Refugees Rely On Our Good Faith

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On 16 May, in a fit of legal-elastic absurdity, the Australian parliament passed a raft of morally repugnant and equally legally dubious legislation effectively excising Australia from its own migration zone. It has the legal effect such that any asylum seekers who miraculously breach the naval surveillance net and reach our mainland “boundless plains to share” will be “offshored” to a regional processing centre on Nauru or Manus Island, and denied all legal rights under the Australian legal system.

There is no doubt that it is an absolutely atrocious and already failed policy. The Labor government has panicked, reacted to media hype, and backed itself into a corner whilst burning exorbitant amounts of taxpayers’ money to pursue an overly complex policy of pain. All of a sudden we woke up in a world where brute cruelty to vulnerable people fleeing persecution is cast as a “solution”.

Unfortunately, in the land of making law via the doctrine of parliamentary supremacy, the legislation has created a legal black hole and human rights wasteland whereby asylum seekers who arrive on the Australian mainland by boat, and only those who arrive by boat, are directly discriminated against. They are flagrantly denied their internationally recognised legal rights, including the fundamental human right to claim asylum. More disturbingly, they are removed from our legal system which means they are not subject to Australia’s existing laws and protections, such as access to the justice and fundamental human rights protections. This is not democratic.

In terms of specific human rights violations, including those identified by the damning Report of the Joint Parliamentary Committee on Human Rights this week, the excision and offshore processing regimes:

  • Arbitrarily penalise and directly discriminate against refugees arriving by boat (as opposed to air) in direct defiance of our obligations under Article 31 of the Convention. I refer to them as “refugees” because the evidence is unequivocal that historically 70-90 per cent of asylum seekers arriving by boat are genuine refugees (as opposed to only 40-45 per cent arriving by air), most of whom are already registered with the UNHCR as such in Indonesia.
  • Breach Articles 2 and 26 of the ICCPR which provide for the right to be free from discrimination and equality before the law respectively. Boat arrivals are transferred to third countries with questionable human rights records for processing and detention – a system over which the UNHCR and the Australian Human Rights Commission have voiced significant concern as regional processing countries like Nauru and Manus Island cannot guarantee effective protection or processing. This increases the probability of erroneous decisions which increases the risk of refoulement. As a matter of law, Australia cannot avoid its obligations in this way.
  • Directly violate Australia’s obligations under the Refugee Convention, the Covenant on Civil and Political Rights, the Convention against Torture and the Convention on the Rights of the Child by exposing boat arrivals to protracted mandatory detention without adequate judicial control of detention.
  • Specifically, breach the prohibition on arbitrary detention and the prohibition on cruel and inhumane treatment it as provided by Articles 9 & 10 of the ICCPR.

These breaches have been identified this week in the Joint Parliamentary Committee’s Report.  As highlighted by the submissions by various human rights organisations including ALHR and the Australian Human Rights Commission, Australia’s current treatment of asylum seekers puts us in danger of breaching at least 24 different human rights under 5 separate international treaties.

Most concerning is that these breaches may have significant repercussions; creating a domino effect of delinquency among nation states by shattering the delicate international legal principle of good faith, on which the fragile system of international human rights law balances.

Because international law essentially depends for its efficacy upon reciprocity, the obligation of good faith is recognised as the bedrock of international law. Australia, like all states, must carry out its international obligations in good faith in order that the system of international law, which goes to the heart of modern civilisation, can in fact work. This obligation extends to both treaty and customary obligations. The obligation of good faith will be breached if Australia seeks to avoid its international treaty obligations, or does indirectly what a treaty does not permit it to do directly.

The effect of smacking the face of good faith is that Australia is setting an example to the rest of the world that it is okay to dishonor our international obligations and subvert the fragile operation of international law and slide us all down the slippery slope to self righteous lawlessness. Evolution and progress generally flow in the other direction.

As one of the wealthiest countries in the world and a now member of the UN Security Council, Australia should be setting a high bar of compliance with international law rather than lowering the standard of basic human rights protections into the global gutter.

Lest we forget that many of these protections came at the expense of two World Wars and millions of human lives not to mention monumental international diplomatic efforts. It is outrageous that the Australian government with such a brazen, outlandish and outlaw attitude would choose to dismantle and disregard such fundamental rights.

If the government was fair dinkum, it would either do the right thing and dismantle offshore processing in exchange for a cheaper, more humane and efficient processing system; or get real and repudiate its obligations to the Refugee Convention and other human rights instruments under the 1969 Vienna Convention on the Law of Treaties. In doing so, the Australian government would undo its ratification of these human rights treaties, thereby terminating its treaty obligations to the international community.

Obviously, this would be a tragic and catastrophic occurrence. I make this point as an honest reflection of what is currently occurring anyways. It is, however, important to note that it would not negate Australia’s obligations under customary international human rights laws and standards, which apply in any event, including freedom from torture, cruel and inhuman treatment.

Regardless, the government has not taken either step. The illogical legislative Act amounts to a malicious disregard for the international rule of law and in doing so has excised democracy, and our collective humanity.

It has injured the legacy of our national identity as a generous people who want a fair go for all. In this regard, it also appears that our national anthem must be amended otherwise it amounts to nothing more than misleading and deceptive conduct: “For those who come across the sea we’ve boundless plains to share”

How ashamed would our forebears be? Those who sacrificed their lives to fight wars against tyranny and racial discrimination would now find our government playing the role of human rights violator and tyrant. There are thousands of Australians who would not be here today but for the fact that their ancestors escaped persecution by engaging their international legal right to seek asylum. Without that, Australia would not be the multiculturally rich and compassionate society it mostly is today.

This is an edited extract from a speech delivered by Benedict Coyne to the World Refugee Day rally in Brisbane on 23 June 2013.

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