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Standing up for asylum seekers' rights


Cite as: March 2013 87 (3) LIJ, p.19

Lawyers play an important role in defining the limits of executive powers when it comes to asylum seekers and refugees arriving by boat.

The LIV must continue to stand up for the rule of law in the face of federal government attempts to resolve the cases of asylum seekers and refugees by executive fiat.

That is the view of LIV president Reynah Tang, who added it was important the LIV show leadership on this issue.

“Otherwise there is no one to speak for the most marginalised and vulnerable people who are inevitably affected by unchecked government action,” he said.

The LIV is a strong advocate for refugees and asylum seekers through its Refugee Law Reform Committee which was set up in 2005.

In December, an 11-page LIV issues paper ( raised a number of concerns with the government’s implementation of regional processing of asylum seekers. The submission to the Minister for Immigration and Citizenship, the Parliamentary Joint Committee on Human Rights and the Senate Legal and Constitutional Affairs Committee was prepared to supplement the advocacy of the Law Council of Australia (LCA) on the migration (regional processing) package of legislation.

It stated that the LIV supported efforts to develop a regional approach to refugee protection.

“A comprehensive regional protection framework must be a multilateral protection regime that ensures the processing of asylum claims meet international standards, that asylum seekers can live in dignity while their claims are determined and that timely resettlement options are available,” it stated.

“Australia’s recent designations of Nauru and Manus Island as regional processing countries do not, however, meet these requirements and do not constitute a regional approach to protection but rather, are really an attempt at offshore processing by Australia.”

The latest submission follows an earlier one to the Expert Panel on Asylum Seekers in which the LIV argued an effective and sustainable approach to asylum seekers must be based on respect for human dignity and not on political expediency.

“Any policy options which seek to dehumanise asylum seekers or which effectively punish individual asylum seekers with the aim of general deterrence must be rejected,” the LIV’s December issues paper stated.

In it, the LIV argues the package of legislation that seeks to implement regional processing arrangements for asylum seekers raises serious human rights concerns and appears to be inconsistent with international law, breaching aspects of the Refugee Convention, the ICCPR and the Convention on the Rights of the Child.

“In addition, due to the volume of asylum seekers that have arrived since 13 August 2012, the vast majority of people will never be transferred to a regional processing centre for assessment of their refugee claim,” it stated.

“This calls into question the utility of the government’s arrangements with Nauru and Papua New Guinea, under which only a small number of asylum seekers will have their claims processed.”

The LIV submission urges the government to halt the transfer of asylum seekers to regional processing centres until a comprehensive regional protection framework has been established.

It also calls on the government to process the claims of all asylum seekers who have arrived in Australian territories without delay and according to international law, and to ensure that people assessed as refugees are provided with “durable protection outcomes, either by permanent protection in Australia or by immediate settlement in a third country”.

Asked whether he thought the LIV’s lobbying efforts would carry any weight, Mr Tang said lawyers had played a significant role in helping shape the government’s refugee policy, in particular through High Court challenges which had defined the limits of executive power.

“The result of these challenges has directly impacted on a number of aspects of current protection visa processing arrangements,” he told the LIJ.

“Lawyers are also able to add a unique perspective to the policy debate – reminding government of fundamental legal principles, explaining the potential effect of laws, sharing the collective experience of clients and commenting on the practicality of arrangements.”

He said the LCA had worked hard to get the Parliamentary Joint Committee on Human Rights to consider the various bills implementing regional processing arrangements. The LCA has also appeared as a witness before the committee.

“We will continue to assist that committee in its deliberations,” he said. “We have also sought to influence the debate through the media, social media and various LIV events.”


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