MJIL Symposium: A Response to Michelle Foster by Mary Crock

[Mary Crock is Professor of Public Law at the University of Sydney]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

Although Australia identifies as a member of the United Nation’s ‘Western European and Others’ Group (‘WEOG’), it has now enacted laws that place it much more comfortably as an Asian nation. Unlike the WEOG countries, few Asian nations are party to the Refugee Convention (‘Convention’), or to any of the major human rights conventions other than the Convention on the Rights of the Child. Most countries in this region understand and (generally) conform with the non-refoulement obligation enshrined in s 33 of the Convention, but they will not entertain the notion that refugees on their territories enjoy any economic or social rights. The presence of refugees is tolerated at best. At worst they are treated as ‘simple’ illegal migrants and subjected to detention, harassment and discrimination.

Relying on the recommendations of a committee that notably did not include anyone with legal expertise, the Labor government has now moved to create a regime that Associate Professor Foster demonstrates is decidedly un-WEOG. It is squarely at odds with all but the most basic tenets of refugee and human rights law. Non-refoulement is the only principle of refugee law acknowledged in express terms. It is a regime that reifies the people in respect of whom the non-refoulement obligation is owed by denying in language that asylum seekers have any rights or agency in the protection process. The protection of affected refugees has become a privilege to be granted at the absolute (non-reviewable and non-compellable) discretion of the Minister for Immigration.

In addition to the legislation repealing the troublesome s 198A of the Migration Act, this Act is now to be amended so as to extend the operation of the so called ‘excision’ provisions. If enacted, this means that no irregular maritime arrival (‘IMA’) will be eligible to apply for a visa without a special ministerial dispensation. In effect, IMAs will have no access to Australia’s refugee protection regime, even if they they make contact with Australian soil on the mainland rather than on an offshore territory.[1] Presented as an important integer of the Expert Panel’s ‘No Advantage’ principle, the amendments will have the effect of creating two classes of asylum seeker in Australia: those who arrive by plane (and who generally present with some form of documentation) and those who arrive by boat without visas. The former group are given access to one of the most sophisticated refugee status determination systems in the world, with access to free assistance where required; oral hearings at both application stage and on appeal; and judicial review of the decisions made. Asylum seekers travelling by plane are generally not detained pending determination of their status as refugees. They are entitled to immediate permanent residence and to an array of assistance measures to settle them into their new country.

In contrast, IMAs now face indefinite periods in detention in Australia and removal to Nauru and Papua New Guinea’s (‘PNG’) Manus Island where their status as refugees will apparently be determined by officials in those countries, under Nauruan and PNG laws, respectively. As Foster notes, the Memoranda of Understanding (‘MOUs’) with Nauru and PNG expressly stipulate that the niceties of international legal obligations are not a mandatory part of the arrangements made. The regime is one that Australia hopes will comply in practice with the international legal obligations owed to Convention refugees. Under its domestic law, however, there is no longer any obligation that this be the case. In fact Nauru has now enacted the Refugees Convention Act 2012 and it has amended its Immigration Regulations 2000 to create a special ‘Australian Regional Processing’ visa regime. Although Nauru has also enacted legislation that allows for the appointment of guardians for unaccompanied immigrant children,[2] it is plain that the entire scheme is a paper facade for a system that will be run by Australians and for Australia. Nauru will be hiring Australian officials to both design and do status determination processes and appeals. As noted here, Australia will presumably be paying the $1000 monthly visa charge imposed for the grant of each Australian Regional Processing visa.^[3] With Nauru having a capacity of 1500 places, this amounts to $90 million AUD over five years — the length of time Shadow Minister Morrison claims the Opposition would leave refugees in the region before considering them for resettlement in Australia.

Associate Professor Foster outlines some of the key legal problems with these arrangements. This time Australia is plainly engaging in burden-shifting, rather than burden-sharing, contrary to the spirit of the Convention. On paper it is engaging in the wholesale abdication of its responsibilities. If either Nauru or PNG establish inferior status determination processes, Australia could indeed become complicit in the indirect refoulement of refugees that as a matter of international law are squarely its responsibility. The arrangements also do nothing to safeguard the rights Convention refugees have to a whole range of protections beyond refoulement. By making such blanket distinction between boat arrivals and asylum seekers travelling by plane, Australia is plainly in breach of art 31 of the Convention. This prohibits the penalisation of refugees who enter the territory of a state party without authorisation (see here).

Perhaps the most objectionable aspect of the regime constructed around the government’s Expert Panel report, however, is that it is not going to work as claimed, and it is already shambolic in its effect. Few asylum seekers are being deterred, but many are likely to be hurt.

Nearly 5,000 irregular maritime arrivals have made it to Australian soil since the new strategy was announced in August 2012, the most rapid rate of boat arrivals ever seen in Australia. With very few capable of being sent to the new regional processing centres, the practical effect of the policy change has been to (re)institute a freeze on status processing.[4] Asylum seekers are languishing in detention centres on both Christmas Island and mainland Australia that are fast reaching capacity. In legal terms, this amounts to the de facto grant of temporary protection: as long as asylum seekers are left without having their claims assessed, they cannot be returned to their countries of origin. My own research in Indonesia in October 2012 suggests that asylum seekers are well aware of the change in policy, but few are being deterred from throwing in their lot with the people smugglers. It is well known that the capacity of Nauru and Manus Island is limited — and that persons recognised as refugees in those countries will end up in Australian anyway.

While the regime enacted by the conservative government in 2001 at least enabled some lively sophistry about compliance with the Convention,[5] this time round the Minister has made it clear that the regime is being adopted in potential defiance of international law. This puts Australia in breach of its primary obligation as an international citizen to comply with treaties to which it is party in good faith. As noted here, It is difficult to see that Labor’s ‘regional’ strategy has any valid purpose beyond base political posturing. As Associate Professor Foster acknowledges, this is nothing short of a tragedy in a part of the world that is sorely in need of leadership in matters relating to human rights and the protection of refugees.