UN convention turns Australia into a magnet for asylum-seekers

Sadly, like most things associated with the UN, it has grown into a sort of grotesque parody of itself, with vast unintended consequences.

The actual wording of the convention is not too bad. The obligations it imposes on signatories are reasonably limited. The main one is that a country may not return a refugee to the place from which he has fled persecution. Nothing John Howard did, nothing that Tony Abbott proposes, contravenes the convention.

It is clear, and sometimes explicit, in the convention's wording that it envisages people fleeing directly from persecution in one country to haven, temporary or permanent, in an adjacent neighbour. So how is it that, ostensibly under the auspices of the convention, there are now Iranians, Lebanese, Palestinians, Somalis, Afghans, Pakistanis and others arriving in Australia's north and claiming to be refugees?

No provision of the convention allows a refugee to "forum shop", that is, to use their status to claim immigration rights in any country they choose.

The convention talks of people directly fleeing persecution. But the folks arriving in Australia use, or misuse, a technicality in the convention.

Technically, they have not passed through another country which is a convention signatory. This is only possible because almost all of Southeast Asia is, very sensibly, not signed up to the convention. Only Cambodia, East Timor and The Philippines are signatories.

Therefore, if a person who wants to live in Australia can get on a direct flight to Indonesia, or even Malaysia, they can get to Australia without passing through any signatory countries. Given the flying range of jumbo jets, this is now possible for virtually anyone in the world. Of course, to do this means flying away from all sorts of convention signatory countries next door. Afghanistan, for instance, has a slew of signatory countries on or near its borders - Kyrgistan, Kazakhstan and lots of others. But who would want to live there?

Iran, similarly, has the signatory country Turkey, until recently a good friend of Iran's, virtually next door. And a whole swath of European and other convention signatories much closer than Australia. But if an Iranian flies direct to Malaysia, where he gets visa free entry, he can get to Australia without, technically, going through another signatory country.

This shouldn't really make any difference, because the only real obligation under the convention is not to return a genuine refugee to the land of his persecution. This is regarded as being now part of customary international law for all nations. And some countries that are signatories to the convention, such as China, do not observe this rule, as when it forces North Koreans attempting to flee back to their homeland.

But the convention operates now in three ways that are extremely bad for Australia.

First, because it is a treaty we have signed, it has been substantially imported into our domestic law. But because some of its language is imprecise and aspirational, an imperial judiciary can steal much of the power from the parliament by interpreting such language expansively.

Second, Australia's status as a signatory to the convention acts as an enormously powerful magnet, attracting all manner of aspirational immigrants, drawn by Australia's material riches and generous welfare, who can then use the convention to qualify for immigration status they would never get otherwise.

And third, it allows the UN High Commissioner for Refugees to play a wholly inappropriate part in our domestic politics. The UNHCR regional director was lambasting Australia this week for trying to control its borders by reducing the incentive of quick, permanent resettlement and endless welfare. Why isn't the UNHCR making a song and dance about getting Indonesia and Malaysia and the rest of Southeast Asia even to sign up to the convention? In truth there is not another country in Southeast Asia, or in Northeast Asia, remotely as generous to illegal arrivals claiming refugee status as Australia is. All talk of Australia damaging its reputation by its treatment of illegal arrivals is nonsense. Insofar as we have a splenetic internal debate, in which the champions of faux compassion accuse everyone else of heartlessness, other nations will notice this debate and repeat some of our own criticisms of ourselves. But no sane comparison of the treatment of illegal arrivals in any nation in our region is remotely to Australia's disadvantage. We are the softest touch in the region, and everyone in the region knows it. Increasingly, everyone in the world knows it, which is why illegal immigration to Australia is becoming such a big, well financed, global, criminal business.

So, should we leave the convention altogether? I don't think so. It would be too difficult and controversial and we would still face the obligations of customary law anyway. But we should completely decouple domestic law from the convention. An Abbott government will face an enormous challenge in this area and will have to do a lot of tough legislating if it is to prevail.

The Liberals' one big strategic mistake so far was to block the Malaysia swap deal. This deal wouldn't have stopped the boats but the legislation the government offered would have allowed offshore processing anywhere an Australian government wanted it to happen. This sort of power will be vital if an Abbott government is to win the looming, epic battle of wills against the people-smuggling industry, and their Australian supporters. And by insisting Malaysia was no good because it was not a signatory to the convention, the Liberals reinforced the false moral authority of the convention, and of the UNHCR.

An Abbott government will fail if it doesn't stop the boats. There is a huge struggle ahead.