July 19th 2020 marked seven years since Australia reinstated its cruel policy of transferring asylum-seekers who arrive on boats to processing centres in Nauru and Papua New Guinea. This ‘Pacific Solution’ was first introduced by the Howard government in 2001, ostensibly to discourage refugees from undertaking dangerous journeys by sea and to prevent trafficking. To date, Australia has transferred more than 3,000 asylum-seekers to the islands.
In fact, the policy appears to be rooted in Australians’ attitudes towards asylum-seekers arriving on boats. People tend to be sympathetic to those who arrive through ‘appropriate’ channels, but consider those arriving on unauthorised boats to be ‘queue jumpers’. Thus, the offshore policy was based on a no-advantage principle that excludes these arrivals from the opportunity to achieve permanent protection. Further, researchers at Monash University showed that many Australians feel that asylum-seekers arriving on boats are violating their sovereignty; that is, ‘these asylum-seekers are choosing us rather than we are choosing them’.
In 2008, Rudd’s government repealed the legislation on the basis that it was inhumane. However, it was revived by Gillard in 2012 as the Pacific Solution Mark II. This iteration included more stringent measures, for example, the establishment of Operation Sovereign Border in 2013 with its dehumanizing slogan ‘Stop the Boats’ and videos aimed at deterring potential arrivals.
Continuing the hard-line stance, in 2015 Turnbull’s government passed the Australian Border Force Act. The objective of this law was to maintain secrecy on government policies concerning boat arrivals. This was prompted by criticism of the offshore policy from foreign media and governments. Thus, the law limits the disclosure of information related to immigration, quarantine and border control, and non-compliance may lead to two years’ imprisonment.
Australia’s actions also impact the island nations that house the asylum-seekers. In a significant 2013 ruling, the Supreme Court of Papua New Guinea held that the detention centres on Manus Island violate Article 42 of its Constitution, which guarantees the fundamental right to personal liberty. Moreover, the Court pointed out that Papua New Guinea has significant reservations regarding the detention centres’ compliance with the 1951 Refugee Convention. Their concerns included the violation of the rights to education and freedom of movement, and the contravention of the standard of non-penalization of refugees for illegal entry.
Additionally, the United Nations High Commissioner for Refugees (UNHCR) stressed that Papua New Guinea is in violation of its obligation not to force asylum-seekers or refugees to return to a country where they may be persecuted. This ‘non-refoulement’ obligation is fundamental in refugee law and may be violated where access to refugee status determination procedures is limited. The UNHCR also pointed out that detention standards on the island do not conform to international guidelines and that detention is not based on proportionality and necessity, contravening Article 9 of the International Covenant on Civil and Political Rights.
Moreover, Australia has repeatedly turned a blind eye to the inhumane conditions in its offshore centres. For example, in 2016, leaked documents known as the ‘Nauru Files’ revealed approximately 2,000 reports of the sexual abuse of children in Nauru detention centres. Reports by the Australian Human Rights Commission have observed that children in the centres are also susceptible to mental disorders and psychological or developmental distress, and that almost all children suffer from some kind of chronic illness. These traumatising conditions clearly violate the best interest principle outlined in the Convention on the Rights of the Child.
In 2019, the government extended medical protection to asylum-seekers detained in the offshore centres through the ‘Medvac’ legislation. The law allowed doctors to recommend that critically ill asylum-seekers on the islands were transferred for medical treatment in Australia. However, the law became controversial and attracted public criticism as many asylum-seekers were detained in hotels in Melbourne and Brisbane for months. Moreover, they were subjected to arbitrary full-body searches by the Australian Border Force and reported that the medical care provided did not address their often complex needs. Following the backlash, the legislation was repealed in the same year, meaning health care in the camps remains inadequate.
The International Criminal Court recently ruled that the Australian government’s offshore detention regime constitutes “cruel, inhuman, or degrading treatment” yet declined to prosecute the matter as a crime against humanity under Article 7 of the Rome Statute. In addition, the protection from arbitrary and indefinite detention is a universal human right that is clearly at risk under the ‘Pacific Solution’.
Refugee law is designed to balance the rights of asylum-seekers and the legitimate concerns of receiving countries. Discriminating against asylum-seekers who arrive on boats and detaining them in unacceptable conditions is not in the spirit of this balance. In light of all these failures and violations, the Australian government must immediately recognise its obligation under the Refugee Convention to extend the rights to health care and education, and the right to access refugee determination procedures, to all arrivals — irrespective of their means of transport.
This blog was edited on 7/9/20 to correct a sentence in the penultimate paragraph.
Thumbnail image: Welcome refugees to Australia – refugee protest march by John Englart, CC BY-SA 2.0.
Note: This article gives the views of the authors, and not the position of the Social Policy Blog, nor of the London School of Economics.
