Here’s a tedious point – the names we assign to things are important as to how people perceive those things. Take my friends Hing and Pat. After months of being teased as nerds for their weekly games of Chess, they started calling it King Hunter and have never looked back. Similarly, when I was growing up, I wanted nothing more than the nickname ‘Jenks’. This, I believed, projected the casual swagger and devil-may-care attitude I so richly did not deserve. But names are something beyond our control, just ask Rick Santorum, so I missed out on ‘Jenks’ and was instead lumped with my initials – BJ – which were then extended to ‘The BJ Kid.’ To wit, names are important and children are cruel.

So when the media starts to label a certain group of people with over-emotive and misleading names, it gives me, The BJ Kid of yore, cause for concern. And with this in mind, I’d like to talk about what the media means when they say ‘illegal boat arrivals’, and more importantly, whether they should be saying it at all.

This phrase has multiple permutations and is occasionally shortened to ‘illegals’ for maximum brevity and because it better describes the group of people will murder you in your beds. But this term has always confused me, mainly because I couldn’t for the life of me understand exactly which law was being broken by seeking asylum.

After all, regardless of how you personally feel on the issue, the 1951 Convention Relating to the Status of Refugees is very, very clear on the count that it is not illegal to seek asylum, for any reason and by any medium. That was kind of the whole point of the thing. (That, and an awesome Spring Break in Geneva for all and sundry). But more than that, common sense dictates that desperate people fleeing persecution ought to be able to, in a legal sense anyway, seek asylum by any means available to them. This is a tired old argument and I’m sorry for rehashing it here, but it’s important to establish this stuff up front.

So, with this in mind why does the word ‘illegal’ keep popping up, day after day, week after week, in almost every news source in the country? And more importantly, why has this term become so ubiquitous that it’s the standard way Immigration Minister Chris Bowen describes those seeking asylum by boat?

Like most contentious things surrounding this issue, this is partly to do with the Migration Act – or more specifically a very, very tiny part of it. The act has a description of someone who is within the migration zone (Australia and its waters) and without a visa. The term is ‘unlawful non-citizen’. This term could be applied to asylum seekers arriving by boat, but more often than not it isn’t, mainly because there are much better, more specific terms about. That said, it’s on the books. Interestingly, the word ‘illegal’ also appears a bunch in the 1951 UN Convention Relating to the Status of Refugees, like here, in Article 31.

The contracting states shall not impose penalties, on account of their illegal entry, on refugees who, coming directly from a territory where their life and freedom was threatened…enter or are present in their territory without authorisation.

 This paragraph is basically saying that in cases where asylum seekers are coming from a place where their life and freedom was threatened, their ‘illegal’ status doesn’t mean a damn. Which is just common sense.

But hold on, say the letters to the Tele, just how many of these ‘asylum seekers’ are deemed to meet the UN’s standards for genuine refugees? I mean, if you’re able to pay $10,000 a head to risk the life of you and your family on a leaky boat, just how ‘desperate’ can you really be? (I’ve always felt the answer to this is just a blank stare followed by ‘…very desperate?’)

In fact, Gladys, nearly all of them are deemed genuine refugees. About nine out of ten. Ninety percent. Contrast that to those who seek asylum by plane, where the figure is 40%. This stat is hardly surprising – it’s harder to risk your life on a boat than to risk DVT on a plane, and so those making this perilous journey are clearly more likely to be in serious trouble. But when was the last time you heard those seeking asylum by plane as ‘illegal’?

So just to recap before pressing on:

Under the 1951 UN Convention

• The act itself of seeking asylum, via any medium is not illegal.
• In cases of illegality (when those seeking asylum within the migration zone are visa-less) then their illegal status is basically deemed irrelevant if they have come from extreme danger – which 90% arriving by boat are.

Under the Migration Act

• It is technically accurate to describe an asylum seeker without a visa as ‘unlawful’ or, at a pinch, ‘illegal’.

Now, you could posit that the ‘unlawful non-citizen’ description in the Migration Act is grounds a-plenty to label those arriving by boat as ‘illegal’ in the media, but I would argue, and in fact will argue, that you’d have to be a bit of a massive shit-head to do so.

To begin with, I’ll concede that illegality is an absolute – that is to say that something can’t be a little bit illegal, in the same way that you can’t be slightly pregnant or a wee bit of a murderer. That granted, I’d like to suggest that when you’ve a limited number of adjectives to describe a group of people and you’re choosing a word as powerful as ‘illegal’ as one of them, you’d best be damn sure that this is a defining and relevant feature. Take Andrew Bolt. If I were to describe him as ‘Convicted Racist Andrew Bolt’, you would, while conceding that that description was technically accurate, quite rightly wonder why, of all the words available to sum him up, I’d chosen those ones. You would probably conclude that I was trying to sneakily undermine his legitimacy as a political commentator by choosing to define him in wholly emotive terms terms. And you’d be right.

Convicted Racist Andrew Bolt loves himself a good chat about ‘illegal boat arrivals’ and he’s not alone. This is also true of his stable-mates at News (Devine, Blair, Akerman et al) as well as Dennis Shanahan over at the Oz and basically anyone given a microphone on talkback radio.

But then again, if the shoe technically fits (even if you have to break a few toes to slip it on), is it really that bad to call these people ‘illegal’? Just how peripheral to their actual identity is this word?

The quick and crude answer is: pretty fucking peripheral, actually. As mentioned above, the illegality of their arrival is, as the UN concedes, basically par for the course when dealing with a group of desperate and frightened people fleeing for their lives – and as such, it shouldn’t really feature in the argument, least of all as the only way you describe them. Furthermore, if your beef with asylum seekers is that they’re risking their lives by boat, the illegality of their status is irrelevant. It’s not the boat that international law recognises as illegal, it’s the lack of visas, regardless of how you get into the migration zone.

So with that in mind, there is absolutely no reason to bring it up illegality in most arguments unless, of course, the label is convenient to your broader narrative.

Which, of course, it is. We as a country place an immense amount of stock in the concept of ‘a fair go’. It’s as Australian as Don Bradman winning the Bathurst 1000 on Phar Lap. The problem seems to come from the tension created between our desire to give everyone this ‘fair go’ and our fear of being inundated with foreigners.

Which is why calling asylum seekers ‘illegal’ is pretty convenient. ‘Illegal’ conjures up notions of illegitimacy, after all, the two words are cousins. And if we can imply that asylum seekers arriving by boat have somehow circumvented the law, that their claim is illegitimate, then they are no longer eligible for our legendary kindness and compassion. The added bonus is that we also get to call them all sorts of ugly names and tell them to piss off without acknowledging that we’re basically abusing, by legal definition, some of the most desperate people on our planet.

Even the media outlets that most fervently use this term implicitly acknowledge its tackiness. Take our mate Dennis Shanahan. In last Friday’s Australian, Shanahan wrote a piece about the Government’s constant blame shifting on the issue of boat arrivals. His piece is littered with the ‘illegal’ moniker. But turn to page one of the same paper and you’ll find an article about the tragic drowning of over sixty asylum seekers en route to Australia. Not a single mention of the word. Same over at the Tele, where Ray Hadley’s op-ed gleefuly and irrelevantly uses the term when lambasting Bowen’s weak policy, but no sign of ‘illegal’ when the paper reports on the drowning tragedy. In fact, the Tele article about the disaster goes so far as to grant full, if posthumous, ‘refugee’ status to those on board what Hadley called ‘illegal boats’.

The worst part about this is that anyone who is paid to write news for a living knows everything I’ve just outlined. In fact, it’s made incredibly clear in the Australia Press Council guidelines (and if you click one link in the article, click that one). I don’t mind if someone publishes an opinion with which I don’t agree, but when their argument, after over a decade of peddling it, relies on the willful obfuscation of well established facts, it belies a kind of unforgivable cynicism. I’d also suggest that you’d have to seriously question any argument based on such pants-shittingly obvious straw-clutching vilification.

This debate isn’t going to go away any time soon, it’s something that we as a country have decided, for reasons best left to the public policy Batcomputer housed deep in the bowels of Sussex street, is very important to the wellbeing of average Australians. And I suppose I can live with that. But if we are going to talk about this, I don’t think it unreasonable to ask commentators stop relying on convenient fictions when dealing some of the planet’s most vulnerable people.

Sincerely,

Jenks.

ODDS AND ENDS

• There was really way, way too much to put in here without rendering the article completely unreadable, so I might do a follow up later in the week. For example, there’s an entirely separate problem with how the media talks about detention, as well as some really damning stats on people who are actually breaking the law by over-staying their visas.
• Here’s a really interesting take by Nick Riemer on the argument that Australians have a moral obligation to stop refugees risking their lives by boat.
• The first draft of this article featured the phrase ‘If that doesn’t work, such journalists should be shot directly into the sun out of our mighty Cannon of Truth’. It was too stupid for the main body, but I’m giving it a run here.
• Massive thanks to Anya Poukchanski, Hugo Dupree and especially Paul Mackay for casting their very learned eyes over this piece and providing really excellent suggestions.