australian asylum policies: have they violated the right to health of asylum seekers?
TRANSCRIPT
�0 AUSTRALIAN AND NEW ZEALAND JOURNAL OF PUBLIC HEALTH �009 vol. 33 no. 1© 2009 The Authors. Journal Compilation © 2009 Public Health Association of Australia
Australian asylum policies: have they violated
the right to health of asylum seekers?
Abstract
Objectives: Notwithstanding recent
migration policy amendments, there is
concern that Australian asylum policies
have disproportionately burdened the
health and wellbeing of onshore asylum
seekers. There may be a case to be made
that Australian governments have been
in violation of the right to health of this
population. The objective of this paper is to
critically examine these issues and assess
the implications for public health practice.
Methods: The author undertook a
review of the recent empirical literature
on the health effects of post-migration
stressors arising from Australian policies
of immigration detention, temporary
protection and the restriction of Medicare
to some asylum seekers. This evidence
was examined within the context of
Australia’s international law obligations.
Results: Findings reveal that Australian
asylum policies of detention, temporary
protection and the exclusion of some
asylum seekers from Medicare rights have
been associated with adverse mental
health outcomes for this population. This is
attributable to the impact of these policies
on accessing health care and the underlying
determinants of health for aslyum seekers.
Conclusion: It is arguable that Australian
Governments have been discriminating
against asylum seekers by withholding
access on the grounds of their migration
status, to health care and to the core
determinants of health in this context. In so
doing, Australia may have been in violation
of its obligation to respect the right to
health of this population.
Implications: While the ‘right to health’
framework has much to offer public health,
it is an undervalued and poorly understood
discipline. The author argues for more
education, research and advocacy around
the intersection between heath and human
rights.
Key words: human rights, refugees,
asylum seekers, mental health
Aust N Z Public Health. 2009; 33:40-6
doi: 10.1111/j.1753-6405.2009.00336.x
Submitted: May 2008 Revision requested: September 2008 Accepted: November 2008Correspondence to:Vanessa Johnston, Menzies School of Health Research, Charles Darwin University, PO Box 41096, Casuarina, Northern Territory, 0811. Fax: 08 89275187; e-mail: [email protected]
Vanessa JohnstonMenzies School of Health Research, Charles Darwin University, Northern Territory
Since its victory in the 2007 federal
election, the Australian Labor Party
has made sweeping and significant
amendments to migration policy in this
country. This comes after more than a
decade of increasingly restrictive policies,
implemented by successive governments,
which were specif ically intended to
discourage the entry of onshore asylum
seekers, that is, people who make an
application for refugee protection after their
arrival in Australia. The two most publicised
of these policies were immigration detention
of unauthoriserd asylum seekers (i.e. those
who enter without a valid visa) and the
granting of time-limited temporary visas to
unauthorised arrivals who were subsequently
found to be bone fide refugees.
Labor’s migration policy reforms began
in early 2008. First, in February, the newly
elected Government officially closed the
offshore processing facility for asylum
seekers on the small island of Nauru. This
effectively signalled an end to the ‘Pacific
Solution,’ a program established in 2001 by
the previous Howard government. Under this
program, all unauthorised asylum seekers
who were intending to travel to Australia,
but were intercepted outside our designated
migration zone, were diverted to one of a
few Pacific Island States. Here, their claims
were assessed outside Australia’s domestic
asylum system. Second, in May 2008, the
government announced the scrapping of the
temporary protection regime and a return to
the provision of permanent protection for all
refugees, regardless of their mode of arrival.
Finally, in July, the Minister for Immigration
announced a suite of changes to the practice
of immigration detention of asylum seekers,
which will see asylum seekers detained only
as a last resort (e.g. if they are shown to pose
a risk to the community) and for the least
practicable time. It should be noted that
unauthorised boat arrivals who arrive on
Australian territory but outside the migration
zone (e.g. Christmas Island) will still be
subject to mandatory detention for health,
identity and security checks.
These amendments were warmly
welcomed by refugee advocacy and human
rights groups and made international
headlines.1 Over the years, Australia’s
asylum policies, particularly detention
and temporary protection, have generated
significant controversy, both in Australia and
overseas. Indeed, refugee law and human
rights scholars have alleged that the level
of refugee protection in Australia has, over
recent years, been eroded so significantly as
to seriously challenge our international law
obligations.2-4 These accusations stemmed
principally from our perceived failure to
uphold the human rights of asylum seekers
under international human rights treaty law
(i.e. international conventions which have
established rules that must by implemented
by States that ratify them). Australia, like
other State Parties under treaty law, is bound
in good faith to uphold its obligations and
unless prescribed within a specific treaty,
such obligations are binding in respect
to the entire territory of a State Party.5
Moreover, national law cannot be invoked
as a legitimate reason for failure to abide
by a treaty.6
Asylum seekers Article
�009 vol. 33 no. 1 AUSTRALIAN AND NEW ZEALAND JOURNAL OF PUBLIC HEALTH �1© 2009 The Authors. Journal Compilation © 2009 Public Health Association of Australia
While human rights have traditionally been the purview of
lawyers, over the past decade or so, the development of a human
rights framework in public health has gained currency.7 Central to
this framework is the universal right of everyone to the enjoyment
of the highest attainable standard of health (otherwise known as
‘the right to health’). This right to health is derived from the dignity
of the human person and is codified in numerous international
human rights treaties but its central formulation is contained in
Article 12 of the International Covenant of Economic, Social and
Cultural Rights (ICESCR), of which Australia is a Party. Under
Article 12, non-citizens, are legally entitled to the right to the
highest attainable standard of health without discrimination.8
The right to health should not be understood as the right to
be healthy but rather it imposes legal obligations on States to
provide a “system of health protection which provides equality
of opportunity for people to enjoy the highest attainable level of
health.”9 Notwithstanding recent policy amendments, there is
concern that Australian asylum policies have disproportionately
burdened the health and wellbeing of onshore asylum seekers. As
such, there may be a case to be made that Australian governments
have been in violation of the right to health of this population. The
objective of this paper is to critically examine these issues and
assess the implications for public health practice.
Australian asylum policies Australia’s Humanitarian Program
In 1947, when Australia first agreed to receive an annual
resettlement quota, refugees entered Australia under the
government’s then ‘Displaced Persons’ program.10 The current
renamed ‘Humanitarian’ program, introduced in the 1970s, is
made up of two programs: an offshore resettlement program and
an onshore program for those who arrive on temporary visas or
without documentation and subsequently claim asylum.
The offshore program comprises the Refugee Program and
Special Humanitarian Program. The majority of people arriving
under the Refugee Program have been identified by the United
Nations High Commissioner for Refugees as being in need of
protection and are referred to Australia for a settlement place.11
Places under the Special Humanitarian Program are reserved
for people who may not necessarily fit the strict legal definition
of ‘refugee,’ but are nonetheless subject to gross violations of
their rights in refugee-like situations in their home country and
who are supported by Australian residents or Australian-based
organisations.11 Those entering Australia under the offshore
resettlement program are granted permanent residency and
unrestricted access to a wide range of government-funded
services, including Medicare, through the Integrated Humanitarian
Settlement Strategy.12
Asylum seekers, on the other hand, enter Australia via one of two
pathways;13 so-called ‘authorised arrivals’ enter on temporary visas
(e.g. student or visitor’s visa) and subsequently apply for asylum
while in Australia. They are generally permitted to remain in the
community while their application is processed. While waiting for
their refugee determination decision, they are given a ‘Bridging
Visa’. One class of Bridging Visa, the Bridging Visa E (BVE),
restricts work rights, income assistance and Medicare access to
asylum seekers. A BVE may be granted to asylum seekers living
in the community who: (i) have not applied for a protection visa
within 45 days of arrival in Australia; (ii) are appealing decisions
beyond the Refugee Review Tribunal (RRT) or (iii) were previously
released from immigration detention because of a special need
(e.g. such as mental or physical ill health).14 Some BVE holders
may be able to access financial and medical assistance through
the Asylum Seeker Assistance Scheme, operated through the Red
Cross. However, many do not meet the eligibility criteria. A few
states in Australia also provide some healthcare entitlements to
asylum seekers.15
‘Unauthorised arrivals’ do not have a visitor’s or resident’s
visa and usually cannot present valid documentation that allows
them to enter the country under domestic regulations. From the
early 1990s until this year, they were mandatorily confined to
one of Australia’s Immigration Detention Centres while their
refugee claims were being assessed. In 2005, the legislation
was amended to give the Minister for Immigration discretionary
power to release children and their families into community care.
Between 1999 and 2008, all unauthorised asylum seekers entering
Australia’s migration zone were granted a Temporary Protection
Visa (TPV), usually for three years duration, if successful during
the refugee determination process. Recipients of a TPV were
excluded from a range of federally funded benefits and services
that are automatically offered to humanitarian entrants whose
refugee status is determined offshore. Notably, these included full
employment and welfare assistance, free adult English language
tuition and family reunion provisions.16
The health impact of Australia’s asylum policiesThe health of asylum seekers and refugees needs to be
understood in the context of the circumstances of their flight,
past exposure to trauma and their current living situation.17 The
following discussion, however, will specifically focus on the health
effects of post-migration stressors arising from Australian policies
of immigration detention, temporary protection and the restriction
of Medicare to BVE asylum seekers.
There has been mounting evidence for the psychiatric harm
of Australia’s previous policy position of indefinite detention of
asylum seekers.18-21 For example, Steel and colleagues22 reported
that all adults and children in a near complete sample from one
language group (14 adults and 20 children) detained in a remote
detention facility met diagnostic criteria for at least one psychiatric
disorder, as assessed by structured telephone interviews using
standardised measures. Retrospective assessment indicated
that participants displayed a significant increase in psychiatric
morbidity subsequent to detention; for adults there was a threefold,
and in children, a tenfold increase in psychiatric disorder since
being detained. The authors noted that the prevalence rates
were significantly higher than those found in a general refugee
population who have not been in detention. In 2006, the first
Asylum seekers Right to health of asylum seekers
�� AUSTRALIAN AND NEW ZEALAND JOURNAL OF PUBLIC HEALTH �009 vol. 33 no. 1© 2009 The Authors. Journal Compilation © 2009 Public Health Association of Australia
comparative cross-sectional study to investigate the impact of
asylum policies on the mental health of refugees was published.23
It found that among 241 TPV and PHV holders, longer period of
detention was associated with more severe mental disturbance; an
effect that persisted for an average of three years after release.23 A
multilevel model which included age, gender, family clustering,
pre-migration trauma and length of residency demonstrated that
past immigration detention contributed independently to risk of
ongoing PTSD, depression and mental health-related disability.
In 2007, Silove, Austin and Steel24 published a systematic
narrative review on the impact of Australia’s mandatory detention
regime on the mental health of asylum seekers. The review
drew upon evidence presented to Commissions of Inquiry, the
observations of mental health professionals and from the small
body of systematic research that exists (described above). The
authors concluded that “the data from all sources converge in
demonstrating that prolonged detention has adverse mental health
and psychosocial impact on adults, families and children.”24 Poor
health outcomes were reported to be the result of a number of
possibly cumulative factors, including prolonged uncertainty,
exposure to stressful experiences (e.g. self-harm, riots) and
reduced access to health professionals.24
Until recently, most of the published evidence on the health
and social impacts of the TPV came from observational reports
compiled by health and welfare professionals, case studies and
some structured qualitative research. Findings were consistent
and suggested a high prevalence of psychosocial distress among
TPV holders in Australia. Restricted access to settlement
services combined with the persistent uncertainty about their
residency status impacted negatively on their integration into the
community.25,26 Specifically, qualitative research demonstrated
that psychosocial factors, most notably social isolation and a lack
of control over life circumstances appeared to be salient in the
experience of TPV holders and may have been associated with poor
health outcomes.26,27 In the comparative cross-sectional study by
Steel and colleagues cited above, temporary visa status, in addition
to previous detention, contributed to risk of ongoing post-traumatic
stress disorder (PTSD) and depressive symptoms among Iraqi
refugees in Sydney. In a similar study conducted with Persian-
speaking refugees,28 TPV status was the strongest predictor of
anxiety, depression and post-traumatic stress disorder. Multivariate
analyses suggested that, for TPV holders, experience of past
stresses in detention in Australia and ongoing living difficulties
after release contributed to adverse psychiatric outcomes. Further
to these studies, Johnston,29 reporting on a mixed-methods study
of 130 Iraqi refugees in Melbourne, found that TPV refugees
suffered a higher prevalence of symptoms consistent with clinical
depression, higher mean psychological distress and lower sense of
wellbeing, compared with PHV refugees. Temporary visa status
was a significant determinant of psychological distress among
Iraqi refugees in Melbourne, after controlling for gender, age
and marital status. The qualitative research with TPV holders in
this study highlighted the pervasive and detrimental effects of
uncertainty, powerlessness and a loss of agency over the direction
of their lives, which began during the period they spent in detention
and was reinforced when they entered the community as a result
of their ‘temporary’ status. Those who were separated from family
bore an additional burden of guilt, lack of social support and for
some; irreparable breakdown of the family unit.
Early survey research which included Medicare-ineligible
asylum seekers found that among a sample of 196 Tamil migrants
(62 asylum seekers and 134 permanent residents), asylum seekers
reported statistically significant higher mean scores on a culturally
robust measure of symptoms of depression and anxiety, compared
with Tamil refugees and migrants.30 A bivariate median split was
used to assign subjects to ‘high’ and ‘low’ depression categories. A
subsequent logistic regression analysis (controlling for age) found
an odds ration of 3.8 (95% CI, 1.85-7.91) for asylum-seekers being
assigned to the ‘high’ depression category compared to immigrants
(there was no statistically significant difference compared with
refugees). Additionally, asylum seekers experienced significantly
more difficulties than refugees and immigrants in accessing
medical, dental and welfare services.31 In 2001, Harris and Telfer
reported on an audit of 102 consecutive asylum seeker clients
attending an asylum seeker clinic in Sydney.32 The most common
presenting complaint was psychological and several clients
reported having difficulties paying for medications. A Victorian
study of 111 asylum seeker cases in 2003 found that one quarter
of cases reported they had been refused medical treatment due to
“their lack of status, funds or eligibility for medical assistance.”33
Most recently, a retrospective file audit of all clients who attended
three Melbourne pro-bono asylum seeker health clinics in 2005/06
was conducted, which included close to 1,000 consultations.14 This
audit revealed that over 80% of attendees did not have access to
Medicare and therefore were limited to receiving medical care
from these clinics, which were established specifically for this
group but were poorly resourced as they operated outside the
mainstream health sector. These clients had complex health needs,
with approximately 20% of consultations involving four or more
presenting health problems. Notably, a substantial number of
asylum seekers presented with psychological (rate 26.5 per 100
encounters; 95% CI, 23.3–29.6) and social problems. The main
reason for presentation was to access free prescriptions, as BVE
holders struggled to afford medications, which would ordinarily
be subsidised by the Pharmaceutical Benefits Scheme through
the Medicare system.
Australian asylum policies in the context of the right to health
The research outlined above is limited by relatively small sample
sizes and non-random sampling frames applied in the context of
small and dispersed minority groups. Moreover, in these studies
there is a risk that asylum seekers may exaggerate their plight in
the anticipation that this might assist them in future protection
claims. While such sources of bias cannot be discounted, the
consistency of the data across studies and different ethnic groups
strengthens the argument that such biases are not overwhelming
Johnston Article
�009 vol. 33 no. 1 AUSTRALIAN AND NEW ZEALAND JOURNAL OF PUBLIC HEALTH �3© 2009 The Authors. Journal Compilation © 2009 Public Health Association of Australia
as does reference to clinical experience18 and other observations
(e.g. by the Human Rights and Equal Opportunity Commission)34
concerning the plight of asylum seekers in Australia. Findings
from the research to date reveal that Australian asylum policies of
detention, temporary protection and the exclusion of BVE asylum
seekers from work and Medicare rights have been associated with
adverse health outcomes (particularly, mental health) for this
population. This begs the question – have Australian governments,
through the implementation of these specific asylum policies, been
in violation of the right to health of asylum seekers? To answer
this question, it is important to fully sketch out what the ‘right to
health’ means.
As already indicated, the burgeoning area of health and human
rights has, in reality, a short history. It was only in the 1990s,
in the context of the global HIV epidemic, that the relationship
between health and human rights began to be the subject of close
examination. And it was not until 2002 that an authoritative
analysis of the right to health emerged when the Committee on
Economic, Social and Cultural Rights adopted General Comment
14, “The right to the highest attainable standard of health,” a
key document in advancing our understanding of the normative
content and obligations contained in the right to health.35 In
2002, a United Nations Special Rapporteur was appointed to
help States and others to better promote and protect the right to
the highest attainable standard of health. The Special Rapporteur
undertakes country missions, communicates with States regarding
alleged violations of human right to health and submits annual
reports on his work to the Human Rights Council and the General
Assembly.36
Importantly, General Comment 14 explicitly states that the right
to health is not limited to the right to health care but extends to
the core determinants of health that exist within our respective
social, economic and political environments. This recognises an
ever increasing volume of evidence that supports the fact that
population health is not just a matter of ‘good medicine’ but
more a result of a whole range of necessary social conditions;
both socio-economic (e.g. adequate income, education) and
psychosocial (e.g. social support, sense of control over one’s
life).37 What constitutes a violation on the part of a State of the
obligation to respect the right to health is set out in paragraph 50
of the General Comment:
“…policies or laws that contravene the standards set out in
Article 12 of the Covenant and are likely to result in…unnecessary
morbidity…Examples include…the adoption of laws or policies
that interfere with the enjoyment of any of the component of the
right to health.”
Cogniscant of the financial constraints in less developed regions
of the world, the right is expressly subject to both progressive
realisation (i.e. States must take concrete steps towards the
fulfillment of the right) and resource availability.8 However, some
obligations under the right to health must be given immediate
effect regardless, such as the right to non-discrimination in access
to health care and the underlying determinants of health. This is
described in paragraph 18 of the General Comment. Non-nationals
fall under the umbrella of ‘other status’4 within the definition of
discrimination outlined here:
“The Covenant proscribes any discrimination in access to health
care and underlying determinants of health as well as means and
entitlements for their procurement, on the grounds of race, colour
… or other status, which has the intention or effect of nullifying or
impairing the equal enjoyment or exercise of the right to health.”
It is well known that the specific determinants of the psychological
wellbeing of refugees in the post-migration period include,
among other things, accessible health care, social support,38,39
sense of control over life circumstances40 and family reunion.41,42
It is arguable that Australian governments have discriminated
against asylum seekers, by withholding access, on the grounds
of their migration status, to the “means and entitlements for [the]
procurement”43 of health care (in the case of BVE holders) and
important determinants of health. Specifically, in this context,
these determinants include the security and sense of control that
comes with knowing that one will not spend an uncertain period
inside secure detention or be sent back to a situation where one’s
life may be in danger, as well as the sense of social support and
comfort that is attached to being reunited with family and playing
an active, contributing role in the community.
It must be noted that the principle of non-discrimination does
not necessitate that all individuals be treated identically. Indeed,
differential treatment of nationals and non-nationals does not
violate the principle of non-discrimination but only if the criteria
for such differentiation are reasonable and objective and if this aim
is to achieve a purpose that is legitimate.44 Taylor4 argues that the
goal of restricting entitlements to BVE holders was to discourage
abusive refugee protection claimants – arguably, this was also one
of the goals of detention and temporary protection. This then begs
the question: is this is a legitimate aim and is the means employed
proportionate to the aim (thereby making it reasonable)?
Of the several thousand unauthorised asylum seekers who arrived
by boat in Australia between 1999 and 2001, more than 90% (around
9,000) were found to be bone fide refugees; these figures serve to
undermine the purpose of the legislation.45 Notably, the proportion
of asylum seekers in the community (e.g. BVE holders) who are
successful in their claim for refugee status is far less but even so,
these policies not only effect ‘abusive’ claimants; but bone fide
ones as well.4 “Deliberately sacrificing the innocent in pursuit of
the guilty cannot be a means proportionate to the aim”4 because it is
incompatible with the moral basis of human rights law that requires
that every human being be treated as an end and not a means.
Moreover, it is arguable that the adverse health effects of these policies
(including for children) have disproportionately outweighed the
potential positive benefits to the community arising from them.
The General Comment also specifically requires States not
to discriminate (either directly or indirectly) against the most
vulnerable and marginalised in the community. Refugees fall under
this category by virtue of their pre-migration experiences that led
them to flee their home countries but also because of the multitude
of post-migration stressors that are associated with starting a new
life from its foundation in a foreign land.
Asylum seekers Right to health of asylum seekers
�� AUSTRALIAN AND NEW ZEALAND JOURNAL OF PUBLIC HEALTH �009 vol. 33 no. 1© 2009 The Authors. Journal Compilation © 2009 Public Health Association of Australia
Because of the reasons outlined above, it is arguable that
Australian governments have unfairly discriminated against
asylum seekers and in so doing have violated their obligation to
respect the ‘right to health’ of onshore asylum seekers (and those
who went on to become refugees under the temporary protection
regime).
Additionally, the principle of progressive realisation also
implies that, except under very limited circumstances, States must
maintain at least the present level of enjoyment of the right to the
highest attainable standard of health (known as the principle of
‘non-retrogression’). Australian governments during the 1990s
applied retrogressive measure to the right to health of asylum
seekers and refugees, through the introduction of detention,
temporary protection and Medicare restrictions to BVE holders.
Public health and the ‘right to health’Gruskin and Tarantola7,35 argue that “public health and human
rights each recognise the ultimate responsibility of governments
to create the enabling conditions necessary for people to make
choices, cope with the changing patterns of vulnerability and keep
themselves and their families healthy.” Certainly, public health
has a history of reflecting on the interconnection between health
and human rights, as evidenced in the Declaration of Alma-Ata,
which affirms all people’s right to the highest attainable standard of
health. However, as indicated recently by the Special Rapporteur,
very few professionals have heard of the right to health46 or if they
have, many remain inherently suspicious of the utility of the ‘right
to health’ framework.47 This is a shame, as the core objectives of
public heath stand to benefit greatly from the discipline of human
rights.
Notably, the ‘right to health’ framework supports improving the
health of communities through robust systems of health practice,
premised on the principles of participation, equity and non-
discrimination, arguably a core public health aim. What it adds
is the reinforcement of best practice in public health with legal
obligation and accountability.48 Using such a framework means
that government action, for example, to remediate discrimination
of minority groups (which effect the enjoyment of such groups to
the right to health), moves from the “voluntary realms of charity,
ethics and solidarity”49 to a position whereby individuals can
make legitimate rights claims; entitlements that States have legal
obligations to uphold.50 Given this, what are the implications of
incorporating the right to health framework into public health
practice?
Importantly, all professional bodies responsible for training and
developing health staff should integrate human rights education
and training at all levels, with a specific focus on health-related
rights. National human rights institutions, such as the Australian
Human Rights Commission, could potentially be engaged in such
education. National health professional associations should also
raise awareness about the intersection between rights and health
among their members. This is under way in some jurisdictions.
For example, the British Medical Association recently released a
‘toolkit’ for health professionals on the right to health.51
Additionally, a right to health framework has implications
for public health research; namely, rights violations can be
used as a starting point for assessing health outcomes among
marginalised populations. While the measurement and health
effects of some gross rights violations of rights, such as torture,
is well-established,52,53 measuring the health effects of other rights
violations (especially those rights that are more distal determinants
of health) has not been well-explored. Yet, as Burris and colleagues
rightly argue,54 “law may be an enormously important pathway
along which social structure becomes health destiny in individual
lives.” More research is required to uncover unrecognised burdens
on health and wellbeing that arise from human rights violations7
and to identify the pathways by which violations become embodied
as poor health outcomes.
Finally, public health and medical professionals have an
important role to play in advocating for the interdependence of
health and human rights and for advancing the right to health.
Rights are immensely powerful in their symbolism – they speak
to a universally recognised language of moral values and they can
be used to mobilise change. Mooney55 has argued that the public
health profession has a responsibility to engage in “advocacy for
debate to inform and question and attempt to establish a more
deliberative society and democracy.” This could equally apply to
advocating for a greater debate and discourse on human rights
in Australia. There are examples locally where this is beginning
to happen. Notably, the Public Health Association of Australia
(PHAA) referred to health as a human right in its submission56
to the National Inquiry into Children in Immigration Detention,
released in 2004. Similarly, the significant momentum of the
‘Close the Gap’ campaign was sparked by the 2005 Social Justice
Report,57 that outlined a human-rights based approach to ending
health inequalities between Indigenous and non-Indigenous
Australians. Importantly, the public health community, led by
the PHAA should be lobbying the federal Government to reverse
the policy of restricting Medicare entitlements to some asylum
seekers, especially in light of recent policy amendments.
ConclusionAs this paper has sought to demonstrate, it is increasingly
apparent that policies that violate human rights are associated with
adverse health outcomes. As such, despite sometimes vocal claims
to the contrary “human rights [do] matter,”58 not only because of
the moral principles they aspire to uphold, but also because of
the significant interconnection between rights and public health.
Australian asylum policies have been (and in the case of Medicare-
ineligible asylum seekers, continue to be) in violation of the right
to health of asylum seekers and Australian governments, past and
present, must be accountable for this course of action and the
ensuing health consequences.
Labor’s recent changes to mandatory detention and temporary
protection of refugees are to be commended. The Government
should be urged to continue on the path to reform to fully comply
with its obligation to respect the right to health of asylum seekers.
Johnston Article
�009 vol. 33 no. 1 AUSTRALIAN AND NEW ZEALAND JOURNAL OF PUBLIC HEALTH ��© 2009 The Authors. Journal Compilation © 2009 Public Health Association of Australia
Specifically, this entails extending the new detention arrangements
to all Australian centres (including those located in the excised
migration zone) and to provide all asylum seekers with universal
health care access.
Internationally, detention of asylum seekers and temporary
protection are already used to varying degrees in the US and across
some countries in the European Union (EU).59-61 In the EU, there
are moves towards instituting such practices as standard practice.62
The Australian experience, notably the deleterious health effects
arising from policies which violate the right to health of asylum
seekers, should give pause to other countries wishing to follow
Australia’s example.
AcknowledgementsThe author would like to gratefully acknowledge Dr. Helen Potts
and Professor Pascale Allotey for helpful comments on an earlier
draft of this paper. This research was supported by an Australian
National and Medical Research Council PhD Scholarship (N.
251782) and Victorian Health Promotion Foundation research
grant (No. 2002-0280).
References1. Johnston T. Australia announces changes on asylum seekers. The New York
Times. 2008 July 30.2. Edwards A. Tampering with refugee protection: the case of Australia.
International Journal of Refugee Law. 2003;15(2):192-211.3. Dunn K, Howard J. Reaching behind iron bars: challenges to the detention of
asylum seekers. An Australian Review of Public Affairs. 2003;4(1):45-64.4. Taylor S. Do on-shore asylum seekers have economic and social rights? Dealing
with the moral contradiction of liberal democracy. Melbourne Journal of International Law. 2000;1(1):70-97.
5. Goodwin-Gill G. Refugees and their Human Rights [working paper on the Internet]. Oxford (UK): Refugee Studies Centre; 2004 [cited 2005 27 December]. Refugees Studies Programme Working Paper No.17. Available from: http://www.rsc.ox.ac.uk/PDFs/workingpaper17.pdf
6. The Vienna Convention on the Law of Treaties. Opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980). Article 27 Internal Law and Observance of Treaties.
7. Gruskin S, Tarantola D. Health and human rights. In: Gruskin S, Grodin MA, Annas GJ, Marks SP, editors. Perspectives on Health and Human Rights. New York (NY): Routledge; 2005. p. 3-58.
8. Hunt P. The human right to the highest attainable standard of health: new opportunities and challenges. Trans R Soc Trop Med Hyg. 2006;100:602-7.
9. Committee on Economic, Social and Cultural Rights. The Right to the Highest Attainable Standard of Health (Article 12 of the Covenant) [8, 11, 12] UN Doc E/C.12/2000/4 (General Comment No. 14.) Geneva (CHE): United Nations Human Rights; 2000.
10. Markovic M. Under the Sun of a Foreign Sky: Resettlement of Immigrant Women from the Former Yugoslav Republics. Brisbane (AUST): University of Queensland; 1999.
11. DIMA. Fact Sheet 60: Australia’s Refugee and Humanitarian Program. Canberra (AUST): Department of Immigration and Multicultural Affairs; 2005.
12. Department of Immigration and Citizenship. Fact Sheet 66: Integrated Humanitarian Settlement Strategy. Canberra (AUST): DIAC; 2007.
13. Smith MM. Asylum seekers in Australia. Med J Aust. 2001;175(11-12): 587-9.
14. Correa-Velez I, Johnston V, Kirk J, Ferdinand A. Community-based asylum seekers’ use of primary health care services in Melbourne. Med J Aust. 2008;188(6):344-8.
15. Human Rights and Equal Opportunity Commission [homepage on the Internet]. Sydney (AUST): HREOC; 2008 [cited 2008 September 18]. The Impact of bridging Visas Restrictions on Human Rights. Available from: http://www.hreoc.gov.au/Human_Rights/immigration/
16. Piper M. Temporary protection visa holders: current issues and future concerns. Migration Action. 2000;22(3):21-5.
17. Burnett A, Peel M. Asylum seekers and refugees in Britain. The health of survivors of torture and organised violence. BMJ. 2001;322(7286):606-9.
18. Steel Z. Summary Evidence Regarding the Psychological Damage Caused by long Term Detention [advocacy page on the Internet]. Melbourne (AUST): The Royal Australian College of General Practitioners; 2002 [cited 2006 28 August]. Available from: http://www.racgp.org.au/
19. Steel Z, Silove DM. The mental health implications of detaining asylum seekers. Med J Aust. 2001;175(11-12):596-9.
20. Silove D. The asylum debacle in Australia: a challenge for psychiatry. Aust N Z J Psychiatry. 2002;36(3):290-6.
21. Silove D, Steel Z, Watters C. Policies of deterrence and the mental health of asylum seekers. JAMA. 2000;284(5):604-11.
22. Steel Z, Momartin S, Bateman C, Hafshejani A, Silove D. Psychiatric status of asylum seekers held for a protracted period in a remote detention centre in Australia. Aust N Z J Public Health. 2004;28(6):527-35.
23. Steel Z, Silove D, Brooks R, Momartin S, Alzuhairi B, Susljik I. Impact of immigration detention and temporary protection on the mental health of refugees. Br J Psychiatry. 2006;188:58-64.
24. Silove D, Austin P, Steel Z. No refuge from terror: the impact of detention on the mental health of trauma-affected refugees seeking asylum in Australia. Transcult Psychiatry. 2007;44(3):359-93.
25. Mann R. Temporary Protection Visa Holders in Queensland. Brisbane (AUST): Multicultural Affairs, Department of the Premier and Cabinet, State Government of Queensland; 2001.
26. Marston G. Temporary Protection, Permanent Uncertainty. The Experience of Refugees Living on Temporary Protection Visas. Melbourne (AUST): Centre for Applied Social Research RMIT University; 2003.
27. Mansouri F, Cauchi S. The psychological impact of extended temporary protection. Refuge. 2006;23(2):81-95.
28. Momartin S, Steel Z, Coello M, Aroche J, Silove DM, Brooks R. A comparison of the mental health of refugees with temporary versus permanent visas. Med J Aust. 2006;185(7):367-1.
29. Johnston V. The Health Impact of Human Rights Violations in the Context of Australian Asylum Policies. Melbourne (AUST): The University of Melbourne; 2007.
30. Silove D, Steel Z, McGorry P, Mohan P. Trauma exposure, postmigration stressors, and symptoms of anxiety, depression and post-traumatic stress in Tamil asylum-seekers: comparison with refugees and immigrants. Acta Psychiatr Scand. 1998;97(3):175-81.
31. Silove D, Steel Z, McGorry P, Drobny J. Problems Tamil asylum seekers encounter in accessing health and welfare services in Australia. Soc Sci Med. 1999;49(7):951-6.
32. Harris MF, Telfer BL. The health needs of asylum seekers living in the community. Med J Aust. 2001;175(11-12):589-92.
33. Mitchell G, Kirsner S. Asylum seekers living in the Australian community: A casework and reception approach, Asylum Seeker Project, Hotham Mission, Melbourne. Refuge. 2004;22(1):119-28.
34. Human Rights and Equal Opportunity Commission. A Last Resort? National Inquiry into Children in Detention. Sydney (AUST): HREOC; 2004.
35. Potts H. Human Rights in Public Health: Rhetoric, Reality and Reconciliation. Melbourne (AUST): Monash University; 2006.
36. Human Rights Centre [report on the Internet]. Colchester (UK): University of Essex; 2008 September 30 [cited 2008 16 October]. The Special Rapporteur’s UN Reports. Available from: http://www2.essex.ac.uk/human_rights_centre/rth/reports.shtm
37. Berkman LF, Kawachi I, editors. Social Epidemiology. New York (NY): Oxford University Press; 2000.
38. Brewin CR, Andrews B, Valentine JD. Meta-analysis of risk factors for posttraumatic stress disorder in trauma-exposed adults. J Consult Clin Psychol. 2000;68(5):748-66.
39. Gorst-Unsworth C, Goldenberg E. Psychological sequelae of torture and organised violence suffered by refugees from Iraq. Trauma related factors compared with social factors in exile. Br J Psychiatry. 1998;172(1):90-4.
40. Sundquist J. Refugees, labour migrants and psychological distress. A population-based study of 338 Latin-American refugees, 161 south European and 396 Finnish labour migrants, and 996 Swedish age-, sex- and education-matched controls. Soc Psychiatry Psychiatr Epidemiol. 1994;29(1):20-4.
41. Hauff E, Vaglum P. Organised violence and the stress of exile. Predictors of mental health in a community cohort of Vietnamese refugees three years after resettlement. Br J Psychiatry. 1995;166(3):360-7.
42. Rousseau C, Mekki-Berrada A, Moreau S. Trauma and extended separation from family among Latin American and African refugees in Montreal. Psychiatry: Interpersonal and Biological Processes. 2001;64(1):40-59.
43. Committee on Economic, Social and Cultural Rights [general comments page on the Internet]. Geneva (CHE): United Nations; 2000 [cited 2005 5 May]. The Right to the Highest Attainable Standard of Health: 11/08/2000. E/C.12/2000/4. (General Comments). Available from: http://www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4.En?OpenDocument
44. Office of the High Commissioner for Human Rights. General Comment No. 18: Non-discrimination: 10/11/89. CCPR General Comment No. 18. (General
Asylum seekers Right to health of asylum seekers
�� AUSTRALIAN AND NEW ZEALAND JOURNAL OF PUBLIC HEALTH �009 vol. 33 no. 1© 2009 The Authors. Journal Compilation © 2009 Public Health Association of Australia
Comments) Non-discrimination (Thirty-seventh session, 1989). Geneva (CHE): United Nations; 2001. para. 12.
45. Brotherhood of St Laurence. Closing the Gap for TPV Refugees in Victoria: A State-wide Action Plan. Melbourne (AUST): Ecumenical Migration Centre, BSL; 2005.
46. Hunt P. Progress and Obstacles to the Health and Human Rights Movement, in Addition to Cases on the Right to Health and Other Health-related Rights [report on the Internet]. Colchester (UK): University of Essex;. 2007 [cited 2008 September 16]; (A/HRC/4/28). Available from: http://www2.essex.ac.uk/human_rights_centre/rth/reports.shtm
47. Gray N, Bailie R. Can human rights discourse improve the health of Indigenous Australians? Aust N Z J Public Health. 2006;30(5):448-52.
48. Hunt P, Backman G. Health systems and the right to the highest attainable standard of health. Health Hum Rights. 2008;10(1):81-92.
49. Braveman P, Gruskin S. Poverty, equity, human rights and health. Bull World Health Organ. 2003;81(7):539-45.
50. Hunt P. Neglected Diseases, Social Justice and Human Rights: Some Preliminary Observations [working paper on the Internet]. Geneva (CHE): World Health Organization; 2003 [cited 2006 September 9]. Health and Human Rights Working Paper Series No. 4. Available from: http://www.who.int/hhr/information/papers/en/index.html
51. Asher J, Hamm D, Sheather J. The Right to Health: A Toolkit for Health Professionals. London (UK): British Medical Association; 2007.
52. Mollica RF, Donelan K, Tor S, Lavelle J, Elias C, Frankel M, et al. The effect of trauma and confinement on functional health and mental health status of Cambodians living in Thailand-Cambodia border camps. JAMA. 1993;270(5):581-6.
53. Mollica RF, McInnes K, Poole C, Tor S. Dose effect relationships of trauma to symptoms of depression and post-traumatic stress disorder among Cambodian survivors of mass violence. Br J Psychiatry. 1998;173:482-8.
Johnston Article
54. Burris S, Kawachi I, Sarat A. Integrating law and social epidemiology. The Journal of Law, Medicine and Ethics. 2002;30(4):510-489.
55. Mooney G. Public health, political morality and compassion. Aust N Z J Public Health. 2002;26(3):201-2.
56. Public Health Association. National Inquiry into Children in Immigration Detention [submission page on the Internet]. Canberra (AUST): PHAA; 2002 [cited 2008 September 4]. Available from: http://www.phaa.net.au/documents/int_health_sig_child_detention.pdf
57. Human Rights and Equal Opportunity Commission. Close the Gap: National Indigenous Health Equality Targets. Sydney (AUST): HREOC; 2008.
58. Robinson M. Making human rights matter: Eleanor Roosevelt’s time has come Harvard Human Rights J. 2003;16:1-12.
59. Physicians for Human Rights [homepage on the Internet]. Cambridge (MA): PHR; 2003 [cited 2006 8 August]. From Persecution to Prison: The Health Consequences of Detention of Asylum Seekers. Available from: http://physiciansforhumanrights.org/library/report-persprison.html
60. Welch M, Schuster L. Detention of asylum seekers in the US, UK, France, Germany, and Italy: a critical view of the globalizing culture of control. Criminology and Criminal Justice. 2005;5(4):331-55.
61. European Council on Refugees and Exiles [homepage on the Internet]. Brussels (BEL): ECRE; 1997 [cited 2006 November 11]. Observations of the European Council on Refugees and Exiles on the European Commission’s Draft Directive on Temporary Protection and Responsibility Sharing. Available from: http://www.ecre.org/node/246
62. Hatton TJ. European asylum policy. National Institute Economic Review. 2005(194):106-19.