor Party and 50,000 unauthorised arrivals.'
At the same press conference, Mr Peter Dutton, the Minister for Immigration and Border Protection, stated, 'The announcement that we make today is one of the strongest announcements yet by this Government in relation to border protection policy. It builds on the success and the strong position that we have achieved over the course of the last couple of years. And it has to be a very clear message to people smugglers...
We have been very clear and we demonstrate that consistency of purpose again today, and we will not ever give up our border controls to the people smugglers again. We're cleaning up this mess. There's still a way to go but the government is maintaining the security of our borders and that is what the Australian public expect.'
When questioned by a journalist at the press conference about the fairness of the proposed change in the law, Mr Turnbull again stressed the importance of the need to discourage people smuggling. Mr Turnbull stated, 'This is a battle of will between the Australian people, represented by its government and these criminal gangs of people smugglers. You should not underestimate the scale of the threat. These people smugglers are the worst criminals imaginable. They have a multibillion-dollar business. It is a battle of will. We have to be very determined to say no to their criminal plans...
We have to send a very clear message to the people smugglers. This is not a theoretical debating issue. We know exactly what happens when you unpick the Coalition's strong policy. We know. It's not a matter of theory or speculation. Kevin Rudd did it, and we know what happened. We will not let that happen again.'
The same point was made by Foreign Minister, Julie Bishop, who stated, 'We must never allow the criminal people-smuggling syndicates to get back into business, that's what the legislation is aimed to prevent,'
3. Asylum seekers attempting to arrive by boat must not be offered false hope
It has been suggested that this amendment is necessary to avoid giving detention seekers who come to Australia by boat a false impression of their situation. The Coalition's aim is to demonstrate to asylum seekers the futility of attempting to arrive in Australia by boat as those who do so will never be accepted on Australian soil. This is one of the key purposes of the offshore processing regime, under which, even if an individual is judged to be a refugee, he or she remains resident on either Nauru or Manus Island.
The Coalition has argued that if the prospect of ever being able to settle in Australia is offered to asylum seekers who arrive by boat, this would act as encouragement to other asylum seekers to risk the same voyage.
Peter Dutton, the Minister for Immigration and Border Protection, has stated, 'It has to be a very clear message to people smugglers and to people who are on Nauru and Manus at the moment, that Australia is not an option for you.
There are still people, advocates in Australia and elsewhere, who are messaging to people on Nauru and Manus, that at some stage you will come to Australia. And those people are living in false hope and it cannot continue.'
The Coalition has called on the Opposition to support this amendment in the name of sending a clear, consistent message to potential asylum seekers either on Manus Island or Nauru or planning to attempt to come to Australia by boat.
Mr Dutton explained that there were a range of expedients that asylum seekers might use to arrive in Australia after having originally attempted to do so by boat. Mr Dutton stated, 'There is intelligence that I have seen about people wanting to travel to Manus Island to marry people from the regional processing centre to try and create a process where they might come here on a spouse visa, that is not acceptable. We are not going to allow arrangements that would subvert the program and the success that we've had within this process.'
Mr Dutton further explained that in a context where Australia is actively working to have refugees on Narau and Manus Island resettled to a third country it was important not to offer the prospect that they would be able to move from that third country to Australia.
Mr Dutton stated, 'What we don't want is if somebody is to go to a third country that they apply for a tourist visa or some other way to circumvent what the government's policy is by coming back to Australia from that third country.'
The Coalition claims the amendment is merely a logical extension of the repair policy introduced by the Rudd government when it established offshore processing on Manus Island and declared that those processed there would never live in Australia.
Malcolm Turnbull has stated, 'Mr Rudd himself recognised finally that he failed and that is why we have set the date from which this legislation applies, to the date when he made that statement, a statement - an admission of failure on his part when he said, "As of today, asylum seekers who come here by boat without a visa will never be settled in Australia".'
4. Australia is not contravening its international obligations
The Australian government claims that it is not contravening its international legal obligations by offshore processing, holding asylum seekers in detention centres or by permanently denying those who attempt to arrive by boat access to Australia.
At the joint press conference at which the Prime Minister and the Minister for Migration and Border Protection announced the proposed amendment, the Prime Minister was asked, 'Was the Solicitor-General consulted about these changes, and also have you sought and received any advice on whether this is consistent with international law and Australia's international obligations?'
The Prime Minster replied, 'The Solicitor-General was not asked about this, but we have had extensive advice from the Australian Government solicitor in the usual way. The Solicitor-General is generally asked to advise on matters of constitutional contention if you like. And this Bill is absolutely clearly within power. So the constitutional issues are not an issue here.'
When asked again if the government were satisfied that this amendment was in accord with international law, the Prime Minister replied, 'We absolutely do, yes we are satisfied.'
The Minister for Migration and Border Protection, Mr Peter Dutton later explained the bases on which the Government believes the amendment is not in contravention of international law or Australia's international obligations.
Mr Dutton stated, 'The new law would cover those who tried to reach Australia by boat from mid-July 2013, and would block them from obtaining any visa, including tourist and business visas.
Article 31 of the United Nations' 1951 Convention relating to the Status of Refugees states that signatories "shall not impose penalties, on account of their illegal entry or presence, on refugees".'
Mr Dutton did not explain this justification further; however, it would appear that the government considers its latest penalty appropriate because it imposed on people have not yet entered or are present within Australia.
Mr Dutton went on to explain that the Convention 'further states that the advice should apply to refugees who come directly from a life-threatening region.' The defence here appears to be that those on Manus Island or Nauru or who have resettled to a third country after having been detained on Manus or Nauru are not in a 'life-threatening' situation.'
Mr Dutton concluded the legislation met the obligations currently in place and the legal advice which had been given to the Government was clear.
5. Australia accepts asylum seekers who come to this country by other means
The Coalition government defends itself against accusations that it is not meeting its obligations under international law to supply asylum to refugees by highlighting the number of refugees Australia accepts who do not come here by boat.
In the joint press conference at which the Prime Minister announced the proposed amendment to the Migration Act, Mr Turnbull stated, 'We are able to increase our humanitarian intake from 13,750, to 18,750 over the next several years and we have committed - and are in process of accepting an additional 12,000 refugees from the Syrian and Iraq conflicts. We have also been able to announce an additional $220 million commitment to address the humanitarian needs in Syria and the neighbouring countries where so many of its population have fled.'
At the same press conference, the Minister for Migration and Border Protection also stressed the generous manner in which Australia offers places to those in offshore refugee camps.
Mr Dutton stated, 'We deal with people humanely, we provide a record number of refugee places each year, which puts us on a per capita basis and in real terms in the top three countries in the world on a yearly basis, of that we should be very proud.'
Mr Turnbull further implied that there was a direct connection between Australia's refusal to accept asylum seekers who arrive by boat and Australia's capacity to accept large numbers of offshore refugees.
Mr Turnbull explained, 'We have restored security at the border, we have restored confidence in our immigration system... that confidence in our immigration system, in our border protection system, is absolutely fundamental to the harmony of our multicultural society and our ability to generously accept humanitarian refugees from around the world.'
Mr Turnbull's implication appears to be that accepting uninvited refugees who arrive by boat would create disharmony and disrupt our successfully multicultural disharmony, presumably making it difficult to accept significant numbers of offshore refugees as part of our humanitarian program.
Mr Turnbull also seems to be implying that if Australia were to accept refugees who arrived by boat, this would be at the expense of the offshore refugees who we currently invite here. The suggestion appears to be that there is ultimately a limit to the number of people to whom residence can be offered and that if Australia allowed boat arrivals sanctuary then there would be less opportunity to assist those in refugee camps under the offshore resettlement program.
Mr Turnbull summarised the situation, 'A generous humanitarian program, a harmonious multicultural society, depends on the Australian Government being in control of its borders.'