BAYAN EDIS is a Bachelor of Laws & Bachelor of Arts student at the University of Western Australia. During the course of his studies he has focused on international human rights law, as well as refugee and Indigenous legal issues. He also has experience working in the United States and Australia with migrant populations as part of a grassroots youth empowerment initiative. His current research explores how contemporary Australian migration law contradicts the international obligation of non-refoulement and how such law might be recast to reflect a more robust and universally acceptable conception of human rights.
“‘Tragic’ outcomes are best repaired before they become a settled rule of the Constitution.”
On December 5, 2014, the Australian parliament passed the controversial Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act (Cth) (the Act). The Act paves the way for a series of substantial changes to the way asylum seekers will be handled in Australia, with particular implications for seaborne migrants. Some relevant changes include:
- The empowerment of the Minister for Immigration and Border Protection (the Minister) to, without review, order the detention of asylum seekers at sea and their transportation elsewhere, including ‘just outside’ another country’s border.
- The introduction of a requirement that border protection officers remove ‘unlawful non-citizens’ from Australian territory, even if they seek asylum and irrespective of any breach of Australia’s non-refoulement 
- The limitation of recourse to merits review for asylum seekers arriving irregularly, principally by boat.
- The removal of most references to the 1951 Refugee Convention (the Convention) in the Migration Act 1958 (Cth) and the introduction of a new framework that establishes Australia’s own interpretation of its protection obligations under the Convention.
The provisions of the new Act have come under scrutiny for undermining Australia’s international human rights obligations from a number of organizations, including the UNHCR, the Law Council of Australia and the Parliamentary Committee into Human Rights. The apparent disregard for international law, including the law of the sea, human rights law, and refugee law suggests that Australia is diverging from international norms in regards to the prohibition on arbitrary detention and the principle of non-refoulement.
Asylum seekers detained at sea have no access to legal advice and limited chance to be heard. Granting the Minister the power to detain and transfer people on the high seas enables the possibility of indefinite detention and thus the prospect of contravening international obligations under human rights treaties. Arbitrary detention dehumanizes asylum seekers through the application of an industrialized solution to complex human challenges. Undermining human rights, as a means to an end, is not an appropriate way to conceptualize refugees in the 21st century.
Upholding the principle of non-refoulement is another issue arising with the new Act. The principle has an extraterritorial application and applies to those whose refugee status has not yet been determined. It is a principle so universally accepted that it has become international custom. Yet the provisions of the Act grant the Minister maritime powers of removal, which essentially diminishes any imperative to consider the obligation of non-refoulement and violates the notion of good faith implementation of international law established in the Vienna Convention.
While the notion of good faith may be subjective, Australia’s decision to limit access to merits review for irregular arrivals and to remove references to the Convention from the Migration Act suggest a move away from a good faith effort to implement the principle of non-refoulement. When a vital principle and international custom like non-refoulement is negotiated in domestic law, Australia’s broader commitment to customary international law becomes questionable, and ‘slippery slope’ arguments can be made. Furthermore, discriminating against asylum seekers based on their mode of arrival directly contravenes Articles 3 and 31 of the Convention.
In some ways, the passing of the Act represents not so much a reconceptualization of the challenges posed by seaborne asylum seekers but rather a stricter interpretation of absolute sovereignty and an endorsement of collective approaches to the interpretation of international law that have been used by receiving countries the world over. Under the absolute sovereignty approach, Australia’s concern becomes one of actively preventing asylum seekers from reaching its borders, rather than consistent policy regarding the welfare of asylum seekers and the facilitation of refugee determination. By simultaneously embracing a collective approach, Australia is able to draw on regional states and redistribute asylum seekers. Seeing no affirmative obligation to admit seaborne asylum seekers under article 33 of the Convention, it looks to third countries for detention and processing, as is done on Manus Island in Papua New Guinea and Nauru. The laws in the Act are reflective of an extreme application of these approaches. While such a stance may have lessened the flow of seaborne asylum seekers to Australia in the short term, questions remain about the adequacy of such solutions to resolve the human rights intricacies of seaborne migration in the 21st century.
Does Australia not lose credibility in the international community with such a navigation of established international law? What is the extent of Australia’s ‘good faith’ responsibility to the international community? What long-term use is there in widening the gap between domestic migration law and international obligations? The challenges arising from increasing numbers of seaborne migrants are undoubtedly complex. Settling upon simplistic solutions made possible by circumventing international legal obligations, however, is a dubious way to respond and could lead to tragic outcomes.
 Former High Court of Australia Justice Michael Kirby, Al-Kateb v Godwin  HCA 37.
 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act (Cth) 2014, Section 75C, D, F, H.
 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act (Cth) 2014, Section 197 (C).
 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act (Cth) 2014, Schedule 4.
 UNHCR Submission to the Senate Legal and Constitutional Affairs Legislation Committee, 31 October 2014, http://unhcr.org.au/unhcr/images/2014-10-31%20UNHCR%20Submission%20Inquiry%20Migration%20and%20Maritime%20Powers%20Bill.pdf .
 For example, article 9 of the International Covenant on Civil and Political Rights.
 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol, Article 33.
 Vienna Convention on the Law of Treaties (1969) 1155 UNTS 331, Article 26.
 See D’Angelo E.F., 2009, ‘Non-Refoulement: The Search for a Consistent Interpretation of Article 33,’ Vanderbilt Journal of Transnational Law 42(279).