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Wait, Isn't it Illegal to Ban Refugees?

Peter Dutton has announced the government will impose an outright ban on all "queue jumping" asylum seekers from ever setting foot here.
October 31, 2016, 12:00am

Your Minister for Immigration and Border Protection, Peter Dutton

On Sunday, Immigration Minister Peter Dutton announced the government will impose an outright ban on all "queue jumping" asylum seekers from ever setting foot here.

The proposed law will block refugees from obtaining any kind of Australian visa in the future, including tourist and business visas. It will also apply retrospectively, meaning that boat arrivals languishing on Nauru and Manus Island—72 percent of whom have been assessed as legitimate—will be blocked from entering, despite the fact that they could have expected legal asylum when they fled their respective countries.

The legislation has been enthusiastically backed by the likes of Pauline Hanson, who told Channel Seven that Australia should send a strong, clear message that "refugees are not welcome here." But regardless of whether the majority of Australians support this kind of ban, there's another question worth asking. That is, is it even legal to ban people from seeking asylum in your country? A short answer is no. As article 31 of the United Nations' 1951 Convention relating to the Status of Refugees states that signatory countries like Australia "shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly, from a territory where their life or freedom was threatened… enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence." That's pretty clear, but just to make things watertight Article 31 says that signatories "shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised or they obtain admission into another country." Of course, you could easily argue that Australia is already breaching Article 31, simply by putting legitimate refugees in offshore detention centres. Earlier this month, it was determined by the Department of Immigration and Border Protection tha 652 out of 1,015 asylum seekers on Manus Island were "positive" in their refugee status. On Nauru, 942 out of 1,196 people were also deemed "positive." Despite these legal/moral complications, Peter Dutton told the ABC Monday morning that he was "absolutely confident in terms of the constitutionality" of the proposed legislation. Moreover it will be introduced to parliament next week. "We meet our international obligations," he said simply. Speaking to the ABC, Dutton emphasised that the law would not apply to those who were under 18 when transferred to offshore processing centres. He said that a ministerial discretion clause would be included in the legislation, allowing the immigration minister to intervene and grant visas where deemed absolutely necessary. He also said that the government was in discussions with a "number of third countries" where refugees from Nauru and Manus Island might be resettled, although he was reluctant to name countries. Several Labor Party MPs, including Andrew Giles and Lisa Singh, have tweeted their derision of the proposed legislation. The ALP will need to vote against the bill in the Senate in order for it to fail, but this isn't particularly likely—historically they've supported the Coalition's hardline offshore detention policy, which makes sense as they were the party to introduce it. In better news, prominent barrister and former government advisor Greg Barnes has theorised that a refugee ban is possibly unconstitutional, and likely to be struck down by Australia's High Court.

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