Kerry Nettle (NSW, Australian Greens) Share this | Hansard source

I have asked the question in estimates of the Chief of Navy and, subsequently, I have put the question on notice because the Chief of Navy was not able to answer it and thought maybe another official would be able to answer it. The question is about whether or not the Navy has sought legal advice to determine whether asking the Navy to intercept and turn back West Papuan asylum seekers to Indonesia is a breach of the refugee convention. It is an important question to have answered because we have already seen in the recent history of this government our armed forces being put in difficult circumstances, doing things they did not necessarily agree to, because of the policies of this government. We have seen that unrest within our defence forces in the past, and it is important to ensure that the Navy in this case is not put into that same situation.

Last week the Senate inquiry into the new migration legislation heard from David Manne from the Refugee and Immigration Legal Centre. He told the inquiry that the government’s proposal to return asylum seekers raises the very real prospect that, in the absence of guarantees, we are looking at a situation where the Australian Navy, for example, could be put in a completely impossible position, in our view, of having to determine on the face of it whether or not someone should be sent back to a situation of persecution. No proper measures have been guaranteed to ensure that this will not occur. For example, there are no proper measures to ensure an assessment and to work out whether a person needs to come to Australia to have their claim assessed. We have no answers to questions that I have asked about what rules of engagement have been put forward for the Australian Navy so that they can determine whether, when they come across a boat of West Papuan asylum seekers on our northern borders which they have been instructed to turn back to Indonesia, they are turning back asylum seekers to face persecution.

Article 33 of the refugee convention states:

No Contracting State shall expel or return ... a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

Australia made determinations in the recent case of 42 West Papuan asylum seekers that if they were returned to Indonesia they would face persecution. If they are returned to Indonesian at the hands of the Australian Navy they may well face persecution. According to the experts in international law who spoke on this issue of the refugee convention, the Australian government may well be asking the Australian Navy to break the refugee convention on their behalf.

In the inquiry, the submission from the Castan Centre for Human Rights Law said, in relation to the deployment of Australian Naval forces to interdict asylum seekers and return boats back to Indonesia:

Such a practice with respect to Indonesian nationals would be in clear breach of article 33—

of the refugee convention. That is why I asked the government whether they have sought advice on this issue. I ask again. I have asked three times already and I am still trying to find an answer about whether the Australian Navy is going to be asked to breach the refugee convention. The Senate is going to be asked to make a decision on this legislation, and this is not the only issue for which we have not had answers from the government.

During the Senate inquiry we could not get information about whether lawyers would have access to their clients in Nauru. We could not get information about how children and families will be treated and housed in somewhere such as Nauru. We could not get information, despite asking repeatedly, about the cost of this proposal. The Australian government is asking the Senate and the Australian Navy to perform all these actions without providing us with information on the impact of the changes that the government is seeking support for in the Senate.

We heard from many witnesses. When we were in Canberra we heard from Dr Penelope Mathew from the ANU. She said:

Rather than returning refugees to places of persecution, the parties to the Refugee Convention have agreed to provide them with protection of their fundamental human rights. To do otherwise is to become complicit with the persecutory regimes from which refugees have fled.

That is the message that is being given to us by the international law experts—we may well be asking the Australian Navy to break international law. (Time expired)

Question agreed to.