[Kabar-Irian] Between a Rock and a Hard Place: The Case of Papuan Asylum-Seekers

[Admin-Editors Kabar-Irian]

Between a Rock and a Hard Place: The Case of Papuan Asylum-Seekers

Journal article by David Palmer; The Australian Journal of Politics
and History, Vol. 52, 2006

 Between a Rock and a Hard Place: The Case of Papuan Asylum-Seekers.

by David Palmer

The decision by Australian Immigration officials to grant temporary
protection visas to forty-two boat people from the Indonesian
province
of Papua (1) in March 2006 was greeted with joy by the asylum-
seekers,
chagrin in Jakarta, and foreboding in Canberra, especially in light
of
reports of a further 500 being set to follow in their footsteps. (2)
To some in Australia, the decision represented "the greatest threat
to
bilateral ties since Australia led peacekeeping forces into the
former
Indonesian province of East Timor in 1999". (3) In Indonesia, the
angry reaction had The Jakarta Post expressing concern that a
"diplomatic spat" had turned into a "political crisis between two
nations who really have nothing to quarrel about". (4)

The grant of asylum to the Papuans appears to be the outcome of a
standard merit-based assessment of their claims by Immigration
officials. (5) However, Australia wasted no time in announcing
measures to reduce the likelihood of further arrivals and mend
relations with Indonesia. These include increased maritime
surveillance, potentially in a joint arrangement with the Indonesian
navy; legislation--later aborted when clear it would not pass
through
the Senate--to have all future boat arrivals processed in offshore
camps rather than in Australia, where they would have access to
court
review processes; (6) and a review of refugee determination
procedures, including the possibility of taking into account
representations made by the country of origin of asylum-seekers
about
their country conditions. What is surprising about all this is that
it
is a surprise at all. Papua has been a pebble in the political shoe
of
the region since 1949, when the Dutch hung on to it after
relinquishing control of the rest of the East Indies to President
Sukarno. And ever since 1963, when Indonesia finally succeeded in
its
ambition to absorb Papua, Papuan asylum-seekers have intermittently
fled alleged persecution and poor living conditions. The only
difference with the latest group is that they headed south to
Australia rather than east to Papua New Guinea (PNG).

To better appreciate the Papuan asylum situation, Australia's
response, and the options open to it, it is useful to draw attention
to two aspects that have been largely neglected in reporting of
recent
events: firstly, Australia's handling of the Papuan asylum issue
when
it administered PNG pre-1973, and granted asylum to over 500 of the
4,500 or so Papuans who crossed the border from 1963 to 1973, and
secondly, the ongoing presence of large numbers of Papuan refugees
in
PNG. This article seeks to fill this gap, and to use it as a base
for
some tentative observations about Australia's current options.

The Setting of Asylum Parameters Pre-1963

After relinquishing the rest of the East Indies in August 1949, the
Dutch held on to Papua (then West New Guinea). The UN-brokered
Netherlands-Indonesia Agreement of 15 August 1962 subsequently
provided for it to be transferred, first to UN and then Indonesian
responsibility, and for an act of self-determination by 1969, again
with UN involvement. Australia had mixed feelings about these
developments. On the one hand, it believed that Indonesia had no
real
claims to the territory, that its people were not ready for
self-government, that their absorption by Indonesia would end any
chance of them determining their own future, and that the UN had no
power to transfer sovereignty of any territory from one country to
another. (7) Further, Dutch control was felt preferable to Sukarno's
belligerently nationalistic and potentially communist Indonesia.

On the other hand, Australia wanted friendly relations with
Indonesia,
as a large and potentially powerful close neighbour, and a potential
bulwark against the southward drive of communism in Asia. Nor did it
have any international support to stop Indonesia absorbing Papua.
When
in January 1962 Sukarno threatened to assert Indonesia's claims by
force unless the Dutch left, Mercies bristled, asserting that
Australia, in close consultation with its allies, the United States
and the United Kingdom, would "discharge its prime responsibility
for
the security of Australia, its territories and its people". (8)
However, within a month, he issued a more conciliatory statement,
noting that "it is the inescapable fact that, though we have
throughout recognised Dutch sovereignty in West New Guinea, every
nation in Asia supports the Indonesian claim". (9) Reading between
the
lines, Australia had seemingly realised it should not take for
granted
the support of its major allies in the event of an armed conflict
with
Indonesia over Papua.

Up to this point, Australia had only had occasional cause to reflect
on its approach to asylum issues. For example, the arrival of about
15,000 asylum-seekers during the Second World War, including about
6,000 non-Europeans, led to the introduction of temporary protection
arrangements, and a bruising lesson in the difficulty of removing
asylum grantees even when they no longer have need of refuge. In
1951
Australia helped draft the Refugees Convention, and acceded to it in
1954, if only because the Menzies Government was convinced that the
grant and terms of asylum remained essentially a state prerogative.
(10) The 1956 Melbourne Olympics too prompted Cabinet to lay down
procedures for dealing with asylum-seekers, although the focus was
mainly on "defectors" who might serve intelligence and propaganda
purposes, rather than "refugees" whose claims rested only on
humanitarian grounds. (11)

One thing that became entrenched during this time, though, was the
role of the Department of External Affairs in asylum issues. Under
the
1956 procedures, External Affairs would serve with Immigration and
ASIO representatives on a committee to screen asylum applicants, and
it alone would handle any applications from Asian leaders,
consulting
with Immigration and ASIO as necessary. Further, mindful of the
controversy generated by efforts after 1945 to remove the wartime
refugees, and the defection in 1954 of Vladimir Petrov, a Soviet
embassy official, major public statements about asylum cases were in
future to be made only by the Prime Minister or Minister for
External
Affairs. If the Minister for Immigration made any statement, it was
to
be only after consultation with External Affairs and ASIO.
Basically,
asylum issues were considered too politically sensitive to be left
to
the Minister for Immigration, whose main role was limited to
formally
issuing a permit to stay. To avoid embarrassing situations with
governments of the countries from which asylum-seekers came, this in
practice meant a permit unrelated to the reason for the grant. (12)

In 1962, following an asylum claim by three Portuguese naval ratings
who deserted in Darwin, External Affairs gave its then Minister,
Garfield Barwick, an analysis of typical cases of asylum, and
proposed
criteria for considering future applications. In its view,



 [T]he main criterion to be applied [in considering an application
 for asylum] is the political background of the applicant and
whether
 or not he would be penalised by his own Government for his
political
 beliefs, should he be returned to his country of origin. If there
 seems to be a danger that the applicant will be punished (for his
 political beliefs) if returned, this would be a strong argument in
 favour of granting asylum. (13)

  	This was certainly the main criterion put forward by the
department, and the only one it considered suitable for use in
public
statements. However, it considered other criteria should in practice
also be taken into account. These included the circumstances of the
application (e.g., whether applicants had entered Australia
legally),
Australia's relations with the person's country of origin (including
any wishes that the country may have in the matter, especially
"countries which we regard as friendly"), the state of the judiciary
in the country of origin (e.g., in case a government tries to "trump
up" some charge against the returnee), the person's propaganda value
(e.g., a defector from a communist country), immigration regulations
(e.g., the ability to grant permanent residence without having to
consider the issue of asylum, so as to allow the country of origin
to
save face, or to keep the case low-profile), security (e.g., "all
applicants from Communist countries must be regarded as potential
Agents Provocateur or Intelligence Agents"), and public opinion. The
final status of this submission is unknown. However, it is unlikely
that Barwick would have disagreed with his department, for as he
stated at the time the Portuguese naval ratings sought asylum:



 The fact is that the Minister for Immigration has never [...] had
 the decision as to whether or not political asylum should be
granted
 [...] Mr Calwell has failed to observe the distinction between
 granting political asylum and exercising a ministerial discretion
 under the Immigration Act not to enforce deportation of a
prohibited
 immigrant [...] In dealing with applications for political asylum,
 Governments take into account, among other things, the applicant's
 political background, if any, and the possibility of his being
 penalised by his own Government for his political beliefs should
he
 be returned to his country of origin. To grant 'political asylum'
is
 to accept a person as a political refugee--that is to say either a
 person seeking escape from the consequences of some political
 activity in his own country or a person 'defecting' on political
 grounds from a system to which he had previously adhered. It is an
 Act of State raising as a rule general issues of international
 relations. (14)

  	Later that year, facing questions in Parliament about how the
Government would respond to asylum-seekers from Papua when it came
under Indonesian rule, Barwick replied that, "any questions which
arise, whether under the heading of political asylum or any other,
will be entertained and decided from a very high humanitarian point
of
view", (15) adding that, "very often to ask for political asylum is
to
ask for more, really, than the facts will warrant". On whether
refugees would be permitted to set up a government in exile in PNG,
he
retorted: "Political asylum is not normally granted for the purpose
of
facilitating political activities." (16) In fact, only weeks earlier
Cabinet had approved his plans for helping the Dutch in the event
of a
need for emergency evacuations from Papua of Dutch citizens and
Indonesians and Papuans who had collaborated with the Dutch, and
citizens of various other countries.: Taking the view that the
departing colonial ruler should take responsibility for its former
charges, it was agreed that Australia would help with evacuations to
PNG, or if necessary Australia, but costs would be charged to the
Dutch and other home governments, and all evacuees, European and
non-European alike, would essentially be "refugees in transit" to
the
Netherlands or elsewhere. The only persons Cabinet said might be
allowed to stay in PNG were Dutch-sponsored Papuan refugees, of whom
it was estimated there might be about 150. Barwick warned of
possible
difficulties if Indonesia demanded their surrender, or if they
stirred
up anti-Indonesian sentiment in PNG. He also warned that many more
Papuans than those sponsored by the Dutch might try to enter PNG on
foot or by boat. However, he argued that there were "humanitarian
reasons with which the Australian public would probably sympathise
for
not insisting on the expatriation overseas of natives of the island
of
New Guinea". In his view they "should be readily assimilable" into
PNG
and their stay could be made conditional on not engaging in any
political activity. Cabinet agreed that any request by a Papuan to
stay in PNG should be decided on its merits by the Minister for
Territories "in consultation in view of the political aspects with
the
Minister for External Affairs".

As it happened, no emergency evacuations were required of Australia.
However, shortly before the transition to UN control on 1 October
1962, the Dutch asked it to grant asylum in PNG to six Papuans. (18)
Suspicious of why the Dutch wanted the men to stay in PNG rather
than
take them to the Netherlands, Barwick told External Affairs to have
its Liaison Officer in Papua, R.N. Birch, afford the men an
opportunity to apply on their own account, and to independently
verify
their protection needs. He added:



 Mr Birch should be acutely conscious of the limitations upon the
 grant of political asylum generally, and upon these applications
in
 particular. Allowance should be made for the fact that British
 practice is influenced by a general conception, dating from
earlier
 European history, that England has [been] a refuge for the
political
 'agitators' (used sympathetically!) of Europe. I have no desire to
 allow Australian practice to be similarly influenced [...] We are
 not merely considering the admission of an unfortunate migrant
[...]
 We must not allow an impression to be created that we are
 deliberately harbouring anti-Indonesian elements. We must remember
 that anti-Indonesian elements introduced into Papua-New Guinea may
 become a most embarrassing liability for us in the future. (19)

  	A truncated version of these instructions, which has Barwick
advising Birch to "not be too infected with the British notion of
being a home for the oppressed", (20) has been used to support a
view
that Australia's approach to asylum-seekers in PNG was from then on
unprincipled or unappreciative of Indonesia's poor human rights
record. (21) However, from the above account, Barwick's intention
was
not to dismiss asylum principles per se, but to ensure that Birch
appreciated the significance for Australian-Indonesian-PNG relations
of granting asylum to individuals who may intend using PNG as a base
for agitation against Indonesia. His comment therefore seems like
one
by Whitlam a decade later, when in response to a proposal that
Australia should, if the occasion arose, be willing to accept
political refugees from Asia and Africa, and particularly those from
Indo-China who had "a special connection with Australia", as well "a
modest proportion of the people whose lives might be in real
danger",
he wrote: "Yes, but any admitted are to eschew any 'Captive Nations'
activities or that ilk." (22) A decision was still pending on the
first Dutch request when in mid-October the Dutch Ambassador lodged
a
request for asylum for a further eight people. (23) Since the UN
Temporary Executive Authority (UNTEA) had by then assumed control in
Papua, Barwick thought that requests for asylum should now be coming
from it, rather than the Dutch. Nevertheless, he agreed to Birch
extending his "process of fact-finding" to the new applicants, and
to
a recommendation from his department that if any Papuans were
admitted
to PNG as refugees, they be "settled in areas well removed from the
frontier" and on the condition that they "not take part in any
political activity inimical to Indonesia". (24) He added:



 The matter calls for judgment at every point. I agree with what is
 here notified but care must be taken not to excite interest or to
 excite expectation on the part of anyone. I anticipate the need
for
 fairly firm objective decisions.

  	Meeting to discuss the Dutch requests, and the likelihood of
more,
External Affairs and Territories agreed that the requests could
potentially be divided into two groups: one "without any suggestion
that the people concerned were apprehensive of ill treatment because
of political or other activities", and to which there could be no
objection if Territories refused, the other "where some reason for
fear or ill-treatment was indicated", in which case External Affairs
would make further inquiries "to see whether there were real grounds
for this apprehension". (25) It was agreed that Territories would
advise External Affairs both of individuals who specifically
requested
asylum, and of those who did not but whose stories indicated that
they
had engaged in activities for which reprisals might be expected:
"the
nature of the case and not merely the use of the term 'political
asylum' should determine whether the case was referred to External
Affairs for its view". However, the departments agreed to delay a
decision on the Dutch requests, preferring "to wait for some little
time, perhaps a couple of months so as to avoid encouraging a large
number of requests".Their complacency did not last. Worried that the
UNTEA was unable to protect people because it relied on a mainly
Indonesian police force, the Dutch ignored Barwick's request that
asylum applications be channelled through it, and in mid-November
again approached Canberra, asking it to grant asylum to three of the
Papuans they thought in particular danger. (26) With Birch
confirming
the UNTEA's limited capabilities, Barwick and Paul Hasluck, the
Minister for Territories, this time agreed to provide "temporary
residence" in PNG for the three men and their families, but
instructed
the PNG Administration to not use the terms "political asylum" or
"refugee" in any public comment so as to not "excite media
interest".
(27) Barwick summoned the Indonesian Ambassador in Canberra, told
him
that requests for asylum were being received, and made it clear that
he would act on such requests "having in mind broad human
considerations". (28) He said that he expected asylum would in some
cases be required. However, he also said that Australia did not wish
to see any substantial influxes to PNG, would not facilitate it, and
would not "be easily moved by baseless apprehension". To this end,
he
suggested that Indonesia might consider taking steps to allay the
fears of Papuans about how they would be treated, without precluding
Australia's right to grant asylum where needed.



 I said that it may be that a clear statement, backed up by proper
 administration and clear instructions to the people on the ground
 would assist to allay apprehensions which quite understandably
could
 be felt by Papuans and maybe others in West New Guinea. I said
that
 I wished, however, to make it very clear that I would not regard
the
 existence of such a public declaration of policy and
administrative
 direction as precluding us from granting asylum, though it may
well
 prove a factor to be considered in any particular case.

  	A few days later, Menzies, as Acting Minister, approved
recommendations from External Affairs on the asylum applications of
sixteen Papuans, on the grounds that they had "good reason" for
fearing reprisals by Indonesian authorities. (29) He agreed to the
refugees being settled away from the border area, and having to
undertake to refrain from political activity affecting Papua or
Indonesia. A month later, Birch reported being "inundated" with
requests for asylum after clashes between Indonesian troops and
locals
following pro-independence demonstrations on 1 January 1963.
Asylum-seekers also began to trickle across the border into PNG on
their own accord, with seven college students arriving at Vanimo on
3
January 1963, followed a week later by another thirty-seven, and
media
reports that a further 600 were following. (30) Clearly worried by
the
prospect of a major influx, and wanting to avoid any appearance of
support for a Papuan independence cause, Barwick and Hasluck, with
the
support of the UNTEA, (31) added two riders to the "good reason" for
fear criterion for asylum determinations: firstly, that any request
for asylum must be lodged and processed inside Papua, and secondly,
that the need for asylum must be related to actions taken on behalf
of
the Dutch before they left in October 1962, unless Birch was
satisfied
that there were "special circumstances which would warrant his
submitting the case for consideration by Ministers on humanitarian
grounds". (32) Any asylum seeker already in PNG who could not meet
the
latter criterion was to be returned to Papua, and all new
asylum-seekers trying to cross the border were to be turned back
unless they had been issued an entry permit in line with the former
criterion. Hasluck asked his officials to exercise care in the
execution of the measures, for the sake of both the asylum-seekers
and
Australia's reputation.



 [W]e might suggest to the Administrator that in giving effect to
 this decision he should pay careful regard to considerations of
 humanity and do what he can to avoid any unnecessary distress by
 the refugees. As an example of what we have in mind any persons
who
 have recently arrived in Vanimo should not be immediately put on
 the road again if they are in any way exhausted after their
journey
 from Hollandia or if they are need of food, rest or medical
 attention. We recognise the difficulties of the situation in a
 place as small as Vanimo but suggest that if it is possible to
form
 some sort of a holding camp there it will serve the purpose both
of
 giving the refugees a period of rest before they are sent back
home
 and of helping to ensure that they do not travel independently
 beyond Vanimo but remain under our surveillance. According to the
 circumstances the Administrator might also consider the
 desirability of providing sea transport to return them to a
 convenient point of their choosing in West New Guinea. I should be
 glad if you would communicate these suggestions to the
 Administrator as early as possible, stressing the importance of
 avoiding any unnecessary hardship or ill-feeling on the part of
 refugees or providing the occasion for any exaggerated newspaper
 stories about the hardships of refugees rejected by the Australian
 Government. (33)

  	For his part, Barwick asked for resolve.

 We think however, great care will need to be exercised by the
 Administration not to cause misunderstanding by this clemency
 and to see that it is not imposed upon and that all those
 without permits both understand they must return [to West New
 Guinea] and are required to do so at the proper time. (34)

  	After visiting Vanimo, Birch reported that none of the forty-four
asylum-seekers met the new criteria for asylum. (35) With the
support
of the UNTEA, who offered to reassure the asylum-seekers that it
would
not punish them and would protect them from Indonesian reprisals,
(36)
the entire group were returned under police escort to a village just
over the border on 18 January, after a night reconnaissance of the
site by Vanimo locals and three of those being repatriated. (37)
According to Birch, when the Deputy Police Chief in Hollandia (now
Jayapura) was told of the return (it seems he was not told when or
where it would take place), he said that the group was "too small
and
unimportant for the Indonesians to harbour resentment and there
would
be no retribution", but had added he "would be happier if they did
not
return at all since many were troublemakers". (38) There is no
evidence on how the group fared, save for a report by Birch that
some
received "superficial injuries from brawls" in following days, (39)
and a claim by a Papuan nationalist leader in the Netherlands that
some had been beaten. (40) The measures adopted by Australia and the
UNTEA, and a respite in clashes between Indonesian authorities and
independence supporters, led to no further cross-border movement
until
UNTEA relinquished control to Indonesia in May 1963.

Asylum Practices Post-1963

>From 1963 to 1973, roughly 4,000 to 4,500 Papuans crossed into PNG.
(41) Australian immigration regulations ensured that none had ready
access to the Australian mainland, but as PNG's administrator,
Australia was still effectively their country of first asylum.
Accordingly, until late 1973, when Australia followed the Dutch out
of
the island, how best to respond to these asylum-seekers was a
constant
issue for it.

In the year after Indonesia took full control of Papua, some 382
Papuans sought asylum in PNG, with 229 arriving in the first month,
and in numbers from two to forty-eight per month thereafter. (42)
According to Territories, their main reason for flight was a
"general
dislike of Indonesian administration", and from April 1964
"avoidance
of conscription" for labour and military service purposes. Most if
not
all of the first group of 229 were allowed to remain with tribal kin
on the PNG side of the border who agreed to support them, but from
then until late 1965, only a handful were allowed to stay, (43) with
the rest being repatriated, in the main, it would seem, through
forceful persuasion rather than physical force. (44)

Birch's departure from Papua after Indonesia took over from the
UNTEA
meant that one of the criteria for asylum that had been set by
Barwick
and Hasluck--that applications must be lodged in Papua--was no
longer
practicable. However, another one--that the asylum need must arise
from actions taken on behalf of the Dutch before they left--
remained.
(45) In June 1965, External Affairs explained:



 The existing position is that the Government decided in 1962 that
 as a general rule permission to reside in Papua/New Guinea should
 be granted to refugees from West Irian only where the cause
 for apprehension derived from their political actions before the
 Dutch withdrawal. To allow permanent entry following movement
 across the border to those motivated by a general discontent
 with the Indonesian Administration could, it was felt, lead to
mass
 migration which the Papua/New Guinea Administration could not
 handle; could also create ill-will and suspicion between the
 Indonesians and ourselves; and could break down respect for the
 border. (46)

  	Clearly, during these early years Australia considered the
UN-sanctioned arrangements for Papua something that Papuans had to
make the best of, the basis of many asylum claims weak, and the
risks
involved in repatriation low. In a 1964 review, Territories argued
that general dissatisfaction with Indonesian rule and unauthorised
departure did "not amount to political action and consequent
personal
danger of a kind qualifying [border crossers] as political
refugees",
and that Papuans "have to learn to live with" the new administrative
arrangements for their country that had been imposed on them. (47)
In
1965 it claimed:

 The reasons given by people for wanting to cross the border are
 varied--for example, rumours of epidemics, vague fears of change,
 low wages and poor work conditions, disinclination for compulsory
 community work, escaping from a leper hospital, fear of compulsory
 military service, and a desire for political asylum [...] No
 authenticated reports have been received of punitive measures
 against people turned back from the border. (48)

  	In public, too, Ceb Barnes, who had replaced Hasluck as Minister
for Territories, dismissed claims of returned asylum-seekers being
ill
treated: "I say very definitely that there is no evidence of this
whatsoever." (49) That said, in view of the tensions being generated
by Sukarno's confrontation with Malaysia, and Australia's support
for
the latter, it is equally clear that Australia did not want to risk
Papua escalating into a second front of military conflict with
Indonesia. As External Affairs noted when refusing permission for
several Netherlands-based Papuan activists to visit PNG in 1964:



 [Y]ou should explain that Australian-Indonesian relations are
 delicately balanced in view of our commitments to Malaysia and
 the despatch of forces to Borneo. You should say it would be only
 embarrassing for the Government if they were to press their
 requests for visas under current circumstances. If they insist
 that their motives for wishing to go are entirely reasonable, you
 should say it is essential for us not only to prevent PNG
territory
 being used as a base for illegitimate activities in West Irian,
but
 also to avoid anything which might give the appearance
 that it is being so used. (50)

  	Nevertheless, by late 1964 Australia was becoming less sanguine.
Apart from persistent allegations that some returnees were being
mistreated, it began to think it should probably grant asylum in
cases
involving a desire to avoid conscription for military service
outside
Papua, and resistance to Indonesian pressure over the promised act
of
self-determination. One reason was that any Indonesian action in
this
regard was in breach of its obligations under the agreement. Another
was that it had the potential to "present embarrassing problems" for
the Australian Government, one example being

 [...] if the Press wrote stories on the theme that Papuans
pleading
 political asylum because they did not want to go to fight against
 Australian and British troops in Borneo were having such
 asylum refused. (51)

  	Further, after the Dutch left, economic and social conditions in
Papua deteriorated rapidly, and while efforts were made to revive
the
territory after Sukarno's overthrow, non-Papuans filled most
administrative positions. (52) In 1965, scattered instances of armed
rebellion broke out, resulting in intensive Indonesian counter-
action.
(53) Signs also emerged that Indonesia might renege on its
obligations
to conduct the act of self-determination, (54) with Indonesia
claiming
that "if it was true that people had fled for political reasons,
they
were subversive elements 'in the employ of the imperialists'" 55
Finally, by 1965 issues relating to Papua and Papuan asylum-seekers
were gaining a public profile. They were attracting questions in
parliament in Australia and PNG, (56) local and international press
coverage, and correspondence from bodies such as the International
Red
Cross and the Returned Services League. As a result of these sorts
of
considerations, Australia dropped the criterion about an asylum
claim
having to relate to pre-Dutch departure activities, and in September
1965 Barnes clarified asylum seeker processing arrangements as
follows:



 Every person crossing the border into [PNG] is to be interviewed
 and if he can give no reasonable grounds on which he could claim
 special consideration for the granting of permissive residence in
 [PNG], he is to be fed, well looked after, and returned across the
 border as expeditiously as practicable. Any with an apparent case
 for consideration as political refugees are to be closely
 questioned and reported on, and held for the time being at a
nearby
 border station pending decision. (57)

  	Nevertheless, External Affairs continued to insist on having the
main say in these decisions, with Hasluck, now Minister for External
Affairs, rejecting a Territories proposal for Barnes to assume
responsibility. Echoing Barwick, he argued that asylum "is an
international question so long as it concerns the movement into
Australian territory of persons under the jurisdiction of another
government", and that while Territories was responsible for the
administration of PNG's immigration laws and other domestic matters,
"It has no function in respect of international relations". (58)
also
thought Territories would be more easily influenced by the sympathy
for the Papuans being voiced in the PNG House of Assembly. Several
months later, Hasluck granted asylum to six Papuans for
"humanitarian"
and "practical" reasons. (59) In line with the decisions of 1962,
the
terms "asylum" and "refugee" were avoided, and the Papuans were
given
"permissive residence visas" on "humanitarian" grounds for an
initial
period of five years. Further, the visas were issued subject to each
Papuan signing a declaration:



 I will abide by the laws of the Territory of Papua and New Guinea,
 make every conscientious endeavour to sustain myself and my family
 by my own efforts, will not in any way directly or indirectly
 engage in any political activity whatsoever in connection with the
 country I left to seek refuge in the Territory of Papua and New
 Guinea, and will accept resettlement in whatever centre of the
 Territory of Papua and New Guinea to which I and my family might
 be sent. (60)

  	To avoid any possible complication, the UNHCR was held at a
polite
but firm distance. In March 1965, acting on a concern of its
principal
legal adviser that Papuan asylum-seekers might get caught in the
cross-fire between Australia and Indonesia over the latter's
confrontation with Malaysia, the UNHCR's local representative asked
to
discuss the Papuan situation and possible UNHCR involvement. (61) In
reply, External Affairs wrote:

 There is at present no refugee problem in New Guinea. Indeed, the
 word 'refugee' is largely inapplicable to the kind of cross border
 movement that has taken place between West Irian and the Territory
 of Papua and New Guinea. Those persons who have come across the
 border have in most cases been resident in the border area, with
 many of them having tribal connections and tribal lands extending
 across the border into Papua/New Guinea. (62)

  	Behind the scenes, Australia's Consul-General in Geneva was told
to
visit Felix Schnyder, the High Commissioner for Refugees, to explain
Australia's delicate situation, and urge him--and through him his
junior officers--to not create embarrassing situations.

 What we want to get across is that there is no significant problem
 at present; that premature publicity to this matter could
jeopardise
 the already difficult task of building up a neighbourly
relationship
 with Indonesia on border questions; and that we expect no action
 would be contemplated by the High Commissioner's Office--even in
 the form of references in UNHCR documents--without the closest
 consultation with us. I think that Schnyder and Jamieson [UNHCR's
 director of operations] would appreciate the force of this view;
 what needs also to be avoided is that people like Weis [UNHCR's
 principal legal adviser], who may not realise the political
 sensitivity of the matter, may take seemingly routine action at a
 lower level which could be just as embarrassing as action taken
 with the full knowledge of senior UNHCR people. (63)

  	From then on, until Australia relinquished control in PNG, it
kept
the UNHCR informed of developments in regard to the Papuan
asylum-seekers, but otherwise kept it out of the equation. (64)
Territories did not object, being concerned that the UNHCR might
pressure PNG to accept more refugees than Territories thought it
could
support. Nor did Indonesia, which was more loath than Australia to
have the UNHCR involved, to the point that Australia was able to use
the threat of its involvement as a "stick" to get Indonesia to back
off whenever it began to protest too strongly about asylum grants.
(65) And indeed, the UNHCR did not press too hard. From 1967 it had
a
standing request to visit PNG, and in 1968 it expressed concern
about
Australia's patrol officers being able to expel Papuan border
crossers
if they judged they had no prima facie case for refugee status,
without any right of appeal. (66) However, the new High
Commissioner,
Prince Sadruddin Aga Khan, was later reported as "fully satisfied"
with how the asylum-seekers were being handled. (67) Had he wanted,
he
could clearly have exerted a much greater degree of moral and
persuasive pressure on both Australia and Indonesia. However, in
Australia's case he might have decided to tread carefully in case it
prejudiced his efforts to get Australia to drop the reservations it
had made to the Refugees Convention in 1954, and to support the 1967
Protocol and the 1967 Declaration on Territorial Asylum. Similarly,
he
might have decided it was not in the broader UN interest to get
Indonesia offside, in view of the UN's pending involvement in 1969
in
the Papuan act of self-determination.

>From late 1965, Australia's policy was therefore basically to
provide
refuge to Papuan border crossers when there was a genuine need for
it,
but otherwise to return as many as practicable and keep the problem
low key. (68) The numbers entering PNG fluctuated, climbing at times
to over a hundred a month. Less than ten per cent were found to be
refugees, with most others being viewed as motivated by economic
reasons, and persuaded to return. (69) To reduce the risk of PNG
becoming a base for clandestine anti-Indonesian operations, which
was
its greatest fear, External Affairs repeatedly told the PNG
Administration to keep a watchful eye on those granted asylum, and
ensure they abided by their undertakings to refrain from political
activity.

The next main flashpoint was the 1969 act of self-determination,
especially when Indonesia sought to prevent demonstrations during
visits to Papua by UN delegations, and their receiving letters or
petitions from dissidents. (70) Contingency plans were prepared by
the
PNG Administration to accommodate several thousand refugees, to
apprehend and disarm Papuan militants using PNG to escape and
regroup,
and to contain incursions by the Indonesian forces trying to catch
them. (71) The option of forced repatriations in the event of a mass
influx was dismissed by Canberra, partly because it would almost
certainly attract the attention of Indonesian authorities--up to
then,
returns could generally be made unnoticed, but Indonesian border
patrols were becoming more frequent--and partly because it was
thought
likely to be "seized upon by countries already critical of certain
aspects of Australian policy", and turned into an international
issue.
(72)

Since 1963, efforts to disperse Papuan refugees throughout PNG had
often been stymied by difficulties in placing and employing them.
However, with evidence that some living at Wutung and other camps
near
the border were engaging in para-military activity, (73) and that
Indonesian intelligence agents might be active there, Australia in
October 1968 decided to act more decisively to create a buffer zone.
(74) Over forty people, being either refugees with permissive
residence visas or asylum applicants, were taken to Manus Island
pending dispersal elsewhere. Another 300 or so, being either failed
asylum-seekers or people who had crossed and never sought a permit,
were, according to the instruction from the Minister for
Territories,
to be returned to Papua "as quickly as possible, without the use of
force". (75) Within six weeks, all were reported to have gone,
although extra police were needed at one camp to stop a group who
tried to return when they heard that Indonesian troops might be in
the
area.

Manus Island was chosen as a holding centre because its remote
location curtailed opportunities to breach refugee undertakings in
regard to political activity, and because it had more accommodation
and employment opportunities than other possible locations. (76) The
number of Papuans held there rose to 58 by April 1969. At one stage
most appeared ready to accept an offer from Indonesian authorities
for
them to return to Papua to participate in the act of
self-determination, with Australia paying their airfare. However,
all
are reported to have ultimately stayed in PNG. (77)

As noted earlier, indigenous politicians like Michael Somare, John
Guise and Paul Langro sought a less restrictive regime, as indeed
did
the then PNG Administrator, D.O. Hay. (78) However, in Canberra's
eyes
firm action was needed. For it, the critical needs were to constrain
dissident activity in PNG, reassure Indonesia of Australia's
neutrality on Papua, discourage an influx of asylum-seekers, and
promote respect for the border among locals on both sides. (79) In
effect, in 1968 Australia drew a line in the sand. It would grant
refuge to Papuans who could demonstrate a genuine need of it. It
would
even tolerate their demonstrations, petitions and other expressions
of
anti-Indonesian sentiment, for as External Affairs noted:



 [These] may be unfortunate for Australia's relations with
 Indonesia, [but] they are not the sort of activity which would
 cause the [PNG] Administration or the [Australian] Government to
 enter the lists against them [...] [and some of these activities]
 indeed are legitimate and proper rights which are accepted. (80)

  	However, it would not tolerate the formation of covert groups in
PNG, the passing of subversive material through PNG into Papua, or
dissidents training in PNG for a Papuan uprising. In the view of
External Affairs: "The return of the bush campers and the movement
of
West Irians to Manus represent an attempt to disrupt this activity
within the Territory", (81) or as one official put it, to have them
"taken out of the game", (82)

 Clamping down on anti-Indonesian activities becomes then a game of
 warn and bluff. Recent actions have demonstrated that the better
 way to deal ,With these activities is to disrupt legally the
 game rather than remove the players entirely. (83)

  	Significantly, Australia appears to have had the tacit support of
the UNHCR, at least in regard to removing refugees from the border
area, designating places of principal residence for them, and
preventing them engaging in subversive activity towards Indonesia.
(84) It also appears to have had the support of a majority in the
PNG
House of Assembly, despite occasional criticism. For example, a
proposed vote of sympathy and consideration for Papuan asylum-
seekers
by Somare in November 1968 was lost 56 to 24. (85) Australia quietly
explained to Indonesia that "MHA's, particularly those sympathetic
to
the West Irianese cause, tend to be outspoken and there is nothing
we
can do to curb this". (86) The start of 1969 saw a sharp rise in
Indonesian military and police activity along the border, and a
heightened concern in Australia about the prospect of an influx of
asylum-seekers and border infringements by the Indonesian forces.
External Affairs told Adam Malik, the Indonesian Minister for
Foreign
Affairs, that any influx would attract unfavourable publicity for
Indonesia, and that while Australia "could turn back people who
crossed for economic reasons, it would be a very different situation
if the crossers could claim they were fugitives from armed pursuit'.
(87) Malik said he had been told that no military operations were
being conducted near the border, but added candidly: '[Y]ou could
not
always believe what the military told you and [...] many of them
were
prone to think that the best way to solve things was with a gun."

Relations were particularly strained by the occasions when
Indonesian
forces crossed into PNG. The most notable incident occurred on 26
April 1969, when seventy-nine Papuans fled across the border at
Wutung, pursued by police who, under orders to arrest refugees,
searched houses, tried to arrest one person, and in the confusion
fired over the heads of the unarmed Australian in charge of the
Wutung
post and two PNG policemen. (88) Territories were furious, and
wanted
a "stiff formal protest" delivered to Indonesia. (89) However,
External Affairs held that Australia "had to play it cool with the
Indonesians" and that "a protest might not now be in order". (90)
The
incident was smoothed over in a flurry of diplomatic activity, with
Malik assuring Gordon Freeth, the new Minister for External Affairs,
that he would take appropriate action "to restrain over-excitable
local officials" and avoid a recurrence of the incident. (91)

If nothing else, Freeth probably thought his hands tied by
embarrassing timing, since at a press conference in Jakarta on the
same day as the Wutung incident he had expressed support for
Indonesia's preferred voting arrangements for the act of
self-determination over the UN's, (92) described reports of
demonstrations and arrests in Papua as "purely a matter of internal
administration", and dismissed border crossings as also "matters of
administrative detail" on which Indonesia and Australia had reached
a
satisfactory arrangement.



 Some of those who have come over the borders have crossed them
 because they are relatively primitive people who don't understand
 what national borders are. Some of them have come across because
 they really want to settle in the other territory, and where they
 are not likely to be political troublemakers, we have accepted
 some of them. But these details have been worked out very
 satisfactorily with the Indonesian Government. There is no great
 problem between our Government and the Government of Indonesia.
 In some cases we have sent people back, and they
 have gone back without any difficulty. (93)

  	In following months, a regular program of border liaison was
agreed, including monthly meetings, daily radio contact, and so
forth,
to help both sides discuss issues more quickly and effectively,
with a
particular focus on preventing anti-Indonesian activities in border
areas and incursions into PNG by Indonesian forces. (94) However,
Australia refused to exchange intelligence on refugees and
anti-Indonesian rebels, or conduct joint border patrols.

 Humanitarian considerations aside, our main objection is that
these
 might be represented by Papuan and New Guinean politicians as an
 alliance directed against the indigenous people of New Guinea.
This
 would make trouble for us and would also promote a dangerous
 tendency which could later damage independent Papua-New Guinea's
 relationship with Indonesia [...] [W]e are [also] concerned at the
 potential for embarrassment inherent in a police role for
Indonesians
 in Australian territory and vice versa. (95)

  	Moreover, while Indonesia held to its view that the asylum-
seekers
were "criminals or troublemakers", Australia continued to insist on
its right to grant protection to any it thought had sufficient
grounds
for refugee status. (96) Holding camps for asylum-seekers were
established at Yako, Boset, Oboe and Rouku in addition to the one at
Manus Island, (97) and the number granted permissive residence since
1963 was to rise from 67 in March 1969 (98) to over 500 by mid-1971.
(99) The few Papuans who sailed south to seek asylum in Australia
were
promptly sent to PNG to have their applications processed there.
(100)
In late 1969, a Foreign Affairs (formerly External Affairs) policy
paper noted:



 Although the Indonesians [...] put pressure on Australia to
divulge
 information about refugees, we have consistently declined to do
so.
 This has constituted one of the major points at issue between
 the two sides, but the Australian view (lent strength by
 Indonesia's desire to avoid involvement by the UNHCR) has
prevailed
 and is understood by the Indonesian authorities. Australia has
also
 protected her right to grant permissive residence to certain
 categories of West Irianese refugees and to interpret whether
 persons in this category are to be regarded as political refugees
 or criminal fugitives [...] [Indonesian authorities] are no doubt
 restrained from being more assertive on this point principally by
 the opportunities we have taken to wave the UNHCR stick at them
from
 time to time. (101)

  	The act of self-determination, with the choice being absorption
into Indonesia, took place in mid-1969, and several months later the
UN General Assembly confirmed Papua as sovereign Indonesian
territory.
Indonesia announced an amnesty for Papuans who had fled to PNG,
which
lasted until June 1970. (102) Many asylum-seekers accepted the offer
and returned home, resulting in the Boset, Oboe and Rouku holding
camps being closed. Passing the Baton to an Independent PNG

In the remaining few years of Australian administration, the number
of
asylum-seekers dwindled, although a trickle continued, (103) as did
occasional incursions by Indonesian forces. (104) In July 1973 there
were still an estimated 500 refugees on permissive residence visas
in
PNG, comprising some 190 adult males, their wives and children.
(105)

However, after 1969 both sides were clearly intent on avoiding any
further flare-ups over asylum issues. Indonesia appeared to treat
the
voluntary returnees well, (106) but continued to chafe at the use of
PNG by dissidents (107) and in 1971 suggested the creation of "zones
of hot pursuit", (108) an idea that Australia immediately rejected.
For its part, Australia sought to give Indonesia as little to
complain
about as possible. The buffer zone approach was maintained, and
refugees and asylum applicants continued to be held at Manus or Yako
if accommodation and employment was not immediately available
elsewhere. (109) Refugees were monitored for compliance with their
asylum conditions, which was also encouraged by assigning a few of
the
more likely offenders to remote villages, and refusing entry to PNG
of
Netherlands-based Papuan activists. (110) Any allegations by
Indonesia
of subversive activity were followed-up, with Foreign Affairs
advising
its Jakarta embassy in 1973 that:



 We do not want you to assert that the border is now water-tight,
but
 to make it clear that serious efforts are being made to follow up
 Indonesian reports of rebel use of PNG and to follow procedures
that
 reduce their opportunity to do so. We particularly wish to dispel
 Indonesian suspicions of indifference--or worse--on the part of
the
 Australian and PNG Governments. (111)

  	Canberra also ordered a stop to the interrogation of asylum-
seekers
on conditions and military deployments in Papua, on the grounds that
it was no longer necessary in view of improvements in
Australian-Indonesian relations, and because it would harm relations
if known. (112) As noted earlier, permission for the UNHCR to visit
PNG was also still withheld, not least because of Indonesian (and
growing PNG) opposition. And finally, the language of asylum
continued
to be avoided. As Foreign Affairs observed:

 We have to date avoided the more offensive language of the
 Convention ('political refugees', 'well-founded fear of
 persecution', etc) in favour of more neutral terms ('permissive
 residents' and 'humanitarian grounds'). (113)

  	As a result of these sorts of measures, by mid-1971 Foreign
Affairs
and Territories were able to agree that "the refugee problem was no
longer a pressing one". (114) According to Territories:

 [T]he number of refugees in the border regions had dwindled away.
 About 500 had been allowed to stay in the Territory but there were
 very few of these that caused any problems at all. Most were now
 working either with the Administration or in private enterprise.
 There was a mere handful that were not prepared to work and that
 posed a minor problem [...] [Y]he refugees in the Territory had
 been given permits to reside there subject to certain conditions
 and up to a certain date. However, no one was expecting them to be
 told to go and it was unlikely that any pressures to that end
would
 develop. (115)

  	The only element of unpredictability that seemed left was what
policies PNG might adopt after independence. While
Indonesian-Australian relations on asylum issues had at times been
tense, years of engagement had led to familiarity and mutual
understanding. By contrast, Indonesia had little knowledge of or
experience in dealing with indigenous leaders like Somare. It knew
that there was some sympathy in PNG for their Papuan "brothers", and
feared that this might translate into tolerance of subversive
activity
against Indonesia, if not complicity. Further, according to Foreign
Affairs:

 The Indonesian nightmare [...] is that the example of independence
 for PNG and the greater rate of economic development there may
 stimulate otherwise moribund separatist urges in West Irian. In
 their first shock, they even asked whether the rate of
 constitutional development in PNG could be slowed down. That is of
 course untenable. Indonesia will have to live with an independent
 PNG. President Soeharto himself asked [Prime Minister] McMahon
 whether the rate of economic development in PNG could be slowed
down
 to something nearer the pace of development in West Irian. That
too
 is impracticable. (116)

  	Australia sought to downplay these concerns of Indonesia, but it
was no longer in a position to totally control PNG policy
directions,
including on border control and asylum issues. While decisions on
asylum applications continued to be made by External Affairs until
December 1973, from January 1970 rejected applicants were discussed
with the PNG Administrators' Executive Council, which could decide
whether to permit the person to stay on normal immigration criteria.
(117) Consultation also occurred on asylum grants. (118) When PNG
became self-governing on 1 December 1973, Australia's formal
responsibility for Papuan asylum-seekers in that country ended.
Foreign Affairs must have felt satisfied with its work. It had
managed
the issue without undermining what it saw as its primary objectives,
namely "the protection of the interests of the people of TPNG; the
maintenance of good relations with Indonesia; [and] the desire to
hand
over to an independent PNG a harmoniously working relationship with
her Western neighbour". (119) Whether it had managed it in a way
that
would win plaudits from Papuan sympathisers, human rights activists
or
historians is a different matter. For example, Neumann describes
Australia's approach as "harsh" from 1962 to 1964, and "very
selective" from 1965. (120)

In reflecting on Australia's performance, we should acknowledge that
it granted refuge to some 10 per cent of the Papuans who crossed
into
PNG on its watch. Further, while providing Indonesia with face-
saving
devices, such as not using the language of asylum and keeping the
UNHCR at a distance, in private it was often quite blunt about
Australia's right to grant asylum to whomever it saw fit. Moreover,
while it returned the other 90 per cent of Papuan arrivals, the
archival record contains few if any substantiated instances of
returnees being persecuted, or of forcible repatriations of
individuals with strong claims to asylum.

That said, there were few means to verify allegations of harm, or to
check the quality of decisions made by patrol officers at border
posts. Further, there is little question that Australia exploited
the
Refugee Convention's loopholes in the interests of protecting
bilateral state relationships. For example, in Somare's view:



 The Australian Government and the [Territory] Administration have
 [...] always maintained that the 'norms' [of the Convention,
 subject to the reservations Australia made when acceding in
 1954 (121)] [...] have been applied to people from Irian Jaya
 seeking refuge in Papua New Guinea. Observation of the 'norms' has
 allowed a degree of discretion in treating 'permissive residents'
 outside of what would be possible under adherence to the
Convention
 and the Protocol without reservations. (122)

  	In sum, Barwick's criterion of approaching the issue of asylum
for
Papuans from "a very high humanitarian point of view" was by no
means
absent during Australia's administration of PNG. However, it shared
the stage with pragmatic criteria drawn from Australia's foreign and
territory policy, including having the Dutch take initial
responsibility for their own former charges, avoiding complicity in
Papuan separatist activities, and not prejudicing a future
independent
PNG's policy options or relations with Indonesia. In 1973, Foreign
Affairs neatly summarised Australia's dilemma in the following way:


 On the one hand, humanitarian considerations would appear to point
 in the direction of leniency towards applications for asylum. On
 the other hand, however, practical political factors deriving from
 Australia's and most of all PNG's relations with Indonesia need to
 be taken fully into account, especially in the treatment of
persons
 who have been active as rebels against the Indonesian Government.
 Failure to give due weight to these factors could ultimately
result
 in a great deal of human misery. The question at issue is how to
 balance each of these elements in any particular case. (123)

  	Papuan Asylum-Seekers in PNG Post-1973 According to UNHCR
estimates, (124) PNG currently hosts up to 10,000 Papuan refugees,
(125) although the overall number to have sought asylum in PNG since
1973 may number 20,000 or so. Some of the current 10,000 date back
to
the 1960s, and many from 1984 and 1985, when there was an upsurge in
insurgency operations by the separatist Organisasi Papua Merdeka
(OPM
or Free Papua Movement), a corresponding crackdown by Indonesian
authorities, and about 12,000 Papuan asylum-seekers entered PNG.
Other
sizeable influxes occurred in late 1995, when about 700 Papuans
crossed the border, and at the start of 2001, when about 350 crossed
near Vanimo. Continuing skirmishes between separatists and
Indonesian
authorities led in 2003 to PNG and the UNHCR preparing contingency
plans for possible further mass influxes. (126)

At various times, Papuan asylum-seekers have returned home
voluntarily, including about 5,000 of those who arrived in the
mid-1980s. (127) However, many who have come to PNG have stayed.
About
3,000 are estimated to live in Port Moresby and Lae, but the
majority
are in camps or settlements along the border. (128) As in the 1960s,
some of these camps are believed by both PNG and Indonesian
authorities to serve as a base for OPM operations, and a refuge for
its members. (129) However, PNG's efforts to prevent this misuse of
its territory are hampered by resource and logistical difficulties.

A detailed account of PNG's dealings with Indonesia over Papuan
asylum-seekers, and its halting progress towards an asylum
administrative and legal framework appropriate to its own
capacities,
is yet to be written. (130) Unlike the asylum influx in the mid-
1980s,
when all border crossers were nominally considered refugees,
individual assessments of claims have recently been introduced.
(131)
Some forced returns occurred in the 1980s, but none have been
reported
since, and in 2003 Prime Minister Somare stated that PNG "has no
intention of forcibly returning West Papua genuine refugees back to
Indonesia". (132) Most large-scale voluntary returns have been
conducted with the assistance of the UNHCR, with the most recent
major
one involving nearly 1,050 border crossers at the East Awin camp in
the Western Province.

The presence of the Papuans is sensitive and complex, and from a
government perspective, clearly one best kept low key and tightly
managed. As UNHCR recently noted:



 Government officials and the general public are generally
 sympathetic towards West Papua refugees because of their close
 cultural ties. [But PNG] walks a fine line between supporting its
 Melanesian kin and maintaining good relations with its
neighbouring
 countries. (133)

  	One might be forgiven for a sense of deja vu. As early as 1968, a
young Michael Somare criticised steps taken by Australia to reduce
OPM
use of PNG--the creation of a buffer zone along the border, and
ferrying asylum-seekers to Manus Island pending resettlement
elsewhere
in PNG--as no way to treat "people of common blood, especially those
seeking freedom or relatives". (134) John Guise, the Speaker of
PNG's
House of Assembly, urged Australia to provide a "real sanctuary" for
Papuans fleeing Indonesian troops, and to approach the UN about the
issue. (135) However, once holding the reins of power, the fledgling
Somare Government, like Australia before it, saw caution as the
better
part of valour. In November 1973, Somare declined an invitation from
Whitlam to include PNG in Australia's proposed accession to the 1967
Protocol to the 1951 Convention relating to the Status of Refugees,
on
the grounds that his Cabinet needed more time to consider the
matter,
and pending a review of the need for reservations and finalisation
of
a border agreement with Indonesia. (136) Whitlam's note to the
Governor-General to sign off on the accession subsequently stated:


 Having regard to the advance of Papua New Guinea to independent
 statehood, the Government of Australia is of the view that it
would
 be appropriate to allow Papua New Guinea to reach its own decision
 in due course on the question of becoming a party to the Protocol.
 The Government of Australia accordingly declares that Australia
 will not extend the provisions of the Protocol to Papua New
 Guinea. (137)

  	This incidentally corrects the popular belief that it was
Australia's decision not to extend the Protocol to PNG, to ensure
"that ratification did not apply to persons coming from Papua New
Guinea", (138) and so "we would not have the international community
pressuring us in the [event of] boat people coming uninvited from
[PNG] seeking asylum". (139) Somare also rejected Australia's
proposal
to extend to PNG the 1954 Convention relating to the Status of
Stateless Persons and the 1961 Convention on the Reduction of
Statelessness, (140) probably due to concerns over the fact that
increasing numbers of Papuan asylum-seekers were likely to fall into
this category on account of Indonesian laws on citizenship, under
which it could be forfeited if a person was domiciled in another
country for more than five years with no application being lodged to
retain it before the five years elapsed, and then every subsequent
two
years. [141] He did, however, agree to Australia extending to PNG
the
Hague Agreement relating to Refugee Seamen, on the back of an
assurance that Australia would take any seamen granted asylum by PNG
who were unable to find employment, provided Australia had been
consulted before PNG made the grant. (142)

In effect, as PNG set about its duties as a new sovereign state, it
decided to do what probably every country has done before acceding
to
these conventions: explore the implications for potential asylum
inflows and migration and citizenship policy, the desirability of
entering reservations, and the possible consequences of having the
UNHCR looking over its shoulder. As one Australian official
recorded,



 Fears have been expressed [by PNG] 1) that the application of the
 protocol to PNG could lead to the High Commissioner's interfering
 unreasonably in the treatment of Irian Jaya [Papuan] border-
crossers
 by the PNG Government, and 2) that in any case his involvement,
 particularly in following up complaints, would lead to publicity
 being given to the Irian Jayan situation that would be resented by
 Indonesia. (143)

  	PNG eventually acceded to the Refugees Convention and Protocol in
1986, but with significant reservations that it is only now thinking
of lifting. (144) Relations with Indonesia are of course not the
only
factor affecting PNG's attitudes to Papuan asylum-seekers. Sympathy
based on ethnic ties and some lurking anti-Indonesian sentiment
tends
to dissipate when central authorities and local communities and
landowners face the economic and social burden of accommodating
arrivals, and international support is limited. (145) The situation
is
also complicated by what Glazebrook calls the "tactical use" of
asylum
by some Papuans, who resist repatriation opportunities on the
grounds
that exile is a way to draw international attention to their
separatist cause, and access to the outside world a way to temper
Indonesian action against compatriots still in Papua. (146) For
others, exile is associated with an evangelical vision-in-faith of
their province's eventual "liberation". For them, to return to Papua
before it became independent would represent a loss of faith and
"the
shame of returning empty-handed". (147)

In sum, Papuan asylum-seekers are a chronic problem for PNG, and one
that successive Australian governments since 1973 might consider
themselves fortunate to have been relieved of for so long. However,
now that it has finally become a political issue here again, it
opens
the possibility of Australia acting not merely unilaterally in
pursuing a solution with Indonesia, but with PNG and others to
achieve
something that is regional and comprehensive in scope.

Concluding Comments

To look to history to provide guidance for the present is a perilous
occupation, if only because circumstances and personalities change.
Nevertheless, a few observations seem appropriate. Firstly, unless
Indonesian authorities and Papuan separatists are able to come to
some
meeting of minds about the province's political and economic
relations
with Jakarta, the problem of Papuan asylum-seekers is unlikely to
end
any time soon. PNG rather than Australia is likely to bear the brunt
of it, in view of its proximity to Papua, and its negligible border
surveillance resources compared to Australia. In this respect,
Australia could limit its response to the recent boat arrival to
unilateral and other measures with Indonesia that smooth their own
immediate tensions and deter future arrivals. Or it could also use
the
incident as a prompt to engage all players with an interest in the
general Papuan asylum issue--Indonesia, PNG, Australia, the Papuans,
the UNHCR, and perhaps other Pacific Forum countries and the
Netherlands--in working on a comprehensive and long-term solution.
(148)

Secondly, it is open to interpretation whether Australia's proposal
to
process offshore any future Papuan arrivals breaches its Refugees
Convention obligation of not imposing penalties on refugees "coming
directly" from a country where they face persecution. (149) However,
there are several sleeper issues associated with the recently
announced measures:

* The rules of engagement for future boat interceptions from Papua
are
unclear, as is the level of future cooperation with Indonesian
authorities in regard to patrolling border waters. To force boats
back
without giving people on board an opportunity to make known their
reasons for departure, or be complicit in such action, would compare
unfavourably with how Australia handled Papuan border crossers in
PNG
thirty years ago. (150) It would also compare unfavourably with how
PNG has handled them in the years since: PNG might understandably
provide Papuan refugees with minimal assistance, and have left many
with indeterminate status, but it has not sought to turn them away
at
the border. Finally, it would also risk breaching Australia's core
Convention obligation of non-refoulement. (151) It is difficult to
avoid the fact that the only way Australia can be certain of meeting
this obligation is to give people who enter its land or sea
territory
the chance to have any claims they might make to asylum assessed.
Whether or not the obligation extends to people on boats still
outside
territorial waters is a matter of dispute. However, if conditions
are
known to be grim in a country of origin, the forced return of a
potential refugee to that country is not something to be done
lightly.
In brief, if it must be done, offshore interception and offshore
processing need to be seen as a double act, and not separate or
independent strategies.

* By granting only temporary protection visas to the recent Papuan
arrivals, and presumably to any others that arrive via an offshore
processing centre, another round of judgments on conditions in Papua
will occur in a few years time, when these visas are up for renewal.
At that time, a completely new decision will be made on whether the
visa holders remain refugees, or have ceased to have that status.
Indonesia will no doubt use the interim years to bring Papua to a
condition whereby officials making these decisions can be confident
that asylum claims are no longer well founded. Otherwise we could be
in for another bout of angst on the part of political leaders on
both
sides. (152)

* The new measures further expand the gap between how Australia
treats
asylum-seekers who arrive unauthorised by boat, and how it treats
asylum-seekers who arrive by air. (153) The differential treatment
of
these two groups does not appear to breach the Convention, (154) but
the wider the gap, the more difficult it is to satisfactorily
explain.
(155)

Thirdly, "help us to help you" seems an appropriate plea in
government-to-government discussions. A good start would be for
Indonesia to agree to greater transparency in its administration of
Papua, thereby helping Australian and PNG asylum decision-makers to
better test the veracity of asylum seeker claims, and build trust in
Indonesia's claims and promises about conditions there. How this
transparency might be achieved is open to negotiation, but a small
initial step could take the form of an Australian fact-finding
mission, (156) or better still, the grant of access to the UNHCR or
some suitably independent body. For its part, Australia must
reassure
Indonesia that it will not grant asylum to any Papuan unworthy of
international protection, that it will seek to prevent any Papuan
granted asylum from engaging in subversive activity against
Indonesia,
and that if they do they will be dealt with under Australian law and
have their refugee status revoked. (157)

Fourthly, on a more general note, as this article demonstrates
national interest considerations are not new in Australian asylum
policy, despite the impression given in some recent comments. (158)
Foreign and territory interests dominated policy for much of the
post-war period. Indeed, it was Foreign Affairs rather than
Immigration that caused lengthy delays in the removal of the
reservations Australia made to the Convention in 1954, and its
accession to the 1967 Protocol. (159) Even during the Whitlam years,
Al Grassby, the Minister for Immigration, held the view that, "If
political asylum is sought this is a matter for Foreign Affairs and
we
will refer it to them". (160) The department's influence began to
recede only in the late 1970s, with the establishment of a committee
chaired by Immigration to determine asylum claims, (161) and later a
system of individual determinations by Immigration officials. The
most
significant break occurred in 1994, when the Convention was
incorporated into domestic legislation (162) and the independent
Refugee Review Tribunal was established. That said, foreign policy
considerations are never entirely absent, as evident in the overall
management of particular asylum seeker groups, such as the Cambodian
boat arrivals in the early 1990s, (163) the East Timorese arrivals
between 1989 and 1995, (164) and now the Papuans.

Finally, in the 1960s and 1970s Australia played a tactical and
sometimes tough game with Papuan asylum-seekers to minimize
associated
tensions with Indonesia. It did not, however, resile from respect
for
the principle of non-refoulement, or from "playing a straight bat"
to
Indonesia in defending Australia's right to grant asylum to
Indonesia's citizens when it saw a need for it. It would be a pity
if
these two pillars of asylum now falter in the reaction to one small
boatload of Papuan asylum-seekers, especially after an earlier
generation of Australian and Indonesian leaders learned to live with
the differences they had over very similar issues.

(1) The term Papua and Papuan is used in this article, consistent
with
Papua's formal standing as a province of Indonesia. Another person
was
granted a visa three months later.

(2) Mark Forbes, "Jakarta retaliates, and more to flee", The Age, 25
March 2006, p 1.

(3) Cath Hart and Scan Powell, "Indonesia's refugee anger:
Ambassador
recalled over Papuan asylum", The Weekend Australian, 25-26 March
2006, p. 1.

(4) Quoted in "Visa row turns nasty", The Weekend Australian, 1-2
April 2006, p. 28.

(5) According to Peter Mares, the Minister for Immigration, Amanda
Vanstone, explicitly told departmental decision-makers that claims
should "be determined on their merits 'rather than taking into
account
whether we'll upset one or other of Australia's friends and
allies'";
"Refugees: credit where it's due", australian policy online
(e-journal), 29 March 2006: .

(6) Legislation introduced in response to the upsurge of boat
arrivals
from the Middle East in 1999 to 2001 already provides for offshore
processing (e.g. in facilities in Nauru) for persons who land in
areas
(e.g. offshore islands) excised from Australian territory for
migration purposes, or who are intercepted at sea. The proposed
legislation would have extended this to cover all unauthorised boat
arrivals, regardless of where they land. Persons found to be
refugees
among groups processed offshore have no guarantee of resettlement in
Australia, although in practice most have been due to other
countries
being unwilling to take them.

(7) Casey, draft ministerial statement, 6 February 1952, National
Archives of Australia (NAA) A5104 14/2/1 Part 2; Casey to Department
of External Affairs (DEA), draft press release, 2 December 1954, NAA
A1838 558/4 Part 14; summary report of the Australian Delegation to
the 9th session of the UN General Assembly, New York, 21 September
to
17 December 1954, Parliamentary Papers, Session 55, 1954-55, vol 2,
pp. 1802-07; Spender, press statement, 29 August 1950, NAA A5104
14/2/1 Part 2.

(8) Press statement, PM 2/1962, 12 January 1962, NAA A9738 PMS/027.

(9) Press statement, 11 February 1962, NAA A9738 PMS/027.

(10) See, for example, Shaw and Burbidge, report of the Australian
delegation to the Conference on the Status of Refugees, 7 August
1951,
NAA A1838 855/11/11 Part 3.

(11) Cabinet decision no 487, 16 October 1956, & related submission
no
398 by Casey of 4 October 1956, "Political asylum in Australia", NAA
A4926 398.

(12) This may incidentally help explain why Immigration as late as
1988 could claim that asylum applied only to high profile political
criminals and dissidents, and that there had been only three cases
of
it in Australia's history: see, for example, Glenn Nicholls,
"Unsettling admissions: asylum seekers in Australia", The Journal of
Refugee Studies, Vol. 11, 1 (1998), p. 72.

(13) Landale to Secretary, p 2, 12 February 1962, attachment to
Tange
to Minister, 20 February 1962, NAA A1838 1606/1 Part 1.

(14) Press release, 10 January 1962, PR 10, NAA A6980 S250089.

(15) Commonwealth Parliamentary Debates (CPD), House of
Representatives, 15 August 1962, Vol 36, p 349.

(16) CPD (House), 29 August 1962, Vol 36, p 864.

(17) Cabinet decision no 375, 6 August 1962, and related submission
no
330 by Barwick of 19 July 1962, "West New Guinea--Emergency
Evacuation
Planning", NAA A452 1965/8891.

(18) Record of conversation, Secretary DEA and Netherlands
Ambassador,
31 August 1962, NAA A452 1965/8891; Lambert to Cleland, 28 September
1962, NAA A452 1965/8891.

(19) McMillan to Secretary, DEA, 30 October 1962, NAA A1838 929/6/1
Part 2.

(20) Forsyth to Secretary, DEA, 8 October 1962, NAA A452 1965/8891.

(21) See, for example, Klaus Neumann, Refuge Australia: Australia's
Humanitarian Record (Canberra, 2004), p. 75, and Frank Brennan,
Tampering with Asylum: a Universal Humanitarian Problem (St Lucia,
2003), p. 16.

(22) Handwritten comment on Department of Foreign Affairs (DFA) to
Minister for Foreign Affairs, 18 January 1973, NAA A6980 932/3/2
Part 2.

(23) According to Birch, "The position appears to be that the Dutch
Government still considers itself to be morally responsible for the
protection of Papuans whom it recruited to fight Indonesians with
both
words and weapons, and who performed faithful service"; Birch to
Secretary, DEA, 23 October 1962, NAA A452 1965/8891.

(24) McMillan to Secretary, DEA, 30 October 1962, NAA A1838 929/6/1
Part 2.

(25) Forsyth, record of conversation, 2 November 1962, plus undated
supplementary note, NAA A452 1965/8891.

(26) Aide-memoire from Netherlands Embassy to Australian Government,
20 November 1962, NAA A452 1965/8891.

(27) Department of External Territories (DT) to Minister for
Territories, 22 November 1962, NAA A452 1965/8891, and DT file
note, 5
December 1962, NAA A452 1965/8891.

(28) Record of conversation with Brigadier-General Suadi, 22
November
1962, NAA A452 1965/8891.

(29) Forsyth to Acting Minister, 30 November 1962, NAA A452
1965/8891.

(30) Cable from Birch to DEA, 7 January 1963, NAA A1209 1962/981; DT
to Minister for Territories, 9 January 1963, NAA A452 1965/8891;
Secretary, DT, to Territory Administrator, 10 January 1963, NAA A452
1965/8891; DT to Minister for Territories, 16 January 1963, NAA A452
1965/8891.

(31) Cable from Birch to DEA, 14 January 1963, NAA A1209 1962/981;
cable from Birch to DEA, 21 January 1963, NAA A452 1965/8891.

(32) DT to Minister for Territories, 9 January 1963, NAA A452
1965/8891.

(33) Hasluck to Secretary, DT, 9 January 1963, NAA A452 1965/8891.

(34) Shaw to Secretary, DT, 9 January 1963, NAA A452 1965/8891.

(35) Cable from Birch to DEA, 14 January 1963, NAA A1209 1962/981.
According to the Wewak District Commissioner, "very few of the 44
could be described as political refugees; most were people who
thought
that prospects were better in Papua and New Guinea than in West New
Guinea"; DT to Minister for Territories, 21 January 1963 (telephoned
to Minister on 18 January), NAA A452 1965/8891.

(36) According to Birch, the Deputy Administrator of UNTEA believed
that their repatriation was important for future relations with
Indonesia, and that they had a duty to work for the progress of
their
own country; cable from Birch to DEA, 14 January 1963, NAA A 1209
1962/981; cable from Birch to DEA, 21 January 1963, NAA A452
1965/8891; DT to Minister for Territories, 16 January 1963, NAA A452
1965/8891. The UN more broadly may have thought its reputation on
the
line, having brokered the future of Papua in negotiations between
the
Netherlands and Indonesia, and having assumed responsibility for
providing law and order in the territory pending the transfer of
power
to Indonesia. Perhaps, too, it was trying to help Indonesia save
face,
since the transfer of power had been endorsed by the General
Assembly,
and was supported by many third world member states.

(37) Cole to Secretary, Department of the Administrator, 21 January
1963, NAA A452 1965/8891. A further three asylum-seekers who had
arrived in Vanimo in the interim were repatriated on 19 January.

(38) Birch to Secretary, DEA, 21 January 1963, NAA A452 1965/8891.
Birch told the Indonesians that the return would occur, but not when
or where.

(39) Birch to DEA, 21 January 1963, NAA A452 1965/8891.

(40) Cable from Australian Embassy, The Hague, to DEA, 28 January
1963, NAA A452 1965/8891.

(41) Diana Glazebrook cites one estimate of 3,925 as crossing
between
1963 and 1969: in "'If I stay here there is nothing yet if I return
I
do not know whether I will be safe': West Papuan refugee responses
to
Papua New Guinea Asylum Policy 1998-2003", Journal of Refugee
Studies,
Vol. 17, 2 (2004), p. 207. Archival evidence is difficult to find,
but
there are media reports of groups of up to 150 crossing at various
times in the following few years.

(42) Appendix to record of meeting, DT, 6 August 1964, NAA A452
1963/8261.

(43) In 1966, the DEA told the UNHCR that between May 1963 and
November 1965, only seven crossings were made by individuals or
groups
requesting entry to PNG on political grounds, with asylum being
granted in four cases (including two pending a decision on request
for
asylum in the Netherlands) and the other three still being
considered;
cable from DEA to Australian Consul-General in Geneva, 12 January
1966, NAA A432 1962/3102.

(44) Early in 1965, the Wewak District Commissioner was reportedly
instructed "to turn all parties back if possible without using
force";
Legge, note for file, 26 February 1965, NAA A452 1963/8261. The lack
of punctuation in the sentence may unfortunately have left it open
to
various interpretations.

(45) There was, however, some confusion over the matter, as some
officials thought this rule applied only to Dutch-sponsored
refugees.

(46) Cable to all posts, 16 June 1965, NAA A452 1963/8261.

(47) DT to Minister for Territories, 11 March 1964, p 2, NAA A452
1963/8261.

(48) Warwick Smith to Keys, 20 May 1965, NAA A452 1963/8261.

(49) CPD (House), 18 May 1965, Vol 45, p 1553.

(50) Cable from DEA to Australian Embassy, The Hague, 21 May 1964,
NAA
A1209 1962/981.

(51) DEA, record of meeting, 6 August 1964, NAA A452 1963/8261.

(52) Osborn to Parliamentary Foreign Affairs Committee, 12 November
1968, NAA A452 1968/5721.

(53) Osborn to Parliamentary Foreign Affairs Committee, 12 November
1968, p 4, NAA A452 1968/5721. According to Osborn (at p 5), by 1968
Indonesia put the number of Papuan insurgents at 2000, about 200
with
modern weapons, with its own forces in the province numbering
14,000,
including 7,000 in combat units.

(54) Furlonger to Hill, 13 April 1965, NAA A452 1963/8261.

(55) West Irian Secretariat, quoted in cable from DT to all posts,
16
June 1965, NAA A452 1963/8261.

(56) PNG's House of Assembly had its first indigenous elected
majority
in 1964.

(57) CPD (Senate), 28 September 1965, Vol. 29, p 654. According to
operational guidelines issued to Australian military patrols in
1967,
if they encountered Papuans seeking asylum they were to be reported
to
Territory District Commissioners; "Extract from Papua and New Guinea
Command Operational Instruction 1/67, Patrols and Operational
Exercises", circa 1967, NAA A452 1968/2812. The guidelines
continued:
"In the absence of specific guidance, the general policy of the
Administration is that all such people should be actively encouraged
to return to their own Territory. Cases which are in obvious danger
from the Irian Barat authorities should, however, be directed to the
nearest Administration centre. If any numbers are involved, the
Commander concerned should take especially urgent action to obtain
guidance. Care should be taken to ensure that no hardship is imposed
and that no opening is given for allegations of harsh treatment." In
1968, Hasluck, then Minister for External Affairs, expanded on the
process for determining asylum claims, reflecting the process and
criteria agreed by Cabinet in 1962 and later Menzies, e.g. claims to
be referred to ministers, merits-based assessment, and undertakings
by
refugees to refrain from political activity; CPD (House), 22 August
1968, Vol. 60, p 443.

(58) Renouf to Secretary, DT, 27 September 1965, NAA A452 1970/1202.
External Affairs may have

(59) Secretary, DEA, to Secretary, DT, 5 January 1966, NAA A452
1969/4413; Loveday to Secretary, DT, 29 Nov 1965, NAA A452
1969/4413.

(60) Copy of declaration on file (undated), NAA A452 1969/4413. The
decision to grant permissive residence visas formally lay with the
Minister for Territories, having regard to advice from the Territory
Administrator and the Minister for External Affairs.

(61) McIver to Furlonger, 19 March 1965, NAA A452 1963/8261. The
UNHCR's legal adviser, Paul Weis, noted that the Refugees Convention
did not apply to Papuan refugees in light of Australia opting to
restrict its scope to Europe, but claimed that this didn't exclude
the
possibility of them being regarded, where so merited, as refugees
within the UNHCR's mandate, or the High Commissioner extending his
good offices to them. The principle of non-refoulement would also
still apply.

(62) Furlonger to Mclver, 13 April 1965, NAA 452 1963/8261.

(63) Furlonger to Hill, 13 April 1965, NAA A452 1963/8261. The UNHCR
agreed to Australia's request to not refer to Papuan asylum-seekers
or
refugees in its documents, and said that "officers down the line
knew
the position"; Hill to Furlonger, 29 April 1965, NAA A10034 225/6/18
Part 1.

(64) As late as March 1973, the DFA briefed the then Acting Special
Minister of State, Don Willesee, when meeting a UNHCR
representative,
to respond to any question about the treatment of Papuan refugees in
PNG post-independence as a matter for the PNG Government, but to
emphasise that there was no cause for complaint in their current
treatment by Australia and thus no need for any UNHCR investigation,
and that any publicising of their situation by the UNHCR would not
be
appreciated by PNG or Indonesia; 28 March 1973, NAA A1838 932/3/1/5
Part 3.

(65) DEA policy planning paper, "Border policy in West Irian /
Territory of Papua New Guinea", 17 November 1969, NAA A452
1970/2113.

(66) Record of meeting between Brazil and Rorholt, 17 December 1968,
NAA A 1838 932/3/1/5 Part 2.

(67) Cable from Consulate-General, Geneva, to DEA, 22 January 1969,
NAA A452 1968/5721.

(68) Anderson to Minister for External Affairs, circa October 1967,
NAA A1838 929/6/1 Part 4.

(69) The figure of less than 10 per cent is a Territories estimate
of
September 1967: Brazil, record of meeting of 12 September 1967, NAA
A1838 929/6/I Part 4. The writer was unable to locate comprehensive
figures, but figures for the three months of February to April 1967
(in Anderson to Minister for External Affairs, circa October 1967,
NAA
A1838 929/6/1 Part 4) are perhaps typical. During this period, 325
Papuans including dependants entered PNG, with asylum being granted
to
twenty-four (twelve adults, all active members of the OPM, and their
twelve dependants).

(70) Besley to Minister, 23 October 1968, NAA A452 1968/2812.

(71) Besley to Minister, 16 July 1968 & 14 August 1968 (incl
attachments), NAA A452 1968/2812.

(72) Territory Intelligence Committee Paper No 2/68, 8 March 1968,
NAA
A452 1968/2812.

(73) See Galvin to Minister for External Territories, 6 November
1968,
NAA A452 1968/5508; Besley to Minister for External Territories, 23
October 1968, NAA A452 1968/2812; Besley to Secretary, DT, 2
November
1968, NAA A452 1968/5508; brief for DEA appearance before
Parliamentary Foreign Affairs Committee, 11 November 1968,
Attachments
4 & 6, NAA A452 1968/5721 and Attachment 5, NAA A452 1968/5508;
Osborn
to Parliamentary Foreign Affairs Committee, 12 November 1968, NAA
A452
1968/5721.

(74) See Besley to Minister for External Territories, 23 October
1968,
NAA A452 1968/2812; press statement by Administrator, 31 October
1968,
NAA A452 1968/5721; Besley to Minister for External Territories, 31
October 1968, NAA A452 1968/5508; Besley to Secretary, DT, 2
November
1968, NAA A452 1968/5508; cable from DEA to Australian High
Commission, London, 5 November 1968, NAA A452 1968/5508; Galvin to
Minister for External Territories, 6 November 1968, NAA A452
1968/5508.

(75) Besley to Minister for External Territories, 4 December 1968,
NAA
A452 1968/5508; Wakeford to Secretary, Department of the
Administrator, 9 November 1968, NAA A452 1968/5508.

(76) Besley to Secretary, DET, 2 November 1968, NAA A452 1968/5508;
Attachment 6, DEA brief for appearance before the Parliamentary
Foreign Affairs Committee, 11 November 1968, NAA A452 1968/5721.

(77) See DEA briefing notes for Kelloway, 2 April 1969, NAA A452
1969/18; Hastings, "It's open arms for West Irianese", The
Australian,
2 May 1969, in NAA A452 1969/18.

(78) Besley to Secretary, DT, 23 April 1969, NAA A452 1968/2812.

(79) See, among others, Besley to Minister for External Territories,
23 October 1968, NAA A452 1968/2812, and press statement by
Administrator, 31 October 1968, NAA A452 1968/5721.

(80) Attachment 5, DEA brief for appearance before Parliamentary
Foreign Affairs Committee, 11 November 1968, NAA A452 1968/5508.

(81) Attachment 5, DEA brief for appearance before Parliamentary
Foreign Affairs Committee, 11 November 1968, NAA A452 1968/5508.
There
was also concern that the Soviet Union and China might see advantage
in becoming involved in dissident activity, a point made by United
States officials; Dingle to Secretary, DEA, 2 December 1968, NAA
A452
1969/18.

(82) Background notes for Besley, DT, for meeting on border
planning,
30 April 1969, NAA A452 1968/2812.

(83) Attachment 5, DEA brief for appearance before Parliamentary
Foreign Affairs Committee, 11 November 1968, NAA A452 1968/5508.

(84) Record of meeting between Brazil and Rorholt, 17 December 1968,
NAA A 1838 932/3/1/5 Part 2.

(85) Extract from "This Week in the Papua-New Guinea House of
Assembly" No 7, Index for Week November 25-29 1968, NAA A452
1968/5508.

(86) Besley to Minister for External Territories, 7 May 1969, NAA
A452
1968/2812.

(87) Cable from Ambassador, Djakarta, to DEA, 6 February 1969, NAA
A452 1968/2812.

(88) Statement by the Minister for External Territories, in cable
from
DEA to Australian Embassy, Djakarta, 27 April 1969, NAA A452
1968/2812; cable from PNG Administrator to DET, 29 April 1969, NAA
A452 1968/2812; cable from Military Command, Port Moresby, to Army,
Canberra, 30 April 1969, NAA A452 1968/2812; extract of Joint
Intelligence Organization Committee Current Intelligence Report No
18,
1969, NAA A452 1968/2812. The Australian official, Anthony Try,
considered the incursion (which was in the order of 200 to 400
metres
into PNG) a result of confusion as to where the border was. The
police
released their captive when Try and the PNG constables intervened,
saying that he was from Wutung and not a refugee. The seventy-nine
Papuans were taken to Vanimo and given the opportunity to claim
asylum.

(89) Besley to Secretary, DET, 28 April 1969, NAA A452 A1968/2812;
Warwick Smith to Secretary, DEA, (draft), circa 30 April 1969, NAA
A452 1968/2812; DET file note on telephone conversation with Osborn,
DEA, 2 May 1969, NAA A452 1969/18.

(90) Besley to Secretary, DT, 1 May 1969, NAA A452 1968/2812. Barnes
discussed the issue with Freeth, but was unable to convince him of
the
merits of a formal protest.

(91) File note by Besley, 29 April 1969, NAA A452 1968/2812.

(92) The UN representative, Femando Ortiz Sanz, recommended a
one-person one-vote type process in coastal areas where most people
lived, and a "musjawarah" ("reasoning together towards a consensus",
involving discussions among local council members) type process
elsewhere. Indonesia opted for the latter process in all areas;
cable
from Australian embassy, Djakarta, to DEA, 26 April 1969, NAA A452
1969/18. According to the DEA, Sanz was to say privately that the
idea
of an expression of "free choice" in accordance with international
practices, as specified in the Dutch-Indonesian Agreement of 1962,
was
"an absurdity" because of the absence of appropriate local
traditions
of voting; Osborn to Parliamentary Foreign Affairs Committee, 12
November 1968, NAA A452 1968/5721.

(93) Transcript of press conference in cable from Australian
Embassy,
Djakarta, to DEA, 26 April 1969, NAA A452 1969/18.

(94) DT to Minister for External Territories, 19 June 1969, NAA A452
1970/1202; DFA policy planning paper LP/No 1, "Border policy in West
Irian / Territory of Papua New Guinea", 17 November 1969, NAA A452
1970/2113; internal DFA brief, March 1971, NAA A452 1970/1202.

(95) DFA brief for meeting with General Sumitro, 1 February 1971,
NAA
A452 1970/1202.

(96) Ibid.

(97) Internal DFA brief, March 1971, NAA A452 1970/1202.

(98) DEA, notes for possible questions to Minister for External
Affairs, 7 March 1969, NAA A452 1969/18; see also cable from DEA to
Australian High Commission, London, 5 November 1968, NAA A452
1968/5508.

(99) Barnes, CPD (House), 20 August 1971, Vol. 73, p 474.

(100) Eight Papuans landed in the Torres Strait in February 1969.
For
an official account of their treatment, see Freeth in CPD (House), 6
March 1969, vol 62, pp 461-2, and CPD (House), 15 March 1969, Vol.
62,
p 1127. A critical account can be found in Neumann, Refuge
Australia,
pp. 76-78.

(101) DFA policy planning paper LP/No 1, "Border policy in West
Irian
/ Territory of Papua New Guinea", 17 November 1969, NAA A452
1970/2113.

(102) Ellis to District Commissioners, 18 November 1969, NAA A452
1970/1202. Australia allowed individuals to choose whether they
returned to Papua or stayed in PNG. However, the slow pace of
decision
making on asylum applications (sometimes six to twelve months) led
some to speculate that "a new psychological war is being waged in
the
hope that [asylum-seekers] will give up in despair and go back to
West
Irian to face the music"; "Frank statement needed on Irianese",
Post-Courier editorial, 2 April 1970, in NAA A452 1970/1202.
Australia
also made it clear that any refugee who stayed would remain bound by
the undertaking they had made in regard to employment, movement and
political activity, and that an extension to their permissive
residence visa would be subject to normal application processes.
When
the amnesty ended, approval of a request for repatriation became a
matter for the discretion of the Indonesia military commander in
Papua, with approaches being made through the local border liaison
channels established in 1969; cable from Australian Embassy,
Djakarta,
to DFA, 2 July 1970, NAA A452 1970/1202; Australian Embassy,
Djakarta,
to Secretary, DFA, 27 July 1970, NAA A452 1970/1202.

(103) For example, in April 1970 up to 150 Papuans who had not
sought
permission to reside in PNG were reported as hiding in the West
Sepik
district, near Vanimo (Jack McCarthy, "Irian refugees hiding in
border
district", Post-Courier, 23 April 1970, in NAA A452 1970/1202), and
another 100 or so were reported as crossing the border near Yako in
the five months after that ("More refugees cross border",
Post-Courier, 21 October 1970, in NAA A452 1970/1202). In July 1971,
eight Papuans, including two wounded, were reported to have crossed
into PNG at Imonda, returning to Papua after leaving one of the
wounded, who applied for asylum; cable from PNG Administrator to
DET,
15 July 1971, NAA A452 1970/1202.

(104) Bunting to Secretary, Department of the Administrator, 12
August
1971, NAA A452 1970/1202.

(105) Cable from DFA to all posts, 24 July 1973, NAA A1838 932/3/1/5
Part 3.

(106) Record of conversation between DT & DFA, 18 October 1972, NAA
A452 1971/4189; Woolcott to Minister for Foreign Affairs, 18 July
1973, NAA A1838 932/3/1/5 Part 3. When refugees on permissive
residence visas wanted to return to Papua, it was usually arranged
after assurances by local Indonesian authorities that they would not
be harmed; see, for example, PNG Administrator to Secretary, DFA, 9
June 1971, NAA A452 1970/1202; Bunting to Secretary, Department of
the
Administrator, 7 December 1971, NAA A452 1970/1202. In 1973,
Indonesia
offered to permit periodic inspections by PNG officials of returnees
to satisfy themselves that they had come to no harm; record of
meeting
between Conroy (Secretary, PNG Department of Foreign Relations &
Trade) and DFA, 6 August 1973, NAA A1838 932/3/1/5 Part 3. It is not
known whether such an arrangement eventuated.

(107) The Territory Administrator and PNG officials claimed that PNG
was used only intermittently by Papuan rebels, that Indonesian
allegations were always thoroughly checked, and that while medical
treatment was given when needed, no supplies were being provided;
see,
for example, DT file note, 6 February 1973, NAA A452 1971/4189; DT
file note, circa February 1973, NAA A452 1971/4189. However, the
District Commissioner in Vanimo and many in DT and DFA thought
Indonesia's concerns justified, believing that rebels used PNG to
escape Indonesian forces, obtain supplies and medical assistance,
and
as courier routes. Further, that they received active support from
some Papuan refugees in PNG; see, for example, PNG Intelligence
Committee, 29 October 1971, NAA A452 1970/1202; Steven, report on
border liaison meeting, 27 June 1972, NAA A452 1971/4189 and
internal
note, 13 September 1972, NAA A452 1971/4189; record of conversation,
DT and DFA, 18 October 1972, NAA A452 1971/4189; Arriens to
Secretary,
DFA, 21 August 1973, NAA A452 1971/4189; Greenwell to Secretary,
DFA,
11 September 1973, NAA A452 1971/4189; DT file note, September 1973,
NAA A452 1971/4189.

(108) Cable from DFA to Australian Embassy, Djakarta, 28 September
1971, NAA A452 1970/2113.

(109) Barnes, CPD (House), 14 October 1971, Vol. 74, p 2453.

(110) Record of meeting, 23 March 1971, NAA A1970/1202; record of
meeting, 23 March 1971, NAA A1970/1202. A couple of years earlier,
Australia prevented two PNG-based Papuan activists from attending
the
UN General Assembly to protest against the 1969 act of self-
determination.

(111) Cable from DFA to Australian Embassy, Djakarta, 12 February
1973, NAA A452 1971/4189.

(112) Secretary, DT, to PNG Administrator, 27 October 1971, NAA A452
1970/1202. Asylum applicants were, however, still quizzed on
dissident
activities in the border area, especially on instances of trespass
and
contact with PNG residents.

(113) Cumes to Minister for Foreign Affairs (draft submission), 16
January 1973, p 8, NAA A1838 932/3/1/5 Part 3.

(114) Body, note on discussions with Australian Ambassador to
Indonesia, 21 May 1971, NAA A432 1974/11015 Part 3.

(l15) Body, note on discussions with Australian Ambassador to
Indonesia, 21 May 1971, NAA A432 1974/11015 Part 3.

(116) DFA briefing note, "Indonesian relations with PNG", circa
January 1973, p 2, NAA A452 1971/4189.

(117) Barnes, CPD (House), 14 October 1971, Vol. 74, p 2453;
Peacock,
CPD (House), 16 August 1972, Vol. 79, p 198.

(118) Cable from DFA to all posts, 24 July 1973, NAA A1838 932/3/1/5
Part 3.

(119) DFA briefing notes for meeting with General Sumitro, 1
February
1971, p 3, NAA A452 1970/1202.

(120) Refuge Australia, p. 72.

(121) When Australia acceded to the Convention in 1954, it opted to
limit coverage of the Convention to refugees resulting from events
occurring in Europe, as per Article 1B(l)(a). It also entered an
interpretive reservation on articles relating to a refugee's freedom
of employment and movement (Articles 17, 18, 19 and 26), and a
substantive reservation on articles relating to the issue of travel
documents and the expulsion of lawfully admitted refugees (Articles
28
and 32). It removed the reservations to Articles 17, 18, 19, 26 and
32, and the geographic limitation, in December 1967, and the
reservation on Article 28 in March 1971. It acceded to the 1967
Protocol, which removed the date limit in the Convention, in
December
1973 (until the Protocol, the Convention covered only refugees
resulting from events before 1 January 1951, whether in Europe or
anywhere else).

(122) Somare, information paper on role and functions of UNHCR, 5
July
1973, NAA A1838 932/3/1/5 Part 3. See also Baird to Secretary, DFA,
circa March 1973, NAA A1838 932/3/1/5 Part 3.

(123) Woolcott to Minister for Foreign Affairs, 18 July 1973, p 5,
NAA
A1838 932/3/1/5 Part 3.

(124) UNHCR, "Country Operations Plan: Overview--Country: Papua New
Guinea", Planning Year 2006.

(125) The number may vary according to the definition of a refugee
used. For example, Glazebrook ("If I stay there is nothing", p. 76)
puts the figures at about 13,500, while a 2002 PNG census report
puts
it at 11,663 in the border region alone, i.e. not including those in
Port Moresby, Lae, etc: Attachment E to Australian Section of
International Commission of Jurists and Refugee Council of Australia
(ASICJ-RCOA), "Seeking refuge: the status of West Papuans in Papua
New
Guinea", report of joint mission to PNG, January 2003.

(126) See, for example, UNHCR "Country Operations Plan"; ASICJ-RCOA,
"Seeking refuge"; Media reports, "Attachments to letters to the
UNHCR
on worrisome situation on deportation plan of Papuans", circa Jan
2003, ; and United States Committee for Refugees (USCR), Worm
Refugee
Survey 2003, Country Report: Papua New Guinea,

(127) ASICJ-RCOA, "Seeking refuge", para 402.

(128) Glazebrook, "If I stay there is nothing", p. 76.

(129) See, for example, ASICJ-RCOA, "Seeking refuge"; paras 412,
415;
and Media reports, "Attachments to letters".

(130) Insights may be found in, among others, UNHCR, "Country
Operations Plan"; Glazebrook, "If I stay there is nothing";
ASICJ-RCOA, "Seeking refuge"; USCR, Worm Refugee Survey; Rosemary
Preston, "Refugees in Papua New Guinea: Government responses and
assistance, 1984-1988", International Migration Review, Vol. 26, 3
(1992), pp 843-876; B. Martin Tsamenyi, "Papua New Guinea's
accession
to the 1951 Convention and the 1967 Protocol Relating to the Status
of
Refugees", International Journal of Refugee Law, Vol. 1, 2 (1989),
pp.
180-198; and UNHCR, "UNHCR's regional representative's official
visit
to Papua New Guinea", media release of 15 February 2006, Canberra.

(131) Indonesians familiar with PNG's but not Australia's asylum
processes may understandably be confused about the latter's grant of
asylum to the recent boat arrivals, if they assumed they are the
same.
For example, according to the ASICJ-RCOA (2003, paras 310-319), the
final decision on asylum grants in PNG is made by PNG's Department
of
Foreign Affairs, with the Director of Immigration merely ratifying
the
decision. And when UNHCR initially indicated that some 75 per cent
of
the early 2001 influx of 102 families might be refugees, Foreign
Affairs re-interviewed the persons and reduced this to only six
families.

(132) Somare to Dowd, 8 April 2003, Attachment K to ASICJ-RCOA,
"Seeking refuge".

(133) UNHCR, "Country Operations Plan".

(134) Quoted in Attachment 6, DEA brief for appearance before the
Parliamentary Foreign Affairs Committee, 11 November 1968, NAA A452
1968/5721.

(135) Guise to Barnes (Minister for Territories), 6 December 1968,
NAA
A452 1969/18.

(136) Somare to Whitlam, 1 November 1973, NAA A1838 932/3/2 Part 2.
Whitlam was in no mood to grant PNG time to ponder the matter. His
own
timetable for accession was set by his desire for Australia to
become
a party to as many conventions as possible in the field of human
rights by 10 December 1973, the 25th anniversary of the UDHR. Nor
did
Australia want to force PNG's hand in case it hindered PNG in
finalising a border agreement with Indonesia and prejudiced future
relations between the two states (Indonesia had indicated that it
would prefer PNG not to accede); Record of meeting, 9 March 1973, p
3,
NAA A1838 932/3/1/5 Part 3; Baird to Secretary, DFA, circa March
1973,
NAA A1838 932/3/1/5 Part 3; Baird to Secretary, DFA, 10 July 1973,
NAA
A1838 932/3/1/5 Part 3.

(137) Explanatory memorandum, attachment to DFA minute paper for the
Executive Council, 4 December 1973, NAA A1838 932/3/1/5 Part 3.
Australia deposited the instrument of accession with the UN on 13
December, with the rider that it did not cover PNG.

(138) Charles Price, "The refugee issue in Australia: 1838-1991",
Australian Immigration Research Centre Working Papers No 2, October,
1990, p. 11, unpublished paper (copy held by National Library of
Australia, Canberra).

(139) Brennan, Tampering with Asylum, p. 17. These views are
puzzling
anyway, since under Article VII of the Protocol no reservation can
be
made to the non-discrimination provisions in Article 3 of the
Convention.

(140) Baird to Secretary, DFA, 10 July 1973, NAA A1838 932/3/1/1
Part 3.

(141) Secretary, DT, to Secretary, DEA, 22 April 1970, NAA A452
1970/1202. These provisions (Article 17(k) of the Indonesian Basic
Law
62 of 1958) still hold.

(142) Secretary, DI, to Secretary, DFA, 5 January 1973, NAA A 1838
932/3/1/3.

(143) Baird to PNG Department of Foreign Relations and Trade, circa
July 1973 (draft), NAA A1838 932/3/1/5 Part 3; see also Record of
meeting, 6 August 1973, NAA A1838 932/3/1/5 Part 3.

(144) UNHCR, "UNHCR's regional representative's official visit to
Papua New Guinea". Under these reservations, PNG does not accept the
obligations towards refugees contained in Convention Articles 17(1)
(employment), 21 (housing), 22(1) (elementary education), 26
(freedom
of movement), 31 (penalties and restrictions on refugees unlawfully
in
the country), 32 (protection from expulsion) and 34
(naturalization).

(145) Some financial support has been provided by the UNHCR,
although
most of this ceased in the mid-1990s, resuming in a limited way only
in 2003; see, for example, Glazebrook, "If I stay there is nothing",
and ASICJ-RCOA, "Seeking refuge". Ongoing support is provided mainly
by church agencies.

(146) Glazebrook, "If I stay there is nothing", p. 218.

(147) Ibid., p. 212.

(148) One option, for example, is for PNG to take any Papuan
refugees
among those who try to make it to Australia, in return for
Australia's
help in supporting the 10,000 or so refugees that it currently
hosts,
and taking at least a similar number of them in return. At least
that
way Australia could still claim to be actively dissuading Papuans
from
heading south (for they will have no guarantee that they will remain
in Australia), and to be doing its fair share in regional refugee
relief and resettlement work.

(149) As noted by the Department of Immigration and Multicultural
and
Indigenous Affairs (DIMIA), "it is generally accepted that, for the
purpose of Article 31 (1), 'penalties' includes prosecution, fines
and
imprisonment for illegal entry and presence, and that these
penalties
can be distinguished from measures such as restrictions on movement
that are imposed for on-penal purposes, for example to investigate a
claim for asylum, or as a security measure, or for the purpose of
expulsion"; Interpreting the Refugees Convention: an Australian
Contribution (Canberra, 2002), p. 145. Further, it distinguishes
between differential and discriminatory treatment of refugees. For
example, in its view (at p. 146), "the Convention leaves it open for
States to provide or withhold different rights and benefits from
different groups of refugees over and above those required by the
Convention, provided that discrimination does not occur within its
obligatory provisions". It accordingly holds that measures such as
offshore interception and processing, the detention of unauthorised
arrivals, and temporary rather than permanent protection
arrangements,
do not breach its Convention obligations. For a different view, see,
among others, Tara Magner, "A less than 'Pacific' solution for
asylum
seekers in Australia", International Journal of Refugee Law, Vol.
16,
1 (2004), pp 53-90; Alice Edwards, "Tampering with refugee
protection:
the case of Australia", International Journal of Refugee Law, Vol.
15,
2 (2003), pp 192-211; Chantal Bostock, "The international legal
obligations owed to the asylum seekers on the MV Tampa",
International
Journal of Refugee Law, Vol. 14, 2/3 (2002), pp 280-301.

(150) It should be noted that five Papuan asylum-seekers arrived at
Thursday Island in July 1985, to a frosty reception. According to
one
account, Chris Hurford, then Immigration Minister, said that "the
men,
even if they were genuine refugees, would not be allowed to take up
permanent residence because Australia did not want to anger
Indonesia
or become a frontline state for its political dissidents", and that
"there were plenty of other places in this world" where they could
go:
quoted in Peter Mares, Borderline: Australia's treatment of refugees
and asylum seekers (Sydney 2001), p. 127. To the best of the
writer's
knowledge, the men were ultimately allowed to stay.

(151) Under Article 33(1), "No Contracting State shall expel or
return
('refouler') a refugee in any manner whatosoever 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".

(152) It is unclear why the recent boatload of Papuans underwent a
refugee status determination process for a protection visa, and was
not simply granted entry under a "safe haven" visa class, as was a
boatload of Maluku islanders in 2000 (for details of the latter, see
Mares, "Refugees: credit where it's due"). The safe haven visa
provides renewable temporary stay in Australia for persons affected
by
humanitarian or other crises, and is not dependent on a refugee
status
determination (i.e. the question of whether or not they are
Convention
refugees is left up in the air). This may seem like dodging the
issue,
but, as in the case of the 1960s, when Australia chose not to use
the
language of asylum in regard to Papuans in PNG, it would have been a
way to help Indonesia save face, whilst still providing refuge to
people in need of it. Possible reasons for the difference in
treatment
may include the extensive media publicity given the arrival of the
Papuans, a desire on the part of Immigration to not fudge the issue
(perhaps to improve its public image after a long period of severe
criticism over use of its mandatory detention powers), and the kinds
of claims or requests that they made.

(153) The latter have their claims considered in Australia, with a
range of rights not available to those processed offshore, e.g.
access
to a merits-based review of adverse decisions by the Refugee Review
Tribunal, judicial review of procedural aspects, etc.

(154) Article 3 obliges a signatory to not discriminate in applying
the Convention on grounds of race, religion or country of origin. No
mention is made of mode of arrival.

(155) One explanation sometimes offered is that there is more
uncertainty about the identity of boat arrivals than airport
arrivals,
but this does not always hold true, and is especially unlikely with
asylum-seekers from Australia's immediate region. And in security
terms, persons of interest to Australia are just as likely to travel
by air as by boat.

(156) A precedent for these sorts of fact-finding missions can be
found in some European countries, such as Norway.

(157) Convention Articles IF, 32 and 33 outline various
circumstances
in which a person can be excluded from the protection afforded by
the
Convention, or have it withdrawn. Australia would, however, still
need
to satisfy obligations it may have to such persons under other
conventions, e.g. the Convention against Torture. Significantly,
when
dealing with Papuan asylum-seekers between 1963 and 1973, Australia
took the view that mere OPM membership was an insufficient reason to
refuse asylum. Rather, there had to be clear evidence that the
person
had been responsible for or involved in murder or other serious
criminal activity during guerrilla operations. That said, on at
least
three occasions when these circumstances applied, asylum was still
granted because of opposition to forcible returns in the PNG
Administrator's Executive Council; Woolcott to Minister for Foreign
Affairs, 18 July 1973, NAA A1838 932/3/1/5 Part 3.

(158) Patrick Walters, "Cabinet to consider new refugee rules", The
Australian, 10 April 2006, p. 5. Indeed, the Convention provides for
them: see, for example, Articles 32 and 33.

(159) See fn 121 above. Hubert Opperman agreed to the removal of the
geographic restriction and the reservations on articles 17, 18, 19,
26
and 32 in October 1965 (Heydon to Secretary, DEA, 29 October 1965,
NAA
A432 1974/11015 Part 1), and Bill Snedden to the removal of the
reservation on article 28 and accession to the Protocol in November
1968 (Armstrong to Minister for Immigration, 28 November 1968, NAA
A1838 932/3/1/3).

(160) Cited in Armstrong to Minister for Immigration, 16 July 1973,
NAA A6980 S250089. Technically, Grassby was, and remains, partially
correct. Asylum-seekers who claim protection on political grounds
usually have their claims assessed by Immigration against Refugee
Convention criteria, which includes grounds of "political opinion".
However, migration regulations still provide for a Territorial
Asylum
visa to be issued at the discretion of the Minister for Foreign
Affairs.

(161) In addition to Immigration, the committee had representatives
of
Foreign Affairs, Attorney-General's and Prime Minister and Cabinet,
as
well as the UNHCR in an observer capacity: National Population
Council, Refugee Review (Canberra, 1991).

(162) The application of the Convention remained at the discretion
of
government until 1980, when direct reference was first made to it in
domestic legislation, to the effect that refugee status could be
granted if the Minister for Immigration determined in writing that
the
applicant was a refugee according to the Convention and Protocol.
However, the rights conferred by accession, and the definition of
refugee in Article 1A(2) of the Convention, became overtly
justiciable
or enforceable under Australian domestic law only in 1994, with an
amendment to the Migration Act to the effect that a criterion for a
category of visa known as a Protection Visa was that the applicant
was
a non-citizen to whom Australia had protection obligations under the
Convention and Protocol. For details, see Roz Germov and Francesco
Motta, Refugee Law in Australia (South Melbourne, 2003).

(163) According to Brennan, "At this time the Evans peace plan [for
Cambodia] was being formulated and was attempting to repatriate
300,000 Cambodians from Thailand. It was in all the politicians'
interests that the handful of boat people turning up in Australia be
found to be economic migrants. In short, if those turning up in
Australia were refugees, there was no way the peace plan could
work";
Tampering with Asylum, p. 39.

(164) The future of these Timorese--some 1,650 in number--has only
recently been resolved after more than a decade of court and
administrative procedures. By 2005, nearly all had been granted
permanent residency, although most under discretionary ministerial
"public interest" powers rather than as refugees.

DAVID PALMER

University of New South Wales