All Being Equal: Our Legal Obligations To Asylum Seekers

Savitri Taylor is Associate Professor in the La Trobe Law School, where her research focusses on refugee law and policy. In this episode she outlines our obligations as a nation toward asylum seekers and refugees, and what it means when we don’t fulfil them. In conversation with Bernadette McSherry.

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Bernadette McSherry
Hello and welcome to All Being Equal. I’m Bernadette McSherry, the director of the Melbourne Social Equity Institute, which supports interdisciplinary research across the University of Melbourne which aims to ameliorate disadvantage. Today’s podcast focuses on researcher relating to asylum seekers and refugees.

The Social Equity Institute supports a number of research projects relating to citizenship and diversity, and we’ve set up a lecture series for asylum seekers in collaboration with the University of Melbourne’s Refugee Studies Program. So first up let’s clarify who we’re talking about. An asylum seeker is a person who has fled his or her own country and applied for protection as a refugee.

The United Nations refugee convention defines a refugee as a person who is outside his or her own country and is unable or unwilling to return due to a well-founded fear of being persecuted because of race, religion, nationality, as a member of a particular social group or having a particular political opinion. Asylum seekers and refugees flee their country for their own safety and can’t return unless the situation that forced them to leave improves. Migrants on the other hand choose to leave their home country, choose where to go and when they might return. Australia has international obligations to protect the human rights of all asylum seekers and refugees who arrive, regardless of how or where they arrive and whether they arrive with or without a visa.

To find out more about these obligations I’m speaking with Dr Savitri Taylor from La Trobe University, who is currently a visitor at our institute. Savitri is an expert in refugee law and asylum policy at the national, regional and international level, and is a member of the management committee of the refugee and immigration legal centre in Victoria, and an individual member of the Asia pacific refugee rights network. Welcome to All Being Equal Savitri.

I know you’ve been doing some research looking at how best to improve refugee protection In the Asia-Pacific region -can you tell us a bit about that?

Savitri Taylor
Okay well, I start with a problem and the problem as you’ve said in your introduction is that asylum seekers and refugees flee their country for their own safety. Most of them actually flee to neighbouring countries in the first instance, and most of them stay in those countries. That’s why the two top host countries in our region are Pakistan, which has over 1.5 million refugees and asylum seekers, or had that number at the end of 2014, which are the latest statistics that are available. Then there is Iran, which is second, with 980,000 asylum seekers and refugees. And in fact if you look at raw numbers, or you look at numbers compared to land area, or you look at numbers compared to a country’s GDP, what you’ll find is that some countries in our region are barely far more of the hosting burden than others. So from the perspective of the overburdened countries that’s a fairness problem

Now I’m not too fussed about equity between states actually, but what I care about is the impacts of that inequitable distribution of refugees and asylum seekers. What impact that has on refugees themselves. So most countries in our region think they’re doing pretty well by just tolerating the unauthorised entry and presence of refugees and asylum seekers, but they’re not prepared to do anything more.

So refugees and asylum seekers in these countries don’t have the right to work, they don’t have any other means of support, they can’t educated their kids, basically they can’t survive let alone thrive. A lot of them are mistreated by local populations, and government authorities, and that’s basically going to be their situation for the rest of their lives unless they’re able to return to their own country, which is – these situations which made them feel can be quite protracted sometimes, often. Or the other way that their situation might be resolved is if they end up being part of the lucky 1% that gets resettled somewhere else. So it’s not surprising that some of these people take matters into their own hands and they keep moving irregularly from country to country, trying to find a place where they will have protection.

Some of them, as you know, try to travel to Australia. But Australian governments of all political persuasions have decided that they’re not prepared to copy that, so they’ve worked out all these ways to stop asylum seekers from getting here, but they haven’t been all that fussed about what happens to the people that they’ve stopped from getting here. So in other words, this is a rather long winded way of saying this, we do actually have a problem in our region of inadequate protection being available to refugees and asylum seekers but regional governments are not all that interested in fixing the protection problem, all they’re interested in fixing is the problems created for them by refugees and asylum seekers trying to help themselves when nobody is helping them.

So you’re saying the source issues are, we really should be focussing on that, what are the drivers for people seeking refuge, as opposed to border protection, we’ll try to keep people out as much as possible. The regional solution would be to look at the source issue is that what you’re saying.

All of the above. We need to obviously work on root causes. And we need to then also work out what the issues might be for people as they move through from country to country and whether there’s ways in which they could be better protected without having to keep on moving. So whether that’s, you know, being given the right to work, being given the right to send their children to school, just things that enable them to make a life. All of those things need to be dealt with but it costs a lot of money. It will all stabilise populations, which is the language that the department of immigration used to use, it will mean that fewer people move, but unless you can solve the problems of the world you can’t stop everybody moving. And you need an awful lot of investment over an awful lot of item in order to really tackle the reasons why people move, rather than trying to just stop their movement.

So governments decide the way to win elections is to stop people moving, not to really get down to addressing the reasons why they move. A lot of my research has been looking how can governments be persuaded to be more protection sensitive. Can protection gains be made through existing regional processes such as the Bali process, or through ASEAN institutions, how exactly could those games be made, or maybe is it better to focus on global institutions, on national institutions, rather than regional institutions, if governments can’t be persuaded to step up is there anything that civil society can do to improve protections without government buy-in, and so on, and so on. I’m at the stage of having a lot of questions but not a lot of answers. I’ve got a heap of answers that would work in an ideal world, but if we lived in an ideal world, there wouldn’t be any refugees and asylum seekers in the first place.

So the answers I’m trying to find are ones that would work in the real world. That’s still a work in progress, though I am managing to publish a few of my thoughts along the way.

Well it is an incredibly complex problem and we know through our research institutes that one way of approaching a complex problem is to cross disciplines – to put together interdisciplinary research teams and so on. You’re looking at this very complex issue from the perspective from a legal background – would you describe your work as interdisciplinary as such?

Yes I would, for exactly the reason that you said – that when you’re interested in dealing with real world problems you often can’t fix it by looking at it through the lens of just one discipline. I’m a lawyer by formal training but law is never enough on its own to fix any problems. So because of the nature of the problems I’ve been thinking about I’ve trained myself up in disciplines like political science and international relations, and I’ve drawn on them as well as law in what I write.

Sometimes that makes more sense to work with people who are formally trained in the disciplines relevant to the problem, so I’ve worked with an anthropologist, I’ve worked with critical accountants, I’m working with a historian. I’m thinking about working with an economist, thought they speak a very different language. Basically my approve is to ask myself ‘what are the intellectual tools that might be useful in dealing with this problem, and then either equip myself with those tools or working partnership with other people who already have those tools. There’s all sorts of difficulties working across disciplines but as you say, if you’re dealing with a complex problem that’s the only way to go about it.

Now you mentioned your legal background, and I know you work with different legal organisations, and it seems from the legal perspective there are enormous implications as to how asylum seekers and refugees are being treated at present. Lawyers often talk about the rule of law and how this may be breaching the rule of law. Can you maybe explain what that means and why we should be concerned about it.

Okay well as you just said, lawyers talk about the rule of law. There’s actually a distinction between the law and the rule of law. So any pronouncement by recognised source of law made in accordance with recognised law-making procedures is law regardless of content. So for example there’s a bill before federal parliament now called the Good Order Bill – that’s the short name. The long name is Migration Amendment (Maintaining the Good Order of Migration Detention Facilities) Bill 2015. That’s why everyone calls it the Good Order Bill, or the Use of Force Bill, because if that bill becomes an act, guards in immigration detention centres will for all intents and purposes be able to use force even lethal force against detainees with complete impunity.

Now if the Good Order Bill is passed it will be law, but it won’t be consistent with the rule of law. Because at the heart of most rule of law theories is the idea that every action of government must be justified by and testable against pre-existing law.

So history has taught us that it’s never a good idea to place trust in the benign intention of government, it’s much better to have mechanisms that force accountability on them. And then also most rule of law theories incorporate a defence against arbitrary government action, by requiring that laws must as far as possible be generally applicable. You can’t treat all people exactly the same but what you need to be able to say is that any differential treatment of people has legitimate aim and that difference in treatment is proportionate to the aim.

I think many of the laws we now have that are targeted at, for example, unauthorised maritime arrivals, don’t pass that test. A lot of people don’t think that’s a problem because it isn’t something that affects them, but what they don’t realise is that there’s no logical stopping place. They may not be unlucky enough to be part of an out group today but who knows what the future holds. If the principle of equal protection of the law stops being sacrosanct then no one can count on being safe from government victimisation in the long run.

So you’ve said that you have lots of questions.


Not so many answers, but do you get a feeling that there may be a shift in people’s attitudes, maybe people are questioning the way we’re going about border protection and so on? I’m interested to know what your feeling is about the general public as such, their views.

Well I obviously hope that it is possible to shift public attitudes. One sees every so often that public attitudes do get shifted. The difficult part is obtaining sustainable shifts in attitude that last the distance despite what things might happen. You know, that freak people out a bit, or whatever.

And you know there’s cause for hope out there, in the sense  for instance, the marriage equality issue – things can reach a tipping point, a society that has one attitude can over time change to adopt another attitude. The hard part is working out how you get there. You know there’s a lot of hope because there’s a lot of people out there that are trying in all the ways that they can to bring about that shift in attitude. But it’s really hard to charge how much of a wholesale shift has occurred. Because we all talk with people who think the same way we do right.

Well we hope that your very important work Savitri does perhaps push perspectives in a little bit more of an optimistic way. Dr Savitri Taylor thank-you very much for joining us on All Being Equal.


All Being Equal is recorded at the Horwood Recording Studios at the University of Melbourne. Thanks to producer Gary Dickson and audio engineer Gavin Nebauer. Subscribe on iTunes to make sure you never miss an episode. I’m Bernadette McSherry, thanks for listening.