Table 1

Human rights implications of Australian asylum policies and practices

Australian asylum policies and practices

Human rights implications


Detention of asylum seekers

Arbitrary detention of asylum seekers is prohibited by Article 9(1) of the ICCPR. For the lawful detention of asylum seekers to be considered non-arbitrary, it should only be administered for the shortest time possible and be a reasonable, necessary and proportionate means to achieving a legitimate outcome, while giving due regard to alternative means which are less imposing on an individuals' rights [12]. Australia's history of automatic, mandatory detention of asylum seekers until their claims are finalised may be categorised as arbitrary in practice (in almost all cases, except those detained for a brief period), as the deprivation of liberty for an indeterminate period is difficult to justify on the grounds that it is a reasonable means of achieving a legitimate aim (i.e. for the purpose of granting a visa or removal from the territory) [13].


Temporary protection of refugees

Under the Refugee Convention, a signatory State is not required to provide permanent residence to refugees to meet its Convention obligations. However, temporary protection, as outlined by the United Nation High Commissioner for Refugees (UNHCR) should in general, only be applied to large groups of asylum seekers, who come en masse into a receiving country and threaten to overwhelm the administrative capacity of that country [14]. By applying a blanket temporary protection policy to all undocumented asylum seekers, it is arguable that Australia was "overly restrictive in its interpretation and application of this key element of the Convention." [15, para. 4] As such, the legitimacy of the policy under international law is questionable, as it is contrary both to the spirit of the Refugee Convention as well as accepted international standards [15,16].


Restricted entitlements of TPV refugees

Article 34 of the Refugee Convention requires host States 'as far as possible' to 'facilitate the assimilation and naturalization of refugees'. By denying TPV holders certain social and welfare rights, the Australian policy dismissed those sections of the Refugee Convention, which are aimed towards assisting refugees, an already vulnerable group, to return to a "situation of national protection in a new country, if not their own, as soon as possible" [11]. To assist in this process, the Refugee Convention affords refugees "the most favorable treatment" accorded foreign nationals in the resettlement country, with respect to employment (Refugee Convention, 1951, Article 17). It is arguable that the restrictions on TPV refugees in accessing services to assist them with employment opportunities were not in keeping with this obligation. In relation to public relief (Article 23) and social security (Article 24), refugees are to be given equal access as nationals [17], by stark contrast to the restricted welfare entitlements offered to TPV refugees in Australia. Finally, the Australian temporary protection regime was not consistent with UNHCR policy and the practice of other States (e.g. in the European Union) whereby full Refugee Convention rights should be granted if return remains impossible after a few years [11].


Johnston et al. BMC International Health and Human Rights 2009 9:1   doi:10.1186/1472-698X-9-1

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