Does Australian asylum policy break international law?

(File: AAP)

The Australian government is again being accused of breaching international laws, amid reports that it has been turning asylum seeker boats back to Indonesia.  

(Transcript from World News Australia)

Asylum seeker detention is also under the spotlight as being contrary to international law.

But what laws are being broken?

And what are the consequences of any confirmed breaches?

(Click on audio tab above to hear full item)

If Australia's asylum seeker policies are found to be illegal there will be international ramifications.

That's the warning from lawyers, who also say Australia's economy may suffer.

But while some international law experts are certain the Australian government is breaking laws, international bodies are more cautious.

Reports from Indonesian media, some attributed to the Indonesian police chief, say at least two boats have been turned back -- one in December and one in January.

Various Australian media have subsequently spoken to asylum seekers in Indonesia who say they were aboard the boats.

That's led the United Nations refugee agency to ask for an explanation from the Australian government.

The UNHCR's Asia Pacific spokeswoman, Vivian Tan, says the UNHCR has initial interviews with asylum seekers who say they've been turned back, but wants to corroborate the accounts to make sure they add up.

"We're trying to verify reports of the two groups (of asylum seekers) that we have access to in Indonesia. But we're worried that if it was true then Australia could be in breach of its obligations under the 1951 Refugee Convention."

Ms Tan has refused to say what the UNHCR's next step would be if it could prove any breach of international law.

"I think at this point the priority is very much to establish the facts of what happened. I think we have to keep asking for details, asking for a briefing, because so far all we know is from media reports and it's very important for us to know the facts and to get the perspective of the authorities. And it's not really useful to speculate beyond that."

Human rights lawyers say knowingly instituting a policy which puts lives at risk is inconsistent with Australia's obligations under the Refugee Convention.

They say it would also breach Australia's obligations under the UN Convention on the Law of the Sea and the International Covenant on Civil and Political Rights.

An expert in international maritime law, University of Queensland Adjunct Professor Michael White, says it is lawful to turn back boats carrying economic migrants and criminals.

But Dr White says it is illegal for Australian authorities to force boats to turn back to Indonesia without first having established whether those on board are genuine asylum seekers.

He cites a 2012 European Court of Human Rights ruling against attempts by Italy to turn boats back to Libya.

Dr White says similar action could be taken against the Australian government for boarding Indonesian-manned boats on the high seas.

"Any of the other governments withstanding if if it was their citizens or Indonesia, if it's their boats, who said we are breaking international law can take us to the International Court of Justice, or the International Tribunal for Law of the Sea. Russia did that over one of our fishing boats. In fact, we're taking Japan to the International Court on the whaling matter at the moment. And these countries can do it, and there's no doubt in my or many other informed minds that we would lose."

There's been no suggestion at this stage that Indonesia is planning any such legal action against Australia.

It has said officially that it's investigating claims that Australia has started forcing back boats.

It says this could breach the 1951 UN Refugee Convention, which Australia has ratified.

Professor Don Rothwell of the Australian National University says the Commonwealth and its officers have a wide capacity to interdict and engage and exercise control over vessels coming to Australia under the Migration Act.

But Professor Rothwell says if the Navy and Customs personnel who are jointly responsible for Operation Sovereign Borders are deemed to have used force -- as some asylum seekers have claimed -- that could fall outside the of the Migration Act.

"The general context in which operation sovereign borders is being conducted is that it's not, as I understand it, a law enforcement operation, in the sense that there's no effort being made by the military to seek to detain and ultimately detain and arrest vessels or persons on board those vessels and ultimately to prosecute those persons. Rather this is a military operation that's being conducted in which every deterrent is being put in place to stop vessels coming to Australia. And that in itself raises a different set of legal issues because much of Australian law is framed around the circumstances under which force would be used in a law enforcement setting."

Maritime law expert Michael White says constitutional issues could arise by using the Navy to police asylum seeker boats.

Dr White says the Defence Force was established under the Constitution to defend the country, not to act as a coast guard.

"The government of the day if properly elected to run the country can give lawful orders to the navy and to the generals, the army and the air force. But if they're unlawful then the admirals and the generals are entitled to challenge the government on that. And if they consider that it's completely wrong policy they may well find that one or two of the heads of army, navy, air force and make it a whole, Australia-wide policy for debate about what the government is doing and requiring of Australian armed forces."

A lawyer with the Melbourne-based Human Rights Law Centre, Daniel Webb, argues that Australia is increasingly looking at creative ways to back away from its Refugee Convention obligations.

Mr Webb says aggrieved asylum seekers could complain to the UN Human Rights Committee, which administers the International Covenant on Civil and Political Rights.

He says a case could be made there against indefinite detention on Nauru and Manus Islands in Australian-run centres.

Mr Webb does concede, however, that one limitation of the international legal system is that it can't enforce its own findings.

"But it still has authority and being an international outlaw still has consequences. The purpose of the international system is to set out these normative standards of minimum treatment. You're not allowed to torture people, you're not allowed to subject people to cruel and inhumane treatment, you're not allowed to detain people arbitrarily. These are the minimum standards that international law establishes and if countries like Australia just start ignoring them, that erodes the system itself because it sets a very dangerous precedent for the rest of the world that you can do as you please."

Daniel Webb says ignoring international laws, or acting contrary to the spirit of those laws, has the potential to damage Australia's international standing.

Mr Webb says its recent election to the UN Security Council was on the back of a promise to be a principled advocate for human rights for all.

He says Australia looks untrustworthy if its actions contradict its words in the UN.

"It's in Australia's interests to have an international system that respects basic human rights principles. We've gone to the UN and raised concerns about human rights violations in Sri Lanka, about human rights violations in Afghanistan, in Iraq. We have relied on this system of international law when it suits us. So it's in our interests not to simply erode it by our conduct when it's politically expedient in the short term to do that."

Immediate past president of the Australian Lawyers' Alliance, Tony Kerin, says an erosion of Australia's international standing also has economic costs.

"If you treat people, desperate people, with the indifference that we are currently, then we market ourselves as such, as indifferent to human tragedy and unreliable in terms of international obligations, and that will impact on our economy. You know, good will is immeasurable, so if you damage that you are damaging our future and our future ability to have the support, cooperation of others in times of need. I have no doubt about that."

Source: World News Australia