Let’s begin with the international Refugee Convention to which Australia is a party.
The Convention provides that a person may seek asylum when they flee from their country in genuine fear of being persecuted for reasons of race, religion, nationality, social group or political opinion. The fear must be such that the person is unable to return home.
The Convention is crystal clear on how a Convention country should treat a person claiming asylum on these grounds. It must not impose a penalty on a person because she entered its territory unlawfully from a country where her life or liberty was threatened. That is so long as the person surrenders to authorities and shows cause why her illegal presence is justified.
A Convention country, like Australia, must provide people seeking asylum with a fair opportunity to submit relevant evidence, to be represented and to appeal to a properly constituted tribunal in pursuit of their claim for refugee status.
The Convention states that restrictions on the movement of such people must be minimal. So, they may be detained only for so long as it takes to regularise their status in the receiving country and to procure resettlement there or elsewhere.
So, how do the recent government plans stack up? The PNG and Nauru agreements impose a severe penalty on asylum seekers who arrive after a journey by sea. In the PNG case they will be detained and expelled to a racially disharmonious, often violent and poverty-stricken country without the capacity to exercise any Convention rights in Australia, or to resettle here. Nauru is hot, its landscape is lunar and its phosphate wealth was recklessly dissipated long ago, leaving it an impoverished client state of Australia.
Australia will not provide a fair hearing, indeed any hearing before a properly constituted, independent tribunal even though a person’s life and liberty may be at stake. Now, Scott Morrison is bent on abandoning all mechanisms of judicial appeal even for those people who arrived before the new ‘Pacific Solutions’ were introduced.
No one knows how long Pacific detentions will last. If current practice on Manus Island or Nauru is any guide, asylum seekers could sit in detention for years without their cases being determined. If their refugee status is upheld, they will be stuck in a country where their life chances will be very severely limited.
It may be objected that Convention rights will be afforded to asylum seekers in PNG and Nauru. The argument is flawed for three reasons.
The written agreements between Australia and the two pacific countries say nothing about the standards in relation to which people seeking asylum will be processed. It is no part of an agreement for example to insist that the processing must meet accepted international human rights standards.
Processing will be conducted by PNG and Nauruan officials. However, the UNHCR has reported that that there is no effective statutory framework in either country governing the proper conduct and fairness of refugee determination. Widespread corruption also exists at many levels of the islands’ administrations.
Legal protections are not mentioned in the agreements, apart from vague references to PNG removing its reservations to the Refugee Convention and to the ‘guiding principles’ of Nauruan domestic law. Even then, it is difficult to think that processing will be independently conducted according to international law and procedure. For example, PNG is a country where only last year the Chief Justice was dismissed by the government and then charged with sedition after handing down a decision with which the Prime Minister disagreed.
The Attorneys-General, Mark Dreyfus and George Brandis, have assured Australians that the PNG agreement complied with Australia’s international legal obligations and Australian law. They are misleading about international law. They may, however, be right about the domestic position.
The High Court struck down the Malaysia solution because Malaysia did not satisfy human rights criteria set down in the Migration Act 1958. It had no domestic laws defining its assessment and protection obligations. It had no effective procedures in place to evaluate refugee claims. Its commitments under the arrangement with Australia were not legally enforceable. PNG and Nauru also fail these criteria.
The difference now however is that Chris Bowen, when Labor immigration minister, stripped these human rights protections from the Act after the Malaysian agreement fell.
So, the Act provides that the sole condition for the exercise of the minister’s discretion to designate a country as a ‘regional processing country’ is that the minister thinks it in the national interest to do so. The legislative grant of this sweeping discretion was designed to render a ministerial designation immune from review by federal courts.
Just two months ago, I was teaching law to refugee students on the Thai-Burma border. These are young Burmese who fled from the genocidal behaviour of the military regime. The stories of their plight and escape are harrowing and tragic. In too many instances they or family members had been tortured, arbitrarily detained, ethnically cleansed, discriminated against or sent to their deaths.
Their abuse is now compounded in Thailand. Not one of my students had been detained in refugee camp for less than seven years. I have had students who have been detained for 25 years.
They have no prospect of release because the Thai government ruled that no person arriving in camp after 2004 will be processed for resettlement. Facing indefinite detention in diseased and rotten conditions it is no surprise that parents and children there, and elsewhere, might look to Australia for asylum. There is no orderly queue.
The students are brilliant and resilient. Education gives them hope – against hope. One hundred and forty thousand refugees are similarly detained in camps on the Thai border. Almost 80,000 sit on Malaysia’s boundary.
What our national debate misses is the scale of the global refugee tragedy. On current UN estimates there are nearly 12 million genuine refugees globally. Twenty-four million people are internally displaced. Those who arrive here are but drops in an engorging sea of desperation.
Fundamentally, the problem is not that Australia puts ‘sugar on the table’ as is sometimes so trivially observed. It is that push factors are so strong - and likely to strengthen further with imminent, intensified Middle East conflict - that flight from persecution becomes ever more imperative at the very same time as conditions in transit countries drastically deteriorate.
In the midst of this crisis, our government and opposition refuse their international responsibility and treat people, like my students, with cruel and politically opportunistic disregard.
Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University.