Executive summary
Background to the project The aim of this paper is to start a conversation about how we can answer the question: What is a rights-based alternative to the current model of third country processing in Nauru and Papua New Guinea?
The Commission has endeavoured to identify options for responding to flight by sea which are consistent with Australia’s international human rights obligations.
In publishing this paper, the Commission is seeking to make a positive contribution to this difficult policy area. We have sought to provide the framework for an alternative policy response, rather than an exhaustive overview of all relevant measures or a detailed plan for implementation. The policy options set out in this paper are offered so that they can be debated, refined and, if they are deemed fit for purpose, implemented.
The Commission also acknowledges that the options put forward in this report could benefit from further policy development and economic analysis prior to implementation. Careful analysis will need to be undertaken of the likely flow-on effects of expanding the opportunities for safe entry in Australia and altering some of the Government’s foreign policy strategies in the ways that are set out in this paper. Further research, consultation and planning would also be required to tailor these measures to conditions in different countries, and to the needs of particular groups.
This paper sets out some alternative policy approaches that aim to protect human rights while also achieving the overall policy objective of preventing dangerous journeys by sea. The Commission is confident that the options proposed in this paper are compliant with Australia’s international human rights law obligations.
This paper does not specifically address the human rights issues arising from other policy measures aimed at deterring flight by sea, such as boat turnbacks and Temporary Protection Visas. However, the Commission considers that the rights-based options proposed in this paper could also be considered as alternatives to these policies.
This paper also does not address the situation of the approximately 30,000 people seeking asylum who are currently in Australia awaiting processing of their claims. The human rights implications of policies affecting these asylum seekers have been considered in other Commission publications.4 Methodology In March 2016, the Commission conducted a series of consultations to discuss alternative policy responses to flight by sea.
Consultation participants were selected on the basis of their expertise in the areas of refugee policy, human rights, international law and protection issues in the Asia–Pacific region. The feedback gathered through the consultations was supplemented through desktop research undertaken between February and June 2016.
In conducting this research and analysis, the Commission adopted a human rights-based approach to policy development.
A human rights-based approach sees strengthening the enjoyment of human rights as both a means and an end. Policies and programs which are based on this approach should further the realisation of human rights, and their planning and implementation should be guided by international human rights standards.5 Summary of findings The key driver of flight by sea towards Australia is the lack of effective protection for refugees and people seeking asylum in the Asia–Pacific region. As such, improving access to effective protection represents the most effective and sustainable means of preventing flight by sea. This is something that can only be achieved through cooperation and partnership with our regional neighbours.
Two core principles emerged from the research and consultation process which have guided the Commission in identifying alternative options:
The top priority of an alternative response should be enhancing protection for people fleeing persecution, in accordance with our international human rights obligations.
The focus of Australia’s policy response should shift from deterrence to prevention. Rather than seeking simply to discourage asylum seekers from embarking on dangerous journeys, an alternative response should aim to address the human rights violations which compel people to undertake these journeys in the first place.
While Australia is well-placed to support efforts to improve access to protection, there are two key obstacles which currently hamper these efforts:
There are few effective mechanisms for cooperation on refugee protection issues amongst states in the Asia– Pacific region, which hampers the region’s capacity to respond effectively to the needs of forcibly displaced people (including by ensuring appropriate settlement options across the region)
There are limited opportunities for safe entry for people wishing to seek protection in Australia.
Based on the information and evidence gathered through the research and consultation process, the Commission has identified two thematic areas (each encompassing a number of specific options) which are designed to overcome these obstacles and which together comprise an alternative, human rights-based policy response to flight by sea:Expand opportunities for safe entry to Australia • Enhance foreign policy strategies on migration in the Asia–Pacific region.
The options put forward in this paper aim directly to address the key driver of flight by sea through creating and enhancing pathways to protection. They seek to achieve this by facilitating access to safe migration options, improving protection for refugees and people seeking asylum who are living in the region, and building towards more effective regional responses to refugee protection issues.
They respond to the human rights violations experienced by refugees and people seeking asylum during flight and in the context of displacement. They are also consistent with the Refugee Convention in that they avoid imposing penalties on the basis of a person’s mode of arrival or lack of documentation.
An overview of the various options identified by the Commission is contained in the table commencing on the next page.