PNG Solution at Odds with International Law

A quick glance at the much put-upon Refugee Convention suggests that Government claims that the PNG solution complies with international law may be a rather optimistic assessment says Justin Glyn, a Jesuit scholastic studying theology and philosophy in Melbourne.

This article was first published by Eureka Street. http://www.eurekastreet.com.au

Attorney-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.

About the author:Justin 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.