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    Howard tries to appease Jakarta and destroys Australia's refugee obligations

The Ban The Boatpeople Bill

The Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 should really be called the "Ban The Boatpeople Bill". Since Tampa the Howard government has been insistent that "unannounced boat-using asylum seekers" are "illegals" or "unlawful" in their entry. Both terms have no basis in law in Australia, yet they have been peddled by lawyers such as the Attorney-General (and former Immigration Minister) Phillip Ruddock, and Australia's Prime Minister, John Howard.

IMAGE: Thanks to Matt Davidson and The Age.

On 11 May 2006 the Bill was tabled in Parliament, and because any debate would have shown up serious dissent within Government MP's, then immediately 'diverted' for further scrutiny to the Senate Legal and Constitutional Committee, opening up the field for submissions - they have to be received by the Committee by 22 May 2006. See the information here.

Below is an analysis of the Bill by the Asylum Seeker Resource Centre. It may help with your submission to the Committee.

Related pages:

9 August 2006: The Coalition Rebels speak out - Three Government MP's, The Hon Judi Moylan, Mr Russell Broadbent and Mr Petro Georgiou crossed the floor over the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, sat in the opposition benches, and voted against the Bill with the Australian Labor Party and others opposed. Here are their remarkable speeches.

16 May 2006: David Manne at the "Boatloads of Extinguishment?" - "The new policy of 'Radical Rejection' not only involves offshore processing. The Government has also refused to discount the possibility of using our navy to intercept or interdict boats with asylum seekers on board, without undertaking any assessment of the person's fears or need for protection..."

18 April 2006: Call to Action: Australia banishes all boat people ... it must be a joke!!! - A very serious request for your help: A scandalous and brutal Bill has been proposed by the Howard government to block all access to Australia of all asylum seekers arriving by boat, both for processing their claims and for settlement if these claims prove true.




67 Jeffcott Street
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Phone: (03) 9326 6066
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On 13 April 2006 the Australian Government announced its intention to pass legislation to prevent unathorised boat arrivals from claiming asylum in Australia. Instead asylum seekers arriving by boat are to be transferred to offshore refugee processing centres in Papua New Guinea (PNG) and Nauru. [1] Persons found to be refugees are to be 'resettled' in safe third countries which could include Australia.

The Government's decision was made under direct pressure from Indonesian authorities in response to the decision by the Government to grant 42 West Papuans refugee status.

The Asylum Seeker Resource Centre (ASRC) strongly opposes the proposed legislation and the introduction of any measures to prevent asylum seekers arriving by boat in Australia from being able to have their asylum claims determined in Australia, under Australian law and pursuant to Australian legal protections.


The Government's decision to prevent boat arrivals from seeking asylum in Australia is a clear and blatant abrogration of Australia's international obligations under the Refugee Convention. The policy is unprincipled, unethical, impractical and undermines the purpose of the international refugee protection framework, which is that asylum should be provided to refugees in the country of arrival unless they can access effective protection elsewhere. The Pacific Solution fails this standard.

The Government's proposal are objectionable for a number of reasons:

  • The concept of offshore processing centres in third countries (such as Papua New Guinea and Nauru) is incompatible with the intent of the Refugee Convention and is a technical mechanism by receiving states to attempt to circumvent Convention obligations.
  • The Pacific Solution has been, by any objective standard, a policy failure. The decision to revisit it is alarming and regressive.
  • The Pacific Solution sends the international community the clear message that countries such as Australia consider it permissible to manipulate the Refugee Convention to suit domestic political agendas.
  • The Australian Government's policy sets an appalling example for countries looking to Australia and other developed countries for guidance on acceptable human rights practices.
  • Countries with problematic human rights records, including Indonesia, will feel emboldened to place pressure on Australia to amend laws that do not suit them.
  • The policy is in clear violation of Article 31 of the Refugee Convention which prohibits State signatories from discriminating against refugees on the basis of mode of arrival. Unauthorised air arrivals continue to be permitted to apply for asylum in Australia, whilst boat arrivals are to be sent to third countries where they will receive a lesser standard of treatment.
  • It is a cornerstone of the Refugee Convention that countries of first asylum should admit refugees from neighbouring countries regardless of the political relationship between the two countries. Once political considerations intrude, the integrity of the system is compromised and the concept of refugee protection placed at risk.
  • The Government's previous justification for the Pacific Solution was to deter 'secondary movement' - ie those refugees who had bypassed other countries where they could have sought and obtained effective protection. The proposed legislation directly targets direct refugee arrivals who are unable to access protection elsewhere.
  • The use of the Australian navy to intercede vessels carrying asylum seekers for the purposes of trying to divert them from Australia is dangerous, compromises the role of the navy and may breach Australia's' obligations under the Refugee Convention not to refoul refugees by returning them to a situation of persecution. Any co-operation between Australian and Indonesian navies in relation to asylum seekers fleeing Indonesia (including from West Papua) would be an appalling breach of the obligation to offer protection to refugees.

ASRC's Position on Proposed Changes

1. Pacific Solution an abdication of Australia's responsibilities to refugees

The Australian Government justifies the Pacific Solution's compatibility with the Refugee Convention on the basis that Australia is not breaching the fundamental principle of non-refoulment under Article 33 of the Refugee Convention by transferring asylum seekers arriving in Australia to safe third countries, namely Nauru and Papua New Guinea where their claims will be processed. The concept of non-refoulment requires that no refugee be returned to a place in which they are at risk of persecution.

The ASRC maintains that this justification is fundamentally flawed and incompatible with the intent and efficacy of the Refugee Convention.

The right to seek asylum in enshrined in the Universal Declaration of Human Rights. The right can only exist if State parties permit asylum seekers to exercise the right to seek asylum within their territory.

Persons who have effective protection in a safe third country, including the right to enter in and reside in a third country, may be excluded from the scope of refugee protection. In our view this concept presupposes some linkage to the safe third country or a level of protection more than that of a transitory nature. [2] The designation of countries such as Nauru and Papua New Guinea as 'safe third countries' for asylum seekers who have arrived in Australia is an abuse of the concept. Nauru and Papua New Guinea are no more than transit camps to which asylum seekers have no connection and which have no capacity to accommodate refugees on an ongoing basis or provide a durable solution.

Both Nauru and Papua New Guinea are close to being 'failed states'. Both countries have significant problems with corruption. Papua New Guinea has endemic problems with violence, including criminal and tribal violence. The maintenance of law and order is so weak in PNG that the Australian government has developed an intensive law and order capacity building program. It is perverse to consider both countries as 'safe third countries' for asylum seekers.

Whilst Australia has significant leverage over both Nauru and PNG through bilateral aid programs, both countries are sovereign, unpredictable and desperate for funding. There is no ultimate guarantee that either country would abide by any non-refoulment agreement with Australia if another powerful neighbour made them an attractive offer for the return of asylum seekers (eg Indonesia or China). Australia remains responsible (and liable) for the protection and treatment of refugees in 'safe third countries' until they are provided with a durable solution. [3]

If all Convention signatories devolved their asylum seekers problems to 'safe third countries', the Refugee Convention would become meaningless as no receiving state would be required to process the claims of asylum seekers arriving within their territory.

2. Pacific Solution a failure

By any objective standard, the Pacific Solution must be considered a failure. The intention of the Pacific Solution was to deter asylum seekers and to resettle genuine refugees in countries other than Australia.

The overwhelming majority of asylum seekers on Nauru and in PNG were found to be refugees. Many of the asylum seekers not initially found to be refugees were subsequently found to be refugees following further case review.

Most of the Pacific Solution refugees were eventually resettled in Australia on account of the refusal of most other countries to resettle refugees perceived to be Australia's responsibility.

The Pacific Solution was a costly experiment in human lives which resulted in the unnecessary and prolonged detention of many thousands of genuine refugees. [4] The Australian government bears direct responsibility for the physical and psychological health consequences of the policy on the refugees affected by it.

The Pacific Solution should never be revisited on any basis.

3. Mixing politics and asylum

The effectiveness of the international system of refugee protection is predicated upon State parties assessing asylum claims in a fair and impartial manner in which political considerations (including issues of political relationships with neighbouring countries) play no part.

It was on the basis of such an impartial assessment that 42 of the West Papuan asylum seekers were deemed to be refugees.

The Government's decision to drastically degrade the system of refugee protection in Australia for asylum seekers arriving by boat following intense diplomatic pressure from Indonesia in relation to West Papuan asylum seekers undermines a cornerstone of international refugee policy and cannot be justified on public policy or national interest grounds. Countries with far greater numbers of asylum seekers arriving from neighbouring countries (including Pakistan, Iran and Kenya) have taken more principled stances than Australia in relation to refugee protection, despite intense political pressure upon them.

The extension of Australia's policy on a global scale would have alarming consequences that would devastate the effectiveness of refugee protection worldwide. What would prevent Pakistan and Iran from attempting to transfer thousands of Afghan asylum seekers to a third country or Chad compromising standards of protection in relation to refugees from Dafur following pressure by Sudanese authorities?

4. Setting a human rights standard

Australia's overall national and strategic interest is best served by acting as a human rights exemplar, not a human rights vandal, within the international community. Australia has a strong interest in promoting human rights and democracy within the Asia Pacific region as a means of achieving regional stability and prosperity. The impartiality of the refugee assessment process is fundamental to this goal. It provides protection to persons fleeing persecution through a process free from political interference. It also results in greater attention being focused on the resolution of human rights problems within the region in order to minimize refugee outflows.

It is in both Australia and Indonesia's national interests that Indonesia maintain minimum human rights standards and protect its nationals from harm. Only through such measures will Indonesia be able to maintain social cohesion. It is in Indonesia's best interests to work to resolve any systematic human rights abuses in West Papua. It is in Australia's national interest to raise these issues with Indonesia in good faith.

By implementing the Pacific Solution Mark II, Australia sends a clear message to the international community that it is permissible to manipulate the Refugees Convention to suit domestic political ends. This lowering of standards will have a devastating effect on developing countries dealing with refugee inflows who will begin to question why they should permit asylum applications to be lodged within their own territories where developed countries exempt themselves from fundamental protections. Such measures retard the development of human rights standards globally.

5. Discriminating on basis of mode of arrival

Article 31 of the Refugee Convention unambiguously prohibits a State from discriminating against asylum seekers on the basis of their mode of arrival in a country. This reflects the reality that asylum seekers are often forced to flee their countries at short notice, without any documentation and by any means possible. This is demonstrated by the circumstances of the West Papuan asylum seekers.

The measures proposed by the Government discriminate directly on the basis of an asylum seeker's mode of arrival in Australia. Boat arrivals are to be transferred to offshore processing centres whilst air arrivals are permitted to apply for asylum in Australia.

Coming in the 55th anniversary year of the Refugee Convention, this act of blatant disregard for a key provision of the Convention signals the willingness of the Australian Government to sacrifice key human rights protections to suit domestic political agendas.

6. Direct arrivals v secondary arrivals

The Government's previously stated policy justification for excising offshore islands from Australia's migration zone was to deter secondary arrivals (ie those asylum seekers who had passed through other countries en route to Australia in which they may have been able to apply for protection). [5]

The decision to prevent all boat arrivals, including direct flight arrivals, from applying for protection in Australia makes it clear that the government's border protection agenda was always intended to trump rights owed under the Refugee Convention.

Direct flight refugees should be accorded the highest possible priority and standards of treatment through any domestic refugee assessment process on account of their inability to apply for protection elsewhere.

Australia has previously insisted that countries of first asylum must continue to host direct flight refugee populations and that it is the role of countries such as Australia to accept limited numbers of those refugees for whom no durable solution can be found in the country of first asylum under refugee resettlement programs. This forms the core basis of Australia's refugee and humanitarian program. [6] In their Fact Sheet on Australia' Refugee and Humanitarian Program DIMA state:

First asylum is normally provided by the closest safe country to which the refugee has fled. This then allows for the UN's preferred 'durable solution' of return to the home country in safety and dignity as soon as possible.

The proposed policy of transference of direct flight asylum seekers is shamelessly hypocritical and will severely erode Australia's ability to be taken seriously in the international refugee protection debate.

7. Use of Australian navy to prevent asylum seeker boats from reaching Australia

Australia's past practice during the 2001 election campaign of using naval vessels to intercede and deter asylum seeker boats through Operation Relex was dangerous, an abuse of the role of the navy and ultimately ineffective.

The vast majority of the boat arrivees could not be returned to Indonesia. The overwhelming majority of the asylum seekers intercepted were found to be refugees and ultimately resettled in Australia.

Any suggestion of a renewed role for the navy in intercepting boats of asylum seekers is alarming and shows a failure to learn from past experience. The heavy handed and aggressive treatment of asylum seekers on the high seas is a recipe for disaster and could well have life-threatening consequences. [7]

Any co-operation between Australian and Indonesian navies in intercepting boats of asylum seekers fleeing Indonesia would be a gross violation of the right to seek protection from persecution.

8. West Papuan context

The debate around the visas granted to the 42 West Papuan refugees has overshadowed the larger issue of the 8,000 West Papuans living as refugees and asylum seekers in PNG. Some of these refugees have been living in PNG for over 20 years.

The fury of the Indonesian government at the treatment of the 42 West Papuans granted visas in Australia must be viewed within a global context. PNG authorities assess the claims of asylum seekers within the country under the direct supervision of the UNHCR. They have found over 7, 627 persons (the vast majority of whom are West Papuans) to be refugees. [8] PNG arguably has more at stake in its relationship with Indonesia than does Australia, bearing in mind the relative power dynamics between PNG and Indonesia, the porous nature of the border and the vastly greater numbers of refugees crossing the border to PNG. The role of UNHCR in acting as an independent monitoring body is critical in providing an impartial, non-political perspective on the merits of the claims and in ensuring that persons recognized as refugees are provided with suitable protection.

The Australian Government must re-focus the West Papuan debate on the reasons for the flight of many West Papuan refugees into PNG and Australia in an attempt to address the root causes.

9. Right to free expression in Australia

Immigration Minister Vanstone's criticism of asylum seekers attempting to use Australia as a 'staging post' for their political activities [9] shows scant regard for fundamental principles of free expression and democracy. Freedom of political expression is a core human right and a cornerstone of democracy in Australia. Anyone arriving in Australia is entitled to voice their opinion freely and within the boundaries of the law. The right is of particular importance to persons fleeing political persecution.

It is the fundamental right of the West Papuan refugees to express their political opinions in Australia freely (including their desire for independence for West Papua) without any political interference or pressure.

For further comment, contact Pamela Curr, ASRC Campaign Coordinator on 0417517075 or Kon Karapanagiotidis, ASRC Coordinator on (03) 9326 6066.


[1] See Media Release, Immigration Minister Vanstone, 'Strengthened Border Control Measures for Unauthorised Boat Arrivals', 13 April 2006

[2] See UNHCR submission to Senate Legal and Constitutional Committee on Migration Legislation Amendment (Further Border Protection) Bill 2002,

[3] See UNHCR submission to Senate Legal and Constitutional Committee on Migration Legislation Amendment (Further Border Protection) Bill 2002, para 22,

[4] See for example, Oxfam Community Aid Abroad, 'Adrift in the Pacific', February 2002

[5] See DIMA Fact Sheet 71, 'New Measures to Strenghen Border Control'

[6] See DIMA Fact Sheet 60, 'Australia's Refugee and Humanitarian Program' and Fact Sheet 71, 'New Measures to Strengthen Border Control'

[7] See D.Marr and M.Wilkinson, 'Dark Victory', 2003

[8] Australian Policy Online, 'West Papua's forgotten asylum seekers', Nic Maclellan, Institute for Social Research, Swinburne University of Technology, 13 April 2006

[9] ABC Radio, PM, 'Asylum Seekers to be pushed offshore for processing', 13 April 2006

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