PNG solution at odds with international law


Giant gavel superimposed over world mapAttorney-General Mark Dreyfus claims the PNG solution — featuring permanent exclusion from Australia in a small, poor and violent country already unable to accommodate the refugees from West Papua whom it hosts — complies with international law. We shall have to wait for the courts to give us their opinion, but a quick glance at the much put-upon Refugee Convention suggests this is may be a rather optimistic assessment.

Firstly, this 'solution' — like the ill-fated solutions which came before — only applies to asylum seekers who arrive by boat and whose claims have, historically, been overwhelmingly successful. This runs into an immediate problem: Art. 31 of the Convention begins: 'The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees ...' Given that these measures will only apply to those coming by boat, it seems to be a fairly obvious 'penalty ... on account of illegal entry or presence'.

An oft-repeated line is that those coming are only 'asylum seekers' and not, in fact, refugees. This is at least a bit misleading. True, not everyone who claims status is a refugee. On the other hand, whether you are a refugee or not does not depend on a court or other body saying that you are one — it depends on your meeting the criteria in the Convention. Fleeing well-founded fear of persecution on one of the listed grounds.

The only way to honour the Convention is therefore to assume that people have the rights in the Convention until they are shown not to be refugees (and anything up to 90 per cent of boat arrivals are known to be the real deal). Australia instead intends to deny all Convention rights to such arrivals, instead demanding that PNG assume them on its behalf. There is no provision in the Convention for such wholesale abdication of obligations.

There is international authority that a state is not obliged to provide comprehensive asylum (e.g. citizenship rights) but only to secure to refugees the rights in the Convention. Theoretically, therefore, if Australia were to use PNG as its agent in the performance of its Convention obligations, there may be an argument that it was living up to its obligations.

There appears to be some suggestion of this in the M70 judgement which struck down the Malaysia solution. The court made it clear, however, that the agent state would have to provide a comprehensive refugee determination process, and probably also have to honour the full range of rights in the Convention, including granting the same rights to education, practice of a profession, labour rights and social security as the principal state does to its own nationals. As the majority put it in M70, the obligations assumed by the agent state (here PNG):

must be understood as referring to access and protections of the kinds that Australia undertook to provide by signing the Refugees Convention and the Refugees Protocol. In that sense the criteria stated in s 198A(3)(a)(i) to (iii) are to be understood as a reflex of Australia's obligations.

Whatever PNG can offer its own nationals in this regard, it is unlikely to afford them the same rights as Australian citizens. Given that PNG is to perform Australia's Convention obligations, this would seem to be the relevant test.

In addition, PNG has made reservations to (declared that it does not accept) articles 17 (1) (right to work), 21 (right to housing), 22 (1) (right to education), 26 (freedom of movement), 31 (right to enter), 32 (protection against expulsion) and 34 (facilitation of naturalisation of refugees) of the Convention. This suite of reservations makes it doubtful whether PNG itself can be said to be a party to the Convention; international law prohibits reservations which would frustrate its object or purpose.

Whatever the answer to that question, it is clear that the obligations which PNG has accepted under the Convention are very different to those accepted by Australia.

Any 'solution' which discriminates against refugees based on the manner of their arrival, removes them to a country which has not adopted the same obligations as Australia and cannot, in any event, afford them the same rights as Australia therefore seems difficult to square with Australia's Convention obligations. 


Justin Glyn headshotJustin Glyn is a Jesuit scholastic studying theology and philosophy in Melbourne. He previously practised law in South Africa and New Zealand. He holds a PhD in international and administrative law.

International law image from Shutterstock

Topic tags: Justin Glyn, PNG, asylum seekers, refugees, Kevin Rudd



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Existing comments

Not to mention that trafficking humans because we claim they were smuggled is illegal and criminally deranged. It is not smuggling under the law to help refugees get to safety, it should be mandatory lauded behaviour.

Marilyn | 22 July 2013  

So much attention given to the moneyed boat arrivals - meanwhile the poorest refugees without money languish in camps in war zones. Not much attention given to them. Where is the justice?

Skye | 23 July 2013  

This PNG plan has Kevin-13, and to a lesser extent modern Labour, written all over it. Superficially it seems politically brilliant, but with even a second or two to think about it, it is obviously sheer madness. Unless it really does instantly and for the long term switch off the boats, but somehow I doubt if to will, because the people-smugglers aren`t stupid either. As my teenage son asked last evening, when are we going to start systematically processing potential asylum seekers in Malaysia and Indonesia and then bring them rapidly, safely and without fuss to Australia, as part of the 20,000 pa refugees we already take?

Eugene | 23 July 2013  

I think Skye sees the $10,000.00 refugees in perspective. Your argument read as very legalistic . The argument raised by a few commentators in that this particular UN Convention is not suited to current day circumstances and that we should revisit our subscription to it. Rudd is acting in the world of realpolitik. He did so, I suspect, as a potential election winning strategy, especially as, by undoing Howard, he was accused of causing the boats. Despite the comments of the likes of Marilyn, I think the truth is that some claiming to be refugees - I'm speaking of the middle class Teheran professionals who use the (soon to be closed) VOA route through Indonesia in particular - are possibly not as genuine as Rohingya or Karen from Myanmar who are genuinely in danger from their government. I don't think we are able, economically or culturally, to take an open ended stream of asylum seekers. There must be some restraint. Australia already takes far more than most countries. There is no doubt what public opinion on this matter is. I am reminded of what the late William Barclay, renowned Scottish biblical scholar, said about the moral case for limiting migration to the UK until these migrants were properly integrated into the community. This is a difficult real time situation.

Edward F | 23 July 2013  

Oh so easy to criticise on questionable points of law but but you offer NO solutions. Or is it ok by you to continue the practice of paying people smugglers to put children's lives at risk at sea? Isn't that against international law/convention? How would you stop the boats? That is the real question that is worthy of debate.

Leigh | 23 July 2013  

Dear Skye, Leigh and Edward. Thank you for your comments. It is true that people come here by boat (those who are rich enough to come by plane are not penalised by the Government). Far from being an outdated document, the Convention was written by people horrified at the experience of Western governments turning boatloads back to slaughter in Nazi Germany - and wanted to ensure it never happened again. They recognised that many people could not (and still cannot) apply to their persecutors for travel documents. To which Talib should a Hazara refugee apply to leave to join the mythical "queue"? As for solutions - we should decouple our UN intake from our intake of spontaneous refugees. We do not have a refugee problem. Indeed, the poorer countries bear most of the load here (and do it with much less complaint). At the end of last year Pakistan hosted about 1.6 million refugees and Iran about 868,000. Australia hosted about 30,000 (and we are richer than these countries). If we really wanted to "stop the boats", we would bring more people over ourselves. In fact, I suspect it's more about letting people die where we can't see their suffering.

Justin Glyn SJ | 23 July 2013  

To me the whole way that the government, opposition and many media have framed the debate as being about people smugglers is disgusting. It is not about smugglers it's about people fleeing from cruel and repressive regimes where they are denied any other avenue to any kind of freedom or safety. Odious comparisons such as those saying middle-class Iranians are less liable to persecution than Rohingas are exactly the kind of rhetoric used about the Jews before WWII. If you've got money, you can't possibly be suffering!! Either people meet the UNHCR criteria or they don't - there is no class system. So much to say about the horror of all this and the mean, resentful, envy-based garbage being dished out by Rudd's and Abbott's propaganda machines such as Alan Jones and co. If there was a Goebbel Prize for Newspeak - they'd all be highly eligible! Sick sick country. Thank God (really as in Jesuits) for the Justins of Australia!

Ariel | 24 July 2013 It makes zero difference how people get here or who they pay, it is quite legal.

Marilyn | 24 July 2013  

Dear Justin Glyn, Your argument becomes flawed the moment you start to cynically and unfairly ascribe cruel motives to our politicians and the Australian public. "You say if we really wanted to stop the boats we would bring them over themselves and that you suspect that its more about letting people die where we can't see their suffering." There are many defence personnel who are on the front line seeing the suffering and lifeless bodies of children not to mention our politicians attending funerals and probably going to morgues. This is a very heartwrenching situation and the people smugglers are becoming more and more outrageous in their endeavours. "Who cares about the human rights of those have drowned." I think we could have a situation where we ferried asylum seekers over here. But this may not deter the people smugglers. Don't be so quick to judge motives of politicians and the Australian public, many of us are wrestling with this supremely complex situation. You might like to pray for our politicians and all Australians, instead of taking a holier than thou position instead.

Ros | 25 July 2013  

Like so many Australians I too am horrified at the so-called answers to the 'problem' of asylum seekers. May I ask a few questions? *How can the PNG solution' be compliant to international law when we have contributed to the Refugee Convention? *If the consistently reviled ''people smugglers' are known to the authorities, why are they not apprehended? A group of Australian and Indonesian police would suffice. A 4 Corners group flushed out one smuggler living happily in Canberra. *Why have we been so slow in interviewing refugees languishing in camps? *Did the authorities in charge on Manus not see the unrest leading to the destruction there, and take proper charge? Were ANY interviewed? We can surely be businesslike - we don't have to be cruel & heartless. And NO - I don't think Bob Carr has the answers. Mary Maraz

Mary Maraz | 28 July 2013  

how do we organise a demonstration, opposing Government polocy on boat people, seeking assylum in Australia

bernie introna | 29 July 2013  

Dear Justin, I have reassessed my position and have come to a better understanding of what you meant when you said that asylum seekers were dying elsewehere where we could not see their suffering. William Maley's article in the Canberra Times titled "Die Somewhere Else" was a good article to read to understand how the arguments put by the government in regards to the new policy's aims to prevent drownings at sea and to ensure a more orderly process of processing of refugees; are flawed arguments. Maley questions whether the government is choosing a policy which aims to relieve the "selective suffering" of asylum seekers. Keep up the good work!

Ros | 02 August 2013  

Thank you, Ros. I really appreciate your comments! You are quite right - the Maley article puts it very well indeed. What I had in mind was precisely our cruelty in linking the spontaneous (on-shore) intake with the number of refugees we resettle from camps run by UNHCR and our apparent indifference to the fate of those who DON'T get on to the high seas in the first place. Peace!

Justin Glyn SJ | 03 August 2013  

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