Ian Higgins

About Ian Higgins

Ian Higgins is a final year law student, paralegal at an international law firm in Sydney, author and radio host.

Migration and the law:  Votes control policies, not the UN

Approx Reading Time-10We’ve recently witnessed a shift in our migration policy, but political rhetoric aside, what it really going to cost us?


Prime Minister Malcolm Turnbull has faced increased criticism over the government’s proposed changes to the Migration Act that would stop asylum seekers who try to arrive by boat from ever setting foot in Australia.

In October this year, Amnesty International published a report entitled “Island of Despair”, citing that the 1951 Refugee Convention protects the right to seek and enjoy asylum, a right afforded to children, men and women who have to flee persecution or other serious human rights violations. The report suggests that Australia are not only in contravention of this, but also other Human Rights protocols.

Recently, senior minister Christopher Pyne announced that a deal to transfer detainees held on Manus Island and Nauru to the US before Donald Trump takes office was close to being reached.

The proposed deal – which would resettle roughly 1,800 refugees and asylum seekers held in Australia’s offshore detention centres in the US – coincided with Australia’s offer to accept Central American refugees held in US-assisted Costa Rican camps and fleeing violence in Guatemala, Honduras and El Salvador.

There could certainly be an argument that to send refugees to Donald Trump’s America is far from ideal for the refugees themselves; however the deal does appear to signal the intention of the government to eventually close down Australia’s own off-shore detention centres.

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Until the proposed laws are presented in their entirety before the Parliament, within the full context of the Migration Act, it is difficult to know where the government stands in relation to the breaching of any of the various human rights treaties, or the International Covenant on Civil and Political Rights (ICCPR). However, on the “facts” of the assertions in the past few weeks and months, it is difficult to foresee a proposal that doesn’t fundamentally break human rights treaties.

Prosecutions of human rights infractions, however, are difficult enough without the complication of international treaties and transnational jurisdictions. If nothing else, one can be assured that there will be violations against any sense of morality. Although politics is rarely a place for morality.

Ultimately, all things being equal, the Australian government is unlikely to fear any repercussions from the United Nations – for example – or any other human rights governing body, as it is intrinsically difficult to overturn a government’s laws without clear and specified jurisdictional powers.

In October this year, a United Nations special rapporteur, who had spent a fortnight investigating Australia’s human rights processes, said he was “astonished” by numerous measures heaping “enormous pressure” on public servants, whistleblowers and ordinary citizens. This statement, while damning, is unlikely to do anything other than slowly change the perceptions of Australia’s treatment of refugees and those who support their plight. However, you need to be paying attention to have your mind changed in the first place.

On one hand, the attempt by the government to close down all 19 of the off-shore processing centres built by the Labor government – the only two of which remain are Nauru and Christmas Island – is to be commended. On the other hand, the denial of genuine refugees to be granted citizenship feels a little too close to Donald Trump Jr’s “handful of skittles” analogy to anyone with a modicum of morality or understanding of the plight of the enormous majority of people attempting to come to Australia by boat.

There is an overwhelming amount of outcry from multiple sources of reliability, such as Amnesty International and the UN, for this to seem less like a reasonable proposition by the government and more toward the outrageous. Ultimately, however, the votes control the policies and the man on the street controls the votes; not the experts, not Amnesty International, not the UN.

And the man on the street can seek some pretty outrageous policies.


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