New asylum seeker policy locks out refugees: Expert

MARK COLVIN: Don Rothwell is Professor of International Law at the University of Sydney and Director of the Sydney Centre for International and Global Law, and he says there's a danger that the media haven't understood the ultimate consequence of the new asylum seeker policy.

Professor Rothwell says that that consequence is that no West Papuan asylum seekers would ever find their way to Australia, because the new policy proposes resettlement in a third country.

Don Rothwell joins me now from our Canberra studio.

Are you sure about this?

DON ROTHWELL: Well, I think it's fairly clear, Mark, that from the Minister's announcement today that it's intended that, as from today, any future asylum seekers that land even on the Australian mainland will first of all be processed offshore, but then if they are successful in their asylum claims, will then be resettled in a third country.

MARK COLVIN: Now, I have heard already another interpretation of that today, which is that Australia could be a third country. In other words, they don't land in Australia, officially, because it's excised, they don't land in Australia. They've come, let's say the first country is Indonesia, the second country becomes Nauru, and the Australia could be the third country. Does that fit with any reading that you can get out of it?

DON ROTHWELL: Well, I think it's contrary to the position that Senator Vanstone took in her press conference today, in which she made a very pointed reference to the desire of these new policy changes to stop groups like the West Papuans being able to resettle in Australia as refugees and accordingly generate publicity for the West Papuan independence movement.

MARK COLVIN: Well, what are the legalities of this in international law?

Supposing that people do go to Nauru, have their refugee applications processed by a third party and are accepted as refugees, can Australia say no - we don't want them, they have to go to New Zealand or Canada, or can Australia even send them back to Indonesia?

DON ROTHWELL: Well, the Refugee Convention doesn't necessarily place an obligation upon Australia to settle those persons within its own territory. It certainly has an obligation to treat them as refugees and the interim arrangements that've been put in place previously in places like Nauru and Manus Island have certainly met the very minimum of obligations under the Refugee Convention.

But one of the ultimate obligations under the convention is called Non-Refoulement, in other words Australia cannot seek to resettle these refugees or transfer these refugees back to a place where they fear persecution.

And accordingly, it would seem to me, that the only other third country that Australia could relocate the refuges to is another country that is a party to the refugee convention.

MARK COLVIN: What would that include? Could they be sent to Papua New Guinea, for example?

DON ROTHWELL: I believe Papua New Guinea's not actually a party to the convention at the present time, but during the Tampa crisis of course some of the Tampa refugees were resettled in New Zealand, because New Zealand offered to take them.

But it does raise a significant issue, because if we do have a significant outflow of refugees from West Papua, and this policy is applied, we could have a large build-up of West Papuan refugees in Nauru, for example, and Australia would be scrambling then to try to resettle them in other parts around the world.

MARK COLVIN: So you see this as explicitly political, a real attempt to make sure that there isn't a large group of Papuans agitating for independence, either on Australian soil, or even all collected in one place, like Nauru?

DON ROTHWELL: Very much so, because quite clearly the Government through Mr Howard and Mr Downer have, over the last two weeks, made it very clear that Australia strongly supports the integrity of the Indonesian state, and would not favour West Papuan independence.

I guess even within the last little while we've seen the recent West Papuan arrivals clearly state their support for a West Papuan independence movement and we know that there is an underlying sympathy for that movement within Australia, and that concerns have been expressed that if you have a build-up of even a small group of West Papuan refugees in Australia, that will inevitably highlight that issue and generate support for that issue in much the same way that there was an ongoing, simmering support for East Timorese independence during the 1990s.

So I think that this deliberate attempt to ensure that the West Papuans never actually resettle in Australia is designed to ensure that Australia is making very clear to Indonesia its support for the integrity of the Indonesian state.

MARK COLVIN: So, finally and briefly, if lawyers want to do anything about this, and there are of course lawyers who feel very strongly about refugee issues, is there anything that they can do?

DON ROTHWELL: Well, it's essentially a replay of all of the issues that arose during the Pacific Solution and to that end many of the lawyers, the refugee lawyers, were spectacularly unsuccessful in terms of even getting access to Nauru to be able to assist those refugees there. So it's very difficult to see, given the legal regime that's being constructed and is now being extended, how the regime can be challenged.

MARK COLVIN: All right. Thank you very much for coming in.

Professor Don Rothwell there on the line from Canberra. He's Professor of International Law at Sydney University.