AN AUSTRALIAN FRAMEWORK FOR ENSURING PROTECTION IN HUMANITARIAN EMERGENCIES

Regina Jefferies and Jane McAdam

October 2024

Recent debates about how states should respond to the conflict in Gaza have brought to the fore Australia’s ad hoc and differential approach to humanitarian emergencies. In a crisis, moving away from danger is a natural and rational human response. However, people’s ability to move is often hampered by a variety of intersecting factors, including resources and social networks; discrimination and other compounding barriers; and – crucially – the inability to access documentation such as a passport or visa.

Our recently published Kaldor Centre Policy Brief, Ensuring Protection in Humanitarian Emergencies: A Framework for Australia, addresses the need for an evidence-based emergency protection framework that centres equity, predictability and effectiveness, while de-prioritising politics. The Policy Brief sets out recommendations for a holistic approach that includes visas, access to supports and services, and a framework for evacuating people from danger. These recommendations are informed by Australia’s practices over time, and comparative practices internationally.

Problems with the current framework

Australia lacks an overarching humanitarian emergency decision-making framework to respond to conflicts, disasters or other declared humanitarian crises overseas. This has resulted in ad hoc, differential and politicised approaches – including widely varying visa types – which are not well-coordinated across the various organisations that provide support once displaced people arrive in Australia. This piecemeal response also fails to recognise explicitly that some people in humanitarian emergencies face systemic, intersectional discrimination and barriers which place them at heightened risk.

Four recent conflicts in Afghanistan (2021–), Ukraine (2022–), Sudan (2023–) and Gaza (2023–) illustrate this variability. For example, Ukrainians were encouraged to apply for visitor visas to reach Australia as an emergency measure and were subsequently provided with the opportunity to apply for a Temporary (Humanitarian Concern) Visa. However, no such process was created for people fleeing the conflicts in Gaza or Sudan. Although some people from Gaza and Sudan were granted visitor visas, there were high numbers of visitor visa refusals for people from Gaza. Furthermore, even where people were granted temporary humanitarian visas once in Australia, those grants were discretionary and      came with very different access to supports (such as health care and social security). They also often prevented people from lodging another visa application while in Australia and did not provide a pathway to a durable solution.

An equitable emergency protection framework

Establishing an equitable and streamlined framework first requires recognition of the fact that people experience humanitarian emergencies differently – both on account of individual circumstances and structural barriers and discrimination. Secondly, any framework must provide for meaningful multisectoral engagement, planning and coordination – including with affected communities and refugee-led organisations – across the entire process from evacuation to reception, as well as support while in Australia. Implementation of the framework must also centre trauma-informed approaches that recognise and promote people’s dignity, agency and human rights.

Creating a transparent, overarching decision-making framework that could be triggered upon the declaration of a ‘humanitarian emergency’ would provide a more equitable and objective basis for responses. What constitutes such an emergency would be guided by international best practice and be flexible enough to respond to a range of circumstances, including conflicts, disasters and other situations where people’s lives are at risk unless immediate action is taken. The framework would provide a ready-made plan to be activated according to established criteria, rather than defaulting to ad hoc, inequitable and politicised approaches.

While visas (discussed below) are a precondition for entry into Australia, a critical part of any humanitarian response requires ensuring that people can physically move away from danger, which may demand evacuations. In such cases, immigration requirements must be kept to a minimum (for example identity and security checks) to ensure that people can move quickly out of dangerous and often traumatising situations. If necessary, evacuees could be transferred initially to third countries or to temporary accommodation facilities in Australia while health, biometric and security checks are completed. They should have access to support services to assist with housing, health care (for both physical and mental health), education, employment, language and cultural support, and be assisted to move into communities within Australia as soon as possible. Host communities may also require additional support and should be engaged in the planning process.

The Australian Government should further ensure that people are granted emergency visas to facilitate entry to, and protection in, Australia when a humanitarian emergency is declared. The visas should automatically permit an initial stay of at least 12 months (to provide immediate relief and time to assess conditions in the country of origin), with a pathway to permanent stay if it is not safe, possible or otherwise desirable for individuals to return home. The significant negative mental health effects of insecure temporary visa frameworks are well documented and should be avoided. Visas should also provide immediate access to services, including health care and social security, as well as work and study rights. People from affected countries who are already in Australia when a humanitarian emergency is declared should receive automatic visa extensions.

If it is still unsafe for people to return home when the initial visa period ends, then people must have a pathway to permanency in Australia. Even if people take up permanent residency, they may ultimately still wish to return home when it is safe to do so. Returns should otherwise not be considered unless there has been a fundamental change in the circumstances that resulted in the declaration of the humanitarian emergency. In all cases, returns must be voluntary, and individuals who fear persecution or other serious harm must be able to apply for refugee status or complementary protection in Australia.

Dr Regina Jefferies is a lawyer and Laureate Postdoctoral Fellow at the Evacuations Research Hub at the Kaldor Centre for International Refugee Law, UNSW Sydney. She specialises in international human rights law and international refugee law, with a focus on transnational legal theory, the law of State responsibility, and the application of international legal norms in transboundary and multi-jurisdictional settings.

Professor Jane McAdam AO is Scientia Professor of Law and the Founding Director of the Kaldor Centre for International Refugee Law at UNSW Sydney, where she leads the Evacuations Research Hub. She holds a prestigious Australian Research Council Laureate Fellowship and is also a Fellow of the Academy of the Social Sciences in Australia, a Fellow of the Australian Academy of Law and an Honorary Associate of the Refugee Studies Centre at the University of Oxford. Professor McAdam publishes widely in international refugee law and forced migration, with a particular focus on mobility in the context of climate change and disasters.

https://www.unsw.edu.au/kaldor-centre/our-research/evacuations-research-hub