To stop boat deaths, abolish carrier sanctions and let asylum seekers travel by plane

By Asher Hirsch | 08 Dec 16

On a recent episode of Q&A, Professor Jane McAdam argued for the abolishment of “carrier sanctions”. Unfortunately, the director of the Andrew and Renata Kaldor Centre for International and Refugee Law at the University of NSW didn’t get time to elaborate. So what are carrier sanctions, and how to do they stop asylum seekers coming by air?

Professor McAdam advocated reframing the discussion around refugees away from security and detention, and in favour of facilitating “safe, lawful pathways for people … who are desperately in need of assistance.”

Carrier sanctions are financial penalties imposed upon airlines and ships that transport passengers who do not have a visa to enter. Australia is the only country in the world to impose a universal visa requirement on non-citizens. This means that all people who wish to enter Australia must obtain a visa prior to entering.

Every airline that flies to Australia must check if their passengers have a valid visa by processing their data through the Advanced Passenger Processing system. 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.

Australia is the only country in the world to impose a universal visa requirement on non-citizens.

While carrier sanctions are not applied only to transporting refugees, they disproportionally affect refugees seeking protection. Carrier sanctions are part of a broader effort by states to prevent entry to would-be asylum seekers – what scholars call “non-entrée policies”. While states owe refugees within their territory rights under international law, they have installed a range of barriers beyond their territory to ensure that refugees can’t enter and claim these rights.

Australia leads the world in the extraterritorialisation of migration control. But as a consequence, Australia’s 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 works to prevent this safe route, generating demand for people smugglers and more dangerous journeys.

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 tonnes of ship’s tonnage or did not guarantee payment by the Chinese passengers of an arrival tax of £10. Shortly after Federation, amendments were made in 1905 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.

One way to prevent dangerous journeys is to allow asylum seekers to get on planes.

Today carrier sanctions are contained in the Migration Act 1958 (Cth), which makes it a criminal offence to transport a non-citizen to Australia without a valid visa. Section 229 provides that where a “non-citizen” enters Australia and does not hold a valid visa, ” master, owner, agent, charterer and operator of a vessel” each commit an offence and is liable to a fine of 100 penalty units (currently $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. La Trobe University legal academic Dr Savitri 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 is likely to eventually outweigh any humanitarian concern.

To assist airlines to meet their carrier obligations under migration law, Australia has developed a range of practices, including the deployment of immigration offices known as Airline Liaison Officers in certain “high-risk” countries and the development of significant surveillance and monitoring databases, including biometric scanning.

Carrier sanctions not only push immigration controls beyond the borders of Australia, they also privatise them. No longer are state officials responsible for border management, employees of private commercial airlines now decide if a person has the right to cross the border.

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 by ending carrier sanctions.