The Pacific Plan: The Provision of Effective Protection?

Transcription

1 Ó The Author (2006). Published by Oxford University Press. All rights reserved. For Permissions please doi: /ijrl/eel022, Advance Access published on September 29, 2006 The Pacific Plan: The Provision of Effective Protection? SUSAN KNEEBONE* Abstract The issue that is examined in this article is whether the Australian model of extraterritorial processing is one that provides effective protection to asylum seekers. The legal foundation of the Pacific Strategy was by means of new interdiction powers and an extension of the notion of safe third country. Three issues are examined: the first is the meaning of effective protection under this extended notion of safe third country, the second is the extent to which Australia s Pacific Strategy provided such protection, the third is what lessons can be learnt from the Australian model. Following an examination of the Refugee Convention and UNHCR Executive Committee Conclusions, it is concluded that effective protection in this context requires durable solutions and freedom from arbitrary detention, penalties, discrimination and refoulement. In respect to the latter freedom, it requires adequate processes. The human rights of asylum seekers must be respected, including their social and economic rights, as far as possible. It is concluded that Australia s Pacific Strategy did not provide effective protection in this sense. In particular, issues in relation to the processing arrangements and non-durable solutions are highlighted as leading to lessons for other extraterritorial processing initiatives. 1. Introduction Australia s Pacific Plan or Pacific Solution, now called the Pacific Strategy, arose from the arrival of the Norwegian registered container ship, the MV Tampa, with a cargo of 433 asylum seekers in the waters off Australia s Christmas Island in late August The majority of these boat people were part of the Afghan diaspora of 2001 when an estimated 900,000 people fled Afghanistan. 1 At this time Indonesia, Australia s northern neighbour, was the main transit country for boat people seeking to come to Australia and locus for people smuggling. Australia and Indonesia were in the process of establishing a co-operative arrangement in relation to smuggling and trafficking of persons, and Australia was assisting with the costs in processing refugees in Indonesia. 2 * Associate-Professor, Faculty of Law, Monash University, Australia, and member of the Castan Centre for Human Rights Law, Faculty of Law, Monash University, Australia. My thanks to Edwina Howell for her assistance with the research of this paper. 1 F. Farouque and D. Gray, The Afghan diaspora, The Age, 30 Aug. 2001, 2 (with The Guardian). 2 S. Kneebone and S. Pickering, Australia, Indonesia and the Pacific Plan in S. Kneebone and F. Rawlings-Sanaei (eds.), New Regionalism and Asylum Seekers: Challenges Ahead (forthcoming), ch. 7.

2 The Pacific Plan 697 The Pacific Strategy was directly modelled upon the USA Caribbean Plan s interdiction policy. 3 Taking advantage of the atmosphere of crisis which it had created through the Tampa incident, the government rushed through a swag of legislation to put the plan in place. First, it legislated to excise certain remote islands from Australia s migration zone, so as to prevent the making of valid claims in those places (where there had been boat arrivals from Indonesia in recent years). 4 Then in an extension of the notion of safe third country, it provided that asylum seekers could be taken to a declared country for processing. 5 Such declared countries were to become the sites of the Pacific Strategy detention arrangements. Simultaneously, the government also legislated to create wider border protection powers by granting greater interdiction powers, including the power to intercept, turn-around, search and detain asylum seekers who were attempting to enter Australia without authorisation. 6 By virtue of Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001, a new category of person known as an offshore entry person was created. An asylum seeker who arrives in an excised zone becomes an offshore entry person who is prohibited from bringing legal proceedings to challenge their detention and transfer. 7 Further, an offshore entry person is prohibited from applying for a protection visa 8 in Australia, unless the Minister for Immigration personally grants permission. 9 The asylum seekers interdicted under the Pacific Strategy in the following weeks and months had made secondary movements to Indonesia from other places of refuge before setting sail for Australia. The Pacific Strategy denied the right to seek asylum in Australia by these secondary movers. It was a continuation of a policy of discouraging asylum seekers on Australian shores which began with the 1989 Comprehensive Plan of Action for Indo-Chinese refugees (CPA). 10 Although the Australian government created the impression that the Pacific Strategy was necessary to 3 N. Hancock, Refugee Law Recent Developments at, pubs/cib/ /02cib05.htm.. 4 On 26 Sept six Acts were passed including, the Migration Amendment (Excision from Migration Zone) Act 2001; and the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act The amendments excised Christmas Island, Ashmore Reef, the Cocos (Keeling) Islands, and offshore sea and resource installations in Australian territory from the migration zone under the Migration Act 1958 (Cth). 5 Migration Act, s. 198A(3). 6 Border Protection (Validation and Enforcement Powers) Act Migration Act, s. 494AA. 8 Migration Act, s. 36, provides for the granting of protection visas. This is the form in which Australia s obligations under the Refugee Convention (1951 Convention Relating to the Status of Refugees, entered into force on 22 Apr. 1954, and 1967 Protocol Relating to the Status of Refugees, entered into force on 4 Oct. 1967) are implemented. 9 Migration Act, s. 46A. 10 Kneebone and Pickering, n. 2 above.

3 698 Susan Kneebone cope with a mass influx of refugees, the statistics did not support that characterisation. 11 The issue that is examined in this article is whether the Australian model of extraterritorial processing is one that provides effective protection to asylum seekers. The legal foundation of the Pacific Strategy as described above was by means of new interdiction powers and an extension of the notion of safe third country, which relies on the provision of effective protection. 12 Thus, the first question to be examined is what constitutes effective protection under this extended notion of safe third country? The next question is the extent to which Australia s Pacific Strategy provided such protection. Finally, the lessons from the Australian model are discussed. 2. Effective Protection The concept of protection from persecution is central to the refugee definition in the Refugee Convention. In that context, protection can be construed as the non-refoulement obligation in Article 33 of the Convention. The term effective protection is used in that sense in the context of the safe third country notion. 13 More recently the term effective protection elsewhere has come into use, 14 to emphasise that the notion of safe third country essentially means that some other country has the responsibility for processing the claim for asylum. 15 In the context of the safe third country notion, Legomsky and others have teased out the meaning of effective protection from refoulement. 16 The discussion in this context is about whether the right against nonrefoulement will be respected in practice, and whether there is protection against chain refoulement. For example, there is discussion of the nature of the necessary arrangements, guarantees and rights to be readmitted to a third country, the need for formal readmission agreements, whether the third country needs to have formally acceded to the Refugee Convention or whether evidence of a practice of non-refoulement is sufficient. It is also 11 Ibid.; See also, C. M.-J. Bostock, The International Legal Obligations Owed to the Asylum Seekers on the MV Tampa 14 IJRL 279 (2002), S. Legomsky, Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: the Meaning of Effective Protection 15 IJRL 567 (2003), 570. Migration Act, s198a(3) describes a declared country as one that provides effective procedures and protection. 13 Ibid. 14 Department of Immigration and Multicultural and Indigenous Affairs ( DIMIA ), The Principle of Effective Protection in the Australian Domestic Legal and Policy Context in UNHCR, Australia, Discussion Paper: The principle of effective protection elsewhere, available at, The Australian government interprets its obligation under the Refugee Convention to apply only when it is the country of last resort. 15 Legomsky, n. 12 above. 16 Ibid.

4 The Pacific Plan 699 recognised that a failure by the third country to provide fair refugee status determination may result in constructive refoulement. In its 2000 Note on International Protection, the UNHCR drew attention to the plethora of varying notions of protection [that have] emerged in the international debate. 17 In this context the UNHCR was referring to operational issues, but the same comment could be made about the concept of protection. For example, there is debate over the meaning of protection from persecution in the context of actions by non-state agents, where internal flight is an alternative and more recently, in the context of the ceased circumstances provision, Article 1C(5) of the Refugee Convention. Increasingly, in interpreting the Convention, the concept of protection is being used to water down the concept of protection from persecution. The need to counteract this trend is leading to renewed interest in the concept of effective protection. A broader sense of effective protection is emerging through two converging strands of thinking. First, there is the notion of durable or lasting solutions for refugee protection. This is not a new focus, but recently it has become more urgent as states move away from effective solutions. Secondly, there is a stronger emphasis on the human rights that apply to refugees which arises from frustration at restrictive interpretation by states of their obligations under the Refugee Convention. There is a renewed interest in stressing the human rights framework of the Convention and its overlap with general human rights protection. The issue of what standards of treatment and solutions amount to effective protection has become all important as states attempt to strip asylum seekers of their basic right to seek and enjoy asylum. In the context of the safe third country notion in Europe, a recent European Commission Communication requires (apart from a guarantee of physical security and against refoulement, and adequate procedures): Social and economic well-being, including as a minimum access to primary healthcare and primary education, and access to the labour market or to means of subsistence sufficient to maintain an adequate standard of living. 18 The issue that this raises is how does this requirement translate into the context of extraterritorial processing? 2.1 Durable Solutions and Effective Protection In the period after the Second World War, the focus of refugee protection under the Refugee Convention was upon integrating and resettling 17 UNHCR, Executive Committee of the High Commissioner s Programme, 51 st Session Note on International Protection, UN doc. A/AC.96/930, 7 July European Commission, Towards a more accessible, equitable, and managed international protection regime COM(2003) 315 Final, 23 June 2003.

5 700 Susan Kneebone refugees in a new country. The expression durable solutions for refugees appears in the early 1980s when it became clear that new approaches and solutions were needed. This was the period in which there was a substantial rise in the number of refugees world wide. From the 1970s onwards, refugee crises in parts of the world other than Europe, largely in developing countries affected by de-colonisation and independence movements, suggested that the refugee problem was more complex and required different approaches to those envisaged by the drafters of the 1951 Convention. For example, up to 3 million people fled from Indo- China in the two decades after The 1984 Cartagena Declaration on Refugees adopted at a Colloquium held at Cartagena, Colombia, in November 1984 (the Cartagena Declaration), 19 which relates to the refugee situation in Central America, was a response to mass refugee influxes, in this case arising from political and military instability in Central America in the 1970s and 1980s. In 1974 the UNHCR estimated that there were 2.4 million refugees, but by 1984 the figure was 10.5 million. 20 During these decades UNHCR s Executive Committee s Conclusions are a valuable indication of the development of refugee law. They reflect contemporary refugee crises and are very instructive in recording the development of approaches to asylum. For example, UNHCR Executive Committee Conclusion No. 22 (XXXII) 1981 which dealt with the Protection of Asylum Seekers in Situations of Large-scale Influx, 21 emphasised the need to protect asylum seekers according to basic human standards and fundamental civil rights whilst providing temporary protection. It also, importantly, described the three traditional durable solutions in clause I.2 as voluntary repatriation, local settlement or resettlement in a third country. This phrase has been repeated and echoed many times since in refugee policy. The purpose of Conclusion No. 22, as stated in clause I.3, was to reaffirm the basic minimum standards for the treatment of asylum seekers pending arrangements for a durable solution, as well as to establish effective arrangements in the context of international solidarity and burden-sharing for assisting the receiving countries. Conclusion No. 22 sets out Measures of Protection in Chapter II, distinguishing between protection against non-refoulement and setting out the content of the basic minimum standards referred to in clause I.3. This was not the first time that the Conclusions had dealt with temporary protection in 19 OAS/Ser.L/V/II.66,doc.10, rev.1, L. Barnett, Global Governance and the Evolution of the International Refugee Regime 14 IJRL 238 (2002), Report of the 32 nd Session: UN doc. A/AC.96/601, para. 57(2).

6 The Pacific Plan 701 the context of mass influxes. 22 But it was the first time that the content of effective protection in that context was spelt out. 23 This will be analysed below. As a measure for achieving durable solutions, the central importance of asylum was reinforced during the refugee crisis in Indo-China in the 1970s and 1980s. The CPA, which was agreed upon in Geneva in June 1989, by the UNHCR, countries of first asylum and fifty resettlement countries in the West, followed a renewed surge in Vietnamese departures in the period. An important factor in the success of the CPA was the granting of asylum by countries in the region. 24 However another factor in the success of the CPA was that the countries of first asylum were assured that their obligations were temporary as resettlement would follow. At all times, voluntary repatriation has remained the preferred solution for refugees. For example, UNHCR Executive Committee Conclusion No. 58 (XL) 1989 on The Problem of Refugees and Asylum Seekers who Move in an Irregular Manner from a Country in which they had already found Protection 25 stated that governments should, in close co-operation with the UNHCR : (i) seek to promote the establishment of appropriate measures for the care and support of refugees and asylum seekers in countries where they have found protection pending... a durable solution and (ii) promote appropriate durable solutions with particular emphasis firstly on voluntary repatriation and, where this is not possible, local integration and the provision of adequate resettlement opportunities Thus, whilst voluntary repatriation was still emphasised in this period, the focus was changing to local integration 27 or containment in the country of first asylum. In the 1980s the emphasis of refugee protection changed from an exilic basis to a source control bias E.g., UNHCR Executive Committee Conclusion No. 5 (XXVIII) 1977 on Asylum, Report of the 28 th Session: UN doc. A/AC.96/549, para at para. (d) appealed to governments to grant temporary asylum to refugees who have come directly to their country. See also UNHCR Executive Committee Conclusion No. 15 (XXX) 1979 on Refugees without an Asylum Country, Report of the 30 th Session: UN doc. A/AC.96/572. para. 72(2). 23 E.g., UNHCR Executive Committee Conclusion No.19 (XXXI) 1980 on Temporary Refuge cl. (e) referred to basic humanitarian standards of treatment. 24 UNHCR, The State of the World s Refugees 2000: Fifty Years of Humanitarian Action, Ch. 4: Flight from Indochina, Report of the 40 th Session: UN doc. A/AC.96/737, part N. 26 Ibid., para. (d). 27 Ibid., para. (e). 28 T.A. Aleinikoff, State Centred Refugee Law: From Resettlement to Containment (1992) 14 Michigan Journal of International Law 120, 125.

7 702 Susan Kneebone The Agenda for Protection 29 that arose out of the UNHCR Global Consultations on International Protection of 2000, attempts to deal with the refugee problem at the end of the 20 th Century comprehensively. It is framed against a background of human rights protection 30 and has a large emphasis on durable solutions, especially for protracted refugee situations. It has a specific goal (Goal 5) of Redoubling the search for durable solutions. It recognises that voluntary repatriation remains the preferred solution for refugees, but stresses the importance of resettlement as a tool for burden sharing 31 and urges the expansion of resettlement opportunities. In particular, it recognises that policies of containment have led to inequalities in the distribution of the burden of the refugee problem, and resulted in human rights abuses. Thus, one focus of the Agenda is on effective protection in countries of first asylum. 32 UNHCR Executive Committee Conclusion No. 100 (LV) 2004 on International Cooperation and Burden and Responsibility Sharing in Mass Influx Situations 33 reaffirms that: [A]ccess to asylum and the meeting by all States of their international protection obligations should not be dependent on burden and responsibility sharing arrangements first being in place, particularly because respect for human rights and humanitarian principles is a responsibility for all members of the international community. Building upon the Agenda for Protection, the Committee acknowledges the need for arrangements amongst States with a view to developing appropriate international responses, in the interests of protecting refugees. Clearly this is a signal for cooperative action, against a background of human rights. Durable solutions remain focused upon voluntary repatriation, local settlement or resettlement in a third country. States cannot avoid their responsibilities by arranging for processing of asylum seekers in third countries. As Erika Feller in this issue states, all asylum seekers require a genuine prospect of a durable solution and these arrangements need to be in place. The need for international cooperation in this context is evident. 2.2 Effective protection and the Refugee Convention: a textual analysis We turn now to consider the standards for effective protection. UNHCR Executive Committee Conclusions have couched these in relation to 29 A/AC.96/965.Add.I, 26 June Ibid., Declaration of State Parties, Preamble cl Ibid., Goal 3, objective Ibid., Goal 2 Protecting refugees within broader migration movements objective no. 4 Reduction of irregular or secondary movements. 33 A/AC.96/989, 7 July 2004.

8 (ii) The Pacific Plan 703 secondary mover asylum seekers in general terms, as humane treatment 34 and recognized basic human rights. 35 The Australian Migration Act, section 198A(3)(a) also contains general statements about standards. It states that a chosen declared country for the Pacific Strategy must be one that provides effective procedures (section 198A(3)(a)(i)), and additionally: (i) provides protection for persons seeking asylum, pending determination of their refugee status; and provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and (iii) meets relevant human rights standards in providing that protection... The thrust of the Conclusions is to urge adherence to basic standards of protection, whilst interpreting the Refugee Convention flexibly to adapt to new situations. However there are some important indications from the text of the Convention itself as to what amounts to effective protection of persons in flight. First, the Convention confers tiers of rights on refugees according to the relationship or status of the refugee in the state from which asylum is sought, rather than on the basis of need alone. Secondly, those rights adhere to refugees according to a hierarchy of human rights ranging from basic rights to life and liberty to social and economic rights. In recognition of the declaratory nature of refugee status, some basic rights adhere to all refugees irrespective of status. These include the negative rights against non-refoulement (Article 33) and discrimination as to race, religion or country of origin (Article 3). 36 To this can be added Article 31, the non-penalisation provision which applies to refugees unlawfully in the country, that is those who have entered or attempted to enter the territory. 37 Additionally all refugees are entitled to free access to courts of law on the territory of all Contracting States (Article 16(1)). Generally, social and economic rights adhere to a refugee as the status of the person becomes more settled. Thus, for example, those refugees whose presence is simply lawful have a right to self employment, 34 E.g., Conclusion No. 58 of 1989, n. 25 above, para. (c)(iv). 35 Ibid., para. (f). UNHCR Executive Committee Conclusion No. 52 (XXXIX) 1988 on International Solidarity and Refugee Protection Report of the 39 th Session: UN doc. A/AC.96/721, para. 24 described the standard of protection as a basic standard of good faith and humanitarianism, consistent with the UNHCR s mandate. 36 See also, Art. 8 exemption from exceptional measures on the ground of nationality. 37 G. Goodwin-Gill, Article 31 of the 1951 Convention Relating to the Status of Refugees: nonpenalization, detention, and protection in E. Feller et al (eds.), Refugee Protection in International Law: UNHCR s Global Consultations on International Protection (2003), , explains that Art. 31 covers persons attempting to enter a territory on the basis of de facto control or jurisdiction.

9 704 Susan Kneebone freedom of movement and the right not to be expelled except on security grounds. 38 But lawful stayers are entitled to freedom of association, freedom of employment, eligibility for the liberal professions, housing, public relief, labour law protection and social security, and travel documents. 39 However, there are some rights in this category which apply to all refugees. These rights arise from the requirements to treat refugees on the same footing as aliens generally (Article 7) in relation to property rights and advanced education (Articles 13, 22(2)) and on the same footing as nationals generally in relation to rationing, elementary education and taxes (Articles 20, 22(1), 29). Hathaway says that in drafting the Convention a deliberate decision was taken not to require any attachment or lawful status for property rights, rights in relation to tax, and free access to courts of law because the drafters wished to ensure that asylum seekers could claim these rights even if not physically present. 40 At the other end of the spectrum, Article 30 of the Refugee Convention applies to resettled refugees and the transfer of assets. Clearly the drafters of the Refugee Convention were alive to the need to protect the rights of all refugees in a variety of situations, including those in flight. It is significant that attachment to the country of asylum is treated as important in the Refugee Convention, but not too much importance should be attached to this. The emphasis on attachment is consistent with the legal justifications for border control which stress the territorial-sovereignty nexus or the right to include or to exclude strangers on the basis of sovereignty. However, as explained below, that nexus is extended through notions of de facto control and jurisdiction to include extraterritorial actions. As stated above, there are some protections that apply to all refugees irrespective of their status under national law. These aspects of effective protection that are drawn from the Refugee Convention, are freedom from detention (Article 31) and non-discrimination (Article 3), and the provision of adequate procedures to protect against refoulement (Article 33). Conclusion No. 22 of 1981 dealing with the problem of Protection of Asylum Seekers in Situations of Large-scale Influx provides more specific guidance as to what amounts to effective protection for persons in flight. It states that they should enjoy the fundamental civil rights set out in the UDHR, 41 that they should receive all necessary assistance 42 and be provided with the basic necessities of life including food, shelter and basic sanitary and health facilities. 43 It required them 38 Arts. 18, 26, and 32 respectively. 39 Arts. 15, 17, 19, 21, 23, 24 and 28 respectively. 40 J. Hathaway, The Rights of Refugees Under International Law (2005), N. 21 above, ch. II, B.2(b). 42 Ibid., ch. II, B.2(i) refers to assistance... for the tracing of relatives and (l) of material assistance from friends or relatives.

10 The Pacific Plan 705 to be treated as persons whose tragic plight requires special understanding and sympathy. 44 It confirms that asylum seekers are to be considered as persons before the law, enjoying free access to courts of law and other competent administrative authorities. 45 In a number of respects it goes beyond the express provisions of the Refugee Convention. For example, it expressly refers to the need to respect family unity. It states that the location of asylum seekers should be determined by their safety and well-being as well as by the security needs of the receiving State. Does effective protection in the context of extraterritorial processing require social and economic rights beyond the basic necessities of life? In Europe, for example, it is recognised that such rights apply to the safe third country notion. Should interdicted persons have less rights? 46 In situations of real emergency, the basic necessities of life may suffice. But it is doubtful whether this characterisation applies in all situations of interdiction. Beyond freedom from detention and discrimination, and the provision of adequate procedures and other protection against refoulement, refugees should be treated as individuals whose human rights, including social and economic rights as far as possible, are respected. 2.3 Effective protection, the Refugee Convention and Human Rights The 1951 Refugee Convention was one of the first human rights instruments in the period following the Second World War. Although it predated the other human rights conventions, the preamble refers to the UDHR. It is clearly part of the human rights package. The interpretation of the grounds of persecution is aided by the human rights instruments. 47 It is recognised that the basic guarantee against refoulement in Article 33 of the Refugee Convention is strengthened by the prohibitions against torture in the ICCPR and the CAT which have the status of customary international law. 48 As the UNHCR Executive Committee Conclusions recognise, the rights of refugees must be put in this 43 Ibid., ch. II, B.2(c). 44 Ibid., (d). 45 Ibid., (f). This mirrors Art. 12 (recognition of personal status) and Art. 16 (access to the courts) of the Refugee Convention which apply to all refugees, and Art. 25 (administrative assistance) which applies to refugees in a territory. 46 In the Australian context there is an issue of what implications can be drawn from the Migration Act, s. 91R, which provides a definition of persecution involving serious harm to a person for the purpose of interpreting the Refugee Convention definition in Art. 1A(2). S. 91R includes significant economic hardship, denial of access to basic services and denial of capacity to earn a livelihood where the denial threatens the person s capacity to subsist. This provision was added by Migration Legislation Amendment Act (No. 6) 2001 in the post Tampa legislative package. 47 Council Directive 2004/83/EC of 29 Apr on minimum standards for the qualification and status of third country nationals or stateless persons as refugees... (entered into force 20 Oct. 2004) refers to the standards of the UDHR. 48 Bostock, n. 11 above.

11 706 Susan Kneebone framework. The Refugee Convention does not contain an exhaustive statement of the rights of refugees. There are two rights or freedoms which are particularly relevant to our discussion. First, there is the right to liberty and, secondly, there is the freedom from discrimination. Article 9 of the ICCPR contains the freedom from arbitrary detention. This provision prohibits both arbitrary and unlawful detention. This means that detention must be authorised by law and the enforcement of that law must not be arbitrary. The prohibition on arbitrary deprivations of liberty goes further than the issue of lawfulness, as arbitrariness is a principle above rather than within the law. 49 For example, in the case of A v. Australia, 50 which considered the application of Australia s law on mandatory detention, it was the prolonged and mandatory nature of the detention which was criticised by the Human Rights Committee, and which led to the conclusion that there was an arbitrary deprivation of liberty. A further reason for the conclusion was the fact that the detention was unreviewable, and also contrary to Article 9(4) as there was no right to challenge the legality of the detention. The Committee stressed the need for proportionality. In that case, the detention was for a period of over 4 years, and the indefinite and prolonged nature of the detention was another reason for the conclusion. A second important freedom is the freedom from discrimination. Apart from the specific provision in Article 3 of the Refugee Convention, which prohibits discrimination as to race, religion or country of origin, there are, as noted above, other provisions in the Convention which prohibit discrimination of refugees in comparison to other aliens and the nationals of the country. These provisions prohibit discrimination in relation to various social or economic rights. Additionally, the Convention prohibits discrimination between different groups of refugees. A strong antidiscrimination theme runs through the Refugee Convention. The provision in Article 3 of the Refugee Convention should be read with Executive Committee Conclusions, which also refer to prohibitions on discrimination. For example, Conclusion No. 15 adds political opinion and nationality 51 to the list of prohibited grounds, and Conclusion No. 22 adds physical incapacity. 52 It should also be read with Article 26 of the ICCPR, which prohibits discrimination more broadly on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 2 of the ICCPR is also relevant as it refers to the duty of states to 49 S. Joseph et al, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2 nd ed, 2003), A (name deleted) v. Australia (Communication 560/1993, UN Doc. CCPR/C/59/D/560/1993, 30 Apr. 1997). 51 N. 22 above. 52 N. 21 above.

12 The Pacific Plan 707 respect and to ensure the rights set out in the Covenant to all individuals within its territory and subject to its jurisdiction, without distinction of any kind including the prohibited grounds set out in Article 26. The Article 26 prohibition on discrimination requires both equal protection of the law and equality before the law in accordance with the opening sentence. 53 Equal protection of the law incorporates the duty not to discriminate. The concept of equality before the law involves equality and fairness in the administration of the law. Discrimination in this sense means any distinction, exclusion, restriction or preference based on a prohibited ground. 54 However, discrimination may be justified if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant. 55 The human rights context makes it clear that deprivation of liberty and discrimination in relation to refugees is generally unlawful. This context strengthens the conclusions about the meaning of effective protection set out above. 3. The Pacific Strategy: Testing the limits of Effective Protection At its height in February 2002, 1,550 people were held under the Pacific Strategy. This number included people taken from the MV Tampa, the Aceng and several other Indonesian boats intercepted during the naval Operation Relex in the weeks following the Tampa incident. During this period the SIEV X ( Suspected Illegal Entry Vessel Number 10 ) incident occurred, in which more than 300 asylum seekers (including women and children) drowned, as well as the now infamous children overboard affair, in which the government encouraged the belief that asylum seekers had thrown their children into the sea from a sinking boat. 56 There is also evidence of push backs to Indonesia in this period. The most publicised of these was that involving the Minasa Bone in November The small Indonesian fishing vessel, the Minasa Bone, was only the second boat to be detected entering Australian waters since the Tampa crisis. But the reaction to the incident was swift. The boat was returned to Indonesia after the asylum seekers, fourteen Kurdish Turks, had set foot on Australian territory, namely Melville Island, only 80 kilometres 53 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. 54 Joseph, n. 49 above, Ibid., 681, citing General Comment 18 of the HRC para A subsequent Senate enquiry found these allegations were false. This led to an apology to the asylum seekers concerned from the Prime Minister.

13 708 Susan Kneebone from the Australian mainland. 57 After some debate, the government conceded that all the men had tried to claim asylum in Australia before being towed back to sea. 58 In 2002 the government had unsuccessfully attempted to excise further islands from Australia s migration zone. However, this was prevented by an unfavourable report on the Bill. 59 However, in November 2003, the Government was able to rush through regulations to retrospectively excise almost 4000 islands, including Melville Island, from Australia s migration zone. 60 From this description of who was intercepted under the Pacific Strategy it is abundantly clear that many if not most were asylum seekers. A letter from the asylum seekers on the MV Tampa illustrates this fact. 61 Moreover according to the government s statistics, of the 1,550 people held under the Pacific Strategy 65.5 per cent were eventually resettled. Of this number, Australia accepted 58 per cent and New Zealand 38 per cent. A small proportion went to other countries including Sweden. 62 As at November 2003, 411 failed asylum seekers had accepted the voluntary return package and a small number of others had returned to their country of origin. Currently, there are two remaining Iraqi asylum seekers on Nauru, whose claims have been rejected on the basis that they represent a security risk to Australia. The facilities on Nauru are being maintained at the cost of A$1million per month in a contingency state. 63 For the present, other asylum seekers are being processed on the excised territory of Christmas Island, some 900 miles (1,440 kilometres) from mainland Australia. 3.1 The arrangements for the Pacific Strategy The Pacific Strategy arose from arrangements and agreements entered into with New Zealand, Nauru and Papua New Guinea (PNG). This followed failed attempts to secure agreements with other Pacific nations such as East Timor, Tuvalu, Fiji and Kiribati. During the litigation to gain the release of the Tampa asylum seekers, the Australian government announced, on the 31 st August 2001, that it had reached agreement with the governments of New Zealand and Nauru for the processing of the 57 Editor, Another case of truth overboard?, The Age, 15 Nov M. Forbes, M. Shaw, Kurds did seek asylum: Vanstone The Age, 14 Nov. 2003, Migration Legislation Amendment (Further Border Protection Measures) Bill See Legal and Constitutional References Committee, Migration Zone Excision: An examination of the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 and related matters, Senate Report, Oct The regulations were subsequently disallowed but in Aug. 2005, the government finally succeeded in excising thousands more islands from Australia s migration zone. 61 The letter is reproduced in Victorian Council for Civil Liberties Incorporated v. Minister for Immigration; Vadarlis v. Minister for Immigration [2001] FCA 1297; (2001) 110 FCR DIMIA Fact Sheet 76 dated May 2005 available at, 63 The Age, 27 Jan. 2006, 8.

14 The Pacific Plan 709 people rescued by the MV Tampa. The statement, read to the court by the Solicitor-General continued: Under the terms of the agreement, the rescuees will be conveyed to Nauru and New Zealand for initial processing. New Zealand has agreed to process 150 of those aboard the Tampa.... The remainder of the rescuees will be assessed in Nauru and those assessed as having valid claims from Nauru would have access to Australia and other countries willing to share in the settlement of those with valid claims. Australia will bear the full cost of Nauru s involvement in this exercise. Arrangements will be made to safely tranship the rescuees through a third country. We are currently in discussions with appropriate countries to effect this. We are also working closely with the International Organisation for Migration and the UNHCR to ensure that these arrangements are managed carefully and that the rescuees receive appropriate counselling and assistance. Australia will continue to ensure that the rescuees receive all necessary humanitarian assistance while these arrangements are put in place.... On 11 October 2001, Australia signed a second Memorandum of Understanding (MoU) with PNG to build a detention facility on their territory that was to accommodate asylum seekers for six months or as short a time as is reasonably necessary to process their claims. The detention centre was established on 21 October 2001, at the Lombrum Naval Base, a former Second World War air and naval staging point on Manus Island, 350 kilometres from the PNG mainland. Despite the claims made by the Solicitor-General, it seems that the asylum seekers did not receive all necessary humanitarian assistance as promised. Neither did other countries share in the resettlement of the asylum seekers. Legally and physically, the asylum seekers were in limbo far from the Australian mainland, but in fact subject to the overall control of the Australian government. The asylum seekers were housed in very stark conditions which amounted to detention (as discussed below). Conditions were particularly hard on Nauru which consists of 21 square kilometres of mostly uninhabitable land, and has a population of 11,500 people. Reports indicated that water and electricity were frequently in short supply, and tensions in the camps were high as boredom and frustration set in. 64 On Nauru the International Organisation for Migration (IOM) had responsibility for the management and administration of the sites. Camp security was managed by a private company, Chubb Protection Services, based on a protocol signed by Nauru Police Force, the IOM and Australian Protective Service (APS). Under this arrangement, APS officers were appointed reserve officers of the Nauru Police Force. Under the arrangements 64 Oxfam Community Aid Abroad, Adrift in the Pacific: The Implications of Australia s Pacific Refugee Solution, Feb. 2002, at, Department of The Parliamentary Library, Protecting Australia s Borders Research Note , No. 22, 24 Nov. 2003, 1.

15 710 Susan Kneebone Australia covered the cost of building and running the detention facilities, including the cost of IOM s management and administration, pursuant to a contract with the Australian government. Concerns were expressed that Nauru is not a signatory to the 1951 Refugee Convention. By contrast, PNG is a party to the Convention but has not enacted domestic refugee legislation, has no domestic system to assess asylum claims and has placed significant reservations on the extent of its obligation under the Convention. 65 However the MoUs contained a non-refoulement clause and there was no evidence that either Nauru or PNG refouled any person. More serious were concerns about the legal status of the asylum seekers and the fact that the Australian government had passed its responsibility for their care to the IOM. Under Australian law, the asylum seekers were offshore entry persons and excluded from access to Australia s legal system. Yet they appeared to have few rights under the legal system of their safe third country. Although the Australian government funded and directed the Pacific protection 66 centres, primary liability for incidents within the centres were dealt with under local laws under the terms of the MoU. But when asylum seekers in Nauru were charged with offences there was little transparency in the process. For example, in 2003, the Government of Nauru barred lawyers, human rights activists, health care professionals and independent observers from visiting the republic during the trial of 21 detainees allegedly involved in riots at the two detention centres on Nauru. 67 For a period after riots on Christmas Eve 2003 in the Nauru detention centres, one of the centres was reportedly self-managed and deemed unsafe to enter. 68 Julian Burnside QC, who had been asked to represent some of those charged, was not only denied access to those charged, but even rudimentary details of the charges. The decision in Ruhani v. Director of Police (no 2) 69 makes very clear the extent to which the Australian government managed and controlled the destinies of the asylum seekers, whilst leaving them in the care of others. This was a test case by one asylum seeker for habeas corpus on the ground that the visa issued to him by the Nauru government was unlawful, and that he was unlawfully detained. Along with 282 other asylum seekers, he had been issued with a special purpose visa permitting him to enter and remain in Nauru, which he had never requested, applied for, or agreed to accept. The evidence showed that an application for visas, and for 65 N. McLean Australian neo-colonialism in the Pacific: Human Rights implications Castan Centre for Human Rights Law Conference, Human Rights 2003: The Year in Review Dec at, 66 The Australian government insisted on the use of this terminology. 67 R. Skelton, Nauru bars outsiders during riot trial, The Age, 25 Aug. 2003, Ibid. 69 [2005] HCA 43 (31 Aug. 2005).

16 The Pacific Plan 711 their extensions, had been made on behalf of 283 asylum seekers by Australia s Consul General in Nauru. A textual argument based on the terms of the Nauru Act did not succeed. On appeal to the High Court of Australia from the Nauru Supreme Court, it was found by a majority of four to one that the visa was validly issued and that the situation was an authorised deprivation of liberty, which did not infringe Article 5 of the Nauru Constitution which prohibited arbitrary detention. Kirby J dissenting disagreed with the textual analysis accepted by the majority. He concluded that because the asylum seeker had been brought to Nauru unwillingly and without any request or wish on his part, and because of the conditions in which he was held, that it was clearly a unlawful custodial situation. The facts in this case show the close relationship between Nauru and Australia. 70 Under the Terms of the MoU, paragraph 1, it was agreed that both governments would mutually cooperate in accordance with their relevant constitutions and relevant domestic laws. As the UNHCR has said, Australia and Nauru were both effectively in control of the asylum seekers. However, similar to its excision of territory from the migration zone, the Australian government attempted to create another fiction by labelling the asylum seeker as rescuees and by creating the category of offshore entry person. 3.2 Freedom from arbitrary detention Article 31 applies to refugees unlawfully in the country of refuge 71 and contains a prohibition on the conferment of penalties on refugees coming directly from a territory where their life or freedom was threatened, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. The provision has been relied upon as a justification for detaining persons before transferring them to a safe third country, and for interdicting and transferring asylum seekers. This interpretation arises from stressing the words coming directly. However, this interpretation of Article 31 is strongly contested. Goodwin-Gill and others conclude that the words coming directly from a territory where their life or freedom was threatened were not intended to be construed literally. 72 The provision does not link the threat to the asylum seekers country of origin, but significantly to a territory. That Article 31 contemplates both direct and indirect flight can be gleaned from the context of the Article and the reference to good 70 The Australian government paid for the costs of the appeal, and briefed two top Australia lawyers to appear in the case. See Ruhani v. Director of Police [2005] HCA 42 (31 Aug. 2005). 71 Goodwin-Gill, n. 37 above, explains that Art. 31 covers persons attempting to enter a territory on the basis of de facto control or jurisdiction. 72 Goodwin-Gill, n. 37 above; Hathaway n. 40 above, 399.

17 712 Susan Kneebone cause for the flight, which refers to the reasons for leaving. This is consistent with Conclusion No. 15 (1979) on the issue of secondary or irregular movements which refers to compelling reasons for leaving a country of asylum. 73 Similarly, Conclusion No. 58 (1989) says that there may be exceptional cases in which a person may justifiably claim that he or she fears persecution or that his or her physical safety or freedom are endangered in a country where he or she has previously found protection. 74 As Goodwin-Gill has emphasised, a state must first examine a claim for asylum to ensure that its international obligations are being met. Otherwise its actions in detaining or interdicting a person as a preliminary step to invoking the safe third country notion will amount to a penalty. Thus, the actions of the Australian government in interdicting persons and transporting them to declared countries, without first hearing their claims amounted to the imposition of penalties. It is significant that in the litigation in the Federal Court 75 which followed the Tampa incident, two out of the four judges found that the asylum seekers were detained against their will when they were taken on board the HMAS Manoora for transfer to Nauru. As the claimant in Ruhani v. Director of Police (no 2) explained, he was brought to Nauru against his will. The majority in that case accepted that he was an involuntary arrival and observed that there was no evidence as to the basis... upon which he is in Nauru. 76 His agreement to this action was treated as irrelevant. Further, the restrictions on the liberty of the asylum seekers under the Pacific Strategy amounted to the imposition of penalties contrary to Article 31. It is significant that the majority of the High Court in the Ruhani decision accepted that the conditions of the centres amounted to a deprivation of liberty which they found was authorised by law. The evidence in that case indicated that whilst the asylum seekers were able to leave the centres for educational or religious purposes, their movements were controlled by the security forces stationed at the centres, and they were not free to leave the island. 77 It could also be argued that as the asylum seekers had been granted valid visas, the acts of detention amounted to the imposition of unnecessary restrictions contrary to Article 31(2) of the Refugee Convention. Finally, as the discussion in the next section on the processing of the asylum seekers illustrates, the acts of detention were probably arbitrary 73 N. 22 above. 74 N. 25 above. 75 Victorian Council for Civil Liberties Incorporated v. Minister for Immigration; Vadarlis v. Minister for Immigration [2001] FCA 1297; (2001) 110 FCR 452 (North J); [2001] FCA 1329; (2001) 110 FCR 491 (Full Court Black CJ). 76 N. 69 above, para Senate Committee, n. 59 above, para