[Mary Crock is Professor of Public Law at the University of Sydney]
This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.
Although Australia identifies as a member of the United Nation’s ‘Western European and Others’ Group (‘WEOG’), it has now enacted laws that place it much more comfortably as an Asian nation. Unlike the WEOG countries, few Asian nations are party to the
Refugee Convention (‘
Convention’), or to any of the major human rights conventions other than the
Convention on the Rights of the Child. Most countries in this region understand and (generally) conform with the
non-refoulement obligation enshrined in s 33 of the
Convention, but they will not entertain the notion that refugees on their territories enjoy any economic or social rights. The presence of refugees is tolerated at best. At worst they are treated as ‘simple’ illegal migrants and subjected to detention, harassment and discrimination.
Relying on the recommendations of a committee that notably did not include anyone with legal expertise, the Labor government has now moved to create a regime that Associate Professor Foster demonstrates is decidedly un-WEOG. It is squarely at odds with all but the most basic tenets of refugee and human rights law.
Non-refoulement is the only principle of refugee law acknowledged in express terms. It is a regime that reifies the people in respect of whom the
non-refoulement obligation is owed by denying in language that asylum seekers have any
rights or agency in the protection process. The protection of affected refugees has become a privilege to be granted at the absolute (non-reviewable and non-compellable) discretion of the Minister for Immigration.
