Nov 29, 2012

Crikey clarifier: does Australia’s refugee policy breach UN rules?

Australia's policy on asylum seekers has been strongly criticised -- but does it actually breach the UN's Refugee Convention? Crikey intern Rose Moloney investigates.

There's been a hail of criticism of Australia's refugee policy. But there's a UN convention which covers this area --  the UN’s 1951 Refugee Convention, which Australia signed and ratified the same year, and which was amended by a 1967 protocol. Both documents were introduced to prevent injustices against refugees. So is Australia's refugee policy actually breaching this convention, and if so, what -- if anything -- can be done about it? Crikey asks the experts ... What does the UN’s Refugee Convention establish? The convention sets out the criteria for determining refugee status, as well as the obligations of signatories. Like any other citizen or immigrant, refugees have the right to health care, housing and education, access to courts, employment, freedom of religion and freedom of movement. Articles 4 to 30 clearly outline these rights: "Each contracting state shall accord to refugees lawfully in its territory the right to choose their place of residence to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances" (article 26). The convention clearly stipulates that asylum seekers who enter a state illegally should not be penalised. Arbitrary detention is on the list of banned penalties: "Prohibited penalties include being charged with immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum." The latest controversy in Australia surrounds the government’s introduction of a new form of bridging visa. This visa will allow refugees to live in the community rather than in a detention centre, but the bridging visa won't necessarily grant refugees the right to work. But article 17 of the convention states: "The Contracting State shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment." Is Australia breaching the Refugee Convention?  The short answer: yes. Professor Penelope Mathew from the ANU College of Law says the convention, along with other UN treaties, have been breached when it comes to mandatory detention and bridging visas. Referring to the new bridging visa, Mathew told Crikey: "I have no hesitation in saying that to deny a recognised refugee the right to work is a breach of article 17 of the Refugee Convention and a breach of article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)." The longer answer: it is difficult to get an authoritative ruling that the Refugee Convention has been breached as there is no monitoring body. To get a ruling, one state would have to pursue a case against another in the International Court of Justice (ICJ). There are cases where complaints concerning the treatment of refugees have been channelled through other human rights monitoring bodies and a breach has been established. Mathew said: "Australia has been criticised persistently by the UN Human Rights Committee (OHCHR) for violating the prohibition on arbitrary detention under article 9 of the International Covenant on Civil and Political Rights (ICCPR) and yet we keep on with mandatory detention." However, the OHCHR is a committee, not a court. It's not clear if its decisions are binding, so according to Mathew the Australian government can rely on this when it wants to ignore those decisions, as they have done in the case of mandatory detention. Further complicating the mandatory detention issue is the fact that no specific reference is made in the convention to "mandatory" detention of asylum seekers in the Refugee Convention. This allows the Australian government to argue that its policy of mandatory detention is acceptable; by saying it is not that same as "arbitrary" detention. What about Nauru? Amnesty International's recent review of the Nauru processing centre suggested that living conditions at the detention camp were inadequate and inhumane, and accused the government of "spectacularly failing in its duty of care to asylum seekers". When it comes to conditions in Nauru, an individual could bring up the issue of humane conditions of detention under article 10 of the ICCPR, says Matthew. This article states: "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." However, with Nauru the bigger legal issue lies in the fact that the detention centre is not within Australia's jurisdiction (although Australia asked Nauru to house the asylum seekers and is footing the bill). What steps could be taken by an individual if they feel Australia has breached the convention? Mathew says the fundamental issue facing individuals who want to make a complaint is the fact that the Refugee Convention does not have a monitoring body. "The United Nations High Commissioner for Refugees (UNHCR) has some supervisory responsibilities but it’s not quite like a treaty body, there’s no formal mechanism for complaints." The only complaint mechanism that's included in the convention is the ability for one state to pursue a case against another state before the ICJ. However, Mathew says this complaint mechanism has never been used before, as "states just don’t have an interest in complaining about other countries". This does not rule out an individual's capacity to complain entirely. Many of the hardships experienced by refugees involve human rights issues. These issues might overlap with other treaties that do have monitoring bodies with formal complaint mechanisms, like the ICCPR. So in this case an individual could lodge a complaint to the UN Human Rights Committee. Mathew pointed to Australia's new bridging visas as an example of where this procedure could be used. One avenue for complaint about the visas could be to say they discriminate between unauthorised arrivals and other refugees, which breaches article 26 of the ICCPR dictating all people are equal before the law. Another avenue would be to take the matter to the UN Committee on Economic, Social and Cultural Rights, as Mathew says the new bridging visas breach article 6 of the ICESCR. What consequences could Australia face for breaching the Refugee Convention? Donald Rothwell from the ANU College of Law told Crikey that realistically, the most significant consequence that Australia could face would be international criticism. "Australia could be subject to really severe international sanctions, it might be subject to widespread criticism, which could in some way or another affect Australia’s reputation, but it is most unlikely that it would go to the international court," he said. However, Mathew says it is still important for Australia to abide by the international laws it is committed to.

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2 thoughts on “Crikey clarifier: does Australia’s refugee policy breach UN rules?

  1. Tim Macknay

    I don’t entirely agree, Rose.

    It’s not at all clear that Australia’s current polices, inhumane though they certainly are, are in breach of the 1951 Convention Relating to the Status of Refugees or its 1967 Protocol.

    I think your main error is to conflate the categories of “refugee” and “asylum seeker”. A refugee is a person who meets the criteria set out in the Convention and Protocol, i.e. who has fled their country due to a well-founded fear of persecution on grounds of race, religion, nationality, membership of a particular social group or political opinion.

    An asylum seeker is a person who claims to be a refugee, but whose status as such has not been determined.

    The Convention and Protocol have nothing at all to say about asylum seekers. They are concerned only with refugees.

    You say that “Prohibited penalties include being charged with immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum.”

    However, those words come from an introductory note, not from the text of the Convention itself. Only the text of the Convention is legally binding – the introductory note is just commentary.

    What Article 31 of the Convention actually says is that “Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”.

    Article 31 then goes on to say that “the Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised or they obtain admission to another country”.

    The two points to take way from this are –

    1) that the prohibition on penalising illegal entry only applies to persons who are coming directly from the territory of persecution, not to persons coming from a third country, and

    2) the Convention does authorise detention and other restrictions on movement for the purpose of determining whether or not a person is a refugee (i.e. regularising their status).

    So the punitive detention of asylum seekers originating from, say, Afghanistan, but arriving by boat from Indonesia, for example, while inhumane, is not necessarily in breach of Article 31, because Article 31 won’t apply to them.

    It also should be noted that the proposed new bridging visas are not for persons who have been confirmed to be refugees, but for asylum seekers whose claims are still being processed. As such, the various obligations imposed on Contracting States by the Convention, such as freedom of movement, non-discrimination and the right to work, don’t apply to the people holding the new bridging visas, because they are not recognised refugees. That’s not to say that this punitive treatment is fair or just of course, only that it doesn’t necessarily breach the Convention.

    The quotation from Law Professor Penelope Mathew is quite correct, but note that her comment refers to “recognised refugees”, not asylum seekers.

    The reality is that the only substantial obligation the Convention imposes on States with respect to asylum seekers (as opposed to recognised refugees), is that the prohibition on refoulement (Article 33) effectively obliges states to investigate the claims of persons seeking asylum, rather than just deporting them.

    It may well be said that current Australian policy violates the spirit of the Refugee Convention, but it doesn’t really violate the text.

    Of course, as you say, current Australian policy is probably in breach of one or more provisions of the respective International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights.

  2. Ned Kelly

    Who gives a damn what the UN thinks ,They are a useless non entity , A toothless ghost of what once was but is of no use to anyone now , The boats should all be sent packing , I didnt ask them to come and dont want what they bring to my shores , I know the bleeding hearts will cry foul but i care even less what they think .

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