Independent movement GetUp has released legal opinion that argues the “Malaysia Soultion” and other offshore processing options would be invalid even as the Gillard government makes further proposals to amend the Migration Act.

The opinion, drafted by Stephen Estcourt QC and Sydney University academics, considers the
Malaysia agreement and the amendments necessary for its adoption in the context Australia’s obligations under international law.

The legal advice suggests that any such arrangement may be in breach of obligations under Convention Relating to the Status of Refugees, the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as well as Australia’s non-discrimination obligations under the Convention on the Elimination of All Forms of Racial Discrimination.

In light of these proposed legislative changes, GetUp asked Mr Estcourt QC to advise whether offshore processing of unaccompanied children could ever be consistent with Australia’s international treaty obligations and/or customary international law.

“What the legal team found was that any agreement, including the arrangement proposed by the Gillard Government by which unaccompanied minor asylum seekers are transferred to a third country may lead to breaches of Australia’s international human rights obligations,” GetUp National Director Simon Sheikh said.

Mr Estcourt wrote in his findings, “Australia, as a party to the CRC, the ICCPR, the Refugee Convention and other key human rights instruments, has voluntarily committed to comply with their provisions in good faith and to take the necessary steps to give effect to those treaties under domestic law.

“In respect of unaccompanied children, real concerns arise as to whether such action could ever be compatible with the Convention on the Rights of the Child, which requires that in all actions concerning children, the best interests of the child be a primary consideration.”

“The transfer of asylum seekers to a third country for processing may increase the risk of
Australia breaching non-refoulement obligations under the Refugee Convention, and its related Protocol, the ICCPR and the CAT in respect to unaccompanied minor asylum seekers and asylum seekers generally.

“Further, the transfer of both accompanied and unaccompanied minors to a third country may breach non-refoulement obligations under the CRC.”