Lawyer, research/writer and social activist, working alongside many Australian and international non-profit third sector society orgs.
What's the Confusion?
A widely towed political line that asylum seekers are ‘illegals’ and self-interested queue-jumpers has been played to death, but more important is a complete logical fallacy.
How this argument of illegality is still given air to breathe, in either public discourse or media attention, is beyond comprehension. Seeking asylum is afforded as a legal right in all international instruments; the ICCPR, UNHR, others, but most importantly the 1967 Refugee Convention and Protocol of which Australia is a willful participant.
Enacting domestic legislation that may say otherwise still does not change the underlying process and act of seeking asylum as being legal. Further, there is no such thing as having one’s cake and eating it too. If the Australian Government believed in integrity, despite whichever position it may have on asylum seeker’s, it has all the freedom in the world to begin actions to remove its participation from said treaties. But of course that would never happen even though we don’t subscribe to the obligations we are agreeing to.
No, to pull from international conventions that are agreed to by majority of the world as well would significantly damper our ability to play global ball. We’d unnecessarily open ourselves up to economic sanctions, weaken our trade negotiation positions with other countries and suffer breakdowns in foreign relations. But ahhhh, who wants to hear that? We’ll just keep printing about ‘queue-jumpers’ as being the problem instead.
Never in any Court of any level, in any country of the entire world including Australia, has an asylum seeker been prosecuted purely on the grounds that s/he has sought asylum and that to do so is in breach of a law.
Why wouldn’t we just prosecute if it were illegal? It would save millions, billions even, in processing and border control costs if we just prosecuted and incarcerated those that we genuinely believed were illegal maritime arrivals. But we don’t. Oh right, because it’s not illegal.
A Brief Timeline
The sheer hypocrisy of all Australian governments, both Liberal and Labor, for the past 17 years on this particular line of argument is blinding.
- 2002 – Howard/Coalition, the Tampa Affair triggers the ‘Pacific Solution’: found to be in breach of international law;
- 2007 – Rudd/Labour, Pacific Solution ‘reforms’: found to be in breach of international law;
- 2011 – Gillard/Labour, creates ‘Malaysia Solution’: obviously breaching international law but now the Australian High Court also ruled the same;
- 2017 – Turnbull/Coalition, now we’ve got Dutton negotiation with the U.S to swap unwanted detainees in Nauru and Manus for unwanted refugees from Central America and Africa.
Not to mention the dozens of other Australian court decisions which have prosecuted the Australia and the Minister for Immigration, as responsible Minister for the portfolio, for breaches of domestic discrimination laws.
There is something fundamentally, systematically broken if a government is being ruled by the High Court, several times, for acting improperly. Either judicial determination has been made to this effect, or various other class actions and individual suits have done the same by resulting in out-of-court settlements.
It’s kind of hard to negotiate an admission of guilt out of a Government when they’re handing you millions of dollars on a plate and you’re a refugee with literally nothing, just a though. One could also by secrecy by ensuring the afflicted get the financial compensation they request, without having to go through public scrutiny should a trial follow-through. I won’t go there, but I am mentioning it.
Moreover, if the publically are actually concerned about what is legal or illegal, then how about the systematic, Government sanctioned abuse, exploitation and negligent care of innocent, vulnerable people seeking our protection. The conversation just seems very lopsided.
Not to worry though, because the Government itself doesn’t even agree it’s doing the correct thing, they’re just doing whatever is necessary to hold onto power.
Adding insult to injury, in 2011 then Opposition Minister for Immigration Scott Morrison was put on record describing the Malaysia Solution as “another policy failure by an incompetent government,” going on to say “I’ve been to Malaysia. I’ve seen the conditions under which asylum seekers would be living, and it was clear to me that the protections the Minister boldly claimed existed simply didn’t exist.”
This coming from the same man that was reshuffled into the Treasury following public outcry at his ignorant discourse on the plight of refugee’s, massive funding cuts to aid and the extraction of the already minimal personnel assistance from Nauru and Manus, whilst furthering remaining practices which originated from the first horrible Pacific Solution.
Both sides of the major parties are quick to slander the policies of the other but the fact remains for the past 17 years, regardless of whoever is in office, our approach to asylum seeker’s has remained the same; process off-shore, re-settle a few, swap a few more, force back and wait out the rest.
The resulting atrocities are just unjustifiable. Lack of access to legal and medical assistance, abusive and exploitative environments all off-shore detention centres, the harsh conditions forced upon refugees inciting hundreds of deaths at sea, deaths in detention, self-immolation, forced return back to the original country of persecution and thousands left living a life in limbo is definitely the lowest point in our collective Australian political history.
Legality and queue jumping are one side of the story, but no refugee-centered discussion would be complete without addressing the big ‘T’ – terrorism. While there’s much that can be said on this point, if the most obvious counter-argument doesn’t instantly spring to mind then we’ve got a much bigger problem.
‘Blaming the majority for the actions of a few,’ was a concept that may have needed significant time to digest, understand and come to terms with back in 19th century Fascist Nazi Germany, but surely in 21st century Australian society we’ve learnt something from that and don’t need reminding? But then again, maybe we do.
This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.
© 2017 Sharon G