Saturday, August 08, 2009


Robin Rothfield, 1.8.09.

Robin is the Secretary of Labor for Refugees in Victoria.

Delegates, the Rudd Government is to be commended for making significant progress with refugee policy in many areas, the latest of which are plans to ensure that asylum seekers living in the community have work rights and that the system of charging asylum seekers for the costs of their detention is abolished.

The platform before you, together with the amendments proposed, indicate the promise of additional positive outcomes with regard to:

*Australia’s non-refoulement obligations
*the operation of the refugee review tribunal
*the management of detention centres
*financial assistance to people coming to Australiaunder the Special Humanitarian Program,
*assistance for Pacific Islanders affected by climate change.

Labor for Refugees expresses its appreciation to Minister Chris Evans and his Advisers for their cooperation on these policies.

We are however disappointed that the Rudd Government fails to recognize the nonsense of its policy on the excision of outlying islands from Australia’s migration zone. Let us recall that excision was the brainchild of the Howard Government with the object of preventing asylum seekers landing on the excised islands from being able to apply for refugee status. But as the Human Rights and Equal Opportunity Commission pointed out in 2001 when the excision legislation was drafted, Australia continues to be bound by its human rights obligations towards aslylum seekers landing on the excised territories. The idea that Australia can escape from its international obligations by legislating for the so-called excision of these territories is an illusion.

The Rudd Government has allowed such aslyum seekers to apply for refugee status so that in a sense it has repudiated the intention of the Howard Government in introducing such legislation. But in retaining the concept of excision the Rudd Government is in effect contradicting itself and engaging in an act of deception.

In the early 1990s France legislated to create an 'international zone'in its airports and ports which was deemed to be outside French territory. However, in Amuur v. France, the European Court of Human Rights held that despite its name, such an 'international zone' did nothave extraterritorial status and France's international obligations (inthat case under the European Convention on Human Rights) continued to apply. Thus, creating the legal fiction that certain Australian territory is outside the migration zone does not in any way reduce or avoid Australia's international obligations, most relevantly under theRefugee Convention.

Delegates, Labor policy on refugees has in many ways moved forward but in this matter of excision it has actually moved backwards because in the platform adopted at the 2007 National Conference three territories only were specified for the continuation of excision i.e Christmas Island, Cocos (Keeling) Islands and Ashmore Reef with the implication that the remainder of Australia’s 3000 odd outlying islands would resume membership of its migration zone.

But the draft platform before you suggests that all offshore places will remain excised. The current draft platform implies that there is something legal called a migration zone, when such an entity is entirely notional and has been declared to be legal fiction by the European Court of Human Rights.

Delegates, the second part of the paragraph on excision deals with the location of the processing of asylum seekers. The processing of asylum seekers who land on the excised territories is to be carried out on Christmas Island. This effectively creates two categories of asylum seekers with access to different rights: those landing in the excised territories and those landing on the mainland. Asylum seekers processed on Christmas Island are not permitted to appeal to the Federal Courts in the event that their application is rejected by the Department. I submit that this distinction is nonsensical and unconscionable.

Delegates, let us reject the policy of encouraging racial fear and distrust, resulting in the persecution of people in distress and the disregard of our international obligations. Instead, let us stand by our principles, and show compassion and justice to those who come to Australia seeking our help. We must abandon the very expensive and futile policy of processing asylum seekers on an excised Christmas Island. On the grounds of conscience, consistency and plain commonsense Labor for Refugees urges the Rudd Government to remove this major obscenity of the Howard era.