What is the Pacific Solution?

Since 2012, the Australian government has been intercepting the refugees and asylum seekers who attempt to arrive by boat to Australia and detaining them in Refugee Processing Centers on Nauru and Papua New Guinea. Furthermore, since 2013, boat arrivals who had sought to come to Australia without a proper visa would never be permitted to enter Australia. This means that the people being held in these offshore camps would not be able to be resettled into Australia even if they were deemed to be refugees, therefore creating a backlog of people stuck in offshore detention waiting to be resettled. The Australian government has argued that this policy, called the Pacific Solution, is supposed to protect Australia’s sovereignty by being able to control who is able to come into the country and the manner in which they may come. Ostensibly, these offshore centers allow the Australian government to process people’s asylum claims before they may come onto Australian soil. However, it is clear from the reports from international human rights organizations, such as Amnesty International, Human Rights Watch, and the UNHCR, that there is little processing being done of people’s asylum claims as many of these people are being held in detention for upwards now of six years. These people are being held in horrible conditions with unsanitary living accommodations and without enough food or clean drinking water. And since people’s detention has lasted for years without any hope of ending, there has been severe mental health deterioration among the migrants.

How is this democratic erosion?

Although there are documented human rights abuses happening at the hands of the Australian government, there has been minimal information reported on this issue because Australia’s Parliament passed the Border Force Act in 2015. Under this legislation, government employees and contractors who work in the offshore detention centers risk two years in prison if they disclose any information about Australia’s offshore detention regime. Therefore, people who have intimate information about what is going on in offshore detention do not have the ability to speak about it or criticize the government. The basic democratic right of free speech is being eroded and the Australian government’s actions have been made even more opaque by the passage of the Border Force Act.

This is a clear example of Ozan Varol’s stealth authoritarianism, which he defines as “the use of legal mechanisms that exist in regimes with favorable democratic credentials for anti-democratic ends” [1]. The Australian Parliament was able to pass this restriction on free speech through entirely legal means as a way to limit the amount of information being given to the public about offshore detention so that they will continue to support this policy.

Varol also discusses mechanisms for how politicians are able to bolster their legitimacy even when they are passing laws that erode democracy. He specifically mentions that autocratic politicians employ rhetoric that invokes the rule of law and democracy [2]. While the Australian government is not making widespread reforms to democratic institutions, it has slowly been encroaching on its citizens’ democratic rights. The Australian government argues that this law is necessary in order to protect national security and sensitive operational information. This narrative implies that the Border Force Act is essential for ensuring that the government is able to carry out border protection functions. However, it is questionable whether this is the case, considering that immigration matters are not generally matters of national security and the immigration detention centers are held on independent, third-party countries. Many detractors of the Australian government have claimed that the invocation of national security has allowed politicians to do as they please without scrutiny and consequences.

Varol uses libel laws as an example of stealth authoritarian mechanisms, and I would argue that the Border Force Act operates in a similar manner as those laws in order to limit the people who do not support offshore detention’s power. He says that libel lawsuits raise the costs of criticism by exposing the speaker to costly libel lawsuits or criminal libel prosecution, thus creating a chilling effect on speech and causing self-censorship of critical commentary [3]. In Australia, although there are whistleblower protection laws, whistleblowing is not protected if the subject matter is government policy that an individual disagrees with; the Australian employees on Nauru and Manus Island can only disclose information if they reasonably believe that it is necessary to prevent or lessen a serious threat to the life or health of an individual. However, the onus is on the whistleblower to prove that the disclosure was necessary, and if they cannot convince the court of that, they may face imprisonment. Therefore, the Border Force Act has reduced the level of external scrutiny on the Australian government because witnesses of offshore detention are too afraid to speak out. And, like Varol predicted [4], this has undermined the public’s ability to observe what is happening in offshore detention at the hands of the Australian government, to obtain critical examination of those policies, and to mitigate the informational asymmetry between the government and the people. Therefore, Australian voters are less likely to reduce their support for the government, effectively tilting the electoral field in favor of the incumbents currently in government.

Although Australia is considered a democracy, the Australian government has been infringing on the rights of its citizens and the migrants who seek safety within its borders. While the Border Force Act is not a drastic change of Australia’s democratic institutions, these incremental changes in protections of free speech also deserve our attention. People must have the ability to share information about how their government is systematically violating people’s human rights and to criticize their government.

References

1. Ozan O. Varol, “Stealth Authoritarianism,” Iowa Law Review 100, no. 4 (May 2015): 1673-1742
2. Ibid.
3. Ibid.
4. Ibid.