On July 19, 2013, the Australian government introduced a reformed immigration policy designed to discourage refugees from attempting the dangerous sea voyage from Indonesia to Australia. Indonesia is a common transit point for refugees from Asia and the Middle East who hope to settle in Australia. Under the new policy, only refugees who arrive by boat will be barred from obtaining a visa and settling in Australia. Under the new law, refugees will be sent to Papua New Guinea (PNG) or Nauru for detention and processing while they await possible settlement in those countries. Boats that are intercepted or rescued on route to Australia will be towed back to their origin, which generally means they will travel back through international waters to Indonesia. The Australian Human Rights Commission criticized these legislative changes as threatening the safeguards of the UN Convention and Protocol Relating to the Status of Refugees (Refugee Convention) and risking arbitrary detention. The Australia-based Human Rights Law Centre warned that the changes set an “alarming global precedent.”

The Refugee Convention defines a refugee as any person who is outside the country of his nationality and fears to return to it because of a well-founded fear of being persecuted for his or her race, religion, nationality, or membership of a particular social or political group. Refugees generally apply for asylum once they reach a country in which they can settle. In the last fiscal year, 25,541 people arrived illegally in Australia by boat. The majority of refugees who enter Australia by boat are eighteen- to thirty-year-old men, more than half from Afghanistan or Iran. Using Indonesia as a transit point, refugees pay smugglers to ferry them into Australian territory.  The boats are often rickety fishing boats, and nearly 1,500 refugees have drowned in the passage since late 2001. Since 2007, Australia has implemented reforms to its asylum and refugee policies, but the new policy is the most restrictive approach thus far, with Prime Minister Kevin Rudd promising, “no one who arrives by boat without a visa will ever be granted permission to settle in Australia.”

As a signatory to the Refugee Convention, Australia is obliged to adhere to Article 7(1), which provides that states shall accord refugees the same treatment other aliens, and Article 31(1), which requires that “[s]tates shall not impose penalties on account of their illegal entry or presence.” The Refugee Convention recognizes that refugees often violate immigration laws when fleeing dangerous situations, and thus, offers them protection from criminalization or discrimination for their status as refugees or their mode of arrival into a third country. Although the new Australian policy does not directly criminalize refugees arriving by boat, it punishes them for violating immigration laws to seek safety in Australia. The no advantage principle bars asylum seekers who arrive illegally by boat from ever applying for asylum or settling in Australia, and the policy employs potentially punitive measures by forcibly transferring refugees who arrive by boat to PNG or Nauru for regional processing. Even if they would otherwise qualify for refugee protection under Australian law or the UN Refugee Convention, the no advantage principle ensures that they never settle in Australia.

Transferring refugees to a third country could put refugees at risk of arbitrary detention in Australian-run detention centers in PNG. The new policy provides for “discretionary immigration detention” without specific limits on the duration of detention. The United Nations High Commissioner for Refugees (UNHCR) has stated that the legal framework in PNG suffers significant challenges, including a lack of capacity and expertise in processing, and poor physical conditions in detention facilities. For example, the Australian Special Broadcasting Service reported incidents of rape and torture among inmates at the PNG Manus Island processing center, and guards at the center have said that self-harm and attempted suicide occur on an almost daily basis.

Australia’s new policy punishes refugees who violate its immigration laws to enter the country, and risks violating international human rights standards against arbitrary and indefinite detentions. As a Party to the Refugee Convention, Australia has an obligation to protect refugees and should recognize that refugees are vulnerable and often violate immigration laws when fleeing dangerous situations. By statutorily preventing asylum seekers arriving by boat from seeking protection, it risks failing to respect and uphold the human rights of refugees.