Which QC is right?  George Brandis, Attorney-General of the Commonwealth, or Julian Burnside AO, passionate human rights advocate and extremely experienced barrister?  Rarely is a legal argument stated in such black and white terms as it was on Q&A on Monday night:

BURNSIDE: Attorney-General, as the senior law officer of the country, do you believe that asylum seekers who come to Australia commit any offence?

BRANDIS: Ah, yes I do.

BURNSIDE: What offence do they commit, have any of them been charged with it?

BRANDIS: They commit offences against, ah, um, our migration laws…

BURNSIDE: Which one?

BRANDIS: … which prescribe, well I’m not going to quote you a section …

BURNSIDE: Because there isn’t one.

BRANDIS: I’ve heard your argument many times, but the fact is that people are entitled to seek asylum in an orderly manner.  What, the people of whom we speak, are people who’ve put themselves in the hands of people smugglers and who have come to Australia unlawfully.

No great surprise to watch the Attorney-General walk headfirst into a trap that couldn’t have been more obvious if Burnside had been wearing a “I’m going to do you, George” T-shirt.  Anyway, he said it, repeating what has become a reflexive response for conservative politicians and their media backers: the notion that people who come to Australia by boat are “illegals”.

Brandis claims, squarely, that asylum seekers who come to Australia commit offences against “our migration laws”, which can only mean the Migration Act 1958.  Burnside says they do not.  The Asylum Seeker Resource Centre says, in bold letters, “It is NOT ILLEGAL to seek asylum”, explaining that,“No offence under Australia law criminalises the act of arriving in Australia without a valid visa for the purposes of seeking asylum”. Are there weasel words in there somewhere, meaning that everybody’s a little bit right and a little bit wrong?

To ensure that we’re not being conned by either side of this debate, I’ve done the courageous thing and read the whole freaking Migration Act (it’s really long). And now I know the answer for sure.

[Manus and Nauru not just cruelty, but bureaucratic incompetence too]

For starters, the act doesn’t call anyone “illegal”.  It does invent a class of people called “unlawful non-citizens”, which is anyone who arrives in our country or territorial waters without a valid visa. In this context, the word “unlawful” is just a rhetorical device, successfully designed to set the tone. It’s Parliament’s way of implying that asylum seekers are criminals without directly saying so.

You may have also heard the term “unauthorised maritime arrival”, which is a person who comes by boat without a visa, and also graciously includes any of their children even if they’re born here.

The provision most often touted as proving that asylum seekers break the law is section 42(1) of the act. It says that “a non-citizen must not travel to Australia without a visa that is in effect”. Such people are to be deported, the Act insists.

It is possible for an asylum seeker to commit a criminal offence under the act. If they escape from immigration detention, for example, or try to get in with falsified documentation, those are crimes. But they don’t touch on the original act of simply turning up without a visa.

There are people smuggling offences too, but unsurprisingly they only apply to the smugglers, not the asylum seekers themselves.

And that’s it. The other 7 billion sections of the Migration Act deal mainly with the mechanics of visa-granting and the ever-growing complexities of the offshore detention regime and Australia’s abrogation of its obligations under international law. Nothing that could possibly be mistaken for a law asylum seekers can break by turning up in a boat.

Section 42 is a directive provision, in that it tells people what they’re not allowed to do (rock up without a visa). It’s the only phrase in the entire act with which an asylum seeker can be said to be non-compliant by virtue of the mere act of arriving. The language here is critical; as any lawyer of semi-competence knows, you do not commit an offence simply by doing something an act says you may not do. You only commit an offence if the act explicitly says it’s an offence.

[Aussies agree conditions on Nauru, Manus are terrible, wish they were worse]

This isn’t semantics. If you read to the end of the quotes at the start of this piece, you’ll see Brandis trying to weasel his way from “Yes I do” think asylum seekers commit offences to “they’re unlawful” because they don’t join the mythical orderly queue. That’s not just sophistry, it’s misleading and wrong.

You can call asylum seekers “unlawful” if you like, as the Migration Act does and our politicians do when they’re being careful. It has no legal meaning, any more than would labelling a baby as “unlawful” in the period before its birth has been registered. Its only real significance is in its intended effect of dehumanising its objects.

The true legal position is that asylum seekers have an absolute right to enter Australia without a visa, by any means, by virtue of article 31 of the Refugee Convention to which Australia is a signatory. Under the same convention, Australia undertakes to consider their claim to refugee status. Australia does not comply with its obligations under the convention, in numerous ways and to its shame. But that’s another story.

The point is that asylum seekers are not just not acting illegally by coming here; they are pursuing a legal right recognised by international law. At no point in their journey do they become “illegal”; at no point do they commit an offence against Australian law.

Not many legal questions can be answered with 100% certainty. This one can. Brandis, in stating categorically that asylum seekers commit offences against our migration laws, was 100% wrong. His error may be excusable if he were not the first law officer of the Commonwealth of Australia. But he is.

Peter Fray

Help us keep up the fight

Get Crikey for just $1 a week and support our journalists’ important work of uncovering the hypocrisies that infest our corridors of power.

If you haven’t joined us yet, subscribe today and get your first 12 weeks for $12.

Cancel anytime.

Peter Fray
Editor-in-chief of Crikey