Boat refugees, international law and Australia's commitment : an analysis

Abstract

Australia is a signatory State to the 1951 Refugee Convention and 1967 Protocol - which represents a positive approach to the international commitment on refugee protection. In the past, Australia showed its welcome policy to the Vietnamese boat people. It also developed its domestic law (Migration Act 1958 (Cht)) to ensure fair migration procedure. However, since 2001, Australia has demonstrated a restrictive view toward boat refugees. By adopting Operation Relex, Operation Sovereign Borders, the Pacific Solution and the Maritime Act 2013, Australia has empowered its enforcement agencies to tow refugee boats from its territorial zone back to the country of origin. Australia has identified the gaps in international refugee law and operates within those gaps. Australia sends undocumented boat people to a ‘safe country’ and concludes bilateral agreements to achieve this. Australia has also shifted its international commitment on refugees to other States through the Regional Cooperation Framework and the refugee resettlement program. Australia continues its negative attitude toward boat refugees by sending them to offshore detention centres in the name of a durable solution for the refugee problem. The Tampa affair reflects Australia’s harsh policy on boat refugees. Although on several occasions Australian boat refugee policy has been challenged in the Australian courts, unfortunately on every occasion the court supported the government policy and interpreted the refugee law from a narrow point of view (with the exception of the Malaysia Solution case). Therefore, under present law and policy, protection of boat refugees is a challenging issue in Australia where international obligations are overshadowed by domestic law and policy, and this jeopardizes the international commitment and influences other States to take similar ‘strict’ measures toward the boat refugees. As a result, the refugee protection regime is pushed back up against the cliff.