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Current issues Australia faces in relation to its treatment of refugees (2012)

Asylum Asylum Seekers and Refugees

 

Speech delivered to the United Nations Association of Australia (WA Division)

Professor Gillian Triggs,
President, Australian Human Rights Commission

Wednesday, 24 October 2012


Introduction

I would like to acknowledge the Noongar people, the Traditional Owners of the land upon which we gather today. I pay my respects to your elders, past and present.

I am pleased to join the WA branch in celebrating the aims and achievements of the United Nations on this UN Day, and to acknowledge the important work of the United Nations Association of Australia in seeking to advance the goals of the UN in Australia and around the world. We have something special to celebrate today; Australia’s election to the Security Council for the next two years. Australia will now be better able to influence reform of the UN human rights monitoring and reporting processes and to protect human rights at a global level. I hope that the WA branch of the UN Association of Australia will work to support the efforts of our diplomats as we assume our seat on the Security Council in January next year.

However, as Eleanor Roosevelt famously remarked, ‘human rights begin at home’. It is the implementation of human rights in Australian law and practice that I would like to discuss today. It should first be acknowledged that Australia has been a good international citizen and has played a significant role in negotiating the human rights treaties and developing human rights law over nearly 70 years. In the 1940’s, Australia’s Minister for Foreign Affairs, the brilliant, if ‘testy’, Dr HV Evatt, was a champion of the smaller nations, arguing against the veto power in the UN Charter. He was the President of the General Assembly on 10 December 1948 when the Universal Declaration of Human Rights was adopted unanimously, setting the benchmark for human rights over the following decades. Supporting the efforts of Doc Evatt were other notable Australians; the ‘peppery and aggressive’ Colonel Roy Hodgson who was on the Drafting Committee for a Bill of Rights, and Jessie Street, the only woman on the Australian delegation to the UN in 1945. Since those days, Australia has actively worked to develop international human rights law.

The Australian Human Rights Commission, as Australia’s national human rights institution, has substantial interaction with UN bodies. The most notable of these bodies is the Human Rights Council, charged with strengthening the promotion and protection of human rights around the globe as well as with various committees that are charged with monitoring implementation of international human rights treaties.

The Australian Human Rights Commission aims to lead the promotion and protection of human rights in Australia. Our vision is ‘human rights: everyone, everywhere, every day’. We aim to make human rights values a part of everyday life and language in Australia, to empower all people in Australia to understand and exercise their human rights and to work with individuals, community organisations, business and government to inspire action. We also work to keep the Australian Government accountable to national and international human rights standards.

Approaches to the treatment of asylum seekers and refugees in Australia

Tonight I have been asked to address the question of Australia’s obligations under the 1951 Refugees Convention and how these are being fulfilled in the current context.

As well as exploring the obligations under the Refugees Convention, I will consider questions of whether Australia is meeting its other international human rights obligations with respect to its treatment of asylum seekers and refugees. This is of course, the direct concern of the Australian Human Rights Commission, as we have a statutory mandate to monitor the protection and promotion of human rights in Australia.

There is no question that Australia is currently facing some considerable challenges with respect to asylum seekers and refugees, particularly those who arrive in Australia by boat. Over the last few months the rate of asylum seekers arriving in Australia by boat has risen to over 2000 per month and as at 30 September there were 7670 people being held in closed immigration detention across Australia.

However in considering the situation in Australia it is important to recall the international context. The United Nations High Commissioner for Refugees reported at the end of 2011 that there were 15.2 million refugees worldwide and that 895 000 first instance asylum claims had been made in the previous twelve months worldwide. And well under one per cent of the world’s refugees are resettled in any given year.

Christmas Island

Just two weeks ago I visited immigration detention facilities on Christmas Island. While I was there I met with some of the nearly 2000 people then in detention there – men, women and children, who have come to Australia to seek asylum, claiming protection under the 1951 Refugees Convention.

All of the people currently in detention on Christmas Island have arrived in Australia since 13 August of this year. All of them could potentially be transferred to a third country for the processing of their claims for protection.

The people with whom I met were understandably anxious about their situation. Many of them reported that their mental health had deteriorated since they arrived in Australia as a consequence of this anxiety. During the visit we also met some people who appeared to have significant vulnerabilities – families including children with serious disabilities, pregnant women, and people with serious health issues. The question of what might happen to these people in the future is of serious concern.

I will return to comment on the conditions of detention on Christmas Island, and also to the question of the human rights implications of the transfer of asylum seekers to third countries later in my presentation.

Australia’s commitment to resettling refugees

First though, I would like to explore some aspects of Australia’s long term commitment to the resettlement of refugees – in this area, there is much of which Australia can be proud.

Australia has resettled over 750 000 refugees since the commencement of WWII, and has reaped tremendous benefits as a result. Australia, along with the United States and Canada, has ranked consistently among the world’s top three resettlement countries. There is now ample research documenting the significant social, economic and cultural contributions made by former refugees to Australia.[1] Currently people who are resettled in Australia receive important support, including short-term on-arrival accommodation, torture and trauma counselling, English language classes and community orientation initiatives.

In August the Australian Government made the welcome announcement that it will increase Australia’s humanitarian program by just over 6000 places, to a total 20,000 places. This increase, made in response to the recommendations of the Expert Panel on Asylum Seekers is an important step towards increasing the potential for refugees to be resettled from within our region. It is also an important element of a regional approach to asylum seekers.

Third-country processing of asylum seekers

This takes us to the most contentious aspects of the current treatment of asylum seekers and refugees in Australia.

As you will all be aware, in September of this year, the Australian Government commenced transferring asylum seekers, who have arrived in Australia by boat, to Nauru for processing of their claims for asylum. Asylum seekers will also be transferred to Manus Island in Papua New Guinea, once facilities have been established. The transfer of asylum seekers to Nauru follows the release of the report of the Expert Panel on Asylum Seekers on 13 August 2012, the passage of amendments to the Migration Act, the adoption of Memoranda of Understanding between the Australia Government and, respectively, the governments of Nauru and Papua New Guinea, and the designation of each nation as a regional processing country.

Amendments have also been made to the legislation that governs the guardianship arrangements for unaccompanied minors seeking asylum in Australia. The Minister of Immigration and Citizenship is the guardian of all such children, required to consider their best interests in all decisions relating to them. However the recent amendments make it clear that the Minister no longer needs to provide his consent in writing to the removal of an unaccompanied child from Australia to a regional processing country.

I recognise the importance of border control in protecting border security. I also recognise that Australia has a sovereign right to exclude non-citizens from its territory. However, Australia also has international obligations in relation to asylum seekers who come to Australia, including those who arrive by boat, which must be observed in its border management practices. These obligations are set out in the Refugees Convention and also in the international human rights treaties to which Australia is a party, including the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, and the Convention Against Torture.

Australia’s international obligations to asylum seekers who are subject to transfer to third countries

What are Australia’s international obligations to asylum seekers in respect of third country processing?

It is uncontroversial that Australia’s human rights obligations will apply while a person is detained in Australia prior to their transfer, and to the conduct of agencies of the Australian Government during any transfer.

But, the question of what international obligations Australia has to asylum seekers transferred to a third country is more controversial to answer.

As a matter of international law, Australia’s human rights obligations extend to its acts and activities, even if they occur outside Australian territory if it has ‘effective control’ over the situation.[2] If Australia has ‘effective control’ over those asylum seekers it transfers to another country, it must continue to treat them consistently with its human rights obligations.[3] The question of whether Australia has effective control of arrangements in Nauru or on Manus Island is yet to be determined, and will depend on factors such as the contractual arrangements with the companies managing the facilities and providing services to asylum seekers and the refugee status determination processes that are adopted by Nauru and Papua New Guinea. In short, the AHRC will keep a watching brief on the treatment of asylum seekers undergoing third country processing to ensure there is compliance with human rights law.
It is also clear as a matter of international law, that States cannot avoid their international law obligations by transferring asylum seekers to a third country.[4] For example, Australia will be in breach of its obligations under the ICCPR if it removes a person to another country in circumstances where there is a ‘real risk’ that their rights under the ICCPR will be violated.[5] In addition, a basic principle of international law is that States have a responsibility to implement their treaty obligations in good faith.[6] This duty is breached if a combination of acts or omissions has the overall effect of rendering the compliance with a treaty obsolete, or defeating its object and purpose.

The Refugees Convention is relatively limited in its scope. It does not specify the procedures for determining refugee status. It does not prohibit the transfer of asylum seekers to third countries. There is no international law obligation on Australia to provide durable solutions (for example resettlement in Australia) for asylum seekers who are assessed to be refugees.

More positively, the key obligations created by the Refugees Convention are the protection of refugees seeking asylum, and the assurance of fundamental rights and freedoms for refugees, without discrimination. These purposes strongly suggest that effective measures for determining the refugee status of asylum seekers are required if Australia is to fulfil its obligations under the Convention in good faith.[7]

Fundamental concerns about third-country processing arrangements

What aspects of third-country processing arrangements are of most concern in light of Australia’s international obligations?

First, I am concerned that the transfer of asylum seekers to a third country for processing of their claims for refugee status appears to penalise asylum seekers on account of their unlawful arrival in Australia, in contravention of the express terms of the Refugee Convention.

I am also concerned about the arrangements for refugee status determination in Nauru and on Manus Island. Nauru has recently passed legislation to provide for the processing of claims for asylum. However, the UNHCR has doubted the capacity of both Nauru and PNG to process protection claims properly. I share the concern that the processing of refugee claims may contain inadequate safeguards, risking the return of refugees to a situation where their life or freedom may be threatened, breaching the fundamental obligation to respect the principle of non-refoulement or no return to the country were their lives are threatened.

I have serious concerns that asylum seekers transferred to third countries will be detained arbitrarily and for indefinite periods. The Australian Government has said that asylum seekers will not be ‘detained’ on Nauru. However, even if asylum seekers have some freedom of movement around the island, the conditions could be characterised as a true ‘deprivation of liberty’ amounting to arbitrary detention. This will arise, for example, if people are required to live in a particular processing centre; if they are confined to the processing centre for certain periods each day; if they are permitted to leave only for certain periods; if they have no control over their accommodation; or if they are subject to supervision and monitoring by security guards. Thus far, it appears that asylum seekers sent to Nauru have not been permitted to leave the facility in which they are held and there is no clear time frame as to when they will be granted freedom of movement.

The potential transfer of children, either in family groups or unaccompanied, to a third country is another matter of serious concern. While the transfer of unaccompanied children seeking asylum to a third country is lawful under Australian law, it is likely to breach Australia’s obligations under the Convention on the Rights of the Child. The CRC requires a child’s best interests to be a primary consideration in any decision involving them,[8] and children should be detained only as a matter of last resort and for the shortest appropriate period. Additionally, owing to the particular vulnerabilities of unaccompanied children, the CRC recognises that they are entitled to special protection and assistance from the State.[9] I am concerned about the fate of any child transferred to a third country, but am particularly concerned about unaccompanied children facing potential transfer. It is difficult to see how, in the vast majority of cases, transferring unaccompanied children to a third country for processing of their claims for asylum could be in their best interests.

Finally, I am concerned about the potential duration of the stay in a third country. Third country processing is underpinned by the principle of ‘no advantage’: the idea that asylum seekers who come to Australia by boat will gain no benefit through doing so rather than waiting elsewhere to have their claims assessed and a durable solution provided if they are found to be refugees.[10] The ‘no advantage’ principle –while of doubtful legal meaning – may have the effect that asylum seekers will be held for very long periods of time in third countries. Such detention might amount to arbitrary detention, contrary to international law.

The devastating impact of long-term detention on the physical and mental health of asylum seekers detained in Nauru and Papua New Guinea when these facilities were last used is well documented.[11] We are already hearing reports of suicide attempts and hunger strikes in Nauru. I fear that, prolonged detention in third countries could once again have a serious and detrimental impact on the physical and mental health of already vulnerable people.

Mandatory detention and community based alternatives to detention

In closing, I would like to return to the issue of the detention of asylum seekers in Australia. Over the last two decades, Australia’s system of mandatory detention has resulted in many asylum seekers and refugees spending very long periods of time in immigration detention. The Commission has repeatedly detailed the real and lasting damage of closed detention environments, especially when people are detained for long periods of time.

Knowledge of the destructive impact of long periods of time in closed detention resulted in the Commission welcoming the movement of large numbers of people from closed detention into community based accommodation over the past two years. In October 2010, the Australian government announced that it would begin moving significant numbers of children and families into community detention – and it did.[12] And then in November 2011, it announced that following initial health, security and identity checks, others who had arrived in Australia by boat as asylum seekers would be considered for transfer into the community pending resolution of their claims – using community detention for those assessed to be highly vulnerable bridging visas for others.[13] These were extremely important and welcome changes in policy – changes that were more consistent with human rights law.

Regrettably, the legal and policy position has changed yet again. The hundreds of lives lost at sea in attempting to reach Australia has been a game changer. The Expert Panel’s recommendations, endorsed by both major parties, have set in train policies that risk serious breaches of human rights law. Asylum seekers are once again facing the prospect of prolonged periods of closed detention. Following the recent amendments, the Migration Act now requires the detention of people who arrive in excised offshore places. Asylum seekers awaiting transfer to a third country are currently held in closed immigration detention facilities either on Christmas Island or on the mainland. Since 13 August over 4,500 asylum seekers have arrived in Christmas Island, many more than can be accommodated on Nauru or Manus Islands. Most asylum seekers have been transferred to immigration detention facilities in Australia, and I am told, they have no prospect of their claims for protection being processed for many months. I believe that the prolonged restrictive detention of people awaiting transfer to a third country may result in arbitrary detention, in contravention of our international obligations.

Conditions of detention on Christmas Island

In closing I would like to return to where I began, to the situation of people in detention on Christmas Island. At the time of my visit there were just under 2000 people in detention on Christmas Island, in a number of immigration detention facilities.

All of these facilities were seriously overcrowded. All had inadequate recreation facilities for the number of people detained in them. For example, the largest of these facilities accommodates slightly less than 1000 single men. A large number of these men are sleeping in dormitory accommodation. They are able to access approximately one hour of English classes each week, and there are 18 internet terminals for the entire population. None of the people we spoke to detained in this facility had been on an external excursion. I believe that these conditions are inappropriate for anything other than the shortest period of time in detention.

Above all, it was the conditions in the compound, known as Aqua, that were the most shocking. Here, approximately 400 people were detained in obviously overcrowded conditions, with all the expected consequences for children, mental health and those with disabilities. Aqua has been built on the edge of the main immigration detention facility, with demountable accommodation blocks surrounded by a high wire fence. In this compound there is little shade, no grass, no outside recreation area, limited internal recreation facilities, and no play equipment for children. This compound accommodated both families with children and single adult men. I acknowledge that the compound is used for relatively short periods of time, until more suitable family accommodation is available. I also recognise that I was on Christmas Island for only a few days and conditions vary from time to time. However, I found Aqua compound to offer an unacceptably low standard of accommodation, especially for families with children.

I am seriously concerned about the large numbers of people in detention on Christmas Island. In Australia, we know from bitter experience that the prolonged detention of large number of people can lead to protest action and disturbances within detention facilities. We do not want to see disturbances such as this again. This is why I will, over the coming months, urge the government to take urgent steps to start processing claims for protection in Australia, and to begin moving people out of detention as soon as is possible.

Many aspects of the current approach to the treatment of asylum seekers and refugees in Australia can only lead to the conclusion that Australia is in breach of its international obligations – obligations both under the Refugees Convention and other international human rights treaties. I do not underestimate the scale of the challenge facing the government, or the difficulty of responding to such a large number of boat arrivals. However, we have clear legal obligations to ensure that Australia respects and protects the fundamental human rights of people who come to Australia to seek protection. We can do better.


[1] See for instance G Hugo, A Significant Contribution: the Economic, Civic and Social Contributions of First and Second Generation Humanitarian Entrants Summary Findings (2011), at http://www.immi.gov.au/media/publications/research/ (viewed 14 July 2012).
[2]Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136(dealing in particular with rights under the ICCPR and the CRC).
[3] See the decisions of the European Court of Human Rights in Banković v Belgium and others (dec.) [GC] no. 52207/99, [2001] ECHR 890 and Al-Skeini v United Kingdom [GC] no. 55721/07, [2011] ECHR 1093.
[4] G Goodwin-Gill and J McAdam, The Refugee in International Law (3rd ed, , 2007), pp 408-411.
[5] See the following decisions of the Human Rights Committee: GT v Australia, Communication No. 706/1996, UN Doc CCPR/C/61/D/706/1996 (2007), [8.1]; ARJ v Australia, Communication No. 692/1996, UN Doc CCPR/C/60/D/692/1996 (1997); C v Australia, Communication No. 900/1999, UN Doc CCPR/C/76/D/900/1999 (2002); Kindler v Canada, Communication No. 470/1991, UN Doc CCPR/C/48/D/470/1991 (1993), [13.1]-[13.2]; Ng v Canada, Communication No. 469/1991, UN Doc CCPR/C/49/D/469/1991 (1993), [14.1]-[14.2]; Cox v Canada, Communication No. 539/1993 [, UN Doc CCPR/C/52/D/539/1993 (1994), [16.1]-[16.2]; Judge v Canada, Communiation No. 829/1998, UN Doc CCPR/C/78/D/829/1998 (2003), [10.2]-[10.7]; Nakrash and Qifen v Sweden, Communication No. 1540/2007, UN Doc CCPR/C/94/D/1540/2007 (2008), [7.3]; Bauetdinov v Uzbekistan, Communication No. 1205/2003, CCPR/C/92/D/1205/2003 (2008), [6.3]; Aumeeruddy-Cziffra v Mauritius, Communication No. 35/1978, UN Doc CCPR/C/12/D/35/1978 (1990), [9.1]. See also Human Rights Committee, General Comment 31[80] - Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (2004), [12]; and, under similar provisions in the European Convention on Human Rights, see Hirsi Jamaa and Others v Italy (European Court of Human Rights, Grand Chamber, Application no. 27765/99, 23 February 2012) [114]ff.
[6] Vienna Convention on the Law of Treaties, adopted 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) arts 26 and 31.
[7] G Goodwin-Gill and J McAdam, The Refugee in International Law (3rd ed, Oxford University Press, 2007) pp 456-458, 530.
[8]Convention on the Rights of the Child, 1989, art 3(1).
[9]Convention on the Rights of the Child, 1989, art 20(1).
[10] Report of the Expert Panel on Asylum Seekers (August 2012), p14, recommendation 1. See also, for example, The Hon. Chris Bowen MP, Minister for Immigration and Citizenship , ‘Asylum seeker transfer to Nauru, Expert Panel recommendations, 'no advantage' principle, Tony Abbott’ (Press Conference, 14 September 2012). At http://www.minister.immi.gov.au/media/cb/2012/cb189879.htm (viewed 27 September 2012).
[11] See Australian Human Rights Commission, Submission to the Senate Standing Committee on Legal and Constitutional Affairs Inquiry into Australia’s agreement with Malaysia in relation to asylum seekers (14 September 2001), para 76. At http://www.hreoc.gov.au/legal/submissions/2011/20110914_asylum_seekers.html#fnB72 (viewed 27 September 2012).
[12] Minister for Immigration and Citizenship and Prime Minister, ‘Government to move children and vulnerable families into community-based accommodation’ (Media Release, 18 October 2010), at http://www.minister.immi.gov.au/media/cb/2010/cb155484.htm (viewed 6 June 2012).
[13] Minister for Immigration and Citizenship, ‘Bridging visas to be issued for boat arrivals’ (Media Release, 25 November 2011). At http://www.minister.immi.gov.au/media/cb/2011/cb180599.htm (viewed 23 July 2012).

Professor Gillian Triggs, President

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