1. International Law

3. The 1951 Refugee Convention
Australia is a signatory to the United Nations 1951 Convention relating to the Status of Refugees and to the subsequent 1967 protocol.
This means that Australia is legally obliged to develop law and policy in the spirit of The Refugee Convention.

4. What is the “spirit” of this convention?
Assist those fleeing from persecution – no penalties for those who arrive without documents. [Article 31]
The principle of non-refoulement (non-return) [Article 33]

5. Human Rights Treaties
International Covenant on Civil and Political Rights (ICCPR)
Convention Against Torture
The Convention on the Rights of the Child

6. Useful resource

7. Domestic law
Law making in regard to migration is the responsibility of the Commonwealth Parliament.
The Migration Act (1958)
Although it is called The ‘Migration’ Act, it covers asylum seekers and refugees.

8. Migration Act 1958
Asylum seekers who arrive on the mainland without a valid visa must be held in immigration or community detention, or transferred to an off-shore processing facility.
Prior to 1992, asylum seekers were held in detention under the Migration Act 1958 (Cth) on a discretionary basis. Mandatory detention was introduced under the Migration Amendment Act 1992 (Cth).

9. Migration Amendment Act 1992
Under this Act, it is mandatory for those who arrive without visas to be detained (i.e. kept in detention)
This Act also removed limitations on time spent in detention.

10. Why was this Act passed?
It was proposed that mandatory detention would:
Facilitate the processing of refugee claims;
Prevent unlawful migration; and
Save the cost of re-locating people into the community

11. Has it worked? Detention is expensive Suffering of those in detention
Australia’s international reputation has been negatively impacted as we are not seen to be upholding our responsibilities in regard to international treaties

12. CLASH
International Law
Domestic Law

13. The enforcement problem
There is no effective means of enforcing Australia’s obligations at an international level.
As a result, it is left to Australian courts to monitor the legality of the government’s actions.
However, Australian courts can only enforce obligations under domestic law rather than international law.
(The Conversation, 2014)