Australia Considers Permanent Ban on Illegal Migrants

By Dan Cadman on October 31, 2016

Australia has once again caused a furor with one of its legislative proposals.

The Australian government previously has gotten a firestorm of press (and criticism from various international and migrant advocacy groups) for a pay-to-stay-away plan allegedly providing a financial incentive for maritime alien smugglers not to move their human cargo into Australian waters; for "renting" space on foreign territory on which to set up camps for migrants and asylum-seekers interdicted at sea; and for a proposal to strip citizenship from any dual nationals caught engaging in or supporting terrorism.

There is no lack of imaginative solutions considered by Australia to deal with its ongoing problem of mass alien smuggling — primarily seaborne, of course, being an island surrounding by thousands of miles of sometimes turbulent and shark-infested ocean.

The latest proposal is to enact a lifetime ban on all migrants, including asylum seekers, who have been interdicted entering or attempting to enter Australia illegally and who have been sent to the various migrant detention centers (see here and here). There would be an exception made for individuals under the age of 18, but only if they register at certain designated regional centers outside of Australia.

The "forever" aspect of the ban has raised a great deal of ire as being too draconian, but the portion of the proposed ban that specifies it includes asylum seekers has really gotten the critics' knickers in a twist. They assert that it is a needless over-reaction. This, of course, obfuscates the reality that virtually all of the interdicted migrants have claimed asylum. Why wouldn't they if that is the only basis on which to lay a claim to enter Australia absent visas, permits, or any other basis under law? If they had a legal route into the country, they would have used it.

As for over-reactions: The Ozzies are smart enough to know that any wavering whatever in their government's commitment to robust interdiction and ejection would be to open the floodgates. They've seen it in action. In fact, the whole world is watching the European Union's bungled job at staving off illegal mass migration into its borders — much of it maritime smuggling emanating from North Africa.

Some critics have also alleged that it is a violation of international law and of Australia's commitments as a signatory to the United Nations Convention and Protocol Relating to the Status of Refugees, pointing to its provision for non-refoulement (non-return) of refugees and asylees. So is this criticism accurate or fair? I think not, for at least two key reasons.

First, the critics are again obfuscating by blurring the line between asylum seekers and legitimate asylees. Many who seek asylum have no legitimate basis, and are in fact economic migrants who want a better way of life. This desire to escape grinding poverty is understandable, but it is no basis on which to claim asylum. The countries participating in development of the Refugee Convention understood, and took into account, that an unremitting wave of the world's poor to any developed nation severely strains its national resources and social safety networks, a fact constantly overlooked by today's post-national cosmopolitans in many countries, who are often insulated from the harms wrought because they are high enough on the economic ladder not to feel the pinch.

Societal harm is why economic migrants are excluded from the Refugee Convention's protections. Developed nations may have a duty to help those who have little to achieve decent lives, but it isn't through granting them the "right" to migrate wherever they choose. This approach risks leveling the playing field to a global community of have-nots rather than bootstrapping anyone upward.

Second, and corollary to the first: Even enough refugee and asylee applicants can ultimately destabilize a country or countries — again, we have the EU's ongoing mass migration crisis as an example. As the Travaux Preparatoires (legislative history) of the Convention makes clear, the international representatives who developed the Convention recognized that a government's first obligation is to its citizenry and lawful residents:

Baron van BOETZELAER (Netherlands) recalled that at the first reading the Swiss representative had expressed the opinion that the word 'expulsion' related to a refugee already admitted into a country, whereas the word 'return' ('refoulement') related to a refugee already within the territory but not yet resident there. According to that interpretation, article 28 would not have involved any obligations in the possible case of mass migrations across frontiers or of attempted mass migrations. He wished to revert to that point, because the Netherlands Government attached very great importance to the scope of the provision now contained in article 33. The Netherlands could not accept any legal obligations in respect of large groups of refugees seeking access to its territory. At the first reading the representatives of Belgium, the Federal Republic of Germany, Italy, the Netherlands and Sweden had supported the Swiss interpretation. From conversations he had since had with other representatives, he had gathered that the general consensus of opinion was in favour of the Swiss interpretation. In order to dispel any possible ambiguity and to reassure his Government, he wished to have it placed on record that the Conference was in agreement with the interpretation that the possibility of mass migrations across frontiers or of attempted mass migrations was not covered by article 33. There being no objection, the PRESIDENT ruled that the interpretation given by the Netherlands representative should be placed on record. (Emphasis added.)


As I have said before, the treaty obligations of each Convention signatory state toward refugees are conditioned by risks to public safety and national security that are engendered by either dangerous individuals, or collectively in the case of mass migrations. But it's up to each signatory state to decide when its public safety and security are at risk.

That is what the Australian government is asking itself with the present proposal, and it is entirely in keeping with the Refugee Convention no matter what decision is ultimately made.