By Meredith Jones
The end of World War II saw the largest population upheaval in European history. Millions of Jewish and other minorities fled Europe or were expelled. Unfortunately, this was only the beginning of the suffering. With many countries closing their borders or severely limiting entry, refugees attempted to flee by boat. Most of these vessels were intercepted and returned to Germany, with the asylum-seekers aboard placed in significant danger of persecution. It was only after the war ended and the full enormity of the atrocities were revealed that the international community vowed to ensure this never happened again, enshrining the principle of non-refoulement in the Refugee Convention.
Social media forums are flooded with articles and photos documenting the horrors and tragedies associated with the biggest migration of people since World War II. The Security Council has declared the flow of people across Europe to be nothing short of a crisis.
Australia is a signatory to the Refugee Convention, and as a result owes an obligation to process any claims for protection made within her borders, and a duty of protection to anyone found to be a refugee. Australia has also accepted an obligation to offer humanitarian assistance to those who might not fall within the confines of the Refugee Convention, but who cannot be returned to their country of origin because of the risk of harm. For many years after WWII, Australia was a world-leader with its programmes and policies dealing with asylum seekers. However, in recent years Australia has become renowned for increasingly harsh policies regarding asylum-seekers and refugees. Of specific concern is the new policy of intercepting and turning back boats carrying would-be asylum seekers.
Under international law Australia is only authorised to prevent the arrival of a vessel within Australian waters if it would breach Australian immigration and customs laws. The removal of a vessel that has already arrived in Australian waters goes beyond preventing passage and therefore violates the Convention on the Law of the Sea and the Refugee Convention.
In addition, where removal of a vessel from Australian waters, or prevention of entry into Australian waters would leave a vessel and its passengers with no option but to return to the country of origin, or to a third country, Australia risks violating a central tenet of international law – that of non-refoulement. Without properly investigating the claims of those onboard, there is a danger that the asylum seekers on board will be forced to return to a place where they will be persecuted.
In December 2014, the Maritime Powers Act 2013 was amended to provide that a failure to consider Australia’s international obligations would not invalidate an exercise of the powers under the MPA. This amendment thus allows Australian officials to breach the obligations Australia accepted when it ratified the Refugee Convention, to act in good faith in a true spirit of international cooperation regarding refugees and asylum-seekers.
Current Australian legislation disregards international principles and has created an environment where history appears to be repeating itself. The actions of Britain and other countries in turning away desperate people during World War II led to the deaths of countless refugees. Australia’s policies of pushing back boats risk repeating this history. All asylum-seekers are entitled to have their claims for protection processed according to proper legal convention. Anything less is a breach of international law and a refutation of Australia’s commitments. Australia should allow for all asylum-seekers to have their claims heard properly, without discrimination on their mode of arrival.
Meredith Jones is a Bachelor of Laws student at La Trobe University.