INTERNATIONAL COMMISSION OF JURISTS
AUSTRALIAN SECTION

Submission to the Senate Legal & Constitutional References Committee
Inquiry into the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 and related matters

The International Commission of Jurists (Australian Section) (ASICJ) is opposed to the enactment of the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002.

ASICJ considers the Bill to be a serious abrogation of Australia’s obligations under the United Nations Convention on the Status of Refugees, and serves to further undermine the UN Treaty system. The Bill gives rise to further serious consequences for refugees arriving directly from areas of conflict, and places them in danger in terms of health and safety. 

The Bill also proposes to have retrospective operation so as to remove the rights of refugees who arrived on an affected offshore place after 19 June 2002. Retrospective removal of substantive rights such as this is not justified in any circumstances.

It is not justified in any circumstances, particularly where there are criminal consequences.

United Nations Membership Obligations

In becoming a member of the United Nations, Australia agreed to uphold and support United Nation’s Treaties.  Any move, such as the territorial excision of part of Australia from a Treaty, detracts from the obligations of Australia as a United Nations member. If the United Nations Treaties were to contemplate the excision of parts of a country this would assist other UN members to avoid obligations under UN Treaties, by excluding parts of the territory of those other nations and treat areas within those territorial boundaries where breaches of Human Rights Treaties can occur.

The possibilities of such arrangements are appalling and infinite. It is the belief of the ASICJ that any excision of part of a territory, for the purposes of any Treaty and in particular the Refugee Convention is in breach of Australia’s membership of the United Nations Organisation and is to be deplored. Any existing legislation which purports to exclude territories, such as under the Migration Act 1958 should be repealed.

The example of how the United States is treating Guantanamo Bay, Cuba as outside American Law, is an example of what could be carried out by nations who exclude illegal places of detention or for that matter any prisons.

Asylum Seekers

Whether under the Refugee Convention or otherwise, International Law concerning Asylum Seekers is predicated on the basis that Asylum Seekers are people in dire necessity. Each Asylum Seeker does not necessarily know the precise law and in any event can be forgiven, if fleeing a jurisdiction, conscious that there is a danger concerning life and liberty for the Asylum Seeker and his or her family, that it should be understood that Asylum Seekers do not always precisely adhere to the niceties of the law and will often break migration laws and indeed, must in some cases break migration laws of a particular country, to make their asylum application. It is important that, in terminology and in fact, in assessing quotas, that those people brought into Australia by arrangement as approved Asylum Seekers, be treated separately from those who come without such approval. Inevitably that latter category will be self-selecting in terms of numbers, time and place and manner of entry and should be treated as an unnumbered category since their number is not known until they arrive. It is clearly inappropriate to place a quota on such persons, and thereby, exclude others, who arrive as part of a prearranged scheme of a designated number, when the self-selecting number cannot be contemplated in advance. 

Countries, such as Australia, should stop using terminology referable to the manner of manner such as “illegals” when traditionally a large proportion of Asylum Seekers are inevitably entering a country in breach of migration and sometimes Custom Laws, when in fact as Asylum Seekers, as such, they are lawful Asylum Seekers whether they succeed in their application for asylum or not. The application is legal, however tenuous or false the basis for that claim. A person should be treated with dignity as a lawful applicant and should be dealt with equal dignity, whether such application has been acceded to or refused.

UN Refugee Convention

Australia as a Contracting State to the Convention is obliged to extend protection and assistance to refugees found within its territory. The Convention outlines the rights and obligations of refugees and of Contracting States. 

The Bill proposes to extend the application of section 46A of the Migration Act 1958 to prevent refugees applying for asylum if they arrive on Australian territory by landing on a number of islands to the North of the mainland. In effect, refugees have to make it to the mainland to be allowed to seek asylum.

This measure is a clear breach of the Convention. Australia as a Contracting State to the Convention agreed to extend protection to refugees with its territory. By setting up or increasing “excised offshore places”, Australia would be in effect quarantining off part of its territory from the operation of the Convention. 

The fact that a refugee arrived in Australia on a certain island rather than another should have no bearing on whether they are a genuine refugee deserving of protection. Australia did not divide itself when acceding to the Commonwealth.

The measures in this Bill are a direct withdrawal from Australia’s participation in the Convention and the international refugee programme. The Bill should be opposed in its entirety. 

Further, by passing the Bill Australia would be sending a message to the international community that it is acceptable to implement policy that is in direct breach of Treaties and Conventions to which they are a party. A breakdown of the international treaty system would be potentially disastrous for world security and stability. 

Further consequences

The Bill is part of the Government’s border protection policy. The Government has expressed great concern over asylum seekers coming to Australia on boats after having travelled through a number of countries since their State of origin. The Government hopes that through this Bill, that problem will be reduced. 

A further consequence is that it will also prevent refugees who have not travelled through other countries before arriving in Australia from seeking asylum from the affected parts of the Australian territory. 

People fleeing persecution in areas of conflict in the local arena will be severely prejudiced in their ability to lawfully seek asylum from Australia.

Further, by forcing refugees fleeing persecution by sea to push on for the mainland in order to activate their rights under the Convention, Australia is placing them in a more perilous situation with further grave risk to their health and safety, particularly in areas with coral reefs.

It is exactly these people that the Convention is designed to protect, and by abrogating its role by refusing protection to people arriving on the affected offshore places, Australia is committing a serious breach of the Convention, and potentially harming the affected refugees.

Retrospectivity

The Bill proposes to implement excision times commencing 19 June 2002. ASICJ opposes retrospectivity of legislation, particularly where in breach of international law it creates criminal sanctions.

If a person has arrived on an affected offshore place after 19 June 2002, that person presently has the right to seek asylum. By setting the excision time retrospectively, these rights would be extinguished by passage of the Bill. That would be an unacceptable move which should be opposed even by proponents of the overall scheme. 

Whilst ASICJ opposes the Bill in its entirety, if it is passed, the excision times implemented in Schedule 1 to the Bill should not be set before the date on which the Act receives Royal Assent.

Contact:  Nicholas McNally, Treasurer, International Commission of Jurists, 
Australian Section, GPO Box 173, Sydney NSW 2001, Ph: 02 9286 8189 (wk), 0419 855 002 (mb)
Davide Bitel, Secretary General, International Commission of Jurists, Ph: 9286 8700 (wk) mob: 0409 717 571