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SHADOW PLAYS, SHIFTING SANDS AND INTERNATIONAL REFUGEE LAW: CONVERGENCES IN THE ASIA-PACIFIC

  • Mary Crock (a1)
Abstract

While many Australians continue to see their roots in Western Europe, in matters concerning human rights and immigration control, Australia's culture and attitudes over time have become more closely aligned with those of States in its immediate geographical region. The trend finds obvious expression in the convergence of laws and policies governing the treatment of asylum seekers. This article uses as a case study various efforts made to establish regional frameworks for the management of irregular (forced) migration. The author argues that Australia's reversion to deflection and offshore processing as deterrent measures resonates with the discourse in two States that have been closely associated with the new ‘arrangements’: Malaysia and Indonesia. Australia's policies make express reference to laws and State behaviour in the region through what has been labelled the ‘no advantage’ principle governing Australia's treatment of asylum seekers presenting as unauthorized maritime arrivals (UMAs). The central idea is that these asylum seekers should gain no material advantage by reaching Australia in comparison with the situation they would face if their claims were processed in States of first refuge. If the comparators are the refugee-receiving States around Australia, the policy has to play out in the degradation of terms and conditions faced by UMAs in Australia. In the area of human rights and refugee policy, the author argues that Australia should be doing more to distinguish itself as a leader rather than follow the (generally poor) practices of its neighbours.

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1 United Nations General Assembly, Department of Public Information ‘General Assembly elects Argentina, Australia, Luxembourg, Republic of Korea, Rwanda as non-permanent members of Security Council’ (Press Release, GA/11303, 18 October 2012); P McGeough, ‘A Place at the Table’, The Sydney Morning Herald (Sydney, NSW) 20 October 2012, 1.

2 Including Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948); International Covenant on Civil and Political Rights, opened for signature 16 December 1966 (entered into force 23 March 1976); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966 (entered into force 3 January 1976).

3 See Convention relating to the Status of Refugees (‘Refugee Convention’), opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) art 1A(2) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967). Australia's accession to the Convention on 22 April 1954 brought the Convention into force: see Convention Relating to the Status of Refugees [1954] ATS 5.

5 Australia has pulled above its weight in the resettlement of persons recognized as Convention refugees, taking in more than 700,000 since the end of World War II. See also UNHCR, Global Trends 2010 (Geneva) 2011 <http://www.unhcr.org/4dfa11499.html> 19.

6 Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 19 December 1966 (1966) 999 UNTS 171 (entered into force 23 March 1976).

7 UN Convention against Torture and All forms of Cruel, Inhumane and Degrading Treatment or Punishment Adopted 10 December 1984, entered into force 26 June 1987, 1465 UNTS 85 (‘CAT’) art 21.

8 Optional Protocol to the Convention on the Rights of Persons with Disabilities, opened for signature 30 Mar 2007 (2007) 46 ILM 443 (entered into force 3 May 2008).

9 Compare the Australian and United Kingdom (including the Privy Council applying the laws of Hong Kong) and American jurisprudence on the prolonged detention of non-citizens: Al-Kateb v Godwin (2004) 219 CLR 562; R v Governor of Durham Prison, Ex parte Singh [1984] 1 All ER 983; Tan Te Lam v Superintendent of Tai A Chau Detention Centre (Hong Kong) [1997] AC 97; Zadvydas v Davis, 533 U.S. 678 (2001).

10 A v Australia, UNHCR Comm No 560/1993 (3 April 1997); Bakhtiyari v Australia UNHRC Comm No 1069/2002 (29 October 2003); F.K.A.G. et al v Australia, UNHRC Communication No 2094/2011 (26 July 2013) and M.M.M. et al. v Australia, UNHRC Communication No 2136/2012 (25 July 2013).

11 For a summary of interdiction and deflection policies in Australia, see McAdam, J and Purcell, K, ‘Refugee Protection in the Howard Years: Obstructing the Right to Seek Asylum’ (2009) 27 Aust YBIL 87115.

12 Migration Act 1958 (Cth) sections 91A–91G.

13 Migration Amendment (Unauthorised Maritime Arrivals) Act 2013.

14 Migration Act 1958 (Cth) sections 198A (repealed), 198ABff.

15 Migration Act section 198AB. Prior to the 2013 election, the then-government announced that asylum seekers processed in Manus Island, PNG, would not be resettled in Australia but would remain permanently in Papua New Guinea: Tony Burke, ‘Australia and Papua New Guinea regional settlement arrangement’ (Media Release, 19 July 2013).

16 The Liberal Party policy on asylum seekers is called ‘Operation Sovereign Borders’: Liberal Party of Australia, ‘The Coalition's Operation Sovereign Borders Policy’ (July 2013) <http://www.liberal.org.au/our-plan/immigration>. During the federal election campaign then Opposition leader Tony Abbott also unveiled a policy of buying the unseaworthy boats of poor Indonesian fishers in an attempt to starve people smugglers of vessels to carry UMAs to Australia: Tony Abbott, Joint Press Conference, Darwin (Transcript of Press Conference, 23 August 2013).

17 John Howard, quotation from speech delivered at the Federal Liberal Party Campaign Launch, Sydney, 28 October 2001, reported Australian Broadcasting Corporation, ‘Liberals accused of trying to rewrite history’, Lateline 21 November 2001 (Sarah Clarke).

18 See Kraft, H, ‘Human Rights, ASEAN and Constructivism: Revisiting the “Asian Values” Discourse’ (2001) 45 Philippines Political Science Journal 33; Asplund, KD, ‘Resistance to Human Rights in Indonesia: Asian Values and Beyond’ (2009) 10(1) Asia-Pacific Journal on Human Rights and the Law 27, 31ff; and Saul, B, Mowbray, J and Baghoomians, I, ‘Resistance to Regional Human Rights Co-operation in the Asia-Pacific: Demythologizing Regional Exceptionalism by Learning from Europe, the Americas and Africa’ in Nasu, H and Saul, B (eds), Human Rights in the Asia-Pacific Region: Towards Institution Building (Routledge 2011).

19 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3, (entered into force 2 September 1990).

20 Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) (‘CRPD’); Optional Protocol to the Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, (2007) 46 ILM 443 (entered into force 3 May 2008).

21 For a closer exposition of the interactions between Australia and other countries in the Asia-Pacific region in refugee matters, see Biok, EAustralia and Refugees in the Asia Pacific, (unpublished doctoral dissertation (SJD), University of Sydney, 2009).

22 See Crock, M and Ghezelbash, D, ‘Do Loose Lips Bring Ships? The Role of Policy, Politics and Human Rights in Managing Unauthorised Boat Arrivals’ (2010) 19 GLR 238–87.

23 For a selection of the many articles written on the first ‘Pacific Solution’, see: K Bem et al, ‘A Price Too High: The Cost of Australia's Approach to Asylum Seekers’ Oxfam Australia and A Just Australia (August 2007); Crock, MIn the Wake of the Tampa: Conflicting Visions of International Refugee Law in the Management of Refugee Flows’ (2003) 12 Pacific Rim Law and Policy Journal 49; Francis, ABringing Protection Home: Healing the Schism between International Obligations and National Safeguards Created by Extraterritorial Processing’ (2008) 20 IJRL 273; and Foster, M and Pobjoy, J, ‘A Failed Case of Legal Exceptionalism? Refugee Status Determination in Australia's “Excised” Territory’ (2011) 23 IJRL 583631; Mathew, PAustralian Refugee Protection in the Wake of Tampa’ (2002) 96 AJIL 661; Noll, GVisions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Processing Zones’ (2003) 5 EJML 303; Penovic, T and Dastyari, A, ‘Boatloads of Incongruity: The Evolution of Australia's Offshore Processing Regime’ (2007) AJHR 3361; Schloenhardt, ATo Deter, Detain and Deny: Protection of Onshore Asylum Seekers in Australia’ (2002) 14 IJRL 302; and Taylor, S, ‘Sovereign Power at the Border’ (2005) 16 PLR 5577.

24 These two countries are chosen for analysis in part because the author engaged in fieldwork in those countries in 2012 for the AusAid Enabling Equality Project (see n 1).

25 The amendments to the Migration Act 1958 (Austl) were introduced in mid-August 2012 and became law on 18 August 2012. Details of the ‘No Advantage’ policy was announced on 23 August 2012 (C Bowen and J Gillard, ‘Refugee Program increased to 20, 000 places’ (Joint Media Release, Prime Minister and Minister for Immigration and Citizenship, 23 August 2012 <http://pandora.nla.gov.au/pan/141738/20130718-1402/www.minister.immi.gov.au/media/cb/2012/cb189459.htm>). People arriving in Australia after 13 August are eligible to be transferred to Regional Processing Countries. Between August and December 2012 (inclusive) there were 10,259 boat arrivals (see the graph in Lauren Wilson, ‘Bad weather keeps asylum boats in port’, The Australian (online) 22 January 2012.

26 The ‘principle’ is central to a series of recommendations made by a panel appointed by the government in 2012 to advise on policies to stem the flow of boats carrying asylum seekers to Australia. See Houston, A, Aristotle, P and L'Estrange, MReport of the Expert Panel on Asylum Seekers, (Department of Immigration and Citizenship (DIAC), August 2012) <http://expertpanelonasylumseekers.dpmc.gov.au/sites/default/files/report/expert_panel_on_asylum_seekers_full_report.pdf> 26 [1.21] (hereafter the Houston Report).

27 See Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime is a practical response to the problem of transnational crime—not a refugee resettlement programme. As UNHCR argued at a Bali Process meeting, however, if countries practice burden sharing and implement durable solutions, this will also help reduce transnational crime. The process was established to find solutions to irregular migratory movements in the Asia Pacific region. See <http://www.baliprocess.net/>. In recent years, regional consultative processes have been established in most regions of the world. See Betts, A, Global Migration Governance (Oxford University Press 2011) 18; and Crock, M and Ghezelbash, D, ‘Secret Immigration Business: Policy Transfers and the Tyranny of Deterrence Theory’ in Singh, S (ed), The Ashgate Research Companion to Migration Theory and Policy (Ashgate 2013) ch 27.

28 See Nethery, A, Rafferty-Brown, B and Taylor, S, ‘Exporting Detention: Australia-funded Immigration Detention in Indonesia’ (2013) 26(1) JRS 88.

29 See UNHCR Australian Regional Representation, ‘UNHCR Mission to Manus Island, Papua New Guinea, 15–17 January 2013’ (Report, UNHCR, 4 February 2013), available at <http://unhcr.org.au/unhcr/images/2013-02-04%20Manus%20Island%20Report%20Final.pdf>.

30 See further the discussion below on art 31.

31 Hathaway, J, The Rights of Refugees under International Law (Cambridge University Press 2005).

32 See arts 6 and 7.

33 See art 3.

34 See art 37.

35 See Refugee Convention, art 33; ICCPR, ART 6; CAT, art 3; CRC, art 6; and CRPD, art 10.

36 See Refugee Convention, art 33(2); ICCPR, arts 7 and 10; CAT, art 16; CRC, art 37 and CRPD, arts 15 and 16.

37 Convention, art 31; ICCPR, arts 9 and 10; CRC, art 37(b) and (d); CRPD, arts 14 and 17.

38 CRC art 3; CRPD arts 14, 17.

39 Convention arts 3, 31; ICCPR, art 26; CRC, art 2; CRPD, 5; ICESCR, art 2.

40 Convention art 20; ICCPR, arts 6(1), 7, 9(1) and 10(1); CRPD, art 28; ICESCR, arts 2(1) and 11.

41 CRPD art 25; ICESCR art 12(1).

42 Convention art 4; ICCPR art 18, CRC arts 13–15, CRPD art 21, ICESCR art 13(3).

43 Convention art 22; CRC arts 23, 28; CRPD art 24, ICESCR art 13.

44 Convention art 27; CRC art 7.

45 Convention arts 16(1), 25; ICCPR art 14(1), CRPD arts 12, 13.

46 ICCPR arts 17, 23(1)–(2), 24(1), CRC arts 8, 9, 10; CRPD art 23; ICESCR art 10(1). Note that this right is not specifically mentioned in the Convention but was recognized in a resolution of the Conference of the Plenipotentiaries.

47 CRC art 22.

48 CRPD; Schulze, MUnderstanding the UN Convention on the Rights of Persons with Disabilities (Handicap International 2010) available at: <http://www.handicap-international.fr/fileadmin/documents/publications/HICRPDManual.pdf>. See also Crock, M, Ernst, C and McCallum, RWhere Disability and Displacement Intersect: Asylum Seekers and Refugees with Disabilities’ (2012) 24(4) IJRL 735, 738–42.

49 Convention art 17; CRPD art 27; ICESCR art 6.

50 For a discussion of this history, see Hathaway, JCThe Law of Refugee Status (Law Book Co 1990) ch 1; and Goodwin-Gill, G and McAdam, JThe Refugee in International Law (Oxford University Press 2006) 35, 203ff.

51 See Robinson, W Courtland, ‘The Comprehensive Plan of Action for Indochinese Refugees, 1989–1997: Sharing the Burden and Passing the Buck’ (2004) 17 JRS 319; and Helton, A, ‘Refugee Determination under the Comprehensive Plan of Action: Overview and Assessment’ (1993) 5 IJRL 544. See also Tsamenyi, M, The Vietnamese Boat People and International Law (Griffith University 1981); Kumin, J, ‘Orderly Departure from Vietnam: Cold War Anomaly or Humanitarian Innovation?’ (2008) 27 Refugee Survey Quarterly 104.

52 See generally Crock and Berg Immigration, Refugees and Forced Migration (Federation Press, 2010), 335.

53 See Tran, Y, ‘Comment: The Closing of the Saga of the Vietnamese Asylum Seekers: The Implications on International Refugees and Human Rights Laws’ (1995) 17 HousJIntlL 463, 479.

54 Ibid, 505.

55 On this point see Davies, SE, Legitimizing Rejection: International Refugee Law in South East Asia (Martinus Nijhoff 2008).

56 On Hong Kong, see Loper, K, ‘Human Rights, Non-refoulement and the Protection of Refugees in Hong Kong’ (2010) 22(3) IJRL 404, 405.

57 See the list of parties to the Convention at the UN Treaties database <http://treaties.un.org/Pages/ViewDetailsII.aspx?&src=IND&mtdsg_no=V∼2&chapter=5&Temp=mtdsg2&lang=en>.

58 Simple signature does not bind a State as a matter of international law. See Vienna Convention on the Law of Treaties, art 11 and Aust, A, Modern Treaty Law and Practice (2nd edn, Cambridge 2007).

59 For a summary of average waiting and processing times, see JRS Asia Pacific, The Search: Protection Space in Malaysia, Thailand, Indonesia, Cambodia and the Philippines (Clung Wicha Press 2012) 33–4.

60 Malaysia is both a destination and transit country for refugees, who are quite mobile and live dispersed across urban areas in Kuala Lumpur and Penang. In 2012 the estimated population of refugees registered with or otherwise known to UNHCR was 100,000, mostly coming from trouble spots in Myanmar (Burma). See J Crisp, N Obi and L Umlas, ‘But When Will Our Turn Come? A Review of the Implementation of UNHCR's Urban Refugee Policy in Malaysia’ (Policy Development and Evaluation Service, No PDES/2012/02, UNHCR, May 2012) 1.

61 ibid 10.

62 Plaintiff M70 (2010) 244 CLR 144, 170 [30] (French CJ); see Immigration Act 1959 (Malaysia).

63 Immigration Act 1959 (Malaysia) section 6(3); Federal Constitution of Malaysia, art 5.

64 Of up to 10,000 ringgit: Immigration Act 1959 (Malaysia) section 6(3).

65 Immigration Act 1959 (Malaysia) section 6(3). On the practice of caning, see further Amnesty International, ‘Abused and Abandoned: Refugees Denied Rights in Malaysia’ (Report ASA 28/010/2010, Amnesty International, June 2010).

66 Immigration Act 1959 (Malaysia) sections 38–39A). Until recently these powers were also held by RELA (‘People's Volunteer Corps’, a special cadre of immigration enforcement agents). On the activities of RELA and their abuses of refugee rights, see Amnesty International, (n 65) 8ff; see further JRS Asia Pacific (n 59) 12–13.

67 Immigration Act 1959 (Malaysia) sections 31–35.

68 See Plaintiff M70 (2010) 244 CLR 144, 168–169 [28] (French CJ).

69 Plaintiff M70 (2010) 244 CLR 144, 168–169 [28] (French CJ); 200–201 [131] (Gummow, Hayne, Crennan and Bell JJ), 235 [249] (Kiefel J).

70 See Crisp, Obi and Umlas (n 60) 16–17.

71 UNHCR, ‘2013 UNHCR country operations profile – Malaysia’, UNHCR 2013 <http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e4884c6&submit=GO>

72 See L Smith-Khan, M Crock, B Saul and R McCallum, ‘To “Promote, Protect and Ensure”: Overcoming Obstacles to Identifying Disability in Forced Migration’ (2014) (unpublished article on file with authors).

73 Crisp, Obi and Umlas (n 60) 1.

74 See eg Amnesty International, Trapped: The Exploitation of Migrant Workers in Malaysia, (ASA 28/002/2010, 24 March 2010).

75 In Plaintiff M70 (2010) 244 CLR 144, French CJ noted that asylum seekers’ lack of status ‘has impeded access by refugees to sustainable livelihoods or formal education’: at 168–169 [28] (French CJ).

76 In Malaysia, one of UNHCR's most significant implementing partners is A Call to Serve (ACTS), a non-government organization established by the Jesuits. In Indonesia, a similar role is performed by the Jesuit Refugee Service.

77 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 (‘Plaintiff M70’).

78 See (n 29).

79 L Smith-Khan, M Crock, B Saul and R McCallum (n 72).

80 UNHCR's operations in Indonesia have a modest budget in comparison with those in neighbouring countries, including Malaysia. See UNHCR, ‘2013 UNHCR country operations profile – Asia and the Pacific’, UNHCR <http://www.unhcr.org/pages/4a02d8ec6.html>. The number of persons UNHCR is assisting in Indonesia is also much lower. As of December 2012, UNHCR was assisting 6761 asylum seekers and 1823 refugees there: UNHCR, ‘The People of Concern in Indonesia’, UNHCR Indonesia <http://www.unhcr.or.id/en/who-we-help>.

81 The ‘September 2010 Directorate General of Immigration Directive on Handling of Illegal Migrants’ see UNHCR, ‘Government Relations & Capacity Building’ UNHCR Indonesia <http://www.unhcr.or.id/en/government-relations-and-capacity-building>.

82 JRS Asia Pacific (n 59) 17.

85 See eg ibid 17–18.

86 See Neumann, K, Refuge Australia: Australia's Humanitarian Record (UNSW Press 2004).

87 M Crock and L Berg, (n 52) ch 12.

88 Biok (n 21) 123; and Neumann, K and Taylor, S, ‘Australia, Indonesia and West Papuan Refugees 1962–2009’ (2010) 10 International Relations in the Asia-Pacific 131. The reluctance to confer status on fugitives from Irian Jaya (West Papua) was behind the landmark case of Ran Rak Mayer v Department of Immigration and Ethnic Affairs (1985) 157 CLR 290. See the discussion in Crock, M, ‘Judging Refugees: The Clash of Power and Institutions in the Development of Australian Refugee Law” (2004) 26 SydLR 51.

89 Crock and Berg (n 52) ch 12.

90 See Admission Impossible (directed by Alec Morgan, Australian Broadcasting Corporation, 1992).

91 Minister for Foreign Affairs, Memorandum No 380: Indo-Chinese refugees, 11 July 1979 (NAA: A12390, 380).

93 Viviani, N, ‘The Indochinese in Australia, 1975–1995: From Burnt Boats to Barbecues (Oxford University Press 1996).

94 Migration Amendment Act 1992 (Cth); Migration Reform Act 1992 (Cth); see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.

95 Crock and Berg (n 52) ch 12.

96 Migration Act section 91D(1)(a); Migration Regulations 1994 r 2.12A.

97 Migration Act 1958 (Cth) section 91A; Migration Regulations 1994 (Cth) sch 11, 12.

98 Border Protection (Validation and Enforcement Powers) Act 2001 (Cth); Migration Amendment (Excision from Migration Zone) Act 2001 (Cth); Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth).

99 See Johns, F, ‘Guantánamo Bay and the Annihilation of the Exception’ (2005) 16 EJIL 613, 621; and Neuman, GL, ‘Anomalous Zones’ (1996) 48 StanLRev 1197, 1228–33.

100 The Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) excised certain territories from the ‘migration zone’ of Australia. Anyone entering Australia without a visa at one of those territories became known as an ‘offshore entry person’ (section 5(1) Migration Act 1958). Offshore entry persons are prohibited from applying for any visas unless the Minister for Immigration personally allows them: section 46A Migration Act 1958. The constitutional validity of this section was affirmed by the High Court in Plaintiff M61/2010E v Commonwealth of Australia, Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41. See Foster and Pobjoy (n 24) 586–9.

101 Crock, M, ‘First Term Blues: Labor, Refugees and Immigration Reform’ (2010) 17 AJAdminL 19.

102 Ruddock v Vadarlis (2001) 110 FCR 491; P1/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1029; and P1/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1370; see the discussion in Crock, M and Kenny, MA, ‘Rethinking the Guardianship of Refugee Children after the Malaysian Solution’ (2012) 34 SydLRev 437.

103 Plaintiff M61/2010E v Commonwealth of Australia, Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319; See Crock, M and Ghezelbash, D, ‘Due Process and Rule of Law as Human Rights: The High Court and the “Offshore” Processing of Asylum Seekers’ (2011) 18 AJAdminL 101.

104 The ‘Arrangement’ with Malaysia involved sending 800 IMAs to that country in exchange for 4,000 refugees from Malaysia. See Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement, signed 25 July 2011, available at <http://pandora.nla.gov.au/pan/67564/20110920-1320/www.minister.immi.gov.au/media/media-releases/_pdf/20110725-arrangement-malaysia-aust.pdf>.

105 See eg C Bowen (Minister for Immigration and Citizenship), transcript of press conference, 8 August 2011, Canberra, <http://pandora.nla.gov.au/pan/67564/20110920-1320/www.minister.immi.gov.au/media/cb/2011/cb169899.html>.

106 See (n 18). See also UNHCR, ‘Statement to the Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime’, 29–30 April 2003; see Kneebone, S and Pickering, S, ‘Australia, Indonesia and the Pacific Plan’ in Kneebone, S and Rawlings-Sanaei, F (eds), New Regionalism and Asylum Seekers: Challenges Ahead (Berghahn Books 2007) 167, 175.

107 Department of Immigration, Answer to Question Taken on Notice, Budget Estimates Hearing, 21–22 May 2012, BE12/0262, available at <http://www.aph.gov.au/Parliamentary_Business/Senate_Estimates/legconctte/estimates/bud1213/diac/index>.

108 Plaintiff M70 (2011) 244 CLR 144.

109 ibid 192 [98] (Gummow, Hayne, Crennan and Bell JJ).

110 See Houston Report (n 26).

111 ibid, 7, 11.

112 The government had earlier introduced two Bills into parliament: the Migration Legislation Amendment (Offshore Processing and Other measures) Bill 2011 (in September 2011); and the Migration Legislation Amendment (The Bali Process) Bill 2012 (rejected by the Senate in June 2012).

113 Migration Act 1958 section 198AA (b)–(c).

114 Migration Act 1958 section 198AA(d).

115 Done by the Minister in the form of a legislative instrument which is delegated legislation, but is subject to lesser Parliamentary approval requirements than other delegated legislation: Migration Act section 198AB(1) overrides Legislative Instruments Act sections 12(1), s 41.

116 Migration Act 1958 section 198AB(2).

117 Migration Act 1958 – Instrument of Designation of the Republic of Nauru as a Regional Processing Country under subsection 198AB(1) of the Migration Act 1958, 10 September 2012 (F2012L01851); Migration Act 1958 – Instrument of Designation of the Independent State of Papua New Guinea as a Regional Processing Country under subsection 198AB(1) of the Migration Act 1958, 9 October 2012 (F2012L02003).

118 See Department of Immigration and Multicultural and Indigenous Affairs, Interpreting the Refugees Convention: An Australian Contribution (Department of Immigration and Multicultural and Indigenous Affairs, 2002) ch 11; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; see also M Crock and L Berg, (n 52) 479–82.

119 See Nethery et al (n 29).

120 This point is made by Foster, M in ‘The Implications of the Failed “Malaysian Solution”: The Australian High Court and Refugee Responsibility Sharing at International Law’ (2012) 13 Melbourne Journal of International Law 396, 397.

121 Refugee Convention, art 33.

122 Goodwin-Gill, G, ‘Non-Refoulement and the New Asylum Seekers’ in Martin, D, The New Asylum Seekers: Refugee Law in the 1980s (Dordrecht 1986) 103; cf Hathaway (n 32); see also Lauterpacht, E and Bethlehem, D, ‘The Scope and Content of the Principle of Non-Refoulement’ in Feller, E, Türk, V and Nicholson, F (eds) Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (Cambridge University Press 2003) 87.

123 Hathaway (n 31) 184.

124 Plaintiff M70 Plaintiff M70 (2010) 244 CLR 144, 195–6 [117] (Gummow, Hayne, Crennan and Bell JJ).

125 ibid; see also at 225 [216] (Kiefel J).

126 Houston Report (n 26) recommendation 1 [2.6]–[2.22].

127 See Chris Bowen in Australian Broadcasting Corporation, ABC24, ‘Regional processing, boat arrivals, “no advantage” principle, Nauru, Greens statements’ 26 November 2012 (interview with Lyndal Curtis) <http://pandora.nla.gov.au/pan/141738/20130718-1402/www.minister.immi.gov.au/media/cb/2012/cb192019.htm>.

128 Contradicting previous assertions that IMAs enjoyed ‘no guaranteed resettlement in Australia’. See Department of Immigration ‘Fact Sheet: The Expert Panel on Asylum Seekers and the ‘no advantage’ principle’, Department of Immigration and Citizenship 2012 <http://www.immi.gov.au/managing-australias-borders/border-security/irregular-entry/no-people-smuggling/_pdf/fact-sheet-english.pdf>.

129 Australian Broadcasting Corporation, ABC24, ‘Regional processing, boat arrivals, ‘no advantage' principle, Nauru, Greens statements’ 26 November 2012 (Interview with Lyndal Curtis) <http://pandora.nla.gov.au/pan/141738/20130718-1402/www.minister.immi.gov.au/media/cb/2012/cb192019.htm>.

130 Australian Broadcasting Corporation, ABC24, ‘Offshore processing, boat arrivals, Sri Lankan returns, increase in humanitarian intake, ‘no advantage’ principle, Nauru, Manus Island’ 22 November 2012 (interview with Marius Benson) <http://pandora.nla.gov.au/pan/141738/20130718-1402/www.minister.immi.gov.au/media/cb/2012/cb191935.htm>. See also Chris Bowen, ‘Sri Lankan returns, Afghan return, Manus Island, Nauru, ‘no advantage’ principle for people onshore, humanitarian intake’ (Media Release, transcript of doorstop interview, Sydney, 22 November 2012) <http://pandora.nla.gov.au/pan/141738/20130718-1402/www.minister.immi.gov.au/media/cb/2012/cb191923.htm>.

131 Between 1999 and 2001, IMAs recognized as refugees were granted temporary protection visas that varied between three and five years in duration. See former Subclass 785. For an account of the laws operating during those years, see Crock and Berg, (n 52) ch 12.

132 See Migration Act 1958, section 37A; Migration Regulations1994, Sch 2, subcl 449. At time of writing the use of these visas for IMAs was the subject of a High Court challenge. See Plaintiff M79 v Minister for Immigration and Citizenship (2013) HCATrans 7 (8 February 2013) at <http://www.austlii.edu.au/au/other/HCATrans/2013/7.html>.

133 Letter from Antonio Guterres to Chris Bowen, 5 September 2012, available at <http://unhcr.org.au/unhcr/images/120905%20response%20to%20minister%20bowen.pdf>.

134 JRS Asia Pacific (n 60) 33–34. The chart pp 33–4 sets out average processing times (both predicted times and actual times) for refugee status determination in Indonesia and Malaysia.

135 To begin with, resettlement is predicated on UNHCR being permitted to run programmes to find safe third countries for refugees. Bangladesh is an example of a country with millions of refugees and no resettlement programme.

136 Liberal Party of Australia (n 16) 7. See Migration Amendment (Temporary Protection Visas) Regulation 2013 [SLI 2013, 234]. This instrument extends the temporary protection regime to all asylum seekers who arrive in Australia without a visa (by boat or by plane) and/or who fail to pass immigration clearance. The measure was disallowed by the Senate but survives as a policy.

137 See Department of Immigration Multicultural and Indigenous Affairs Interpreting the Refugees Convention – an Australian Contribution (Commonwealth of Australia, 2002) 123 ff.

138 Prime Minister Julia Gillard, New Zealand Prime Minister John Key, ‘Joint Statement by Prime Ministers Key and Gillard: February 2013’ (Media Release, 9 February 2013) <http://www.pm.gov.au/press-office/joint-statement-prime-ministers-key-and-gillard-february-2013>; Australia strikes refugee deal with NZ’, ABC News (online) 10 February 2013 <http://www.abc.net.au/news/2013-02-09/australia-to-send-some-asylum-seekers-to-nz/4509682>.

139 Hathaway (n 32) 174, 183; see also Rajendran v Minister for Immigration and Multicultural Affairs (1998) 166 ALR 619 (Full Federal Court).

140 Plaintiff M47-2012 v Director General of Security [2012] HCA 46 (5 October 2012). In that case, a majority seemed to prefer the view that where Australia's laws did not authorize presence for the purposes of pursuing a claim to refugee status, asylum seekers are not lawfully present and cannot therefore claim the rights attaching to the ‘lawful presence’ level of attachment, and thereby deferred to national rather than international understandings of lawful presence, although Heydon J did not criticize, but distinguished, Rajendran (at [253]).

141 Hathaway (n 31) 185, ie rights up to and including those attaching to lawful presence.

142 See (n 132).

143 See Immigration Regulation 2000 (Nauru) regs 2 and 9A(1)(a).

144 Liberal Party of Australia, ‘The Coalition's Policy to Clear Labor's 30,000 Border Failure Backlog’ (August 2013) <http://www.liberal.org.au/our-policies> 7.

145 Goodwin-Gill, G, ‘Article 31 of the 1951 Convention relating to the Status of Refugees: Non-penalization, detention, and protection’, in Feller, E, Türk, V, Nicholson, F, (eds), Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (Cambridge University Press 2003) 185.

146 See UNHCR Australian Regional Representation (n 29).

147 Department of Immigration and Citizenship, ‘Immigration Detention Statistics Summary’, Department of Immigration and Citizenship, 31 December 2012 <http://www.immi.gov.au/managing-australias-borders/detention/_pdf/immigration-detention-statistics-dec2013.pdf>.

148 Australian Human Rights Commission, Asylum seekers, refugees and human rights: Snapshot Report (2013), available at <http://www.humanrights.gov.au/publications/asylum-seekers-refugees-and-human-rights-snapshot-report>, 6–12.

149 A v Australia UN Doc CCPR/C/59/D/560/1993; Mr C v Australia, UN Doc CCPR/C/76/D/900/1999; Baban v Australia, UN Doc CCPR/C/78/D/1014/20011; Bakhtiyari v Australia, UN Doc CCPR/C/79/D/1069/2002; D and E v Australia, UN Doc CCPR/C/87/2D/1050/2002; Shafiq v Australia, UN Doc CCPR/C/88/D/1324/2004; Shams and ors v Australia, UN Doc CCPR/C/90/D/1255; see also Concluding Observations of the Committee Against Torture: Australia, UN Doc CAT/C/AUS/CO/I (15 May 2008) at <http://www2.ohchr.org/english/bodies/cat/docs/co/CAT-C-AUS-CO1.pdf>; Crock and Berg (n 52) ch 4.

150 Migration Act 1958 section 198AD(11) provides that a person who is ‘being dealt with’ under the 198AD(3) power to take them to a regional processing country ‘is taken not to be in immigration detention’.

151 Senator Chris Evans, ‘New Directions in Detention – Restoring Integrity to Australia's Immigration System’, Australian National University, Canberra, Tuesday 29 July 2008, available at <http://pandora.nla.gov.au/pan/67564/20081217-0001/www.minister.immi.gov.au/media/speeches/2008/ce080729.html>.

152 Chris Bowen, ‘No advantage onshore for boat arrivals’ (Media Release, 21 November 2012) <http://pandora.nla.gov.au/pan/141738/20130718-1402/www.minister.immi.gov.au/media/cb/2012/cb191883.htm>.

153 Department of Immigration and Citizenship, Answer to Question Taken on Notice, Budget Estimates Hearing, 21–22 May 2012, BE12/0265, available at <http://www.aph.gov.au/Parliamentary_Business/Senate_Estimates/legconctte/estimates/bud1213/diac/index>.

154 Parliament of Australia, Parliamentary Debates, House of Representatives, 13 May 2003, 14006 (Julia Gillard).

155 Migration Regulations 1994— Specification under paras 050.613A(1)(b) and 051.611A(1)(c) —Classes of Persons—November 2012 operates to make work rights discretionary for persons granted a BVE Subclass 050 or a BVE Subclass 051 visa under section 195A of the Migration Act 1958.

156 ‘EU Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof’ Official Journal of the European Communities 7 August 2001.

157 See, for example, comments made by the head of immigration detention in Indonesia, Djoni Muhammad, who justified the slowness of processing activities in Indonesia on the basis that ‘If the asylum seekers in Indonesia got sent there sooner it would just be like an advertisement. Other people waiting in Malaysia and other places would immediately come here saying: it's good in Indonesia; it's a much swifter process there’: Australian Broadcasting Corporation, ‘Offshore processing won't make a difference: Indonesian detention centre boss’, PM, 2 November 2012.

158 See Department of Immigration and Citizenship, ‘Amendments Regarding the Eligibility of Irregular Maritime Arrivals to Apply for a Visa, or to Propose Family, under the Humanitarian Program’, Department of Immigration and Citizenship, 2012 <http://www.immi.gov.au/legislation/amendments/2012/120928/lc28092012-01.htm>.

159 See A v Australia UN Doc CCPR/C/59/D/560/1993; rejected in Amuur v France (1992) 22 EHRR 533.

160 Explanatory Statement to Migration Amendment Regulation 2012 (No 5), Select Legislative Instrument 2012 No 230 issued by the Minister for Immigration and Citizenship under the Migration Act 1958.

161 See UNHCR Executive Committee Conclusion No 85 (1998); Executive Committee Conclusion No 87 (1999).

162 This is reflected in the language used in 2001 to legislate for the creation of the first Pacific Solution. See Migration Act 1958, section 198A(3).

163 Whether an instrument constitutes a treaty as defined by the Vienna Convention on the Law of Treaties depends on its terms. These MOUs do not appear in the Australian Treaty Series and, most crucially, do not suggest an intention to be bound by international law: see Triggs, G, International Law: Contemporary Principles and Practices (LexisNexis 2006), 499500.

164 Constitution of the Independent State of Papua New Guinea 1975, art 5; Constitution of Nauru 1968, Part II, Protection of Fundamental Rights and Freedoms, art 3.

165 Refugees Convention Act 2012 (Nauru); Asylum Seekers (Regional Processing Centre) Act 2012 (Nauru).

166 Eoin Blackwell, PNG court denies order for refugee ban’, The Australian, 14 February 2013 <http://www.theaustralian.com.au/news/breaking-news/png-court-denies-order-for-refugee-ban/story-fn3dxix6-1226577890384>; Firmin Nanol, ‘PNG opposition resurrects legal challenge to Australia's asylum policy’, Australia Network News (online), 20 August 2013 <http://www.abc.net.au/news/2013-08-20/png-opposition-resurrects-legal-challenge-to-aust-asylum-pol/4900512>.

167 ‘Detention-camp business behind Nauru turmoil, says opposition MP’, Radio New Zealand International (online) 14 February 2013 <http://www.rnzi.com/pages/news.php?op=read&id=74017>;

168 See AG & Ors v Secretary of Justice [2013] NRSC 10 (18 June 2013).

169 ‘Six months to rebuild asylum centre: Nauru’, SBS World News (online) 26 July 2013 <http://www.sbs.com.au/news/article/2013/07/26/six-months-rebuild-asylum-centre-nauru>.

170 UNHCR, Protection policy paper: Maritime interception operations and the processing of international protection claims: legal standards and policy considerations with respect to extraterritorial processing’ November 2010, Refworld <http://www.unhcr.org/refworld/docid/4cd12d3a2.html>.

171 ibid 16.

172 On cooperation with UNHCR, see the Refugee Convention art 35.

173 See Vienna Convention on the Law of Treaties, art 26.

174 See AAP, ‘Scott Morrison defends calling asylum seekers “illegal”’, Sydney Morning Herald, 21 October 2013, available at <http://www.smh.com.au/federal-politics/political-news/scott-morrison-defends-calling-asylum-seekers-illegal-20131021-2vw0r.html>.

175 See ‘Don't Kick Refugees Just to Score Points’, The Australian, 20 June 2001, 13.

176 See Hirsi Jamaa et al v Italy App No 27765/09 (Eur Ct HR 23 February, 2012).

177 The Grand Chamber of the European Court, ruled that Italy had breached its obligation to protect the applicants from torture and inhuman or degrading treatment (art 3 of the European Convention on Human Rights. It had also engaged in the collective expulsion of non-nationals contrary to art 4 of Protocol No 4 to the European Convention. This was so even though the applicants never reached Italian territorial waters. See JA Hessbruegge, ‘European Court of Human Rights Protects Migrants against “Push Back” Operations on the High Seas’ at <http://www.asil.org/insights120417.cfm> (accessed 14 February 2013).

I gratefully acknowledge the assistance provided by Hannah Martin and Laura Smith-Khan in the research for this article. Thanks also to Ron McCallum AO, Ben Saul, Catherine Renshaw and Emily Crawford for comments on the article in its formative phase and to the anonymous reviewers for their helpful suggestions. The article draws on research undertaken in part for the AusAID funded project, Protection of Refugees with Disabilities and in part for the ARC Linkage Project LP120200770 Comparing immigration policy in the Group of Five: Developing an evidence base for evaluating the role of policy in international migration.

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International & Comparative Law Quarterly
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