Asylum seekers:
H S Mackenzie writes: Re. Yesterday’s Editorial. Crikey‘s editorial opined that Tony Abbott “refused to back down from his description of asylum seekers as ‘illegals’, which every legal mind in the country disputes”. It referred to Barrie Cassidy’s article in The Drum in which Cassidy claimed that Abbott was “wrong in domestic and in international law. The Migration Act 1958 allows for those seeking asylum to enter Australia, with or without visas. The same situation is covered by the United Nations Refugee Convention, of which Australia is a signatory.”
Cassidy in turn quoted Jon Faine in an interview with Abbott as saying, “They’re not illegal. Tony Abbott, do I need to remind you that the use of words in this is critical? They are not illegal arrivals.”
Crikey, Cassidy, Faine and everyone else who repeats these claims, no matter how worthy their motives, are wrong.
It is unlawful for a person to enter Australia without a visa even for the purpose of claiming asylum. The Migration Act 1958 says at section 228B “a non-citizen has, at a particular time, no lawful right to come to Australia if, at that time … the non-citizen does not hold a visa that is in effect”. It goes on to say at subsection (2), “To avoid doubt, a reference in subsection (1) to 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 (a) under the Refugees Convention as amended by the Refugees Protocol; or (b) for any other reason.”
The Refugees Convention does not override this. Nowhere in the Convention is there provided a right to seek asylum. (Rather this right is found at Article 14 of the Universal Declaration of Human Rights). The Refugees Convention as amended details how signatory countries are to treat refugees (and the responsibilities of refugees). It does not contain any provision that asylum seekers are not subject to national migration laws.
In fact the Convention’s Article 31 “Refugees unlawfully in the country of refuge,” makes explicit that being a genuine refugee in need of protection does not of itself give you a right of legal entry to the country in which asylum is being sought. Article 31 does however require signatory nations to treat refugees who arrived illegally in the same way as refugees who arrived legally.
I understand that anti-refugee spokespeople use the word “illegal” to make it seem like arrivals by boat should have less rights than refugees who arrived legally or that they deserve punishment. But trying to combat that intention is no excuse for continuing to repeat false claims. Surely a better and certainly more accurate and truthful approach to people like Abbott would be merely to repeat Article 31 to them, to tell them, again and again if necessary, that Australia “shall not impose penalties on account of their illegal entry …”
The economy:
John Richardson writes: Re. “Mining bust? Seven questions for the RBA” (yesterday, item 18). Stephen Koukoulas seems to think that the corruption scandal that has enveloped the Reserve Bank should be viewed as little more than an irritating distraction compared to Glenn Stevens’ views on the economy at tomorrow’s meeting of the House of Representatives Standing Committee on Economics.
Only last week, Bernard Keane similarly posited that Julia Gillard’s standing as Prime Minister should be judged on her policy credentials, without bothering about questions that go to her honesty and integrity.
Some might argue that the honesty and integrity of those entrusted to hold the levers that control the operation of our “system”, whether they concern matters economic or political, is the most critical factor to our having confidence in its workings. Without such “confidence”, surely nothing could function.
If Stephen and Bernard have become inured to the constant stream of scandals that have cluttered the global landscape in recent times (WMD, AWB, GFC & now Libor), I’d remind them of the behaviour of the world’s “big three” credit ratings agencies, Standard & Poor’s, Moody’s and Fitch Ratings, when they attempted to escape their criminal culpability for the GFC by claiming that their ratings were just “opinions” and not based on any objective risk assessments.
I for one would argue that Glenn Stevens’ integrity is the only issue that should be front of mind right now. Without that, surely his views aren’t anything more valuable than an “opinion” either?
A lawyer’s comment is needed. But from my reading of your quote, ‘no lawful right’ implies just that, not that the entry is necessarily unlawful (illegal).
A citizen has the lawful right to entry to his own country. Someone who enters without that lawful right is not automatically an illegal entrant, it’s just that he can’t claim a right.
@H S Mackenzie
Your comment conflates authorisation with legality, skipping the step that says unauthorised asylum seekers are in fact “illegal”. Nobody would object if Abbott simply referred to refugees as unauthorised arrivals; they are.The problem is that he says they’re illegal. Putting aside that it is inherently stupid and simplistic to reduce the complexities of intersecting planes of domestic migration law and international obligations incorporated through a dualism legal system to a binary label, it is doubly crass because Abbott is obviously doing this only to imply a moral taint.
It is absolutely the wrong answer to concede such a point of principle.
@ Robert Fox & William Fettes
Thanx.
Mr Mackenzie sounds ohh so very right, but his information is incomplete and loaded with the bias of the foundations of conservative politics. Conservatives have insisted forever that the United Nations and United Nations Conventions are “offensive” in that the body and the treaties “interfere” with notions of “State sovereignty”. This foundation makes John Howard decry in a 1993 speech [1] Australia’s ratification of “so many international conventions and treaties’’, claiming it had led to a “massive erosion of national sovereignty.”
[1] Howard, John. (1993). Mr Keating’s Mirage on the Hill: How the Republic, Like the Cheshire Cat, Came and Went. Third Conference of the Samuel Griffith Society: Upholding the Australian Constitution (Esplanade Hotel, Fremantle; 5-6 Nov 1993). Retrieved Oct 12, 2010, from http://www.samuelgriffith.org.au/papers/html/volume3/v3chap7.htm
However, a central theme in the voluminous opus of International Refugee Law resolves this tension indeed by pointing to the International Declaration of Human Rights Article 14. There are mountain-loads of case litigation around the world where the courts have found for asylum seekers and NOT for the State around the issue of presumed illegal entry versus the right to seek (note, not “the right to find”) asylum and the right to have this question assessed against the Convention criteria.
I cannot help but be blunt to conservative politicians: you can bugger off: the United Nations and its conventions are here and they are here to stay. The UN Refugee Convention comes with refugee law and lots of jurisprudence. The right to seek asylum in a signatory country is invoked at the moment the foot of an asylum seeker steps across the invisible borderline and he or she declares to seek protection under that Convention. If conservatives want to thrash the Convention then they need to get themselves elected on the platform of ripping up Australia’s signature under the Convention. If they don’t, then they simply have to play ball. This is also the case for Tony Abbott.
In Australia, the Immigration Department confirmed the right to seek asylum for those who arrive “unlawfully” under Australian law by declaring in 2008 that the term “unauthorised arrival” would no longer be used in relation to boat arrivals, but replaced by the term “irregular maritime arrival”. The Department directly responded to my query about this change by writing to me that this change was brought about because the Department had realised the connotation between “unauthorised arrival” and the suggestion that it sounded as if it was “illegal” – something the Department no longer supported. It can’t be clearer. Mr Mackenzie wants to sew up a cloak of dignity around Tony Abbott’s naked populist aggression and his craven political opportunism, driving a wedge of extremism into the more moderate Labor government that up to the present has acknowledged that the invocation of the right to seek asylum indeed takes place when a maritime asylum seeker enters the borderline of Australia’s territory.