Australian soldiers are preventing 438 refugees from disembarking from a Norwegian cargo ship on Australia’s Christmas Island. The crew of the Tampa rescued them from a sinking Indonesian ferry on 26 August.

Legal responsibility

The legal rights and responsibilities of Indonesia, Norway and Australia are a complex mix of refugee, humanitarian and maritime law. What is clear is the fundamental principle, enshrined in the 1951 refugee convention, that nobody should be forcibly returned to a country where they risk persecution.

Most of the refugees on board the Tampa are from Afghanistan, while some are reportedly from Iraq, Sri Lanka and Pakistan—all countries with poor human rights records. The news agency Reuters reported in July that about 90% of asylum seekers from Afghanistan, Iraq and Iran eventually are granted temporary protection in Australia.

3.6 million people have fled Afghanistan. 2 million are in Pakistan, 1.5 million in Iran and just 100,000 in the rest of the world.

Humanitarian duty

It cannot be right for 438 sick and vulnerable people, including pregnant women and children, to remain on board a cargo ship while government lawyers and diplomats debate fine points of international law. From a human rights perspective, Mary Robinson, UN High Commissioner for Human Rights has stated that Australia has the ‘primary responsibility’.

From a practical point of view, Australia should allow the refugees to disembark immediately, before conditions on board worsen, at Christmas Island, which is less than five miles away and the nearest port. Once they are safely on dry land, any asylum claims can be determined and, if necessary, the countries involved can work out a long term solution.

Australia and refugees

Australian immigration minister Philip Ruddock is one of the loudest voices calling for a rewriting of the 1951 refugee convention, yet Australia receives relatively few asylum seekers. Australian government figures show that in the year to June 2001, around 4,000 people arrived in Australia ‘unlawfully’ by boat, mostly from Afghanistan and Iraq.

Since 1992, everyone who arrives in Australia illegally is locked up in detention centres, many in extremely isolated parts of the outback, in violation of the human right to be free from arbitrary detention. Article 31 of the 1951 refugee convention also explicitly states that refugees should not be penalised “on account of their illegal entry”. In September 2000, the government refused permission for the UN Working Group on Arbitrary Detention to investigate immigration detention.

After riots in a detention centre in January 2001, Mr Ruddock was reported as saying that chemical injections to calm detainees needed to be more “comprehensively implemented”. Mr Ruddock accuses ‘boat people’ of jumping the queue ahead of refugees who arrive on an organised resettlement programme. Australia received 8,300 resettled refugees in 1999.

In July UNHCR’s representative in Australia expressed concern about the tone of the asylum debate:

“There are relatively small numbers of asylum seekers coming into Australia and yet there’s talk of ‘queue jumpers, illegal migrants, flood of refugees’ and so forth when in fact that’s not the case.”

Nick Hardwick, Chief Executive of the Refugee Council, has spoken about this situation.