Legal Boundary of Offshore Processing Regime

Friends, this research article which written in 2007 had outlined the legal limits of the offshore detention. The article seeks to distinguish, within public debates about refugees, between Australia's international legal obligations vs. aspirational adherence to 1951 Refugee Convention etc.. The aspirational adherence to Convention basically means that the general public or human rights campaigners say the government "ought to" do in regards to refugees. On the one hand, Australia's international legal obligation means the government may get legal liabilities, in forms of official condemnation by UN or be sued by the refugees.

Australia is the signatory to 1951 UN Refugee Convention and its 1967 Protocol, and the ICCPR. Ordinarily, we can expect the conservative LNP government(s) to seek out a "minimal adherence" to international obligations. At worse case scenarios, such government(s) may exploit legal loop holes and to play "cat-and-mouse" legal games with the refugee victims (& supporters :-) :-)).

My observation is that, most international agreements and UN treaties, like that of climate change global policy actions etc.., are "aspirational" in nature. Most of them may not be legally binding. It is wrong therefore, in the first place, to look at them as a strictly codified "laws". The UN Refugee Convention, for example, rely on the government(s) to positively adhering to its text and contexts, to interpret in favour for protecting refugees. In any case, there are important points that being identified here, where as the current LNP Government(s) can be seeking to minimally observe the Refugee Convention.

Remember this article is written in 2007, and therefore needs to look in the historical contexts. This is an era before current offshore detention regime (s 198AHA, 2012-->2015+) coming into effect. Consideration for Bomana must have to be made under s 198AHA.

(I) OFFSHORE PROCESSING, LEGAL OR ILLEGAL.

"10. The removal of refugees to safe third States is not prohibited by the Convention, and is arguably acceptable at customary international law. Such a concept has been referred to by the UN General Assembly, and has been applied by the United States of America and by the European Union, whose Dublin Convention expressly permits processing in safe third countries. The majority view is that where third States are in fact ‘safe’, processing refugees in these States is consistent with international law."

What it is saying was that, as long as government can "claim", and continue able to claim, it is "processing" the asylum applications, it may considered "legal". Further, it notes:

"15. .... This is of course a matter of interpretation, and Australia would certainly have a strong argument that a processing scheme for illegal entrants is an administrative necessity."

(II) PROTECTION OR NON-REFOULEMENT

"6. A State is not under an international law obligation to accept a refugee into its territory. However, it may not, ‘expel or return (refouler) a refugee in any manner whatsoever to the frontiers or territories where his life or freedom would be threatened...’"

Here is the "narrowest" interpretation of refugee protection, i.e. non-refoulement.

(III) RIGHT TO SEEK ASYLUM IN AUSTRALIA

"14. It may be argued that not allowing refugees to pursue asylum in the State of their choice is a penalty contrary to international law. A right to asylum has been enshrined in the Universal Declaration on Human Rights (UDHR) and a recent General Assembly resolution. However, such a right is not contained in any legally binding instruments, including the Refugees Convention, and a right for refugees to seek asylum in the State of their choice is yet to crystallise at customary international law. As such, preventing access to Australia is not of itself a penalty under article 31."

The "right for refugees to seek asylum in the State of their choice", i.e. popular press described as the "country shopping", is not quite correct discription made here. Especially, when we are looking at Bomana Prisoners cases, the government is forcing refugees to apply asylum at non-viable states, such as PNG.

(IV) RESPONSIBILITY UNDER INTERNATIONAL LAW

"18. States are accountable for breaches of international law carried out by their agents or those under their direction and control, even where such breaches occur outside their territory.

"19. The ICCPR provides that no person shall be subject to ‘arbitrary’ detention, and that a person may only be deprived of their liberty ‘in accordance with such procedures as are established by law.’ According to a decision of the Human Rights Committee, while mandatory detention of asylum seekers in Australia does not of itself breach international law, there has been at least one instance in which detention of a refugee on the Australian mainland contravened article 9(1) of the ICCPR."

One unfortunate thing about international law is its lack of visible enforcement. There is the international law, yes, but no police around! This "lack of enforcement" has been thoroughly exploited by the government.

Friends, we should look into details of Bomana Prisoners, find ways to empower them seeking for justice. Equally important, those on PNG to get resettlement in Canada, EU & elsewhere. Please keep writing. -- Regards, NetIPR.

Bomana Page Updates
http://www.aus4iccwitness.org/node/78
Rachel Menstd refugee paper (2007)
[#1] http://www.aus4iccwitness.org/legal-resources/20070101_pacific-soln-intl-compliance.pdf