australian asylum policies: have they violated the right to health of asylum seekers?

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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 2008 Correspondence 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 Johnston Menzies School of Health Research, Charles Darwin University, Northern Territory S ince 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 specifically 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

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Page 1: Australian asylum policies: have they violated the right to health of asylum seekers?

�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

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�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

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�� 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

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�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

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�� 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

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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).

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