Does What Happens Offshore, Stay Offshore?

This article was originally published on Asylum Insight.

Australia leads the world in outsourcing and offshoring its human rights obligations. It is the only nation to subcontract the management of its entire detention centre network to private for-profit corporations. It is also the only nation that mandatorily detains those who arrive without a visa, and sends those who come by boat to third countries for processing. Between 2001 and 2007, and again from 2012, the Australian government has attempted to avoid both moral and legal responsibility for asylum seekers by sending them to offshore detention centres in the Pacific.

Australia maintains that responsibility for the management of these centres, and for the numerous abuses that have taken place there, rests solely with the host countries of Papua New Guinea and Nauru. The secretary of the Department of Immigration and Border Protection, Mr Michael Pezzullo, asserted during the 2015 Senate inquiry into conditions at the detention centre on Nauru that:

‘The Australian government does not run the Nauru Regional Processing Centre, or RPC. It is managed by the government of Nauru, under Nauruan law, with support from the Australian government. The government of Nauru operates the RPC, assesses asylum claims and, where persons are found to be in need of protection, arranges settlement. The government of Nauru is specifically responsible for security and good order and the care and welfare of persons residing in the centre.’ (emphasis added)

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The Extra-territorialisation of Migration Control and the Right to Seek Asylum

This article was originally published on Right Now.

In this age of globalisation, many asylum-receiving states have attempted to restrict access to asylum through a range of extraterritorial measures that effectively prevent asylum seekers from reaching territorial borders in order to apply for protection.

As Thomas Gammeltoft-Hansen notes in his book Access to Asylum, “the last decades have seen a number of policy developments to extend migration control well beyond the borders of the state.”

These extraterritorial measures include carrier controls that place financial penalties on airlines that carry those without a visa, disruption activities in transit countries, the use of immigration officers in foreign countries, offshore processing, and the interception of boats on the High Seas.

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Q&A Panel: The High Court and the Asylum Case

The High Court of Australia is poised to hear arguments about whether it is legal for the Australian government to intercept, detain and remove asylum seekers on boats outside Australia’s territorial waters.

What are the legal questions before the High Court? What are the government’s international law obligations? What avenues are open to the High Court? What might this mean for the future of Australian asylum policy?

In this Q&A panel, four legal experts will consider these and other issues:
Professor Jane McAdam (UNSW), expert on international refugee law
Professor George Williams (UNSW), expert on constitutional law
Associate Professor Tim Stephens (Sydney University), expert on the law of the sea
Edward Santow (Public Interest Advocacy Centre), expert on administrative law and co-author of Island of Impunity? Investigation into international crimes in the final stages of the Sri Lankan Civil War

The panel will be chaired by Steven Glass, partner at Gilbert + Tobin. The Kaldor Centre is grateful to Gilbert + Tobin for kindly hosting the event.

Statutory Interpretation in Australian Administrative Law

In an effort to protect parliamentary sovereignty, the Australian legislature has increasingly made new laws in areas that were once covered by the common law. Indeed, almost all aspects of law are now regulated by legislation.[1] Statutory interpretation has thus become an essential role of the courts in every aspect of the law. As Chief Justice Gleeson noted, applying legislation is now the largest part of the work of modern judges:

One of the changes making the work of modern judges different from that of their predecessors is that most of the law to be applied is now found in Acts of Parliament rather than judge-made principles of common law (in which I include equity).[2]

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The protection of the rights of asylum seekers: a comparative analysis of domestic bills of rights

I     Introduction

A domestic bill of rights is often upheld as a vital tool in protecting the rights of citizens. However, a bill of rights also plays an important role in protecting the rights of those seeking asylum. This essay will analyse how a domestic bill of rights protects the rights of asylum seekers in a comparative study between the European Union, the United Kingdom, Canada and Australia. Through this analysis, it will be shown that a domestic bill of rights is vital to ensure the rights of all people, including asylum seekers, are upheld.

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The Definition of Persecution: The effect of s 91R of the Migration Act

I     Introduction

The Convention Relating to the Status of Refugees 1951 was intended to protect those fleeing persecution. However, many countries have attempted to limit this protection by narrowly defining the definition of persecution in national legislation. Persecution is at the heart of the Refugees Convention, and as such a proper interpretation is key if countries are to honour their obligations. The Refugees Convention was always intended to be interpreted in light of international human rights law. Such an interpretation ensures that contracting states protect those facing many forms of persecution. Australian courts originally followed such an interpretation when defining the term persecution within the Convention. However, the Australian Government, under the Howard administration, feared that such an interpretation was too broad and sought to limit those who would be eligible for protection under Australian law. As such, section 91R was added to the Migration Act 1958 (Cth) through the Migration Legislation Amendment Act (No 6) 2001 (Cth) as part of the Government’s Pacific Solution. Such an amendment limits the definition of persecution under the Refugees Convention to only actions that constitute a harsh interpretation of serious harm. Such a test intentionally narrows Australia’s interpretation of the Convention so as to limit the number of people who Australia will provide protection to. As such, this amendment puts Australia at odds with the original intent of the Refugees Convention, and thus against international laws on treaty interpretation.

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The Role of International Law in the Development of Australian Common Law

I     Introduction

While Australia’s legal system, including the common law, is not bound by international law, international law can play a significant role in the interpretation and evolution of the common law system. In the landmark decision of Mabo, Justice Brennan notes that ‘the common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law’.[1] This essay will examine the role of international law in the development of the common law. In particular, the independence of the common law will be examined through the cases of Western Australia v Ward and Dietrich v The Queen. It will be shown that while the common law is indeed independent, international law can be used to interpret any ambiguities. The cases of Mabo and Teoh will be used to further show that international law can be used to reinterpret the common law when the common law is indeed out of line with international law. The continued use of international law will hopefully guide the Australian system to be more in line with the international community, especially in regards to international human rights standards.

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