Ashley Hammett

Peabody Energy Corporate Fellow
School of Law: Law, JD

Scholar Highlight

“Stopping the Boats” or just “Cruel, Inhuman and Degrading Treatment”? Australia and the Global Refugee Crisis

The global refugee crisis reached a critical point in 2014, as the number of those forcibly displaced from their homes by persecution and violence surpassed 50 million for the first time since the atrocities of World War II. Many of these refugees are children, often unaccompanied. As whole communities fled torture, rape, and tyranny, the Australian Government had one priority: “stopping the boats” from reaching our shores. This oft-repeated mantra encapsulates the Government’s pledge to halt the flow of undocumented asylum seekers, who attempt the perilous journey to Australia by boat with the assistance of migrant smugglers.

The requirement that all “irregular arrivals by boat” be held in Australian-operated detention centers on Manus Island and Nauru has long been condemned.

The United Nations High Commissioner for Refugees (UNHCR) has repeatedly denounced Australia’s policy of indefinite offshore detention, especially of children, in facilities that fail to provide “humane conditions of treatment.” In November 2014, Australia also drew fire from the U.N. Committee Against Torture, (CAT), the body charged with assessing States’ compliance with the Convention Against Torture. Article 16 of the Torture Convention imposes upon States the obligation to prevent “in any territory under its jurisdiction … acts of cruel, inhuman or degrading treatment” committed by any public official.

Noting that Australia had “effective control” over the detention centers, the CAT criticized Australia’s policy of mandatory detention in such harsh conditions as running “counter to [the CAT’s] interpretation of the convention,” and directed Australia to ensure operations did not violate these obligations.

In fact, as the Human Rights Law Centre noted in 2014, conditions in Australia’s offshore detention centers became increasingly severe; amid allegations of sexual and violent assault against women and children, there were the tragic deaths of Iranian asylum seekers, Reza Berati and Hamid Kehazaei. In February 2014, protests erupted after a group of detainees was severely beaten by members of the local police force and onsite staff after trying to escape. Reports state that Berati tripped while trying to flee, and was then descended on by a group of employees who kicked and used a rock against his skull. Serious head injuries led to Berati’s death shortly thereafter, for which two guards were charged with murder. Kehazaei died of untreated septicemia in September 2014, after official approval for his removal off the island for medical treatment was denied then delayed until it was too late.

Troublingly, Australian authorities also began assessing refugee claims at the point of interception on the high seas. Where claims were disbelieved, boats were forcibly turned around to return to the asylum seekers’ state of origin. Article 3 of the Torture Convention renders it unlawful to “expel [or] return… any person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” In the CAT’s 2014 report, the committee observed that Australia had not shown it was complying with this responsibility and had particular concern vis-à-vis “the policy of intercepting and turning back boats, without due consideration of [this] obligation.” Committee members questioned how Australia could have sufficient information to ascertain whether an asylum seeker had been a victim of torture, or would be on her forced return, during this process undertaken on the high seas. The Committee also questioned whether these asylum seekers had access to legal advice, in a language they could understand, and sufficient time to prepare their refugee claims while at sea. In late November 2014, 37 Sri Lankan nationals, including 6 children, were intercepted trying to reach Australian waters. After being sent back to Sri Lankan territory, they were charged with leaving the country illegally and have been imprisoned.

The Migration Amendment Bill proposed to Federal Parliament in 2014 shows an even greater shift away from compliance with international law. The legislative changes mandate that the “duty to remove” an unlawful arrival must be exercised “as soon as reasonably practicable … irrespective of whether there has been an assessment, according to law” of compliance with Australia’s obligations under the Torture Convention. The Bill also significantly raises the threshold of risk necessary to invoke Australia’s protection obligations under the Convention, which as the House of Representatives Committee notes, will be “invoked only where there is a greater than 50 percent chance that a person would be subject to death or torture.”

As the scale and severity of conflicts worsens in countries such as Syria, and the consequences of climate change wreak havoc on regions already dealing with food and water scarcity, “safe” receiving countries such as Australia will face increasing demands for assistance. This complex challenge calls for increased cooperation among countries and with international organizations, to ensure those seeking asylum are neither returned to the very torture and persecution they are fleeing nor detained indefinitely in facilities where their lives and safety are at risk.