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

Australian asylum policies: have they violated the right to health of asylum seekers? 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 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. 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. 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. Moreover, national law cannot be invoked as a legitimate reason for failure to abide by a treaty. 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. 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. 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.” 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. 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. 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. 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. Asylum seekers, on the other hand, enter Australia via one of two pathways; 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). 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. ‘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. The health impact of Australia's asylum policies The 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. 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. For example, Steel and colleagues 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 comparative cross‐sectional study to investigate the impact of asylum policies on the mental health of refugees was published. 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. 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 Steel 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.” 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. 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. 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. 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, 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, 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. 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. In 2001, Harris and Telfer reported on an audit of 102 consecutive asylum seeker clients attending an asylum seeker clinic in Sydney. 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.” 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. 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 as does reference to clinical experience and other observations (e.g. by the Human Rights and Equal Opportunity Commission) 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. 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. 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). 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. 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’ 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, sense of control over life circumstances and family reunion. 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” 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. Taylor 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. 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. “Deliberately sacrificing the innocent in pursuit of the guilty cannot be a means proportionate to the aim” 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 anew life from its foundation in a foreign land. 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 Tarantola 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 health or if they have, many remain inherently suspicious of the utility of the ‘right to health’ framework. 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. 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” to a position whereby individuals can make legitimate rights claims; entitlements that States have legal obligations to uphold. 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. 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, 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, “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 violations 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. Mooney 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 submission 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, 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. Conclusion As 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,” 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. 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). In the EU, there are moves towards instituting such practices as standard practice. 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. Acknowledgements The 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). http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Australian and New Zealand Journal of Public Health Wiley

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

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Wiley
Copyright
© 2009 The Authors. Journal Compilation © 2009 Public Health Association of Australia
ISSN
1326-0200
eISSN
1753-6405
DOI
10.1111/j.1753-6405.2009.00336.x
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19236357
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Abstract

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 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. 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. 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. Moreover, national law cannot be invoked as a legitimate reason for failure to abide by a treaty. 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. 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. 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.” 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. 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. 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. 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. Asylum seekers, on the other hand, enter Australia via one of two pathways; 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). 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. ‘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. The health impact of Australia's asylum policies The 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. 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. For example, Steel and colleagues 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 comparative cross‐sectional study to investigate the impact of asylum policies on the mental health of refugees was published. 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. 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 Steel 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.” 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. 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. 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. 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, 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, 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. 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. In 2001, Harris and Telfer reported on an audit of 102 consecutive asylum seeker clients attending an asylum seeker clinic in Sydney. 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.” 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. 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 as does reference to clinical experience and other observations (e.g. by the Human Rights and Equal Opportunity Commission) 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. 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. 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). 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. 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’ 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, sense of control over life circumstances and family reunion. 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” 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. Taylor 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. 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. “Deliberately sacrificing the innocent in pursuit of the guilty cannot be a means proportionate to the aim” 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 anew life from its foundation in a foreign land. 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 Tarantola 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 health or if they have, many remain inherently suspicious of the utility of the ‘right to health’ framework. 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. 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” to a position whereby individuals can make legitimate rights claims; entitlements that States have legal obligations to uphold. 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. 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, 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, “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 violations 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. Mooney 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 submission 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, 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. Conclusion As 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,” 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. 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). In the EU, there are moves towards instituting such practices as standard practice. 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. Acknowledgements The 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).

Journal

Australian and New Zealand Journal of Public Health – Wiley

Published: Feb 1, 2009

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