New low in human rights: the asylum seeker legislation

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Ben Doherty at The Guardian has characterised the new asylum seeker legislation as “a seismic piece of legislation – one that destroys more than it creates.”

The passage of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 which “has given the immigration minister, while he holds that job, unprecedented, unchallengeable, and secret powers to control the lives of asylum seekers.”

In effect under the bill the minister can do anything he chooses, he can ignore the UN convention and avoid legal challenge – the courts have been sidelined.

With the passage of the new law, the minister can push any asylum seeker boat back into the sea and leave it there.

The minister can block an asylum seeker from ever making a protection claim on the ill-defined grounds of “character” or “national interest”. His reasons can be secret.

He can detain people without charge, or deport them to any country he chooses even if it is known they’ll be tortured there.

Morrison’s decisions cannot be challenged.

Boat arrivals will have no access to the Refugee Review Tribunal.

Instead, they will be classed as “fast track applicants” whose only appeal is to a new agency, the Immigration Assessment Authority, but they will not get a hearing, only a paper review.

“Excluded fast track applicants” will only have access to an internal review by Morrison’s own department.

Cross bench senators have been suckered by the promise that children will be released from detention, something the minister already had the power to do.

If we had a human rights charter the legislation would be struck out in a heart beat in a high court challenge. Since we don’t there is a fair chance the inevitable challenge will fail.

Critics – and they are a formidable group, including the United Nations High Commissioner for Refugees, the UN’s Committee Against Torture and parliament’s own human rights committee – say the bill strips the checks and balances that have always existed in Australia’s immigration system, and removes basic protections for those who arrive seeking asylum.

Australia now regards itself as free from the bonds of the Refugees Convention – a treaty Australia helped write, and willingly signed up to, more than half a century ago. All references to it have been removed from Australian law.

Max Chalmers at New Matilda reports on 25 children born in Australia who all had parents interned on Nauru but were flown back to Australia to give birth because of the poor medial conditions on the tiny Pacific Island. These children are the subject of a legel challenge being run by Maurice Blackburn’s social justice department. The legislation seems designed directly to alter the status of the children retrospectively and so prevent a favourable judgement.

It seems that children born in detention in Australia can now be deemed to have arrived by boat.

The UNHCR takes the view that Australia, as a signatory of the 1951 Refugee Convention cannot relieve itself of the obligations of the convention. The new law, however, creates an “new, independent and self-contained statutory framework” where Australia makes up its own rules. Australia now regards itself as free from the bonds of the Refugee Convention.

Especially egregious is the treatment of the principle of non-refoulement obligations under the legislation. Under this principle it is forbidden to return a person to a country where they may still be persecuted or tortured. Don McMaster at The Conversation points out that the Australian law states:

… it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

The law seems designed to ensure that whole boatloads can be returned to Sri Lanka without legal challenge.

Malcolm Fraser has savaged Scott Morrison’s new asylum seeker laws and the senators who passed them.

Australia is now known around the world as the most inhumane, the most uncaring and the most selfish of all the wealthy countries, former prime minister Malcolm Fraser has declared.

Mr Fraser says migration legislation passed last week has given Immigration Minister Scott Morrison “dictatorial, tyrannical powers” over the lives of asylum seekers and “destroyed the rule of law as we know it”.

“The crossbench senators, Xenophon, Wang, Lazarus, Day, Leyonhjelm and Muir are wrong because their grievous political error has betrayed Australian democracy,” Mr Fraser said.

“They have co-operated by tearing up international conventions, practices of international law, all necessary if we are ever to establish a better and a safer world…

Paul Syvret in The Courier Mail says the legislation makes Australia a rogue state regarding international law and human rights. He terms it as “cruel, callous legislation that is arguably in breach of international law.”

Morrison effectively used children in detention as pawns to blackmail his legislation through the Senate, saying to the likes of Muir: “Pass my Bill and I’ll release the kids.”

This ignores the fact that he (and Labor before him) has the power at any time to release those children. It is hard to imagine a more cynically exploitative abuse of process and human life, and this from a man who professes to be a Christian. And here it is a shame Muir and others didn’t stand firm and say “Release the children first, and then we’ll negotiate”.

About 70% of the detainees languishing behind wire in the Manus Island and Nauru compounds who have had their claims processed have had positive determination of their refugee status, but both sides of politics have ensured that they have no place here.

It is a policy of deliberate cruelty perpetrated by both sides of politics, but taken to new — to use Senator Sarah Hanson-Young’s description — sociopathic depths by Morrison last week.

Future generations will look back on this dark period in Australian history with profound shame and regret. Many of us feel that way already.