tip off

Australia has probably broken the law, but it will get away scot-free

The Australian government’s lack of concern for international refugee conventions probably won’t come back to haunt them.

The Royal Australian Navy has reportedly intercepted two boats carrying Sri Lankan asylum seekers on the high seas. It is further reported that Australian officials are summarily assessing their refugee claims at sea, and that those whose claims are rejected may be handed back to the Sri Lankan authorities at sea. The Abbott government has refused to comment. Is this illegal? And if it is, will Australia be held to account?

The operation raises a number of potentially serious violations of international law. An immediate problem is that it appears the asylum seekers have not been permitted to contact anyone, whether lawyers, the Australian courts, family, friends, or even the elected members of the Australian Parliament.

In legal terms, this means that the asylum seekers are being held in incommunicado military detention, also described as enforced disappearance. Under international law, it is illegal for any government to detain a person without access to a court or legal representation. Governments cannot simply disappear people into a legal blackhole. This is one of the most important of all red lines in international law.

A second legal problem is that the expedited processing of refugee claims on the high seas is almost certainly inconsistent with Australia’s obligations under the Refugee Convention and human rights treaties. These require Australia not to return a person to a place where they fear persecution, torture, or other serious harms.

Australia can only comply with that obligation if it provides asylum seekers with a fair procedure for determining their claims. While the Refugee Convention does not specify the procedure, minimum international standards have developed out of the guidelines of the UN High Commissioner for Refugees, the jurisprudence of United Nations human rights bodies, and the interpretive practice of governments worldwide.

Asking asylum seekers some questions over the phone while they are still at sea does not meet minimum international standards, as asylum seekers do not have adequate time to prepare their claims. They are deprived of legal assistance and other support. They may not have adequate interpreters. They may be confused or traumatised from their journey at sea and incommunicado military detention by our navy. Australian officials do not have adequate time to make the necessary further inquiries. No Australian tribunal or court is available to review and correct any mistakes bureaucrats may make.

The genuine dangers of return to Sri Lanka may not be properly appreciated. Sri Lanka is effectively a one-party, military-backed state, which peremptorily dismissed its Chief Justice, kills journalists and tortures political opponents. Contrary to what the Prime Minister says, it is not making progress on human rights. Every sign suggests regression.

So what remedies are available for these violations? As is well known, the United Nations has no binding power of its own to take enforcement action against human rights violators like Australia. There is no UN human rights police. There is also no international refugee court.

Any number of countries could sue Australia in the International Court of Justice for breaches of the Refugee Convention or human rights treaties, as Australia has submitted to its jurisdiction and the court’s decisions are binding. But countries are extremely reluctant to sue each other to protect human rights.

While the UN Security Council can impose sanctions on governments for human rights violations, realistically that is not likely to happen in this case. Nor is there any realistic prospect of a case being brought before the International Criminal Court.

All this leaves is the non-binding UN human rights mechanisms. Complaints could be made under a number of formal procedures Australia has agreed to participate in, including the UN Human Rights Committee and the UN Committee against Torture. If the asylum seekers could access these procedures, including through their representatives, the committees could issue “interim measures” to protect them from the immediate risks they face, namely incommunicado detention and possible return to persecution or torture.

Interim measures can be issued within a matter of days by the UN. Interim measures are binding on Australia, but although Australia often respects them, it sometimes ignores them, flouting its treaty obligations. A final decision on the merits of a complaint, however, can take five to six years to resolve, bringing little joy any time soon. Final decision are also not binding.

Australia may also claim that the Refugee Convention and the human rights treaties only apply in Australian territory and not on the high seas. That objection is, however, legally rubbish and certain to be rejected by UN bodies. In international law, countries bear human rights duties wherever they act outside their territory, especially where they detain people.

There is also a UN Working Group on Arbitrary Detention, and the meeting of peer governments, the UN Human Rights Council. Ultimately, all of the UN procedures rely on countries implementing their treaty obligations in good faith. Where the UN calls out a government for violating its obligations, all the UN can do is persuade or shame governments into doing the right thing, to living up to the bargain they made by signing the treaties, and to being a good international citizen that respects fundamental rights. The UN gets nowhere if a government is not open to persuasion, or simply has no sense of shame.

The current operation at sea involves extremely grave abuses of government power. It is not authorised by Parliament under the Migration Act and is being conducted purely under the sweeping, unwritten executive power of the government. It is not subject to public scrutiny or supervision by the Australian courts. Its secrecy is contemptuous of the rule of law and our democracy. It is a government out of control, overawed by its perverse obsession with border control at whatever the cost, and a danger to freedom, liberty and legality.

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  • 1
    klewso
    Posted Friday, 4 July 2014 at 1:58 pm | Permalink

    I hope we can keep track of some of these “recyclables” - so that if anything happens to them, we know who to hold complicit in culpability.
    That is if we ever get to read about it - protected as this government is, by whom/what.

  • 2
    Peter Bayley
    Posted Friday, 4 July 2014 at 2:19 pm | Permalink

    The important thing is to NEVER FORGET what is being done in our name and for which we, as a people, must fully take collective responsibility. These arseholes were legally elected through an open democratic process so we can’t blame anyone but ourselves. It will probably take many years but just as Tony Blair is now likely to be called to account, it is important the same happens to these nasty, Australian people.

  • 3
    Bill Hilliger
    Posted Friday, 4 July 2014 at 2:26 pm | Permalink

    The rAbbott coalition christians are in charge no compassion to be displayed under any circumstances.

  • 4
    Pamela
    Posted Friday, 4 July 2014 at 2:28 pm | Permalink

    No one cares what happens. A SL man in Melbourne waits 2years for an answer to his refugee application. He came in 2010 by boat. Was refused and deported. Was tortured- hung up for hours day after day with arms shackled behind back then tied to a pulley system , hauled up so feet off the floor and left to hang as slowly and painfully his shoulders dislocated. Eventually released but with constant harrassment and threat of more torture.
    He came back to Australia by boat with this proof of torture plus other too awful to speak of here. He is in constant pain which intra joint injections can only temporarily relieve.
    His life journey will be physical pain and the sort of psychological terror which does not leave a torture victim.
    He came, he asked, we turned hm down, we got it wrong, he came back but now Morrison simply freezes the application.
    He is not the only one in this position.

  • 5
    Greg
    Posted Friday, 4 July 2014 at 2:54 pm | Permalink

    A week ago people of South Australia found out a one time refugee or “boat Person” from Vietnam is to become our next State Governor. A title he has earned as a proud citizen of his adopted country. However, at the same another migrant, who has also been adopted by this country; and is the head the current Federal government. Is violating international Law, a Law that we as a country voluntary signed up to, and is handing over a group of people, who are seeking asylum, to the Navy of a foreign country that history has shown has violated the Human Rights of many of its population. At this stage I don’t know if the people on these boats, were genuine refugees or not, but I do know that it will be odds on, they will be when they are forced on board the Sri Lankan Navy Boats. While I’m not saying we as a country should have to keep them, however as we have signed up to the UN Human Rights and Refugee Convention then we should at the very least honour the rules and our word.

  • 6
    CML
    Posted Friday, 4 July 2014 at 3:43 pm | Permalink

    The terrible part of this whole saga is that according to recent polling by Essential (published in Crikey), 70% of LNP voters think Morriscum is doing a good job, and a majority of all voters agree with them.
    I guess the minister thinks he is on the right track. Recent history suggests he can even get away with taking no responsibility for murder!

  • 7
    Mark M
    Posted Friday, 4 July 2014 at 3:50 pm | Permalink

    They only believe he is doing a good job because they have no idea what is actually going on and how much is it costing. If there was a human face on all this, we would have to have a pretty long hard look at ourselves and how we are letting this happen.

    Hence the silence from Morrison, who I suspect is something of a psychopath.

  • 8
    Russell
    Posted Friday, 4 July 2014 at 4:02 pm | Permalink

    A majority of all voters agree (with Morrison)” writes CML, who presumably doesn’t (neither do I, btw). But what part of democracy don’t we like? He’s doing what was asked of him by Australian voters.

    Meanwhile, even the ABC is slowly changing its tune. On the 7pm news last night they reported that the Sri Lankans had come from the safety of Indian camps, that they had been recruited by “agents”. In other words, they were economic immigrants who knowingly or unknowingly purchased a one way ticket from someone who was illegally taking their money.

    I guess they didn’t understand that, or the risk. Sadly, they learnt the hard way.

  • 9
    Patrick
    Posted Friday, 4 July 2014 at 5:21 pm | Permalink

    You have to wonder if the death of one of these returned asylum seekers by the Sri Lankan government would make any difference to our hardhearted opinions on asylum seekers.

  • 10
    AR
    Posted Friday, 4 July 2014 at 5:37 pm | Permalink

    We are rapidly approaching the RedLine which, once crossed by this regime, will put the Oz electorate in the position of those who remained silent in the past when their government did evil.
    Who in the future will issue us with our Persil Papieren?

  • 11
    fractious
    Posted Friday, 4 July 2014 at 6:17 pm | Permalink

    Russell #8 4:02 pm

    He’s doing what was asked of him by Australian voters.

    By some, possibly, but not by the majority. And even if it was a majority, neither Morriscum nor the Abbort guvmint act in my name. “Democracy” /= mob rule.

  • 12
    fractious
    Posted Friday, 4 July 2014 at 6:23 pm | Permalink

    @ Russell, sorry, meant to finish editing…

    Your observation about the ABC reminded me I heard a female presenter on ABC’s The World Today call asylum seekers “illegals”, with neither a trace of irony nor attributing that descriptor to anyone in the Abbort guvmint. I have lodged a complaint (not that it will go anywhere), and I suspect transgressions like this will increase in both intensity and frequency once Planet Janet is installed.

  • 13
    Abdullah WIlliams
    Posted Friday, 4 July 2014 at 7:53 pm | Permalink

    Abbott, Bishop and Morrison should be tried for crimes against humanity if they are sending an ethnic group into the hands of torturers and murderers.

  • 14
    Ken Lambert
    Posted Saturday, 5 July 2014 at 12:20 am | Permalink

    Hold on folks….let me get this straight….

    One big boat load has come from India (Pondicherry),in the region of the Tamils. The other apparently from Indonesia.

    India is a signatory to the UN Refugee Convention, and as a huge and glorious democracy does not threaten the lives of Tamil refugees fleeing Sri Lanka into the arms of their kinfolk in India.

    So the Tamil asylum seekers fleeing India are not in fear of their lives….just fleeing the economic and social conditions of India or perhaps rellies who are sick of longstaying house guests.

    Perhaps there would be many others on the sub-continent of 1.2 billion souls who would also like to move to Oz and enjoy its economic and social conditions.

    Sounds like an economic refugee doesn’t it?

    And I do seem to recall Australia being lectured on human rights by an Indian lady with some grandiose United Nations humanitarian title who clearly wants to attract persecuted Aussies to flee to Pondicherry, the home of Indian democratic ideals.

  • 15
    jonjnoosa
    Posted Saturday, 5 July 2014 at 1:18 pm | Permalink

    The Abbott government reasoned that its border control policy is designed to reduce loss of life at sea by stopping the boats. However, it appears that by returning Sri-Lankan asylum seekers to Sri-Lanka without due process is just as risky.

  • 16
    nmcguinn
    Posted Saturday, 5 July 2014 at 4:19 pm | Permalink

    Most significant commentary written by an Australian this year.

  • 17
    McLean Geoffrey
    Posted Saturday, 5 July 2014 at 8:03 pm | Permalink

    Reminiscent of the time that Britain returned Jews to Germany which led to their being sent to their deaths in concentration camps

  • 18
    Rod
    Posted Saturday, 5 July 2014 at 11:45 pm | Permalink

    Abbott and his government are a disgrace and each day they find an act that is even lower than the last. Australians need to speak up at every opportunity and work hard to remove these vile people.

  • 19
    klewso
    Posted Sunday, 6 July 2014 at 2:20 pm | Permalink

    When it comes to broken laws, Australia hasn’t broken any - but this government is another matter.

  • 20
    Ken Lambert
    Posted Sunday, 6 July 2014 at 7:09 pm | Permalink

    nmcguinn

    Thanks great to be appreciated..

  • 21
    AR
    Posted Monday, 7 July 2014 at 10:28 am | Permalink

    Gold Plated Processing announced on Monday morning during Rat Hately’s Government Broadcast infomercial with Scum Morriscott who proclaimed that the 40 odd people transferred to the Sri Lankan navy’s tender embrace would have cost $10M to take to Manus/Nauru.
    Who knew that a quarter of a million each got only a tent in a malarial swamp or atop an atoll of (ex)guano?
    They could be sent to Club Med for a fraction of that.

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