Indefinite Suffering: Australia’s Refugee Policy Continues To Draw Criticism

Despite sustained international criticism, Australia’s federal government has maintained a dehumanizing refugee policy which has blindly perpetuated the suffering of persecuted men, women, and children. Almost 8 years ago, the United Nations Committee Against Torture urged Australia to end its mandatory detention of all asylum seekers, a practice which allegedly enabled the mental, emotional, and physical abuse of detainees. Since then, four different Prime Ministers – Tony Abbott, Malcolm Turnbull, Scott Morrison and Anthony Albanese – have all maintained the policy, while failing to reform systemic flaws in the nation’s approach to asylum seekers.

In 2001, Australia’s Government under John Howard announced the Pacific Solution; a policy which oversaw the transport of asylum seekers to detention centres throughout the Pacific, preventing them from ever reaching continental Australia. Such centres were established on both Christmas Island and Manus Island in Papua New Guinea, with an additional facility in Nauru. Attempting to justify the position, Howard had declared at the time, “we will decide who comes to this country and the circumstances in which they come.”

In the earliest months of the program, facilities were so poorly prepared they were unable to provide adequate “shelter, water, food, and sanitation.” According to Dr. Caroline Fleay, a lecturer at the Centre for Human Rights at Curtin University, “Asylum seekers were also denied access to outside information and any means of communication in those early months.” In spite of this reality, the policy of mandatory detention continued until the end of Howard’s term in office in 2007. And, by 2013, his successor Kevin Rudd had formed a new agreement known as the PNG Solution, which ensured all “unauthorized Maritime arrivals” were again detained on Manus Island. At the time, Rudd resolved, “asylum seekers who come here by boat without a visa will never be settled in Australia.” 

In a moment of irony, the, then opposition member Scott Morrison, a man who would later continue the offshore detention policy as Prime Minister himself – expressed skepticism over the viability of the plan. Morrison told the Sydney Morning Herald, “there is currently not the capacity for people to be transferred to Papua New Guinea in the numbers that are arriving.” 

By the end of 2013, the Rudd Government was replaced by the more conservative Abbott Administration. During this time, Operation Sovereign Borders was launched, with the aim of ending all maritime arrivals of asylum seekers. This policy, colloquially known as the campaign to “Stop the Boats,” has had a lasting legacy on Australia’s international standing and continues to shape its policy towards asylum seekers.

In 2015, Abbott’s Minister for Immigration and Border Protection, Peter Dutton, announced that 429 people had been prevented from arriving in Australia under the Operation – most being ‘turned back’ to either Sri Lanka or Indonesia. The policy was broadly successful in preventing the arrival of asylum seekers to Australia via maritime travel. 

This process in conjunction with mandatory detention in off-shore processing centres has been widely criticized by both the United Nations and Australia’s international allies. The UN has repeatedly urged Australia to amend its detention practices, emphasizing the international expectation that asylum seekers be provided humane treatment. The body also urged Australia to reform its system for processing detainees; in some instances, refugee status claims took years to be reviewed. As Nick Miller wrote for The Age, “Under the Convention Against Torture, Australia must prevent torture and other acts of cruel, inhuman, or degrading treatment or punishment when people are imprisoned or detained.” 

In a report which considered the repercussions of Australia’s detention of asylum seekers, the committee also noted, “The combination of … harsh conditions, the protracted periods of closed detention, and uncertainty about the future reportedly creates serious physical and mental pain and suffering.”

However, the consequences are not merely humanitarian; the policy has sustained tensions throughout the Pacific community. One member of the Indonesian parliament described Australia’s actions as “offensive,” while Indonesian Navy officials suggested that “forcing the boats back… unfairly shift[ed] the burden of dealing with the asylum-seeker problem back on Indonesia.” 

Indeed, the very outworks of the policy have risked jeopardizing the region’s equilibrium. In four separate instances, the Australian Navy violated Indonesia’s sovereignty by crossing into its maritime territory while attempting to prevent the arrival of asylum seekers. 

The converging risks presented by this policy – humanitarian abuse and geopolitical instability – emphasize the inherent flaws within Australia’s management of asylum seekers. Too often, political decisions have been made in a manner which overlooks the very human toll of ongoing detention. At the same time, it has also been observed that Australia has failed to demonstrate that its policy of turning back asylum seekers did not result in asylum seekers being returned to countries where they faced a “substantial risk of torture.” 

Consequently, it is vitally important that Australia amend its current detention process in order to provide an expedient and compassionate pathway for asylum seekers to demonstrate the threats they face while ensuring they are given every opportunity to secure a safe and stable future. 

Indeed, it is arguable that Australia is obligated to do so under their legal responsibilities in both domestic legislation and international treaties.

The right to liberty and to seek asylum are both human rights. However, the 2004 ruling by Australia’s highest court in the case of Al-kateb v Godwin demonstrated the difficulty in preserving these standards. Here the court upheld that it was legal for the Australian government to detain a person indefinitely. 

In his judgement, Judge McHugh explained that the Court was not empowered “to determine whether the course taken by parliament is unjust or contrary to basic human rights. The function of the courts in this context is simply to determine whether the law of the parliament is within [its constitutional] powers.”

Australia is a signatory to the Convention Relating to the Status of Refugees, however, in 1992 the Government amended The Migration Act 1958 (Cth) to require any non-citizen in Australia without a visa to be detained, essentially legislating the mandatory arrest of all asylum seekers. Despite this, Article 17 of the Convention states; “The Contracting State shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment.” 

In 2012, 11 years after the Howard Government moved to process offshore in the ‘Pacific Solution,’ a special visa was introduced which permitted residence in Australia, while illegally prohibiting asylum seekers from working. Reflecting on the legality of the visa, Professor Penelope Mathew of the Australian National University College of Law declared, “I have no hesitation in saying that to deny a recognized refugee the right to work is a breach of article 17 of the Refugee Convention and a breach of article 6 of the International Covenant on Economic, Social and Cultural Rights.” As not only a party to, but a proponent of this treaty, Australia’s position reflects a serious failure on the part of its Parliament and highlights the difficulties associated with enforcing international legal frameworks designed to protect human rights.

The cost of this policy is deeply human; families are detained and separated, mental health is jeopardized, and hope itself is diluted and diminished. There is little doubt that Australia’s current system has failed to properly preserve the rights and dignity of vulnerable men, women, and children. And while it is undoubtedly true that Australia cannot sustain a policy which permanently houses all refugees who seek to reach the nation across the Pacific, its inability to reform cruel and demeaning laws is unacceptable. Australia must fulfill its international obligations by ending the systems of detention which place asylum seekers at risk of even more significant trauma and harm.


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