Castan Centre for Human Rights Law
Submission to the Legal and Constitutional References Committee
Regarding the Inquiry into Migration Zone Excision
This submission in relation to Migration Legislation Amendment (Further
Border Protection Measures) Bill 2002 has been prepared by Susan Kneebone
on behalf of the Castan Centre for Human Rights Law. The submission will
address points (c) and (f) of the terms of reference for the inquiry -
http://www.aph.gov.au/senate_legal
We will first address point (f): whether the legislation is consistent
with Australia's international obligations. We would argue that it is
not. We are fundamentally opposed to this Bill for the following reasons:
* The stated purpose of the Bill is to prevent applications for protection
visas by persons who arrive without lawful authority at the affected
offshore islands. The problem is presented as one of people smuggling
but the fact is that many genuine asylum seekers may be found amongst
such arrivals. This Bill prevents such genuine asylum seekers from exercising
their right to flee places of persecution, a right which is enshrined
in Article 14 of the Universal Declaration of Human Rights.
* Australia is a signatory to the 1951 Refugees Convention. This Bill
puts Australia in clear breach of its Refugees Convention obligations.
A resolution of the Executive Committee of the UNHCR (ExCom no 6) requires
that there must be a clearly identified processing authority. This Bill
prevents the processing of a claim for asylum on Australian soil.
* Although the Refugees Convention does not prescribe the processes
for determining refugee status, general principles of international
law require good faith implementation of our treaty obligations. This
Bill conflicts with that principle.
* This Bill has the effect of imposing penalties upon asylum seekers
contrary to Article 31 of the Refugees Convention.
* The practical effect of this Bill is to send asylum seekers 'into
orbit' and to potentially refoule them contrary to Article 33 of the
Refugees Convention. This potential arises because such asylum seekers
will be removed to other places under the legislation which is the basis
of the 'Pacific Plan', where it is unclear whether their claims for
asylum will be properly processed.
* This Bill facilitates the continuation of the 'Pacific Plan', a scheme
which breaches the fundamental rights of individuals to be treated with
dignity and for freedom of movement.
In relation to point (c) of the terms of reference, the financial impact
on the Commonwealth, our view is that the legislation is objectionable
because it will increase the cost of the 'Pacific Plan'. It is our view
that the cost of this scheme is already disproportionate to the scale
of the problem. The reality is that Australia receives a very small proportion
of the world's asylum seekers. The cost of the Pacific Plan reduces Australia's
capacity to give aid to those countries most in need of it, and from which
coincidentally a large proportion of asylum seekers originate.
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