by [1] Christopher Lamb

Legal Adviser, Department of Foreign Affairs and Trade, Canberra  

The introduction to the Conference program sets a tone for this Conference which deserves to be challenged.  It states that “A new conservatism in the approach of both politicians and courts to Australia’s international obligations stands in marked contrast to the spirit of generosity and respect for human rights that informed the debate leading to the adoption of the Vienna Convention on Refugees in 1947 (sic)”.  

This passage, and some other comments in current debate in Australia, start from the presumption that the protection principles in the 1951 Geneva Convention have in some way been devalued by the way their application has evolved in Australia.  

Much has been written about the history of the Convention, and I will not cover that ground again.  I will, however observe that the conditions which saw the United Nations General Assembly adopt the Convention in 1951, and which saw it enter into force in 1954, have changed markedly.  The Cold War is over - an important factor, given the way the definitions and principles were drafted to ensure the ability of persons to flee Soviet persecution and obtain resettlement in the West.   

It might be more relevant to the current debate to look at two quite different sets of circumstances which have changed the world since 1951.   

The first is the arrival of relatively cheap and easily accessible mass transport across long distances.  Refugee movements in 1951 were largely movements across land boundaries to sanctuaries only a short distance from the source of the persecution.  Nowadays it is possible for people to move in fairly substantial numbers many thousands of kilometres in a short time.  

The other factor which deserves consideration is the difficulty which many countries have faced in reconciling their independent status with boundaries set (sometimes indiscriminately) by colonial powers.  In 1951 most of what is now the developing world was attached to metropolitan powers in Europe or North America.  The countries which have emerged since do not all sit comfortably within natural boundaries enclosing homogenous populations.  

It is also worth noting that the Convention was adopted at more or less the same time as the Universal Declaration of Human Rights.  Nevertheless, it is clear that there was a deliberate effort to ensure that the rights and freedoms set forth in the Declaration were not part and parcel of the criteria which are used to determine whether an individual is entitled to refugee status.  Refugee status is not, despite the program brochure for this Conference, an outcome of straightforward disrespect for human rights.  Refugee status is only provided by the Convention to persons who fit very clear criteria, described with precision in Article 1(A)(2).  

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Much of the current discussion about the way governments are or are not supposedly abdicating from their convention responsibilities is generated by public responses to factors aligned to the two I have noted above.  For Australia, the arrival onshore of asylum applicants in largish numbers is a relatively new phenomenon.  Until fairly recently, there was little need for a sophisticated processing system to deal with onshore arrivals, and Australia was able to cope with applications through a determination process which remitted recommendations to the Minister for Immigration and delegates appointed with the authority to make decisions on individual cases.  

It will have come as no surprise to participants at this Conference that this system eventually found itself unable to handle the numbers before it.  In addition, the system sat uneasily alongside an Australia which had developed extensive jurisprudence on administrative law and the freedom of information.  I would not wish to imply that any outcomes achieved before the institution of modern procedures were in some way defective, but it remains true that by the late 1980s there was a widespread acceptance in Australia, as in a growing number of other countries, of the need for refugee determination procedures to be compatible with the general principles of natural justice which apply elsewhere in the government decision-making process.  

The principal result of all this has been that since late 1993 decisions on applications for refugee status are taken in and by bodies which are open to public scrutiny.  This is true of primary decisions as well as those which go to the Refugee Review Tribunal, for any decision taken for review to the RRT carries with it all documentation relevant to the decision.  All that material is available to the applicant (and eventually, it must be assumed, to others in contact with the applicant).  

This means that the creation of the RRT in 1993 placed the final decision (other than in cases appealed from the RRT on questions of law) in the hands of an independent review body.  This means that the government has separated itself from the decision-making process to a point which makes it difficult to be clear what critics mean when they use this aspect of the process as a basis for the criticism which underpins this Conference.  

It is also possible for persons dissatisfied with outcomes in the RRT to appeal to the Federal Court.  The review process as a whole has led to the development of a range of jurisprudence which was not available to scholars, practitioners and applicants under the previous system.  This in turn facilitates public debate about the way the Convention has evolved in Australia and elsewhere (for a number of other countries have openly accessible review systems).  

Among the reasons why the processes introduced in Australia excite interest from scholars and practitioners is a difficulty they both have in comprehending the way the system works.  Primary decisions are taken by an officer of the Department of Immigration and Multicultural Affairs, invariably after an interview and the examination of any documents or other papers which might be relevant to the case in question.  It is not an adversarial process, and indeed applicants are encouraged to put forward any information which might assist the decision-maker.  

Similarly, the Refugee Review Tribunal is a non-adversarial process.  It is not an appellate body as they are commonly understood: it involves a de novo hearing of the case, and there is no presentation by the Government to the Tribunal on individual cases.  The Tribunal can, and often does, of its own volition request information from Government (including the Department of Foreign Affairs and Trade and Australian missions overseas), but the information supplied is purely factual and considerable effort is expended in ensuring that opinionated material is not provided.  

It is only if a case goes on appeal from the RRT, and usually this will be through an appeal by an unsuccessful applicant, that the Government is in a position to place its position before a body in a position to influence a decision.  Only in the Federal Court is it possible to see kind of adversarial process with which Australian scholars and practitioners are familiar at work.  

This means that the “jurisprudence” emerging from the RRT must be seen for what it is.  It is not a body of law of the type which comes from a court.  Section 420 of the Migration Act sets the Tribunal’s objective as forming a mechanism of review that is  fair, just, economical, informal and quick.  Each refugee application must be adjudged on its own, personal, merits, and precedent as understood in our common law system does not derive from the decisions.  

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Public processes like Australia’s are coming to be used in an increasing number of other countries.  There is now widespread recognition among member states of the 1951 Convention that the determination of refugee status involves issues of law and good government which need to be considered in an open and transparent way.  To an extent, some might argue, the original aim of the drafters of the Convention has been placed at the mercy of public passion and legal argument.  The Cold War purpose of providing a haven for persons fleeing communism in Europe has been displaced, some would say.  They now see the Convention as a vehicle for intense legal jockeying; others would say that the public procedures accompanying status determinations have brought into the open some of the most complex issues in bilateral and multilateral relations.  

All this has happened at the same time as the arrival of new pressures on populations caused by war, famine and disaster.  The problems are worsened by the sad fact that while declared war as it was once understood is a less common failing of humankind, non-international armed conflict has become frighteningly commonplace.  In this context, and because it has so much to do with population flows today, it is worth referring to the 1994 Human Development Report, published by the United Nations Development Program.  The Report shows that of 82 definable armed conflicts in the preceding three years (conflicts reported as resulting in 1000 or more battle fatalities), 79 were non-international in character.  Even more startling is information in the Report which shows that at the beginning of this century about 90% of war casualties were military, while today around 90% are civilian [1] .  

This is the kind of statistic which shows why the Convention often seems so difficult to use in modern circumstances.  The bulk of the people who flee these conflicts do not flee across national borders, hence they are immediately outside the strict parameters of the Convention.  Those who do manage to escape and lodge a claim are usually viewed as persons who would wish to resettle in their own homes as soon as the situation makes this possible.  The idea that people will wish to leave their homelands never to return, an idea which underpinned the Cold War fundamentals of the 1951 Convention, is not applied to these people today.  

Relatively few people manage to land in Australia while in flight from a conflict.  The greater number are here because, it seems, they are attracted by the belief that Australia offers them an opportunity to build a life which is simply not available in their home country.  Migration programs operated over the last 50 years have made Australia seem just as attractive a destination for people simply distressed by their economic or social fortunes as for those people who go through the procedures required for a migration application.  

There is a generalised belief that Australia now faces a worse (that is greater) problem now than in the past.  This, however, needs to be put into a wider international context.  Australia is in a region which is now relatively free of violence and war; Europe and Africa are, on the other hand, riven by conflict and the most grave of violations of international humanitarian law.  Not many victims of those violations (at least in relative terms) have found their way into the Australian onshore determination process.  

Australia is, however, facing a problem which other states party to the 1951 Convention have joined in identifying as critical in the modern age.  It is how to help the UN High Commissioner for Refugees deal with the tens of millions of people who are either refugees as strictly defined or who are more easily described as displaced persons.  A variety of solutions have been proposed, but none has been able to achieve a full consensus from the Executive Committee of UNHCR.  Australia has been one of those Executive Committee members which has worked hard to find ways of providing humanitarian support for those whose return home is seen by all concerned as the best durable solution.  Unfortunately, however, the whole debate on durable solutions has been coloured by the simple unavailability of easy solutions in today’s world.  

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The international debate, proceeding as it is on the best way of handling tens of millions of persons, has tended to move attention away from the individual persecution base on which the Convention was founded.  The Office of the UN High Commissioner, and member states of the Executive Committee, have stated and restated their determination to ensure that the High Commissioner’s protection role will not be devalued by the concentration of so many resources elsewhere.  But the fact remains that UNHCR’s budget is overwhelmingly devoted to the provision of humanitarian relief, and the resources available for monitoring the discharge of protection responsibilities will remain a concern for the foreseeable future.  

Australia has seen one of its tasks, in this environment, of working with other states, principally in this Asia-Pacific region, to build respect for the core task of providing protection to the individual.  To this end, Australia and UNHCR co-hosted a regional conference on refugee and displaced persons issues in Canberra in November 1996.  States attended the conference on the basis of their shared interest in the Convention’s principles. It is important to note that a number of non-parties also attended, signifying their belief that the principles, even if not the Convention itself, need to be taken into account in the development of domestic law and practice.  

The conference saw states exchange a great deal of information on the way their domestic processes work.  Participating states identified themes for further discussion including the role of countries of origin, the role of UNHCR and the nature of population movements.  Also among the outcomes was a clear willingness on the part of participants to improve the processes for the sharing of experience.  There was, for example, considerable interest in Australia’s domestic processes and the way they utilise the Convention’s criteria.  

Similarly, the participants acknowledged that all states are obliged to refrain from creating conditions which can lead to population exodus, or which lead individuals to flee from persecution.  The proof of the pudding will be in the eating, but the point is that Australia, far from retreating from the Convention, is taking a leading role alongside UNHCR in promoting the Convention and its objectives to all countries.  In many ways this work parallels similar work we have done to support the Red Cross and the purposes and principles of the 1949 Geneva Conventions and their Additional Protocols.  

This willingness of governments to accept the fundamental protection obligation of the Convention creates at the same time an opportunity for all governments to look to each other to implement that obligation.  This means, for most of Europe and the rest of the world, and now for Australia, that a person who flees persecution is not able to pick and choose from the world map when seeking a final destination.  It also means that if a person arrives in a country after travelling through a number of others to get there, it is reasonable for the country of arrival to insist that the application for refugee status should be lodged and processed elsewhere.  

The point here is that Australia is not, and is not about to become, a country more conveniently settled by people choosing what might be termed a refugee route instead of by a straightforward migration application.  Persons who choose to come here and then lodge an application for refugee status must understand this clearly.  I would not, however, wish to give the impression that this has anything to do with the Convention’s requirement that states party stand firm in their support of the most fundamental principle in the refugee law lexicon, the principle of non-refoulement.  Australia does not retreat from its responsibilities in this regard.  Indeed, the suggestion that Australia is in some way retreating from the Convention at all needs to be taken with more than a grain of salt.  I would reject the proposition wholeheartedly.  

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Finally, to put all this in perspective, it might be useful to look at some statistics:  

In 1992-93, the last full financial year in which decision-making and review were in government hands, there were 4976 onshore applicants for protection visas.  Of these, 696, or 14%, were successful at the primary stage.  A further 7347 sought review of negative decisions, and of those 272, or 3.7% were successful.  It must be noted that there was a large backlog in the review process at that time.  

In 1995-96, with much of the backlog processed, the comparable figures are: 8013 onshore applicants, 1203 or 15% of whom were successful at the primary stage.  4655 applications for review were processed by the RRT, of which 834 or almost 18% were successful.  

Against this background it seems hard to see how Australia, either through its courts or its government, might be “retreating from the Convention”.  I shall conclude with some brief notes which might help define the original question more usefully:  

· the Convention was designed to apply to political circumstances light years away from those which the world now confronts;

· the ease with which people can travel has made large-scale movement easier, over longer distances, than has ever before been the case;

· information dissemination has improved to the point that potential destinations are better appreciated, and travel routes better identified than ever before;

· changes in administrative law have brought Convention interpretation into the courts in many countries, thereby providing opportunities for wide public debate on some issues;

· the Convention continues to attract more states party, and it is also clear that many countries which are not party to the Convention are making use of its principles in framing their own refugee determination procedures;

· states party and other countries are anxious to ensure that the protection assured by the Convention is not able to be used as a migration route for persons unable to relocate through the use of regular procedures;

· this debate will go on for years.  It is important that governments work closely with scholars, practitioners and, above all, vulnerable people to find solutions.