On 21 March this year (2017) I made representation to the Australian Human Rights Commission (Commission) by lodging a complaint supported by the following submission.

 
 
BACKGROUND

On Monday, 13 March 2017 while in Brisbane, I heard a radio announcer, at approximately 2 PM, refer to the people detained on Manus Island as being 'illegal immigrants'.

I thought to myself, that cannot be true because my understanding is that under an International covenant, which I understood had been in place since the Second World War, any citizen of any country on this planet had a right to seek asylum as a refugee in another country.

A little bit of research and reading of the 1951 Convention Relating to the Status of Refugees and 1967 Protocol Relating to the Status of Refugees indeed confirmed that a "refugee" had a right under that Convention and Protocol to seek asylum in Australia.

However upon further research the Australian government website revealed that "… persons who come to Australia by boat seeking Australia's protection are classified by Australian law to be 'unlawful non-citizens".

I became significantly confused because my understanding of Australian law is that:

  • if a person is assigned a right by law, the execution of that right cannot correctly be termed "unlawful or illegal"; and
  • International treaties entered into by Australia and called up by national legislation form part of Australian law.

Upon further research I found that the basis for the use of the term 'unlawful' arises from the application of the Migration Act 1958

To add even further confusion I found on the Australian Human Rights Commission's website the following statement

"Seeking asylum in Australia is not illegal."

FACTS

In 1951 Australia was part of the Conference that drafted the Convention Relating to the Status of Refugees and then become a signatory to that Convention on 22 January 1954 and later to the 1967 Protocol Relating to the Status of Refugees on 13 December 1973.

The Australian government further advisers on their website under-

International law

Australia is a signatory to the United Nations 1951 Convention relating to the Status of Refugees (The Refugee Convention) 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, in both federal and state jurisdictions.

 
The Refugee Convention provides:

on page 2.

"... the right of persons to seek, in other countries, asylum from persecution.

on page 3.

" A refugee, according to the Convention, is someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion."

And also on page 3.

"..that a country is prohibited from:

  • prosecuting a refugee for "…immigration or criminal offences relating to the seeking of asylum"
  • "arbitrarily detained a refugee purely on the basis of (the refugee) seeking asylum".
 

 

The Migration Act 1958 provides:

Section 5H

Meaning of

  • refugee

(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality--is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b) in a case where the person does not have a nationality--is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

[*Wording lifted from Refugee Convention ]

  • non-refoulement obligations includes, but is not limited to:

(a) non-refoulement obligations that may arise because Australia is a party to:

   (i) the Refugees Convention; or

   (ii)the Covenant; or

   (iii) the Convention Against Torture; and

(b) any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).

Refugees Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951.

Section 14-Definition

14 Unlawful non-citizens
(1) A non-citizen in the *migration zone who is not a lawful non-citizen is an unlawful non-citizen.
(2) To avoid doubt, a non-citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non-citizen.

*migration zone means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations

Section 48A

No further applications for protection visa after refusal or cancellation

(2) In this section:

      (a) an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol;

Section 198AA

Reason for Subdivision

      (b) unauthorised maritime arrivals, including unauthorised maritime arrivals in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be a regional processing country; and

Section 198AB

Regional processing country

(3) In considering the national interest for the purposes of subsection (2), the Minister:

   (a) must have regard to whether or not the country has given Australia any assurances to the effect that:

      (ii) the country will make an assessment, or permit an assessment to be made, of whether or not a person taken to the country under that section is covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol;

Section 198AH

Application of section 198AD to certain transitory persons

(2) Subsection (1) of this section applies whether or not the transitory person has been assessed to be covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol.

Section 198AJ

Reports about unauthorised maritime arrivals

(1) The Minister must cause to be laid before each House of the Parliament, within 15 sitting days of that House after the end of a financial year, a report on the following:
   (a) arrangements made by regional processing countries during the financial year for unauthorised maritime arrivals who make claims for protection under the Refugees Convention as amended by the Refugees Protocol, including arrangements for:

.........

   (c) the number of unauthorised maritime arrivals determined in those countries in the financial year to be covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol.

Section 411

Definition of Part 7-reviewable decision

(1) Subject to subsection (2), the following decisions are Part 7-reviewable decisions:

   (a) a decision, made before 1 September 1994, that a non-citizen is not a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made after a review by the Minister of an earlier decision that the person was not such a refugee)

 
The Australian Constitution provides:

 

Paragraph 75.

In all matters-

      (i) Arising under any treaty:

      (ii.) Affecting consuls or other representatives of other countries:

      (iii.) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:

      (iv.) Between States, or between residents of different States, or between a State and a resident of another State:

      (v.) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:

the High Court shall have original jurisdiction.

 
SUBMISSION
  1. The Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees (Convention and Protocol) are International agreement and as such in terms of the Australian Constitution adopts the status of a "Treaty";
  2. Australia as a sovereign power with signatory to the Convention and Protocol, is thereby legally obliged to consider the intention and content (spirit) of the Convention and Protocol when drafting National law;
  3. The Migration Act 1958 (Act) not only recognises the existence of the Convention and Protocol within the text of the Act but the Australian government acknowledges, on their web site, the legal obligation to take the contents (spirit) of these documents into consideration when drafting and passing legislation.
  4. The Migration Act 1958 contains provisions that are contrary to the "spirit" of the Convention and Protocol and to the extent they are contrary, are void of application.
  5. The Australian Constitution provides facility for the High Court of Australia to hear this case.
  6. To paraphrase Judges DEANE AND GAUDRON in the The High Court of Australia decision in Mabo v Queensland No2 where @ 78 expressed the observation: -
  7. ' ...we have used language and expressed conclusions which some may think to be unusually emotive for a judgment in this Court.... the reason which has led us to describe, and express conclusions about, the dispossession of Australian Aborigines in unrestrained language is that the full facts of that dispossession are of critical importance to the assessment of the legitimacy of the propositions....

    Long acceptance of legal propositions,.... can of itself impart legitimacy and preclude challenge.

    It is the association of the long acceptance [in that case for more than a hundred and fifty years] of a legal propositions with the actions of a government that, in our view, precludes those two propositions from acquiring the legitimacy which their acceptance ..... would otherwise impart'

ALSO:- The other interesting feature of this case was the influence of specialist, on the court, from outside the material provided by the respective parties to the matter "...... we have been assisted not only by the material placed before us by the parties but by the researches of the many scholars who have written in the areas into which this judgment has necessarily ventured.

We acknowledge our indebtedness to their writings....... "

I have insufficient experience in this area but my limited involvement in law courts had left me with the impression that traditionally judges limited themselves in their deliberations, ONLY to the material placed before them from the parties.

If correct, this aspect is a new an exciting development in the High Court, because it signals a maturing of the system, to seek out facts, rather than just be a passive player in decision making and has positive connotations for this matter.

Fundamental human rights and freedom must stands at least side by side with rights for land ownership, maybe even superior.

Warren Bolton

21 March 2017

 
     
 

The Commission responded on 22 March advising me they cannot provide the assistance I seek and suggesting I raise my concerns with my local Federal member of Parliament as only Parliament can change laws.

 
 

I challenged the view that supported this advice and raised with the Commission a number of provisions within their legislation that I felt gave them the ability to respond positively on this matter.

 
 

The Commission’s response to my further submission was to ask me if I’d like to have my complaint referred to their 'legal' department, to which I answered in the affirmative.

 
 

The advice however from the legal section of the Commission was that their ability to take the government to court over national legislation which conflicted my country’s obligations under an international treaty was not within the province of the Commission.

Accepting that the commission had determined that they had no standing before Australian court on this matter I requested their advice as to a reference to some organisation that may not be so hamstrung

They suggested that Public Interest Advocacy Centre Ltd may be an avenue

 
     
 

Therefore on 15 May I approached Public Interest Advocacy Centre Ltd (PIAC) to see if they may be able to be of some assistance in progressing this matter so as to bring about a remedy not only to what is an obvious anomaly within the legislation that describes asylum seeking by refugees as 'unlawful', but also and more importantly to remove the illusion this terminology creates in the minds of many Australians, reinforced by its arrogant promotion by certain sections of the media, that somehow refugees  have no legal right to breach the borders of our country for the purposes of seeking asylum.

 
 

PIAC responded on 20 May advising me that they do not have the resources to pursue this matter but after a request they alerted me to the existence of the Parliamentary Joint Committee on Human Rights (Committee) who's main function is to examine bills and legislation for compatibility with international human rights standards to ensure that Federal legislation accords with and espouses the objects and intentions of our our international treaty obligation in the arena of 'Human Rights'.

 

 
     
 

I then asked the Committee to consider this matter.

     
 

The committee responded advising it had a:

  • specific functions to examine legislation that comes before the Parliament of Australia and
  • the function to inquire into any matter relating to human rights which is referred to it by the Attorney-General,

and report on that matter to both Houses of Parliament.

BUT does not have a mandate to examine individual or international human rights matters.- (Neither of which I had asked it to do)  

I was advised the committee considered my matter at its meeting on 13 June 2017 and determined to advise me that 'they had previously commented on proposed legislation relating to asylum seekers and the Convention Relating to the Status of Refugees in a number of its reports'

I was refered to those reports – (none of which, from my reading, addressed the issue I had specifically raised about the Migration Act’s use of the term ‘unlawful’ to describe an ‘asylum seeker’)

     
 

Of Course I was not prepared to leave the matter there so I responded asking the committee to confirm that there was nothing more they could do in this matter, to which I was advised that '....the committee is unable to assist with your request at this time. '

Naturally I was confused I didn’t understand what they meant by the term 'unable' because I really didn’t have an explanation of what particular aspects of my request to the Committee was beyond their scope and it was difficult for me to comprehend what 'time' had to do with it? I mean where they trying to tell me that at 'another time' they might be 'able' to do it?

PLUS Professional comment on the enabling legislation suggested contrary to that advice and in fact this matter fell within the Committee's powers and supported by advice from the Attorney-General's Department .

It wasn’t a very enlightening explanation for their decision so I wrote back asking the some more clarity.

Nothing further so far - Wednesday, 9 August 2017.

 
     
 

On Monday 21 August 2017, the committee further responded

This time the Chairman of the Committee Mr Goodenough (No! No! I am not being flippant or disrespectful -that is his name) responded personally to me confirming that the committee actually did have authority to review the matter I had placed before them and apologising for the use of the term “unable” to describe the Committee’s position, but it didn’t make any difference any rate because he then went on to advise me ‘…..the committee does not propose to take any further action at this time” regarding this circumstances, because of their need to ‘….allocate its resources and set its priorities’.

That true have a read yourself.

 
     
 

So I phoned the secretariat and talked to the Legislative Research Officer for the Committee and had a discussion with him as to the right procedure in relation to obtaining a copy of the Minutes of the meeting at which the matter that I placed before the committee was dealt with.

I was advised however that the Committee's meeting were 'private' and the Minutes are therefore not available to the general public but that I could try writing to the Chairman to see if he would consider the release of the minutes.

Accordingly I drafted a request and sent it off that day

Needless to say I was again flabbergasted. This cannot be the case, unless its national security what legal recourse would the committee have for withholding the minutes of their meeting from the public.

So I decided a bit more research was necessary and that I would see if I could is elicit support of the Australian Greens in putting pressure on the government to release the minutes. So I phoned the leader of the party (Senator Richard Di Natale) electoral office.

In discussions with his office secretary it was suggested that the most the approperate member of the Party to talk to about this matter about was Senator Nick Mc Kim.

So I rang Senator Nick Mc Kim electoral office and had a discussion with his office secretary setting out the material detailed above

On 29 August 2017 I recieved an email conforming that "Minutes for the Senate Committees are ... private," but suggesting an avenue I might try is to approach the secretariat to ask the committee if it would agree to releasing the minutes relevant to your particular inquiry but reminding me "this would by no means assure the minutes would be released."

In doing further research however I become aware that actually Senator Nick Mc Kim was in fact one of the committee member.

At this stage I am waiting for a response from the Chairman or Senator Nick Mc Kim -Tuesday, 5 September 2017

 

 
     
 

The committe responded on Monday 11 September 2017 to my requst via the Committee Secretary advising that they would not be providing me with a copy of that part of the minutes that recorded thier dealing with my submission.