I wrote a post a couple of weeks ago which inter alia condemned the drastic breach of Australia’s fundamental human rights obligations perpetrated by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (currently being considered by the Senate Legal and Constitutional Affairs Legislation Committee; Report due 27/11/2014).
The Bill has also been roundly condemned by numerous commentators far more eminent than me, including University of Sydney’s migration and refugee law guru Mary Crock, who referred to it as an “affront to the rule of law”. However, perhaps the most devastating if unintended condemnation comes from Minister Scott Morrison himself, as quoted in the relevant bills digest prepared by the Parliamentary Library to inform MPs:
This Bill raises a number of human rights implications. Arguably, the most significant and with potentially the most serious consequences, would be Australia’s non-refoulement (non-return) obligations under international law when exercising powers under the MPA and when removing non-citizens from Australia under existing section 198 of the Migration Act. While in effect acknowledging that both measures appear to authorise actions which may be inconsistent with Australia’s obligations under international law, the Government is nonetheless of the view that:
While on the face of the legislation as proposed to be amended, these provisions are capable of authorising actions which may not be consistent with Australia‘s non-refoulement obligations, the Government intends to continue to comply with these obligations and Australia remains bound by them as a matter of international law. They will not, however, be capable as a matter of domestic law of forming the basis of an invalidation of the exercise of the affected powers. It is the Government‘s position that the interpretation and application of such obligations is, in this context, a matter for the executive government.
With respect to Australia’s non-refoulement obligations when removing non-citizens from Australia, the Government is similarly of the view that:
Whilst on its face the measure may appear to be inconsistent with non-refoulement obligations under the CAT [the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment] and the ICCPR [International Covenant on Civil and Political Rights], as set out in the overview to this Statement, anyone who is found through visa or ministerial intervention processes to engage Australia‘s non-refoulement obligations will not be removed in breach of those obligations. There are a number of personal non compellable powers available for the Minister to allow a visa application or grant a visa where this is in the public interest. The form of administrative arrangements in place to support Australia meeting its non-refoulement obligations is a matter for the Government. This consideration is separate from the duty established by the removal power.
So in essence the Minister’s defence is: “Well yes, we may have removed just about all legal protections preventing us from breaching just about every basic human rights treaty known to the human race. But don’t you worry about that. Just trust me. I’m Scott Morrison.”