How did it come to this?

Australia prides itself as a country that abides by and upholds international treaties. But the forced closure of its Manus Island offshore refugee processing centre in Papua New Guinea is the culmination of nearly 30 years of gradual retreat from Australia’s responsibilities to refugees under the United Nations Refugee Convention.

How did this happen?

What were initially planned as only interim measures have led to a system in which Australia simply refuses to take in all boat arrivals, and effectively punishes them by putting them in camps in nearby countries. Or, in the case of the remaining 328 asylum seekers on Manus, funding the PNG government to house them after the Supreme Court there ordered the detention centre be closed because it was unconstitutional. What ultimately will happen to the detainees remains unclear.

Australia’s retreat from its responsibilities has been cumulatively enabled through a vast number of changes to policy and migration law from the late 1980s. These include the introduction of immigration detention, the excision of territory, offshore processing, privatisation of detention centre operations, limitations on judicial review and other restrictions on access to legal protections for refugees in detention through the dilution of the refugee definition in the Migration Act and exclusions barring a person from being granted refugee status. But it all began with the United Nations’ introduction of a dual track processing system under its Comprehensive Plan of Action (CPA) in 1989.

Responding to concerns over increasing numbers of refugee movement in Southeast Asia, the CPA established a new model for regional cooperation on a resettlement policy, notably in relation to unauthorised arrivals. This endorsed provisions under which persons seeking protection under the Convention would no longer enjoy automatic refugee status. Instead they were to be defined initially as ‘asylum seekers’ whilst awaiting screening and processing as refugees prior to any assurance of access to Refugee Convention protections. Whilst the CPA was underpinned by principles of shared responsibility, it led to burden shifting and altered the way that refugees were classified under law. It also diluted the original intention of the Convention that refugee status be enjoyed irrespective of being declared so by a state.

Beginnings of detention

Adoption of the CPA by Australia’s Federal Labor Government in 1989 underpinned its policy to bar ‘unauthorised’ boat arrivals from Indochina from automatic refugee protection under the Migration Act. This move was supported by both major political parties and laid the foundations for the most ‘comprehensive reform of immigration legislation in 30 years.’ It made lawful the detention of a specific group of arrivals, notably Cambodian ‘boat’ arrivals seeking refugee protection, and gave the government authority - beyond doubt - to detain and hold in detention Illegal Maritime Arrivals (IMAs) until their claims to remain in Australia were resolved.

This altered the categorisation of refugee movement, opening up a space for the deferral of Refugee Convention obligations through the new category of asylum seeker. Asylum seekers aren’t granted the full legal protections granted to ‘refugees.’

In effect, the government was able to bar all ‘unauthorised’ arrivals from automatic protection under the Migration Act, with the stated aim of deterring clandestine movement by detaining these arrivals, often indefinitely and in harsh conditions.

At the time, immigration detention was described as a discretionary and limited measure in respect of a discrete group of asylum seekers. By 1992 however, the discretionary capacity was moved and immigration detention was mandated for this specific group of boat arrivals. At this time, Labor Minister Gerry Hand remarked that it was:

“only designed be an interim measure [which] refers principally to a detention regime for a specific class of persons. As such it is designed to address only the pressing requirements of the current situation.”

Mandatory detention

Reforms to the Migration Act by the Keating Labor government led to mandatory detention for all boat arrivals from 1994 onwards.

Mandatory immigration detention undermines the terms of Australia’s obligations to the Refugee Convention through the detention and effective denial of rights for those arriving without prior authorisation on Australian territory. Since this interim measure was introduced, it has steadily become a central plank of Australia’s border protection policy.

Until 2001, when the government refused to allow 433 asylum seekers to land on Christmas Island, in what is known as the Tampa Affair, this typically amounted to a deferral of responsibility for resettlement. However, the use of offshore processing (first from 2001 until 2008 and then again from 2012 onwards) has dramatically altered the terms of Australia’s responsibility for resettlement of boat arrivals. Such refugees aren’t given assurances of ever being settled in Australia and the excision of Australian territory prevents the relevant terms of the Migration Act from being applied to ‘boat arrivals.’ Offshore processing is used as a deterrent and punitive response to unauthorised movement.

Direct contravention

This directly contravenes Article 31 of the Refugee Convention, which explicitly states that no penalties are to be applied to refugees based on their mode of arrival. The Convention also recognises that refugees often need to act outside the law to seek protection. This is reflected in approval rates in Australia of refugee status for ‘boat people’ which have typically been twice the approval rate for authorised arrivals onshore.

Approval rates for refugee protection have been upwards of 80% of applications by those in detention (DIPB Asylum Trends Report 2013 - 2014). More recent figures are difficult to determine given the government introduction of a cap on the grant of protection visas in 2014, a ministerial direction to devote resources to the processing of non-IMAs over ‘boat arrivals’, and the diversion of asylum seekers to offshore processing centres outside Australian territory.

This isn’t to say that Australia refutes its Convention obligations outright: it continues to admit refugees under its offshore program and does have a strong history of refugee intake. However, the refusal to resettle those who arrived ‘by boat’ is based on a discriminatory response to a particular category of refugee movement that ignores the realities of those waiting in the refugee ‘queue’ that has places to accommodate only 1 per cent of those seeking protection.

Deflecting responsibility

Australia’s breach of Convention obligations for a particular class of persons seeking refugee status has also become more sophisticated since immigration detention was first introduced. The complex contractual arrangements with private providers in offshore processing and the effective outsourcing of Australia’s Convention obligations to states like Nauru and PNG, has enabled Australia to deflect responsibility for the harms experienced by those in held in offshore centres.

The withdrawal from direct responsibility whilst maintaining control, is also exerted through ‘intent management’. This is a shift away from the government using direct, coercive techniques, to instead making the detainees responsible for their own, heavily constrained, choices. For example, in the stand-off on Manus Island the Australian government sought to make the conditions and environment sufficiently inhospitable to induce the detainees to make their own ‘choice’ to leave, and to ‘cooperate in their own exclusion.’ This Australian government issued directives to empty water tanks, turn off energy sources, and cut food supplies and medical support.

For decades Australia has been gradually retreating from its international obligations to refugees to the point where it is now having international repercussions. Australia’s tough border protection policies, such as immigration detention, are becoming the standard which other western states now look to in responding to ‘unauthorised’ boat arrivals. But it is far from the standard that Australia aspired to when we first signed up to protect refugees.

Banner image: Nauru regional processing facility, September 2012. Picture: DIAC images/Wikimedia