Loose Language

Frank never wears a collar

This is an article by Father Frank Brennan SJ. It's posted here because it provides a clear and precise explanation of the legal status of boat people. It also clearly illustrates the careless use of language as it is applied to these people.


I have a lot of ime for this bloke. Apart from the fact that he went to the same Catholic boarding school that I did, he is an eminent jurist and a tireless advocate for the law as it applies to the most vulnerable.


The lawful presence of 'illegal arrivals' on 'illegal boats'  - Frank Brennan

Australia is a long time signatory of the 1951 Refugee Convention and the 1967 protocol. It is one of the few countries in the region to have ratified the Convention.
Neighbours like Indonesia and Malaysia are not parties to the Convention. Since the Vietnam War, there have been periodic waves of boat people heading for Australia seeking asylum.

These boat people often pass through Malaysia and/or Indonesia. Under the Convention, parties undertake three key obligations:

1. Not to impose for illegal entry or unauthorised presence in their country any penalty on refugees coming directly from a territory where they are threatened, provided only that the refugees present themselves without delay and show good cause for their illegal entry or presence.
2. Not to expel refugees lawfully in their territory, save on grounds of national security or public order.
3. Not to expel or return ("refoule") refugees to the frontiers of any territory where their lives or freedom would be threatened.

Given the precarious situation in many countries adjacent to conflict, it is not surprising that some people fleeing persecution will look further afield for more secure protection together with more hopeful economic and educational opportunities. Having the status of a refugee has never been accepted as a passport to the migration country of one's choice. Then again, the international community has never been so callous or-short-sighted as to say that during a mass exodus one has access only to the country next door in seeking protection even if you have family, friends or community members living in a more distant country.

The responsible nation state that is pulling its weight will not only open its borders to the refugees from the adjoining countries but will expect some flow over from major conflicts wherever they might occur. It is like throwing a stone into a pond; the ripples go everywhere. It is no surprise that Afghan and Iraqi refugees have turned up on the doorstep of all first world countries in recent years. Nor is it surprising that Sri Lankans fleeing the effects of protracted civil war have arrived in countries like Australia.

With the ease of international travel and the services of people smugglers, it has become very difficult to draw the distinction between refugees who are coming directly from a territory where their life or freedom has been threatened and those refugees who, having fled, have already been accorded protection, but have now taken an onward journey seeking a more durable solution or attractive migration outcome. First-world governments say they cannot tolerate the latter because they would then be jeopardising their own migration programs and weakening their borders every time there was a refugee-producing situation in the world no matter how close or how far it occurred from their own shores. This problem is not solved by drawing careful legal distinctions, because one person's preferred migration outcome is simply another person's first port of call where they thought there was a realistic prospect of getting protection for themselves and their families. The problem cannot be solved by refugee advocates pretending that it does not exist or hoping that it will simply go away. Neither can it be solved by governments pretending that all persons who arrive on their shores without a visa are secondary movers. When mass movements occur during a conflict, it is necessary for governments to cooperate, ensuring that adequate protection can be given to persons closer to their home country before then closing off the secondary movement route except by means of legal migration. When countries of first asylum are stretched and unstable, other countries must be prepared to receive those who travel further seeking protection. That is why we need a regional approach to a regional problem - attending to the legitimate asylum claims of those who end up in our region.

Under Australian migration law, all persons are classed as citizens or non-citizens. And noncitizens are classed as lawful or unlawful. An unlawful non-citizen is one who does not hold a visa. An unlawful non-citizen seeking asylum is not committing any criminal offence by virtue of their presence in Australia. If she arrived by plane, an asylum seeker will usually be issued with a bridging visa while the asylum claim is determined, permitting lawful residence in the community. If she arrived by boat, an asylum seeker will usually be held in immigration detention. She is not guilty of any criminal offence by virtue of her presence or claim. She is not" an illegal". She would commit an offence only if she were to break out of immigration detention. In a 2002 Federal Court decision, Justice Merkel had the opportunity to observe the unhelpfulness of some of the public political language used in these situations. He said:

" The Refugees Convention is a part of conventional international law that has been given legislative effect in Australia. It has always been fundamental to the operation of the Refugees Convention that many applicants for refugee status will, of necessity, have left their countries of nationality unlawfully and therefore, of necessity, will have entered the country in which they seek asylum unlawfully. Jews seeking refuge from war-torn Europe, Tutsis seeking refuge from Rwanda, Kurds seeking refuge from Iraq, Hazaras seeking refuge from the Taliban in Afghanistan and many others may also be called 'unlawful non-citizens' in the countries in which they seek asylum. Such a description, however, conceals, rather than reveals, their lawful entitlement under conventional international law since the early 1950s (which has been enacted into Australian law) to claim refugee status as persons who are 'unlawfully' in the country in which the asylum application is made."

Politicians' loose talk of "illegal arrivals" and "illegal boats" disguises the fact that most, if not all, of those arriving are entitled to make an asylum claim and while that claim is being determined there is nothing illegal about their presence in Australia. And neither should there be.

Father Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic University. He is the author of Tampering with Asylum, University of Queensland Press, 2003 and 2007 editions.