Guy Goodwin-Gill: Refugees resort to desperate measures when system fails

The numbers have only ever been small – minuscule even – but boats of asylum seekers arriving on Australian shores, like the one that ran aground in tragic circumstances off Christmas Island yesterday, have been an issue since the late 1970s.

Back then, Australia under its Prime Minister Malcolm Fraser played a key role in tackling the Indochina refugee problem, offering a new home to thousands of refugees. In fact the country has a long history of accepting refugees for resettlement – over 700,000 since 1945. But for much of the post-war period, the policy was helped by an ideological commitment to assist those fleeing communism, and by the ease of overseas vetting.

Today, both these crutches are gone; the movements of people are more mixed and old assumptions need re-working in the light of international law. Australia's current refugee and asylum policy is unlike that of any other state in the developed world. It distinguishes between those who arrive "lawfully", as students or tourists with visas; and those who manage to reach one of the outlying islands. At the same time many of these islands have been removed from local, legal jurisdiction and now exist in something close to a legal "black hole".

Besides bringing law and practice into conformity with its constitution – and international law – an important regional dimension must also be addressed. Countries of transit are not able to offer solutions, and remain to be persuaded that international co-operation is in their interest.

When refugees take desperate measures, we have a pointer to failings in the system – a resistance to granting asylum, a reluctance to provide protection, inadequate support for developing countries such as Syria, Iran and Pakistan, which are already overburdened. In addition, it's all too easy for governments to pretend that some other state is responsible for dealing with the problem.

The law now recognises the right to seek asylum, and the duty of governments not to send refugees back to face persecution, torture or death. Australia could contribute here by working with the UN High Commissioner for Refugees. This will require, above all, a commitment to the letter and the spirit of international law and to the obligations which it has helped to forge.

Australia will have to put aside the isolationist position it has often preferred and its tendency to dictate and prescribe unilaterally. It will also need to reform its refugee protection processes and persuade the Australian public that refugees and asylum seekers are not a threat, that those in need of protection can receive it without the world falling apart, and that for those who do not require protection, a safe and dignified return to their country of origin is a working option.

If Australia does this, then it will deserve international support as well.

Guy Goodwin-Gill is professor of international refugee law at Oxford University and senior research fellow at All Souls College