jamesoneillQueensland Barrister James O’Neill looks at the legal implications of the Turnbull Government’s proposed legislation on refugees, and is appalled by what he sees.

Last weekend the Prime Minister Malcolm Turnbull and Immigration Minister Peter Dutton announced an intention to introduce legislation that would forever bar the refugees currently held on Manus Island and Nauru from entering Australia.  They would not come as refugees, but also as future citizens of a third country, regardless of the purpose of their visit.

The announcement marked a new low in Australia’s attitude to asylum seekers, but it should not have come as a surprise.  Rather, it reflected and extended a profound hypocrisy that has characterized Australian attitudes to anyone who did not fit the model of the desired migrant.  That model was invariably white, preferably British, and willing to adopt without question what are referred to, without irony, as Australian values.

That hypocrisy enabled Australia to claim authorship (with other white nations) of the 1948 Universal Declaration of Human Rights.  That Declaration includes Article 14 that states:

“Everyone has the right to seek and enjoy in other countries asylum from persecution.”

No mention in that Article that the right is qualified, for example, not applying if you try and reach Australia by refugee boat.

Australia was also one of the original signatories to the Refugee convention of 1951.  The same was true of our ratification of the later Protocol, designed to update the original Convention, which grew out of the desperate situation created by World War 2 and its aftermath.

One of the unaccredited ironies of the present refugee situation is that the bulk of the refugees come from countries torn apart by wars that Australia had no small part in precipitating.

One of the key elements of the Refugee Convention and later Protocol was a prohibition on “refoulment.”  This meant that no person could be returned to a territory where they held a well-founded fear of threats to their lives or welfare.

But in the same year, 1948, that Australia ratified the Universal Declaration of Human rights, the Labor Minister Arthur Calwell published a pamphlet justifying the White Australia policy.  The following year Calwell introduced legislation designed to remove “aliens” and “war time refugees” from Australia.

An SBS documentary on post-war assisted migration made the point that the government ensured that the first boatload of refugees to be resettled in the post-war period came from the Baltics.  The news cameras of the day thus recorded all white passengers with blonde hair.  Only after the film crews had gone did the boats carrying Italians, Greeks and other “darker” skinned people come into the docks and disgorge their human cargo.

There were brief glimpses of compassion and enlightenment as when the Fraser government settled tens of thousands of Vietnamese refugees (again victims of an Australian war).  Many of these refugees were the now demonized “boat people”.  One of their number is the current Governor of South Australia.

In an attack in the Sydney Morning Herald (2 November 2016) former Prime Minister Kevin Rudd accused the Abbott and Turnbull governments of misrepresenting his government’s policies with regard to Manus and Nauru.  Rudd’s critique is well founded.  If only that were their greatest crime.

As a number of reports from reputable international agencies have made clear in recent years, Australian policy is in breach not only of the aforementioned Declaration on Human Rights and the Refugee Convention and Protocol, but that our policies violate a whole raft of other international commitments.

These include, but are not limited to, the Convention Against Torture and the Convention on the Rights of the Child.

As recently as September this year, Australia was a signatory to the New York Declaration.  This Declaration, accounts of which are almost totally absent from the Australian media included commitments to:

              Protecting the rights of all refugees and migrants, regardless of status;

              Preventing and responding to sexual and gender based violence;

              Strongly condemning xenophobia against refugees and migrants.

There were many other commitments entered into, but the above examples illustrate the point that the word and signature of the Australian Government is not worth the paper it is written on.  The ink on the Declaration was barely dry when Turnbull and Dutton announced their legislative plans.

In May this year the PNG Supreme Court ruled that the detention of refugees on Manus not only breached the PNG Constitution, it also breached the Criminal Code.  They required forthwith details of how the camps could be dismantled and alternative arrangements made for their occupants.

If the Australian Government took any notice of that ruling, it is not immediately apparent from their public pronouncements.  More likely, their arrogant and contumelious disregard for the international legal rights of the inhabitants of the Manus detention camp is consistent with a wider disregard for international law that characterizes successive Australian governments of recent years.

One suspects that the real reason for the Turnbull/Dutton announcement is political rather than legal.  The implications have clearly not been thought through.  One political motive is to attract the votes of One Nation supporters.  Another motive would be to try and wedge the Labor Party.  The latter, for the most part, have been desperate to shout “me too” as our international reputation was progressively further trashed.

One knows that new lows have been set when treaties, Conventions, and even common decency are subsumed in the pursuit of political advantage.  In the light of our history it should come as no surprise.  That does not make it any the less depressing.