Over the course of the last few decades, migration has widened more broadly and beyond the settlement and integration of people from foreign lands. The issue of migration has evolved to become one of the most controversial and contested debates in the modern globalised world, particularly in terms of how it affects the development of a state’s society. One aspect of migration that has put Australia in hot water (especially when Tony Abbott was Prime Minster) is its refugee policy.
For context, a refugee is defined as someone who does not want to return to their country of origin owing to a well-founded fear of persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion. In Australia alone, the government provides, on average, 23,000 protection visas annually to people in need of humanitarian assistance overseas, including those determined by the United Nations High Commissioner for Refugees (UNHRC) to be asylum seekers and displaced people.
Australia’s obligation to the Refugee Convention
Like many “upstanding” Western democracies of the modern world, Australia signed and ratified the United Nations Convention Relating to the Status of Refugees in 1951 – a key document that forms the basic rights and protocols to take when dealing with the displaced. Needless to say, it has formed the rule of customary international law and all states that are party to the Convention are expected to cooperate to ensure the rights of refugees are respected and protected. Most importantly, this binds Australia to a legal obligation to not return a person to a country where they will face persecution or serious harm. However, this hasn’t been the case, especially now with both the Liberal-National coalition government and the Labor opposition supporting tough asylum seeker policies.
Article 31 prohibits states of the Refugee Convention from imposing penalties on refugees who illegally arrive and remain in a country if they come directly from a place where their life or freedom was threatened. Moreover, international law prohibits countries from returning asylum seekers to persecution. However, the governments under the Liberal leadership (most notably, Tony Abbott and Malcolm Turnbull) have knowingly and deliberately attempted to deter asylum seekers from exercising their right to seek asylum. They have made Australia’s asylum policy even tougher after winning government in 2013, commencing Operation Sovereign Borders, which puts the military in control of asylum operations. Under this policy, military vessels patrol Australian waters and are allowed to intercept migrant boats; they may either tow the boats back to where they came from (often Indonesia, a ‘transit country’ for those wanting to reach Australia) or forcibly place asylum seekers on inflatable lifeboats that are no match for rough ocean tides. This is done even while their asylum claims are being processed.
Furthermore, the refugee crisis has been exacerbated by the permanent closure of Australia’s offshore processing facilities in Manus Island in Papua New Guinea. The closure saw around 600 men refusing to leave citing unsafe conditions for refugees outside the Centre. Though Papua New Guinea is also a signatory to the Refugee Convention, the country has taken measures to structure its own determination process; the PNG government promises this lives up to what it has agreed to under international obligation.
With the ongoing policies of Operation Sovereign Borders still in mind, in 2016 the Turnbull Government took its first step toward an even stricter asylum policy. This took the form of a change in the Migration Act, which saw the outright banning of asylum seekers and refugees who come by boat. In a speech alongside the then-Immigration Minster Peter Dutton on the 30th of October of that year, Turnbull claimed that the legislation is “compatible with Australia’s international human rights obligations”. Really?
Australia and UNCLOS – why even bother?
I refer to the Rohingya refugee crisis as an example of Australia’s policy of Operation Sovereign Borders clearly violating another international agreement, signed and ratified in 1994: the UN Convention on the Law of the Sea (UNCLOS). This Convention regulates all aspects of the resources of the sea and uses of the ocean beyond the limits of national jurisdiction, providing a foundation for the settlement of disputes between States. UNCLOS, as well as other international treaties including the International Convention on Maritime Search and Rescue, ensure a ‘master of a ship’ must go to the assistance of those in peril on the seas, unless such actions would put the master’s vessel or crew in danger. This applies to people seeking asylum in Australia who arrive by boat.
The UNHCR said that, as of 12 May 2015, in Myanmar, several hundred people had abandoned their journey in seeking a better life and returned to the country’s western Arakan state, where 140,000 long persecuted Rohingyas live in squalid camps. Twenty-six international humanitarian aid and advocacy groups said in a joint statement that people in the camps needed acute emergency assistance, with more than 70 per cent of them having no access to safe water or sanitation. However, the response to the outcry of migrants was Abbott’s infamous “nope, nope, nope”, adding that ‘If [they] want to start a new life, [they will have to] come through the front door, not through the back door’. As outlined above, Article 98 of UNCLOS details a ship’s duty to render assistance to those in distress. Abbott’s comments in response to the Rohingya asylum seekers, as outlined above, are appalling, yet they are characteristic of the dehumanising tone of the asylum seeker debate in Australia
This harms Australia’s international standing as a functioning first-world democracy which prides itself on egalitarianism and the idea of the ‘fair go’. It is embarrassing that a country of Australia’s regional power cannot live up to what it claims it stands for. In contrast, it is interesting to see Indonesia accepting asylum seekers, who come by boat, on humanitarian grounds, given that Indonesia is party to neither the Refugee Convention nor UNCLOS.
Implications for Australia – regionalism is a two-way street
Not only does the bill which Turnbull introduced to tighten asylum migration directly and blatantly contravene the Refugee Convention, it violates UNCLOS without even trying to; this will continue to hurt Australia’s human rights standing on the international stage. While finding legal and humane alternatives to the current policy is a daunting task, Australia must bring its asylum seeker policy in line with international law. Australia cannot continue to be seen to agree to uphold the rights, freedoms and values of a liberal democracy, then shun those who need its help most.
Moreover, by turning its back on refugees, especially those on its doorstep, Australia has harmed its ambition for regional cooperation within Southeast Asia. This can be seen in attempts to integrate into the Association of Southeast Asian Nations (ASEAN) with initiatives such as the Asia-Pacific Economic Cooperation (APEC) and policies that are geared towards economic and military agreements and collaborations. Additionally, the “Australia in an Asian Century” white paper details Australia’s relationship with the Asian continent and its need to form bilateral links with Asian nations, due to its geographic position in Asia.
If Australia truly belongs the Asian continent and is serious about being a cooperative partner in the “Asian Century”, then the government cannot afford to be fickle and claim to be in Asia while not abiding by the rules. Australia cannot claim to be Asian when it is needed or when bilateral talks come around, then reduce the regional challenge of asylum seekers to a unilateral policy of deterrence. All this does is illustrate to the rest of the continent, and the world, that Australia follows a politically self-serving and short-sighted strategy, which avoids the burden of working cooperatively on regional solutions.
The Australian government acknowledges that singling out a particular group for a permanent immigration ban could violate their right to protection under international law and freedom from discrimination. However, they seek to defend their strict, controversial asylum seeker policy on the basis that the differential treatment is for a “legitimate purpose”, based on relevant and objective criteria, and that it is reasonable and proportionate.
This is wrong. A policy that violates refugee and human rights law cannot meet these requirements. The issue of refugees is a tough and complex conundrum that has no easy solution. But what the government can do is honour the international obligations that previous governments have knowingly signed up to, in the interest of advancing Australia’s position as a first-world democratic nation that respects human rights.
 Commonwealth Consolidated Acts, Migration Act 1958 Section 5H Meaning of Refugee.
 UNHRC Global Trends 2017 – How Australia Compares With the World
 UNHRC Convention and Protocol Relating to the Status of Refugees
 Article 31, UNHRC Convention and Protocol Relating to the Status of Refugees
 BBC, Australia Asylum: why is it controversial?
 Sydney Morning Herald, “’Nope, nope, nope’: Tony Abbott says Australia will not resettle refugees in migrant crisis”, 21 May 2015.
Cover image from The Guardian.