Australia: 'Pacific Solution' Redux

The Australian parliament's swift approval of an "offshore processing" law marks a shift in refugee policy that appears arbitrary and discriminatory on its face.

The Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011, passed by the Senate on August 16, 2012, and by the House the previous day, authorizes the transfer of asylum seekers who arrive by boat to remote Pacific islands, where they will remain indefinitely while their refugee claims are processed.

"Australia's new offshore processing law is a giant step backward in the treatment of refugees and asylum seekers," said Bill Frelick, refugee program director, "Australia again seeks to shunt desperate boat people to remote camps, perhaps for years, to punish them for arriving uninvited by sea."

The new law authorizes the government to transfer irregular migrants arriving by sea to the Pacific country of Nauru or to Manus Island, a remote malarial island that is part of Papua New Guinea. The legislation was rushed through the House and Senate just days after a government-appointed panel of experts issued a 22-point plan for addressing the issue of asylum seekers who arrive by boat.

While the legislation adopted the panel's recommendation to reinstate offshore processing, it did not include most of the panel's other recommendations, many of which were geared toward improving the capacity of Australia, transit countries, and source countries to provide asylum seekers with safe alternatives to irregular boat departures. The House rejected an amendment that would have set a one-year limit on the time asylum seekers could be held at the offshore sites.

The legislation only targets asylum seekers who arrive irregularly by boat. The claims of asylum seekers who arrive by air, even with improper documents, will continue to be processed while they remain in Australia. In most cases they will continue to be given "bridging visas," which allow them to live and work in the community.

"People escaping persecution often have good reasons not to ask the authorities for permission to travel before they flee," Frelick said. "To set up a system that discriminates against asylum seekers just because they arrive irregularly by boat flies in the face of both basic fairness and fundamental refugee protection principles."

In July 2011 Australia announced an "arrangement" to transfer irregular maritime asylum seekers to Malaysia, but Australia's High Court halted that plan, finding that the arrangement contravened the requirement in section 198A of Australia's Migration Act to provide access to effective procedures for asylum.

The court found that since Malaysia had not ratified the 1951 Refugee Convention and had no domestic refugee law, it was not legally bound to provide access to effective asylum procedures and protection for refugees, and that the Australian minister for immigration and citizenship, therefore, could not send asylum seekers there.

After the High Court ruling, the Labor government was unable to win parliamentary support for legislation to amend the Migration Act to revive the Malaysia deal because the opposition Liberal Party preferred offshore processing at Nauru and Manus Island. But the government found common ground with the opposition this week when both agreed to enable offshore processing at Nauru and Manus Island by scrapping section 198A of the Migration Act, circumventing the High Court ruling.

The new law adds that "the designation of a country to be an offshore processing country need not be determined by reference to the international obligations or domestic law of that country."

Refugee processing was closed at Manus Island in 2004 and at Nauru in 2008 after the so-called "Pacific Solution" was criticized for being both costly and inhumane. Nauru Island became a party to the Refugee Convention in 2011, but has not yet demonstrated its capacity to provide effective asylum procedures and refugee protection, two additional criteria set forth by the High Court for compliance with section 198A. Papua New Guinea is also a party to the convention, but it has entered many reservations to it and also lacks a national refugee determination procedure.

Australia's prime minister, Julia Gillard, said that asylum seekers could be sent to Nauru as early as September where they would initially live in tents, and could be expected to wait there as long as five years for their applications to be processed.

Gillard's minister for immigration and citizenship, Chris Bowen, should not designate any countries for offshore processing, since the legislation, on its face, is discriminatory and is almost certain to result in arbitrary detention.

"Parliament may have skirted the High Court's ruling by cutting human rights protection from the Migration Act, but not the principle on which the ruling rested," Frelick said. "Should this plan go forward, Australia will be shirking its obligations under the Refugee Convention by punishing asylum seekers based on their arrival and indefinitely detaining them offshore where their rights won't be ensured."