19 May 2015
by Savitri Taylor

Equal protection of the law?

Prime minister Tony Abbott at Larrakeyah Barracks in Darwin in late 2013 with one of the Cape Class vessels used in Operation Sovereign Borders.

Has Australia cut itself adrift from international law? Savitri Taylor looks at the implications of recent refugee-related legislation

Like it or not, Australia is subject to two legal systems. Our domestic law, which we can change at will, regulates conduct within Australia. Equally as important, international law enables countries to coexist and cooperate. In principle, the two legal systems should be in harmony. In practice, they can drift dangerously apart. Yet Australia’s continued existence as a sovereign state depends on the international legal order, so we really have no option but to play by its rules.

From the perspective of our domestic legal system, international law is not directly binding and Australian parliaments are perfectly free to pass legislation that is inconsistent with our international legal obligations, so long as they make their intention to do so clear enough. But international law takes the position that countries can’t defend breaches of their international legal obligations by saying that their conduct was permitted or even mandated under domestic law. This creates an impasse that can only be broken by Australians choosing to take the international legal system more seriously.

The problem is that almost every choice we have made about asylum seekers over the past twenty years has also been a choice to repudiate international law. For a long time, we denied this was so. But more recently we have ceased even to profess a commitment to the international legal system when it doesn’t suit us.

Under the Maritime Powers Act, for example, Australian officials have a range of powers they can use to investigate and prevent breaches of Australian law. These include wide powers to detain and search vessels and the people on board, and to take them to a place within or outside Australia (anywhere, in other words). Since December 2014, the Act has also provided that any inconsistency with Australia’s international legal obligations won’t invalidate a use of the powers conferred by the Act. Similarly, the Migration Act now states that “an officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations” – our international obligations, that is – “in respect of the non-citizen.”

Our legislation is also replete with more subtle repudiations of international law. For example, several detailed provisions introduced into the Migration Act last month together define which refugees are eligible for a protection visa. The definition bears some resemblance to the 1951 Refugee Convention and the 1967 Protocol definition of “refugee”, but it doesn’t correspond entirely with that definition as internationally understood.

When it suits us, though, we invoke international law against other governments. Prior to the execution of Andrew Chan and Myuran Sukumaran, for instance, Julie Bishop was reported to have asked Indonesia to submit to an International Court of Justice adjudication of whether the executions would be a breach of Indonesia’s obligations under the International Covenant on Civil and Political Rights. By responding merely with silence, Indonesia showed remarkable restraint.

What distinguishes “liberal” democracies – of which Australia claims to be one – from “illiberal” ones is their adherence to the view that all individuals have fundamental moral rights, of which even a political majority cannot deprive them. In fact, the notion of universal human rights is a product of liberalism, so if Australia truly adheres to the liberal tradition then the human rights treaties to which we are party would simply be articulating rules we would be happy to abide by in any event.

We also claim that Australia is governed by the rule of law. Now, as lawyers are aware but politicians may not be, there is a distinction between “laws” and the “rule of law.” At the heart of most “rule of law” theories is the idea that every action of government must be justified by pre-existing laws and that there must be a way of holding government to account for acting contrary to those laws. Most rule of law theories also incorporate a defence against arbitrary government action dressed up as law by requiring that laws must, as far as possible, be generally applicable.

This doesn’t mean that the law must treat everyone identically, but it does mean that differential treatment of individuals or groups must be non-discriminatory. Australia has agreed to this proposition by becoming a party to the International Covenant on Civil and Political Rights, Article 26 of which states: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.

According to international jurisprudence, differential treatment must have an “objective and reasonable justification.” Such a justification will not exist if the aim of the difference in treatment is not legitimate, or if its effects are disproportionate to the aim. This immediately raises the question of how disputes about the legitimacy of aims or proportionality of means will be decided. To Australian citizens the answer may seem self-evident: surely such disputes should be decided through the political processes of democracy? But I’d argue that it is not at all self-evident to those who are not Australian citizens that Australians should be the sole arbiters of the legitimacy and proportionality of laws that affect not only themselves but also non-citizens who can’t participate in the decision-making. In other words, I don’t think we can claim to be governed by the rule of law unless our laws can be justified as non-discriminatory in terms that are convincing to an impartial observer.

It is very much open to question whether our treatment of one group of non-citizens, “unauthorised maritime arrivals,” can be characterised as according them equal protection of the law. Let’s first consider the aims of the differential treatment. The primary aim is to send a deterrent message to others who may seek to travel to Australia irregularly by boat. It’s now become commonplace to add that we do this not for our good but for the good of those to whom the message is being sent: we want to save them from abuse by people smugglers and from possible death at sea. We are apparently unconcerned if our actions condemn them to suffer and die, out of our sight, in other ways. But that point aside, deterrence is not accepted as a legitimate aim by international human rights law, and ought not to be accepted as one by a liberal society. Why? Because it involves treating other human beings as mere means to an end, which amounts to a repudiation of the belief in the equal worth of all humans, on which both international human rights law and liberalism are premised.

Even if we were to concede the legitimacy of the aim of deterrence, there remains the issue of proportionality. The wide powers given to Australian officials under the Maritime Powers Act are intended to enable them to turn back boats to Indonesia and, even more worryingly, to hand back those on boats to the authorities of their country of origin. Since December 2014, the Act has expressly provided that the rules of natural justice don’t apply to these powers. Combined with the provisions that protect the operation of the legislation from Australia’s international obligations, this means there may now be little the courts can do to prevent the return of asylum seekers to their country of origin following a screening process that is manifestly unfit for identifying prima facie protection claims. This has already happened to Sri Lankan and Vietnamese asylum seekers. To guard against the High Court finding any wriggle room, the Maritime Powers Act also states expressly that the powers contained in it are not limited by the Migration Act and that it, in turn, does not limit the executive power of the Commonwealth.

The Migration Act also contains detention and removal powers, though in this case, too, it expressly provides that the existence of the powers “does not prevent the exercise of any executive power of the Commonwealth to protect Australia’s borders, including, where necessary, by ejecting persons who have crossed those borders.” Under the Migration Act, unauthorised maritime arrivals who avoid turn-back or hand-back can be taken to a regional processing country (Nauru or Papua New Guinea). Conveniently, this also takes them largely outside the reach of Australian law. Those taken to Nauru and Papua New Guinea are kept in detention while any international protection claims are considered by the government of Nauru or Papua New Guinea, as the case may be. Those found to be refugees in Papua New Guinea are offered settlement there. Those found to be refugees in Nauru are offered resettlement in Cambodia. Australia’s refusal to offer protection within its own territory to those who are found to be refugees may or may not be defensible. What is indefensible is the treatment to which unauthorised maritime arrivals are subjected in detention facilities funded and effectively controlled by Australia.

In March this year, the UN Special Rapporteur on Torture found that Australia had violated the right of asylum seekers detained on Manus Island to be free of torture or cruel, inhuman or degrading treatment. Also in March this year, the Department of Immigration released a report entitled Review into Recent Allegations Relating to Conditions and Circumstances at the Regional Processing Centre in Nauru. The independent reviewer, Philip Moss, found that the detainees to whom he spoke in Nauru were “generally credible” and their searing accounts of sexual abuse and violence were “convincing.” Tony Abbott responded to the finding of the UN Special Rapporteur on Torture by saying, “I really think Australians are sick of being lectured to by the United Nations” and his immediate response to the Moss report was the observation, “Occasionally, I dare say, things happen.

Finally, we come to the several thousand unauthorised maritime arrivals in Australia who have managed to escape turn-back, hand-back and regional processing. Their fates, too, are largely governed by executive whim rather than Australian law. Among other things, they face mandatory indefinite detention in Australia unless the immigration minister decides otherwise, and they may not apply for any Australian visa unless given permission to do so by the minister. In the case of those who arrived on or after 13 August 2012 but before 1 January 2014, even if they are given permission to apply for a protection visa they are subject to the so-called fast-track review process. (The minister can extend fast-track processing to other groups of asylum seekers by regulation, though that regulation can be disallowed by either house of parliament.) For some this means no merits review at all, while for others it means the procedural and other disadvantages of merits review by the Immigration Assessment Authority rather than the Refugee Review Tribunal.

If we add in the legal disadvantages that unauthorised maritime arrivals have in common with unauthorised air arrivals, the list is longer still. Both groups are denied access to government-funded application assistance, which is supplied to other protection visa applicants. Members of either group who are found to be in need of Australia’s protection are only eligible for the grant of a class 785 Temporary Protection Visa (since December 2014) or a class 790 Safe Haven Enterprise Visa (since April 2015), whereas other protection visa applicants are eligible for the grant of a permanent protection visa.

Any impartial observer would, I think, come to the conclusion that the negative impact on unauthorised maritime arrivals of our differential treatment of them is out of all proportion to the aim of stopping the boats, even if that aim is conceded to be legitimate. Equal protection of the law it is not.

Where is all this heading? Article 16 of the International Covenant on Civil and Political Rights provides that “everyone shall have the right to recognition everywhere as a person before the law.” (While governments are permitted to derogate from most of the Covenant’s provisions in “time of public emergency which threatens the life of the nation,” Article 4 provides that derogation from Article 16 is not permissible under any circumstances.) In a depressingly long line of cases dealing with so-called “enforced disappearances” in various countries, the United Nations Human Rights Committee has said that “intentionally removing a person from the protection of the law for a prolonged period of time may constitute a refusal of recognition as a person before the law if the victim was in the hands of the State authorities when last seen and, at the same time, if the efforts of his or her relatives to obtain access to potentially effective remedies… have been systematically impeded.”

That’s an extreme situation, of course. But in General Comment 28 (on the equality of rights between men and women), the Human Rights Committee indicated that a state that denies women the capacity to own property, enter into contracts and the like, because they are women (or married women), would be preventing them “from functioning as full legal persons” for discriminatory reasons and would, therefore, be in breach of Article 16. In other words, subjecting a group of human beings to significant legal incapacity without objective and reasonable justification can amount to a breach of Article 16. Australia’s treatment of unauthorised maritime arrivals may be heading in the direction of an Article 16 breach and may already have crossed the line.

Even Nigel Farage, the leader of the unsavoury UK Independence Party, thinks Australia has gone too far. On the other hand, in a piece published last month, a British newspaper columnist wrote, “It’s time to get Australian. Australians are like British people but with balls of steel, can-do brains, tiny hearts and whacking great gunships. Their approach to migrant boats is the sort of approach we need in the Med.” In purported justification, the columnist likened those crossing the Mediterranean to cockroaches. Australians may not yet have got to the point of describing unauthorised maritime arrivals as cockroaches, but the fact that our border protection laws meet with the approval of someone who does suggests that we have already got to the point of treating them as such.