Complementary protection

For 60 years the Refugee Convention has provided the framework for protecting people forced to flee their homelands in fear of persecution because of their race, religion, nationality, political opinion or membership of a particular social group, and who are unable to secure protection from their own government. The international community has recognised that it has a responsibility to such people and confers refugee status on those who meet the definition set out in the Refugee Convention.

When the Refugee Convention was drafted, it was intended to assist particular groups affected by the events in Europe during World War II. The definition in the Convention has, however, proved durable and sufficiently flexible to be able to respond to many of the geo-political changes that have taken place in the last 60 years and the validity of the Convention as a protection tool was reaffirmed by a Ministerial Meeting of States Parties in December 2001. It is important to acknowledge, however, that the Refugee Convention is not and was never intended to be a mechanism to cover all people in need of protection.

The specificity of the definition in the Refugee Convention is such that it does not extend to many people who have protection needs that are widely recognised. It does not, for example, encompass all people who:

• come from a country enveloped in civil war;
• have been subject to gross violations of their human rights for non-Convention reasons;
• would face torture on return to their country;
• come from a country where the rule of law and order no longer applies.

In order to provide the necessary protection for such persons and ensure compliance with the non-refoulement obligations recognised in Customary International Law, a variety of protection mechanisms have evolved to complement the protection afforded by the Refugee Convention.

Complementary protection in Australia

After more than eight years of lobbying by RCOA and other agencies, the Australian Parliament is reviewing legislation to introduce a system of complementary protection, to consider the needs of people facing persecution on grounds which fall outside the Refugee Convention but are included in other human rights treaties. The Refugee Convention restricts protection to people facing persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion.

Under current arrangements, there is no clear process for people who may face persecution, torture or death on other grounds – other than to seek the intervention of the Immigration Minister after all other avenues have failed. On September 7, the Rudd Government introduced the Migration Amendment (Complementary Protection) Bill 2009, to address Australia’s responsibilities under the Convention Against Torture, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. RCOA has written to all Federal MPs and Senators, encouraging them to support the Bill.
 
The Senate Legal and Constitutional Affairs Committee has conducted an inquiry into the Bill. RCOA has lodged a submission, expressing support for the Bill and outlining some recommended improvements (see our Submissions page). Information about the Senate Committee inquiry, including all public submissions can be found at www.aph.gov.au/senate/committee/legcon_ctte/migration_complementary/index.htm.

In 2004, RCOA together with Amnesty International and the National Council of Churches of Australia released a paper entitled Complementary Protection: The Way Ahead (see our Research Reports page) The paper which considers how the international community responds to people in need of protection who fall outside the refugee definition and compares this to Australian practice. It then points out the deficiencies in current Australian practice and suggests a model that, if implemented, would ensure that Australian practice is fair, transparent, timely, efficient and legally defensible.