In aus.religion.christian A ‘Net friend wrote: > Chris Ho-Stuart wrote: [8
Sept 2001]

[snip]

>> But the answer to your question is that it never ends. The world

>> is imperfect, and there will always be refugees.

>

> You’ve got your head in the clouds. Why are they coming to

> Australia and not other countries?

Actually, there are far more going to other countries than to Australia. Comparatively speaking, we have a relatively small problem with refugees.

> These ppl have latched onto

> the fact that they can come here and be accepted. These ppl are

> ILLEGAL refugees, or whatever secondary term you wish to use. In

> most cases however they are NOT refugees at all, but simply ppl who

> want to come here.

This is false. The vast majority of people from Afghanistan and Iraq (which is mostly the origin of the people on the Tampa) turn out to be genuine refugees. The figures run at around about 90%. They run enormous risks to make a crossing to Christmas Island. It is very dangerous, and though hard statistics are obviously difficult to come by, authorities estimate that many have been lost in the attempt. This is an indication of desperation.

> Many of them arrive by commercial international

> flights into Jakarta! They have money, passports, visas, etc.,

> which they discard (except for the money of course) since these

> would establish their identity, so they can then CLAIM to be

> refugees. The point you seem to keep entirely disregarding, and

> I am finding it very irritating, is that they are ILLEGALS!!! We

> have the right as a sovereign nation to control our borders,

> and decide who comes here and who doesn’t.

Many do indeed arrive by commercial flights into Jakarta, but many have spent nearly all their resources to do so.

I am not ignoring the fact that they are illegal. I refer to it constantly. I have been advocating that we treat the people on the Tampa like we treat other illegal arrivals: move them into detention for further investigation.

We do indeed have the right to control our borders, and I have made several suggestions for doing so more effectively.

Whether we had the right to turn away the Tampa is not entirely clear cut: but on balance I think our actions were legal, though not in the spirit of the law. The Law of the Sea convention of 1982, to which we are a signatory, obliges us to establish search and rescue centres, but it is not clear on matters after the rescue has taken place. In the past rescuers could rely on custom or the spirit of the law to dock any nearest port. And in fact, the Australian search and rescue authorities explicitly allowed that the master of the Tampa could choose to come to Christmas Island if he considered it appropriate.

When politicians stepped in later on, to refuse entry just as the Tampa was about to arrive at Christmas Island, they were refusing to observe this customary aspect of the maritime rescue law, and they were reversing the original position of the search and rescue authorities expressed to the Tampa.

My information on the legal aspects is mainly from a newspaper article: <http://www.smh.com.au/news/0108/28/national/national3.html>

Obviously such legal matters could be debated, but please note that our actual legal position cannot be resolved by gut feelings and anger about illegal arrivals.

My position throughout is that there is — or should be — more to consider than legal matters.

On the matter of the illegality of the refugees. They are illegal because they do not have proper papers granting them permission to enter Australia.

The 1951 Convention Relating to the Status of Refugees, to which we are a signatory, recognizes that illegality is often a matter of circumstance, and not to be regarded as a fault or failing of refugees themselves, even if they deliberately cross borders without papers. (By the way, Indonesia is not a signatory to this convention).

The convention can be found on-line at <http://www.unhcr.ch/refworld/refworld/legal/instrume/asylum/1951eng.htm> and the 1967 protocol extending the convention to refugees not from the second world war is on-line at <http://www.unhcr.ch/refworld/refworld/legal/instrume/asylum/proteng.htm>

Here are some relevant extracts:

Article 31 Refugees unlawfully in the country of refuge

(1) The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

(2) The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

Article 32 Expulsion

(1) The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.

(2) The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.

(3) The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.

Article 33 Prohibition of expulsion or return (“refoulement”)

(1) No Contracting State shall expel or return (“refouler”)

a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

(2) The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

Article 34 Naturalization

The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.

Note that the refugees in question come most recently from Indonesia, where they are not in immediate risk, and this therefore can be seen as legal justification for applying detention. However, generally speaking, detention of asylum seekers is deprecated by the UN. In any case, we are not legally permitted to expel a refugee who claims asylum without due process applied on a case by case basis. I am not a legal expert, and merely expressing an amateur opinion on this matter.

If people do not like these conventions, they should be agitating for us to cease being a signatory. Tragically, I expect many Australians would advocate just that.

> The other important fact of the matter, it that the eyes of

> the world were on this issue, and Australia’s response. The

> ppl smugglers would have been having drinks all round if we had

> simply accepted this situation as you suggest. Mr. Howard wanted

> to send a clear message, which he did. He acted in the national

> interest. These ppl were NOT Australia’s responsibility. The

> rescue was effected outside of Australia’s boundaries. The Tampa

> was ordered NOT to enter Australian waters. It did NOT land

> on Australian soil. And what was the response of the nations

> criticising us in all this? Did they send medical supplies,

> personnel, food, aid of any kind? Did they offer to take any of

> these ppl? No. They sent news teams to sit around and document

> Australia’s response.

Bear in mind that the Tampa was only instructed to remain outside Australia’s borders long after the rescue had been made, and some time after the Tampa had, with the explicit acceptance of Australian Search and Rescue, made course for the nearest post, being Christmas Island, and a scant half hour before it would have been inside the 12 mile limit.

You have spoken previously of the Tampa making course for Australia despite instructions not to do so: are you now aware that in fact the Tampa was still acting with the full support of the Australian authorities at the time it made course for Christmas Island? And that up until the Tampa was within only 20 miles of landfall, the Tampa had every reason to expect Australia would in fact follow normal maritime conventions of allowing them passage, and accepting the people they had rescued?

On receiving the instruction to remain outside the territorial limit, the Tampa stopped, and remained in place just outside the borders. Once Australia had taken the step of refusing entry, Indonesia subsequently followed suit, and indicated they too would not accept the Tampa. The Tampa remained in place for over two days, I think, and then moved inside our border as conditions on board began to deteriorate.

As for other counties not sending aid — for crying out loud! This was 438 people, right on our doorstep, and right next to a standard holding place for illegal refugees. Australia did not request any aid, and it would have presumptuous to think we actually needed medical supplies or food in such a case. That was not the issue.

The Tampa did request medical aid, from Australia of course.

When we did request help placing the refugees, several nations stepped forward with much more grace then we managed to show.

>> [snip]

>> >> I am not proposing we ignore illegal activity. I am not proposing

>> >> we disregard any laws.

>> >

>> > You have already done so. They are ILLEGAL immigrants. The captain

>> > of the Tampa defied a DIRECT ORDER from Australian authorities

>> > not to enter Australian territorial waters. By suggesting that

>> > we allow them to land you are suggesting precisely that.

>>

>> No. The fact that *they* are illegal does not impose any legal

>> requirement on us to refuse to take them off the hands of the

>> Tampa.

>

> Of course it doesn’t. But it’s our choice, not theirs.

Sure. We are discussing what our choice should be, and some of the relevant considerations.

>> The fact that we gave orders to the Tampa not to enter

>> Australian waters may have been within our legal rights, but it

>> is most certainly not disregard for any laws at all if Australia

>> had been more generous and given the Tampa permission to sail

>> in our waters.

>>

>> I do not propose we disregard any laws. I am proposing that we

>> take the entirely legal action of handling the arrivals in the

>> same way that we handle other illegal arrivals, which takes into

>> account their illegal status.

>>

>> The captain of the Tampa declared his own mayday. One might

>> criticise him for that — though I would not. The fact that

>> he had direct orders from Australia and from Indonesia not to

>> enter their respective waters put him in a completely impossible

>> situation. I am ashamed we did that to him, especially after he

>> had picked up 438 people in a rescue on the high seas at our

>> request.

>

> He was the master of a privately owned ship. He was not in

> Australian territorial waters. Maritime law (unwritten perhaps)

> and convention, demands that the nearest vessel to another in

> distress makes all haste to her aid. I’m not sure how or where

> the original distress call originated, but Australia had simply

> no authority to order him to do anything. He was not acting as

> an agent of Australian authorities in effecting that rescue.

I did not say he was our agent. I said he acted at our request. He did not receive the distress call: he received a general request from Australian Search and Rescue for any vessel able to give assistance.

As you point out, convention demands that the nearest vessel make haste to give aid, and Captain Rinnen has indicated he would do the same thing again, despite being left in the lurch on this occasion. I expect nothing less.

Convention ALSO demands that the ship be free to discharge rescued people at the nearest port. That was Christmas Island. The ship originally headed for Indonesia, but the captain was totally within his rights to decide to head for Christmas Island also, which was closer, and which helped him with the situation on his ship. Convention is that he would be welcomed at Christmas Island, and the rescued people taken off his hands. Australian Search and Rescue acted according to those conventions, but Australian politicians did not.

If you want to talk about conventions of the law, then note that the Tampa did the right thing at every point, and that Australian Search and Rescue did the right thing at every point, but that as soon as politicians got in on the act then legal maritime conventions went out the window.

>> >> Once they have landed, I think we should accept responsibility for

>> >> people

>> >

>> > And your reason why you think we should accept that

>> > responsibility is….? Because they are on Australian

>> > soil?? Good one. IOW anyone who can make it to Australian

>> > shores has a right to be here. I don’t think so.

>>

>> Legally speaking, Australia does have some legal responsibilities

>> to anyone at all on Australian soil.

>

> Which is precisely why the PM did not want them to land.

Indeed. That is obvious.

But we are making progress above…

We disagree about much, but at least we are providing a useful service if we can clarify the various background facts and relevant legal issues for our readers.

>> This is not saying that they

>> have a right to be here; but on the other hand Australia does not

>> (for example) have a legal right to simply put them on a boat,

>> tow them to international waters, and leave them there.

>

> Maybe not, but that does not deny us the right to do so if we so choose.

Sorry, but I do not understand your sentence above. We do not have a legal right to put illegal arrivals on a boat and tow them into international waters and leave them there.

That *does* deny us the right to make this choice.

>> We do have

>> some legal responsibilities; and we should certainly accept those

>> responsibilities as a member in good standing of the international

>> community and as a signatory of various treaties on such matters.

>>

>> I would be interested to find out more specifics on the exact

>> legal obligations Australia has accepted with our various treaties;

>> but I am pretty sure I have this basically correct.

>

> The legalities involved here are relevant, and uncertain at this

> time.. to me at least.

Me also. I am trying to find out more.

However, I continue to think that the bigger issue is not simply what is permitted legally.

>> > And what may I dare ask is fair for the longsuffering Australian

>> > public?????

>>

>> I do not think the Australian public is even slightly longsuffering

>> on this issue. The expenses of decent handling of illegal arrivals

>> in accordance with international humanitarian standards are not

>> actually a great burden on the public; and the expenses of being more

>> sympathetic to the Tampa are probably less than the grandstanding

>> for which we opted, and which has such wide support.

>

> I think the Australian public has clearly indicated it’s view

> in any number of polls which all indicate 90%+ support for my

> position as opposed to yours. The highest polarization of public

> opinion on ANY issue EVER.

Of course. This is why I am so ashamed.

[snip]

>> The contrary instruction denying permission to enter Australian

>> waters only came much later, when the Tampa was only half an hour

>> out from being in our territory, and after the politicians had got

>> involved rather than the rescue authority.

>

> Nevertheless it’s their call.

Yes. I am ashamed of them.

>> If you find further information on the events themselves, I also

>> would be interested in details.

>>

>> > He also lied about the condition of the illegals, even saying

>> > that some were dying, and there were women in labour etc.,

>>

>> This is open to dispute. I do not think he said people were

>> dying; and I have heard no report to that effect. He reported

>> ten people unconscious, and two pregnant women with stomach

>> cramps.

>

> That’s correct I believe. My mistake. Although the assumption

> being of possible deaths without medical aid.

No problem.

Frankly, with 438 people on board, and no proper medical facilities, and no sign that anyone was going to let them on land, the assumption of possible deaths seems entirely reasonable.

>> >> There is no suggestion that the captain was actually forced to

>> >> do anything. Desperate people threatening to jump overboard is

>> >> certainly a way of applying pressure; but calling it “duress”

>> >> is Ruddock’s little excess.

>> >

>> > Are you a friggin expert or something?? Were you there???

>>

>> No. But that does not stop any of us from attempting to form

>> a reasonable opinion on the matter. Ruddock was not there

>> either — so why accept his term “duress”? It seems from

>> information available that what took place does not fit the

>> category of duress as I understand the term.

>

> One would assume that the government has adequately investigated

> the matter in order to make that call. I don’t think the Australian

> government would be pleased to encounter the international ridicule

> involved, having stated that, if the facts would prove otherwise.

It is perfectly obvious that there was nothing like any kind of real investigation; and I think people are well used to politicians using excessive wording. No one will bat an eye.

It seems clear to me that the refugees did put what pressure they could on the captain to change course, though without actually trying to take over or apply force. Some apparently threatened to jump overboard. I would not make too big a deal about the word “duress”, really. I think “pressure” is more exact, but this is a relatively minor case of slightly excessive terminology in an issue where errors and exaggerations abound.

The terms “piracy” and “hijack”, which have been used in some quarters (I think the Norwegian government said hijack at one point) are clearly not sensible; and intended only to inflame rather than inform.

>> > Yeah right.. we threatened to blow them outa the water did we?

>>

>> No, of course not. Neither did Indonesia, actually; though they

>> did apparently threaten to fire on the vessel, according to

>> some reports. This is pretty sick; and though our international

>> reputation for tolerance has certainly suffered a blow, I would

>> guess (and hope) that internationally most people recognize that

>> Indonesia’s conduct has been even worse.

>

> Now you are starting to make some sense at least. Where is the

> international condemnation of Indonesia?? That is what I want to

> know. Lets look at the FACTS. It was an Indonesian vessel under

> the control of an Indonesian crew, and set sail from an Indonesian

> port. It encountered distress in Indonesian controlled waters. The

> rescue was effected in Indonesian waters. The caption then set

> sail to return to Indonesia, but the Indonesian government refused

> them permission, and declared that they would use their Navy to

> prevent the Tampa entering an Indonesian port.

Actually, I believe the statement of the Indonesian government that they would refuse entry to the Tampa, with all available means, was only made some time AFTER Australia had refused entry.

I suspect Indonesia is widely seen internationally as not acting well in this situation; but the real reason that they have not had as much condemnation is simply that the Tampa was at Australian borders, not Indonesian borders, at the time that it started to become clear there would be a problem finding people will to give normal assistance to a rescue ship.

Indonesia did actually make up some ground in the public relations area subsequently with indications they would accept the refugees, but this came much too late to be actually very helpful in practice.

Regardless of Indonesia’s faults in this matter, pragmatically our best hopes for a real solution to the ongoing problem with boat people is for us to have friendly relations with Indonesia and work out some co-operative strategies. This is a good reason for us to tone down criticism of Indonesia; and I am one of those who will have to do it as well.

>> >> Best wishes — Chris

>> >

>> > Pathetic bleeding heart moron.

>>

>> Settle down a bit, Peter. We can disagree and discuss the subject

>> without being nasty.

>>

>> Best wishes — Chris

>

> Now Chris, you should have learnt by now not to take me too

> seriously in this regard.. Just serious enough perhaps to

> appreciate that you have incurred my displeasure… and be

> concerned enough to seek to rectify that! 🙂

I do not, frankly, have much concern for your displeasure; simply for the conduct of the discussion. I believe I have conducted this debate in a constructive manner throughout, and that remarks such as those above are not helpful or justified.

I do not expect to persuade you to change your views; some of the positions we take are matters of choice. I do hope for a constructive exchange of views and information, even though we have different conclusions.

Have a look at aus.politics to see how a discussion can go bad. This group generally operates to a much higher standard.

> If you choose to reply, I will have to insist that you keep any

> remarks very brief, as I really don’t have the time to continue

> this at such a detailed level. I will do likewise of course. I do

> think however that we have both made our positions quite clear,

> unless you have something new to add? (that is not to suggest

> that you shouldn’t reply) Also this was written offline, so there

> may be new posts giving more information that may render some

> comments invalid.

Sorry: this is not brief; not even close. I am bearing in mind that we write for a larger audience.

Best wishes