Australia’s ability to remain a signatory to the UN refugee convention would be put in serious doubt if the government succeeded in weakening protection for refugees in the migration act, prominent human rights lawyer Julian Burnside QC told Green Left Weekly.
“The judgement was clear that the arrangement that had been made with Malaysia has been made legally invalid,” he said.
“The question is whether the government thinks having signed the convention limits the range within they can change the act.
“The High Court has interpreted our protection obligations in a way that suggests that we are not adhering to [them].
Burnside said this was “not really surprising in a way, because mandatory detention breaches our protection responsibilities under other obligations — notably protections of the child and the covenant on civil and political rights”.
The High Court found on August 31 that Australia could not send refugees to another country that did not protect their rights under domestic and international law.
This decision ruled out the refugee swap planned with Malaysia and also raised doubts on the legality of detention camps on Nauru and Papua New Guinea’s Manus Island.
But Prime Minister Julia Gillard said after the decision that her government would push ahead regardless. She said “the best solution” to stop people seeking asylum in Australia “is the arrangement with Malaysia with a complimentary centre in PNG”.
Despite objections from some Labor MPs, by September 10 the Labor cabinet and caucus had agreed to put legislation to parliament to weaken protection for refugees.
The changes would also remove the legal obligation for the immigration minister to act in the best interest of refugee children.
The immigration department said the amendments would be deliberately broad to allow the government to expel refugees to any country without regard for human rights protection.
However, Burnside said that unless Australia withdrew from the UN refugee convention the changes could not be made without bringing further High Court challenges.
“The interesting question is whether any amendment is possible that would make it legal within the restrictions of the High Court decision,” he told GLW.
“That would depend in part whether the High Court holds in the next challenge that any country must offer protection of the sort that the refugee convention requires.
“The central obligation is protection and non-refoulment [the return of refugees to countries where they may be persecuted].”
Australian Lawyers Alliance president Greg Barns wrote on Online Opinion on September 1 that the High Court ruling “makes it highly unlikely that without the two major political forces conspiring to amend the Migration Act in order to weaken human rights protections, offshore processing cannot go ahead without it being subject to a legal challenge that is likely to succeed”.
The Coalition would need to support the government’s bill to amend the act. In May, a motion introduced by Greens MP Adam Bandt condemning the Malaysia refugee swap deal was passed 70-68 in the lower house. The Senate also voted against the deal.
But Liberal opposition leader Tony Abbott said on September 15 the Coalition would likely vote in favour of weakening Australia’s refugee protection, contingent on the government adopting its brutal “Pacific solution” style policies.
He said the Australian government should be “stopping the boats through [reopening the detention camp on] Nauru, temporary protection visas and turning the boats around”.
Shadow immigration spokesperson Scott Morrison said the Coalition would not support the Malaysia deal. But he said the Coalition “have the patent” on offshore processing.
Burnside slammed the two big parties for engaging in a false debate on the issue.
“I think that in the community at large the texture of opinion is very different to what it was 10 years ago.
“A lot of the debate is driven by the politicians. They’ve found a convenient stamping ground on which to lock horns and they’re doing it with disregard to what people actually think.”
He said a recent Herald/Nielsen poll that showed 54% of Australians think asylum seekers arriving by boat should be processed in Australia should give refugee advocates hope.
Burnside said even though most Australians still consider detention necessary, “I suspect that figure will drop to well below a majority … if people knew they are not at risk from these people, that there is not a queue and there’s massive psychological harm caused in detention”.
An especially concerning aspect of the plan is the government’s bid to legalise the deportation of unaccompanied refugee children to countries with little protection.
On September 15, Gillard said the existing protections for children must be removed to avoid the “risk that people smugglers would start choosing to fill boats with children”.
“It’s astounding,” Burnside said, “that we should be able to mistreat children so that they would not be able to come here for safety.
“It’s a bizarre idea that parents will throw their children onto boats. The logic doesn’t follow. It’s the sort of thing that most parents will not do except in the most extreme circumstances.
“People will do what it takes to get somewhere safe. And if they [the government] smash the ‘people smugglers’ business model’ they will prevent people getting here and seeking safety.
“They would much rather see people die at the hands of the Taliban than try to reach safety here or die at sea.”
Burnside said many Australians did not know what refugees go through before they reach Australia and are locked up in indefinite detention.
He said would ask Gillard and Abbott: “Why are we so hysterical about punishing them or deterring them just because they do what any of us would do too?
“I would like to see them in a position of refugees stuck in Indonesia — accepted by the United Nations High Commissioner for Refugees but living in the shadows because they are not allowed to be there, constantly at risk of being thrown in jail, not allowed to work or send their kids to school.
“They face a 10 to 15 years wait before a country sticks its hand up to resettle them, or they could board a boat.
“Would they get on a boat? I bet anything they would.”