New migration legislation may be unconstitutional

5th Dec 2014

Federal legislation which reintroduces Temporary Protection Visas (TPVs) undermines the United Nations Refugee Convention and may in fact be unconstitutional, the Australian Lawyers Alliance (ALA) said today.

The new Bill was passed this morning in the House of Representatives after the government gained the support of Senate crossbenchers to pass the legislation in a late-night sitting yesterday.

ALA spokesperson and barrister Greg Barns said that the High Court is likely to take a very close look at the constitutionality of the new laws.

“This new law clearly undermines the Refugees Convention in that it specifically allows the government to send people, who seek Convention protection and who arrive by boat, back to the country they fled, irrespective of whether or not they would be persecuted on return,” Mr Barns said.

“This effectively means Australia is abandoning its core obligation under the 1951 United Nations Refugee Convention,” Mr Barns said.

“It is questionable if it is constitutional for a government to decide how it will interpret what is clear international law in regards to the treatment of refugees.

“Back in 1995 the High Court said that ‘ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention’,” Mr Barns said.

“What the Abbott government and those senators who voted for this legislation have done is to act in a way that flies in the face of this statement. Australia remains a signatory to the Refugee Convention and yet this new law seeks to undermine our Convention obligations in a very direct way. 

“The High Court is likely to take a very close look at the constitutionality of the new law”, Mr Barns said. “Whether a piece of legislation can so directly undermine or snub an international law principle to which Australia is a signatory is a question the High Court will want to examine”.

Mr Barns said that by removing the courts from the review process the new Bill placed enormous power into the hands of the Minister for Immigration. He said that the new TPV legislation threatened the rule of law and did away with the rights of people to have their fundamental rights protected by the judicial system.

“There is now enormous power invested in the Minister for Immigration to make life or death decisions for very vulnerable people,” Mr Barns said. “This is the sort of thing we would expect to see in authoritarian regimes, not in Australia.”

“Laws which affect people’s fundamental rights should be able to be tested in court,” Mr Barns said. “Australia’s judicial system provides a series of checks and balances to protect us from excesses of government power. Any attempt to circumvent such checks and balances should be cause for significant concern”.

Tags: Human rights Migration law Asylum seekers and refugees