How should Australia respond to asylum seekers arriving by sea during the COVID-19 pandemic? – Madeline Gleeson

Since the introduction of Operation Sovereign Borders in 2013, Australia has pursued a determined policy of intercepting and turning back asylum seekers trying to reach Australia by sea. Whether people are turned back at sea to their country of departure, or taken into Australian custody and then handed back directly to the authorities of that country, these practices have given rise to serious concerns about their compliance with international law. In the context of the global COVID-19 pandemic, it is worth re-examining these concerns and considering the international human rights obligations that should inform Australia’s response to an asylum seeker vessel arriving during the current crisis. 

Australia’s response to asylum seekers arriving by boat during the pandemic

In 2020, the COVID-19 pandemic radically changed the governance of borders worldwide. Both at their external boundaries and internally, many States imposed unprecedented restrictions upon the entry and movement of citizens and foreign nationals. 

For most purposes, Australia’s external borders remain ‘closed’. Australian Border Force liaison officers are working with airlines at overseas airports to identify those who should not board flights to Australia, ensuring they do not reach Australian soil. There is also a ban on foreign-flagged cruise ships entering Australian waters, and non-commercial vessels such as yachts and superyachts must comply with certain restrictions

While contentious and imperfect in their application to Australian citizens and permanent residents abroad, these border restrictions are, overall, reasonable and proportionate. But how might Australia respond to the arrival of an asylum seeker vessel during this period? 

Asylum seekers travelling by sea to Australia potentially pose, and face, greater risks than other groups of travellers. They are more likely to arrive unannounced, and it may be more difficult to determine where they have been prior to arrival. In difficult conditions at sea, detection of COVID-19 symptoms may be complicated by other concurrent illnesses and exhaustion from arduous journeys. Language and cultural barriers may be harder to overcome, and infection control procedures harder to follow. At the same time, the potential risks of delaying or refusing entry could be far greater for asylum seekers at sea than for ordinary travellers, including torture, persecution, or even death. 

For the health and safety both of asylum seekers travelling by sea and the Australian officers tasked with intercepting them, Australia’s response to asylum seekers arriving by boat during the pandemic should be informed by the advice of health, maritime and border patrol experts. It should also be informed by Australia’s international human rights obligations. 

Australia’s international human rights obligations with respect to asylum seekers intercepted at sea

The three most important obligations governing Australia’s conduct with respect to asylum seekers intercepted at sea are to respect and ensure the right to life, ensure that no person is subjected to torture or cruel, inhuman or degrading treatment or punishment, and act in accordance with the principle of non-refoulement. These obligations arise under the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention) and the 1951 Convention relating to the Status of Refugees (Refugee Convention). Australia has additional obligations with respect to child asylum seekers under the Convention on the Rights of the Child, including to take appropriate measures to ensure that a child who is seeking refugee status receives appropriate protection and humanitarian assistance in the enjoyment of his or her rights. 

A complicated jurisdictional analysis is unnecessary to determine the geographic scope of these obligations in the case of a typical interception. Where Australian officers exercise effective control over people at sea and the vessel on which they are travelling, that control is sufficient to engage Australia’s human rights and non-refoulement obligations, regardless of the location of the vessel and whether or not asylum seekers are brought onto an Australian navy or customs vessel. Where the State acts, so its obligations go. 

A potentially more complicated question is: what exactly is required of Australian officers to comply with these obligations? Ensuring the rights to life and freedom from ill-treatment should be relatively straightforward. In circumstances where people in distress are rescued, vessels are unseaworthy, and there is a risk of drowning, these obligations would usually require that rescued persons be transferred to an appropriate vessel as soon as possible, provided immediate medical and humanitarian assistance, and kept there in humane conditions until the earliest opportunity that safe disembarkation can be achieved.  

There is greater dispute about what is required to satisfy Australia’s non-refoulement obligations in the context of maritime interception. These obligations prohibit States from sending or returning people to any place where they would face persecution or a real risk of irreparable harm, such as being arbitrarily deprived of their life, tortured or exposed to other cruel, inhuman or degrading treatment or punishment. Accordingly, while asylum seekers do not enjoy an explicit right to seek asylum in Australia, Australia must take certain steps to ensure that returning asylum seekers intercepted at sea to their point of departure (whether that be their country of origin or a transit country) would not amount to refoulement

As the UN Office of the High Commissioner for Refugees has affirmed (at [18]), ‘providing asylum seekers with effective access to a fair and efficient asylum procedure where their international protection needs can be properly assessed ensures that the non-refoulement principle is respected’. It is doubtful that such a fair and efficient asylum procedure can be provided at sea.

The Australian Department of Immigration and Border Protection (now the Department of Home Affairs) claimed, in response to a question from the Senate Legal and Constitutional Affairs Committee, that ‘all information provided by individuals intercepted at sea is appropriately considered, consistent with Australia’s international obligations’. However, Australian maritime interception practices are notoriously secretive and not subject to any effective legal safeguards or independent oversight. Whatever cursory interviews and screening may occur at sea, there is no evidence that it is sufficient to guarantee that return will not violate the prohibition on refoulement. Indeed, the fact that all or most asylum seekers intercepted at sea since 2014 have been deemed not to engage Australia’s protection obligations, and turned or taken back to their countries of departure, should be proof enough that any screening is grossly inadequate. The rejection of all or almost all claims is irreconcilable with historical trends, with past figures showing that ‘between 70 and 100 per cent of asylum seekers arriving by boat at different times have been found to be refugees and granted protection either in Australia or in another country’.

The better and lawful approach would be for Australia to conduct search and rescue in accordance with the relevant conventions, bring intercepted asylum seekers to places of safety on land as soon as possible, and then provide them with the full range of protections and rights to which they are entitled under international law, including access to fair and efficient asylum procedures.

The question then becomes whether the current pandemic changes this approach.

Can Australia lawfully depart from its international obligations with respect to maritime interception during the COVID-19 pandemic?

The short answer is: no. 

There are three main ways in which a State may limit or restrict the scope of its obligations – limitations, derogations and reservations. 

Limitations provide a margin of appreciation to democratic States seeking to balance competing interests or practical constraints. For example, various articles of the ICCPR provide that the exercise of certain rights may be subject to restrictions, provided those restrictions are established by law and necessary inter alia for the protection of national security, public order or public health. Other clauses are limited to ‘arbitrary’ or ‘unlawful’ interference with protected rights. However, given the absolute nature of the rights to life and freedom from torture, and the fundamental nature of the non-refoulement norm, no recourse to limitations is relevant to the application of these obligations during the pandemic. 

Derogation is the procedural mechanism by which human rights law recognises that it may be necessary to suspend certain rights and freedoms temporarily in times of crisis and public emergency. As described by Hafner-Burton, Helfer and Fariss, derogation is a ‘safety valve’ which essentially allows States ‘to “escape” temporarily from some of their treaty commitments during times of crisis’, while ‘subjecting the suspension of rights to a carefully calibrated system of limitations, safeguards, notifications, and review procedures’. 

The COVID-19 pandemic undoubtedly qualifies as a situation of exceptional crisis which may warrant derogation from certain rights and freedoms. However, it will not provide Australia with an ‘escape’ or ‘safety valve’ in relation to the key obligations owed with respect to asylum seekers arriving by boat, since they are not derogable. 

No derogation is permitted from articles 6 or 7 of the ICCPR, being the articles which protect the rights to life and freedom from torture or cruel, inhuman or degrading treatment or punishment, and which form the basis of the implied prohibition on refoulement under that Convention. The prohibition on returning a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture, in article 3 of the Torture Convention, is also ‘absolute’. While the Refugee Convention contains no general derogation clause comparable to article 4 of the ICCPR, article 9 does permit the provisional suspension of rights on an individual basis ‘in time of war or other grave and exceptional circumstances’. However, as Edwards persuasively argues (at p 34), ‘any actual or implied existing right to derogate from the [Refugee] Convention should be read as limited by principles of derogation in the wider field of international law, especially international human rights law’. She concludes, rightly, that ‘derogation under the 1951 Refugee Convention is subject to the general rules of international law, namely: … it does not apply to the most fundamental of rights, including the principle of non-refoulement’ (pp 40-41).

Finally, Australia cannot rely on reservations to escape its obligations. The Human Rights Committee has affirmed (at [8]) that States cannot make reservations that offend peremptory norms and are incompatible with the object and purpose of the ICCPR, and therefore that they cannot reserve the right to torture, to subject people to cruel, inhuman or degrading treatment or punishment, or to arbitrarily deprive people of their lives. Additionally, article 42(1) of the Refugee Convention expressly prohibits reservations to the principle of non-refoulement enshrined in article 33.

The result is that Australia cannot rely on substantive or procedural mechanisms to limit, suspend or escape its key obligations with respect to asylum seekers arriving by sea, even in the midst of a global pandemic. 

How should Australia respond to asylum seekers arriving by sea during the COVID-19 pandemic?

It is likely that Australian authorities will intercept asylum seekers trying to reach Australia by sea before the pandemic runs its course – if they haven’t already. COVID-19 does not provide any legal cover for Australia to cite the public health crisis and its otherwise ‘closed’ borders as justification for more restrictive policies that violate its obligations with respect to irreparable harm and non-refoulement. However, this does not mean that past practice should remain unchanged, since even before the pandemic there were valid concerns about the legality of Australia’s maritime interception policies under international human rights law. 

Instead, Australia should adopt the better and lawful approach set out above, albeit with due regard for the unique demands of the current crisis. Australian officers patrolling the seas and intercepting vessels should receive comprehensive training in infection control as well as personal protective equipment, and State vessels should be adequately equipped with the human and material resources necessary to test, isolate and treat all arrivals until they can be transported to land at the earliest possible opportunity. Following disembarkation, it is reasonable for asylum seekers to be subject to the same periods of quarantine and isolation as other international arrivals, provided it is in humane conditions and with appropriate access to health facilities and testing. Once these immediate humanitarian concerns have been addressed, attention can turn to what happens next, including access to a fair and efficient process for refugee status determination, a timely durable solution if found to engage Australia’s international obligations, and repatriation in safety and dignity if not. 

The COVID-19 pandemic has revealed people to be more interconnected than previously acknowledged. The virus does not differentiate on the basis of immigration status or jurisdiction. Thus, the argument that any maritime interception occurring during the pandemic should comply with Australia’s international human rights obligations is not merely a matter of law or principle. These obligations are a critical component of establishing good public health policies in advance of an interception to reduce the risks of transmission, to the benefit of passengers of any incoming vessel, the Australian officers intercepting them, and the rest of the Australian community. 

Madeline Gleeson is a lawyer and Senior Research Associate at the Andrew & Renata Kaldor Centre for International Refugee Law at UNSW Sydney, where she directs the Offshore Processing and Regional Protection projects. Madeline specialises in international human rights and refugee law, with a focus on the law of State responsibility, extraterritorial human rights obligations, offshore processing on Nauru and Manus Island, and refugee protection in the Asia-Pacific region.