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Who needs friends?

By Bruce Haigh - posted Thursday, 16 June 2011

Professor James Hathaway, a Canadian, is regarded as the pre-eminent authority on refugee law. He has written many learned texts and papers including a book referred to by all lawyers and judges involved in determining refugee status. The book was first published in 1991 under the title "The Law of Refugee Status", it is internationally renowned. It is a reference known to, and occasionally used by, the Australian Department of Immigration.

Hathaway was interviewed on the ABC news and current affairs program, The World Today, on 10 June 2011. During the course of that interview he said that the deal the Australian government had negotiated with Malaysia over the forced transfer of asylum seekers from Australia to Malaysia was illegal under international law.

The 1951 UN," Convention relating to the Status of Refugees" which came into force on 22 April 1954, and which Australia not only signed but helped to draft, specifically excludes the transfer of asylum seekers to non signatory countries, of which Malaysia is one. The Convention also excludes the transfer of asylum seekers to an environment where they may suffer further trauma, harm and discrimination.


Australia has begun a process which, when completed will see it break international law. When this occurs Australia will have abrogated its right to protest Japanese whaling, to criticise China's abuse of human rights and the many other injustices that Australia currently feels compelled to protest and comment on.

If a government is prepared to break the law, why should it expect better from its citizens?

Once Australia signs the deal with Malaysia we will lose the international status and standing that many Australians fought long and hard to build and maintain. It will be in the company of some fairly ordinary rogue states.

There is a notion that Australia seeks to set international standards. However as a wealthy, and predominantly white, nation on the edge of Asia, the fact that the Gillard government feels the need to enter such a dirty deal to try and stop a few boats with asylum seekers coming to Australia, will do nothing to add to the stock of goodwill, that a middle power like Australia needs, in order to achieve outcomes on a par with more powerful nations.

In that vein it has diminished its chances, if ever it had a chance, of securing a seat on the UN Security Council.

Who decided to break international law? Was it the Prime Minister and senior ministers acting against departmental advice? Were they aware that by entering the proposed agreement with Malaysia they would, as a consequence, break international law? If they acted on advice but were not aware, who failed to warn them? If they acted on advice and knew that by proceeding they would break international law, why did they proceed?


If public servants drew up the advice, since when in Australia has it been authorised for them to create schemes that in implementation will break the law?

How low have we gone when Ministers and advisers are prepared to break the law in order to achieve a political outcome? In terms of cesspit politics it's about on a par with Menzies when he deceived the Australian parliament and people by introducing conscription for service in Vietnam.

I didn't think with Gillard and Abbott that we could stoop much lower in Australian politics, but clearly we have. With a distinct lack of the back bone normally provided by moral fibre, they appear quite capable of slithering under an even lower bar.

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About the Author

Bruce Haigh is a political commentator and retired diplomat who served in Pakistan and Afghanistan in 1972-73 and 1986-88, and in South Africa from 1976-1979

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