For some time I have been posting specifically legal articles/posts over at the bloggy part of the Parish McCulloch, Barristers & Solicitors website. I cross-post some of them here at Club Troppo.
I have just posted quite a long article there which discusses yesterday’s High Court decision Minister for Immigration and Border Protection v SZSCA in the context of current moves by the Abbott government to reshape radically the Migration Act provisions concerning asylum seekers and refugees. I don’t think I’ll cross-post it here because it’s fairly technical. Nevertheless some Troppo readers may well find it interesting.
that is a great article and far from technical but very very disturbing.
Thanks a lot as it very educational
“insert a completely new regime defining what refugees are and what obligations are owed to them by this country..”
Can a signatory to the Treaty , slip such a radical redefinition into law and still be in compliance, legaly?
Not with the treaty, obviously. However, whether countries choose to comply with treaty obligations is largely a matter for them. Another signatory could take them to the ICJ, but that seldom happens with human rights treaties (no doubt for pragmatic/cynical reasons). And an affected individual could take it to the Human Rights Committee, but it is a toothless tiger.
And it would not be possible to successfully challenge this law in our higher courts? ( I thought that something similar was the basis of the challenge to the central processing hub).
And if we can do this without breaching/leaving the treaty, what is the treaty really worth?
International treaties are not part of domestic Australian law unless and until they are incorporated in legislation enacted by Parliament. However, the Refugee Convention IS mentioned in the Migration Act in numerous places. Various recent High Court decisions have effectively read down some provisions of the Act, or interpreted executive powers restrictively, by reference to Convention rights.
That is precisely why the Resolving the Asylum Legacy Caseload Bill aims at removing all references to the Refugee Convention in the Act and replacing them with our own definition of what is a refugee and what rights they have. If enacted I expect it would succeed in its aim.
As for your second question, as far as human rights treaties are concerned I think the answer is that they probably not worth very much in concrete terms. There are various toothless bodies like the UN Human Rights Committee whose decisions may at least shame signatory nations found to be in breach, but that’s about as far as it goes. By contrast, most economic and trade treaties (e.g. WTO, WIPO) have weighty enforcement provisions allowing for the imposition of sanctions etc.
Does that mean that challenges to a central processing hub would no longer have much to stand on?