It was inevitable that a government looking for a high-profile announcement on asylum seekers, not to mention a solution to the vexing problem of a massive influx of maritime arrivals, would eventually focus on the UN Refugee Convention.
The government hasn’t outlined exactly what changes it wants to pursue on the convention, but as others including former foreign minister Alexander Downer have noted, the process of achieving any actual change is likely to take a very long time, and is thus no solution to the current problem of people dying on boats trying to reach Australia.
An announcement, however, offer a political solution for Labor in western Sydney particularly.
Like a lot of aspects of the asylum seeker problem, the UN convention is viewed wildly differently depending on which side of the issue you come from. For many on the Left, the UN convention is holy writ which may as well have been brought down by Moses, and anything that even smacks on being inconsistent with it is evidence of Australia’s innate racism. The most minor changes to migration law are routinely attacked as “inconsistent with the Refugee Convention”, even when the UNHCR says otherwise.
But for some on the Right, the Refugee Convention is an outdated relic, somehow preventing Australia from responding effectively to the problem of refugees, a treaty that was all very well at the start of the Cold War when the only refugees were acceptable types like Europeans, but now exploited by people from developing countries to conduct a peaceful invasion of the West.
In fact the convention is neither the source of all wisdom on refugees nor a profound evil. It’s an international treaty, and like all such documents, it’s the product of its time, reflective of the international environment that produced it, and likely to require revision as that environment changes. The most significant criticism is that it legitimises irregular arrival, and thereby implicitly establishes two classes of refugees, those who can (or can afford to) reach signatory countries, and those who can’t.
But the convention hasn’t stopped Australia from returning large numbers of illegal economic immigrants from Sri Lanka — now well over 1000 in recent months — or establishing a no-advantage test in its administration of asylum seeker arrivals, in which your arrival in Australia by boat doesn’t afford you any advantage, notionally, over someone stuck in a transit camp in Pakistan who has applied for resettlement through the UNHCR. The problem with the no-advantage test is that it has failed to deter maritime arrivals, not that the Refugee Convention limited it.
But adherence to the convention is hardly any safeguard of asylum-seeker rights; nor does it guarantee decent treatment of asylum seekers. China, for example, is a signatory to the convention but routinely returns North Koreans fleeing the world’s most brutally oppressive state. Australia could continue to be one of the world’s biggest resettlers of refugees — particularly after then-immigration minister Chris Bowen massively boosted our humanitarian intake to 20,000 per year — and continue to consider claims of asylum seekers fairly and with compassion without any involvement with the convention at all. Even if it were not a signatory to the convention, who apart from outright racists would insist Australia automatically return any arrival to their country of origin without appropriate consideration of asylum claims?
As long as Australia isn’t going to do that, we’ll remain a potential destination for those fleeing persecution, signatory or not, tow-back policy or not, because the alternative is waiting years for resettlement in transit camps. We can only make it more difficult to come by boat, and easier to arrive under UNHCR auspices and with a humanitarian visa. So far our attempt to do that hasn’t worked, and fiddling with the convention won’t change that.
It might, though, generate the sort of Daily Telegraph headlines that Labor wants to see in western Sydney, and that’s the real goal at the moment.
Massively boosted the humanitarian intake to 20,000? It hasn’t been done and 20,000 is nothing at all.
Jordan is getting more refugees than that every week without whining.
WE don’t get to set arbitrary numbers of people we might consider desperate enough to help you know Bernard, if you want to write about refugee law go and learn it.
We have zero right to stop anyone coming by sea and the Sri Lankans we sent home were not illegal economic migrants, this is not the US.
They were forced home on false documents without being allowed to make a claim for anything.
The fact of the matter is that australia signed and later ratified the 1951 Convention Relating to the Status of Refugees. For more than half a century that convention has been the touchstone of Australia’s international obligations.
It is a further fact that the policy of the present government is in breach of the Convention and its related obligations under the 1984 Convention Against Torture and the 2006 Convention for the Protection of Persons from Enforced Disappearance (again both ratified by Australia).
The 1951 Convention contains specific prohibitions against refoulment, i.e. the expulsion, extradition, deportation, removal, informal transfer, edition, rejection, refusal of admission or any other reason that would result in compelling the person to remain in the country of origin.
The Foreign Minister purports to have the right to return refugees on the grounds that they are “economic migrants”. They may well be in some cases, although the figures suggest that applies to a very small minority. But whether they are “economic refugees” or not, they are entitled to the determination of their status by a fair and impartial process with the right of judicial review. A few questions by a government employee at the point of entry does not qualify. This basic principle has been recognised by, inter alia, the UN High Commission for Refugees Handbook, (1992) the International Law Association (2002) and the International Criminal court in the Sadio Diallo case (2010).
Although the Convention is more than 60 years old it is highly relevant to modern refugee situation as a unanimous decision of the European Court of Human Rights (14 Judges) confirmed earlier this year in the Hirsi Jamaa & others v Italy case.
Parties to the Convention, including Australia, do not have exemption rights to these obligations, irrespective of the political slogans of the government or Coalition, or the electoral expediency of those political parties.
Australia does not do itself or the rule of law any credit by its ducking and weaving over its plain international obligations. It would also be useful to bear in mind that as difficult an issue as it plainly is, Australia is the recipient of only a tiny fraction of the world’s refugees. It would also be useful to bear in mind that Australia’s foreign policies, at least from the Vietnam War onwards have borne no little responsibility for the creation of refugee pressures. Afghanistan, Iraq and Syria are only the latest examples of the inevitable consequence of illegal invasions of sovereign nations and the destruction of their civil society that is an inevitable concomitant of such invasions.
The Magna Carta is over 800 years old, let’s chuck 800 years of common law away as well shall we Bernard.
You need to read what the cross party parliamentary committee on human rights said about the silly expert panel nonsense.
http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=humanrights_ctte%2Freports%2F2013%2F9_2013%2Findex.htm
They literally dismissed the report with three sentences:
The evidence that this approach will work is not yet supported by any
downward trend in boat arrivals. While the committee is sympathetic to the view
that this is still a ‘work in progress’, it is not the committee’s role to assess on a
hypothetical basis whether implementation of the Expert Panel’s recommendations
in their entirety at some point in the future would satisfactorily meet Australia’s
human rights obligations. On the basis of the evidence before it, the committee
considers that the measures as currently implemented carry a significant risk of
being incompatible with a range of human rights. To the extent that some of those
rights may be limited, the committee considers that the reasonableness and
proportionality of those limitations have not been clearly demonstrated”
There you see Bernard, in a few sentences at the end of a well written and measured report on our own law they dismissed the three silly old fools with three sentences.
We don’t make law based on hypotheticals ever.
And this is what I said about them in my submission to the committee on the dirty Malaysia trading deal.
The most astonishing thing about this so-called expert panel is that none of the members are experts on refugees.
Mr Aristotle sold his soul to the government when he took the job on the weirdly named Independent advisory committee on detention under Philip Ruddock, a committee that did not write a single report, make a single recommendation public or help a single refugee to be released from prison.
Mr Houston was chief of navy when the the children were not thrown into the sea, was head of defence during the years of increased rapes and abuse by ADF members and has no expertise on refugee matters whatsoever, he would probably be unlikely to recognise a refugee if he fell over one.
Michael L’Estrange is a former Liberal party functionary and while head of DFAT for a short time also would not know a refugee if he fell over one.
These three are supposedly to find ways around the legal obligations we have committed to in our protection of refugees and to pretend that getting a boat to Australia is the single most dangerous thing any refugee could ever face.
“Innate racism” hits the nail on the head.
All the argument about conventions, all the feigned care about whether boats make it or not, endless discussion about what to do with people when they get here (and so on) is entirely beside the point.
Nobody wants to say “the average Aussie doesn’t want large numbers of people from the Middle East and North Africa moving here”. The average Aussie thinks there are already too many muslims in Australia and feels threatened by it. the average Aussie couldn’t give a squirt about refugee conventions and all that huff and puff.
If we had 25000 white South Africans or Zimbabweans turning up each year, would the discussion not be entirely different?
This is the internal hurdle we need to jump. The external one is to stop blowing up these people’s houses and stop installing oppressive autocratic regimes in their countries. We have contributed to the “refugee problem”… most people want dignified lives, peace, freedom, nourishment and opportunity in their own country.
I have to wonder about Western Sydney, it must be hell on earth with the worst racists on earth the way the pollies pander to them.
But with people from every nation on earth living there who are they pandering about?
What an advert for the gateway to the tourist trade to Australia – WELCOME TO THE CAPITAL OF RACIST BOGANS.