The most dangerous law ever drafted on human rights in Australia

Contrary to the spin of the Gillard Government that their ‘Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 strikes a balance between ‘national interests’ and human rights, the reality is these proposed new laws are dangerous. They pose a grave threat to what we hold dear as a democratic country – natural justice, the rule of law and our legal duty not to send people to danger who are fleeing persecution.

The proposed laws at their heart create a Kafkaesque world where the Minister for Immigration sits above the law and is able to send asylum seekers to anywhere they choose without evidence that it’s safe to do so. As the bill states at Section 198AC (4) ‘the fact that some or all of those documents [that is evidence that it’s safe to send a person to a country chosen for processing] do not exist does not affect the validity of the designation’. Their decision is also final and unreviewable by any court in our land. As the act states at Section 198 AB(7) ‘The rules of natural justice to not apply to the exercise of the power’. This is simply a shameless way of excising our courts from this area of immigration law and in effect breaching the separation of powers guaranteed under our constitution.

The bill seeks to create the illusion that Australia can meet its obligations under the Refugee Convention under this bill by simply making reference to the Refugee Convention and to not returning people to danger when the Minister is considering what is in the ‘National Interest’.

But the devil and the truth are in the details. All the Minister must to do is ‘have regard to’ whether or not a country has given him ‘assurances’ that people will be safe and have their claims processed in accordance with the Refugee Convention. The Minister does not in fact have to do anything beyond this.

The promises here are given ‘need not be legally binding’ (Section 198 AB (4), in other words he can rely on a promise Australia cannot enforce or hold a country to, leaving the fate of asylum seekers to the whim of any country they are deported to. If the Minister is not given any assurances from a country it’s still ok for the Minister to send people there too. In fact he does not need a single shred of evidence to support his decision, rather our country could find itself entrusting the lives of asylum seekers in reality on nothing more then a ‘she’ll be all right mate’ call of the Minister that all will be ok at the end of the day. The Minister will not be subject to any questioning from Parliament regarding his decision as this law renders them impotent. The Minister only has to inform them of his decision and put in writing why. But if he can’t actually explain the why or provide any proof to Parliament to support his decision, his decision will still remain valid, untouchable and unreviewable by anyone. As Section 198 AB (3) states ‘The sole purpose of laying the documents…before Parliament is to inform the Parliament…’

Furthermore, in the cold heart light of day, ‘assurances’ mean nothing when it comes to human rights, especially in countries like Malaysia that have no respect for the human rights of refugees and are not a signatory to the Refugee Convention. Picture an Afghan single mother approaching a Government official demanding her refugee claims be assessed on the basis that the Australian Minister for Immigration had been promised by Malaysia that they would.

Assurances afford no protection from harm to someone fleeing persecution, they give you no legal right to insist you have refugee claims assessed (article 32) or reviewed by a court of law (Article 16) nor a guaranteed right that you won’t be sent to danger (Article 33): all core legal obligations that we have as a signatory to the Refugee Convention.

The most dangerous part of these proposed new laws are regarding the rights of children. The amendments proposed to the ‘Immigration (Guardianship of Children) Act 1946’ would in effect void all the legal obligations of the Minister as legal guardian of children in detention. The Minister would have no legal duty to act in or even consider the best interests of the child when deciding whether to send them to another country. Children would be treated like adults with none of the protections that any other child in Australia would have as a given such as the right to be free from harm and not placed in a situation of danger.

How the Gillard Government seeks to do this is by adding an amendment to Section 8 of the Immigration (Guardianship of Children) Act 1946, the Act that requires the Minister to act in the best interests of children. By adding the words ‘…nothing in this Act affects the performance or exercise, or the purported performance or exercise, of any function, duty or power relating to: (a) the removal of a non – citizen children from Australia under section 198 or 199 of the Migration Act 1958’ it voids the Guardianship of Children Act in practice. In plain English it means that the Minister can send a child to any country they choose with no regard to the best interests or welfare of the child.

The final lie we are being sold by these proposed laws is that it’s in the ‘National Interest’ to have such laws. The last time I checked it’s in the national interests of Australians to protect and uphold human rights, not to trash and make a mockery of them.