By Matthew Drogemuller
This week’s decision by a Papua New Guinean court that the detention of 850 asylum seekers held in the Australian-controlled detention centre on Manus Island unlawfully breaches their rights means the Centre must be shut down.
In 2012, then-Immigration Minister Chris Bowen signed an agreement with the Papua New Guinean government that they would detain asylum seekers on Manus Island. The Australian government provided funding and agreed to work with PNG to process those detained.
Since then, the Centre has been widely criticised for its harsh living conditions and incidents of sexual abuse. Many of Island’s detainees have been there for more than three years, and several have attempted suicide or otherwise self-harmed.
According to the United Nations, because Australia has “effective control” over the Centre, we are responsible for ensuring that international law is followed.
Despite the finding of illegal detention, Immigration Minister Peter Dutton has vowed that none of the 850 asylum seekers will be permitted into Australia for processing, and has attempted to shift the blame onto the Papau New Guinean government.
Papau New Guinea is currently considering its options, which include allowing the asylum seekers to come and go as they please.
Our International Obligations
Seeking asylum in a foreign country is perfectly legal, regardless of how a person enters – indeed, it is a right protected by both international and Australian laws.
In 2014, the United Nations found that Australia’s treatment of asylum seekers, including those on Manus Island, amounts to ‘cruel, inhuman or degrading treatment’ in contravention of international law.
The refugee crises of World War II instigated a general right to seek and enjoy asylum under the Universal Declaration of Human Rights. Subsequent agreements expanded that right, although signatories often amend the original wording of international instruments when codifying them into law.
The 1951 Convention Relating to the Status of Refugees has been ratified by Australia, and legally accepted or ratified by a total of 145 countries.
Under Australian law, asylum seekers have the right not to be returned to the country from where they sought refuge, until they are processed, and those who are found to be refugees cannot be returned in any event. This is called the principle of non-refoulement.
Definition of Refugee
A refugee is someone who has a well-founded fear of persecution and has left their country because of it. Unfortunately, the 1951 Convention does not specify how individual countries should determine whether someone meets the definition of refugee, and signatories have applied various tests.
The Migration Act of 1958 enshrines many international law principles into domestic law. It gives the Federal Government the right to grant a protection visa to non-citizens to whom we have a responsibility towards under international law. But since that time, our asylum seeker policies have changed dramatically, along with our rhetoric and attitudes towards these desperate people.
Australia’s Migration Act now requires refugees to have suffered the threat of ‘serious harm’ and ‘systematic and discriminatory conduct’ in order to qualify as refugees.
Australia has also signed and ratified international laws which prohibit arbitrary detention and indefinite deprivation of liberty, and many argue that we are breaching those obligations through the long term detention of asylum seekers in offshore centres.
The average time of detention on Manus Island is now 450 days, and, as stated, some people have been there for over 3 years. Some argue that this violates our obligations under the 1951 Convention to process asylum seekers in a ‘fair and efficient’ manner.
We also have an obligation not to send asylum seekers to countries where they may suffer persecution. It has been argued that the current regime of sending homosexual people to Manus Island breaches this obligation because homosexuality is a crime under Papua New Guinean law.
The UN has repeatedly criticised Australia for shirking its international obligations, but the current Australian government seems undeterred.
A ‘Refugee Problem’?
By international standards, Australia receives a very small number of asylum seekers each year.
In 2012, 45 million people were displaced from their homes and sought refuge elsewhere. Only 17,202 of them sought refuge in Australia, less than the average number of people fleeing from persecution on a single day.
As some politicians point out, many factors can lead to the desperate decision to seek asylum in Australia by boat, and the situation is not as cut-and-dry as the Federal Government would like the population to believe.
The Greens recently announced its plan to provide safe asylum and processing within Australia. But the current policy of offshore detention has the support of both major political parties
By any measure, Australia’s treatment of asylum seekers has breached, and continues to breach, our obligations under international law – a situation which human rights barrister Julian Burnside describes as “fall[ing] short of the dictates of ordinary human decency”.