Offshore processing 'bad law'

In a week when Australians are concerned for a teenage boy in a Bali police cell, our own Parliament may enact a law that could do far worse to asylum seeker children, writes George Williams.

In a week when Australians are concerned for a teenage boy in a Balinese police cell, our own Parliament may enact a law that could do far worse to asylum seeker children here, Professor George Williams writes in an opinion piece in the Sydney Morning Herald.

Parliament may finally vote this week on the federal government's bill to restore offshore processing. Questions about whether the bill will pass and what defeat might mean for the government have overshadowed what it would actually do, and whether it amounts to a sensible change.

The Migration Act says that asylum seekers, without having their claim first determined in Australia, can be removed to any country declared by the immigration minister to have, among other things, ''effective procedures for assessing their need for protection''.

The government used this power to establish its offshore processing deal with Malaysia. However, the High Court torpedoed the arrangement when it found that Malaysia did not meet the required standards.

The offshore processing bill is the Gillard government's response - to strip away protections in the Migration Act so that it can send asylum seekers to any nation without effective accountability.

The bill would allow the immigration minister to declare an ''offshore processing country''. These words, and the reference to ''offshore processing'' in the title of the bill, suggest asylum seekers could be sent only to places that will process their claims. This is not correct. They could be sent anywhere.

References in the Migration Act to a country having to process the claims of the asylum seekers and to respect their human rights would be replaced by a statement that the ''only condition'' upon the minister's choice of a destination is that ''it is in the national interest''.

In deciding what Australia's national interest requires, the minister must consider matters such as whether the country has said that it will not expel the asylum seekers to a place where their life or freedom may be threatened. However, there is no requirement that there is actually such an assurance and, even if there is, the assurance need not be legally binding.

People fleeing persecution could arrive in Australia only to be removed to another country under no obligation to protect them or to assess their claims. That other country could receive them without any interest in their welfare, but in return for a financial or other incentive. Genuine refugees might even be taken to a country that ultimately returns them to their point of origin knowing that they will face the possibility of death or further persecution. The government wants to resurrect its deal with Malaysia. However, the bill would also enable asylum seekers to be sent to an even less appropriate nation.

In doing so, the bill states that the rules of natural justice do not apply, so that there is no need for a fair hearing. These new rules would also apply to unaccompanied children. The law would be changed so that children can be taken to another country without regard to their best interests and so that, once a child has been removed, there is no further obligation on the minister to have an interest in their welfare.

In a week when Australians are concerned for a teenage boy in a Balinese police cell, Parliament may enact a law that could see a teenage refugee fleeing Syria, whose family has been killed and whose life has been threatened, make it to Australia only to be sent to long-term detention in Thailand in exchange for a cash payment. From there the child could be sent home, perhaps to their death, all so that an Australian government can avoid the political embarrassment of leaky borders. All these decisions could be made without effective accountability.

Once a country has been designated, the minister's reasons for doing so, along with other documents, would be laid before Parliament. However, Parliament is denied the power to overturn the decision.

The aim of every part of this bill is to enable the minister to send asylum seekers to other countries without scrutiny or accountability. This explains why such decisions are subject only to the ''national interest'', a vague and indefinite term often helpful to governments because it can masquerade in place of political interest.

Judges have a way of seeing through political interests to the fundamental principles at stake. Hence, the ''national interest'' has been chosen to insulate the government's decision from judicial scrutiny, because it is not a ground upon which a judge can easily assess a ministerial decision. The result is a bill that resembles former prime minister John Howard's 2001 Tampa legislation in seeking to impose the government's will free of the normal checks and balances. As such, it is an affront to basic principles of the rule of law. It also shreds any pretence of Australia remaining compliant with the 1951 Refugee Convention.

The offshore processing bill would make a bad law. It would grant a blank cheque to the government of the day by leaving the decision of where to send asylum seekers solely in its hands. People fleeing persecution could be removed elsewhere not in conformity to their welfare, or even sound policy objectives, but in order to satisfy the political self-interest of a government.

George Williams is the Anthony Mason Professor of law at UNSW.

This opinion piece first appeared in the SMH and the National Times.

Media contact: Steve Offner, UNSW Media Office | 02 9385 8107