Bowen's asylum line is illegal
Illustration: Pat Campbell
Australia's refugee policy is now in a total mess. Rather than being guided by principles or even a measured pragmatism, it reflects the knee-jerk response of politicians who are desperate to win votes from the least informed parts of the electorate.
The most dramatic manifestation of this incoherence came in a press conference held on November 21 by Immigration Minister Chris Bowen. He announced that, contrary to the government's original plans, some asylum seekers who reached Australia after August 13 this year would have to be released into the community on what are known as bridging visas.
''Now, of course,'' he said, ''just as people who are on Nauru and Manus Island do not receive work rights, people on bridging visas in Australia also will not have the right to work. So, some people who arrived in Australia after August 13 will be processed in Australia and processed in the community, but will remain on bridging visas, even after they are regarded, through the process, as refugees.''
He seems not to realise that what he is proposing is illegal.
In 1954, the Menzies government acceded to the 1951 Convention Relating to the Status of Refugees. Article 17(1) provides that contracting states ''shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment''.
The language may sound convoluted, but the meaning is clear. Refugees permitted to stay for extended periods on bridging visas are ''lawfully staying'' as a matter of international law and common sense. The most favourable treatment granted to nationals of a foreign country lawfully staying in Australia is the unrestricted right to work that is granted to permanent residents and to citizens of New Zealand. As a matter of international law, then, Australia is obliged to grant the same rights to those ''regarded, through the process, as refugees''.
Because of our commitment to a ''fair go'', Australia is also a party to other human rights treaties that recognise the right to work and that outlaw discrimination. Under article 6 of the International Covenant on Economic, Social and Cultural Rights, Australia must not discriminate in access to the labour market without a fair and objective basis. It is permissible to prevent tourists from working. It is illegal to deny recognised refugees, people who must not be returned home, the opportunity to work.
The seriousness of this illegality should not be underestimated. It strikes at the heart of refugee protection. Indeed, in 2011, the High Court of Hong Kong in the case of MA v. Director of Immigration ruled that in extreme cases, denial of the right to work to refugees could even breach the most fundamental obligation of all under refugee law, namely the obligation not to force refugees to return to territories where their lives or freedoms would be threatened.
This is particularly a problem where children are concerned. What if the welfare benefits promised by the minister - a pittance by any stretch of the imagination - are simply not sufficient to get refugees and their families through the five years or so envisaged by the minister as amounting to ''no advantage''? What will Australia say in its report to the United Nations Committee on the Rights of the Child about the impact on the children of breadwinners denied the right to work? ''No advantage'' will be no answer to a committee charged with safeguarding the ''best interests'' of the child.
The ''no advantage'' concept is simply a reworked version of the discredited notion of a smoothly flowing queue, and is designed to punish refugees for arriving without a visa. However, there is nothing unlawful about seeking asylum. Provided refugees have good reasons for entering without a visa - such as lack of protection in other countries - the law requires that they be protected by Australia, not punished.
Thus, it is the minister who is the ''illegal'' here, not the refugees. Of course, ministers from time to time may feel that acting illegally is a small price to pay if votes can be won. This is a very dangerous line of thinking, for both principled and practical reasons.
First, international law is underpinned by the simple but powerful principle of ''pacta sunt servanda'', namely that every treaty in force is binding on the parties to it and must be performed by them in good faith. In the exercise of its sovereign capacity, Australia, when it acceded to the Refugee Convention, made a solemn set of commitments to other states. If it were to dishonour those commitments, it could hardly expect to be taken seriously if it then complained when other states chose to dishonour their commitments under a whole range of treaties and conventions from which Australians stand to benefit.
Second, the Gillard government has promoted the idea that a region-wide framework for refugee protection is essential to slow the flow of boats to Australia, and has committed to active regional diplomacy to pursue this objective. A central element of such diplomacy is to encourage states in the region to treat refugees with dignity and respect their rights under international law. But if Australia blatantly violates its own legal responsibilities to refugees, it loses any credibility as an advocate for better treatment of refugees by others. The minister's panicked response to the failure of his deterrent strategies actually to deter risks making nonsense of the government's wider diplomatic objectives.
One final point. Mr Bowen has no legal qualifications, but he will doubtless claim that he has acted on the basis of legal advice. It is therefore worth recalling that the last time he claimed to be on solid legal ground - over the government's Malaysia solution - he was humiliatingly disabused of the notion by the High Court of Australia. What he proposes is not just illegal, it is plainly illegal. And here, there is far more at stake than casual observers may think.
The foundations of the Australian political system are constitutionalism and the rule of law. If these are compromised, we all suffer. Governments that act illegally in dealing with refugees are not just a threat to refugees. In a society that should be based on the rule of law, they are a threat to us all.
Professor William Maley is director of the Asia-Pacific College of Diplomacy at the Australian National University.
Professor Penelope Mathew is Freilich Foundation Professor at the Australian National University and author of Reworking the Relationship between Asylum and Employment (2012).