The new arrangement with PNG violates Australia’s international obligations in a number of key areas. Australia has certain obligations to refugees under the Convention Relating to the Status of Refugees (‘Refugee Convention’). As many asylum seekers transferred to PNG may in fact be refugees (that is, fleeing persecution because of their race, religion, nationality, membership of a particular social group or political opinion), Australia has these obligations to asylum seekers until they have undergone a fair and effective status determination procedure and have been found not to be refugees.
Article 31 of the Refugee Convention prohibits Australia from penalising a refugee because of their mode of entry. As the new arrangement will only apply to asylum seekers arriving by boat and not those who arrive by plane, Australia is in clear breach of this provision.
There are also two ways in which Australia may be in violation of its obligation under Article 33(1) of the Refugee Convention to protect refugees from being returned (refouled) to persecution. First, the procedures in PNG for identifying refugees may be inadequate. This is a particular concern for the United Nations High Commissioner for Refugees who has identified significant shortcomings in the legal framework for status determination of refugees in PNG. Article 33(1) of the Refugee Convention will be violated by Australia if a refugee processed in PNG is not identified as needing protection and is thus returned to persecution in their home country.
Secondly, Article 33(1) of the Refugee Convention may be violated if refugees are persecuted in PNG. There are certain at risk groups for whom transfer to PNG is clearly unsuitable. For example, gay and lesbian refugees may face persecution, since the PNG government has criminalised homosexuality; women who are victims of violence may not be afforded the protection they need in PNG because of what the UN Special Rapporteur on Violence Against Women has called an ‘endemic’ problem with gender-based violence in the country; and members of religious minorities may be persecuted in PNG if proposals calling for the prohibition of religions other than Christianity successfully pass into law.
The arrangement with PNG also violates Australia’s obligations under Article 9(1) and 9(4) of the International Covenant on Civil and Political Rights (‘ICCPR’) to refrain from arbitrary detention and to provide an opportunity for detainees to review their detention.
In addition, there have been allegations of sexual assault and torture in the detention facility on Manus Island and repeated acts of self harm in the detainee population. Should the allegations of sexual assault and torture be true, Australia’s failure to protect detainees may be a violation of Article 7 of the ICCPR which prohibits the exposure of individuals to torture or to cruel, inhuman or degrading treatment or punishment and Article 3 of the Convention Against Torture which prohibits the exposure of individuals to torture.
The poor conditions in the Manus Island detention facility led Australia to remove all detained asylum seeker children from the facility a little over two weeks prior to the announcement of the new arrangement. However, children will now be returned to the detention centre. As the best interests of children was clearly not the primary consideration in the decision to return asylum seeker children to PNG, the new arrangement also violates Article 3 of the Convention on the Rights of the Child.
Whether or not the new arrangement will result in a decline of boat arrivals is yet to be seen. What is clear, however, is that the new arrangement will place vulnerable people, including children, at risk of great harm. In the face of this certainty the new policy appears not only unlawful but unnecessarily cruel.
AZADEH DASTYARI teaches law at Monash University.