UN Committee Condemns Australia’s Punitive Asylum Policy

by | Aug 17, 2017

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About Emilie McDonnell

Emilie McDonnell is a DPhil in Law candidate at Hertford College and the 2016 Tasmanian Rhodes Scholar. Her research focuses on protecting the right to leave and related human rights of asylum seekers, refugees and other migrants during externalised migration control, specifically when it is conducted extraterritorially and has been outsourced to states of origin and transit, private actors, and international organisations. She holds a Hertford College Senior Scholarship in support of her studies. Prior to the DPhil, she completed the BCL with Distinction and MPhil in Law at Oxford University. She holds a Bachelor of Arts (Criminology) and a Bachelor of Laws with First Class Honours in Law from the University of Tasmania. Emilie has also completed her Graduate Diploma of Legal Practice and has been admitted to the Tasmanian Supreme Court as an Australian lawyer. In 2013, she co-founded and was a Director until 2016 of Tasmania’s first community legal centre for refugees, asylum seekers and humanitarian entrants, the Tasmanian Refugee Legal Service. Emilie is an Adjunct Researcher at the University of Tasmania School of Law, Research Affiliate at the Refugee Law Initiative, and Member of the Asia-Pacific research group and Emerging Scholars Network at the Andrew & Renata Kaldor Centre for International Refugee Law, UNSW Sydney. She is the Graduate Teaching Assistant for Human Rights Law at the Oxford Law Faculty and has lectured and tutored for Human Rights Law (FHS). She has held various other teaching roles at the Oxford Law Faculty, on summer schools, the Stanford University Program in Oxford and the University of Tasmania. Emilie has been a regular contributor to the Oxford Human Rights Hub blog and researcher for Oxford Pro Bono Publico.

Citations


Emilie McDonnell, “UN Committee Condemns Australia’s Punitive Asylum Policy”  (OxHRH Blog, 17 August 2017) <https://ohrh.law.ox.ac.uk/un-committee-condemns-australias-punitive-asylum-policy> [Date of Access]

On 23 June 2017, the UN Committee on Economic, Social and Cultural Rights adopted its concluding observations on the fifth periodic report of Australia on its implementation of the International Covenant on Economic, Social and Cultural Rights. The Committee reported on the Australian Government’s performance in respecting, protecting and fulfilling the economic, social and cultural rights of Australians, including the right to food, education, health, housing, work and an adequate standard of living.

The report drew particular attention to Australia’s treatment of asylum seekers and refugees. The Committee expressed grave concerns regarding the “punitive approach” taken towards asylum seekers arriving by boat without a valid visa. Specifically, the Committee criticised the Government’s policy of transferring asylum seekers to offshore processing centres despite the harsh conditions within the centres, including for children. These conditions include acute isolation; overcrowding; limited access to basic services such as healthcare and education; allegations of sexual abuse by staff of service providers; acts of intimidation, taunting and provocation against asylum seekers; and reports of high rates of suicide and self-harm among asylum seekers.

A number of reports support the Committee’s conclusions. For example, a report from Wilson Security, a Manus Island service provider, recorded 16 self-harm and suicide attempts in one week. In August 2016, more than 2000 incident files were leaked from the Nauru detention centre, revealing the large-scale abuse of children inside the centre, showing evidence of sexual assault, assault, self-harm, suicide attempts, squalor, and lack of adequate healthcare.

The Committee reiterated that Australia is responsible for such treatment of asylum seekers in the regional processing centres on Nauru and Manus Island, given it exercises effective control of the detainees, funds the centres and hires private service providers. Notably, the Committee called on the Australian Government to halt its policy of offshore processing and bring all detainees to Australia for processing of their asylum claims. This processing is to be done with all procedural safeguards in place, such as the right to legal advice and representation, the right to an interpreter, and ensuring that the fundamental principle of non-refoulement is upheld, while respecting asylum seekers’ right to family reunification.

Article 10 of the International Covenant on Economic, Social and Cultural Rights recognises the family as the fundamental unit of society, and states that the widest possible protection and assistance should be accorded to the family by State parties. This protection extends to asylum seekers and refugees as recognised at the 1951 United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons. Furthermore, the UNHCR emphasises the need for States to facilitate the reunification of families separated due to conflict or persecution. As the UNHCR acknowledges, reunification forms a fundamental aspect of bringing normalcy back into the lives of persons who have fled persecution or serious harm and have lost family along the way.

The right to respect for family unity received particular attention in the Committee’s report. This is because Australian law and policy provides that asylum seekers arriving by boat, and granted temporary protection visas, are banned from family reunification. Asylum seekers when granted permanent protection visas continue to face restrictions to family reunification.

The Committee drew on the severe and negative impacts of family separation when it urged the Australian Government to both prioritise family reunification for all asylum seekers granted protection, to prevent families to remaining separated following different migration pathways, and abolish restrictive laws and policies that hamper family reunification.

The UN Committee has delivered a strong condemnation of both Australia’s asylum policy and offshore detention regime. Australia has 18 months from the adoption of the report to provide information on how it has implemented the Committee’s recommendations. The Australian Government has shown a continued unwillingness to bring its asylum policies in line with international law and has failed to previously take heed of UN condemnation. It is to be hoped that Australia will take this report as a turning point, but it is, perhaps, not to be expected.

 

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