Australia has signed a number of international treaties and conventions governing the treatment of refugees and asylum seekers. Unfortunately many of our government's obligations under these agreements have not always been honoured.

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The refugee convention

Australia signed the Refugee Convention (the 1951 Convention Relating to the Status of Refugees) in 1954 and the 1967 Protocol Relating to Refugees, in 1973. The Refugee Convention makes us responsible for ensuring we do not return people to countries where their life or freedom would be threatened by their race, religion, nationality or membership of a social group, or political opinion. Full details of the convention are available from the United Nations High Commissioner for Refugees' website.

The Refugee Convention is designed not only to define who is a refugee, but also to protect refugees against forcible return, explain what rights and obligations they should be entitled to in their country of asylum, and set up a system that ensures that they have access to durable solutions; voluntary repatriation, resettlement or local integration.

The provisions of the Refugee Convention stipulate that no penalties will be imposed on refugees for their illegal entry or presence if they come directly from a territory where their life or freedom is under threat. This is provided that they present themselves without delay to the authorities and have a good reason for their illegal entry.

Moreover, the Convention states that refugees lawfully staying in Australia should be issued with travel documents for travel outside Australia unless there are compelling reasons of national security or public order for not doing so.

Other Conventions

Australia has also committed itself to a number of other international agreements which deal with situations of persecution. These include the 1948 Universal Declaration of Human Rights (UDHR), the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1989 Convention on the Rights of the Child (CRC).

The UDHR states that everyone can expect asylum from persecution and enjoy safety in other countries and the CAT says no person should be returned to a country where there are grounds for believing they would be in danger of being tortured.

The ICCPR is even more far-reaching, stressing that all individuals have a right to life and the right to protection of this right by law. Individuals also possess the right not to be subjected to torture, cruel, inhumane or degrading treatment or punishment, their right to live free of arbitrary arrest, their right to liberty and security except on grounds and procedures established by law. Most significantly, in the context of asylum seeker claims, individuals have the right if they are detained to have their case heard and a decision made in a court of law without delay.

Is it law?

Although there is a comprehensive international legal framework for the protection of the human rights of refugees, international law is not enforceable in Australian courts unless it has been incorporated into domestic law. Not only are there a number of aspects of Australia’s domestic law that do not measure up to the commitments Australia has made internationally, but there is an ongoing need to press for incorporation of international legal standards into the domestic legal framework. Amnesty International continues to work to bring about this essential change.

Presently, the Refugee Convention is incorporated only by definition of the term 'refugee' in the Migration Act 1958 and not by specifically implementing obligations of the convention. Rather than legislating to protect the rights of refugees and asylum seekers, the Australian government has provided the Minister for Immigration, along with his department, with extensive discretionary powers - for which there is limited accountability.

Amnesty International Australia continues to campaign for key elements of the international agreements to which Australia is a signatory to be included in Australian law.

Why is it vital for Amnesty International Australia to work on this issue?

Advocating for the protection of refugees and asylum seekers has been a key area of Amnesty International’s work for decades. As a leading human rights advocate and campaigner, it is essential that Amnesty International not only call for systemic changes that better protect the rights of all refugees and asylum seekers, but also advocate for the protection of the rights of individual refugees and asylum seekers who can fall through the cracks of even the most effective system.

Amnesty International also works to ensure that rejected asylum seekers are not returned to places where they may face torture, cruel, inhuman or degrading treatment or punishment. Such returns are prohibited under international human rights law.