Australian Human

The 1951 Convention Relating to the Status of Refugees [1] was one of the first substantive human rights safeguards instituted internationally. It is also a Convention facing immense challenges that were not envisaged by its drafters. Forced migration has reached unprecedented levels. [2] At the same time, the States most able to assist refugees are attempting to close their doors, at least partially. [3] Australia is the destination for a very small proportion of the world’s asylum seekers, yet it has introduced some of the harshest responses to unexpected arrivals.

Onshore asylum-seekers, classified by Australian legislation as “unlawful non-citizens” [4] , are widely recognised as the one group in Australia most vulnerable to human rights abuses. Their treatment is removed from public view, and from judicial oversight, and they possess very few enforceable human rights under Australian law. Ironically, this vulnerability to abuse is suffered while they pursue the international mechanism intended to protect them from human rights abuse.

This paper has two purposes. The first is to examine Australia’s treatment of onshore asylum seekers, in light of the Refugee Convention and other international human rights law. Part 1 will consider the policy of mandatory detention as well as two other responses to onshore arrivals. The second purpose, addressed in Part 2, is to explain Australia’s sustained mistreatment of these asylum seekers, by reference to its policy objectives and to the politicisation of the asylum seeker issue, which underlies those objectives.

Certain treatment of human beings cannot be justified. Yet, it may be practised in the name of the majority. The overarching concern of this paper is the role that notions of human rights, inherent to all people, play in such circumstances.

Part 1: The mistreatment of asylum seekers …

For the past fourteen years, the Australian government has introduced and refined measures to address the phenomenon of unauthorised arrivals into Australia who apply for asylum pursuant to Australia’s obligations under the Refugee Convention. In 2001, the issue of boat arrivals in particular was thrust into the public arena when the Australian government refused to let a Norwegian freighter, the Tampa, into Australian waters, for fear that the people aboard the Tampa, who had been rescued at sea, would claim asylum in Australia. It was in response to this self-styled “crisis” that the government introduced further legislation aimed at reducing the number of onshore asylum applications made in Australia, under the label of “border protection”.

Broadly, the Australian government has implemented measures to

(i) detain those who claim asylum in Australia pending determination of their status as refugees or their removal from Australia;

(ii) reduce the number of successful claims for refugee status;

(iii) provide differential treatment for such asylum seekers once they are determined to be refugees, in comparison to offshore refugees accepted into Australia; and,

(iv) intercept boats either in Australian territorial waters or the high seas to prevent asylum claims from being made in Australia .

(a) Mandatory Detention

The mandatory detention regime has been the distinguishing feature of the Australian treatment of onshore asylum seekers and has been the primary concern of human rights advocates. Under the Migration Act (Cth), as amended in 1989, detention in one of Australia’s seven immigration detention centres or immigration reception and processing centres [5] is mandatory for all those who enter Australia without sufficient authorisation, until they are either removed or obtain a visa. [6] Formally, the detention system extends to all non-citizens in Australia without a valid visa, but in practice, few visa overstayers are detained or pursued for detention and removal. [7]

The vast majority of detainees are asylum-seekers, who are either,

(a) awaiting refugee status determination from the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA);

(b) awaiting administrative or judicial review;

(c) awaiting security checks and health and character assessments prior to visa issuance, after having been found to be Convention refugees; or,

(d) awaiting removal from Australia, having failed to gain refugee status.

During the 2001-2002 period, the average length of time spent in detention was 155 days. [8] However, there are significant variations in detention periods and there have been many catalogued instances of detention for over a year [9] and up to five years [10] .

Both the fact of immigration detention and the conditions of detention together constitute the greatest incursions into the rights of asylum seekers under international law. The detention of asylum-seekers is not criminal – it does not follow from the procedures of charge, trial and conviction. Rather, it is simply detention while they await the outcome of an administrative process, which is itself the result of a right under Australian law to apply for asylum.

Moreover, the vast majority of asylum-seekers placed in detention are eventually found to be refugees. In 1999-2000, 84% of primary applications for protection of people in detention were granted. [11] Of those who appealed adverse primary decisions, 64% of detainees had the decisions reversed on merits review. [12] In particular, including the outcomes of administrative review, over 90% of recent Afghan, Iraqi and Kuwaiti arrivals have been granted refugee status. [13] Thus, for an overwhelming proportion of detainees, the experience of detention comes after persecution sufficient to satisfy the Convention definition and the trauma of having to flee their homes and be separated from their families, often in perilous and uncertain circumstances. It is widely and persuasively argued that detention is entirely inappropriate in these circumstances and only serves to exacerbate the effects of previous trauma and make recovery and integration into Australia more difficult. [14]

The use of detention is circumscribed by the International Covenant on Civil and Political Rights (ICCPR) and the Refugee Convention itself. In Part (a)(i), this paper will present why the policy of mandatory detention for unlawful arrivals constitutes a serious breach of these two Conventions. Once detention is imposed, punitive, correctional, medical or otherwise, the ICCPR requires that it satisfy two conditions. [15] Firstly, all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. [16] Secondly, cruel, inhuman or degrading treatment or punishment is prohibited. [17] In Part (a)(ii) and (a)(iii), this paper will detail the forms which immigration detention has taken in Australia, which significantly depart from internationally accepted standards of treatment. Lastly, in Part (a)(iv), this paper will consider the application of the policy of mandatory detention to children, in reference to Australia’s obligations under the International Convention on the Rights of the Child (ICRC).

(i) Arbitrary detention

The fact and length of detention raise significant international legal issues. Asylum-seekers are not held in detention on the basis of grounds particular to the individual. Rather, detention is based solely on the fact of illegal entry and is generally justified with reference to the possibility for an applicant to abscond. [18]

Detainees possess none of the safeguards accorded to detention associated with criminal procedure. Their detention is governed by the Migration Act (Cth) under Australian law and the Australian judiciary cannot review the detention or order the release of a “designated person” under the Act [19] . Thus, the common law right of habeas corpus has effectively been removed by statute, for all those who fall within the definition of a “designated person”. [20]

Moreover, the length of detention is determined not by necessity but solely by reference to how long it takes for the applicant to either obtain a visa or be lawfully removed from Australia – which is entirely an administrative matter. While early release in special circumstances of vulnerability is permitted, it is rare. [21] In the words of the Australian Human Rights Commissioner, “Prolonged detention is more likely to be arbitrary as it will be more difficult to justify such detention as being a proportionate or reasonable means of achieving a legitimate aim or as reasonable and just in the circumstances”. [22]

The International Covenant on Civil and Political Rights

International human rights law as enshrined in the ICCPR offers protection against arbitrary arrest and detention [23] ; protection which extends to all persons within the state’s territory, regardless of nationality. In 1993, a Cambodian asylum-seeker complained to the Human Rights Committee [24] that his detention in Australia was arbitrary. The question before the Committee was whether the fact of the applicant’s unlawful entry into Australia and the perceived incentive for the applicant to abscond if left in liberty were sufficient grounds to justify indefinite and prolonged detention. The Committee found that detention of asylum-seekers was not arbitrary per se, for the fact of illegal entry may indicate a need for investigation or there may be factors particular to the individual that may justify detention for a period. However, without these factors, illegal entry alone would not suffice. The Committee thus found that the detention of the author for over four years was arbitrary, and in violation of Article 9(1). Moreover, under Article 9(4), a detainee must be entitled to have a court review the lawfulness of her or his detention, which the Committee stated as meaning lawfulness under Article 9, not simply domestic law. Thus, the Committee found the absence of real court review of detention to be in violation of Article 9(4). It comments clearly imply that mandatory detention as practiced in Australia continues to be arbitrary because of the lack of consideration of grounds particular to the individual and the lack of court review.

The Committee’s decision provides the most authoritative pronouncement that Australia’s actions are in breach of its international human rights obligations.

The Refugee Convention

Detention is not prohibited under the Refugee Convention. Article 31(2) allows certain restrictions to be placed on the movement of refugees “unlawfully in the country of refuge”. However, states may only apply such restrictions on freedom of movement of asylum-seekers as are “necessary” and only until their status in the country is “regularised”.

It must be noted that many restrictions short of actual detention may be applied, as detailed in UNHCR Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (1999) [25] , and thus detention will only be necessary in limited circumstances. While the Article 31(2) does not mention the circumstances in which restrictions will be considered necessary, when read in conjunction with Article 31(1), which prohibits the punishment of asylum seekers who entry a country unlawfully, the fact of illegal entry alone will not legitimate the detention of asylum seekers. [26]

Dr. Margaret Allars argues that the only criteria that allows for detention under Article 31(2) is the need to determine the elements upon which the claim for asylum is based. [27] Thus, even if the extreme restrictions on freedom of movement involved in mandatory detention meet the criteria of necessity under Article 31(2), the practice of prolonged detention by Australian authorities, throughout the refugee determination process, is unsustainable under the Refugee Convention [28] .

The position of the Refugee Convention has been clarified by Conclusion No.44 of the Executive Committee on the Detention of Refugees and Asylum-Seekers [29] and by the UNHCR Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers. Both bodies advocate that, as a general principle, asylum-seekers should not be detained. There should be a presumption against detention and it should be the last resort after all alternatives have been considered.

Long-term incarceration of asylum seekers constitutes an incursion into the fundamental rights of human beings to control their movement and the course of their lives. Even in the short-term, it is an incursion that is only permissible when strict safeguards are observed. In the absence of such safeguards, the detention of human beings who have not been charged or convicted of any crime is a serious human rights violation, and one that is it fundamentally incompatible with Australia’s international commitments. The extent to which the mandatory detention regime constitutes systematic abuse of human rights becomes clearer when one considers the conditions under which asylum-seekers are held.

(ii) The denial of legal advice and incommunicado detention

When unauthorised arrivals are first detained they are subject to an initial screening by DIMIA officials. DIMIA practice is not to provide any legal information at this stage, not even to inform people of the right to apply for refugee status or request legal advice. [30] These practices have been validated by the Migration Act. [31] This violates Principle 17(1) of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment [32] , which elaborates the requirements under the ICCPR, stating that “A detained person shall be entitled to have the assistance of a legal counsel. He [or she] shall be informed of his [or her] right by the competent authority promptly after his [or her] arrest and shall be provided with reasonable facilities for exercising it.” The Australian Human Rights and Equal Opportunity Commission (HREOC) has found that the failure to inform unauthorised arrivals of their right to request legal advice breaches Article 10(1) of the ICCPR, which provides that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. [33]

New arrivals are kept in separate detention from other asylum seekers, purportedly for health and quarantine reasons. However, HREOC has found that the motivations for separate detention include keeping detainees from being “contaminated” by information about their legal entitlements and to lower the likelihood of detainees exercising their right to apply for a protection visa, allowing more expeditious removal from Australia. [34] The practice of separate detention raises serious human rights concerns for it is in many ways akin to incommunicado detention which has been found to breach of Article 10(1) of the ICCPR, even if employed for short periods of time. [35] Conditions of separate detention have included no access to mail, or other forms of contact initiated by individuals or organisations in the Australian community, only one permissible telephone call (which must be to the home country) and no access to media, books or any other sources of information. [36]

The denial of access to legal advice combined with the denial of human rights scrutiny inherent in incommunicado detention create significant impediments to the exercise of fundamental rights both under domestic and international law. [37] In particular, these practices raise the possible violation of the most fundamental safeguard offered by the Refugee Convention, the prohibition of refoulement [38] of Convention refugees. If unauthorised arrivees do not properly articulate the grounds of their claims, they may not screened into the protection visa system at all, even if they express grave fears about returning home. [39] A statement to the effect that the asylum-seeker came to Australia to provide a more secure life for her children, may result in fast return to her country of origin, unless augmented by some reference to fear of persecution [40] . This likelihood of refoulement is compounded by the distrust and fear of authority figures prevalent amongst refugees.

After the screening process is completed, asylum-seekers are allowed access to lawyers. However, the paucity of facilities and the isolated locations of detention centres have made it highly difficult for lawyers to effectively advise asylum-seekers. [41] HREOC has found restrictions on outside contact, even outside separate detention, to be unjustifiable. Not only does this impede access to refugee determination procedures under Australian law, but it makes exposure of ill-treatment and denial of rights less likely. [42]

The practices described herein also have direct consequences on asylum-seekers’ well being. Lack of legal information about the reasons or length of their detention and their immigration status in Australia is a major contributing factor to a sense of desperation felt by asylum seekers. Misinformation is rife and this can often lead to violence, particularly in conjunction with the environment in Australia’s detention centres. [43]

(iii) Conditions in detention centres

As the policy of mandatory detention has become entrenched in Australia’s policy, debate has shifted to the conditions under which asylum seekers are held. Over the past five years, there has been an increasing incidence of protests and riots at the various detention centres. Forms of protest have varied from hunger strikes, to lip sewing, and such extreme measures as asylum seekers impaling themselves on razor wire. Riots have involved serious violence between detainees and security guards and property damage and riot squads have employed forms of force rarely seen in Australia, such as water cannons and tear gas.

There are two ways to view this situation. One is to ask what has created the desperation that leads to such volatile behaviour. This requires an analysis of the conditions of detention and the effects upon the type of people who have been chosen for detention under this regime. That is what this section will attempt. The other perspective is to assume that asylum-seekers are by nature violent, unscrupulous, unstable and a menace to Australian society. This perspective will be considered in Part 2 of this paper, for it plays a significant role in explaining the public appraisal of mandatory detention.

Australia’s detention centres have been the subject of numerous official reports, including the Federal Senate Legal and Constitutional References Committee, HREOC and the Commonwealth Ombudsman. The general consensus amongst observers is that while the detention facilities may suffice for short-term accommodation, akin to overnight police lock-up, they are entirely unfit for long-term habitation, and particularly for people in circumstances of distress who have committed no crime. Reports have repeatedly stated that conditions are so inadequate as to constitute a failure to treat detainees with humanity and potentially constitute cruel treatment. For example, HREOC has made that finding with respect to conditions at Villawood IDC in Sydney, for reasons of heavy overcrowding, vastly inadequate toilet facilities and lack of privacy.

Health services, in particular psychological counselling, are essential given the experiences of most asylum-seekers prior to and during their journey to Australia. Moreover, the experience of detention itself for such long periods of time may make counselling necessary. Yet, inspection bodies have regularly criticised the inadequacy of health services. The absence of sufficient counselling for sufferers of torture and trauma has been held to be a violation of Article 14 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. [44] In particular, HREOC has revealed the practice of denying treatment that would require officers to escort detainees to outside premises, in response to the refusal of rehabilitative services to treat detainees within an environment so non-conducive to therapy. [45]

Restrictions placed upon the daily lives of detainees, and the consequent dependency on IDC staff, are not always in direct contravention of international human rights guidelines. However, they combine to dehumanise and disempower detained asylum-seekers. Personal belongings are frequently confiscated on arrival. Basic supplies are provided to the detainees, but are frequently inadequate. The practices catalogued by various reports include requiring women to make oral requests and then fill in written forms in order to obtain access to sanitary materials. Complaints about insufficient and inappropriate food are endemic to IDCs. Yet, detainees are deprived of the ability to cook for themselves. Shopping expeditions outside IDCs are rare. Some limited employment is provided within IDCs, but employees have been paid in “vouchers” valued at a small fraction of Australian minimum wage levels for equivalent work elsewhere in Australia. [46] Social interaction is inhibited, for example, by limiting access to communal areas for most times of the day, or purposely curtailed, for example, by deliberately placing friends in separate blocks. [47] Excursions outside the detention centres are rare, not even to nearby parks or beaches.

The picture conveyed by the various reports portrays an environment that unnecessarily denies asylum seekers autonomy during their time in detention. It is an environment akin to a prison in terms of the restricted ability of detainees to lead a partially ordinary life, and methods employed buy Australasian Correctional Management (ACM) certainly make asylum-seekers feel like prisoners. [48] Yet, the concerns of retribution and security that are used to justify prison management methods are not present in IDCs. This begs the question of why such severe denial of liberty is necessary.

Some asylum-seekers have spent time in prisons as punishment for protests or simply for administrative reasons. [49] They have consistently reported that they preferred the conditions in prisons. This is understandable, given that, over time, a series of checks and balances have developed around criminal detention, which are not present for immigration detention. [50] There is a real lack of established systems in IDCs to offset the frustration and trauma created by powerlessness and inactivity. It is DIMIA policy to treat all detainees as people awaiting removal from Australia and thus not to provide any education or training or anything that would assist settlement in Australia. This is concerning because the length of immigration detention may run into years and DIMIA’s policy is entirely incongruous with the high rate of acceptance of detained asylum seekers into Australia. The logical result of this policy is that the only possible activities in detention centres are recreational, yet reports have found recreational facilities are themselves highly inadequate.

Beyond the restrictions imposed on detained asylum-seekers, there are numerous incursions into their lives purportedly for security. In the wake of escapes from detention centres, “security measures” have been fortified. All the detention centres established since 1999 have been placed in remote desert locations in Australia and are surrounded by heavily fortified, double-cyclone razor wire fencing. The austere and intimidating physical design of these facilities is highly similar to high security prisons used to house the most dangerous convicted criminals. [51] Visitors are assessed by security, scanned and tagged before being allowed in. “Musters” are conducted several times a day, during which all detainees must collect at one place to be counted. [52] Numerous reports have condemned dehumanising administrative practices such as referring to detainees by numbers rather than their names. Additionally, detainees are regularly checked upon, eroding what little privacy exists in detention centres. The latest detention centre to be established, which has yet to be subject to a report, is the detention centre at Baxter, which has electric fences, electronic surveillance over every space and all doors and gates are automated. [53]

Several reports have identified unnecessarily violent behaviour on the part of ACM security guards. Numerous detainees have spoken out about violence, harassment and abuse by guards. At Port Hedland detention centre, for example, handcuffing and beatings of inmates are frequently reported. [54] ACM security staff have been reported to respond violently to resistance across the detention centres, attempts at self-harm and even suicide attempts. Physical restraints are used fairly indiscriminately when transferring detainees or even taking them to outside medical facilities. There have also been reports of the use of chemical restraints, and in one case in 1999, a nine year old child who had been in detention for nearly six years was force-fed tranquilisers to control behaviour that was itself a response to extended imprisonment. [55]

One particularly disturbing practice is the use of isolation chambers. This practice is strictly circumscribed in the prison context with a maximum of 14 days, and only as a response to serious violence by an inmate. However, there are no such limitations placed on the use of isolation chambers in detention centres, allowing, for example, the solitary confinement of a Palestinian man for 8 months in 2001. [56]

The privatisation of IDCs is an issue to be noted. ACM is a private prison company, and the security staff work on six week rotations from other ACM managed facilities, including high security prisons. Moreover, the construction of the contract between ACM and DIMIA explicitly provides monetary penalties on ACM for security breaches, whereas ACM’s responsibilities towards detainees are only a matter of ordinary contractual compliance. [57] Thus, the contract itself favours harsh security measures at the expense of the dignity and well-being of asylum-seekers. Furthermore, the cost of detention per detainee has significantly fallen, which raises the question of how savings have been achieved, and how well detainees rights are protected against profit- motivated budget constraints. [58] It is difficult to answer this question because information such as the required standards of privacy and dignity and the response of DIMIA to breaches of standards of treatment have been withheld from the media and advocacy groups on the grounds of commercial confidentiality.

What is clear is that the conditions in Australia’s detention centres have had a destructive effect on the well being of asylum seekers. There are high rates of depression and other mental health problems, frequent incidents of self-harm and a significant number of suicide attempts every year (some successful). [59] Violent protests are symptoms of a deeper malaise – statistics have shown, for example, that asylum seekers are more likely to inflict violence upon themselves than assault or threaten detention centre staff. [60] The heavy-handed DIMIA and ACM response to peaceful and violent protest has caused violence and desperation to spiral upwards. Numerous visitors to detention centres have commented on how volatile and unhealthy the environment is even at ordinary times and how explicable violence and self harm are in such a situation. [61]

The conditions of detention described above are fundamentally violative of human dignity – the norm that underlies and animates all international human rights discourse. National governments have frequently been over-zealous in the restrictions placed on criminals in detention, either in the name of punishment or security. Thus, international law has developed norms and guidelines to cover such detention. An analysis of Australia’s detention centres in terms of international guidelines such as Standard Minimum Rules for the Treatment of Prisoners [62] and The Body of Principles for the Protection of Persons Under Any Form of Detention or Imprisonment yields several significant concerns. However, to approach the human rights of detained asylum-seekers as one would approach the rights of detained criminals is itself overgenerous to the Australian government. [63]

Part 2 of this paper will discuss in greater detail the objectives underlying detention, but for the present purpose of evaluating standards of detention it will suffice to note that, in the absence of any criminal charge or conviction, detention cannot be justified with reference to retribution, deterrence or community protection.

This makes immigration detention crucially different from all other types of detention practiced in Australia, for the primary concern of authorities should be to care for the well-being of detainees. [64] Yet, the environment created in Australia’s detention centres destroys the ability of inhabitants to lead even partially-ordinary or fulfilling lives. Detained asylum-seekers are treated in many ways worse than prisoners and they are deliberately placed in conditions of severe dependency upon detention centre authorities. The extent of restrictions placed on detainees is entirely disproportionate to the purpose of preventing escape, even if one accepts that asylum-seekers need to be placed in some type of detention centre.

The various investigative and supervisory committees have made numerous recommendations. Many have been ignored, but certain improvements have been made in light of recommendations. One example is that ACM has ceased the practice of conducting random room searches in the middle of the night. Some reports have also commended pilot programs such as allowing a member of each ethnic community to prepare food for that community, arranging shopping expeditions and family outings. Such measures, in combination with improved health facilities, better provision of information and more appropriate behaviour by ACM staff could significantly ameliorate the plight of asylum seekers in detention. However, it is important to note that, while the reports are focused on measures that need to be taken to improve the treatment of asylum-seekers, they also find that much of the damage is related to the policy of mandatory detention per se.

(iv) The detention of children

“ [There is] something mean, tricky and squalid about a policy which locks up little children behind barbed wire, razor wire, for five years.” [65] – Marion Le, Refugee Advocate

The one area that constitutes the most flagrant breach of international human rights is the detention of child asylum-seekers. Nine hundred children were detained in IDCs in 2000. [66] Children constituted almost one-third of detainees in Australia over 2001-2002. [67] Australia is a party to the ICRC and the law in this area is clear. Children are not be detained except as a measure of last resort, and for the shortest possible period, and in all actions affecting children, the best interest of the child must be a primary consideration. [68]

Australia’s policies detain children as a measure of first resort. They are detained indeterminately and for the longest period permissible under Australian law for immigration detention, that is, until they are issued with a visa. The conditions of detention centres are manifestly contrary to the best interests of the child. Accounts of detention centres across present and former inmates, lawyers, social workers and investigative teams, testify to the atmosphere of despair in detention centres and the serious effect this has on children. Children are given very limited opportunities for social participation, which are essential for social and emotional development. Basic recreational facilities for children are lacking. They are offered education at a standard far below that provided in Australian schools. [69] They are exposed to high levels of violence, and children themselves have participated in protests involving hunger strikes, lip-sewing and have engaged in other forms of self-harm. Judith Bessant argues, with reference to Australian standards of child protection, that “(y)oung people detained in detention centres are by virtue of their imprisonment being abused”. [70]

Moreover, the conditions of detention deny parents the ability to parent adequately by preventing parents from having control over living conditions and providing a healthy environment for children. Many parents themselves suffer from physical and psychological conditions that affect their ability to take care of their children – conditions that are created or exacerbated by the experience of detention.

There are a significant number of unaccompanied children in detention centres. Their situation is covered by Article 20 of the ICRC which states that they are entitled to special protection and assistance by the State. In Canada, unaccompanied child asylum seekers are taken care of by provincial social services. [71] In Denmark, they are entrusted to Red Cross childrens’ centres. [72] There appears to absolute no justification in keeping these children in detention rather than placing them in custody of a family or a youth centre. In the detention centre environment, the state has delegated its duty to the child, in loco parentis, to the short-term rotational staff of a private prison company. [73] This is manifestly inadequate care of children who have no other parental care or supervision.

(b) Toughening Australia’s stance

The mandatory detention policy was instituted in 1989. However, Australia’s response to the on-shore asylum-seeker phenomenon has intensified, particularly under the present conservative government, which is determined for Australia not to be a “soft touch”. Legislation has severely delimited due process entitlements of asylum-seekers in ways that share little with Europe, North America and New Zealand. Legislation has narrowed jurisprudential interpretations of the two concepts of “persecution” and “social group”, which are central to findings of refugee status, and expanded exclusion clauses for those found to be refugees [74] . Legal assistance entitlements have been reduced. Harsh new credibility provisions have been introduced, allowing authorities to more easily infer an asylum-seeker’s sworn statements are insincere. Lastly, in what can only be described as a perverse attempt to bring on-shore and off-shore refugees in conflict, the present government has linked the onshore refugee intake to its offshore refugee quota, so that each asylum-seeker accepted in Australia effectively denies a place to a refugee overseas.

This paper will consider two particular developments in Australia’s response to onshore asylum seekers: the so-called “Pacific Solution” and the Temporary Protection Visa.

(i) “Boat People” and the “Pacific Solution”

The most audacious of Australia’s responses to onshore-asylum seekers is its attempt to physically prevent asylum-seekers from being processed in Australia. Since 1999, Australia has engaged in interdiction of boats in the high seas headed to Australia from Indonesia. [75] While it is a matter of interpretation as to whether extra-territorial interdiction strictly constitutes refoulement under the Refugee Convention, it is to be noted that human rights obligations cannot be avoided by the exercise of extraterritorial jurisdiction. [76] It is certainly bad faith avoidance of Australia’s international obligations to force approaching asylum seekers away. Moreover, Indonesia is not a party to the Refugee Convention, thus returning boats to Indonesian waters may make Australia responsible for initiating chain refoulement, back to a country of persecution. [77]

In the wake of the Tampa affair, the Government severely worsened Australia’s reception of asylum-seekers attempting to reach Australia by boat through its so-called “Pacific Solution”. The new legislation is modelled upon and goes beyond the much-criticised US interdiction of Haitian and Cuban asylum seekers on the high seas. Large sections of Australia’s territory have been excised for the purposes of migration, so that a valid application for an Australian visa can no longer be made away from the mainland. [78] The new concept of “off-shore entry persons” was introduced to cover unauthorised entrants to excised areas. Such persons can no longer apply for protection visas in Australia and Australian officals are empowered to take them to a “declared country”. [79] The Minister for Immigration can declare that a particular country provides effective refugee procedures, offers sufficient protection and meets relevant human rights standards. [80] Papua New Guinea and Nauru have been so declared, after the Australian government negotiated for these countries to process asylum seekers, at the Australian government’s expense, in return for aid.

The Australian government argues that the Pacific Solution has been carefully designed to comply with the letter of Australia’s international obligations. However, serious questions arise as to whether the Pacific Solution serves any legitimate purpose, if Australia has taken de facto control of the processing of these refugees, but simply does not want that processing to occur on its territory. The “Pacific Solution” has reduced the number of entrants into mainland Australia’s detention centres [81] , however, this appears to have simply hidden the treatment of asylum seekers from the view of the Australian public and human rights bodies, since access to offshore processing centres is so difficult. It has emerged that, unsurprisingly, these offshore processing centres also amount to detention and do not conform to accepted international standards. [82] Amnesty International has reported that conditions in Nauru amount to ‘refugee warehousing’, and Australia is at least jointly responsible for any human rights violations. [83] Additionally, asylum-seekers upon these islands are deprived the few safeguards that remain in the Australian refugee determination process, since, technically, they are not applying to Australia for asylum.

The practice of processing asylum seekers on impoverished Pacific Islands simply exacerbates the human rights problems evident in the treatment of asylum seekers in Australia, and multiplies the expense of mistreatment. [84]

(ii) Temporary Protection Visas

A Convention refugee has no right to be granted asylum – the state has a discretionary power to grant asylum and is free to prescribe the conditions of asylum [85] . However, the Refugee Convention clearly prohibits penalties being placed on refugees for arriving at the country of asylum without due authorisation. [86] This prohibition is recognition of the difficulties often faced by refugees in obtaining requisite documentation as they flee persecution.

In 1999, the Howard government reintroduced a system by which “illegal refugees”, that is, those who had established refugee status but who did not arrive with necessary documentation, could only obtain a three-year temporary protection visa (TPV). TPV-holders can be seen as “second-class” refugees. They do not have access to certain forms of financial support or any settlement services, such as English classes. They cannot access tertiary education except at exorbitant international student fees. They cannot visit family in safe third countries, because the TPV does not allow for re-entry. Most significantly however, TPV holders cannot sponsor their families to join them in Australia. This last condition has already seen a dramatic rise in the number of asylum-seekers bringing their families with them on the dangerous journey to Australia, and the concomitant rise of children in Australia’s detention centres, whereas previously one member of the family would have been entrusted with the task of finding a safe country and then sponsoring the rest of their family. [87]

The TPV system has a high human cost. Not only does it make the lives of refugees materially difficult, it prevents effective integration into Australian society. Left in limbo, TPV holders cannot truly begin the process of rehabilitation from their experiences of persecution and trauma. It is also quite an inefficient system, given that TPV holders will need to have their refugee status reassessed after three years. In fact, by requiring that the TPV-holder shows a continuing fear of persecution after three years in order to stay in Australia , the TPV system discourages rehabilitation.

Alongside the excision of territory and the use of Nauru and PNG, a new visa regime has been created, whereby those processed offshore cannot obtain permanent protection in Australia after the expiration of the TPV. Amongst other things, this makes family reunion an impossibility. Penelope Matthew has described the legislative scheme after 2001 as creating “ a many-layered hierarchy of refugees in Australia that has little bearing on protection needs.” [88] , and argues that the new visa regime as it exists now acts in direct violation of the prohibition against punishment for unlawful entry.

The Australian government has interpreted Article 31(1) as prohibiting on penalties such as the imposition of fines or imprisonment, but not prohibiting administrative detention or withdrawal of visa entitlements. [89] However, given their consistent portrayal of boat people as ‘queue jumpers’ and ‘forum shoppers’, who employ people smugglers to defy Australia’s laws, it is difficult to understand the new visa regime as anything other than a punitive measure against refugees who enter a country unlawfully. Such measures are clearly contrary to the spirit of the international refugee system as enshrined by the Refugee Convention.

The wilful pursuit of human suffering

Australia’s responses to the onshore asylum seeker phenomenon constitute sustained and systemic mistreatment of those fleeing from human rights abuses to seek protection in Australia. The Australian Federal Minister for Immigration, Philip Ruddock, had frequently argued that many of Australia’s practices are technically permissible within international human rights law and practice. However, this paper’s exploration of Australia’s refugee policies has found Australia’s mandatory detention system alone is in contravention of human rights principles that apply to all people, regardless of their immigration status, as well as principles that apply specifically to asylum-seekers and specifically to children. Even if the Minister is correct in his legal appraisal other measures, which is highly unlikely given the sheer weight of criticism of this legal appraisal, Australia’s policies evince a complete disregard for the well-being of onshore asylum-seekers.

Some of the human rights abuses described herein can be attributed to incompetent management of Australia’s detention centres. These centres appear to embody the ethos of a prison, without the safeguards built-up around the prison system, alongside the indeterminacy and short-term amenities of an administrative holding facility. As experience of the unnecessary harms inflicted by detention centres accumulates, as investigations are commissioned and recommendations are made (that are not too threatening for the government) these abuses may abate.

But the majority of the human rights abuses raised herein are the result of conscious policies. This is certainly the case with respect to arbitrary detention, inhumane treatment in the name of security, the denial of legal information, the denial of judicial oversight, the withdrawal of entitlements and the “Pacific Solution”.

The Australian government has deliberately engaged in human rights violations and has deliberately disengaged with the international system that criticises it for doing so. The question then is “why?”.

Part 2: … in the name of ordinary Australians …

“This is a frightened country. For decades now we’ve been afraid of someone invading us from somewhere and I think that mentality still permeates much of the country. It is amazing the cross-section of the people who are infiltrated with this fear…” [90] – Nick Bolkus, Former Federal Immigration Minister

How do we explain this mistreatment of onshore asylum-seekers? Part 2(a) will examine the concerns underlying Australia’s policies. Part 2(b) will consider why the deterrence of asylum seekers occupies the central role in the development of Australia policies in light of popular sentiment surrounding the asylum-seeker issue and the politicisation of their treatment.

(a) Justifying Disrespect for Human Rights

“The essence of human rights is that human life and dignity must not be compromised and that certain acts, whether carried out by State or non-State actors, are never justified no matter what the ends.” [91] – Mary Robinson, UN High Commissioner for Human Rights

Mary Robinson has argued that, rather than balancing international human rights law compliance against “national interests”, governments should recognise that human rights law itself strikes the balance between the meaningful recognition of human rights and other concerns of States. [92] The Australian government has clearly struck a very different balance between the rights of asylum seekers and its other objectives. This balance is violative of several fundamental precepts of international human rights law and the Australian government cannot be incognisant of these violations. Yet, they clearly believe their policies to be justified. The Federal Opposition ALP must also believe such policies to be justified, given their general complicity. The majority of the Australian public believe these policies to be justified, given the ongoing support for the Government’s ‘tough stance’ on asylum seekers. What greater objectives could be seen to justify the institution of systems that create such misery as Australia’s asylum system?

(i) Justifying Detention

Several concerns that are legitimate objectives for a state party to the Refugee Convention to pursue [93] purportedly underlie Australia’s detention of asylum-seekers.

Health and Security Clearance of New Arrivals

One reason for detention of unauthorised arrivals is to perform preliminary health and security checks. The Australian media and politicians have emphasised the security threat that asylum seekers pose, suggesting that asylum-seekers who arrive without the necessary papers are often serious criminals who have disposed of their documentation in order to escape identification. Several Federal Ministers made statements to the effect that terrorists may use the asylum system to gain access to Australia, after arriving aboard leaking Indonesian fishing vessels. Little or no evidence has been provided to support these assertions however there is a strong public belief that asylum seekers cannot simply be allowed into the community.

The UNHCR and the Executive Committee of the Refugee Convention have said that resort to detention is justified only to verify identity or to deal with refugees or asylum seekers who have destroyed their documents or used fraudulent documents in order to mislead authorities of the State in which they claim asylum [94] . Sweden, of example, only finds it necessary to detain asylum seekers for the time taken to investigate and verify identification, which takes from two weeks to two months. [95]

At present security clearance is performed after a determination is made that an asylum-seeker is in fact a refugee pursuant to the Convention definition, after the refugee has been detained for the entire determination process. There is no reason why these checks cannot be performed when the asylum-seeker arrives, along with health checks, allowing release of those who do not pose a security risk. Even if certain asylum-seekers may pose a security concern after initial clearance, this could be dealt with by detention on grounds particular to the asylum-seeker, with accompanying safeguards, such as prompt and periodic judicial review of the decision to detain, pursuant to the ICCPR.

Providing services to asylum seekers pending determination of their claims

Upon arrival and pending determination of their claims asylum-seekers do require support services. Australia’s detention centres may supply basic accommodation and food needs, however, the environment is clearly unsuitable for the provision of health services, especially trauma therapy. Moreover, the use of detention is the most disempowering means of dispensing necessary services to asylum-seekers, and prevents integration into Australian society and trauma recovery. Lastly, the system of mandatory detention is far more expensive than community release with full social security provisions.

Removing failed asylum-seekers from Australia

Australia’s policy of mandatory detention is most frequently justified in light of the likelihood that failed asylum-seekers will abscond before removal from Australia. In addressing the UNHCR Ministerial Council, Minister Ruddock has argued that the failure to return rejected asylum seekers “perpetuates incentives for abuse of the asylum system”. [96]

However, Australia’s policy response to this problem can be contrasted to the approach of other countries. In the USA, several alternative programmes involving community supervision have achieved high rates of compliance and have reduced the expense of detention, while being far more humane and allowing many asylum-seekers to avoid the pain of detention. [97] Furthermore, other countries have addressed this concern with detention only at particular periods during the determination process and/or the use of the numerous other mechanisms of supervision. For example, in Sweden, freedom of movement is restricted to having to stay in a designated municipality. [98] Removal of failed asylum seekers has been facilitated by the use of individual case workers, and the use of coercive measures is rarely necessary. [99]

It is clear from the above discussion that the regime of detention as it applies in Australia is entirely disproportionate to these three legitimate concerns – mandatory detention is by no means a necessary human rights incursion balanced against a greater good. How then to explain Australia’s steadfast adherence to these expensive and unnecessary human rights abuses? Karen Musalo has observed that across countries that employ some form of detention, there is another, often unstated, rationale for it – deterrence. [100] In Australia, far from being unstated, the pursuit of deterrence openly dominates debate over refugee policy. [101]

(ii) Deterring the Queue-jumpers and Forum-Shoppers

“We recognise that the asylum seekers covered by this bill are effectively jumping the queue…In many cases, they have ignored a decision of the UNHCR in another country and they have come to Australia seeking to try again. This is referred to as forum-shopping. By currently allowing them access to our protection, we are discriminating against all other legitimate refugees and asylum-seekers who are following correct procedures.” – Federal Immigration Minister Philip Ruddock [102]

A recurrent and overarching theme has emerged in the Australian government’s response to asylum-seekers and refugees over the past five years, and that is the concern that the refugee system is somehow being abused by onshore arrivals, with no grounds to claim protection. Onshore arrivals are constantly subject to attack from the government and the media for not having pursued “proper channels”. These asylum seekers are commonly portrayed by the Federal Immigration Minister himself as wealthy and unscrupulous, seeking a migration outcome rather than asylum, destroying their documentation, jumping ahead of more deserving refugees patiently waiting in overseas UNHCR camps to be chosen by Australia and “…travel[ling] through a variety of countries before making a claim of convenience in [Australia]” [103] . They are described as illegal immigrants, “…plainly seeking to use the generosity of Australians, not concerned about the laws of this country” [104] and aided by judges who grant refugee status to those who are not “bona fide” refugees at all [105] .

The inference is clear: these non-citizens do not deserve to call upon human rights safeguards. A powerful sentiment has taken hold that these “illegals” deserve to be turned away or locked up. In its most sanitised form, the sentiment is presented thus:

“Treating refugees differently depending on whether they arrive lawfully or unlawfully does not mean we are penalising unauthorised arrivals. What it does mean is that we are being more generous in cases where people play by the rules of the international protection arrangements and where they comply with Australia’s laws”

– Phillip Ruddock, Federal Minister for Immigration [106]

The rhetoric accompanying developments in Australia’s refugee policies reveals that deterring onshore asylum seekers is the central reason underlying Australia’s disregard for their human rights. [107] One of many examples is this statement by Prime Minister John Howard: “We have to redouble our efforts to make it less attractive to come to Australia…” [108] . Australia’s continued adherence to mandatory detention, its novel policies in the Pacific and its TPV system are best explained by the belief that they make Australia a relatively unattractive destination for asylum seekers. The Australian government hopes for notoriety; hopes that it will be perceived as tough and unwelcoming. The plight of asylum-seekers either in Australia or attempting to reach Australia is even advertised in overseas refugee camps, alongside the perils of Australia’s deadly snakes and crocodiles, accompanied by the warning “pay and people smuggler and you will pay the price” [109] . In the words of Pickering and Lambert: “Australia now operates a refugee policy that assumes the refugees can and should be effectively deterred from both claiming and gaining refugee status.” [110] .

(iii) Evaluating the deterrence rationale

Claims that the refugee protection system is being abused by onshore arrivals in Australia are of dubious worth. Foremostly, these asylum seekers are in the vast majority found to be refugees. As such they have pursued a method of applying for asylum protected by the Refugee Convention, which provides that refugees are not be punished for illegal entry if they come directly from a territory where their life and freedom was threatened, provided that they present themselves to the authorities without delay and show good cause for illegal entry. [111] UNHCR has interpreted “coming directly” means coming either from the country of origin or a third country where protection or safety could not be assured [112] , which would appear to cover Indonesia (the main transit point for boat arrivals), which is not party to the Refugee Convention. It has further been argued by Professor Goodwin-Gill that brief transit through other countries does not negate the requirement of coming directly. [113] Additionally, UNHCR Guideline 2 states that in exercising their right to seek and enjoy asylum per Article 14 of the Universal Declaration of Human Rights, asylum-seekers are often forced to arrive on foreign territory illegally and thus refugees will often have good cause for lacking documentation based on the circumstances in which they flee. [114]

Often access to the UNHCR closer to the refugee’s country of origin may be impossible or impractical – there is no orderly queue for asylum seekers to join either in countries of persecution or at the border. The situation in overcrowded refugee camps in poorer countries is often unsafe and corruption is certainly present. [115] Rather than a queue, a better description would be a “refugee heap” [116] , from which industrialised countries pick and choose. And if onshore refugees are effectively depriving offshore refugees of protection, this is the direct result of the Australian Government’s policy of linking the two quotas. Moreover, even if some of these asylum seekers are eventually found not to meet the definition of refugee as applied in Australia, this does not mean that they have not suffered human rights abuses nor that they have left a safe and welcoming homeland. Failure is “commonly just a matter of degree” [117] and to ascribe wilful deceit on the part of failed asylum seekers is inaccurate and unfair.

One valid concern surrounding the arrival of onshore asylum seekers are the practices of ‘people smugglers’. Many asylum seekers have reported exploitative practices and false promises, as can be expected in an area where costs are high and misinformation is rife. Yet, as Andreas Schloenhardt argues, “the migrant trafficker exists where legal ways of cross-border migration are denied to people willing or forced to move abroad” [118] . Many asylum-seekers are grateful to those who provided them with the false documentation and tickets required to escape from persecution. It must be remembered that the Refugee Convention protects against refoulement, but places the onus on the refugee to reach safe territory so that this protection is actually meaningful.

In the context of boat, as opposed to plane arrivals, there is a humanitarian issue to be addressed. The boats which ferry asylum-seekers to Australia from Indonesia are often dangerously un-seaworthy and heavily overcrowded, and as a consequence, hundreds of asylum seekers have died making the journey to Australia. The construction of the “Pacific Solution” after the Tampa affair was specifically concerned with the issue of boat arrivals. The interception, or prevention, of these sea voyages will certainly save lives in the long run. However, the Australian government could equally achieve this result by accepting more refugees processed by the UNHCR in Indonesia, or by bringing intercepted asylum seekers to Australia instead of “declared countries”. This is precisely what was recommended by the Senate Committee that examined the “Pacific Solution” legislation. [119]

The international refugee protection system is under significant pressures from unprecedented movements of people across the world and States should act to preserve a system that ensures the particular needs of refugees are met. Exploitative people-smuggling practices, which can result in tragedy, should be addressed. However, the target of the Australian government are the asylum-seekers themselves. Australia has sought to attack the problems faced by the system by attacking the very refugees for whom the system exists.

In any case, despite the high human cost, there is little evidence that deterrence is effective. The Australian government’s misplaced focus is on the pull factors drawing asylum-seekers to Australia, over the more significant push factors that prompt the journey, even in the face of extreme danger and uncertainty. In the words of Crock and Saul; “Short of terminating refugee processing altogether, even the slimmest hope of protection – including that offered by the Pacific Solution – is enough to motivate asylum seekers to risk their lives to reach safety”. [120] This makes deterrence a particularly insidious motive. If the Australian government continues to be determined to stop unexpected asylum-seekers, this objective will only support further abuses of the rights of refugees and asylum-seekers.

The logic of deterrence runs contrary to the very spirit and purpose of the Refugee Convention. It bypasses any notions of international law by treating asylum seekers as a domestic problem. It involves a complete disregard for any notion of Australia’s shared international responsibility for protecting those who suffer from persecution. While purportedly defending the system from abuse, the Australia government has in effect undermined the integrity of the system, which, in the words of Goodwin-Gill, “depends on fairness and efficacy not deterrence, detention or disproportionate penalties” [121] .

The most disturbing element of Australia’s pursuit of deterrence is that it allows the mistreatment of human beings to be rationalised as a means to an end. As such, the objective of deterrence is untenable in human rights discourse. In the words of Peter Mares, “the more we seek to deter asylum seekers and refugees through harsh treatment, the more Australia comes to resemble those repressive nations from which they flee.” [122]

(b) Politicising the Treatment of Asylum-Seekers

“The fact is that it is not politically a smart thing for any government or opposition to be supporting illegal immigrants.” [123] – Con Sciacca, Former Shadow Immigration Minster.

A political understanding of the asylum seeker issue in Australia is fundamental to explaining systemic disregard for their human rights, in pursuit of an objective that is itself contrary to human rights, where evidence strongly suggests that this objective is not being met anyway. For there is a second significant element to explaining the treatment of asylum seekers – one that has little to do with actually safeguarding the refugee system. Mistreatment of asylum seekers in the name of deterrence is an electoral winner.

When the Australian government refused to let the MV Tampa being its load of rescued asylum seekers into Australian waters, public opinion polls showed that between eighty to ninety per cent of Australians supported the government’s stance. Opinion polls on mandatory detention and the Pacific Solution similarly endorse the government’s treatment of asylum seekers. The perceived weight of public sentiment against asylum seekers has quelled any effective opposition to the Government’s policies from the Australian Labor Party, which has in turn prompted internal dissent within Australia’s traditionally left-liberal political party.

Various explanations have been offered as to why the harsh stance on asylum seekers has been so politically favoured in Australia. In addressing the UNHCR Ministerial Council, Immigration Minister Ruddock has explained popular hostility thus: “asylum systems are beset with identity, nationality and claims fraud of such dimensions that the community’s willingness to support refugees is being eroded”. The Australian Government’s position is that “ordinary Australians” dislike the abuse of the refugee system engaged in by onshore asylum seekers. In fact, queue jumping is “un-Australian” [124] . Prime Minister Howard has frequently reiterated that the government is merely giving force to the ordinary Australian’s desire to make sure such conduct is punished, or at least, is not rewarded.

But do the Australian population really know what is being done in their name? Julian Burnside argues that such heartless, brutal and immoral policies have survived principally because the government has prevented the truth from reaching the broader public. [125] He accuses the government of lying to the public and the press and making it virtually impossible for them to see the detention centres and offshore prisons for themselves. HREOC has accused the Australian government of providing ‘an endless stream of propaganda’ about asylum seekers. Media reports on the conditions in detention centres have varied incredibly, with some newspapers describing detention centres as luxury holiday camps. Many Australians also do not know the extent of refugee flows the world over, and how small a burden Australia bears, believing instead that Australia is being especially ‘targeted’. [126]

Pickering and Lambert present a more complex version of this argument, namely, that the government and media rhetoric serves to maintain a social world in which the mistreatment of the asylum seeker is not so much unknown, but is ignored or normalised. [127] They argue that the government has represented onshore asylum-seekers as implicated in a series of illegal activities, including serious criminal conduct, and associations with the criminality of people smugglers. [128] This portrayal of the asylum seeker as a deviant, who is illegal by his or her very presence, plays a important role in expl