International Law The 1951 Refugee Convention Australia is

International Law

The 1951 Refugee Convention • Australia is a signatory to the United Nations 1951 Convention relating to the Status of Refugees and to the subsequent 1967 protocol. • This means that Australia is legally obliged to develop law and policy in the spirit of The Refugee Convention.

What is the “spirit” of this convention? • Assist those fleeing from persecution – no penalties for those who arrive without documents. [Article 31] • The principle of non-refoulement (non-return) [Article 33]

Human Rights Treaties • International Covenant on Civil and Political Rights (ICCPR) • Convention Against Torture • The Convention on the Rights of the Child

Useful resource • https: //www. youtube. com/watch? v=PZvx 9 yg 5 Wlw

Domestic law • Law making in regard to migration is the responsibility of the Commonwealth Parliament. • The Migration Act (1958) • Although it is called The ‘Migration’ Act, it covers asylum seekers and refugees.

Migration Act 1958 • Asylum seekers who arrive on the mainland without a valid visa must be held in immigration or community detention, or transferred to an offshore processing facility. • Prior to 1992, asylum seekers were held in detention under the Migration Act 1958 (Cth) on a discretionary basis. Mandatory detention was introduced under the Migration Amendment Act 1992 (Cth).

Migration Amendment Act 1992 • Under this Act, it is mandatory for those who arrive without visas to be detained (i. e. kept in detention) • This Act also removed limitations on time spent in detention.

Why was this Act passed? It was proposed that mandatory detention would: • Facilitate the processing of refugee claims; • Prevent unlawful migration; and • Save the cost of re-locating people into the community

Has it worked? • Detention is expensive • Suffering of those in detention • Australia’s international reputation has been negatively impacted as we are not seen to be upholding our responsibilities in regard to international treaties

CLASH International Law Domestic Law

The enforcement problem • There is no effective means of enforcing Australia’s obligations at an international level. • As a result, it is left to Australian courts to monitor the legality of the government’s actions. • However, Australian courts can only enforce obligations under domestic law rather than international law. (The Conversation, 2014)