In an age of globalisation and securitisation, many States have attempted to restrict access to asylum through a range of extraterritorial measures that seek to prevent asylum seekers from reaching territorial borders in order to apply for protection. States which have signed the Refugees Convention owe refugees in their territory and under their jurisdiction certain rights. Yet in an attempt to escape their legal obligations, States have increasingly pushed their borders beyond their territories, where legal rights are harder to assert.
Australia leads the world in the extraterritorialisation of migration control. However, rather than controlling migration, these policies have forced those who seek protection to use irregular, unauthorised and dangerous pathways to find safety. One way to prevent these dangerous journeys is to allow asylum seekers to get on planes. Unfortunately, Australia’s use of carrier sanctions work to prevent this safe route, generating demand for people smugglers and more dangerous journeys.
Carrier sanctions are financial penalties imposed upon airlines and ships that transport passengers who do not hold the relevant permission to enter the country. By requiring carriers to check that passengers have authorisation to enter a country prior to embarking, carriers effectively become border officials, controlling migration at the point of departure. While carrier sanctions are not only applied to refugees, they disproportionally affect refugees seeking protection.
Australia is the only country in the world to impose a universal visa requirement on non-citizens. From the refugee perspective, carrier sanctions work together with universal visa requirements to inhibit entry and access to asylum procedures for those who would otherwise be entitled to protection.
Australia was perhaps the first country to implement carrier sanctions. The colony of Victoria introduced the Act to Make Provision for Certain Immigrants 1855 which placed financial penalties on an owner, charterer or master of ship if they carried more than one Chinese migrant for every 10 tons of ship’s tonnage or did not guarantee payment by the Chinese passengers of an arrival tax of £10. Shortly after federation in 1905, amendments were made to the Immigration Restriction Act 1901 (Cth) which placed a fine of £100 upon ship owners, masters, agents and charterers for each prohibited immigrant (those who failed the dictation test) they carried. As intended, this had the result of significantly reducing the embarkation of non-White passengers.
Today the Migration Act 1958 (Cth) makes it an offence of to transport a non-citizen to Australia without a visa or documentation. Section 232 provides that where a ‘non-citizen’ enters Australia and does not hold a visa, ‘the master, owner, agent and charterer of the vessel are each taken to commit an offence against this Act punishable by a fine not exceeding 100 penalty units [$18,000].’
In addition, Airlines are responsible for the costs of removing passengers from Australia if they are refused entry after arrival.
To make it explicitly clear that carrier sanctions apply even to those with genuine protection claims, section 228B(2) provides:
…a non-citizen includes a reference to a non-citizen seeking protection or asylum (however described), whether or not Australia has, or may have, protection obligations in respect of the non-citizen because the non-citizen is or may be a refugee, or for any other reason.
Thus carrier sanctions will apply even if the non-citizen is found to be a refugee, in contrast to other countries. Taylor notes that carrier sanctions have succeeded in reducing the number of asylum seekers arriving by air:
The fear of having their profit margin eroded by such penalties is supposed to encourage carriers to deny passage to Australia to those who are inadequately or irregularly documented. The fact that the number of infringement notices actually served on carriers has been dropping markedly from year to year indicates that sanctions have had their intended effect.
Carriers are unlikely to be sympathetic to the claims of refugees seeking to board, and even if they are, they do not have adequate expertise to assess refugee claims before departure. Even for those who are sympathetic, the financial impact of carrier sanctions would eventually outweigh any humanitarian concern.
Carrier sanctions not only extraterritorialise immigration controls, they also privatise them. No longer are State officials responsible for border management, private commercial entities now decide if a person has the right to cross the border. This makes asserting legal rights such as non-refoulement increasingly difficult, successfully deterring many potential legal challenges.
In order to assist States meet their carrier obligations, Australia has developed a range of practices, including the deployment of Airline Liaison Officers in certain ‘high-risk’ countries and the development of significant surveillance and monitoring databases.
If refugees aren’t able to take a plane, they are forced to seek asylum by other unauthorised, irregular and dangerous ways to find safety. If we are serious about stopping the boats, let’s look at allowing people to get on planes.