SHADOW PLAYS, SHIFTING SANDS AND INTERNATIONAL

REFUGEE LAW: CONVERGENCES IN THE ASIA-PACIFIC

MARY CROCK*

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.

Keywords: Asia Pacific, comparative law, human rights, immigration detention,

irregular migration, offshore processing, refugee law, regional trends.

I. REGIONAL ATTITUDES TO HUMAN RIGHTS AND INTERNATIONAL LAW

When Australia ran for election to the Security Council in October 2012 it did
so within the United Nations collective known as Western Europeans and

* Professor of Public Law, The University of Sydney, Accredited Specialist in Immigration

Law, [email protected]. 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.

[ICLQ vol 63, April 2014 pp 247–280] doi:10.1017/S0020589314000050

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 248 International and Comparative Law Quarterly
Others Group (WEOG).1 The alignment reflects the fact that Australia’s cul-
tural heritage is largely European. After World War II Australia joined its
British and European allies to become one of the driving forces behind the
United Nations’ drafting of the ‘International Bill of Rights’.2 Not only was it
active in the creation of the UN Convention relating to the Status of Refugees,3
Australia’s accession to that instrument brought the Convention into force.4
Over time, Australia has continued to play a key role in supporting the
international work of the United Nations High Commission for Refugees,5 and
has developed highly sophisticated structures for determining refugee status
in persons presenting as asylum seekers. It is a party to the various protocols
and has accepted optional provisions that facilitate the lodging of individual
complaints to the UN Human Rights Committee;6 the Committee against
Torture7 and the Committee on the Rights of Persons with Disabilities.8
In matters concerning human rights and immigration control, however,
Australia’s laws and policies have become increasingly dissonant with those
of other WEOG States.
Australia stands out among those States because it has never enacted a bill of
rights or other binding statutory measures that expressly implement its inter-
national legal human rights obligations.9 Australia has traditionally had a
generous planned humanitarian migration programme, but its laws and policies

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]
4
ATS 5. ibid.
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

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 Shadow Plays, Shifting Sands and International Refugee Law 249
regarding irregular migrants and asylum seekers sit awkwardly with its
international commitments. Australia’s policy of mandatory detention of all
non-citizens who enter or remain in the country without authority has drawn
criticism from the UN’s Human Rights Treaty Bodies.10 In direct response
to the arrival of successive waves of boats carrying undocumented asylum
seekers Australia has adopted a raft of measures that are directly at odds with
the most central tenets of refugee and human rights laws. It has adopted
virtually every measure devised across the world to deter irregular migration,
from interdiction and deflection programmes11 through to the adoption of
exclusionary provisions in its migration laws that limit access to domestic
protection.12 In early 2013, it broke new ground by enacting legislation which
has the effect of denying to ‘unauthorized maritime arrivals’ (UMAs) the
right to seek asylum or to apply for any form of visa in Australia.13 The
provisions were enacted to complement a regime that envisages the removal
of UMAs who arrive on Australian territory to ‘third’ States.14 The deflection
regime creates a legal framework for the ‘offshore’ or ‘regional’ processing of
any asylum claims. In late 2013, the then-government announced that not only
would UMA asylum seekers be processed offshore, they would also be
permanently resettled there if found to be Convention refugees.15 In September
2013, the newly elected conservative government committed to adding to
these measures a policy of pushing back boats carrying UMAs. The conser-
vative party has long been committed to offshore processing and supplemented
Labor’s plans for permanent offshore resettlement by declaring that UMAs
would be removed offshore within 48 hours of arrival in Australia.16
Australian governments of both conservative and liberal political persua-
sions have become increasingly resistant to the concept that undocumented
asylum seekers should be regarded as rights bearers. This is most particularly

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 J McAdam and K
Purcell, ‘Refugee Protection in the Howard Years: Obstructing the Right to Seek Asylum’ (2009)
12
27 Aust YBIL 87–115. 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).

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 250 International and Comparative Law Quarterly
the case where asylum seekers present as ‘secondary movement’ refugees who
exercise choice in their selection of a country in which to seek refuge from
persecution. Former Prime Minister John Howard captured the popular
Zeitgeist in 2001 with his decision to block the admission of asylum seekers
rescued at sea by MV Tampa, declaring famously: ‘We will determine who
comes to this country and the circumstances in which they come.’17
Australia sits in a part of the world where the discourse on rights is some-
times resisted as a Western construct that sits uneasily with Asian notions of
collective responsibilities and obligation.18 Few States in this region are parties
to human rights treaties other than the Convention on the Rights of the Child19
or, more recently, the Convention on the Rights of Persons with Disabilities.20
The central argument in this article is that Australia’s approach to irregular
migration has become increasingly dissonant with that of WEOG States and
has instead become increasingly aligned with that of States in its immediate
geographical region.21
I use as a case study the various efforts that have been made by Australia to
establish regional frameworks for the protection of refugees and for the man-
agement of irregular (forced) migration. The impetus for the piece came from
Australia’s decision in August 2012 to reopen ‘offshore’ processing centres
on Nauru and on Papua New Guinea’s (PNG’s) Manus Island as deterrents
to UMAs.22 The reversion to a former conservative government’s ‘Pacific
Solution’ illustrates once again the awkwardness in Australia’s relationship
with its international obligations under the Refugee Convention and under
international human rights law.23

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 H Kraft, ‘Human Rights, ASEAN and Constructivism: Revisiting the “Asian Values”
Discourse’ (2001) 45 Philippines Political Science Journal 33; KD Asplund, ‘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 B Saul, J Mowbray and I Baghoomians, ‘Resistance to Regional
Human Rights Co-operation in the Asia-Pacific: Demythologizing Regional Exceptionalism by
Learning from Europe, the Americas and Africa’ in H Nasu and B Saul (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 E Biok Australia and Refugees in the Asia Pacific,
(unpublished doctoral dissertation (SJD), University of Sydney, 2009).
22
See M Crock and D Ghezelbash, ‘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); M Crock ‘In the Wake of the Tampa: Conflicting Visions of
International Refugee Law in the Management of Refugee Flows’ (2003) 12 Pacific Rim Law and

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 Shadow Plays, Shifting Sands and International Refugee Law 251
I argue that justifications given for the shift in Australia’s approach resonate
with the discourse in two States that have been closely associated with the new
‘arrangements’: Malaysia and Indonesia.24 When the government introduced
its revised ‘regional processing’ framework in 2012 it argued that asylum
seekers who present as UMAs should gain no material advantage by reaching
Australia in comparison to the situation they would face if their claims were
processed in transit States or States of first refuge.25 The policy made express
reference to policies and State behaviours in the region and took (purported)
waiting times and conditions as the benchmark for Australian policy.26 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. Refugees and asylum seekers in Malaysia and Indonesia can face
years of debilitating precariousness and uncertainty, with the Office of the
United Nations High Commissioner for Refugees (UNHCR) and its
implementing partners providing the only avenues for resettlement or other
durable solution.
Recognizing that the economic and political centres of gravity have shifted
East, Australian policy-makers have come to accept the need for Australia to
engage more with Asia and to take its place in the ‘Asian Century’. Australia
has been quick to acknowledge that the management of irregular migration
flows through States like Indonesia and Malaysia demands a high level of

Policy Journal 49; A Francis ‘Bringing Protection Home: Healing the Schism between
International Obligations and National Safeguards Created by Extraterritorial Processing’ (2008)
20 IJRL 273; and M Foster and J Pobjoy, ‘A Failed Case of Legal Exceptionalism? Refugee Status
Determination in Australia’s “Excised” Territory’ (2011) 23 IJRL 583–631; P Mathew ‘Australian
Refugee Protection in the Wake of Tampa’ (2002) 96 AJIL 661; G Noll ‘Visions of the
Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Processing
Zones’ (2003) 5 EJML 303; T Penovic and A Dastyari, ‘Boatloads of Incongruity: The Evolution
of Australia’s Offshore Processing Regime’ (2007) AJHR 33–61; A Schloenhardt ‘To Deter,
Detain and Deny: Protection of Onshore Asylum Seekers in Australia’ (2002) 14 IJRL 302; and
S Taylor, ‘Sovereign Power at the Border’ (2005) 16 PLR 55–77.
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 A Houston, P Aristotle and M L’Estrange Report 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).

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 252 International and Comparative Law Quarterly
regional cooperation.27 In the area of human rights and refugee policy,
however, I will argue that Australia should be doing more to distinguish itself
as a leader rather than follow the (generally poor) practices of its neighbours. In
practice, as others have noted,28 Australia’s engagement with other States in
the region over the regulation of undocumented asylum seekers seems to be
encouraging and even facilitating behaviours that are at odds with basic
principles of human rights law.
The article begins in Part II with a brief overview of the relationship between
refugee law and general human rights law. The discussion provides the
background for an historical account in Part III of the various ways in which
States in the Asia Pacific have engaged with issues of asylum and irregular
migration through time. I examine the genesis event for refugee law in
Australia and in the region: the resolution of the refugee crisis that followed the
war in Vietnam. I argue that the ‘Comprehensive Plan of Action’ (CPA) set the
ground rules for the treatment of refugees in many of the States in the Asia-
Pacific region. The influence of the CPA is borne out in the approach that
Asian and Pacific States have taken to irregular migration and refugee rights, as
becomes apparent through considering contemporary treatment of refugees in
the two States of most relevance to Australian policy: Malaysia and Indonesia.
This is followed in Part IV with an examination of Australian policy. I argue
in this section that the models adopted after Vietnam have also shaped the way
Australians have since viewed their international legal obligations towards
refugees. This section examines Australian policies since 2001 and the most
recent iterations of ‘regional policy’, summed up in the ‘No Advantage’
approach to UMAs. As a justification for reducing or denying social rights and
other support to UMAs in Australia, the ‘No Advantage’ principle expressly
references the treatment of irregular migrants in States like Malaysia and
Indonesia that are not party to the Refugee Convention. I argue that the ‘No
Advantage’ notion lacks both sense and legitimacy as a matter of international
law.
The article concludes in Parts V and VI with a critique of the most recent
version of regional processing, looking particularly at the international legal
implications of deflecting UMAs to processing and holding centres on Nauru

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 A Betts, Global Migration Governance (Oxford
University Press 2011) 18; and M Crock and D Ghezelbash, ‘Secret Immigration Business: Policy
Transfers and the Tyranny of Deterrence Theory’ in S Singh (ed), The Ashgate Research
Companion to Migration Theory and Policy (Ashgate 2013) ch 27.
28
See A Nethery, B Rafferty-Brown and S Taylor, ‘Exporting Detention: Australia-funded
Immigration Detention in Indonesia’ (2013) 26(1) JRS 88.

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 Shadow Plays, Shifting Sands and International Refugee Law 253
and Papua New Guinea’s Manus Island. Accepting that regional processing is
an imperfect ‘work in progress’,29 the fundamentals of the regime nevertheless
leave much to be desired.

II. REFUGEE RIGHTS AND HUMAN RIGHTS

While many of Australia’s neighbours may not be parties to the Refugee

Convention or to the major human rights instruments, the region does not
operate in an international legal vacuum. As explored in the following section,
States like Malaysia and Indonesia seem to be well aware of the international
frameworks for the protection of human rights. Both have undertaken to permit
UNHCR to establish and run refugee status determination processes on their
territories. State practice in both suggests they accept that customary inter-
national law obliges them to refrain from the expulsion or refoulement of
Convention refugees who fear persecution on one of the five Convention
grounds. What they do not accept is the notion that refugees might be the
bearers of other human rights. It is at this point that Australia should be parting
company with its non-Convention neighbours—and in fact does in respect of
its treatment of refugees who arrive in the country other than as UMAs.30
The fact that the Refugee Convention is a human rights instrument that does
much more than protect refugees against refoulement emerges forcefully when
its provisions are charted alongside those of the other conventions that make up
the international Bill of Rights. As Professor Hathaway has chronicled,31 the
rights enshrined in the Refugee Convention follow a natural hierarchy, with the
range of rights protected deepening as the refugee’s connections with a country
grow. Hathaway’s taxonomy distinguishes between simple presence in a
country, lawful presence (where a person is accorded at least temporary legal
status) and lawful residence (which implies a deeper and more enduring legal
status in a country). This methodology can be adopted to categorize group
rights enshrined in other human rights instruments that may not be express in
the refugee Convention.
At the apex of the Refugee Convention is the obligation not to refoule
or return a refugee to a place where they face persecution for one of the
five Convention reasons. It is the most important protection (and right) that
applies to all persons on the territory of a State party, irrespective of the
person’s status under immigration law. In fact this obligation not to return
a person to persecution or serious abuse of human rights appears across
the ICCPR,32 the Convention against Torture33 and the Convention on the

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
J Hathaway, The Rights of Refugees under International Law (Cambridge University Press
32 33
2005). See arts 6 and 7. See art 3.

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 254 International and Comparative Law Quarterly
Rights of the Child,34 as does the right to life35 and the right to freedom from
cruel, inhuman and degrading treatment or punishment.36
The other rights that apply thus to all refugees on a State territory by
virtue of their presence alone include: freedom from arbitrary detention;37
liberty and security of the person;38 non-discrimination and penalization for
unlawful entry;39 freedom from deprivation;40 access to basic health care;41
freedom of thought, conscience and religion;42 primary education;43 docu-
mentation of identity and status;44 judicial and administrative assistance;45 and
family unity.46 In addition it must be noted that children are accorded special
rights that are not affected by immigration status (or lack thereof),47 as indeed
are persons with disabilities.48
For refugees accorded the status of lawful presence, the Refugee Convention
adds to the aforementioned rights the right to protection from expulsion;
procedural rights; freedom of residence and internal movement and a right to
self-employment. It is only when a refugee is accorded permission to remain
permanently (lawful residence) that rights to wage earning employment;49 fair
work conditions; social security; professional practice; public relief and
assistance; housing; intellectual property rights and international travel are
added to the mix.
The problems facing refugees in non-Convention States like Malaysia and
Indonesia arise first and foremost from their lack of legal status. Absent
intervention by UNHCR and/or various relief agencies, many live with the
threat of arrest and detention. They have no entitlement to income support or
self-employment and little or no right to medical assistance. In sum, few of the
‘universal’ rights in Hathaway’s taxonomy are acknowledged. As I explain in
the following part, the ambivalent legal position of Convention refugees in

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)
41
and 11. 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
47
the Conference of the Plenipotentiaries. CRC art 22.
48
CRPD; M Schulze Understanding 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 M Crock, C Ernst and
R McCallum ‘Where 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.

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 Shadow Plays, Shifting Sands and International Refugee Law 255
these States owes much to the historical engagement of these States with both
UNHCR and key Convention States.

III. THE EVOLUTION OF REFUGEE LAW AND REGIONAL PROCESSING FRAMEWORKS

IN THE ASIA-PACIFIC

The mass movements of people during and after Second World War
were arguably the signal events leading to the drafting of the UN Refugee
Convention and the genesis of refugee law in the European context.50 This
global conflict did not have the same trigger effect on the Asia-Pacific region,
however. It was not until the end of the war in Vietnam that regional
cooperation frameworks were considered and adopted in this part of the world.

A. The Comprehensive Plan of Action

A critical factor in bringing States together after the Vietnam conflict was that
most of Vietnam’s initial refugees fled their country by boat. This was signific-
ant for two reasons. First, a truly alarming number of those taking to boats
were dying at sea, the victims of military action, unseaworthy vessels, or of
the pirates in the South China Seas who quickly emerged to prey on the
fugitives.51 For Australia, the humanitarian imperative of the boat people was
coupled with the fact that the refugees were presenting on Australian shores.
The concern caused by the unsolicited arrival of what amounted to a little over
1000 maritime asylum seekers was considerable.52
The regional product of the post-Vietnam situation was a framework for the
orderly resettlement of fugitives from Vietnam. The ‘Comprehensive Plan of
Action’ (CPA) emerged as a true regional processing system insofar as it
involved cooperative arrangements between States of first refuge, UNHCR and
States in which Convention refugees were resettled.
Australia took its place at the table to establish this framework for the resettle-
ment of refugees from the Vietnam conflict. Along with the United States and
Canada, it provided funding and expertise for the creation of the first regional
processing centres in Malaysia, Thailand, Indonesia, Hong Kong and the
Philippines. A central feature to the CPA was that all of these States agreed to

50
For a discussion of this history, see JC Hathaway The Law of Refugee Status (Law Book Co
1990) ch 1; and G Goodwin-Gill and J McAdam The Refugee in International Law (Oxford
University Press 2006) 35, 203ff.
51
See W Courtland Robinson, ‘The Comprehensive Plan of Action for Indochinese Refugees,
1989–1997: Sharing the Burden and Passing the Buck’ (2004) 17 JRS 319; and A Helton, ‘Refugee
Determination under the Comprehensive Plan of Action: Overview and Assessment’ (1993) 5 IJRL
544. See also M Tsamenyi, The Vietnamese Boat People and International Law (Griffith
University 1981); J Kumin, ‘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.

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 256 International and Comparative Law Quarterly
allow UNHCR to establish a presence in their countries for the purpose of
conducting refugee status determinations. Refugees and asylum seekers were
housed in camps, some of which remained in operation for over a decade.
Countries of first asylum agreed to provide temporary refuge on condition that
third States such as China, the United States, Canada and Australia agreed to
take the refugees through resettlement programmes that were without prece-
dent in size and scope. These measures were coupled with diplomatic
initiatives with the victor government in Vietnam aimed at both discouraging
illegal departures and facilitating legal migration.53 The scheme also involved
the repatriation of many of those who were determined not to be refugees.54
The significance of the CPA for the region is that it provided for the first time
a legal framework for the resolution of crises involving the forced displace-
ment of large numbers of people. It has been invoked in more recent times
because of the perception that the CPA was successful in stopping the flow of
boats from Vietnam in the 1980s. A downside of the scheme is that countries of
first asylum were permitted to benefit without becoming party to the Refugee
Convention. Thailand, Indonesia and Malaysia were not, and are still not,
parties to the Refugee Convention.55 The Convention continues not to apply in
Hong Kong.56 Only the Philippines has since acceded to the Convention
(in 1981).57 While agreeing to abide by the non refoulement principle, these
States’ involvement in practice did not extend to granting to refugees on their
territories legal rights to residence, social welfare and/or citizenship.
Australia, on the other hand, did grant all of these things to the refugees it
resettled. But the benefits were conferred as part of a managed process of
migration. They were conferred, one might say, as part of the privilege of
immigration—not as rights claimed by the refugees themselves. For the small
number who arrived directly as asylum seekers, the same benefits flowed. The
lack of controversy around this latter group may reflect the politics of the
Vietnam conflict: public sympathy for the refugees was high. It may also reflect
the very modest scale of the direct arrivals relative to the CPA admissions.
The CPA was the genesis not only of practical frameworks for managing
refugee flows, but also of a conceptual framework that has continued to
influence the way States in Australia’s region think about refugee protection.
As outlined below, States such as Indonesia and Malaysia continue to merely
tolerate refugees—and to look to UNHCR for both status determination pro-
cedures and for arranging the resettlement of recognized refugees.

53
See Y Tran, ‘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 SE Davies, Legitimizing Rejection: International Refugee Law in South
East Asia (Martinus Nijhoff 2008).
56
On Hong Kong, see K Loper, ‘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>.

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 Shadow Plays, Shifting Sands and International Refugee Law 257
B. The contemporary regional context
In practice, refugees in Malaysia and Indonesia are tolerated at best. Malaysia
is a party to CEDAW, the CRC and the CRPD, but not to the Refugee
Convention or the core human rights instruments of ICCPR, the Convention
against Torture, and the Racial Discrimination and Economic, Social and
Cultural Rights Conventions. Indonesia has acceded to or signed58 and ratified
each of the human rights treaties except the Refugee Convention, but has
reservations or declarations against articles of every treaty except the CRPD.
Both States allowed UNHCR to establish bases for the determination of
refugee claims as a measure of their participation in the CPA. UNHCR con-
tinues to operate there, coordinating support and conducting resettlement
operations for persons recognized by the agency as Convention refugees.
The two States respect the principle that Convention refugees should not be
refouled to States where the refugees might face persecution for Convention
reasons. However, neither recognizes any other rights attaching to refugee
status. Refugees are granted no access to government assistance and most
enjoy no security or certainty during the often attenuated periods waiting for
the resolution of their situation.59
In Malaysia, a developed country with a healthy economy and enviable
standard of living, Convention refugees intermingle with a sizeable population
of irregular migrants.60 As a result, refugee issues have tended to be conflated
within the framework of national security and immigration control.61 Malaysian
law provides no framework for refugee status determination, nor does it faci-
litate recognition and resettlement.62 Under the Immigration Act 1959/63
(Malaysia) refugees and asylum seekers are treated as irregular or illegal mi-
grants. In the past, refugees have faced the same penalties as other undocu-
mented migrants. A person who is convicted of entering without a valid entry
permit carried is liable to imprisonment,63 fines64 and to caning (of not more

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 A Aust, 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).

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 258 International and Comparative Law Quarterly
than six strokes).65 Without official status or documentation such as work and
residence permits, refugees have been vulnerable to harassment by immigration
officials who have significant powers to question, arrest, prosecute, detain and
remove.66 Illegal migrants are liable to deportation at any time,67 although there
are ‘credible indications that forcible deportations of asylum seekers and
refugees had ceased in mid-2009’.68 Refugees continue to be detained. Unlike
Malaysian citizens, non-citizens arrested for the violation of immigration laws
can be held for up to 14 days before being brought before a court.
Although it has no formal cooperation arrangement with UNHCR, the
Malaysian government generally tolerates and cooperates with UNHCR’s
activities related to reception, registration, documentation and status determi-
nation.69 UNHCR registers asylum seekers, conducts refugee status determina-
tions and issues identity documents. Cooperation with UNHCR is improving,
most notably following the conclusion with Australia of an ‘Arrangement’ that
was designed to facilitate the resettlement of 4000 refugees in exchange for the
reception of 800 IMAs intercepted by Australian Customs and Border Control
officers.70 During 2011 and 2012 there were fewer arrests of UNHCR-
documented asylum seekers and UNHCR was given improved access to
refugees in immigration detention.71
The strength of the Malaysian system is in the sophistication and dedication
of operations established by UNHCR and associated NGOs72 in that country—
a fact that reflects at least the tacit support being offered by the Malaysian
government. In spite of the improvements that appear to have followed the
conclusion in 2011 of an agreement to ‘exchange’ refugees with Australia, lack
of legal status amongst refugees continues to be an important factor leading
to their vulnerability. Persons recognized as refugees in Malaysia tend to be
reliant on either meagre subsistence payments from UNHCR or on wages
earned through unauthorized work. With no legal right to work, refugees often
have no other choice than to join the legions of irregular migrant workers upon
which Malaysia’s (healthy) economy relies. UNHCR facilitates jobs with

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).

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 Shadow Plays, Shifting Sands and International Refugee Law 259
employers who need additional labour,73
however abuse of migrant workers—
including refugees—is well documented.74
Children are not allowed to attend government schools. Accordingly, few
have access to formal education. Although some children receive basic school-
ing and some English language training through UNHCR and dedicated
NGOs, these programmes are limited in their reach.
Asylum seekers who have not secured any form of registration with
UNHCR receive little or no support,75 although there are faith-based organiz-
ations operating outreach services.76 Access to medical care is of particular
concern. Although card-carrying refugees are eligible for discounted medical
fees, these are generally beyond the means of refugees needing assistance.
UNHCR is able to offer assistance in cases of critical need only. In Plaintiff
M7077 the High Court considered a report on conditions in Malaysia done by
Australia’s Department of Foreign Affairs and Trade. The Court found that
protection standards in Malaysia did not meet the (now-repealed) human rights
standards then required by the Migration Act 1958.
Whereas Malaysia is largely a destination country for refugees (particularly
refugees from Myanmar (Burma), Indonesia is emerging as mainly a transit
country. As in Malaysia, there is no formal legislative framework governing
the treatment of refugees in Indonesia. Asylum seekers are simply classified as
illegal migrants unless they come under what is known as the 2001 Regional
Cooperation Model (discussed further below).78 Where it is apparent to
Indonesian authorities that a non-citizen (asylum seeker) intends to travel to
Australia or New Zealand, the individual is directed to the International
Organization for Migration (IOM) for ‘management’. IOM has bases across
Indonesia’s provinces. IOM then refers persons who wish to make an asylum
claim to UNHCR. This scheme is funded by Australia. Other faith-based
NGOs provide various support services.79
UNHCR’s presence in Indonesia is much more modest than the operations
in Malaysia.80 UNHCR conducts registration and refugee status determinations

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
78
(‘Plaintiff M70’). 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,

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 260 International and Comparative Law Quarterly
pursuant to a MOU with the Indonesian government. In 2010, the Director
General of Immigration for Indonesia issued a Directive which recognized
UNHCR’s work and responsibility for asylum seekers and refugees in
Indonesia.81
The 2010 Directive allows illegal migrants to stay in Indonesia temporarily
if they have either an Attestation Letter or a letter verifying that they are
seeking asylum with UNHCR, or have received recognition of refugee status
from UNHCR.82 This protects UNHCR’s persons of concern from refoulement
and gives them some security of (temporary) stay pending a durable solution.
If they are registered, the directive does not require them to be detained. The
Jesuit Refugee Service (JRS) explains further:
If an illegal migrant who is seeking asylum comes under the mandate of an
international organisation or UNHCR and are living in the community they are
requested to complete a Refugee Declaration of Compliance. They are then
subject to the control of the local Immigration Office. UNHCR has an obligation
to report to the Directorate General of Immigration when an application for
asylum has been rejected and their case has been closed. After a case has been
closed, rejected asylum seekers are then subject to the immigration law and
regulations in the same manner as illegal migrants.83
The Regional Cooperation Model has made Australia a dominant presence in
Indonesia since 2001. Australia funds many of the NGOs and works closely
(albeit not very effectively) with the Indonesian government in efforts to deter
irregular maritime migration to Australia. The UNHCR’s registration process
and the failure to offer durable solutions to refugees in a timely fashion seems
to have contributed to the problems surrounding the programme. UNHCR’s
registration process is typically a lengthy and somewhat haphazard affair, with
gaps of over a year not uncommon between the time a person first presents to
UNHCR and the time that they are recognized and given UNHCR docu-
mentation.84 During that period the person will have no documentation to
distinguish them from illegal migrants. There is sometimes little that UNHCR
can do to assist the person if they are detained.85
The population of refugees in Indonesia is very much smaller than that of
Malaysia. While there are similarities in the experience of refugees living on
meagre agency stipends in both States, the Indonesian cohort is distinguished
by the feeling of transience that pervades the asylum seeker community. Apart
from the tendency for both refugees and recognized refugees to use people

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 83
JRS Asia Pacific (n 59) 17. ibid.
84 85
ibid. See eg ibid 17–18.

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 Shadow Plays, Shifting Sands and International Refugee Law 261
smugglers in a search for asylum in Australia, the areas where refugees are
housed seem to enjoy little security or permanence of tenure.

IV. AUSTRALIAN APPROACHES TO ASYLUM SEEKERS PRESENTING AS UMAS

A. Australia’s Response to Refugee Flows from Vietnam

Before the fall of Saigon in April 1975, Australia had virtually no direct
experience of asylum seekers arriving on its territory.86 Certainly, Australia
had taken in hundreds of thousands of refugees after World War II. However,
these people were admitted as migrants—albeit migrants who happened to be
refugees.87 In the absence of any (serious) experience of asylum seekers,
there had been no call to establish procedures for determining the status of
persons on its territory claiming to be refugees. When people from the region
did start presenting as asylum seekers, the historical record suggests that
Australia’s response—from the start—was heavily influenced by its place in
the world.
Australia’s earliest experience of asylum seekers in any significant numbers
involved forced migrants from West Papua, following Indonesia’s annexation
of that country in 1969. Deeply concerned not to offend its populous and
militarily powerful neighbour, Australia’s response to the few arrivals on the
Australian mainland is best described as muted and defensive. While the term
‘refugee’ was readily ascribed to displaced persons brought to Australia from
Europe after World War II, there was a marked reluctance to use this label for
fugitives from more proximate countries.88 It was not until the late 1970s and
the arrival of maritime fugitives from the conflict in Vietnam (the first ‘boat
people’) that formal processes for determining refugee status on Australian
territory were instituted.89 These developments echoed measures taken across
the Asia-Pacific to manage the flow of refugees across the region.
From the start, the arrival of UMAs was a matter of considerable concern for
the Australian government. It is noteworthy that very few asylum boats
managed to travel as far as Australia—a fact that may be attributable in part to
deterrent and interdiction measures. Former officials from the Department of
Immigration would later speak of colleagues being charged with taking all
possible measures to ensure that boats did not make it down to Australia, even
if this meant ‘encouraging’ boats to ground on the shores of neighbouring

86
See K Neumann, 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 K Neumann and S Taylor, ‘Australia, Indonesia and West Papuan
Refugees 1962–2009’ (2010) 10 International Relations in the Asia-Pacific 1–31. 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
M Crock, ‘Judging Refugees: The Clash of Power and Institutions in the Development of
89
Australian Refugee Law” (2004) 26 SydLR 51. Crock and Berg (n 52) ch 12.

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 262 International and Comparative Law Quarterly
countries by boring holes in them with a brace and bit.90 Cabinet papers from
the time91 reveal that the government of the day perceived boat arrivals as
a (domestic) political liability just as more recent politicians have done.
The same or similar options were proposed then as now in response to the
developing crisis: deterrent actions ranging from outright refoulement back to
Vietnam; the mandatory detention of boat arrivals; and/or the institution of a
temporary protection regime.92 The government of 1979 chose none of these.
Instead, Australia granted permanent residence to all those who sought refuge
on its shores.
In the years following the end of the war, Australia was to show considerable
leadership and generosity in the number of South East Asian refugees it
accepted for resettlement. Coinciding with the end of the White Australia
Policy, it could be said that the migration from Vietnam literally changed the
face of Australia.93 These domestic processes were a positive development. In
respect of those refugees who reached the country (by regular or irregular
means), Australia complied closely with the humanitarian dictates of the
Refugee Convention. It also showed considerable respect for the rights artic-
ulated in the various human rights conventions to which Australia was party.
Australia’s incipient hostility to asylum seekers arriving by boat and
asserting rights to protection under the Refugee Convention became plain
when the country experienced its second ‘wave’ of UMAs in 1989. A small
number of asylum seekers arrived first from Cambodia and later from China.
Some presented as ‘secondary movement’ refugees who had previously been
resettled in China under the CPA; others as direct fugitives from the crackdown
on the pro-democracy movement in that country. A Labor government in
Australia responded by instituting mandatory detention for the UMAs as a
deterrent measure.94 This was followed by the introduction of a relatively
short-lived scheme for granting Convention refugees temporary protection.
These measures marked the first real divergence between Australia’s approach
and that adopted in culturally proximate countries such as the United
Kingdom, Canada and the United States. For the first time, Australia’s
treatment of refugees on its territory began to create dissonances with its
international legal obligations.95
The flow of refugees and asylum seekers from China was stopped in
relatively short measure through a combination of enforcement measures at
source and a Memorandum of Understanding that prevented asylum seekers

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
92
(NAA: A12390, 380). ibid.
93
N Viviani, ‘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.

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 Shadow Plays, Shifting Sands and International Refugee Law 263
covered by the CPA from claiming protection in Australia.96
Although a
serious refugee-producing country, China was also the first country given
‘white list’ standing in Australia—as a place from which certain people would
be deemed not to be in need of protection.97

B. The Pacific Solution Mark 1: Australia’s First Attempt to Revive a

Scheme for the Regional Processing of Asylum Claims
However acute the public angst over the arrival of UMAs in the 1980s,
Australia’s fixation with border control did not become an object of overt
political warfare until 2001. Then Prime Minister Howard’s decision to deny
admission to asylum seekers rescued at sea became a meme for strong govern-
ment, reversing the political fortunes of a party that had faced electoral defeat.
The ‘Pacific Solution’98 marked the first real point of convergence between
Australian refugee policy and that of its regional neighbours after the CPA. At
a basic level, the policies adopted reflected the central conflict States in the
region have felt between their view of the national interest and international
legal obligations that require States to protect refugees even where those
seeking asylum are unwelcome.
The matrix of policies adopted by Australia between October 2001 and
December 2007 sought to recreate a version of regional processing that on its
face would operate to protect Convention refugees from refoulement, whilst
denying access to a range of human rights. Just as it had done during the era of
the CPA, Australia borrowed heavily from the US in its creation of ‘exce-
ptional’ spaces to deny UMAs access to asylum99 and in the adoption of
interdiction and push-back operations. Islands to the North of Australia such as
Christmas Island or Ashmore Reef became ‘excised offshore places’. Where
the Americans used the military base at Guantanamo Bay as a processing
centre for fugitives from Cuba and Haiti, UMA asylum seekers interdicted by
Australia were transferred to detention facilities on Nauru and PNG’s Manus
Island where their refugee claims were assessed.100 Although the original plan

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 F Johns, ‘Guantánamo Bay and the Annihilation of the Exception’ (2005) 16 EJIL 613,
621; and GL Neuman, ‘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.

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 264 International and Comparative Law Quarterly
was that no UMA asylum seeker would be resettled in Australia, in practice this
is where most of the refugees were placed in the longer term.
The policy of offshore processing was modified after the change of
government in 2007 with the closure of the centre on Nauru (The PNG centre
had already been mothballed). However the legislative scheme remained
unchanged.101 The processing of UMAs continued on Australian territory, on
the ‘excised offshore place’ of Christmas Island.
The fiction that these arrangements could operate to deny UMAs access to
the Australian legal system was demolished by the High Court in 2010. In a
marked departure from earlier decisions on point,102 the Court upheld
applications for judicial review brought by asylum seekers whose refugee
claims had been rejected in the modified status determination procedures used
on Christmas Island.103

C. The Failed ‘Malaysian Solution’

With surging boat arrivals, the Labor government responded in 2011 by
reverting to the policies of its predecessor government. The policy change was
badged expressly as a version of CPA-style regional processing. An iteration
that would once again place the IMA asylum seekers on truly foreign soil, the
proposed policy involved the transfer to Malaysia of 800 IMA asylum seekers.
In exchange, Australia agreed to resettle from that country 4,000 Convention
refugees processed by UNHCR.104 The scheme was termed a ‘regional
solution’ to the scourge of irregular migration and promoted as a measure
necessary to prevent the further loss of life at sea.105 The agreement was
embodied in a non-binding bilateral ‘Arrangement’ and was negotiated in May
2011 as a product of the regional collaboration known as the ‘Bali Process’.106

101
M Crock, ‘First Term Blues: Labor, Refugees and Immigration Reform’ (2010) 17
AJAdminL 1–9.
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 M Crock and
MA Kenny, ‘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 M Crock and D Ghezelbash, ‘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;

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 Shadow Plays, Shifting Sands and International Refugee Law 265
Its effect would have been to underscore within Australia the principle that the
grant of protection is a matter of privilege rather than a right vested in the
asylum seeker. The deal also operated to implicitly endorse Malaysia’s
reticence in ascribing obligation to the act of granting protection to Convention
refugees.
While the announcement of the Malaysian ‘Arrangement’ did result in an
initial slowdown in boat arrivals,107 the deal fell apart when an attempt to
transfer the first asylum seekers to Malaysia was successfully challenged in the
High Court. In Plaintiffs M70 and M106 v Minister for Immigration and
Citizenship,108 the Court struck down the arrangement for a failure to comply
with the terms of the Migration Act 1958. The majority ruled that this legis-
lation mandated compliance with certain obligations under international human
rights law.109 As explained earlier, while Malaysia has ratified the Convention
on the Rights of the Child, it is not a party to the UN Convention relating to
the Status of Refugees or to any of the core human rights treaties. In the absence
of any agreement by Malaysia to assume legally binding obligations in relation
to Australia’s asylum seekers, the Court ruled that the Arrangement did not
comply with the objective requirements of the Migration Act.
With the option of a transfer to Malaysia removed, the scale and nature
of irregular maritime migration grew exponentially, suggesting that smugglers
are now very alert to policy developments. The issue became a running sore
for the Labor government. In an attempt to introduce a ‘circuit-breaker’,
the government appointed an ‘Expert Panel’ to provide strategic advice.110 The
panel styled its recommendations ‘hard-headed but not hard-hearted’, asserting
that the reversion to a form of regional processing was a necessary element in
finding a circuit-breaker to stop the flow of irregular arrivals—and with this the
high number of people who are losing their lives at sea.111 It was in the report
of this panel that the ‘No Advantage’ principle had its genesis.

D. The Pacific Solution Revisited

Almost exactly one year after the High Court’s ruling in Plaintiff M70,
the government was able to use the Houston Report to secure support to
amend the Migration Act 1958.112 The Migration Legislation Amendment

see 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 (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).
110 111
See Houston Report (n 26). 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

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 266 International and Comparative Law Quarterly
(Regional Processing and Other measures) Act 2012 created a scheme that
would allow for the establishment of a regional processing scheme, free from
the constraints imposed by the 2001 statutory scheme. The 2012 Act seeks to
distance the Australian courts, once and for all, from the processing of refugee
claims made by ‘offshore entry persons’.113 The Act is also open in its intent to
create space between the process of designating a ‘regional processing country’
and the requirement that a designated country subscribe to a legal regime for
the protection of human rights.114 Instead of prescribing objective standards
which a regional processing country must meet, the only condition on the
Minister’s designation power115 is that the Minister must think that it is ‘in the
national interest’ to designate a country.116 Following passage of this legis-
lation in August 2012, the government quickly concluded Memoranda of
Understanding with both Nauru and PNG (in respect of Manus Island). Those
States were designated for regional processing under the amended Migration
Act.117
While Australia is party to the full suite of international human rights
instruments, the same is not true of the States closely implicated in the new
‘regional’ solution. The States recently chosen by Australia as regional partners
are some of the least committed to international human rights law.
Two further elements need to be considered in order to understand how
these processing arrangements operate in practice. The first relates to the
process for selecting candidates for referral to the centres and for determining
the duration of their stay before resettlement. This quickly became an issue
when the number of UMAs outstripped the places available on Nauru and
Manus Island. The second concerns the legal frameworks governing both the
regional processing regime and the treatment of UMAs who are not selected
for referral offshore. Both are explored in the following section, together with
the ‘No Advantage’ principle embraced by the Minister as the keystone
of the ‘new’ approach to UMAs. It will be my argument that this principle—
and the denial of rights implicit in the regional processing package—provides
tangible evidence of a rapprochement between Australia’s approach to refu-
gees and irregular migration and that of its Asian neighbours.

Migration Legislation Amendment (The Bali Process) Bill 2012 (rejected by the Senate in June
113
2012). 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).

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 Shadow Plays, Shifting Sands and International Refugee Law 267
The various versions of offshore or regional processing adopted in the
management of asylum flows exemplify the tendency of Australian govern-
ments over many years to engage in a rather selective reading of the Refugee
Convention, exploiting the indeterminacy of the language used in the instru-
ment. Their insistence on the legality of Australia’s long-standing mandatory
detention laws as a first line of defence against UMAs118 is one example in
point. Australia’s addiction to such measures has not only played out on its
own territories. Its funding of immigration detention facilities in Indonesia has
done little to encourage that country to adopt practices that are compliant with
international human rights law.119 Another example is the reliance placed by
Australia on the reference to ‘international cooperation’ in the Preamble of the
Convention to justify measures that in practice look more like burden shifting
than burden sharing.120
Most importantly, however, there has been a tendency to read the Refugee
Convention as an instrument that imposes on States a narrow range of oblig-
ations, the most important of which is the duty not to refoule or send
back refugees to a place where they would face persecution on one of the
Convention grounds.121 In emphasizing this principle, the many provisions in
the Convention that operate to protect the broader human rights of refugees are
overlooked. As explored further in the following sections, it is on this point that
Australia has parted company with its traditional WEOG partners—and fallen
into step with its neighbours in the region.

V. SHADOW PLAYS: REGIONAL PROCESSING AND THE ‘NO ADVANTAGE’ PRINCIPLE

As noted earlier, the central obligation accepted by signatories to the Refugee

Convention is that ‘Convention’ refugees (as defined) must not be returned
(‘refouled’) to a country where they will face persecution on Convention
grounds. The fact that non-signatory States like Indonesia and Malaysia
generally do not engage in the refoulement of refugees has led many to suggest
that non-refoulement has become a norm of customary international law,
binding all States.122

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)
119
479–82. See Nethery et al (n 29).
120
This point is made by M Foster in ‘The Implications of the Failed “Malaysian Solution”: The
Australian High Court and Refugee Responsibility Sharing at International Law’ (2012) 13
121
Melbourne Journal of International Law 396, 397. Refugee Convention, art 33.
122
G Goodwin-Gill, ‘Non-Refoulement and the New Asylum Seekers’ in D Martin, The New
Asylum Seekers: Refugee Law in the 1980s (Dordrecht 1986) 103; cf Hathaway (n 32); see also
E Lauterpacht and D Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement’ in
E Feller, V Türk and F Nicholson (eds) Refugee Protection in International Law: UNHCR’s Global
Consultations on International Protection (Cambridge University Press 2003) 87.

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 268 International and Comparative Law Quarterly
However, by ratifying the Refugee Convention and to the conventions
underpinning international human rights law, Australia signalled its prepared-
ness to do much more than simply refrain from the refoulement of refugees.
It undertook to grant to refugees who reach its jurisdiction (and who are
recognized as Convention refugees) a whole range of rights that deepen
according to the refugee’s legal relationship with their host State.123 In Plaintiff
M70, Justices Gummow, Hayne, Crennan and Bell noted that non-refoulement
is only one of the obligations of a Convention signatory.124 Their Honours
noted that
The extent to which obligations beyond the obligation of non-refoulement (and
the obligations under Art 31 of the Refugees Convention concerning refugees
unlawfully in the country of refuge) apply to persons who claim to be refugees but
whose claims have not been assessed is a question about which opinions may
differ . . . (But) what is clear is that signatories to the Refugees Convention and the
Refugees Protocol are bound to accord to those who have been determined to be
refugees the rights that are specified in those instruments including the rights
earlier described.125

The central tenet of the Labor government’s 2012 refugee policy relative to
UMAs was that these asylum seekers should gain ‘no advantage’ by bypassing
‘regular’ immigration controls.126 While the sentiments behind the Expert
Panel’s keystone principle are not new, the policy is unique in that it explicitly
links Australia to the countries in the region. This is done by benchmarking
Australia’s (Convention-based) processing system with the practices of non-
Convention States in its region. To the extent that countries in the region
are not conferring on refugees rights that Australia should be respecting as a
party to the Refugee Convention and other human rights instruments, the ‘no
advantage principle’ has obvious shortcomings.
Translated into policy and law, the ‘no advantage’ principle became a proxy
for delaying access to most of Convention rights (apart from non-refoulement)
for ‘Australia’s’ UMAs on two levels. The first is the temporal criterion for
resettlement:127 that is, the ‘period’ which must elapse before a person who is
recognized as a refugee (whether in Australia or a regional processing country)
will receive a permanent Australian protection visa. The second relates to the
conditions in which the refugee lives while waiting for permanent residence
and/or resettlement in a safe third country.

123
Hathaway (n 31) 184.
124
Plaintiff M70 Plaintiff M70 (2010) 244 CLR 144, 195–6 [117] (Gummow, Hayne, Crennan
125
and Bell JJ). 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>.

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 Shadow Plays, Shifting Sands and International Refugee Law 269
As to the first of these, the Labor government’s policy was that no person—
even if assessed to be a refugee—should receive a permanent Australian
protection visa any faster than they would have in a refugee-processing country
in Australia’s region. Then Minister Bowen proclaimed that a person assessed
as a refugee would receive a permanent visa,128 but not until they ‘would have
under regional processing arrangements’.129 The Labor government tried to
walk a fine line between emphasizing that ‘no advantage’ means ‘long periods
of time’130 without concurring with the conservative party’s specification of a
minimum wait period of five years. In practical terms, however, the Labor
approach amounted to a return to the temporary protection policies of the
former conservative Coalition,131 with an interesting difference. Where the
conservatives would permit UMAs to make immediate application for pro-
tection as refugees, the Labor approach was to release UMA asylum seekers
into the community on documents known as temporary safe haven visas. These
operate to grant temporary protection while specifying that the visa holders
have no right to apply for asylum or for any other visa except at the absolute
discretion of the Minister (exercising a non-reviewable, non-compellable
discretion).132 Again, this devise carries the implicit message that the grant of
(enduring) protection is a gesture of sovereign goodwill, not a matter of legal
obligation.
As UNHCR was quick to point out,133 the temporal application of
the ‘No Advantage principle’ is a practical nonsense. While refugees do

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>.

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 270 International and Comparative Law Quarterly
frequently spend long periods of time languishing in countries like
Malaysia,134 it is impossible in practice to specify anything resembling a
typical waiting time. Refugees from some countries are never considered
for resettlement,135 however dire their circumstances. Others are given priority
and achieve positive outcomes in short measure.
As a matter of international law, there is no inherent problem in imposing
temporal limitations on the protection granted to Convention refugees. In fact,
Australia played a significant role during the years of the CPA in legitimizing
the concept of temporary protection as an option for States receiving large
numbers of asylum seekers and refugees. After the federal election in
September 2013, the resurgent conservative Coalition moved to reinstate a
system of temporary protection visas for UMAs, with no access (ever) to
permanent residence.136
The real problems relate to the circumstances in which UMA refugees (and
asylum seekers) are held and the entitlements given to them pending a final
resolution of their situation. The second application of the No Advantage
principle relates to the entitlements of the asylum seekers and refugees pending
their admission or acceptance as Australian residents, whether permanent or
temporary. It is this aspect of the policy that holds the greatest potential for
human rights abuse.

VI. SHIFTING SANDS: AUSTRALIA’S OBLIGATIONS, REFUGEE RIGHTS

AND THE MEANING OF PROTECTION

Over time, Australia has gone out of its way to argue that it is compliant with
obligations it has assumed at international law. In 2002, the then government
published a small book containing a detailed apologia for the complex policy
settings underpinning the first Pacific Solution. These included the mandatory
detention of UMA asylum seekers; the grant of temporary protection visas;
restrictions on education and social security rights; and the denial of family
reunion.137 A decade later, little changed as first a Labor and then conservative
Coalition governments have replicated incrementally virtually every element of

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.

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 Shadow Plays, Shifting Sands and International Refugee Law 271
the earlier scheme. Before the 2013 election the one exception was the push-
back actions that were part of Operation Relex in 2001.138
Beginning first with the issue of the status of the UMAs relative to
Hathaway’s taxonomy of human rights, it will be seen that there are more than
passing similarities between some of Australia’s policies and those of Malaysia
and Indonesia.

A. Status and Rights under International Law

In spite of the agreements reached with Nauru and PNG, a clear majority of the
UMAs who have arrived in Australia since August 2012 are likely to remain in
Australia, where their asylum claims will be determined under Australian law.
The (Labor) government announced in late 2012 that these people would be
subject to the same ‘no advantage’ period as UMAs transferred offshore. Over
time, most UMAs have been released into the community or housed in
‘Alternative Places of Detention’ on visas which have the effect of conferring
lawful presence in Australia. The status of others who remain in immigration
detention is more contentious. Hathaway argues that ‘the stage between
“irregular” presence and the recognition or denial of refugee status . . . is also a
form of “lawful presence” and hence that only those whose applications have
been rejected are unlawfully present’.139 Although the better view as a matter
of international law (it is the reading of the Convention most consistent with
principles of treaty interpretation), the Australian government asserts that
‘mere’ detainees are not lawfully present.140 As Hathaway observes:
If a state opts not to adjudicate the status of persons who claim to be Convention
refugees, it must be taken to have acquiesced in the asylum-seekers’ assertion of
entitlement to refugee rights, and must immediately grant them those Convention
rights defined by the first three levels of attachment.141
This statement certainly pertains to the UMAs released into the community on
temporary safe haven visas.142 It would also be apposite to refugees granted
temporary protection visas.

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).

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 272 International and Comparative Law Quarterly
The status of transferees to Nauru is even clearer than that of UMAs
in Australia. Upon arrival in that country, UMAs are granted an Australian
Regional Processing Visa143 valid for an initial period of three months, renew-
able indefinitely as long as the Australian government continues to pay the
$1000 monthly visa charge. The status of transferees to PNG is less obvious.
There is no visa equivalent to the Australian Regional Processing Visa. At best,
it seems that they remain without status, and are simply tolerated by the
government in fulfilment of its diplomatic promises to Australia. Nevertheless,
this tolerance supports an argument that transferees to Manus Island are
lawfully present in PNG. At worst, they are simply ‘present’ and are entitled
only to the most basic protections.
As explored further below, UMAs in all three States are liable to detention,
in fact if not in name. When released on temporary visas, asylum seekers in
Australia have few entitlements at law. They enjoy no right to work, through
self-employment or otherwise. Under the Labor government they did however
enjoy a right to free legal advice. The conservative Coalition vowed to abolish
this entitlement upon its election in September 2013. It also promised to deny
asylum seekers access to review of adverse decisions.144

B. Discrimination and Penalties

As many argued in relation to the Pacific Solution policies,145 it is very difficult
to see how Australia’s approach to UMAs does not amount to discrimination
and the imposition of penalties based on legal status and mode of arrival. On
this occasion the very language used implies a penalty in the sense that the
obverse of advantage is disadvantage. This has been more than borne out
in practice. The situation facing persons transferred to either Nauru or PNG in
2012–13 was dire. Accommodation was rudimentary, with transferees in
Manus Island suffering indignities that varied from the absence of doors
(lack of privacy) through to rain-soaked bedding and endemic disease.146

C. Detention
In January 2013, the number of people in immigration detention (including
‘alternative places of detention’) in Australia exceeded 10,000 for the first time

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
G Goodwin-Gill, ‘Article 31 of the 1951 Convention relating to the Status of Refugees: Non-
penalization, detention, and protection’, in E Feller, V Türk, F Nicholson, (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).

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 Shadow Plays, Shifting Sands and International Refugee Law 273
in the country’s history.147
As conditions within the centres have deteriorated,
the incidence of deaths, self-harm and other injuries once again began to
escalate.148 Australia’s policy of mandatory incarceration for non-citizens
(including asylum seekers) entering without authorization has attracted
criticisms from many sources, both within Australia and international fora.149
In spite of semantic arguments about what constitutes detention—for example
UMAs transferred to Nauru and Manus Island are deemed under Australian
law not to be in detention150—the reality is that most of Australia’s UMAs
continue to be detained, sometimes for very lengthy periods. While the
conditions in Australian detention facilities are far superior to the majority of
immigration detention facilities in Malaysia and Indonesia, in recent years
Australia has detained many more people than either of these two States. The
situation is not without irony, given the expressed desire of Australia’s Labor
government to reduce the immigration incarceration rate.151

D. Deprivation
UMAs in Australia who are not referred offshore for regional processing now
find themselves in situations of great uncertainty. Observance of the non-
refoulement principle means that they receive de facto temporary protection,
yet without the comfort of a formal status. The policy of successive govern-
ments has been that people who arrive by boat and are subsequently released
on bridging visas will have no work rights and will receive only basic
accommodation assistance, and limited financial support.152 It is difficult to

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>.

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 274 International and Comparative Law Quarterly
see how this can be compliant with the terms of the Refugee Convention
and human rights instruments which protect against ‘deprivation’. The
potential for psychological harm in persons subjected to these pressures on
top of the life stresses that lead to their flight to Australia is obvious. Under the
first iteration of the Pacific Solution, UMAs recognized as refugees were at
least processed and accorded work rights when recognized as Convention
refugees.153 Having been roundly critical of the earlier policies as cruel and
wrong in principle,154 there is more than a little irony in the fact that the Labor
government constructed a regime that could be both more punitive and less
certain.155 The practical effect of the no advantage principle is that the lived
experiences of UMAs in Australia have the potential to resemble those of
asylum seekers in Malaysia and Indonesia.

E. Family Unity
Unlike refugees granted temporary protection in Europe,156 Australia has
chosen to follow States like Malaysia and Indonesia where asylum seekers
cannot sponsor family members living in foreign countries for reunification
purposes. The justifications given by Australia for its policies also resonate
strongly with those given by its neighbours.157 This is a matter of particular
concern in relation to unaccompanied asylum-seeker children. Until August
2012, unaccompanied children granted protection in Australia as refugees
could sponsor family members under ‘split family’ provisions. The Explan-
atory Memorandum to the amending regulations158 justified the change in

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>.

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 Shadow Plays, Shifting Sands and International Refugee Law 275
policy made in response to the Houston Report by reference to arguments that
resonate strongly in States like Malaysia and Indonesia. It reads:
The protection of the family unit under Articles 17 and 23 (of the International
Covenant on Civil and Political Rights (ICCPR)), does not amount to a right to
enter Australia where there is no other right to do so. Avoiding interference with
the family or protecting the family can be weighed against other countervailing
considerations including the integrity of the migration system and the national
interest.
Australia’s mandatory detention laws have been defended as measures
designed to prevent the admission of persons who chose this option voluntarily
over their freedom to depart to any other country.159 So too is the argument
now made that Australia cannot be held responsible when families chose to
separate by sending a member out in search of asylum:
As refugees are unable to return to their country of origin, if family reunification
is not available there is the potential that some refugees may be permanently
separated from their family. However, Australia considers that changes to family
reunification does not amount to a separation of the family as there has been no
positive action on the part of Australia to separate the family. An [UMA] becomes
separated from their family when they choose to travel to Australia without their
family. To this end, Australia does not consider that Articles 17 and 23 are
engaged. Even if Articles 17 and 23 were engaged, the change does not seek to
remove the ability of [UMAs] in Australia to achieve family reunification; it
simply places [UMAs] on an equal footing with all other Australian citizens and
permanent residents wanting their family to join them in Australia. Australia
considers that this is a necessary, reasonable and proportionate measure to achieve
the legitimate aim of preventing [UMAs] from making the dangerous journey to
Australia by boat.160
Once again, this aspect of Australian policy aligns more closely with the
approach taken by Indonesia and Malaysia than it does with policies in
comparable WEOG States.

F. The Situation of ‘Transferees’ in Nauru and PNG

International law requires that if refugees are to be transferred to a third
country, that country must provide effective protection. What cannot be done
directly cannot be done indirectly: a Convention State cannot abdicate its
responsibilities by deflecting refugees to a State that will not comply with the

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.

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 276 International and Comparative Law Quarterly
terms of the Convention.161 It is worth noting in this context that Article 2(1) of
the ICCPR requires States to afford the rights to persons within their
jurisdiction as well as within their territory. As noted earlier, Australia has
traditionally taken some care to frame its policies so as to facilitate a discourse
of human rights compliance.162 It is no longer a statutory requirement that
States to which Australia sends its UMA asylum seekers comply with any
human rights standards. Even so, the Labor government put some effort into
encouraging both Nauru and PNG to enact legislation that aligns with the basic
tenets of international human rights law.
Neither PNG nor Nauru are bound by the same range of international human
rights instruments as Australia. The Memoranda of Understanding between
Australia and Nauru and Australia and PNG contained vague human rights
commitments, but were not couched in binding language.163 On the other
hand, both PNG and Nauru have constitutions which protect individual
rights.164 Nauru has taken steps to enact legislation that is facially compliant
with the Refugee Convention and other key human rights instruments, includ-
ing those involving children.165
One of the many problems facing Australia’s government is that the
arrangements in both countries to house and process UMA asylum seekers has
not met with universal acceptance in either country. There have been at least
two challenges to the PNG facilities on constitutional grounds. In January 2013
the PNG opposition leader, Belden Namah, filed an application in the National
Court for a permanent injunction against the Manus Island processing centre
on the grounds that it was unconstitutional. He sought an order that the trans-
ferees already in PNG be returned to Australia. Mr Namah argued that holding
UMAs in the Manus Island Centre was against PNG’s constitution, which
prohibits arbitrary detention. Incarceration for extended periods is only
permissible for persons found by a court to have broken the law. The case
was dismissed but was again attempted once the permanent resettlement plan
was announced.166 In February 2013, the Nauruan government was faced with

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 G Triggs,
International Law: Contemporary Principles and Practices (LexisNexis 2006), 499–500.
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>.

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 Shadow Plays, Shifting Sands and International Refugee Law 277
significant internal tensions (including the sudden resignation of the foreign
minister) over the establishment and running of the facilities.167 A constit-
utional challenge to the regime in that country failed,168 although rioting by the
asylum seekers detained there has played havoc with the practical implemen-
tation of Australia’s plans in the country.169

G. Procedural Safeguards
While the Refugee Convention (and other human rights treaties) speak clearly
of the rights of refugees, the Convention is largely silent on the procedures that
must be adopted by States parties in determining refugee status. Both the
Expert Panel and the Labor government relied on a statement by UNHCR that
under certain circumstances, the processing of international protection claims
outside the intercepting State could be an alternative to standard ‘in-country’
procedures. Notably, this could be the case when extraterritorial processing is
used as part of a burden-sharing arrangement to more fairly distribute respon-
sibilities and enhance available protection space.170

Two observations can be made in respect of Australia’s regional processing

scheme. First, the UNHCR policy from which that statement is extracted is
quite specific as to the ‘certain circumstances’ in which third country pro-
cessing would be legitimate. Those conditions are discussed further below. The
Panel and government chose to ignore another passage from the conclusion of
the same document they cite, which stresses that
In general, processing of intercepted persons will take place inside the territory
of the intercepting State. This is consistent with the responsibilities owed by
the intercepting State to persons within its de jure or de facto control under
international refugee and human rights law.171
Second, it cannot really be said of Australia’s regional arrangements that they
‘more fairly distribute responsibilities and enhance available protection space’.
‘Regional processing’ in its contemporary Australian guise outsources the
responsibility to assess the claims of those who arrive in Australia’s juris-
diction or at its borders to poor, under-resourced and remote States. The
difference between this so-called regional processing package of legislation

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/
171
4cd12d3a2.html>. ibid 16.

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 278 International and Comparative Law Quarterly
and a genuine regional cooperation framework is that a genuine framework
of regional cooperation would involve burden sharing, including a system
providing asylum seekers with genuine opportunities to access status deter-
mination processes as an alternative to irregular maritime travel; mutual
resettlement obligations; and cooperation with UNHCR.172 The Australian
scheme assumes, but does not guarantee, resettlement for people who are
assessed to be refuges. There is a lack of reciprocal obligations or resettlement
undertakings on the part of receiving States because the ultimate obligation to
resettle those recognized as refugees remains with Australia (where the grant of
a protection visa is now a matter of discretion rather than obligation).

VII. CONCLUSION

By voluntarily ratifying the Refugee Convention, Australia undertook to

acknowledge and respect the rights of refugees who come within its
jurisdiction, acting at all times in good faith.173 Yet, with the 2012 ‘regional
solution’, the Australian government distanced itself from the obligation to
determine whether the UMAs who come to Australia in search of asylum are in
fact refugees as defined in the Refugee Convention. On its face, the matrix of
policies does little to ensure the protection of rights in those affected. The
very concept that Australia should be using non-Convention States in its region
as a benchmark for managing refugee flows is problematic. The trend begun
by the Labor government was continued with the switch in September 2013
to a conservative Coalition. Renaming Australia’s immigration agency the
‘Department of Immigration and Border Protection’, new immigration
Minister, Scott Morrison MP, issued an edict in October 2013. Henceforth,
he decreed, his Department should refer to UMAs as ‘illegal migrants’, while
those in custody should be termed ‘detainees’ rather than ‘clients’.174
The most obvious problem with the so-called ‘no advantage’ principle—and
with the way that it has been put into practice—is that it starts from a false
premise. This is that UMAs taken in by Australia gain an ‘advantage’
over persons who seek admission from abroad as refugees or humanitarian
migrants. Indeed, in some respects the principle seems to be a new way of
expressing the idea that asylum seekers are ‘queue-jumpers’ who take the
places of ‘legitimate refugees’ who wait for resettlement in UNHCR camps
around the world.
As a matter of international law, such ideas are without any legitimacy.
Refugees situated (overseas) in States of first refuge and refugees presenting
(onshore) as asylum seekers fall into two very different legal categories. People

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>.

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 Shadow Plays, Shifting Sands and International Refugee Law 279
processed by UNHCR in its camps around the world and categorized by that
agency as suitable candidates for resettlement in third States may be refugees,
but they have no legal claim on Australia or on any other country in which they
are not physically present. In contrast, people who physically arrive at the
territory of a Convention party directly engage the international obligations set
by the Convention. Persons resettled in Australia from refugee camps overseas
are admitted as migrants—and as a matter of goodwill. It is the challenge of
international refugee law that the Convention creates obligations in State
parties that sit uneasily with the sovereign right of States to determine who
comes into their territory and the circumstances in which they come. The
dissonance in the emotions generated by the refugee as victim and the refugee
as proactive agent of their own destiny was captured well by then UN High
Commissioner for Refugee, Ruud Lubbers in 2001:
In Pakistan, I visited the infamous Jalozai camp, where thousands of Afghans are
crammed together in inhumane and unsanitary conditions. When this camp
appears on television screens in industrialized countries, there is – rightly – shock,
sympathy and condemnation. But when one of these Jalozai Afghans is found
hiding under a Eurostar train or arrives in a wealthy country on a leaky fishing
vessel, they will suddenly cease to be an object sympathy and fall into that
sweeping category of people branded ‘bogus and illegal’. . .a modern day version
of the plague-rat.175

By revisiting policies and practices that were devised to disrupt flows of

irregular maritime asylum seekers at the end of the war in Vietnam, Australia
has aligned itself quite expressly with the States in its geographical region. In
so doing the country is plainly acting in breach of a range of obligations it has
assumed under international law. It is actively encouraging States in the region
to emulate its bad behaviour. If the funding of detention centres in Indonesia is
one example in point, the whole matrix of arrangements with Nauru and PNG
is another. Predicated on the imperative of deterring people from risking their
lives at sea, Australia’s ‘regional solution’ to UMAs is likely to be remembered
in time as well-meaning but fundamentally misconceived policy-making. Early
indications are that the reopening of detention and processing centres on Nauru
and Manus Island—and the reintroduction of a (de facto) temporary protection
regime will not stem the flow of boats. In fact, the boats are unlikely to stop in
the absence of an effective push-back (refoulement) operation. Such a measure
would truly offend the central tenets of the Refugee Convention and related
human rights instruments—if indeed it could be achieved given the complex
geographical and political realities of a country like Indonesia. As was the case
with earlier versions of interdiction and deflection policies, those caught by the
deterrent measures have been and will continue to be harmed.

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

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 280 International and Comparative Law Quarterly
The fact that Australia is able to engage in all or any of these measures—
from push-backs through detention and the imposition of policies that
undermine the health and well-being of asylum seekers—is testament to its
practical alienation from the WEOG States with which it remains culturally
aligned. Australia is not only surrounded by States that have not subscribed to
many of the key human rights conventions. It is also in a region where there is
no framework for holding States to account when they do act in contravention
of their international legal obligations. The domestic litigation surrounding the
introduction of Australia’s deterrent measures finds no parallel in international
fora. There is no equivalent in the Asia-Pacific to the European Court of
Human Rights which in February 2012 ordered Italy to pay EUR 15,000 to
each of a group of Eritrean and Somali IMA asylum seekers who were pushed
back to Libya by the Italian coastguard.176 That case confirms the dominant
view—in Europe at least—that international human rights law operates beyond
the territory of States where actions are taken to prevent individuals from
reaching a State’s territory.177 So also should the rule of international human
rights law flourish in the Asia-Pacific, were Australia to remember and respect
its cultural and legal heritage.

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).

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