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Legal and Constitutional Affairs Legislation Committee

DE KRETSER, Mr Hugh, Executive Director, Human Rights Law Centre

EMERTON, Dr Patrick, Associate, Castan Centre for Human Rights Law, Monash University

FOSTER, Associate Professor Michelle, Director, International Refugee Law Research Program, University of Melbourne

HOANG, Mr Khanh, Associate Lecturer, Migration Law Program, ANU College of Law, Australian National University

O'SULLIVAN, Dr Maria Josephine, Associate, Castan Centre for Human Rights Law, Monash University

RYAN, Mr Rhys, Secondee Lawyer, Human Rights Law Centre

ZAGOR, Mr Matthew, Senior Lecturer, Migration Law Program, ANU College of Law, Australian National University

Evidence from Mr de Kretser and Mr Ryan was taken via teleconference—

[ 13:15 ]

CHAIR: Welcome to this panel discussion. We have submissions respectively which we have numbered 166, 167, 137 and 168. We are supposed to conclude this session at 1.45 pm for another panel but we might drag it on a bit seeing we are late starting. These are proceedings of the federal parliament and parliamentary privilege applies. If there is anything you want to say in private, let us know and we will deal with that. Do any of you want to amend or add to your submissions? Alternatively, we might ask for an opening statement from each of you. I think that would be the fairest way to go, bearing in mind that we have not much more than half an hour. Do any of you want to make an opening statement?

Mr de Kretser : Thank you for the opportunity to speak today and in particular for accommodating us via the telephone. We strongly recommend this entire bill should be rejected. Given the number and expertise of others in this session and the timing, we will focus very briefly on two aspects: firstly, the radical changes to the government's maritime coercive powers and, secondly, the treatment of babies born in Australia to asylum parents. The Maritime Powers Act already grants officers coercive powers to intercept vessels, to detain people and to take them to a place outside Australia. As a party to the refugee convention and other key international human rights treaties, Australia has a fundamental legal obligation not to send people to a place where they face a real risk of persecution, torture or serious harm.

The Prime Minister, the foreign minster and the immigration minister have all repeatedly assured the Australian people that the government complies with its international obligations in its asylum seeker operations. This bill, however, explicitly attempts to remove any requirement for the government to comply with or even to consider these fundamental international law obligations when exercising these coercive maritime powers, including the power to return people to countries they are fleeing. The bill would also remove any requirement for natural justice; in other words, a fair decision-making process when exercising these powers. Natural justice includes a very basic right to be heard on what may literally be a life or death matter.

We were part of the legal team representing the 157 asylum seekers, including 50 children as young as one, who the government detained on the high seas earlier this year for almost a month in windowless rooms for at least 22 hours a day while it tried and failed to negotiate to send them to India. It took the High Court case for the government to break its secrecy to even confirm the asylum seekers were in Australian custody. At one stage the government also devised and then aborted a plan to dump the asylum seekers on orange lifeboats somewhere off the coast of India.

The government admitted in the court case that it did not ask the asylum seekers a single question about any refugee or other protection claim they may have had before trying to send them to India.

We have also closely followed the story of the 41 Sri Lankan asylum seekers who the government also intercepted at sea in June this year. The government performed a cursory, shortcut refugee assessment at sea via some kind of telelink, and then returned them directly to the Sri Lankan navy. This is precisely the behaviour that the government wants to ensure it is able to engage in, and it is fundamentally inconsistent with our international law obligations.

The only way we can ensure that we do not return refugees to risks of harm is to fairly and properly assess their protection claims. This bill attempts to remove any legal consequences if the government fails to do this. It would allow the government to lawfully return people seeking protection from persecution directly into the hands of the country they are fleeing from. I will now hand over very briefly to my colleague Rhys Ryan on the issue of newborn babies of asylum seekers.

Mr Ryan : Just briefly on this issue: schedule 6 of the bill seeks to ensure, retrospectively, that a child born in Australia who has at least one parent who is an unauthorised maritime arrival is themselves an unauthorised maritime arrival. Aside from the obvious illogicality of classifying babies born in Australian hospitals as unauthorised maritime arrivals, defining children this way would subject them to mandatory detention and transfer to Nauru, to conditions the UN refugee agency has criticised as not safe or humane or otherwise appropriate for children. It would also potentially make these babies stateless, thereby exposing them to a range of significant civil, economic and social problems experienced by stateless persons. The amendments would clearly breach the Convention on the Rights of the Child and should be rejected.

That ends our opening statement. We are happy to take questions either now or perhaps after the opening statements from the other witnesses.

CHAIR: We will come back to questions later. Who is going to be first?

Prof. Foster : I think we agreed that I would go first. I thought I would mention that I am the co-author with Professor James Hathaway of the 2014 edition of The Law of Refugee Status, which is considered an authoritative work on the refugee definition at international law. So, for that reason, I am going to confine my introductory comments to schedule 5 of the bill.

CHAIR: Just before you start, were you consulted by the department or anyone in relation to this bill?

Prof. Foster : No, I was not.

CHAIR: Okay; carry on.

Prof. Foster : Part 1 of schedule 5 seeks to amend the Migration Act so that an officer must remove an unlawful noncitizen under section 198 whether or not Australia has nonrefoulement obligations in respect of that person. I would just like us to reflect on what that means in practice and what it says about Australia as a global citizen.

Nonrefoulement, the concept of nonreturn to persecution, is the bedrock of the refugee convention, and is now understood to represent, in addition, a principle of customary international law. The passage of this bill would represent a watershed moment in our legal history. We have a never before explicitly authorised return irrespective of our international obligations, and no other country to which we would compare ourselves has any such provision in their law. To authorise refoulement is a direct and unambiguous violation of the refugee convention, and it is no defence at international law to argue that the act is authorised by domestic law; it remains a violation of international law. The passage of this schedule in particular would send the message that Australia is no longer committed to the cardinal obligation in the refugee convention, and that we are a nation prepared to authorise our executive government knowingly to send a person to face serious harm, torture or even death.

Part 2 of schedule 5 seeks to replace the internationally recognised understanding of 'refugee' with:

… a new, independent and self-contained statutory framework …

As has been mentioned, article 1A(2) of the refugee convention sets out the definition of a refugee, and is the definition that is binding on the almost 150 states who are party to the refugee convention. Article 42 of the refugee convention expressly prevents any state from making a reservation or derogation in relation to that definition. In other words, it is not open to any state party to detract from the international understanding of the definition.

These amendments are explicitly designed to establish an insular, peculiarly Australian approach to interpretation of the definition and thereby eschew reference to the international understanding which has been developed by decades of judicial interpretation, both by Australian courts but also in the superior courts in the common law and, increasingly, the civil law worlds. It also explicitly seeks to restrict and limit the definition. I urge the committee to recognise that interpretation should be left to the judicial branch of government, whose expertise, experience and independence make it the appropriate branch to undertake a principled interpretation of our international obligations.

In our view, several of the provisions are at odds with international law. I will just mention a few of them, but obviously I am happy to take questions. In section 5J(1)(c) —the requirement, effectively, that you were just asking about, Senator Reynolds—the real chance of persecution relates to all areas of a receiving country. This essentially requires one to establish countrywide persecution, which is not in the convention definition at all. It is an introduction of limiting words which the UNHCR has said 'would impose on an applicant an impossible burden'.

To give you another example, in section 5J(2), we have two provisions of concern. The idea that a person can be refused protection where, first, their home country has a theoretical system of protection regardless of whether the protection is actually available; in other words, it is not much consolation to a person to know that if they are killed, the police might investigate. What is needed is practical protection, and that is very well understood internationally. This would be a departure from that.

The other provision of concern is the notion the protection can be delivered by a non-state actor. I point the committee to the convention definition, which requires a person to establish that they do not have protection of the home state, of the state; not a non-state actor. For example, under this provision, a person could be rejected on the basis that the Taliban could protect them or a clan or a family. I also note that non-state actors have no obligation to protect. They are not accountable at international law, and there is nothing in this provision which requires any protection to be durable. As I said, I am happy to take more specific questions from Senator Reynolds and I am also quite happy to respond to Senator Macdonald's points about a queue. I do have quite strong views on that so I would be more than happy to answer that later.

CHAIR: All right; we will pass on. Just on the point of sending people home to be killed—you were listening before; I am trying to help someone in that situation—surely if the minister were aware of that he would not send them home, regardless of what this bill says.

Prof. Foster : I think we have to remember that we are a democracy that is based on the rule of law, which means accountability. We cannot rely on pure executive power in this regard. We cannot say that we are complying with our international obligations simply because we think the minister would do the right thing. We need to ensure that our legislation reflects our international obligations, because that is what is reviewable by a court.

CHAIR: With respect, we do live in a democracy and clearly in this area the government is responding, as it should, to the overwhelming wish of the Australian people to have some order on our borders. Anyhow, I am not here to argue; I am here to listen to you. I appreciate your comment, but—

Prof. Foster : Maybe it is a good time to take up your suggestion—

CHAIR: Perhaps, in fairness, we will come back to that. Who is next? Dr O'Sullivan?

Dr O'Sullivan : Thank you, Senator. We are grateful for the opportunity today to address you on behalf of the Castan Centre for Human Rights Law, with my colleague Dr Patrick Emerton. We are going to focus today on the proposed schedule 1, the changes to the Maritime Powers Act. We are concerned about the amendments as they do two things. Firstly, they allow a very wide discretion to be given to the minister for immigration. Previous submitters and my colleague Michelle Foster have also alluded to that. It is very concerning that we are giving one person in the government a wide discretion to make authorisations over the Maritime Powers Act. Secondly, there is very little legal certainty in place to deal with maritime transfer and detention.

Firstly, on the issue of discretion: as I said, the bill grants the minister very wide powers to detain people at sea with very little review. As someone said in the previous session, one of our central legal principles in Australia is administrative law, the idea that the executive government is accountable via representative government, via our courts, to the people. One of the ways we can do that—make the executive government accountable—is via judicial review and merits review.

Secondly, on the issue of legal certainty: this is very concerning because two of the provisions may lead to indefinite and arbitrary detention. The first is the proposal that we can transfer and detain asylum seekers on the high seas without having an agreement in place prior to that action.

So, conceivably, we could have an asylum seeker on the high seas that is intercepted.

There is no agreement with other countries. That vessel could be taken near India and India says, 'No, we can't take them.' We could take them to Vanuatu and Vanuatu says, 'No, we don't want to take them.' We could be going around the high seas for months and months without a second country willing to take those asylum seeker vessels. As the committee may see, that will lead to indefinite detention. The net effect of these provisions is highly concerning, particularly given the fact that these people are going to be detained on the high seas on a naval vessel, or on their own vessel, in cramped conditions that may be judged to be inhumane.

We wish to conclude by noting that the interception and transfer of asylum seekers on the high seas is a serious measure. Under the Law of the Sea, Australia does not have jurisdiction on the high seas. We can control things, but we do not have jurisdiction. This very much goes beyond what we are allowed to do under international law. For that reason, any operations must be seriously constrained. My colleague Patrick Emerton will now address the public law constraints which should apply.

Dr Emerton : I want to make two points. One point is about constitutionality. As pages 4 to 6 of our submission outline, these amendments will permit Commonwealth officers to detain people for an effectively open-ended period of time - as my colleague has just explained - and that detention would be for a purpose; namely, the purpose of taking those people on a trip around the oceans looking for the mother country to take them, a purpose that goes beyond the constitutionally permitted purposes of excluding aliens or processing their claims. So there are two constitutional problems - open-ended detention for an invalid purpose.

The second point I want to make is that this act, if it were held to be valid, establishes a real risk of encouraging unlawful detention. Pages 6 and 7 of our submission set out this argument. Detention by officers of the Commonwealth will not be lawful, even if authorised by statute, if it does not serve a valid statutory purpose. Even if the amended act were held to be valid on the basis that it does establish a regime for excluding aliens from Australia, its provisions would practically invite detention that goes beyond that purpose because of the source of purposes for which the act does invite detention and the nature of the detention that it invites. This would invite officers of the Commonwealth to undertake activity that would fall outside the sphere of statutory lawful detention.

There are various no-invalidity clauses proposed to be introduced into the act. The better view is that those no-invalidity clauses would not cure the problem that we are drawing attention to because habeas corpus are in order for release from unlawful detention and will issue on the basis that the detention is unlawful, even if the decision which led to the detention was itself a valid exercise of statutory power.

In short, these amendments - both because of the fact that they are constitutionally suspect and that in practical terms, even if they were held to be valid, unlawful detentions might take place pursuant to them - will inevitably be subject to High Court challenge, or action undertaken pursuant to them will be subject to High Court challenge. We think the better view is that such challenges would be successful and that is the reason to act pre-emptively and not enact unconstitutional legislation.

CHAIR: Thank you, Dr Emerton. Mr Hoang.

Mr Hoang : Thank you for the opportunity to present before the committee today. In the interests of time, I will confine my remarks to schedule 2 of the bill which deals with temporary protection visas and the safe haven enterprise visa. My colleague Matthew Zagor will talk about the fast-tracking process. We oppose the reintroduction of temporary protection visas on the basis that they are discriminatory and are inconsistent with the broad objectives of the refugee convention. Temporary protection is usually provided by states to address situations that do not squarely fall within the convention or where people are fleeing from generalised violence or other emergency situations. It is the practice of most states to grant permanent protection to those who are found to be convention refugees.

By contrast, the TPV effectively discriminates against people who come by boat and who have been found to be refugees by ensuring that they will never be granted a permanent protection visa. If we want to talk about certainty for people then we say that the temporary protection visa and the safe haven enterprise visa do the exact opposite of providing certainty.

We say that they provide uncertainty. That uncertainty of the role of temporary protection visas and the ban on family reunification has caused psychological and mental health problems, and that has been well documented over many years in Australia. Ironically, the ban on family reunification might have the unintended consequences of encouraging more people to get on boats because it is the only way in which they can be reunited with their family. We agree with the previous submitters on this point.

CHAIR: That is not right. The government can send the other one back and reunite the family.

Mr Hoang : Pardon?

CHAIR: I say you can reunite the family if the government sends the one that was here back home.

Mr Hoang : I will address that. What we say to that is that you cannot send the child back to the country because he or she is already found to be a refugee and has a real, well-founded fear of persecution. If you send the child back then the child is at risk of harm, so we say that the only place where you can have family reunification is in the country of refuge. I also have some comments to make on the SHEV, but I am happy in the interests of time to take those in questions.

Mr Zagor : I will be speaking to schedule 4, which concerns the new fast-track mechanism. It contains provisions that severely limit, and in many respects extinguish, the basic right to independent merits review. It is targeted at a category of persons who are identified exclusively by reference to their means of arrival. As the government notes in its submission, schedule 4 implements the objective of 'removing incentives for illegal arrivals'. In other words, it is less about administrative efficiencies than deterrence.

Given the significance of the rights that are being removed, we consider that these provisions in effect impose penalties on refugees for not complying with domestic requirements for legal entry. That is prohibited under article 31 of the refugee convention. It is also disproportionately discriminatory, breaching Australia's obligations under the ICCPR. Moreover, by stripping applicants of the right to an independent, effective and impartial review, the likelihood of not identifying refugees who trigger our protection obligations is significantly increased. That is a risk that is further exacerbated by the removal of funded legal assistance for asylum seekers.

Recognition rates of those arriving irregularly by boat in Australia have consistently over the decades hovered around 80 to 90 per cent, and when a separate independent merits review existed for this category the overturn rates ranged between 70 and 80 per cent. These amendments, in other words, will impact on a group who are overwhelmingly likely to be convention refugees, and who will not necessarily be recognised at first instance, for very good reasons. A wrong decision will have dire consequences. This is why it is widely recognised that due process and robust review procedure are essential preconditions for ensuring compliance with the prohibition on refoulement. As the Parliamentary Joint Committee on Human Rights noted when it looked at this bill, this legislation fails that basic test.

We also share the serious concerns expressed by the Senate Standing Committee for the Scrutiny of Bills, and I commend their report to this committee. They are concerned at the exclusion of the common law rules of natural justice and the 'extremely limited scope for applicants to meaningfully participate in the review process'. These are exclusions and limitations which the committee said had not been adequately justified by the government.

Under this bill, the new IAA—the Immigration Assessment Authority—must not accept relevant new information or interview an applicant, except in undefined exceptional circumstances and, as in other parts of the bill, this depends upon the exercise of an unreviewable executive discretion. Indeed, the whole scheme can be extended and entire categories excluded, even from the fast-track review regime, at the minister's say so. Australia's international obligations and the fate of refugees should not hinge on such uncertainties. I leave my opening comments to that.

CHAIR: Thank you all for being very brief; I know you would all like to make further points. Can I start by reminding myself and my colleagues that the longer we take here the less time the next people are going to get, so we will have to try to be brief. I will just make a comment to Mr Zagor, because he has just mentioned it, but I think it is something that Professor Foster wanted to mention too.

You say 80 per cent of the illegal maritime arrivals are found to be refugees. I suggest to you that 100 per cent of refugees who come through the UNHCR system, out of refugee camps, would be found to be refugees in Australia. Whilst we cannot take the whole world's refugees, we have to have an ordered system of accepting them. Do you not agree with that?

Mr Zagor : I disagree with the premise. I think you are making an artificial link between the offshore program and the onshore program. Talking about this idea of a queue—and I know that my colleague Professor Foster—

CHAIR: I am talking about people coming into Australia and settling here because they are genuine refugees. We have a system for it and have had for 100 years.

Mr Zagor : And there has also been a system in place for almost 70 years for people who have arrived irregularly, which is a right that they have when they are fleeing persecution, to have their claims processed and to have their protection obligations recognised under the convention. Unless we are talking about pulling out of the convention and only focusing on those in the camps, I cannot see the relevance of this.

Prof. Foster : I just want to make something absolutely clear. This idea that there is a queue—I very respectfully but very strenuously disagree. There is no queue. The UNHCR does not maintain a queue. We do not have a queue, in the sense that, if a person applies for one of these visas, the fact that they have been waiting for any period of time is irrelevant.

CHAIR: It might be irrelevant to you; it is probably not irrelevant to them.

Prof. Foster : It is very relevant to them, but it is not taken into account in deciding whether or not they get a visa. About 90 per cent of people who apply through that scheme are rejected, and the UNHCR and other—

CHAIR: Of which scheme are rejected?

Prof. Foster : The resettlement scheme.

CHAIR: Ninety per cent are rejected?

Prof. Foster : Most people who apply are rejected. They may have a very good claim. They may meet all the criteria, but it is just that, for whatever reason, we have decided to give priority to a different area. So the other point is that the refugee convention itself—

CHAIR: Well, we cannot take every refugee in the world.

Prof. Foster : Of course not, but I just want to make it really clear: the refugee convention does not establish an orderly queue. Refugee movements have always been disorderly and they always will be. The refugee convention is premised on the supposition that people will arrive without authorisation. In fact, article 31 prohibits Australia from penalising asylum seekers simply because they do not have an authorisation. The rest of the world have to deal with this. We are very unusual in that—you are right—for several decades after we signed the treaty, the refugee convention, we did not have a lot of unauthorised arrivals. But I think that has given rise to this assumption that that is the way it should be. But it is not the reality. The rest of the world have to deal with unauthorised arrivals.

CHAIR: That is your view. I must say it is not the view of the majority of Australians.

Prof. Foster : International law sets up a system whereby people are entitled to arrive and claim asylum at the border without prior authorisation. That is the international system. We are trying to opt out of that and establish a completely idiosyncratic, orderly system, which I am suggesting is out of step with the rest of the world.

CHAIR: Australia takes a certain number, be it 13,000 or 20,000 or whatever—we can argue about that—but, once you select that, there has to be a process by which you can fairly bring into Australia people who are genuine refugees.

Prof. Foster : Sure, and I think we should be commended for having a resettlement system, but we are not entitled to use that system to justify clear violations of our international obligations. You cannot use a system that actually goes beyond our obligations to then justify—as you yourself said, Senator—draconian laws which are inconsistent with our international obligations. It simply does not work that way.

CHAIR: What the government is trying to do, though, is to fix a problem and get some order into it. There is no question that Australia will continue to be better per capita than almost anyone in the world in accepting refugees. It is just a question of where they come from. Is it the wealthy people who can pay people smugglers to get to Australia or is it those who are in squalid refugee camps and waiting their turn—you say there is not a turn.

Prof. Foster : Maybe you could show me the queue. I do not know of any queue. That is the problem. I think that it is not responsible to keep talking about a queue when there is no queue.

CHAIR: I do not have the details, and I will check on that. My understanding is that there are many people who have been determined by the UNHCR to be refugees wanting to go to their promised land, whether it be Canada, New Zealand, Australia or wherever, and they, I think in the government's view, should be taken first rather than those who happen to have the money to get here by a different means.

Dr O'Sullivan : Can I just talk to that point? One of the things I have been looking at is an ethical analysis of resettlement. If we look not just at whether people are wealthy or whether they are using official or unofficial means, what about their need for protection?

CHAIR: Everybody needs protection; well, everybody in that situation.

Dr O'Sullivan : I am not saying that refugee camps are wonderful but, arguably, in refugee camps they are receiving a level of protection and humanitarian assistance by UNHCR. In contrast, the people that invariably come by boat are coming from Iraq and Afghanistan and Iran; war torn countries in two of those cases, Iraq and Afghanistan. And they come, via Malaysia, to Indonesia and they get on a boat. Now, looking at the source countries, are the people coming from Iraq and Afghanistan not in need of protection by Australia? That is all I would say on that point.

CHAIR: They are. I agree. But so are others.

Dr O'Sullivan : But does it matter then that they do not wait on a camp? What if the camps are full and all the camps are filling up?

CHAIR: Well, we should 'un-full' them by taking them into Australia.

Dr O'Sullivan : We select, by the way—

CHAIR: I am never going to convince you, and I might say you are never going to convince me.

Dr O'Sullivan : I appreciate the sentiment that is lying behind resettlement, but I wish the debate would move beyond this idea that people with wealth should be punished because they are not using the—

CHAIR: They are not being punished.

Dr O'Sullivan : Well, they are—

CHAIR: They are being put on the same basis as those who are as poor as church mouses and do not have any opportunity of paying a people smuggler to get to Australia. They have got to wait their turn. When someone says, 'There's a couple of vacancies in Australia; put up your hand'—

Dr O'Sullivan : They are being punished under the current regime.

CHAIR: Okay. It is your submission, which I accept.

Dr Emerton : Could I speak on this point also?

CHAIR: I do not want to dominate this as my colleagues—

Dr Emerton : It is a new point.

CHAIR: It is a new point; okay.

Dr Emerton : Under fundamental Australian constitutional principles which, in turn, have the origins in British constitutional principles—

Senator JACINTA COLLINS: It is UK day today.

Dr Emerton : private disorder does not license public disorder. The fact that there is private disorder on the seas, for example, people coming in unauthorised boats and so on, does not license the government to dispense with the rule of law. That is the concern, particularly around some of the mechanisms that schedule 1 would activate and enhance to try to achieve the practical outcome of stopping the boats.

CHAIR: As a one-time lawyer, I accept entirely what you say as being pure legal, perhaps even ethical, principle. As a politician, there needs to be a practical situation and one that is fair, and we differ on how that gets there.

Senator HANSON-YOUNG: The majority of the world's refugees—

CHAIR: Senator Hanson-Young, you will be called shortly. Senator Collins?

Senator JACINTA COLLINS: Just one issue, given the time limitations; thank you, Chair. As we have pointed out earlier, it is UK day with the UK Prime Minister addressing us earlier. One of the elements of several of the submissions before us has pointed out that the fast-tracking processes have been found to be unlawful in the England and Wales High Court. Another question I have been prosecuting this morning is: what is the motivation around the removal of the convention in this bill? I am now wondering if there is indeed a connection between the two. Is the government seeking to insulate itself from a High Court action here in Australia in relation to this process by essentially retreating from the convention without actually doing so? Or am I reading too much into that issue?

Mr Zagor : I actually do not think that the cases in the UK that looked at the fast-track process concerned themselves with the refugee convention so much as British common law and the European Convention on Human Rights. Some of them also turned on the prohibition of arbitrary detention which might result from certain administrative procedures. But they did set out certain principles that would be potentially applicable in litigation before the Australian courts. I refer you to our submission on page 12 where we cite some of the relevant passages from the case of The Queen (Refugee Legal Centre) v SSHD. In the most recent case the detention action decision was handed down in July this year. It looked at a whole range of procedures under the UK's fast-track regime, the detained fast-track mechanism, and found a lot to be wanting, but ultimately came down against the government on the grounds that these procedures were unfair and disproportionate because there was an absence of legal assistance available. If you were to apply the same tests to the Australian model, I am very confident it would be found to be wanting.

Senator JACINTA COLLINS: Quite distinct form the issues around the how they represent the convention.

Mr Zagor : It is distinct from the refugee conventions per se, but I will pass to my colleague to answer.

Prof. Foster : I am not going to comment on the government's intention, but I think the outcome of removing references to the refugee convention, particularly from Schedule 5, is indeed to attempt at least to insulate this legislation from review by the courts.

Many of you are probably aware that it is a basic concept of statutory construction that where a piece of legislation references an international treaty, where it is designed to implement an international treaty, then the courts will give consideration to that international treaty which would also include the way it is being interpreted internationally. So, once you remove all the references to the refugee convention from Schedule 5 and create, as I said, an idiosyncratic, particularly Australian version of that definition, the courts may still in some areas possibly refer to international jurisprudence, but I think the explanatory memorandum makes clear that the hope is that they will not refer to international jurisprudence or indeed to the jurisprudence of our own courts. In several respects—for example in the context of social group—the explanatory memorandum talks at length about its dissatisfaction with the way in which this has been interpreted by the High Court. So it is simply an attempt to exclude the courts altogether, and I think we should be concerned about that because, as I said, we cannot alter the fact that we are responsible as a matter of international law to interpret the treaty in a way that reflects good faith and that interprets the ordinary meaning of the words in the light of the object and purpose of the convention.

I would really urge the committee to remember what the object and purpose of the refugee convention is, which is to provide protection. The preamble talks a lot about the human rights of refugees. We should be attempting a full-on inclusive approach to interpretation, not trying to limit it as much as possible.

Senator JACINTA COLLINS: Or, in the submission of one of our earlier witnesses, if we want to retreat from the convention then we should do that and expose ourselves to international scrutiny.

Prof. Foster : I think the fact that in the bill it actually says that we may do things even in violation of international law is something we should be concerned about, it is a watershed.

Senator JACINTA COLLINS: Yes it is one of the provisions in schedule 1.

Prof. Foster : I think we should be concerned about that. We have never before stated so explicitly that we are going to allow the executive to completely violate international law.

CHAIR: At least you cannot accuse them of trying to hide it.

Senator JACINTA COLLINS: Well, this was the point we raised earlier and which now has been reinforced by Dr Foster. There is no precedent for this approach to international law.

Dr O'Sullivan : It is not just the refugee convention as well as it is the United Nations convention on the Law of the Sea, maritime search and rescue; there are a whole host of international obligations apart from the refugee convention.

Senator REYNOLDS: I would like to take up Dr Foster's kind offer to pursue a couple of the legal issues. I have put in quite a bit of time to go back through the EM and I want to ask: does the refugee convention dictate that we have to provide permanent protection? I have not been able to find it, but is there something that says that we have to grant permanent protection to refugees?

Prof. Foster : No there is not. There is an article, article 34, that states we should give consideration to allowing refugees to become naturalised. There is no requirement that we provide permanent protection. In fact, to the contrary, article 1C of the cessation clause envisages that in some situations protection may no longer be required. But the point is that if that is the case, we are required to provide protection until it is no longer needed. And if it is no longer needed, the government—

Senator REYNOLDS: In that case, temporary protection?

Prof. Foster : Protection in accordance with the refugee convention; so we cannot pick and choose which provisions of the convention we will give to people simply because we have deemed them only to have temporary protection visas.

Senator REYNOLDS: But under our international obligations, under the refugee convention, we are not obliged to provide all refugees with permanent protection; it does allow for us to provide temporary protection.

Prof. Foster : You can provide protection on a temporary basis so long as you provide all the rights that those refugees are entitled to, and refugees are entitled to rights as soon as they are within our jurisdiction. It does not matter that we deemed them to be on a TPV or not. I think many of the concerns that have been raised are first of all about the conditions of those visas. But the other point I want to make is that under international law if we are going to claim that a person no longer needs protection, we have the onus to establish that. In other words, a person has satisfied the government that they are a refugee, we then have to establish that they are not. Under the TPV scheme, the onus is on the applicant to continually reassert and re-justify their case, which is not consistent with the way the international scheme works.

Dr O'Sullivan : If you look at it, that is contrary to article 1C of the convention.

Senator REYNOLDS: I will chase that one up further.

As well as the refugee convention, there are a couple of other non-refoulement conventions and a covenant under which we have obligations. Do any of those specify how they are to be enacted in legislation? So, if we change legislation, does it say that it has to be in this type of legislation? As long as we have met the obligation, surely member states can change the legislation and change what legislation it sits in.

Prof. Foster : I am not quite clear where you are going but I think—

Senator REYNOLDS: Hang on. You have obviously had a close look at the explanatory memorandum. Specifically, I am looking at the non-refoulement obligations and the changes on page 164, which is actually pages 135 to 137.

Prof. Foster : Are you talking about ministerial discretion? Are you saying that we have—

Senator REYNOLDS: Yes, the changes that the government is proposing. The first thing is: does the government have a right to make changes to meet changing circumstances? And is it mandated anywhere where that has to be contained? My point is, if we are meeting non-refoulement obligations, does it have to be in one specific act? Can the government change it?

Prof. Foster : Okay. I understand what you are saying. It does not have to be in one specific act, but I think it has to be in legislation, because I think what you are suggesting is that the fact that the minister has a non-compellable or non-reviewable discretion to in some situations provide a visa. even though they may be no other reason to provide a visa, would comport with our international obligations. That clearly would not be enough. We need to have the provision in legislation to allow an applicant to actually apply for a particular visa that reflects those international obligations. It is simply not acceptable to say that ministerial discretion—

Senator REYNOLDS: Acceptable to whom?

Prof. Foster : As a matter of international law. These obligations need to be implemented as a matter of law in the domestic regime, and allowing the minister to have a discretion is not the same as reflecting those obligations. Under section 417 of the Migration Act, the ministerial discretion is non-compellable; in other words, you can ask the minister but you cannot compel him or her to exercise that—

Senator REYNOLDS: But isn't that the circumstance already in current legislation? This is not a new circumstance. I just found one here, under the Maritime Powers Act. Under the act, who currently has the authorisation to take a vessel or people to a place?

Prof. Foster : That is currently subject to High Court litigation, so there is some uncertainty surrounding that at the moment. So I am not sure that we can really use that as an example.

Senator REYNOLDS: I beg to disagree.

CHAIR: We must move on.

Senator REYNOLDS: If we get time, I have more.

CHAIR: Well, we certainly do not have time with these witnesses. Senator Hanson-Young.

Senator HANSON-YOUNG: I think everybody has spelt out the case pretty well. We are already 20 minutes over time, aren't we?

CHAIR: We are 10 minutes over.

Senator HANSON-YOUNG: All right.

CHAIR: Don't feel obligated to ask questions! You were right in the beginning: I think the cases have been made.

Senator HANSON-YOUNG: If I could just go to the question around children—whoever feels best placed to answer this. I am extremely concerned about, firstly, the amendments in relation to deeming children born in Australia as unauthorised maritime arrivals. It seems abhorrent to me, because they did not arrive on a boat; they arrived normally, like every other labour. It is usually painful. Secondly, I am concerned that that is retrospective. The argument about deterrence seems to fall flat when all of this, that schedule and the others, relates to people who are already here, to families who are already here. Could you briefly comment on those two aspects.

Dr Emerton : I think it has been well articulated—by the witnesses who were here before, for example—that this is contrary to various international obligations. Also, the earlier witnesses referred to Australian values. I think we can also refer to constitutional values, political values. The idea of removing citizenship from people born in Australia and, in particular, rendering them stateless as well as being internationally unlawful even if not strictly unconstitutional—and the constitutional extent of citizenship in Australia remains up for grabs; it has never been fully explored—just seems quite outrageous.

Senator HANSON-YOUNG: Forcing someone who is born in Australian hospital to be stateless—isn't that the kind of activity that some of these regimes enlist for certain groups and that these people are fleeing in the first place?

Dr Emerton : It is clear that examples of stripping citizenship mostly are found in very notorious regimes. But that is just one of the many outrageous things that this act contemplates—even the remarks about habeas corpus.

It is one thing to have the police breach the law or misunderstand the extent of a warrant and have a magistrate order habeas corpus for a prisoner who was arrested at the lower level. Here we have an act which expressly contemplates that Australian customs and naval officers will go out onto the high seas and, take people into detention in ways which are potentially unlawful and potentially unconstitutional.

There are a range of structures in the bill, both in practical and legal terms, to block review of that. It takes us into a whole new regime where the legislation does not have potential problems on the margins which would happen through maladministration. The whole rationale of the regime is to contemplate activity which is at odds not only with incredibly well-established international values but also basically fundamental constitutional values that have been part of the constitutional framework of this country at least since federation.

Dr O'Sullivan : That is a theme that runs through the entire bill, which is a major concern - this lack of accountability. Again, there are several provisions which say 'whatever is in the national interest', so it is whatever the minister feels is in the national interest. Whatever you think about the queue and about border control - and we have all made a case about that - I think as politicians and members of parliament you should be extremely concerned about giving someone this very wide discretion to consider what is in the public or national interest. That is essentially a political decision and it is not—

CHAIR: That is what he was elected to do, of course.

Dr O'Sullivan : If you are going to set something out in a statute, there have to be boundaries. That is the whole idea of setting out statutory provisions.

Senator HANSON-YOUNG: Can I just clarify? A large part of these amendments is about giving Minister Morrison more power that is unchecked?

Dr O'Sullivan : Yes. It is concerning from a public law point of view, it is concerning from a constitutional point of view and it is extremely concerning from a human rights point of view.

CHAIR: Mr Morrison has no personal interest in this. He is trying to do what the Australian public want him to do.

Dr O'Sullivan : Of course. He may have very genuine beliefs, but that is not the object of the statute.

Senator HANSON-YOUNG: I would not be trusting him.

Dr O'Sullivan : The object of a statute is to set out proper limitations.

Senator HANSON-YOUNG: I think his approval ratings were two per cent, weren't they, last week?

CHAIR: Senator Hanson-Young, we can hear from you anytime. We do not often have the opportunity of hearing Dr O'Sullivan.

Senator HANSON-YOUNG: You are taking my question time.

Dr O'Sullivan : I believe in the power of parliament and I believe in the power of courts. There has to be a balance. There have to be some accountability measures in place for someone with such power as the minister for immigration so that we do not have a situation where we have the arbitrary exercise of power. That is all I would say.

Dr Emerton : Particularly in the context of maritime detention, setting out to knowingly enact legislation which is probably contrary to chapter 3.

Senator REYNOLDS: Can I just clarify that? Are you saying that this bill strips people's constitutional rights to appeal right through to the High Court? Am I missing something or is that what you are saying, Dr Emerton?

Dr Emerton : I am saying two things. I am saying there is a very strong argument that the detention provisions are unconstitutional because they authorise detention that is not bounded in time and they authorise detention for unlawful purpose and unconstitutional purpose. There is a strong argument that the detention provisions as amended will be unconstitutional.

Senator REYNOLDS: Can I just clarify? I am not a constitutional lawyer—

CHAIR: I am sorry; in fairness to other witnesses, I really have to call it quits there. This is not a good system, but we are constrained by the situation we are in. Can I thank you all for coming. I know in some instances you have come a long way and in other instances we have been taking up your valuable time. We appreciate it. We have your written submissions. Thank you very much; we appreciate your being here.