Welcome to the third blog post in a series on the theme of legal personhood. Each fortnight we will ask a La Trobe Law School academic to write about how the concept of legal personhood intersects with their research interests. Today’s post is written by Associate Professor Savitri Taylor, who researches, tweets and writes about refugee law and asylum policy.
Until I was asked to write on Legal Personhood and the Refugee for the La Trobe Law School Blog, I had not given the issue a moment’s thought. Any entity which is capable of having legal rights and obligations under a particular legal system is a legal person for the purposes of that legal system. Under contemporary public international law and every contemporary domestic legal system of which I am aware, human beings are formally acknowledged as being legal persons, at least from the moment of birth to the moment of death. This is the case regardless of any other status a given human being may also have under the legal system in question. That said, when I did give the issue a moment’s thought, I realized that there is more to the issue than that.
For a start, we do not need to go too far back in history for an example of a group of human beings being denied recognition as legal persons by reason of their status. That example – the legal treatment of Jews in Nazi Germany (Joseph and Castan, 2013: 336) – is possibly the reason why the International Covenant on Civil and Political Rights (ICCPR), to which Australia and 167 other states are parties, provides that “Everyone shall have the right to recognition everywhere as a person before the law” (art. 16). While states are permitted to derogate from many of the ICCPR’s provisions in “time of public emergency which threatens the life of the nation”, derogation from article 16 is not permissible under any circumstances (art. 4). As everyone knows, though, states do not always behave as they are obliged to behave under international law. In a depressingly long line of cases dealing with so-called “enforced disappearances” in various countries (e.g. Human Rights Committee, 2014), the United Nations Human Rights Committee has said that
intentionally removing a person from the protection of the law for a prolonged period of time may constitute a refusal of recognition as a person before the law if the victim was in the hands of the State authorities when last seen and, at the same time, if the efforts of his or her relatives to obtain access to potentially effective remedies … have been systematically impeded.
The situations described above are extreme. However, in General Comment 28 (on the equality of rights between men and women), the Human Rights Committee indicated that a state which denies women the capacity to own property, enter into contracts, and the like, because they are women (or married women), would be preventing them “from functioning as full legal persons” for discriminatory reasons and would, therefore, be in breach of article 16. The implication of the General Comment is that, falling short of complete legal non-recognition, subjecting a group of human beings to significant legal incapacity without objective and reasonable justification can amount to a breach of article 16.
As a party to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees, Australia is bound to afford certain rights to “refugees”, as there defined. However, these rights are additional to the human rights of refugees (Refugee Convention, art. 5), including, of course, the right to recognition as a person before the law.
I do not think that Australia’s present treatment of refugees in general amounts to a breach of ICCPR art. 16. However, I do think that Australia’s treatment of one particular category of non-citizens, which historically has included a very high proportion of refugees, is heading in that direction and may even have crossed the line. The label given by the Migration Act 1958 (Cth) to the group I have in mind is “unauthorised maritime arrivals” (s 5AA). Shortly after the Coalition took office federally, it issued a directive that all government officials and contractors should use the term “illegal maritime arrivals” instead. Why is this significant? Well, calling people “illegal” is a rhetorical denial of their legal personhood calculated to foster public support for more tangible deprivation.
The results of the Australian National University’s poll entitled Australian Attitudes towards National Identity were released last month. A large majority of the 1200 people polled in the period 2 to 15 March 2015 had positive attitudes towards immigrants in general. However, 65 per cent agreed (or strongly agreed) with the proposition that “Australia should take stronger measures to exclude illegal immigrants”. This was despite the fact that, at the time the poll was conducted, the draconian measures outlined below, and others besides, were already in place, and yet more were pending.
Under the Maritime Powers Act 2013 (Cth) Australian officials have a range of powers, which can be exercised for the purpose (among others) of investigating and preventing contravention of Australian law, which includes, of course, migration law. They include wide powers to detain and search vessels and the people onboard and to take them to a place within or outside Australia i.e. anywhere (Part 3). Since December 2014, the rules of natural justice have not applied (ss 22B and 75B) and inconsistency with Australia’s international legal obligations cannot result in invalidation (ss 22A and 75A). The clear intent is to render action taken under the Act as judge proof as possible. There may now be little the courts can do to prevent the turn back of boats to Indonesia (as has happened on several occasions) or even the hand back of those on boats to the authorities of their country of origin after a screening process which is manifestly unfit for the stated purpose of identifying prima facie protection claims (as has happened to Sri Lankan and Vietnamese asylum seekers).
The powers in the Maritime Powers Act are additional to, and unaffected by, the Migration Act, which also contains detention and removal powers. Under the Migration Act (Part 2 Div 8 Subdiv B), unauthorized maritime arrivals, who escape turn back or hand back, can be taken to a regional processing country (i.e. Nauru and PNG). Conveniently, this also takes them largely outside the reach of Australian law. Those taken to Nauru and PNG are kept in detention facilities funded and effectively controlled by Australia, while any international protection claims are considered by the government of Nauru or PNG as the case may be. Those found to be refugees in PNG are offered settlement in that country. Those found to be refugees in Nauru are offered resettlement in Cambodia.
As for unauthorized maritime arrivals who avoid turn back, hand back and regional processing, their fates too are largely governed by administrative whim rather than Australian law. They face mandatory indefinite detention in Australia (Migration Act, s 189), unless the Minister for Immigration decides otherwise; may not apply for any Australian visa, unless given permission to do so by the Minister (Migration Act, s 46A); and can be removed from Australia “irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non‑citizen” (Migration Act, ss 197C and 198).
On 20 March 2015, shortly after the ANU poll mentioned above had been conducted, the Department of Immigration released a report entitled Review into recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru. The independent reviewer, Philip Moss, found that the detainees to whom he spoke in Nauru were “generally credible” and their searing accounts of sexual abuse and violence were “convincing”. When Tony Abbott, who had previously dismissed the findings of the Moss report with the observation “occasionally, I dare say, things happen”, was asked how the government would respond to the report, he answered that the most important thing was that his government had stopped the boats. He then added “only this Government can keep them stopped because any other government, I suspect, would quickly succumb to the cries of the human rights lawyers”. I can only hope so.
Even Nigel Farage, the leader of the unsavory UK Independence Party, thinks Australia has gone too far. On the other hand, in a piece published last month, a British newspaper columnist said “It’s time to get Australian. Australians are like British people but with balls of steel, can-do brains, tiny hearts and whacking great gunships. Their approach to migrant boats is the sort of approach we need in the Med” (Hopkins, 2015). In purported justification, the columnist likened those crossing the Mediterranean to cockroaches and viruses. As the United Nations High Commissioner for Human Rights observed in response, the use of similar dehumanizing language was a precursor to the holocaust. Australians may not yet have got to the point of describing refugees as cockroaches, but the fact that our border protection laws meet with the approval of someone who does, suggests that we have already got to the point of treating them as such.
Human Rights Committee, Communication No. 2051/2011, UN. Doc. CCPR/C/112/D/2051/2011 (2014)
Joseph, Sarah and Castan, Melissa, The International Covenant on Civil and Political Rights: Cases Materials and Commentary (3rd edition; Oxford University Press, 2013)
Savitri Taylor, ‘Legal Personhood #3: The Refugee’, Law and Justice, 5 May 2015 (La Trobe Law School Blog, http://law.blogs.latrobe.edu.au/)