17 September 2011

Shameful - Australia throws out Refugees Convention

Original post edited to take into account 19 September amendment

The proposed legislation for amending the Migration Act to make it possible for the Australian government to "virtually" push back asylum seeker boats is a shameful document. That shame falls on the politicians who have proposed it and the public servants who drafted it.

See the text of the Amendment bill published on 19 September.

The only criterion that the Minister need apply in deciding to send asylum seekers to a particular country is "the national interest". This has been amended from an earlier draft which referred to the "public" interest. In considering the national interest, the Minister "must have regard to" whether or not the country has given Australia certain assurances about not sending the person on to another country where their life or freedom would be threatened due to their race, religion, nationality, membership of a particular social group or political opinion, and will make or permit to be made an assessment of whether the person is a refugee under the Convention. The Minister may also take into account other factors.

That's fine, then, isn't it? Well, the Bill goes on to say that the above assurances "need not be legally binding". Sort of like a promise with your fingers crossed behind your back, in effect.

There is also that slippery legal expression "must have regard to...". That doesn't mean the Minister can't still send someone to a country that has given no such assurances, or perhaps has given them in the past but not complied with them, so long as the Minister still thinks it is in the "national interest" to do so. Like the previous term "public interest", there is no clear legal definition of what that means.

Australia's obligations to refugees are contained in the Refugees Convention Article 33. There is no mention of the public or national interest in that article. The national interest of the receiving country is not a consideration in throwing back asylum seekers at the border. Using it as a criterion is therefore a direct repudiation of the Convention. Full stop.

Nor is there anything in Article 33 that says that Australia can outsource its protection obligations. The Bill contains a section headed "Reasons for Subdivision" which is one of those peculiar pieces of modern legal drafting that is supposed to make it clear what the intention of Parliament is. People smuggling, we are told, is a "major regional problem", as are its "undesirable consequences including the resulting loss of life at sea". No argument there. Then it goes on to explain that Parliament thinks that the Minister should have the power to decide which countries should be designated for the purpose of sending "offshore entry persons" to them, even if Australia has or may have protection obligations towards those persons under the Convention. So what are these OEPs? Elsewhere the Act defines them as, in effect, people trying to get to Australia to seek protection under the Convention but who get caught before they make it to the mainland and are taken to an "excised offshore place", which is a part of Australia where the usual rules about applying for visas don't apply to.... people taken there for the purpose of not allowing them to apply for a visa.

It is a masterpiece of circular logic. Section 36 of the Migration Act says that there must be a visa for people who are in need of protection under the Convention. Section 46A however says that offshore entry persons can't apply for a visa in Australia. So we have created this visa to comply with our obligations under the Convention, good little international citizens that we are, but the people most in need of it can't apply for it. Instead, we pack them off to some place that has, maybe, given us a non-binding "assurance" that they will take them off our hands. This is not what Article 33 requires us to do.

Article 33 is the heart of the Convention. If Australia no longer applies it, then Australia can no longer be considered a State Party to the Convention.

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