Australia: Legislating for exclusion

A series of new Acts undermines the Refugee Convention and is unlikely to deter unlawful asylum-seekers

In recent months, international attention has focused on Australia's treatment of asylum- seekers. On 26 August 2001 a Norwegian freighter - the MV Tampa - rescued 433 asylum-seekers from a sinking Indonesian vessel. The Tampa housed the refugees for eight days while both Australia and Indonesia refused to accept them. An initial action of the Australian Government was to order SAS troops to board the Tampa in order to prevent its docking on Australian soil. More recently the Government's tactics have been legislative, but no less extreme.

By international standards, Australia has traditionally been willing to accept refugees already processed for resettlement by the United Nations High Commission for Refugees (UNHCR). However, in the lead-up to the recent federal election, a far less generous position was publicly supported and legally adopted towards refugees and asylum-seekers arriving “illegally” at Australia's coastal borders. A series of boats carrying asylum-seekers intercepted off Australian shores, coupled with the crisis in Afghanistan - which promises to send more desperate people towards Australian shores - have highlighted the refugee question both domestically and internationally.

Following a legal battle in the Tampa case, the Australian Federal Parliament debated the adoption of seven bills regarding immigration issues. The government explained its introduction of these legal measures by reference to Australia's increasingly generous interpretation of the United Nation's Convention Relating to the Status of Refugees, 1951 (Refugee Convention). It alleged that through federal case law, “Australia now provides protection visas in cases lying well beyond the bounds originally envisaged by the Convention,” thereby encouraging “people who are not refugees to test their claims in Australia.”

The resulting changes significantly restructure Australia's immigration policy. They redefine who can qualify for refugee status, increase and specify the government's powers to prevent or remove vessels carrying “illegal arrivals,” rezone which territories are considered official “migration zones,” and outline a “hierarchy of rights” to certain visas which follow from the creation of these newly “excised territories.” Such changes will impact Australia's “protection visa” application and refugee determination process and make it increasingly difficult for those seeking asylum to have their cases heard or to minimum protections guaranteed by the Refugee Convention and international human rights law.

From of a package of six asylum-related bills passed through Parliament during the week of 17 September 2001, four have proven particularly controversial in terms of their human rights implications for “illegal arrivals.”

The Migration Legislation Amendment Act (No 6) 2001 (MLA Act) significantly narrows the definition of the term ‘refugee’. The definition found in the Refugee Convention has now been artificially circumscribed with respect to its usage by the Federal Court and the Refugee Review Tribunal. The MLA Act introduces a new and limited interpretation of “persecution.” It restricts what is understood by “serious harm” in the Refugee Convention and narrows the category of “membership of a particular social group.” While the MLA Act formalises the extension of refugee status to spouses and dependants, it establishes no such extension from child to parents. This means that the parents of a child who do not directly fulfil the “fear of persecution” requirement may be expelled while the child is accorded refugee status and allowed to stay. The Act also shifts the burden of proof to applicants if their conduct after arrival creates reasons for persecution in their home country.

Most fundamentally, the MLA Act undermines the principle of non-refoulement, a bedrock of the Refugee Convention and customary international law. The principle of non-refoulement is enshrined in Article 33(1) of the Refugee Convention - providing that a State cannot expel or return a refugee where his or her life would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. With dubious connection to the narrow exceptions of Article 33(2) of the Refugee Convention, the MLA Act sets a low bar for the types of non-political crimes that exclude the Convention’s protection. Under the MLA Act, a person who has committed serious property damage in his or her home country can face repatriation.

A second Act, the Border Protection (Validation and Enforcement Powers) Act 2001, introduces provisions regarding the detention of persons found on ships or aircraft, clarifies the powers of the arresting officer and specifies a new search power. Under the Border Protection Act, vessels may be prevented from arriving in or removed from Australian territorial waters - using “reasonable force” if necessary - if suspected of carrying “unlawful” immigrants.

The Border Protection Act specifically excludes such people from being defined as being held in “detention”, thereby effectively removing the opportunity for such people to resort to regular procedures for claiming a protection visa. The Border Protection Act also retrospectively protects all action initiated by the Government - from 27 August 2001 onwards - with respect to “vessels carrying unlawful arrivals”. The Australian Government's actions with relation to the Tampa have accordingly been exonerated. Also included is the introduction of minimum mandatory penalties for those found guilty of human trafficking offences.

The Migration Amendment (Excision from Migration Zone) Act 2001 (MAB Act) excises certain territories from the Australian migration zone. The excised territories include the Christmas Islands, the Ashmore and Cartier Islands, the Cocos (Keeling) Islands and any other external territory, island or Australian sea or resource installation - in other words, those places that asylum-seekers arriving by boat are most likely to reach first. Under the MAB Act, people reaching Australian soil on “excised territory” are precluded from the regular process of seeking refugee status. They are denied recourse to the kind of legal protection that would be required in order for them to bring their cases for refugee status.

Supplementing the above laws, the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (MAB II Act) gives discretionary power to officers to detain non-citizens entering or seeking entry into an “excised offshore place” if they are suspected “unlawful non-citizens”. Such people may be taken to a declared country “in certain circumstances”, and the MAB II Act specifies that “this does not amount to immigration detention”. The Act again bars access to certain legal rights related to the entry, status and detention of non-citizens who enter Australia at an “excised offshore place”. A “declared country” needs to satisfy certain criteria for the Minister for Immigration, but the country does not have to be a signatory of the Refugee Convention.

Another critical part of the MAB II Act deals with a “hierarchy of rights” which is “intended to deter further movement from, or the bypassing of, other safe countries”. According to these provisions, “unauthorised arrivals” who may be fleeing persecution but who have bypassed other safe countries are only eligible for successive temporary protection visas and are, therefore, prevented from applying for any of the key protection, refugee and humanitarian visas.

The string of new laws has tightened Australia's borders through redefinition of key terms of the Refugee Convention and the expansion of powers to refuse entry and deny access to claims for refugee status. While the Australian Government contends that these changes “restore the application of the Refugee Convention to its proper interpretation”, in truth many of the legal provisions undermine or violate the Convention. Whether this narrowing of the domestic parameters of the Refugee Convention has been motivated by a desire to curb judicial activism in asylum cases or rather by a pre-election appeal to xenophobia is moot. What is clear is that the provisions of the new Acts are unlikely to deter unlawful asylum-seekers from trying to reach a place where they expect to escape persecution. As noted by Professor William Maley of the Refugee Council of Australia, “[t]hose being smuggled don't know about ‘migration zones’, and those who run the [trafficking] networks are unlikely to care.”

After the ruling party's re-election on 10 November 2001 - a victory largely attributed to its handling of the Tampa crisis - it has been suggested that the Australian government now has a mandate to pursue even tougher policies on asylum seekers. In tones reminiscent of his rebuke of the United Nations treaty bodies in early 2000, Prime Minister John Howard has declared that Australia will not be “intimidated” into taking a softer stance on asylum-seekers. Australia's tough stance on refugees is just that: tough on refugees. Its human cost is unacceptable, and it shows Australia's increasing flight from internationally accepted standards. Accusing the Australian government of resorting to the “law of the jungle” and of sending asylum-seekers “into orbit”, UN High Commissioner for Refugees Ruud Lubbers condemned the “Pacific solution” (as the Australian government chooses to call its recent refugee and asylum policies) and urged the government to “follow international agreements rather than striking out on its own.”

As a party to the 1951 Refugee Convention, Australia must take heed of the principles reaffirmed in the “Declaration reaffirming the commitment of signatory States to the 1951 Refugee Convention”, adopted at a ministerial meeting of Refugee Convention signatory countries in Geneva on 13 December 2001.

How the government responds will indicate its ability to assume a leadership role on humanitarian issues in the region and elsewhere.