In “Our
obligations still apply despite High Court win”, Sydney Morning Herald, 30 January 2015, Professor Jane McAdam
writes that the High Court decision on the detention of Tamil asylum
seekers at sea turned on a technical reading of statutory provisions, not an
assessment of Australia's international refugee and human rights obligations.
Professor McAdam is Scientia Professor of Law and Director of the Andrew & Renata Kaldor
Centre for International Refugee Law at the University of New South Wales.
Her article begins:
The High Court has decided that the month-long detention of 157 Tamil
asylum seekers at sea was legal under Australian law.
It was a narrow win for the government – three of the seven judges
dissented. The decision turned on a technical reading of statutory provisions,
not an assessment of Australia's international refugee and human rights
obligations. It is important to understand the outcome within this context.
The decision has no bearing on the lawfulness or otherwise under
international law of Australia's interception, detention and removal of asylum
seekers. Australia's international law obligations have not disappeared, but
current policy leaves us wide open to breaches.
She writes that Australian naval,
customs and immigration officials remain bound by the principle of non-refoulement even
when they act outside Australian territory or waters, because governments are
responsible for the actions of their officials wherever they assert effective
control, and concludes:
International law is binding on Australia. But in our legal system,
courts cannot make decisions about Australia's international legal obligations
unless they are also reflected in domestic law. As Justice Keane
explained in the High Court: "Australian courts are bound to apply
Australian statute law 'even if that law should violate a rule of international
law'."
Australia's international law obligations to refugees and asylum
seekers remain unchanged. The principle of non-refoulement continues
to bind Australian naval, customs and immigration officials wherever they
act.
The fact remains that Australia is accountable internationally for its
actions.
Read Professor MacAdam’s full piece here.
No comments:
Post a Comment