On the 14th of May, the Australian government passed a devastating bill that overstepped their international obligations and cemented indefinite detention into federal law. This bill will affect the lives of one of the world’s most vulnerable populations. The Liberal government presented the Migration Amendment bill just before parliament closed for the day, and it received overwhelming bipartisan support[1]. There were no consultations, no referral to a parliamentary inquiry, and no acknowledgment of concerns raised by the Joint Parliamentary Committee on Human Rights[2]. It is now legal within Australia to allow refugees and asylum seekers to be detained indefinitely, with no limit on an incarceration period. It also grants the Minister for Immigration the unchallengeable power to disregard a person’s approved refugee status and participate in refoulement[3].
As a signatory to the 1951 Convention of Human Rights, Australia is required to follow the directions of the UNHCR, the leading body on refugee rights. Refugee rights fall under the Universal Declaration of Human Rights: countries are responsible for creating conditions that allow everyone to enjoy their civil, political, economic, social, and cultural rights, regardless of inherent factors of background or belief. However, this Migration Amendment Bill will undermine the international human rights obligations in Australia, including; the right to liberty, the right to security, and the rights of the child.
Article 9 of the International Covenant on Economic, Social and Cultural Rights demands that “everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.[4]” However, in Australia, the average time a person spends in immigration detention has increased from less than four months in 2013 to more than two years in 2020[5]. A significant proportion of refugees have now been held in detention for six years or more. These long detention periods exist because, under Australia’s domestic law, there are no constraints on the length of time authorities can detain someone. Though the International Covenant allows for domestic law to be established, it has to act as an essential accompaniment to international law. These two systems cannot be contrary[6]. Therefore domestic legislation in Australia cannot detain someone arbitrarily because it violates the agreement they have signed.
In Australia, prolonged detention is arbitrary. In 2018, in the town of Biloela, the Murugappan family received an unwelcome surprise. Their visa application had expired only the day before. Quickly to act, the Australian government arranged to deport the family back to Sri Lanka, the country of origin for both parents. In response, the community rallied to demand the family return to Biloela and safety.
Priya and Nades Murugappan had arrived separately from Sri Lanka in 2012 and 2013[7]. Both were seeking protection visas after facing persecution from the Sri Lankan government. In Sri Lanka, there is a long, often unrecognized history of systemic violence against the Tamil ethnic group, of which Priya and Nades both are. Because of Australia’s slow-moving protection procedure, Priya and Nades managed to gain temporary visas, find work, and have two Australian-borne children before the government decided to deny them protection five years later[8]. The Australian nationality of their two young children is the most significant factor in their enduring court process. In February of this year, the federal court upheld a ruling that determined the youngest-born, Tharunicaa, was denied procedural fairness when the Minister for Immigration processed her visa[9]. Unfortunately, there is also no legal obligation for the Minister of Immigration to issue or allow Tharunicaa a protection visa at all. These bureaucratic discrepancies have meant the Murugappan family has lived offshore at the Christmas Island detention center for over three years. Article 37 of the International Covenant alleges that the detention of a child “should be treated as a measure of last resort and for the shortest period”[10]. Australia has disregarded its international obligations in favor of enacting a slow and suffering detention. This family of four offers Australia no threat, except to incidentally expose the cruel tendencies of a government that would snatch valuable years away from two children.
These protracted situations are not the only barriers facing people who seek asylum within Australia. In the last two months, the Australian government has introduced a series of oppressive policy changes towards refugees and asylum seekers.
These include;
1. A 380% increase in fees for the Federal Court Circuit System that uniquely targets refugees and asylum seekers, and;
2. Extended four years waiting period before migrants can access welfare from the government.
Refugees and asylum seekers who are waiting for processing have severely restricted working rights. Therefore, this increase is excessive and unaffordable. The expensive increase in rate has segregated humanitarian migrants from other groups whose legal fees have not changed and ultimately suppresses them from the human right to representation.
These recent and punitive measures directly violate Australia’s obligation to adhere to the right to self-determination. The International Covenant defines the right to self-determination to exist when there are “policies and techniques to achieve steady economic, social and cultural development”. As a signatory, the Australian government should safeguard fundamental freedoms and allow individuals political and economic liberty. Yet, preventing refugees and asylum seekers from accessing judicial representation or financial safety nets means political and economic liberties are eroded. Suppose someone manages to escape the indefinite sentence of detention in Australia. In that case, they then face unjustly expensive legal fees and a lack of economic and social support. Freedom should not be a hard-won right; it should be inherent and unbounded.
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