Refugees in Australia - Q & A (xii) - What other International Conventions are relevant to asylum seekers?

The Refugee Convention is of course not the only convention that deals with situations of persecution and with the plight of those facing or fleeing gross human rights violations.

The 1948 Universal Declaration of Human Rights provides in Article 14(1) that:

“Everyone has the right to seek and to enjoy in other countries asylum from persecution.”

This is a fundamental human right for all people.

Article 3.1 of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ('CAT') (signed by Australia on 7 September 1989) provides that:

“No State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”

The 1966 International Covenant on Civil and Political Rights ('ICCPR') (signed by Australia on 13 November 1980) provides that:

“Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life” [Article 6(1)]
“No one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment.” [Article 7]
“Everyone has the right to liberty and security of person. No one shall be subject to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.” [Article 9.1]
“Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” [Article 9.4]

Article 37 of The Convention on the Rights of the Child (CRC) (ratified by Australia on 17 December 1990) sets out important rights for children in relation to detention. This convention states that children should only be detained as a last resort, and then only for the shortest period of time. Any detention of children must be subject to periodic judicial review. Yet in Australia children who seek asylum in Australia but arrive without authorisation have no opportunity to challenge the deprivation of liberty in a fair hearing, nor are there periodic reviews of their detention.

Amnesty International has produced a number of documents, most notably the Fundamental standards for the protection of refugees which set out a number of procedural safeguards which are essential for identifying persons who would be at risk of serious human rights violations if returned against their will to the country they have fled or to some other country. These principles are based on international standards, such as are set out in the above international treaties and the relevant conclusions adopted by the UNHCR.

A positive step was made in this direction when the Senate Legal And Constitutional Committee in June 2000 in its Report on Australia's Refugee Determination Processes recommended that:

“the Attorney-General's Department, in conjunction with DIMA, examine the most appropriate means by which Australia's laws could be amended so as to explicitly incorporate the non-refoulement obligations of the CAT and ICCPR into domestic law.” [Recommendation 2.2]

Amnesty International continues to campaign for the inclusion of our international obligations to ensure that no-one is forcibly returned to a country where they would face torture or death.