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Protection for victims of torture

By Jane McAdam - posted Wednesday, 27 January 2010

In September 2009, the Federal Government introduced a Bill into Parliament to extend Australia’s refugee protection framework to others fleeing serious human rights violations. In doing so, the Migration Amendment (Complementary Protection) Bill 2009 implements Australia’s obligations under a number of international treaties that prevent the return of people who risk being arbitrarily deprived of their life, including through the imposition of the death penalty, as well as to people who face a substantial risk of torture or other cruel, inhuman or degrading treatment or punishment.

This is a welcome and long-awaited outcome which follows numerous recommendations in parliamentary and UN reports that Australia adopt a system of “complementary protection” - protection that is complementary to Australia’s obligations under the Refugee Convention, based on its expanded non-refoulement (non-removal) obligations under human rights law.

The introduction of complementary protection finally brings Australian legislation into line with comparable provisions in the European Union, Canada, the United States and New Zealand, not to mention international law. It is also worth noting that regional treaties in Latin America and Africa extend protection to a wider concept of “refugee” than is applied in Australia.


The absence of a codified system of complementary protection in Australia has meant that for many years, Australia has been unable to guarantee that people who face serious human rights abuses if returned to their country of origin or habitual residence, but who do not meet the refugee definition, will be permitted to stay and will be granted a legal status. There has been no mechanism for having claims based on a fear of return to torture, a threat to life, or a risk of cruel, inhuman or degrading treatment or punishment assessed, except via the “public interest” power of the Minister for Immigration and Citizenship under section 417 of the Migration Act 1958 (Cth). This is a cumbersome, unpredictable and lengthy process, which can only be invoked once a person has been denied refugee status by the Immigration Department and subsequently the Refugee Review Tribunal.

Furthermore, whether or not a section 417 claim is even considered by the Minister, and whether or not a visa to remain in Australia is granted, is wholly discretionary and non-reviewable. (This option remains open for people who wish to remain in Australia on purely compassionate or humanitarian grounds.)

The changes proposed by the Bill are therefore very important because they codify Australia’s international protection obligations and create a mechanism by which people can articulate their protection claims at the outset. Furthermore, they ensure that every protection applicant who does not meet the refugee definition (well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership of a particular social group) automatically has his or her claim assessed against Australia’s non-refoulement obligations under international human rights law, and, if found to have a protection need, is granted the same legal status as a Convention refugee.

People who are regarded as representing a security threat to Australia (who would, if they were refugees, be caught by the exclusion provisions in the Refugee Convention) are not eligible for a protection visa on the complementary protection grounds. However, because the prohibition on removal to torture and the other specified grounds is absolute, with no exceptions, such people cannot be returned home.

The way the Bill deals with this is to refer such cases to the Minister to personally determine the outcome. Most other domestic legislation in other countries does not adequately deal with this issue either: while there is recognition that people cannot be returned to the harm they fear, there is no consistent practice on how they are subsequently treated. At a bare minimum, there is a requirement that Australia does not, in the way it deals with such people, subject them to inhuman or degrading treatment. Keeping them in detention or on rolling temporary visas with minimal rights would arguably breach this duty.

The final form of the legislation is yet to be determined. Although the Bill was rushed through Parliament and a Senate Committee Inquiry - which cited its reporting deadline as an excuse for not adequately investigating certain concerns that had been raised in numerous submissions - it has not yet made it back on to Parliament’s agenda.


A number of small but important amendments would make the Bill much more workable, better facilitate its protective purpose, and sit more comfortably with international and comparative law.

As it currently stands, it makes the Australian system of complementary protection is far more complicated, convoluted and introverted than it needs to be. This is because it conflates tests drawn from international and comparative law, formulates them in a manner that risks marginalising an extensive international jurisprudence on which Australian decision-makers could (and ought to) draw, and in turn risks isolating Australian decision-making at a time when greater harmonisation is being sought.

Since the purpose of the Bill is to implement Australia’s international human rights obligations based on the expanded principle of non-refoulement, it seems only sensible and appropriate that Australian legislation reflect the language and interpretation of these obligations as closely as possible. This would also enhance the international value of Australian complementary protection jurisprudence.

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First published in The Gilbert + Tobin Centre of Public Law Newsletter, January 2010.

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About the Author

Dr Jane McAdam is an Associate Professor in the Faculty of Law at the University of NSW. She is also the Director of International Law Programs, the Director of International Moots, and the Director of the International Refugee and Migration Law project at the Gilbert + Tobin Centre of Public Law. She is a Research Associate at the University of Oxford’s Refugee Studies Centre, and has also been the Director of Oxford’s International Summer School in Forced Migration. She previously taught in the Faculty of Law at the University of Sydney, and at Lincoln College at the University of Oxford, where she obtained her doctorate.

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