A lack of respect for rule of law

Ernst Willheim
Canberra Times
Tuesday, 18 November 2003

AFTER initial claims that the 14 Turkish Kurds who arrived at Melville Island earlier this month did not claim asylum in Australia, the Government now conceded they did claim to be refugees.

The Prime Minister and the Minister for Immigration contend, however, that whether they claimed asylum is irrelevant because Melville Island had been excised from Australia's migration zone.

The shadow Attorney-General, Robert McClelland, disagreed, saying that under international law, we had to give them the right to claim asylum. The representative of the UN High Commissioner for Refugees in Australia, Michel Gabaudan, considers that transferring the group to Indonesia clearly put Australia it in breach of its obligations under the Refugees Convention.

The right to seek asylum from persecution is a fundamental principle of international law, clearly enunciated in Article 14 of the Universal Declaration of Human Rights. Australia is a party to the United Nations Convention relating to the Status of Refugees.

Article 16 of the Refugees Convention provides that "A refugee shall have free access to the courts of law on the territory of all Contracting States". Yet the clear purpose the excision of Melville Island and other Australian islands from Australia's migration zone was to prevent access by the Turkish Kurds to the Australian legal system for refugee processing, including access to the Refugee Review Tribunal and our courts, contrary to Article 16.

Article 33 of the Refugees Convention enshrines the so-called "non-refoulement" principle: A contracting state must not expel or return a refugee to a territory where life or freedom would be threatened.

One of the many recognized deficiencies of the Refugees Convention is that it does not deal with procedures for admission of asylum-seekers. Nevertheless, the Executive Committee, which oversees the work of the UNHCR, has declared that non-refoulement includes rejection at the frontier. Also, a frontier authority should not reject an asylum claim without reference to a clearly identified authority responsible for examining requests for refugee status.

It doesn't necessarily follow that returning the group to Indonesia gave rise to breach of the Convention. Australia's obligations under the Convention are limited. They do not include an obligation to grant asylum. A State that is not prepared to grant asylum must adopt a course that does not amount to refoulement. Permissible responses undoubtedly include removal to a safe third country, that is, a country where there is no danger that the refugee would be at risk.

The Turkish Kurds were, however, removed without any prior determination of their asylum claims. Indonesia, to which they were removed, is not a party to the Refugees Convention and therefore is not subject to Refugees Convention obligations.

The effect of the excision of Melville and other Australian islands from the Migration Zone may not be well understood. The Migration Act establishes a detailed legislative scheme for the processing of unauthorised arrivals, including a process for holding unauthorized arrivals in "immigration detention", the making of asylum applications and a determination process, including access to a merits review before the Refugee Review Tribunal.

These provisions operate by reference to entry into or presence in what is called the migration zone, effectively all the States and Territories (including islands that are apart of a State or Territory).

The original intention was that arrival at any place in Australia, whether at the mainland or at an offshore island, would trigger the operation of the Migration Act scheme.

The arrival of the Tampa, in August 2001, led to a radical change in Government policy. Rather than detaining asylum-seekers who arrived by boat and processing them under the Migration Act, the Government's new objective was to deter unauthorized arrivals by preventing access to Australia's refugee determination procedures altogether by the legal device of excising certain islands from the migration zone and off-shore processing, the so-called "Pacific solution" It is important to understand that the only relevance of excision of any part of Australia from the migration zone is for the operation of the Migration Act. Moreover, the excision is relevant only for Australian domestic law. Australia's international obligations are unaffected. Thus Australia's obligations under the Refugees Convention continue to apply in respect of the whole of Australia, irrespective of the status of any part of Australia for the purposes of the migration zone.

Those who arrived on the Tampa were taken to Pacific Islands, including Nauru, and their applications were processed there. But they were not processed under Australia's Migration Act, or under any other Australian law (or under the law of Nauru). In effect, they were processed in a legal vacuum, without any avenue of redress in respect of administrative or legal error.

In consequence of the excisions, the operation of the Migration Act, a Commonwealth law, is no longer uniform throughout Australia. Clearly, this cannot be a long-term solution.

The intended effect of the excision of Melville Island from the migration zone was to prevent the Kurds from making asylum applications under the Migration Act and having such applications determined under the Migration Act procedures.

Was this purpose achieved? It seems the regulations excising Melville and other islands from the migration zone were made on the same day that the Kurds' boat, the Minasa Bone, arrived at Melville Island, but some hours after the vessel arrived.

The Prime Minister says "at the time any so-called application for asylum might have been made, the islands had been excised". It is not clear whether Mr Howard is referring to the actual making of the excision regulations or to their legal operation.

Press reports suggest the Minasa Bone arrived at 12.24pm on Tuesday, November 4. That afternoon, the Governor-General would have been at Flemington racecourse for the Melbourne Cup.

Press reports on November 5 refer to the regulations being made "last night", but Wednesday's Vice Regal notice makes no reference to an Executive Council meeting the previous day.

In fact, Tuesday's Executive Council meeting is not recorded in the Vice Regal notice until November 6. All the indications are that the regulations were made late in the day, well after the boat landed.

The regulations operate retrospectively, to the beginning of that Tuesday on which they were made. If the Kurds made applications for asylum sometime after their boat landed but before the meeting of the Executive Council at which the excision regulations were made, it may be that they acquired rights under the Migration Act which could not be defeated by retrospective regulations. The retrospective operation of the regulations may therefore be open to challenge.

It is surprising and unfortunate that, in claiming that whether the group made asylum claims is irrelevant, Mr Howard failed to address Australia's Convention obligations.

Australia's right to control its borders and the entry of foreigners is a legitimate aspect of national sovereignty. But sovereignty is not absolute.

In the exercise of its sovereignty, Australia has become a party to the Refugees Convention. By becoming a party to this and other Conventions, Australia has accepted a range of obligations that circumscribe Australia's rights and regulate their exercise.

Australia's lack of respect for its international human rights obligations diminishes Australia's international standing.

Ernst Willheim is a member of the Law Program in the Research School of Social Sciences at the Australian National University.

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