Paul Toohey’s essay is striking in the accuracy of his cameo sketches of the individuals using Indonesia as a staging post in their efforts to seek sanctuary in Australia. His largely sympathetic portrayal of the asylum seekers with whom he interacted confirms my assessment that the vast majority of those who risk their lives in a boat crossing to Australia have at least arguable protection claims. Of course, no collection of asylum seekers represents a monolithic group. It has always been the case that asylum flows comprise individuals who range from the most exquisitely vulnerable to plain-faced opportunists who are simply out for a quick result – or, failing that, a quick turnaround. In recent years I have also encountered individuals who claimed – and whom I believe – they were duped by smooth-talking smugglers into believing they were pursuing a regular migration option when buying their ticket to Australia.

In the course of fieldwork in Cisarua my research team and I encountered Afghan, Sri Lankan, Iranian, Burmese and other asylum seekers who were negotiating the uncertainties and vicissitudes of life as undocumented migrants in a foreign land. Most were relative newcomers to Indonesia, although a sizeable cohort of those we interviewed were longer-term residents living in accommodation supported by the UN High Commissioner for Refugees’ implementing partners. Some were dealing with grief and injuries sustained in attempting to make the perilous sea crossing to Australia. I remain haunted by the case of an eight-year-old boy who had survived a shipwreck that took the life of his uncle and guardian. He was living with a lovely family of refugees who had opened their tiny home and hearts to him. As the family had been selected for resettlement in New Zealand, the boy’s future was uncertain.

Like Toohey, we met with a young man who casually gave us the details of the top smugglers operating in the region. He, too, was angry with and disdainful of this group. We heard accounts of breathtaking corruption: of one lane of a highway being closed to traffic so that a bus carrying asylum seekers could travel unimpeded through south Jakarta to the coast, a drive of over three hours on a clear road. We heard of so many boats foundering at sea that we gained the impression that many of the asylum seekers may have been just as safe playing Russian roulette. I would defy anyone who spends any time in this part of the world to come away feeling warm and comfortable about the character and methods of the smugglers who profit from this trade in human misery.

What is refreshing about Toohey’s work is that the author has descended from the high towers of the commentariat to go and see what is really happening on the ground. This will always be useful as it brings home the messiness of the human condition, demonstrating that simple constructions of a devilishly complicated problem will rarely deliver sustainable solutions. Toohey’s critique of our politicians is generally a fair one. Labor’s response to the phenomenon did indeed indicate a lack of conviction and confusion. The frequent policy changes, the attempts to bring about a decisive deal-breaker with the Malaysia Solution and then the Expert Panel, were poorly conceived and poorly executed.

I share Toohey’s concern that the approach taken by the current government does not look sustainable in the longer term. This is borne out by the prime minister’s cancelling a planned trip to Indonesia because of “on-water” operations (code for the push-back of another asylum-seeker boat). However, noting that Tony Abbott and Scott Morrison have treated Indonesia with less respect than that great nation deserves is only part of the problem. What begins as an engaging discussion of an issue that seems to transfix Australians finishes somewhat lamely with a suggestion that Kevin Rudd perhaps showed better understanding of the polycentric nature of the issue within our region. There are no grand suggestions for a better way forward.

Toohey fails to capture the extent to which Australian law, policy and practice have moved into the territory of the extreme. The manner in which we are placing the lives of men, women and children at risk is beyond the pale. The amount of money expended to support our abusive practices – and the fact that it is leached from our foreign-aid budget – is obscene.

There can be no debate now that Australia is blatantly acting in breach of its obligations under international law. No dispute that our behaviour offends the most basic standards of human decency. We are creating a new subclass, with thousands living in the community with no right to work or rebuild their lives, and recent arrivals punished with indefinite detention. We send men, women and children to live in conditions that the UN has described as inhuman and degrading. Under Labor, many of the women shipped to Manus Island who fell pregnant lost their babies because of the anti-malarial drugs administered to them. At least one asylum seeker sent to this hellhole has been killed (some would argue, murdered); a number now live in fear for their lives. None of this becomes Australia – a state that otherwise more than pulled its weight in creating and maintaining the international framework for the protection of human rights.

Like so much of the discourse in this country, Toohey’s discussion of the legalities surrounding our treatment of asylum seekers is one-dimensional. He spends some time in his essay digressing to discuss the proper way to describe the people who are trying so hard to enter Australia. Are they illegals or asylum seekers or refugees? The elements of international law on this point are interesting but not particularly helpful. In 1948 the Universal Declaration of Human Rights included at Article 14 a statement that every human being has the right to seek and to enjoy asylum from persecution. But such declarations are aspirational – not “hard” law. The Refugee Convention of 1951 established perhaps the most important principle and obligation of refugee law when it created the prohibition against the return or “refoulement” of Convention refugees. However, the instrument is silent on the critical issue of getting into a country in the first place to claim protection. This is the quandary facing refugees – they have no legal “right” to enter a country of refuge, only a right not to be sent away once they have entered.

Under Australian domestic law, any non-citizen entering without a visa becomes “unlawful.” In Australia, one could therefore label undocumented asylum seekers “illegal.” However, until such people cross the border onto Australian territory, the language of illegality is nonsense. People who have no visas to enter Australia can hardly be “illegals” until they enter Australia. In Indonesia, most of “our” asylum seekers enter and remain on temporary visas that are purchased upon arrival at the airport. Most are not at that stage irregular migrants.

I find the term “illegals” offensive because it is used typically to inflame adverse sentiments against individuals who historically and statistically do not deserve to be so victimised. An excellent example is its use by Toohey’s “sober critic” Derek Parker, writing in The Spectator. It does mystify me that Australians are so hung up both on this language and on the phenomenon of irregular maritime arrivals – as I prefer to call them. Even in America and Europe, where irregular migration is endemic, asylum seekers do not attract anything like the opprobrium and angst we see in Australia.

On the issue of status, Toohey slips into the language used by politicians like Bob Carr, alleging that asylum seekers such as the late Reza Berati are not refugees, but fortune seekers in pursuit of economic advancement. Without assessing their claims, such statements are decidedly unhelpful. In the mouths of politicians they are self-serving, given Australia’s first-order obligation to determine the status of any asylum seeker. The simple point missed in this discussion is that Australia’s obligations to these people do not turn solely on their status as refugees. The right to life, the right to be treated decently – in fact, all manner of rights recognised under international law – inhere in all of us because of our shared humanity. Reza Barati did not deserve exile and torture. He did not deserve to die.

One other aspect of Toohey’s essay that needs attention is where he refers to Amanda Vanstone’s endorsement of the “Cone of Silence” Morrison and Abbott lowered upon taking office over the whole issue of boat arrivals. Vanstone’s complaint was that the media’s sympathetic coverage of asylum seekers had been playing into the hands of the smugglers, “pressing our sympathy button until we can’t stand it any more.”

I agree with Vanstone that media coverage of boat arrivals in Australia was a factor in the steep increase in boat arrivals after 2008. My complaint is that no one has called out the conservatives on the cynical role that they played in disrupting governmental attempts to dissuade people from resorting to the smugglers. In 2010 I spoke at a forum with (now Minister) Scott Morrison, arguing that the surge in boat arrivals was being encouraged, if not driven, by the then Opposition’s cant about loss of control of Australia’s borders. Who can forget the billboard trucks circling Perth with the number of boat arrivals clicking over? Neither Morrison nor the media present gave any quarter, insisting on the propriety of maintaining a lively public discourse on this issue.

The world is now interconnected as never before in human history. One of the most striking features of the asylum seekers we met in Indonesia was their awareness of global political events. We visited a shelter for unaccompanied children identified by UN agencies as asylum seekers. The young people all had mobile phones. All were connected to the internet. The bolder ones asked to “friend” me on Facebook – and they subsequently did, providing fascinating insight into how they projected themselves to the world. Interviewed as a group, all but one stated that the decision to travel to Indonesia had been made by a family member abroad. All bar one confirmed that the decision to get on a boat bound for Australia would be made by a relative overseas. Importantly, virtually all admitted to having family friends or acquaintances in Australia and accepted this as a reason for the choice of destination.

The starting point for policy debate on irregular migration should acknowledge the human chains that often influence the direction of migratory flows. What we do and say in Australia clearly does influence decisions made abroad. At the same time, it is utterly unacceptable for a developed country like Australia to be engaging in behaviour that places the lives of vulnerable people at risk. It is incorrect that abject (criminal) cruelty is the only option going forward.

Toohey’s ultimately rather tepid critique of what has really become a sorry situation captures what I see as the worst aspect of our national discourse on asylum seekers at the moment. The bipartisan hand-wringing about the need to “stop the boats to stop the terrible loss of life at sea” impresses few outside the country. Our policies are seen for what they are: the expression of a deep-seated fear and suspicion of those who come across the seas, and of a growing national selfishness.

Mary Crock is professor of public law at the University of Sydney. She has worked with refugees and asylum seekers since 1989, when she helped establish Melbourne’s first community legal centre specialising in immigration and refugee law. 

Mary Crock acknowledges the assistance of Ron McCallum, Hannah Martin and Daniel Ghezelbash with this response.