Andrew Farran on the Malaysia Solution

The following letter by my friend and colleague Andrew Farran, former diplomat, Defence official and Senior Lecturer in International Law at Monash University, was published in edited form in both The Age and The Australian Financial Review on Tuesday 20 September 2011.

With Andrew’s permission the full text as submitted is reproduced below:

Re: Migration Act - does the government wish to denounce the UN Convention?

Dear Sir,

If the government proceeds to amend the Migration Act by removing the rights and protections accorded to asylum-seekers and refugees under the UN Refugee Convention (1951) and Protocol (1967), it would in effect be denouncing the Convention.  It may as well go the whole way and do it formally, giving 12 months’ notice under Article 40 of the Convention.

While international law may not be directly enforceable in domestic law, treaty commitments carry a duty to incorporate, and a presumption that their provisions would be construed in the courts, to further their purpose, without undue derogation.

If the government has problems with the Convention, as apparently it does, there is the right to request its revision under Article 45.  It cannot pretend to be adhering to its international obligations while stripping these out of domestic law.  Nor, as the High Court has made clear, can any number of Ministerial declarations regarding the rights and protection of refugees and asylum seekers in another jurisdiction stand up if a legal basis for those rights and protections does not exist in that other jurisdiction, as is the case with both Malaysia and Nauru.

Use of terms in legislation relating to arriving refugees and asylum-seekers such as “unlawful non-citizen” and “offshore entry person”, regardless of the fact that under the Refugee Convention their arrival per se is not “unlawful”, and that they may already be on Australian territory, is prejudicial.  Under the proposed changes it would appear that these persons will be treated as “unlawful”, and the distinction of being on-shore and off-shore will be irrelevant in exercising the new powers of deportation.

While Convention obligations may be excepted on national security grounds, this has to be shown to be the case with each individual applicant, which would be a long shot indeed in most cases.

Yours, etc.

ANDREW FARRAN

Beaumaris, Vic.

Former Senior Lecturer in International Law

Monash University