17
„No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected
without his free consent to medical or scientific experimentation. 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.‟ Detaining refugees in this treatment may be widely considered as unlawful under
the ICCPR, and may also constitute a penalty for illegal entry as prohibited under the Refugees Convention.
42
B. John Howard’s ‘Pacific Solution’ in 2001
1. The Tampa Case
The arrival by boat of asylum seekers on Australian territory is not a new phenomenon. The first arrival occurred in 1976, and it brought at least 111 asylum
seekers in the aftermath of the Vietnam War.
43
Ever since, the Australians use the term „boat people‟ to address asylum seekers who arrive by boat to Australia.
44
In the following waves, more people from Vietnam, Cambodia, and Southern China
came ashore. Australia under the Prime Minister Malcom Fraser received the „boat people‟ flow from Vietnam gladly. Between 1976 and 1982, more than 2000
Vietnamese boat people were resettled in Australia.
45
They were not detained in a camp and were issued a temporary protection visa.
41
International Covenant on Civil and Political Rights. United Nations Human Rights. December 16, 1966. Available at: http:www.ohchr.orgenprofessionalinterestpagesccpr.aspx. Accessed in the 11th of
December 2014.
42
The Pacific Solution: Assesing Australia‟s Compliance with International Law. Bond University Student Law Review. January 3, 2007. Available at: http:epublications.bond.edu.aubuslrvol3iss11, accessed in
the 3
rd
of September 2014.
43
Boat Arrivals in Australia since 1976. Parliament of Australia. July 23, 2013. Available at: http:www.aph.gov.auAbout_ParliamentParliamentary_DepartmentsParliamentary_LibrarypubsBN2012
-2013BoatArrivals, accessed in the 3
rd
of September 2014.
44
Ibid.
45
Migration Policy Institute. July 11, 2012. Available at: http:www.migrationpolicy.orgarticleaustralias- boat-people-asylum-challenges-and-two-decades-policy-experimentation, accessed in the 16
th
of October 2014.
18
The governments good treatment of the Vietnamese boat people was a golden period of Australias immigration history.
46
In the 1970‟s, Australia displayed its welcoming humanitarian treatment to refugees. Australia had three
facilities as immigration detention centers, in Sydney, Perth and Melbourne.
47
The facilities were adequate for basic protection and refugee processing occurred
efficiently. This resulted in a change of Australia‟s treatment on refugees after 1992.
48
It was due to the number of boat arrivals increased between November 1989 and January 1992.
49
The „boat people‟ issue then became a serious concern not only in terms of the lack of control over Australia‟s borders, but also of whether the
arrivals were „genuine refugees.‟
50
The anxiety continued and drove Australia to establish „mandatory detention‟ in 1992.
51
In 1993, the Parliament extended the application of mandatory detention to all persons whose arrived without visas or
who were in Australia on an expired or cancelled visa.
52
Unfortunately, this Act continues to influence asylum seeker policy until today.
The most intriguing „boat people‟ arrival issue was the case of Tampa. It occurred on August 26, 2001, when Indonesian fishing vessel Palapa sunk on its
46
Ibid.
47
Ibid.
48
Boat Arrivals in Australia since 1976. Parliament of Australia. July 23, 2013. Available at: http:www.aph.gov.auAbout_ParliamentParliamentary_DepartmentsParliamentary_LibrarypubsBN2011
-2012BoatArrivals, accessed in the 16
th
of 2014.
49
Australia‟s Immigration Detention Policy and Practice. Australia Human Rights Commission. Available at: https:www.humanrights.gov.aupublicationslast-resort-national-inquiry-children-immigration-detention6-
australias-immigration, accessed in the 16
th
of October 2014
50
Malcolm Frasers Response to Commercial Refugee Voyages. ECU Publications Pre. 2011. Available at: http:ro.ecu.edu.aucgiviewcontent.cgi?article=7219context=ecuworks. Accessed in the 25th of December
2014.
51
Boat Arrivals in Australia since 1976. Parliament of Australia. July 23, 2013. Available at: http:www.aph.gov.auAbout_ParliamentParliamentary_DepartmentsParliamentary_LibrarypubsBN2011
-2012BoatArrivals, accessed in the 16th of 2014.
52
Ibid.
