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Thom, Graham --- "Australia's Obligations Under Articles 31(1) of The Refugees Conventions: What are Penalties?" [2006] AltLawJl 35; (2006) 31(3) Alternative Law Journal 142

    What are penalties?


    On the 13 April 2006, the Australian government announced that it would be introducing legislation ‘to broaden the group of people to whom offshore processing arrangements will apply.’[1] The Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (‘the Bill’) proposes to extend legislation introduced in 2001 which established the government’s ‘Pacific Solution’.[2] The Bill was introduced in response to asylum seekers arriving from the Papuan province of Indonesia, who came directly and were ultimately granted refugee status. The Bill, if passed, will ensure that all unauthorised boat arrivals, who reach Australia’s mainland, will be taken to a third country for processing. The existing Migration Amendment (Excision from the Migration Zone) Act 2001 (Cth) had initially only excised a number of Australian islands from the migration zone.[3]

    In June 2006, the Senate Legal and Constitutional Committee inquired into the provisions of the Bill (‘the Senate Inquiry’).[4] A number of academics, legal organisations and non-government organisations, as well as the United Nations High Commissioner for Refugees (UNHCR), submitted that the Bill would be in breach or could lead to breaches of Australia’s international human rights obligations. This article focuses on how the proposed legislation would violate art 31 of the Convention Relating to the Status of Refugees (‘the Refugees Convention’) which prohibits states from imposing ‘penalties’ on refugees who arrive without a visa.[5]

    The Bill

    The Immigration Advice and Rights Centre, in its submission to the Senate Inquiry, summarised the provisions of the Bill as follows:

    This Bill effectively excises the entire Australian mainland and creates a new category of people who, while technically having reached Australian territory:
    • will not be able to make any valid visa application in Australia, including but not limited to refugee applications;
    • will not have access to any of Australia's immigration process at the primary, merits review or judicial
    review stage;
    • may be taken to offshore processing centres (most likely Nauru) where they will be detained indefinitely without access to legal advice or assistance;
    • may claim refugee status in offshore processing centres where officers of unspecified qualifications and training will engage in an unspecified process of assessing refugee claims. These processes and, ultimately, decisions, will not be subject to external or
    independent review;
    • if found to be a refugee within the meaning of the United Nations Convention on the status of Refugees (as amended by the subsequent protocol), remain detained in the offshore processing centre until such time as another country (having the same obligations as Australia does under the Refugee Convention) accepts to resettle that refugee. There are no time limits specified for the process of assessment and resettlement, meaning that asylum seekers and refugees, including women and children, could remain in detention for years.[6]

    The Bill only applies to those individuals who arrive in Australia by boat and without a visa. Asylum seekers who arrive by air, whether documented or not, are able to access the Australian onshore refugee status determination (RSD) system, which includes access to independent merits review of decisions of the Department of Immigration and Multicultural Affairs (DIMA) by the Refugee Review Tribunal (RRT) and judicial review by the courts. Asylum seekers, arriving by air, whose claims have failed on merits review may also seek humanitarian intervention by the Minister for Immigration.[7] The Minister’s power to intervene on humanitarian grounds is supposed to ensure Australia meets its broader international human rights obligations.[8] The RSD system also provides for a limited entitlement to legal assistance.[9] There are considerable differences in the rights and entitlements for those being processed onshore compared to the entitlements of those who would be processed offshore under the Bill.

    Article 31(1)

    Article 31(1) of the Refugees Convention provides that:

    1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

    As noted by Dr Jane McAdam, ‘[t]his is a fundamental aspect of the Refugees Convention because it underscores the right of people in distress to seek protection, even if their action constitutes a breach of the domestic laws of the country’.[10] It recognises that people fleeing persecution are often not in a position to seek appropriate travel documents from the government that is trying to harm them and that there will be times when restrictive immigration controls will have to be by-passed so that individuals are able to reach a safe destination.

    Renowned refugee authority, Guy Goodwin-Gill, notes that Belgium and the United States of America first proposed that those refugees entering illegally should be exempt from penalties (for the reasons outlined above) and that this was included in the draft of the Convention in 1950.[11]When the Convention was considered subsequently the text was not altered.[12]

    The wording of the joint Belgium–US proposal is important as earlier wording proposed by the Secretary-General looked at ‘penalties enacted against foreigners’ and only referred to those specific legal penalties that apply to all foreigners entering a state’s territory without permission, or on forged documents.[13] This would have meant that instead of prohibiting the imposition of a particular kind of penalty, art 31 would instead prohibit simply ‘penalties’ imposed on a particular group of persons, namely refugees who enter undocumented or ‘illegally’. For this reason, writers such as Hathaway have demonstrated that, ‘[i]nstead of immunizing refugees from a particular kind of penalty, the purport of art 31 is that penalties in general are prohibited if imposed in a particular context, namely as the result of unlawful entry or presence’.[14]

    What is a penalty?

    The term ‘penalty’ is not defined in the Refugees Convention. According to the UNHCR, the term ‘penalty’ includes, but is not necessarily limited to, prosecution, fine and imprisonment. The federal government, however, maintains a narrow interpretation of the term ‘penalty’, in effect limiting its definition to only those sanctions that amount to a criminal offence. This interpretation is not consistent with the object and purpose of the treaty and international jurisprudence, which support an interpretation that any sanction which denies one group of refugees certain benefits vis-à-vis other refugees based solely on their ‘illegal’ entry should be considered a penalty.

    Articles 31(1) and 32 of the Vienna Convention on the Law of Treaties 1969 confirm the principle of general international law that a treaty ‘shall be interpreted in good faith and in accordance with its ordinary meaning’ and that in order to confirm meanings ‘recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty’.[15]

    In determining the object and purpose of the Refugees Convention, writers point to the Convention’s ‘travaux preparatoires’ (a treaty’s pre-enactment debates) to demonstrate that the object and purpose of the Convention favour a broad view of the term ‘penalty’ in art 31(1).[16] Goodwin-Gill notes that those who ascribe a narrower interpretation to the term ‘penalty’ in art 31(1) often point to the French language version which refers simply to ‘sanctions penales’ (‘criminal penalties’) and to case law. However, the English language version refers only to ‘penalties’. As Goodwin-Gill notes:

    where the French and English texts of a convention disclose a different meaning which the applications of Article 31 and 32 of the 1969 Vienna Convention does not remove, the meaning which bests reconciles the texts, having regard to the object and purpose of the treaty shall be adopted.[17]

    Goodwin-Gill and others have also pointed to the UN Human Rights Committee interpretation of the term ‘penalty’ in art15(1) of the International Covenant on Civil and Political Rights (ICCPR).[18] In a case concerning Canada, the Committee noted that ‘the terms and concepts of the Covenant are independent of any particular national system or law’ and the Committee ‘must now regard them as having an autonomous meaning’.[19] The Committee stated that the term must be interpreted in light of that provision’s object and purpose.[20]

    Manfred Nowak, the current UN Special Rapporteur on Torture, when examining the term ‘criminal offence’ under the ICCPR, has argued that ‘every sanction that has not only a preventative but also a retributive and/or deterrent character is ... to be termed a penalty, regardless of its severity or the formal qualification by law and by the organ imposing it’.[21] By interpreting ‘penalty’ in this way, Nowak highlights that penalties go beyond a formal ‘criminal offence’ to include measures which have a ‘deterrent character’.[22] This is significant because if penalties are not interpreted this way, the fundamental protection intended could be circumvented by states adopting an overly formal or restrictive approach.

    The UNHCR also make reference to both the UN Human Rights Committee and Manfred Novak’s interpretation of what is a penalty when raising concerns under art 31(1) in their submission to the Senate Inquiry. Further, the UNHCR submission raises concerns, under art 31(1), with both the deterrent purpose of the Bill and its potential for discriminatory treatment of those taken to a declared country, when compared to the treatment of those on-shore,[23] again demonstrating that a narrow interpretation of the term penalty is inappropriate. This interpretation is further supported by UNHCR’s Executive Committee (‘EXCOM’) Conclusion No 22 (1981) which states that asylum seekers should ‘not be penalised or exposed to any unfavourable treatment solely on the ground that their presence in the country is considered unlawful’.[24]

    An example of where ‘unfavourable treatment’ was recognised as a penalty under art 31(1) was the United Kingdom attempt in 1996 to withdraw social security entitlements from asylum seekers who failed to submit an application for asylum immediately ‘on arrival’.[25] In a decision by the Social Security Commissioner in 1999, Commissioner Rowland made two significant findings.[26] First, he found that ‘any treatment that was less favourable than that accorded to others and was imposed on account of illegal entry was a penalty within art 31 unless objectively justified on administrative grounds’. Second, drawing on an earlier case, he also stated it is arguable that the ‘refusal of any income support for an asylum seeker is not proportionate to the asylum seeker’s failure to claim asylum at the port of entry’.[27] Therefore, any sanction that produces an outcome that is disproportionate to its intended purpose (in this case failure to claim asylum at the port of entry), constitutes a penalty under art 31(1).[28]

    Provisions of the Bill which would constitute ‘penalties’

    Measures in the proposed legislation that amount to a penalty include sanctions directly targeting undocumented arrivals, which are punitive, unreasonable, disproportionate to the objectives they are designed to achieve, designed to deter, in breach of a state’s broader human rights obligations and provide lesser entitlements vis-à-vis other refugees. The Bill contains a number of specific provisions which amount to penalties including:

    1. transfer to an offshore processing centre

    2. mandatory and indefinite detention of all those removed offshore

    3. a ‘markedly inferior’ RSD process that excludes an independent merits review and access to legal representation

    4. leaving refugees on Nauru while resettlement options are considered and hence not leading to a durable solution for those recognised as refugees

    5. granting Temporary Protection Visas, as provided for under the previous legislation, to those who ultimately may be resettled to Australia.

    This article focuses on two of the above provisions: detention and the RSD process.


    The government has consistently maintained that its policy of mandatory detention, on the mainland, for all individuals who arrive undocumented is not in breach of its international obligations because such individuals are detained for administrative purposes in accordance with art 31(2) of the Refugees Convention.[29]

    The Refugees Convention recognises that states, in certain circumstances, may impose restrictions on freedom of movement of both asylum seekers and refugees. Article 31(2) of the Convention states:

    The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

    It is the interpretation of the term, ‘which are necessary’, which is crucial to the application of art 31(2). As Goodwin-Gill notes, ‘Article 31(2) implies that, after any permissible initial period of detention, States may only impose restrictions on movement which are “necessary”, for example, on security grounds or in special circumstances of mass influx’.[30] Any detention beyond an initial period of investigation can only be deemed necessary in cases of threats to security or mass influx. Any prolonged detention requires justification as necessary under art 31(2) if it is to avoid being considered a ‘penalty’.

    The circumstances in which it is appropriate to detain asylum seekers have been fully considered by UNHCR in a number of EXCOM Conclusions (which have also reaffirmed the principle that ‘detention should normally be avoided’).[31] EXCOM Conclusion No 44 recognised that detention may be resorted to in order to determine such things as identity or to protect national security or public order. Importantly, the detention of asylum seekers should be subject to judicial or administrative review. In 1999, UNHCR issued its revised ‘Guidelines on the Detention of Asylum-Seekers’ (‘the Guidelines’) and again reaffirmed the general principle that ‘asylum-seekers should not be detained’.[32] Further, the Guidelines highlight that detention should be used only if it was reasonable and proportional and that it was impermissible to use detention for the purposes of deterrence.[33] Asylum seekers should also have the right to challenge the necessity of detention.[34]

    Critics of the government’s position point to Australia’s other international human rights obligations, including art 9 of the ICCPR which provides that no-one shall be subject to arbitrary arrest or detention.[35] The UN Human Rights Committee considered the meaning of art 9 in the case of A v Australia.[36] The case involved a complaint submitted under the Optional Protocol to the ICCPR to the Human Rights Committee on behalf of a Cambodian asylum seeker in Australia. In its decision dated 30 April 1997, the Human Rights Committee determined that the asylum seeker’s detention, for more than four years, was arbitrary and therefore a violation of art 9 (1) of the ICCPR.

    Based on decisions such as these, Goodwin-Gill has concluded:

    while administrative detention is allowed under Article 31(2), it is equivalent, from the perspective of international law, to a penal sanction whenever basic safeguards are lacking (review, excessive duration, etc.). In this context, the distinction between criminal and administrative sanctions become irrelevant. It is necessary to look beyond the notion of criminal sanction and examine whether the measure is reasonable and necessary, or arbitrary and discriminatory, or in breach of human rights law.[37]

    A number of those making submissions to the Senate Inquiry have noted that the removal of people offshore simply transfers Australia’s policy of mandatory, indefinite and non-reviewable detention to detention in third countries. Arguably, however, there is a difference between detention and other restrictions on the freedom of movement. For instance, the Guidelines include such examples as monitoring requirements, provision of guarantor, release on bail and open centres as possible alternatives to detention.[38]

    The government has further argued that ‘residents’ of the offshore processing centres (OPCs) on Papua New Guinea and Nauru ‘are not detained but reside legally in Nauru [and PNG] holding a visa granted by the Nauru [and PNG] Government.’ They are housed in a processing centre, not a detention centre, and that the security services provided through International Organisation for Migration ‘are largely for safety reasons and are present to prevent inappropriate or unnecessary access to the centre by residents of Nauru’.[39] The DIMA submission does note, however, that while the government will work with the government of Nauru to provide residential-style accommodation in the community for women, children and families, this is not the situation for single men who will be subject to ‘some form of movement restrictions’.

    To what extent then can we say that those taken to Nauru will be placed in detention? In the Guidelines, the UNHCR defines detention as ‘confinement within a narrowly bounded or restricted location, including prisons, closed camps, detention facilities or airport transit zones, where freedom of movement is substantially curtailed, and where the only opportunity to leave this limited area is to leave the territory’.[40] Importantly though, the Guidelines not only refer to those in detention but also those in detention-like

    situations[41] The Guidelines also state, ‘When considering whether an asylum-seeker is in detention, the cumulative impact of the restrictions as well as the degree and intensity of each of them should also be assessed’[42]

    While the government has flagged possible alternatives for some of those transferred to Nauru, in particular women and children, these will not apply to everyone who is transferred. Further, while some of the alternatives proposed would not normally be considered as detention, as defined by UNHCR, it is the cumulative restrictions, in part due to the isolation of Nauru itself, which constitute a ‘detention-like’ situation. For those previously taken to Nauru, the cumulative impact of restrictions was dire. Lack of access to appropriate medical and psychological health care, as well as family, friends and legal counsel, all contributed to the serious deterioration of the mental health of many of those later recognised as refugees.[43]

    Further, under the proposed legislation serious questions remain as to the amount of physical restraint that will be involved and also to what extent those transferred to Nauru will be confined in a closed camp or restricted area. When examining the experience of those previously taken to Nauru, UNHCR has stated:

    the experience gained from off-shore processing on Nauru, introduced by Australia in October 2001, should not be considered the ‘outstanding success’ it is characterised as in the Second Reading, but on the contrary has resulted in prolonged detention-like situations of asylum-seekers and refugees alike, as well as extended separation of families. The practice is also known by UNHCR to have contributed to serious mental health problems.[44]

    These ‘detention-like’ situations result from the fact that under the visa conditions for those ‘resident’ on Nauru, Australia can and will determine the amount of physical restraint and confinement for those taken to the OPC.[45] While a number of alternatives have been mooted by the government, for instance allowing people to come and go during the day but locking them up at night, single men in particular face the prospect of being detained indefinitely, entirely at the discretion of the government.

    This raises serious concerns about the proportionality of their detention and the risk of prolonged detention. UNHCR states that, ‘[i]n assessing whether detention of asylum-seekers is necessary, account should be taken of whether it is reasonable to do so and whether it is in proportion to the objectives to be achieved’.[46] Potential indefinite detention on a remote Pacific island, such as Nauru, which could ultimately harm an individual’s mental and physical health, is both unnecessary and disproportionate to the government’s objectives of national security, public order or identity checks. This is especially so given the lack of risk of flight from an island such as Nauru. Further, those taken to Nauru will not be able to challenge the necessity of any decision that is made to ‘detain’ them before a judicial or administrative body independent of the detaining authorities.[47]

    Most significantly, under art 31(2), refugees and asylum seekers should not be detained for the purposes of deterrence. However, as noted by Australian Lawyers for Human Rights:

    The deterrent character of the measure is clear. The Explanatory Memorandum states that the bill ‘is designed to operate as a disincentive to people who arrived on the mainland unauthorised by boat to defeat the existing excision provisions.’ This shows that denial of access to onshore processing procedures is specifically intended to deter flight. The unavoidable conclusion is that the measure is punitive.[48]

    The Minister for Immigration in a media interview following the announcement of the Bill stated, ‘Well, we’ll be looking to place them in other countries. It’ll be as effective as the Pacific Solution has been in the past. Namely, it’ll be a deterrent to people using Australia as a staging post.’[49]

    Any detention used as part of the offshore processing regime is quite clearly intended to ‘deter’ people from reaching the Australian mainland and using Australia as a ‘staging post’. Detention in this context therefore constitutes a penalty in contravention of art 31(1).

    The proposed legislation would also violate Australia’s obligations under the Convention on the Rights of the Child (CROC).[50] While it is beyond the scope of this article to give a broader critique of Australia’s obligations under the CROC with regards to the Bill, the Senate Inquiry submission by the Human Rights and Equal Opportunity Commission does go into some detail on this issue and concluded that the Bill would breach Australian’s obligations under the CROC.[51] Any measures to detain children, in breach of Australia’s obligations under the CROC, are outside the detention permitted under art 31(2) and hence also constitute a penalty.

    The RSD process

    Pursuant to the Bill, people processed offshore will not have access to merits review by an independent decision-maker, unlike onshore applicants who may appeal to the RRT. Nor will they have access to independent legal advice, or judicial review of administrative decisions. For this reason writers such as Mary Crock and Dr Jane McAdam have described the offshore RSD process as ‘markedly inferior’.[52]

    The need for a robust RSD system is crucial if states are to meet their non-refoulement obligation. When talking of the ‘RSD obligation’, Mark Pallis states, ‘[s]imply put, the rule prohibits the return of “refugees” and the only way to determine who is a refugee is to conduct status determination, thus RSD becomes a necessary condition in meeting the obligation’.[53] Past experience, as highlighted below, clearly shows that the RSD on Nauru is inadequate and has put Australia at risk of breaching its non-refoulement obligation.

    One writer who has examined the denial of procedural rights in the context of refugee status determination is Hathaway. When critiquing the United Kingdom proposal in 2003 to subject all refugees arriving without travel documents to an abbreviated offshore procedure, he concluded:

    The case is strong that the assignment of refugees who arrive without proper documentation to abbreviated procedures is in essence a penalty inflicted for irregular entry. When a summary procedure is resorted to not on the grounds of the substantive insufficiency of a claim, but rather to sanction a refugee for his or her mode of entry, such procedures take on a decidedly punitive character. Because the essential purpose of art 31 is to insulate refugees from penalties for the act of crossing a border without authorization, a refugee may not lawfully be denied access to ordinary legal entitlements to a complete refugee status inquiry simply because he or she has used false documents to enter the country, or otherwise contravened migration control.[54]

    In its submission to the Senate Inquiry, DIMA argues that the proposed offshore refugee assessment process is consistent with its international obligations, noting that the proposed system is modelled closely on that used by the UNHCR. With respect to review of a negative decision, DIMA states that:

    Australia’s offshore assessment process allows a person found to be a refugee to obtain a fresh merits review of their case by another, more senior, department officer. This arrangement is consistent with the general view held by UNHCR that refugee status assessment process should provide a review opportunity, either administrative or judicial.[55]

    The assertion by DIMA that review by another DIMA officer amounts to a ‘fresh merits review’ is dubious. At best, the proposed process amounts to a reassessment, but it lacks the transparency that is provided for in the onshore independent merits review system. UNHCR has observed:

    a key procedural safeguard which is essential to the concept of an effective remedy is that the appeal is considered by ‘an authority different from and independent of that making the initial decision’. The review procedure proposed in the Bill does not meet this standard.[56]

    In its submission to the Senate Inquiry, the UNHCR expressed concern that the proposed RSD procedures:

    will expose those affected to lesser procedural safeguards in the determination of their asylum claims, thus heightening the risk of refoulement,and questions whether the procedures will handle offshore claims fairly and efficiently.[57]

    The Senate Inquiry submission of Marion Le, the only independent legal adviser to be given access to the asylum seekers on Nauru, is significant. Ms Le identified 16 different types of flawed decision which affected a number of the cases. These flawed decisions included, for example, ‘written decisions in which the decision of more than one applicant has been merged together, with both names appearing in different parts of the decision’[58] and decision-makers failing to consider relevant documentation which had been provided. Ms Le also documented the serious discrepancies between offshore and onshore decision-making.

    The significant impact which the work of one independent legal adviser had on the reprocessing of asylum seekers detained in Nauru highlights the importance of access to independent legal advice and merits review, without which, it is clear that the offshore system is indeed ‘markedly inferior’. There is no objective justification on administrative grounds for differences in processing between those onshore and offshore, beyond mode of arrival. Evidence suggests that offshore processing produces less favourable treatment than those processed onshore. For these reasons, the proposed RSD system constitutes a penalty and is in breach of art 31(1) of the Refugees Convention.


    Article 31(1) of the Refugees Convention underscores the right of people fearing persecution to seek protection. Article 31(1) was introduced in recognition of the fact that refugees would often have to flee undocumented and that they should not be penalised for doing so. A narrow interpretation of the word ‘penalties’ would render art 31(1) meaningless, as states could simply legislate away their obligations.

    For this reason, administrative sanctions, such as those proposed by the Bill, amount to penalties if they are not in keeping with the original intent of art 31(1) and Australia’s broader human rights obligations. The Bill proposes mandatory, non-reviewable and potentially prolonged or even indefinite detention and is coupled with an RSD process that lacks independent merits review and access to legal assistance, which has the serious potential of Australia breaching its non-refoulement obligation. These measures are quite clearly designed to sanction a refugee for their mode of arrival (arriving undocumented by boat) and also have a clear deterrent purpose. The Bill therefore has a decidedly punitive character and would violate Australia’s obligations under art 31(1) of the Refugees Convention.


    The Senate Committee reported on 13 June 2006.[59] It recommended that the Bill not proceed in its current form. The Committee noted that its inquiry was significantly hampered by the absence or limited availability of critical information to assist with its deliberations. On 22 June 2006, the government tabled proposed amendments to the original Bill. The Bill was passed by the House of Representatives. However, on 14 August 2006, Prime Minister Howard announced the Bill would be withdrawn from the Senate after it became apparent it would not pass due to the opposition of certain Liberal and Family First Senators.

    [*] DR GRAHAM THOM is Refugee Coordinator, Amnesty International Australia.


    © 2006 Graham Thom

    [1] Senator Amanda Vanstone, ‘Strengthened Border Control Measures for Unauthorised Boat Arrivals’ (Press Release, 13 April 2006).

    [2] Border Protection (Validation and Enforcement Powers) Act 2001 (Cth); Migration Amendment (Excision from Migration Zone) Act 2001 (Cth); Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth).

    [3] Initially, in 2001, only four islands were excised but this was later extended by amendments to the Migration Regulations in 2005, to include all islands off Australia’s north coast: Migration Amendment Regulation 2005 No 6 (Cth).

    [4] Senate Legal and Constitution Committee, Parliament of Australia, Inquiry into the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (2006) <> .

    [5] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954).

    [6] The Senate Inquiry (Immigration Advice and Rights Centre) above n 4, 2.

    [7] Migration Act 1958 (Cth) s 417.

    [8] Senate Legal and Constitutional References Committee, Parliament of Australia, A Sanctuary under Review An Examination of Australia’s Refugee and Humanitarian Determination Process (June 2000).

    [9] DIMA, Fact Sheet 63: Immigration Advice and Application Assistance Scheme (2005).

    [10] The Senate Inquiry (Dr Jane McAdam) above n 4, 10.

    [11] Guy Goodwin-Gill, ‘Article 31: Non-Penalization, Detention, and Protection’, in E Feller, V Turk, and F Nicholson, (eds), Refugee Protection in International Law (2003), 185, 190.

    [12] Ibid.

    [13] J C Hathaway, The Rights of Refugees Under International Law (2005) 409.

    [14] Ibid 410.

    [15] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).

    [16] Guy Goodwin-Gill, above n 11, 189 and JC Hathaway, above n 13, 49, 411.

    [17] Guy Goodwin-Gill, above n 11, 194.

    [18] Ibid 194.

    [19] Van Duzen v Canada, Communication No 50/1979, UN doc CCPR/C/15/D/50/1979 (7 April 1982) 10.2.

    [20] Ibid.

    [21] M Nowak, UN Covenant on Civil and Political Rights — CCPR Commentary (1993) 278 cited in Goodwin-Gill, above n 11, 195.

    [22] Ibid.

    [23] The Senate Inquiry (UNHCR) above n 4, 6, 7.

    [24] UNHCR Executive Comm Conclusion No 22 (XXXII), Protection of Asylum-Seekers in Situations of Large-Scale Influx, [57] UN Doc A/AC 96/601 (1981) (emphasis added).

    [25] Asylum and Immigration Act 1996 (UK).

    [26] Case No CIS 4439/98, Social Security Commissioner (UK) (25 November 1999).

    [27] Ibid.

    [28] A Edwards, ‘Tampering with Refugee Protection: The Case of Australia’ (2003) 15 International Journal of Refugee Law, 199.

    [29] The Senate Inquiry (DIMA) above n 4, 8.

    [30] Goodwin-Gill, above n 11, 222.

    [31] UNHCR Executive Committee Conclusion No. 44 (XXXVII) Detention of Refugees and Asylum-Seekers [b] UN Doc A/AC 96/688 (1986).

    [32] UNHCR, Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (February 1999), 3.

    [33] Ibid 4.

    [34] Ibid 6.

    [35] The Senate Inquiry (Australian Lawyers for Human Rights) above n 4, 28.

    [36] Human Rights Committee, A v Australia, UN Doc CCPR/C/59/D/560/1993 (3 April 1997).

    [37] Guy Goodwin-Gill, above n 11, 196.

    [38] UNHCR, the Guidelines, above n 32, 5–6.

    [39] The Senate Inquiry (DIMA) above n 4, 8.

    [40] UNHCR, the Guidelines, above n 32, 3.

    [41] Ibid.

    [42] Ibid.

    [43] The Senate Inquiry (Victorian Foundation for Survivors of Torture Inc) above n 4, 10.

    [44] UNHCR, the Guidelines, above n 32, 2.

    [45] The Senate Inquiry (HREOC) above n 4, 6,7.

    [46] UNHCR, the Guidelines, above n 32, 4.

    [47] Ibid 6.

    [48] The Senate Inquiry (Australian Lawyers for Human Rights) above n 4, 14.

    [49] ABC Radio, ‘Asylum seekers to be pushed offshore for processing’, PM,13 April 2006.

    [50] Convention on the Rights of the Child, opened for signatures 20 November 1989, (entered into force 2 September 1990).

    [51] The Senate Inquiry (HREOC) above n 4, 8.

    [52] The Senate Inquiry (Dr Jane McAdam) above n 4, 11; The Senate Inquiry (Mary Crock) above n 4, 11.

    [53] M Pallis, ‘Obligations of States towards Asylum Seekers at Sea’ (2002) 14 International Journal of Refugee Law, 346, 347.

    [54] Hathaway, above n 13, 408.

    [55] The Senate Inquiry (DIMA) above n 4, 5.

    [56] The Senate Inquiry (Dr Jane McAdam) above n 4, 13.

    [57] The Senate Inquiry (UNHCR) above n 4, 1,4,5.

    [58] The Senate Inquiry (Marion Le) above n 4, 5.

    [59] Senate Legal and Constitutional Committee, Parliament of Australia, Provisions of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (2006).

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