Gutting the UN Convention on Refugees

The 10-11 July edition of The Weekend Australian editorialised (see It’s time for a broader look at refugee policy here):

Under [Prime Minister Gillard’s] policy, Australia remains committed to fulfilling its obligations under the 1951 UN convention on refugees...

Australia has had no pretensions to fulfilling its obligations under the 1951 UN Convention and Protocol relating to the Status of Refugees since mandatory detention was introduced by Paul Keating in 1992, with bipartisan support. As noted in No card, no entry, a presumption against detention is central to contemporary practice in relation to the treatment of refugees. 

The handbook Refugee Protection: A Guide to International Refugee Law, a guide produced jointly by the International Parliamentary Union and the UN High Commissioner for Refugees to mark the 50^th anniversary of the 1951 Convention, states (pp. 80-81):

UNHCR’s Executive Committee has expressed concern that large numbers of refugees and asylum-seekers in different areas of the world are currently the subject of detention or similar restrictive measures by reason of their illegal entry or presence in a country in search of asylum, pending resolution of their situation. The Committee is of the opinion that, in view of the hardship which it involves, detention should normally be avoided. If necessary, detention may be resorted to for specific purposes including to verify identity and to determine the elements on which the claim to refugee status or asylum is based.

Detaining asylum-seekers is considered lawful and not arbitrary if it complies with national law, the Refugee Convention and international law. Detention must be exercised in a non-discriminatory manner and must be subject to judicial or administrative review to ensure that it continues to be necessary, with the possibility of release when there are no grounds for continued detention.

The Keating legislation disallowed judicial review, notwithstanding the fact that Article 16(1) of the Convention provides that:

 A refugee shall have free access to the courts of law on the territory of all contracting states

 and the provision of the Handbook noted above that detention must be subject to judicial or administrative review.

The Keating legislation initially had a limit of 273 days for the period of detention, but that limit was removed in 1994, thus paving the way for indefinite detention.

The cruelty of the Howard Government’s Temporary Protection Visas, to which Opposition Leader Tony Abbott is so eager to return, deprives refugees of a number of rights under the Convention: the right to pursue wage-earning employment (Article 17(1)), the right to practice their profession where they hold qualifications which are recognised by the competent authorities (Article 19(1)), the right to “public relief and assistance” (Article 23); and the right to social security benefits (Article 24.1(b)).

It also denies the right to family reunion embodied in the Final Act of the 1951 United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons and the handbook Refugee Protection: A Guide to International Refugee Law, a guide produced jointly by the International Parliamentary Union and the UN High Commissioner for Refugees to mark the 50^th anniversary of the 1951 Convention (see Family values).

Both Governments have been a party to the notion of returning refugees to their place of origin in spite of the evident dangers to the refugees involved in this course, and there is no provision in the Convention or the Handbook for suspending processing of asylum claims.

We are so far from fulfilling our obligations under the Convention that the only honest thing for either major political party to do, but which they both lack the honesty to tell us they would like to do, would be to take advantage of Article 44,  and notify the Secretary-General that we are “denouncing” the Convention. But that wouldn’t be a good look, would it?