By Mike Steketee Friday 3 October 2014
Photo: Scott Morrison could not be more blatant about his intentions to sideline international obligations towards refugees. (AAP: Lukas Coch)
Tony Abbott may have lauded the UN on his recent visit, but his Government's recent moves against refugees have been in utter defiance to its conventions and rule of law, writes Mike Steketee.
One of the touchstones of conservative thinking is respect for the rule of law.
Margaret Thatcher called it the institutional foundation of Western civilisation. Tony Abbott, an admirer of Thatcher, a monarchist and defender of the Australian constitution, springs from the same tradition.
Conservatives have been more sceptical about the international rule of law, as promoted by bodies such as the United Nations and the European Union. But last week Abbott was expressing his admiration for the UN, though there was an element of "when in Rome" in his comments: he was addressing the UN General Assembly in New York.
His qualification was that, "like any institution, the United Nations is an imperfect instrument". But for 70 years, he said, it had worked for peace and progress, based on the principle that talking and working together would improve our capacity to live together.
He cited Australia's pioneering role in the establishment of the UN by providing the first president of the Security Council and helping to draft the Universal Declaration of Human Rights, though without mentioning that it was Norman Makin, a minister in the Curtin Labor government, who was the first president or that it was Labor external affairs minister H.V. (Bert) Evatt who played a significant role in the UN's early development, including in the drafting of the Universal Declaration.
All in all, said the Prime Minister, Australia's work under the UN banner had been part of "being a good global citizen".
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He could have added that Australia was among the first countries to ratify the Refugee Convention. That was in 1954, when Robert Menzies was prime minister. It was a sensible omission, considering that most of our actions on refugee policy in recent times have been an utter defiance of the convention's specific objective to offer protection to people who land on our shores after fleeing from their country because they fear for their lives or have a well-founded fear of persecution.
Legislation brought into Parliament last week by the Immigration Minister, Scott Morrison, goes further down the path of undermining the rule of law, not to mention our role as a good global citizen, than ever before.
Not content with reducing Labor to a whimpering excuse for an opposition on this issue, he is sweeping away resistance from the courts, from the High Court down, in his mission to trample on the rights of refugees who dare come by boat and invoke our obligations under the convention.
Morrison could not be more blatant about his intentions. According to the explanatory memorandum accompanying the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, it ensures "that the exercise of a range of powers cannot be invalidated because a court considers there has been a failure to ... comply with Australia's international obligations or the international obligations or domestic law of any other country".
As for turning back boats, Morrison wants the ability to offend not only Indonesia but any other country by the provision that "a vessel or person may be taken to a place outside Australia, whether or not Australia has an agreement or arrangements with any country".
A "place" does not even have to be a country, meaning boats simply could be taken outside Australian territorial waters and left to fend for themselves.
The explanatory memorandum says the amendments "remove most references to the Refugees convention from the Migration Act" and replaces them with Australia's interpretation of its obligations under the convention. The most important of the obligations the convention imposes on member countries is so called "non-refoulement" - that is, not returning genuine refugees to the country from which they fled. The new legislation explicitly gives the Government "removal powers independent of assessments of Australia's non-refoulement obligations".
Proposed visa laws explained
Take a look at the ins and outs of the Government's visa laws.
Decisions on whether to send people back will need to consider new criteria, such as whether they can move to another part of the country from which they fled and whether they can modify their behaviour to avoid persecution. There are tighter definitions of the grounds for refugee status, including the ability to claim membership of a particular social group subject to persecution.
Morrison is not prepared to wait for the judgment of the High Court on his actions in holding 157 Sri Lankan asylum seekers intercepted on their way to Australia in a floating prison on the high seas. The legislation provides "that the rules of natural justice do not apply to a range of maritime powers", including those "to hold and move vessels and persons".
It clarifies, with retrospective effect, that children born in Australia or Nauru to asylum seekers who have come by boat have no independent rights, such as to Australian citizenship and also can be held on Nauru.
The bill sets up a new Immigration Assessment Authority to restrict the rights of asylum seekers to appeal against their rejection as refugees. The IAA will conduct a limited review of available documents and will be able to consider new information "only in exceptional circumstances". Only the minister, not asylum seekers, will be able to refer cases for review.
The Refugee Council is not exaggerating in describing the legislation as "a comprehensive assault on Australia's obligations to protect victims of persecution, giving the Immigration Minister greater power than ever before to act as he wishes".
In an interview with me, Dr Joyce Chia, senior research associate at the University of NSW's Andrew and Renata Kaldor Centre for International Refugee Law, argues that the real aim of the legislation:
Is to prevent the High Court from interpreting our legislation in accordance with international refugee law. There have been a number of High Court challenges that the government has lost and a lot of that is founded on the argument that you need to read the Migration Act consistently with the Refugee Convention where possible.
On a slightly more positive note, following negotiations with Clive Palmer, the legislation reintroduces temporary protection visas and creates a new, also temporary, visa under which refugees would be required to work in regional areas. If passed through the Senate, these at least would mean a start to the processing of the 30,000 people who arrived by boat and are mostly living in the community without rights to work.
But TPVs, originally a suggestion by Pauline Hanson adopted by the Howard government, leave people in limbo, even when they have been found to be refugees. They expire after three years and while including rights to work, do not allow holders to bring their family to Australia nor to return if they leave Australia. This Government has added an extra level of cruelty by imposing a third condition: people on TPVs will never be offered permanent refugee status in Australia.
Then there are the new Safe Haven Enterprise Visas. Provided those accepted as refugees are prepared to go to country areas and that local employers want to give them jobs, they can receive a five-year visa, after which they may have what Morrison describes as "a very limited opportunity" to apply to stay permanently.
The Government's boast is that it has stopped drowning's on the high seas. So it has, apart from cases we may not have heard about, but only from boats on their way to Australia. People under threat who are denied access to Australia will try to go elsewhere.
The United Nations High Commissioner for Refugees estimates that 20,000 people in South-East Asia, many of them Rohingya from Myanmar, fled by sea in the first half of this year. The agency says that more than 75,000 refugees and migrants arrived by sea in Italy, Greece, Spain and Malta in the same period.
Two weeks ago, it estimated that more than 2500 have drowned or gone missing this year in the Mediterranean.
Passing the buck on our obligations under the Refugee convention to other countries hardly fits with the Abbott image of Australia as the model global citizen.
Mike Steketee is a freelance journalist. He was formerly a columnist and national affairs editor for The Australian. View his full profile here.
