How two lies became accepted folklore

When the Refugee Convention was written in 1951 the understanding and spirit of the convention was that signatory nations assess the claims of anyone who applied in their territory. Articles 31, 32 and 33 were written and ratified to ensure this would be the case, yet it is those three articles that have become the most bastardised by our "leaders" over the last 25 years.

Article 31 is very clear – no state shall apply any penalties to asylum seekers if they are "unlawfully" in their territory provided they present to the authorities and state their reasons for being there. Therefore, illegal entry is not a sufficient concern to deprive the individual of the right to have their refugee claim determined.

In 1992, the Keating Labor Government introduced mandatory detention. They instituted a system of imprisonment without charge for the purpose of "administration" in the determination of claims for asylum. The legislation explicitly denied judicial review, but did impose a 273-day limit on detention. In 1994, the Keating government introduced new legislation called the Migration Reform Act 1992, expanding the application of mandatory detention to cover all those who did not hold a valid visa, and removing the 273-day limit. This extension laid the foundation for the indefinite detention we see today.

Perhaps the best description of this insanity can be found in Peter Mares book "Borderline" first released in late 2001:

"People started to go mad, they started to stitch their lips and they started to burn the prisons to the ground and over the last 20 years there have been dozens of reports showing that imprisonment in this manner is indeed punishment for "illegal' arrival, even though the arrival is a right enshrined in the Migration Act almost 20 years ago now."

Article 32 forbids expulsion from host territories for any reason other national security or public order. Yet in the case of TAMPA, Howard expelled asylum seekers to win the votes of the more racist Hansonists and to maintain a lie. It was shown in Peter Van Onselen's and Wayne Etherington's biography of John Howard that Jacquie Kelly, the member for Lindsay, told Howard just before the 2001 election that he had to do something about stopping the "boats," and so he broke the law and turned away those rescued on the TAMPA.

Article 33, the most important of all the protections, forbids refoulement or even indirect refoulement or return to any place of danger for refugees. A State can only deny entry to an individual as long as there is no "real chance" that if denied and returned, the refugee will be exposed to the risk of being persecuted.

So, with such clear rules legally binding on all signatory states and even non-signatory states to some extent through international customary law - the principle of non-refoulement is binding on all States regardless if they have signed the Refugee Convention - how did Australia come to have so little leadership on the three most important and non-derogable articles of the refugee convention?

It started with the misrepresentation that only those refugees who come from refugee camps have any right to claim asylum in Australia. However, those refugees in camps are processed separately, under a voluntary resettlement scheme between UNHCR and Australia.

The DIAC website clearly shows that we have three streams of humanitarian visa applicants.

1. Offshore Resettlement - For those few refugees we accept on a voluntary basis provided that we are the country of last resort, that they suit Australia and that they can work and fit in. It's a well-funded, expensive program but it is not obligatory on us and it has no legal treaty cover or basis.

2. Special Humanitarian Visas - For the family members sponsored by those refugees who are already here. Families must pay all their expenses, but again this is voluntary.

3. Onshore Applications - For protection visas under the Refugee Convention. This is the only program that is legally binding and legislated by the parliament yet not one media outlet, not one politician besides Judi Moylan in a speech this year, has pointed it out to the public.

So, lie number one festers into a vile sore as we continue to jail innocent people who have the right to come and claim asylum here. Asylum seekers have the right to claim asylum and have their applications processed on-shore as evidenced by Justice Ron Merkel, in the Al Masri case:

62 The Refugees Convention implicitly requires that, generally, the signatory countries process applications for refugee status of on-shore applicants irrespective of the legality of their arrival, or continued presence, in that country: see Art 31. That right is not only conferred upon them under international law but is also recognised by the Act (see s 36) and the Migration Regulations 1994 (Cth), which do not require lawful arrival or presence as a criterion for a protection visa. If the position were otherwise many of the protection obligations undertaken by signatories to the Refugees Convention, including Australia, would be undermined and ultimately rendered nugatory.

63 Notwithstanding that the applicant is an "unlawful non-citizen" under the Act who entered Australia unlawfully and has had his application for a protection visa refused, in making that application he was exercising a "right" conferred upon him under Australian law."

This has been upheld by the high court in the Al Kateb caseas Justice Gummow indicated in Al-Kateb at [86] ff:

"The current Migration Act, unlike its precursors, does not make it an offence for an unlawful non-citizen to enter or to be within Australia in contravention of, or in evasion of, the Act.

Further, as Justice Hayne observed in Al-Kateb at [207]-[208] the description of a person's immigration status as "unlawful" serves as no more than a reference to a non-citizen not having a "valid permission to enter and remain in Australia". The use of the term "unlawful" does not as such refer to a breach of a law."

Imagine how different the 'debate" would be in this country if one politician simply stated this truth and showed the leadership to believe in it.

Then we come to lie number 2, considered by Malcolm Fraser and rejected way back in 1976 when the first Vietnamese arrived – "People smuggling." We claim that providing transport for refugees is people smuggling even though the law of this country states that it is a legal right to arrive without papers of any kind and ask for help.

How can something that is legal for the refugees, possibly be illegal for those who give them nothing more than one-way transport?

In 1999 Ruddock introduced penalties for giving refugees transport to this country and in response the UN wrote and put in place two protocols against the trafficking of humans and the smuggling of migrants.

The first is concerned with the trafficking of mainly women and children for sexual slavery. The second is for the forced movement of migrants across borders to exploit them usually for labour or war, on an ongoing basis.

Both have saving clauses to protect the trafficked women, children and migrants and to exclude those seeking asylum under the Refugee Convention and Protocol. Both have been ratified and agreed to by the Australian Parliament and both have been totally ignored or misused by the government of the day since 2000.

Australia has never jailed a single person for people smuggling. We jail Indonesian crewmembers not for people smuggling, we jail them because we must assess the refugee claims of those who arrive here. A recent Senate investigation showed that Article 232 of the Migration Act, used to detain innocent people was in breach of Article 32 of the Refugee Convention and the People Smuggling Protocol.

As has been observed in relation to other cases of this kind, the prisoners were not involved in a people smuggling exercise. There was nothing covert about either operation. They were transporting the non-citizens to Australia for presentation to Australian authorities. There was no attempt to hide from the authorities or to disguise what they had done."

It is only now that the courts are realising that it is a lie to call it people smuggling and the real insult is in the language of the protocol itself:

During the sessions of the Ad-Hoc Committee, The United Nations of the High Commissioner for Refugees (UNHCR) emphasized the need to reconcile measures to combat the smuggling of migrants and the trafficking of persons with existing obligations under international refugee law.

UNHCR welcomes the adoption of a saving clause in both Protocols, designed to safeguard the rights of asylum seekers and refugees under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, in particular in relation to the principle of non-refoulement.

In addition, UNHCR appreciates the adoption of provisions for the protection of smuggled migrants, such as the obligation of States Parties to take appropriate measures to afford smuggled migrants protection against violence and to take into account the special needs of women and children.

The Protocol against Smuggling does not aim to punish persons for the mere fact of having been smuggled or to penalize organizations that assist such persons. Australia is now alone in the world in its attempt to jail both refugees who arrive by sea and those who help them. The difference is that the refugees have no legal rights and those who help them do.

As Mary Crock and others point out, no one else in the world jails those who give refugees a ride, although a small number of countries do impose small penalties.

Imagine if our leaders today simply told the plain truth that under Australian and International Refugee Law anyone is allowed to claim asylum in this country and there is no crime in coming by sea. Without "smugglers" no genuine refugee could ever escape their persecutors. Imagine if our leaders simply told that truth?

Would so many still blame the refugees if the truth was told openly by the 'leaders" we have today or are they all so tainted we would not believe them? Or is it simply that the two ignorant lies have taken hold and no amount of truth will ever dispel them?

Australia has never been a leader on refugees even though we helped to write the Refugee Convention - we just like to pretend we are.