'The end is nigh': What should happen after Nauru and Manus close?

Sam Tyrer

October 2016


Australia’s offshore processing experiment, involving the detention of asylum seekers on Nauru and Papua New Guinea (PNG), has failed. Earlier this year, the Supreme Court of PNG ruled that detainees’ right to personal liberty had been violated, meaning the Manus Island centre is illegal and unconstitutional. The centre is to close, although a timeline for its closure has not yet been set. Meanwhile, reports of horrific abuse of asylum seekers at the detention centre on Nauru, such as those recently revealed by the ‘Nauru files’, should be reason enough to prompt the centre’s closure in the near future.

Australians must now ask: what should happen after the Nauru and Manus facilities close? Are there alternative policies that can protect refugees and deter boat arrivals?

Sensible discussion of the topic has proved difficult. The ‘asylum seeker debate’ in Australia is polarised. Those in favour of refugee protection (at the supposed expense of border control) are labelled ‘bleeding hearts’ or ‘soft on national security’. Those who support hard line policies to ‘stop the boats’ (at the supposed expense of refugee protection) are labelled inhumane or xenophobic. But this polarisation gets us nowhere fast and precludes productive debate about policy alternatives to achieve both ends: better refugee protection, and control of the Australian border.

Viable alternatives do exist. Cooperation between Australia and Indonesia is one that deserves more attention. Father Frank Brennan has argued for a cooperative approach between the two countries, and support for such an approach can also be found in the government commissioned Report of the Expert Panel on Asylum Seekers released in August 2012. That report explores ‘the policy options to prevent asylum seekers risking their lives on dangerous boat journeys to Australia’, and recommendations include cooperation between Australia and Indonesia. The 2016 Australian Human Rights Commission’s report also favours ‘building better mechanisms for regional cooperation’ as a way to prevent dangerous boat journeys.  

It makes particularly good sense for Australia and Indonesia to develop cooperative responses to asylum seekers. As Alex Reilly points out, refugees coming to Australia by boat predominately travel from Indonesia, using that country as a final transit stop before attempting their journey to Australia. This geography of refugee flows informs an arrangement between those countries.

Elements of a possible arrangement vary, depending on who you ask. But the most important are those focussed on refugee protection. Australia should start by providing significant funding to the Indonesian government (or projects in that country) to improve conditions for refugees awaiting resettlement. My research regarding Indonesia has revealed that asylum seekers in Indonesia are so desperate that they seek entry to detention facilities, where there is at least some chance of their basic needs being met.                                                                         

The logic behind Australia focussing on refugee protection in Indonesia (and in other neighbouring countries) is simple: refugees are less likely to undertake dangerous boat journeys to Australia if sufficient protection exists in transit countries the region, including Indonesia. Seeking to reduce boat journeys to Australia is a laudable policy objective. Earlier this year, a UNHCR report ‘found that mixed maritime movements in South-East Asia were three times more deadly than in the Mediterranean last year’.

Funding to improve refugee protection in Indonesia should be an immediate priority. By providing funding now, Australia could lay a solid base from which to pursue other elements of an arrangement with Indonesia. Among the more controversial of these would be a commitment from Indonesia to process asylum seekers intercepted (by Australia) en route from Indonesia to Australia. In return, Australia could commit (again) to resettle genuine refugees from Indonesia (this ceased from 1 July 2014, and has resulted in a back-log of refugees in limbo in Indonesia).  It is these more controversial elements that provide a deterrent to people travelling by boat from Indonesia to Australia.

However, any arrangement can only be implemented once conditions for refugees on the ground in Indonesia respect human dignity. Australia must learn from its experience on Nauru and Manus Island, and ensure that any Australia-Indonesia arrangement takes account of the rights of those seeking international protection. The offshore ‘warehousing’ of asylum seekers must never be repeated. That is why Australia should commit to resettling refugees from Indonesia and why the arrangement must emphasise protection above all things.                                                                                          

Clearly, significant obstacles to the implementation of a cooperativearrangement must be overcome. For one thing, the arrangement must provide the right incentives for both Indonesia and Australia to cooperate. Incentives for Indonesia to participate could be created by Australia prioritising Indonesian diplomatic interests in other areas. This may lead Indonesia to see a refugee arrangement with Australia as enhancing a holistic diplomatic relationship that reflects Indonesia’s national interest. Australian diplomats should start considering how Indonesia’s other interests might be prioritised. On the Australian side, the possibility for implementing a politically and morally palatable asylum policy should be more than enough incentive.                                                                                   

A further obstacle is the so-called ‘pull factor’ concern that an Australia-Indonesia arrangement may attract refugees from across the region in the knowledge that the possibility of resettlement in Australia exists once again. But my research has shown that such concerns are for the most part misplaced. Refugees, including many thousands in Malaysia, are employed (albeit irregularly). There may thus be a reluctance to leave this income source. Additionally, many refugees prefer to remain in transit countries near to their homes. That way, when their home country becomes safe again, they can easily return. For many refugees, Indonesia and Australia are simply too far away.

Agreement should also be sought from other countries in the region to ensure that asylum seekers processed by Indonesia but found not to be refugees can be returned to their home countries. These readmission arrangements will ensure non-refugees are not left stranded: in limbo themselves and an ongoing burden to Indonesia and Australia. My own discussions with a former high level UNHCR diplomat revealed that is a real concern for many countries in the region. Clearly, improving refugee protection across the region along with the success of an Australia-Indonesia arrangement, depends upon broad regional engagement.

The end is nigh for the Manus and Nauru facilities. As we have the conversation about what should happen after Nauru and Manus close, let us bear in mind that there are better alternatives. Protection and deterrence are not mutually exclusive policy ends. By engaging with neighbouring countries such as Indonesia, Australia can protect refugees and maintain strict control over its borders. 

Sam Tyrer is an Australian lawyer. He recently completed his Master of Laws (LLM) at Trinity College in Dublin, focussing on international law and human rights, and researching an Australia-Indonesia refugee arrangement. Currently, he is teaching in the law program at La Trobe Law School in Melbourne.