Australia and asylum seekers: where do the Rudd reforms leave us?

After years of grappling with asylum seeker policy, Kevin Rudd has announced that boat arrivals without visas will now be resettled in PNG. AAP/Dan Peled

Most Australians will judge Kevin Rudd’s newly announced plan to deny asylum seekers who arrive by boat the right to settle in Australia to be a success if it leads to a reduction in the number of boat arrivals over time.

The move, seen by many as politically motivated, was announced by prime minister Kevin Rudd at a press conference alongside the PNG prime minister Peter O'Neill.

Rudd says the range of measures at a national, regional and international level will deal with “the scourge of people smuggling” while complying with Australia’s international protection obligations.

My focus is on Rudd’s promise that the goal of stopping the boats will be achieved within and not outside the framework of Australia’s international legal obligations. Unfortunately, that is a promise which is already being broken and will most likely be broken in yet more ways as the announced measures are rolled out.

At the national level, a review is being undertaken of Australia’s refugee status determination procedures. This review was recommended by the Houston Panel and was already underway prior to the prime minister’s announcement. The not-so-secret aim is to change assessment procedures in ways which will bring down refugee acceptance rates.

The point which needs to be made here is that the United Nations’ refugee convention obligations are owed to persons who in fact fall within the convention’s definition of “refugee”, whether or not they have been formally recognised as such by a state or other authority. If, as seems likely, existing procedural safeguards are stripped away - making our determination system less reliable - there will be incorrect rejections. The necessary consequence will be that Australia will fail to comply with its refugee convention obligations towards those refugees it fails to identify.

Kevin Rudd says his changes to asylum policy are aimed at ending the ‘scourge of people smuggling’. AAP/Made Mahardika

The Regional Resettlement Arrangement (RRA) between Australia and PNG adds to a confusing array of arrangements which subject different asylum seekers to different treatments depending on the exact mode and date of arrival.

Asylum seekers who arrive in Australia by air have always had the right to apply for a protection visa. If their application is rejected at first instance by a Department of Immigration decision-maker, they have access to merits review by the Refugee Review Tribunal. They also have access to judicial review. While awaiting a decision on their application, they usually have the right to work.

Apart from a period during which the Howard government implemented a temporary protection visa regime, successful protection visa applicants receive permanent visas carrying a large array of rights including the right to family reunion.

In September 2001, the Howard government procured amendments to the Migration Act which prevented unauthorised boat arrivals entering Australia at an “excised offshore place” from applying for any Australian visa except with the permission of the immigration minister. The amendments also enabled the taking of such individuals to Nauru and PNG pursuant to Pacific Solution “Mark I”.

When it took office, the first incarnation of the Rudd government brought Pacific Solution Mark I to an end. It started processing the protection claims of unauthorised boat arrivals in Australia but pursuant to a separate and procedurally inferior process to the protection visa application process. Those found to be refugees were then given Ministerial permission to apply for a protection visa.

In March 2012, in the wake of a couple of key High Court losses (M61 and M70), the Gillard government announced that it would no longer have a parallel processing system for unauthorised boat arrivals. Instead, it would lift the statutory bar on visa applications as a matter of course, enabling such individuals to apply for a protection visa from the outset.

In the wake of the Houston report, the Gillard government announced on August 13 last year the commencement of Pacific Solution “Mark II” and shortly thereafter introduced the legislative amendments necessary to give it effect. Most unauthorised boat arrivals after this date became exposed to the possibility of being taken to Nauru or PNG for processing. From June 1 this year, “most” became “all” because in line with another Houston report recommendation, the Gillard government introduced an extension of the statutory bar on visa applications to all unauthorised boat arrivals regardless of place of entry.

Are Kevin Rudd’s reforms simply Pacific Solution ‘Mark 3’? AAP/Mark Cairn

Individuals who arrived in Australia by boat between August 13, 2012, and July 19, 2013, may have their protection claims processed in Australia. But as with boat arrivals prior to March 2012, this processing, which has only recently commenced, will be done under a separate and procedurally inferior system to the protection visa application process. In order to ensure that they get “no advantage” over other asylum seekers in the region, these individuals will be kept on a bridging visa for possibly years - even after they have been recognised as refugees - until a place becomes available in Australia’s regular refugee and humanitarian program.

While on a bridging visa they will not have the right to work or the right to family reunion and their social assistance entitlements will be minimal. In a consensus report, the Parliamentary Joint Committee on Human Rights (made up of five Labor and five opposition parliamentarians) expressed concern that this arrangement will place Australia in breach of some of its obligations under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

Boat arrivals in the August 13, 2012 to July 19, 2013 cohort who are taken to Nauru or PNG will have any protection claims determined pursuant to the laws and procedures of the country concerned. In a report released on July 12 this year, the United Nations High Commissioner for Refugees described the multiple deficiencies of PNG’s current law and procedure. The bottom line is that PNG may well fail to identify individuals who are in fact refugees and may, therefore, end up breaching the refugee convention prohibition on refoulement (the return of refugees to a place of persecution). If this happens, Australia will be guilty of indirect refoulement. This concern also applies in respect of Nauru’s equally deficient law and procedure.

Australia has made commitments to Nauru and PNG that it will ensure that asylum seekers in the August 13, 2012, to July 19, 2013, arrival cohort who are found to be refugees will be resettled somewhere other than Nauru and PNG. Australia has also indicated that the place of resettlement may well be Australia. However, for the purpose of giving effect to the Houston Panel’s “no advantage” principle, the Australian government aims to ensure that these individuals will not obtain access to resettlement more quickly than they would have obtained it elsewhere in the region.

The Houston Panel on asylum seekers recommended the introduction of the ‘no advantage’ principle for arrivals by boat. AAP/Alan Porritt

On the basis of multiple reports by government, inter-government and non-government agencies, it is fair to say that it is very much open to question whether the treatment they receive in Nauru and PNG in the meantime will comply with international human rights standards. The Parliamentary Joint Committee on Human Rights took the view that international legal responsibility for any shortcomings would be borne by Australia as well as by Nauru or PNG as the case may be.

Finally, there are the post July 19, 2013, unauthorised boat arrivals. Those arriving by boat in the next 12 months, which is the initial period specified in the RRA, and possibly thereafter, will be subject to having their protection claims processed in PNG pursuant to its law and procedure. Rudd has indicated that the Australian government intends to address the deficiencies identified in the UNHCR report mentioned above, which relate not only to claim processing but also standards of treatment.

There will be an opportunity to address these concerns formally in a new Memorandum of Understanding with PNG which will replace the one negotiated by the Gillard government in 2012. However, practice is, of course, another matter. If those in the post-July 19 arrival cohort are found to be refugees, they will be resettled in PNG or another “participating regional, including Pacific Island, state” but not in Australia.

The point of outlining the multiple arrangements which together make up Australia’s current regime for dealing with asylum seekers is to demonstrate that a refugee’s chances of being correctly identified as such, receiving human rights compliant treatment, and accessing a durable solution vary dramatically depending on the mode and date of their arrival in Australia. This differential treatment of individuals according to their arrival status necessarily amounts to a breach of Australia’s non-discrimination obligations under the Refugee Convention and other human rights treaties, unless it can be objectively justified as being rationally calculated to achieve a legitimate aim and as being proportionate to that aim.

In my view, it can never be legitimate to use one group of people (asylum seekers arriving in Australia) as mere means for sending a message of deterrence to another group of people (asylum seekers who may come to Australia) because it involves implicit repudiation of the fundamental premise of international human rights law which is the inherent and equal worth of every human being. Even if the aim is legitimate, the negative impact on the individuals being used to send the deterrent message is so great that it cannot be described as proportionate to the aim. The Parliamentary Joint Committee on Human Rights also expressed the concern that Australia is breaching its non-discrimination obligations for the second reason I have given though not the first.

At the time of writing, 81 people fell into the cohort covered by the RRA. Australia and PNG share the hope that the prospect of resettlement in PNG rather than Australia will be sufficient to deter future boat arrivals such that processing and resettling those covered by the RRA will be manageable for PNG, not to mention affordable for Australia which is picking up the tab. I share the scepticism of very many commentators about whether this hope will be borne out.

Very sensibly, though, the prime minister is not actually pinning all his hopes on the RRA. At Friday’s press conference Rudd mentioned other steps being taken at the regional level and also announced that Australia would be convening “an international conference of relevant transit countries and destination countries within the framework of the refugee convention” to deliberate on how to improve “the adequacy of processing systems and centres around the world” and also how to have “a better arrangement for Australia, Canada, the US and other countries to deal with the resettlement burden around the world”. These are worthy aims.

Likewise, the government’s pledge to “consider progressively increasing our humanitarian intake towards 27,000 as recommended by the Houston Panel” if the number of unauthorised boat arrivals decreases significantly is very welcome.

The problem is that the Australian government seems to think that taking on a fairer share of the global refugee burden vis-à-vis other states is substitutable for meeting Australia’s international legal obligations in respect of individual refugees. That is simply not true.

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