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Between Principle and Pragmatism: Australia and Refugee Law, 60 Years On
Andrew & Renata Kaldor Centre for International Refugee Law, UNSW
Monday, 3 November 2014
‘Welcome and Introductory Remarks: The Year in Review’
Jane McAdam
Scientia Professor of Law and Director of the Andrew and Renata Kaldor Centre for International Refugee Law, UNSW


Introduction

It is a great pleasure to welcome you to the first annual conference of the Andrew & Renata Kaldor Centre for International Refugee Law. We are delighted to see so many of you here – from academia, government, international organizations, the peak refugee and law bodies, private legal practice, civil society, the media and the general public. Many of you have travelled a long way to get here, particularly our speakers from overseas and interstate, and I thank you for doing so.

In welcoming you, we acknowledge the Gadigal People of the Eora Nation on whose traditional land we are gathered, and their elders, past and present, the custodians of this land.  

60 years ago, Australia ratified the Refugee Convention. It was, in fact, this act which brought the treaty into force. Since that time, Australian governments have oscillated in their responses to the reception, treatment and protection of asylum seekers and refugees, ranging from generosity and understanding, through to intolerance and deterrence.

This anniversary provides us with an opportunity to consider how previous Australian governments have sought to balance Australia’s obligations under international law with anxieties about spontaneous arrivals of asylum seekers, and to consider how Australia might offer principled protection into the future. In particular, it also offers us an opportunity to reflect upon today’s challenges in light of the broader historical and global context, to highlight why international cooperation – and the normative framework of international law – provide more constructive and sustainable guiding principles than unilateralism.

The title of the conference, ‘Between Principle and Pragmatism’, encapsulates the spectrum across which government actions have ranged over time. Like a set of balance scales, one side has been tipped at the expense of the other, and which is up or down has shifted over the years. 

Can equilibrium be achieved, and if so, how? The Refugee Convention itself, drafted by States, provides some clues. Its Preamble begins by affirming ‘the principle that human beings shall enjoy fundamental rights and freedoms without discrimination’, and notes that ‘the United Nations has … manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms’. Nevertheless, it goes on to recognize that ‘the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international cooperation’. It also expresses ‘the wish that all States, recognizing the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States’.

What is certain is that displacement is an age-old phenomenon for which there is no silver bullet solution. National responses will not work unless they take account of the bigger picture, and our place in the world.

There are now some 51 million people of concern to UNHCR globally – the highest number ever since the Second World War. Not all are refugees – some are displaced within their own countries, for example. On top of this, in the past year alone 22 million people were displaced by weather-related disasters – again, mostly internally.

Certainly, not all these people are heading to Australia, even though polls show that many Australians believe that there are ‘waves’ and ‘floods’ of asylum seekers waiting to seize the opportunity. In reality, Australia has always received a very small number of the world’s asylum seekers, both in absolute terms and when considered in relation to other countries. In 2012, 17,202 asylum seekers came to Australia by boat, the highest annual number. 1 Nevertheless, this represented only 1.47 per cent of the world’s asylum seekers.2  In the five years before this, Australia received an average of 2,831 asylum seekers by boat each year.3  These numbers are tiny not only by global standards, but also when compared to Australia’s annual intake of 190,000 migrants through its skilled and family migration schemes.4

In the past year, onshore arrivals by boat have decreased significantly – but that does not mean that the need for protection has decreased. Nevertheless, the government’s declared ‘border protection crisis’, demanding, in their words, ‘the discipline and focus of a targeted military operation’,5 has swung into full force, accompanied by increasingly restrictive legislative measures designed to contract the protection space within Australia.  

The hullaballoo over refugees in Australia is a classic case of the Emperor having no clothes. Compare us to Jordan, for instance, where half of the population are now refugees, or Turkey, which last month received 140,000 refugees in just a few days, on top of the million-plus already there.6  We are not experiencing a refugee emergency in Australia, and never have done, and, to be honest, are never likely to. As the UN High Commissioner for Refugees, Antonio Guterres, said recently, while Australia has one of the best refugee resettlement programmes in the world, when you start talking to the government about boat arrivals, ‘it is like something strange happens to their minds.’7

The year in review 

Operation Sovereign Borders continues to raise real possibilities of Australia violating its obligations under international refugee law, international human rights law, and the law of the sea. The lack of transparency about ‘on water’ matters, including information about whether boats exist, have been intercepted or pushed back, and the details of how such operations have been conducted, makes a considered assessment of individual cases very challenging. What can be said for certain, though, is that legislative attempts to quarantine domestic law and policy from Australia’s international legal obligations cannot relieve Australia of those obligations as a matter of international law, and Australia will remain liable under international law for any violations that do occur.

Nevertheless, there are currently three bills under consideration by Parliament proposing significant changes to Australia’s asylum laws. 

This package of changes represents a bald attempt to oust the rule of law by limiting parliamentary oversight of increasingly discretionary powers vested in one person (the Immigration Minister), and neutering the courts’ already limited ability to scrutinize domestic law in light of international law. As the Explanatory Memorandum to one of the bills boldly asserts:

as a matter of domestic law, the failure to consider or comply with Australia’s international obligations or a failure to consider the domestic law or international obligations of another country should not be able to form the basis of a domestic legal challenge to the exercise of the powers to give an authorisation under Division 2 of Part 2 of the MPA.

The overall effect of the proposed changes is to stop asylum seekers from ever reaching Australia by boat through extraordinary powers to intercept, detain and push back at sea; and to make it increasingly difficult for those who are here to claim protection in accordance with Australia’s obligations under international refugee and human rights law. 

For instance, the reforms seek to grant sweeping powers to intercept people at sea and take them anywhere, even to a country with which Australia has no agreement and which may not accept them. This is notwithstanding the fact that in January this year, the Australian government had to apologize to Indonesia for six unlawful incursions into its territorial waters.

One bill invents an ‘Australian version’ of the international definition of a ‘refugee’. It also says that for the purposes of removing unlawful non-citizens, ‘it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen’, and ‘[a]n officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.’

Asylum seekers in Australia still waiting to be processed will have their claims fast-tracked, and merits review curtailed. Protection will be denied to anyone thought to have come on false documents; and complementary protection will either be abolished – or, at the very least, the threshold will be raised, such that a person will have to show that they are more likely than not to face a real risk of torture or other ill-treatment if removed (that is, a more than 50 per cent chance of harm). Powers to refuse or to cancel a visa on character grounds will be broadened. And procedural changes will create presumptions against asylum seekers in a complex process that is already weighted in favour of the government.

The combination of these changes will make it much easier for a decision-maker to refuse protection, which in turn risks Australia breaching its international obligations. Indeed, the Parliamentary Joint Committee on Human Rights, a body comprised of Coalition, Labor and Greens Senators, which examines proposed legislation against Australia’s international legal commitments, found just this. In its report released last week, it found that many of these amendments were ‘incompatible with Australia’s obligations of non-refoulement under the ICCPR and the CAT’. In fact, there was not a single aspect of the bill that the Committee could conclusively say was compatible with Australia’s international human rights obligations, noting that the government had failed to present sufficient information to show how such rights would be safeguarded.

We need to remember that effective refugee status determination procedures are the most efficient and fair way of ensuring that those who need protection receive it, and those who do not can be returned. Proper refugee status determination is not only the hallmark of an asylum policy predicated on the rule of law and obligations assumed under international refugee and human rights treaties, but can also be an important part of a government’s message to the Australian public. Decisions that have been made according to such practices are defensible and can withstand public scrutiny and questioning, whereas decisions that have (or which appear to have) been made without proper regard to due process and impartiality remain open to criticism.

All of these reforms come on top of the abolition earlier this year of funded legal assistance for asylum seekers who arrived by boat. And permanent protection is no longer available to such people either because, according to the Minister: ‘It has been a clear policy of this government to ensure that those who flagrantly disregard our laws and arrive illegally in Australia are not rewarded with a permanent protection visa.’8 I hadn’t realized that permanent protection from persecution was a prize. 

As I alluded to before, one of the bills deletes all references to the Refugee Convention from the Migration Act, replacing them with a ‘new, independent and self-contained statutory framework’ setting out Australia’s own interpretation of its protection obligations under the Refugee Convention. In introducing the bill to Parliament, the Immigration Minister said (in language reminiscent of John Howard): ‘This parliament should decide what our obligations are under these conventions—not those who seek to direct us otherwise from places outside this country.’9 He explained: 

The new statutory framework will enable parliament to legislate its understanding of these obligations within certain sections of the Migration Act without referring directly to the refugees convention and therefore not being subject to the interpretations of foreign courts or judicial bodies which seek to expand the scope of the refugees convention well beyond what was ever intended by this country or this parliament.10

As Professor Ben Saul recently remarked, the Minister’s assurance that Australia would comply with its international obligations is presumably not difficult if international law is now simply whatever the government says it is. Of course, the government has no right to auto-interpret the scope of its own treaty obligations. Basic rules of treaty interpretation state that a treaty must be interpreted in good faith, and in accordance with the ordinary meaning to be given to its terms in their context, and in the light of the treaty’s object and purpose. Furthermore, asserting that a treaty obligation is inconsistent with domestic law is no excuse for breaching it.

Part of the impetus behind the government’s proposed legislative changes is the asylum case currently before the High Court. As is now well known, in June this year, Australian authorities intercepted two boats of Sri Lankan asylum seekers. The first boat of 41 was subjected to a cursory screening process to determine whether anyone on board raised a ‘credible’ protection claim, and all were handed over to Sri Lankan authorities at sea. The highly abridged nature of this process, coupled with the conditions in which it was administered (via video-link, on a boat at sea, after many days of travel which may have left asylum seekers disoriented), raise serious questions about Australia’s compliance with its non-refoulement obligations.

A second group of 157 mostly Tamil asylum seekers, who had embarked from a refugee camp in India, was intercepted on 29 June near Christmas Island in Australia’s contiguous zone, and transferred to and detained on an Australian customs vessel. On 1 July, Cabinet’s National Security Committee decided that they should be taken back to India, and they were held at sea near India for 12 days. When it became clear that they could not be disembarked in India, they were transported to Western Australia’s Curtin detention centre, arriving on 27 July. On 2 August, they were transferred to Nauru.

The matter before the High Court raises a number of questions as to the legality of these actions, but there is one point on which I wish to remark: the scope of Australia’s non-refoulement obligation under the Refugee Convention. This is the principle that prohibits States from returning asylum seekers and refugees to any place where they have a wellfounded fear of being persecuted for reasons of their race, religion, nationality, political opinion or membership of a particular social group.

The government’s position is that Australia is only bound by the principle of non-refoulement when it acts within its own territory. Therefore, the argument goes, it doesn’t have to take it into consideration when it deals with boats at sea. No international refugee law scholar, nor the UN High Commissioner for Refugees, nor States themselves (with the exception of the US) takes that view. Refugee law scholarship has not been immune from fierce intellectual debates, which makes the unanimity of opinion on this point all the more compelling. The obligation not to return people to a risk of persecution travels with the State in all its guises, which means that Australian naval, customs and immigration officials remain bound by it even when they act outside Australian territory or waters.

Finally, a reflection on 2014 would be incomplete without mentioning Australia’s deal with Cambodia to resettle recognized refugees from our offshore processing centres. Described by the UN High Commissioner for Refugees, Antonio Guterres, as ‘a worrying departure from international norms’, the deal is a classic case of responsibility-shifting not responsibility-sharing. It is not about capacity-building, or regional co-operation, or investment in  Cambodia’s future. Rather, it is a quick-fix response to a manufactured political problem in Australia.

Of course, the sad irony is that Australia knows more than most countries about how to create durable solutions for refugees, enabling them to begin a new life in safety and dignity, with access to housing, education, medical care and work. Historically, Australia was recognized as having one of the best onshore refugee status determination systems in the world, with well-trained decision-makers, access to legal assistance, and robust independent merits and judicial review. Our offshore resettlement programme has operated successfully for decades. Refugees are some of Australia’s most respected and enterprising citizens. 

I believe that current policies are incurring significant legal, moral, economic and social costs. Right now, they are felt most acutely by those directly affected – the asylum seekers themselves. But we cannot underestimate the future consequences of these actions. Not only are Australia’s policies creating a broken future citizenry, but in turn they are depleting this country of enormous potential, diversity and leadership. 

Conclusion

Last month, Australian artist Alex Seton held a small exhibition called Refoulement. His sculptures are of lifejackets, paddles and life-rafts, intricately carved from white marble. Marble is cold, heavy, and it sinks. It is the material of memorials and tombstones. Are Australia’s deterrence policies, which purportedly are needed to save lives at sea, undermining that very objective? Does Australia offer protection anymore? In the words of an asylum seeker on Nauru: ‘our life is in danger in our homeland, but [here], [the] Australian government [is] killing us slowly’.11

International law provides a universal normative framework against which to assess Australia’s policies towards asylum seekers and refugees, and ultimately common international standards against which we, and others, can evaluate such policies. While the views of experts may be dismissed today, they will remain on the record for tomorrow.

By their very nature, refugee movements are complex and messy. Desperate people will resort to desperate measures. Boats will continue to come as long as the root causes of displacement remain unresolved. As the head of the British Refugee Council said just last week: ‘People fleeing atrocities will not stop coming if we stop throwing them life-rings; boarding a rickety boat … will remain a seemingly rational decision if you’re running for your life and your country is in flames. … The answer isn’t to build the walls of fortress Europe higher, it’s to provide more safe and legal channels for people to access protection.’12

This is a long-term, global challenge that will remain for as long as there is oppression and discrimination in the world. What is crystal clear is that if there were ever a point in time when international cooperation, based on commonly agreed standards, were needed, it is now.

Today’s conference will reflect on these themes through a wide range of lenses. I have no doubt that the speakers assembled here today will provide us with rich insights into contemporary international refugee law and policy, drawing on their scholarly and practical expertise, and comparative and historical reflections. Once again, I warmly welcome you all, and I would now like to invite Andrew Kaldor AM, who together with his wife Renata founded the Centre, to introduce our keynote speaker. 

For more on the 2014 Annual Conference: 'Between Principle and Pragmatism: Australia and Refugee Law, 60 Years On', see the event page. 

The Kaldor Centre plays a vital role in developing legal, sustainable and humane solutions for displaced people around the world.