49% risk of torture or death? We’ll make ’em take it.

So… what kind of human beings are we?

The Minister for Immigration, Scott Morrison, is planning to increase the stakes dramatically in deciding whether his nation should send an asylum seeker away to the dungeons and the hands of brutes.

And he wants to put a figure on the ghastly business. Yes. He’s offering an each-way bet, set a bit shy of 50-50.

Applicants for asylum on the basis of fear of torture must establish, under his proposal, that there is more than a 50 per cent probability that they will be subjected to agony or even death if returned to the country they have fled.

In short, if there is a mere 49 to 50 per cent chance of escaping being hung by one’s thumbs from meathooks while being thrashed by a length of electrical flex, that’s good enough for Mr Morrison. They can be sent to whatever fate might await them.

And I doubt you’d find many Australians happy to hold the Coalition’s front bench to that same standard. 49% chance of brutal torture or death if we put them on this plane? No, they’re not that bad. They’re not, you know, asylum seeker children.

Meanwhile, on this link there’s a video of Scott telling shattered refugees that they’ll be staying in those camps for “a very very long time” unless they voluntarily go back into danger.

If you voted for this, or worse – are intending to keep voting for this, then I have some rather unkind words for you. But they’re not as unkind as what you’re prepared to do to vulnerable people.

UPDATE: Apparently there’s been some confusion in the comments as to whether Australia really would do something like this.

Here’s the Government’s bill to amend the Migration Act to make this the new test:

6A(2) The Minister can only be satisfied that Australia has protection obligations in respect of the non citizen if the Minister considers that it is more likely than not that the non citizen will suffer significant harm if the non citizen is removed from Australia to a receiving country.

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42 responses to “49% risk of torture or death? We’ll make ’em take it.

  1. So what kind of human beings are we? Well as Australians I would say were either ignorant or selfish or both. I reckon that ‘fair go’ is nothing more than a two word slogan.

    The drowning at sea argument is a fig leaf, I suspect that those who quote it do so to conceal their real feelings.

    The boats haven’t stopped, they get turned around or they get towed back in a shroud of secrecy. The ALP and LNP are both disgusting organisations that are prepared to lock up children indefinitley for political gain.

  2. I’m not sure I understand.

    From what you have provided it appears that this new test will only apply to asylum seekers who have made an application under the Convention against torture – i.e. those whose application for asylum under the refugee convention has failed.

    To be clear – the refugee convention defines a refugee as someone with: a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.

    So how could someone whose political or religious beliefs put them at legitimate risk of torture not meet the far lower refugee convention test of persecution? What information am I missing?

  3. As to the Scott Morrison video I watched it this morning, I’m not in the least bit surprised, he’s a nasty piece of work, I reckont that would be pretty obvious to anybody who’s been watching his performances, it’s like he gets excited when talking sovereign borders and whatever other cruel ideas he comes up with.

  4. I’ve done a bit more checking and it seems that the refugee convention doesn’t apply if you are a convicted war criminal, or have committed other unspecified crimes that are “contrary to the purposes and principles of the UN.”

    So even if you qualify as a refugee Australia still won’t take you if you are a convicted criminal (or war criminal) – unless, of course, you can make a case under the convention against torture.

    Perhaps that’s what we’re talking about here – refugees whose applications under the refugee convention failed due to their being criminals, and who are looking to make a second run at protection under the torture convention?

  5. jordanrastrick

    Seems like a possibility.

    Of course many refugees, and no doubt a high proportion of those who have suffered torture, are convicted as criminals under the dubious legal regimes of the countries they are fleeing from.

  6. Nope, pretty confident what they’re doing is reducing the test for demonstrating a reasonable fear of persection so that we’re going to send back people with an almost 50% chance of being significantly harmed.

    Indefensible.

  7. You’re wrong – the change only applies to claims made under “The Covenant” (i.e. the international covenant on civil and political rights) and “The Convention Against Torture”. Read the bill if you don’t believe me.

    The changes quite specifically do not apply to those who are arguing a reasonable fear of persecution under the Refugees Convention.

    Funny, isn’t it, that the ‘journalist’ who wrote the article you linked to seems to have missed this detail in his rush to be outraged – I guess it’s what allows him to write factually false statements like:

    The most troubling aspect is the requirement that people seeking protection within our borders must show they have minimum 51 per chance of being significantly harmed if returned home.

    He probably just forgot to add the clarifier: “unless they are seeking protection under the Refugees Convention – the convention that 99% of all applicants use – for which the test remains unchanged.” Colour me cynical but something tells me that his intended audience won’t mind that he’s misinformed them so thoroughly.

  8. jordanrastrick

    On Q&A tonight mondo’s interpretation was confirmed.

    That still leaves my last response to him unanswered of course.

  9. I didn’t ‘answer’ it because I think it’s a valid point.

    Despite what you’ve assumed I’m not actually a supporter or opponent of the change made to the migration act. As I’ve already admitted above I don’t really understand the arguments for and against it.

    The government says that they’ve legislated the test to comport with the practice ministers have always applied but I have no idea whether that’s true or not.

    What I do know is that the error made by the journo Lefty linked to – i.e. misrepresenting the change as applicable to ALL refugee applicants – has already spread and is not helping the issue.

  10. jordanrastrick

    Fair enough Mondo.

    Of course, just when you maybe think not everything Morrison does is as bad as has been made out:

  11. mondo rock

    Looks like Lefty is in good company on this one. The error he made in his understanding of how the change in law would impact the asylum process is pervasive throughout the ranks of our left-wing opinion writers. Here’s Lenore Taylor in the Guardian:

    And new legislation will make it much more difficult for even those TPVs to be awarded – including changing the definition to assess their risk of persecution from one that effectively says they cannot be sent back if there’s a 10% chance they will suffer persecution or significant harm, to one that requires a greater than 50% chance.

    Note how seamlessly she has incorporated her error. Note how easily her misunderstanding of the change has become a misrepresentation to her readers.

  12. mondo rock

    And now Richard Ackland is doing it too:

    The flawed justification for saving lives at sea is that it’s acceptable to return people – who have come into our care and to whom we owe obligations – to certain torture or harassment.

    “certain” torture or harassment!?!?!?!

    They’re no longer asylum seekers to Ackland – they’re confirmed refugees. He magically know this because . . . . well . . . his heart is in the right place so lets cut him some slack eh?

    This isn’t honest discussion. This isn’t honest debate. This is just propaganda. This is a commentator who ought to know better artfully combing some fact with a whole bunch of made up sh!t in order to push an ideological/political barrow.

  13. This isn’t honest discussion. This isn’t honest debate. This is just propaganda. This is a commentator who ought to know better artfully combing some fact with a whole bunch of made up sh!t in order to push an ideological/political barrow.

    What are you bloody talking about, Mondo?

    Here’s the bill amending the Migration Act.

    Check out 6A:

    6A Determining whether Australia has protection obligations in relation to a non citizen
    (1) The section applies for the purposes of determining whether Australia has protection obligations in relation to a non citizen in Australia under:
    (a) this Act; or
    (b) a regulation or other instrument made under this Act; or
    (c) an administrative process that occurs in relation to:
    (i) this Act; or
    (ii) a regulation or other instrument made under this Act.
    (2) The Minister can only be satisfied that Australia has protection obligations in respect of the non citizen if the Minister considers that it is more likely than not that the non citizen will suffer significant harm if the non citizen is removed from Australia to a receiving country.
    (3) A non citizen will suffer significant harm if:
    (a) the non citizen will be arbitrarily deprived of his or her life; or
    (b) the death penalty will be carried out on the non citizen; or
    (c) the non citizen will be subjected to torture; or
    (d) the non citizen will be subjected to cruel or inhuman treatment or punishment; or
    (e) the non citizen will be subjected to degrading treatment or punishment.
    (4) In this section:
    protection obligations means any obligations that may arise because Australia is a party to:
    (a) the Covenant; or
    (b) the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 10 December 1984.
    Note 1: Paragraph (a)—for the definition of Covenant, see subsection 5(1).
    Note 2: Paragraph (b)—the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is in Australian Treaty Series 1989 No. 21 ([1989] ATS 21) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
    5 Paragraph 36(2)(aa)
    Repeal the paragraph, substitute:
    (aa) a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister considers that it is more likely than not that the non citizen will suffer significant harm if the non citizen is removed from Australia to a receiving country; or
    6 Application
    (1) The amendments made by this Part apply in relation to an assessment under:
    (a) the Migration Act 1958; or
    (b) a regulation or other instrument made under that Act; or
    (c) an administrative process that occurs in relation to that Act, regulation or other instrument;
    of whether Australia has protection obligations in respect of a person, regardless of whether the assessment is made as a result of an application for a visa by a person.
    (2) Subitem (1) covers the following assessments:
    (a) an assessment made on or after the day this item commences;
    (b) if an assessment is made as a result of an application for a visa—an assessment that begins before the day this item commences, if the application has not been finally determined before that day;
    (c) if an assessment is made as part of an administrative process—an assessment that begins before the day this item commences, if the administrative process has not been completed before that day.

    QED.

  14. Lefty – this is why you’re wrong:

    Subsection 4 of 6A – which is included in your excerpt above – makes it clear that the “protection obligations” which are the subject of the changed test are specifically limited to protections that arise because Australia is party to:

    (b) the Covenant; ; or
    (b) the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 10 December 1984.

    In other words the changes do not apply to our protection obligations arising under the Refugee Convention, which remain unchanged. As you know it is the Refugee Convention that prescribes our obligation to protect people from political/religious persecution, and which forms the basis of the overwhelming majority of our asylum seeker intake.

    So as I said above – the change only has practical application to those whose claim for asylum as refugees has failed, and who are making a secondary claim under the Convention against Torture. Those who are saying: “I may not be a refugee but you still can’t send me back to my country of origin because I will be tortured.”

    As Jordan says above this explanation was confirmed on Q&A two weeks ago.

    That’s what I’m bloody talking about.

  15. And BTW if you accept that my analysis above is correct – which you may or may not do obviously (but which you should because it actually is correct) – then you also have to accept that the commentary by Taylor and Ackland is outrageously misleading.

  16. Mondo is an apologist for inhumanity. he’s been at it for years. always with the “reasonable” snide knitpicking b.s. while human beings suffer. he represents the worst aspect of so called political debate in an Australia dedicated to championing vileness. he has no shame at all apparently and will always sham offended surprise that any9one might even doubt his terribly reasonable motives. he’s what the word internet “troll” was invented to describe. he doesn’t get fed much so he’s always after a few scraps from the gutter.

  17. jordanrastrick

    Ad hominem, much?

    Quibbling over this 50% chance of torture test in Migration act while Morrison refoules Sri Lankans has a bit of an element of fiddling while Rome burns. But nonetheless it happens that Mondo is, you know, right about the facts on this one.

    And Jeremy doubled down on telling him he was wrong despite having the details spelled out by Mondo and the independent confirmation from me – even though he managed to actually quote the relevant section of the legislation proving Mondo’s point in the citation he made to back himself out. Frankly, that’s a bit disappointing. Even if you don’t agree with him, Mondo’s record of commenting on this blog over the years is such that he deserves the presumption of good faith and the payment of some attention to the detail of what he says.

    Truth and accuracy should never be sacrificed on the altar of outrage, even (or perhaps especially) where the outrage is eminently justifiable as it is concerning the Coalition’s asylum seeker policies. If for no other reason than always having the facts right is, in the long run, strategically advantageous in any debate.

  18. Wait, what are we arguing about again?

    I’m objecting to us sending people back with a 49% chance of torture. That is clearly what Morrison’s amendment allows, or what is the point of it? What do you think those highlighted words mean? Are you saying it won’t apply to any people, and Morrison’s just changing the Act for the lulz?

    I’m not really interested in whether you can find other refugees to whom it won’t apply – the point is that there are refugees to whom it will apply. The govt is changing the act to confirm it can send people back to torture on the balance of probabilities. It’s right there.

  19. jordanrastrick

    I’ve seen it claimed that the “49% test” actually was existing ministerial practice dating back to at least the last government, and that the amendments just codify the test as it was already being applied in practice.

    If you re-read Mondo’s posts, from the top of the thread onward, he has the whole time only sought clarification on how a more likely than not chance of torture can even be relevant in any case given how much less difficult it must be to demonstrate a chance of persecution under the Convention on the Status of Refugees, than a probability of torture specifically – and then on identifying the misleading reporting by various sources on the change as if it would apply to all people seeking asylum, rather than an apparently tiny minority of them. Neither he nor anyone else has claimed in this thread that the changes are acceptable; and I’m guessing Mondo would still be in a position of not really understanding why they’ve even occurred, let alone defending them.

    You’ve on more then one occasion in this thread directly told Mondo he’s factually wrong, Jeremy (and edited the original post I’m assuming in response), when it seems pretty clear the arguments you thought you were refuting were not ones he’s actually made.

  20. Mondo’s inferring some “all”s where I can’t see that they were claimed. So what if not “all” refugees will be subject to that test – the point is that some will be, and that some is too many. The point is that Australia is going to send people back to torture on a 49% chance, as per the original post. That’s outrageous.

    I’m not sure how to make that more clear. Finding people against whom we’re not applying the unjust test – if we accept your interpretation, and “somebody claimed it on Q&A” is not as authoritative a source as some apparently imagine – does not justify applying it against other people.

    TL;DR – Is there a single person Morrison’s going to send back on a 49% chance of torture? If so, that’s one too many. If not, then what the hell is the point of making that change to the law?

  21. Mondo’s record of commenting on this blog (and others) over the years is such that he deserves contempt; and the payment of some attention to the detail of what he says is crucial as it is far right wing extremism hidden in his oft stated disguise of so called reason. This constant call to reason is his mantra, and like most right wingers he deflects discussion of (in this case) central issues of barbaric inhumanity into knit picking over language. This is a well worn strategy of the far right, which is heavily documented through the 20th century and beyond, and should not be left unchallenged.

    His deflection here is simply repugnant to me as it might be to all with even a modicum of respect for human life. While women and children self harm in Australian detention and the refugee crisis across the world gets worse, mondos pathetic response is to fluff about complaining about nomenclature. That is not the issue under discussion here in my view. The issue here is one of a far right wing Australian government complicit in, and through its strategic actions, inactions and legislation, encouragement of, torture of the innocent. Vile.

  22. jordanrastrick

    Maybe it is zero. Maybe the law is being changed as a contingency to deal with potential future eventualities concerning Khmer Rouge war criminals who were tortured by their victims after their fall from power. Its evident that no one has been paying attention to what the law actually does or indeed as you ask why its actually being implemented. For instance, you’ve claimed this might be applied to children. How do you know that’s true?

    If the 50% chance isn’t acceptable (the law obviously doesn’t outline a fixed probability, that’s just the standard interpretation), and I tend to agree its not even for aforementioned Khmer Rouge etc, what standard is? 10%? 0.1%? Obviously we can’t guarantee a 0% chance of torture upon return.

    somebody claimed it on Q&A” is not as authoritative a source as some apparently imagine

    The point is that a Member of Parliament independently stated the exact same thing that Mondo concluded after he actually read with some care the legislation itself. Its right there, in relatively plain English (by legal standards at least), in the passage you yourself quoted. Surely you’re not asking for a more authoritative source than that?

    Or having clearly told Mondo he’s factually in the wrong several times are you now only willing to change the subject to be entirely whether Morrison is morally in the wrong?

    When you have righteousness on your side what’s a bit of looseness with the truth between friends, eh? :-/

  23. Lefty – where you see a lack of “all”s, I see a lack of “some”s.

    That first Dipwad you quoted wrote that there is now a “troubling requirement that people seeking protection within our borders must show they have minimum 51 per chance of being significantly harmed if returned home.” – but you’re right, he didn’t specifically say that all people seeking protection within our borders would be subject to this new test.

    However it might be relevant for you to note that his writing also failed to clarify that the overwhelming majority of people seeking protection aren’t impacted by this change at all – a tidbit of information that you too appear to have kept from your readers (until I pointed it out).

    (Personally I don’t think you were aware that the change had only limited application when you first penned this post – which is fair enough. The sources you got it from obviously didn’t mention it, and since you perceive the Liberals as cartoon-like villains the story probably sounded plausible to you.)

    But regardless – now that the detail is out there we can all make our own decision about whether it has any bearing on how “outrageous” the change is. For me, it makes a difference that 99% of refugees won’t be subject to this test . . . for others it may not.

  24. I gave up watching Q&A when Tony Jones grovelled to Andrew Bolt, could you please post the part of the transcript where ‘mondo’s interpretation was confirmed.’?. Thanks jordanrastrick.

  25. Quibbling over this 50% chance of torture test in Migration act while Morrison refoules Sri Lankans

    Well, again it’s worth noting that from what we know it seems likely that the vast majority of these asylum seekers are not being persecuted, but are merely economic migrants. Thus returning those individuals to Sri-Lanka isn’t ‘refoulement’ at all.

    Nonetheless if we follow Lefty’s recent line of argument it is correct to note that a small number of the returned asylum seekers might be being refouled.

    It’s interesting to note, though, that the Dept of Immigration did still conduct cursory interviews with the asylum seekers and at least made a pretense of screening them as refugees (and even identified that one of them potentially qualified). So they’re paying lip service to the concept of non-refoulement, even if they are playing things a bit fast and loose.

  26. jordanrastrick

    I gave up watching Q&A when Tony Jones grovelled to Andrew Bolt, could you please post the part of the transcript where ‘mondo’s interpretation was confirmed.’?. Thanks jordanrastrick.

    It was the episode hosted in Geelong, and was part of the answer given by the Liberal MP when asked about this issue.

    Well, again it’s worth noting that from what we know it seems likely that the vast majority of these asylum seekers are not being persecuted, but are merely economic migrants.

    Economic migration is clearly a part of the incentives for many Sri Lankans fleeting here, but that doesn’t mean they’re not also refugees (which is why due process of their claims typically find them as such.) For instance why would the many Tamils in refugee camps in Tamil Nadu, India, where they cannot work, not simply return to Sri Lanka if they were only looking for jobs?

    Never mind the countless reports of human rights agencies. You only need read about the history of the Sri Lankan civil war and the recent behaviour of the current government to see that many Tamils and even Sinhalese have perfectly well founded fear of ongoing persecution even with their society now “at peace”. E.g.

    http://en.wikipedia.org/wiki/Black_July
    http://www.newyorker.com/online/blogs/stevecoll/2009/01/letter-from-the.html

    That they feel the need to “vigorously imprison” anyone who attempts to flee their country also tells you most of what you need to know about the character of the government and the safety of people subject to its powers. Its evident to any impartial observer that four questions followed by refoulement to the military forces of the despicable regime is going to lead to persecution and almost certainly torture and other abuses – even if the subjects were only at a moderator risk of attracting government attention prior to attempting to leave.

  27. You don’t need the transcripts bobby – even Lefty now accepts that my interpretation is correct.

  28. narcoticmusing

    I feel the passionate wrath within to agree that Q&A is not even a remotely reliable source of information, nor, I must say, are members of Parliament. For example, Hockey didn’t understand how his own GP-fee invention worked and explained it wrong in Q&A, such that there is now a significant misunderstanding in the community.

    As for the actual issue of this thread, watching what is going on with those being returned to that horrid regime, the legislation is simply fatiguing and another nail in we-are-a-horrible-bunch-of-sods coffin.

    Have people had a look at the ex-memo for the Bill? It is pretty awful reading. Here are some awesome highlights of the purpose of the Bill:
    to provide for the Refugee Review Tribunal (RRT) to draw an unfavourable inference with regard to the credibility of claims or evidence that are raised by a protection visa applicant

    to create grounds to refuse a protection visa application when an applicant refuses or fails to establish their identity…

    The purpose of Sch 2 of the Bill (where you’ll find 6A that Jeremy quoted) is to ‘clarify’ Australia’s non-refoulement obligations under the ICCPR (ie. will we even recognise rights violations which has implications as to whether we can then recognise them under the refugee convention) and CAT (which has already been discussed on this thread). This new section means that the Minister can ONLY be satisfied that Australia has protection obligations if, and only if, they have a more than 50% chance of torture (and yes the ex-memo clarifies the percentages). The key here, is to remember that it applies to the ICCPR – which has translational impacts on the refugee convention and how it is applied. Thus, I would say that until tested in the courts, there is a risk that both legit refugees under the convention (who now fail due to the shifted thresholds for accepting the ICCPR) and those who have a strong risk of harm will be refouled.

    As a comparison, it is worth considering the level of risk that we would consider unacceptable before using preventative detention schemes on Australian citizens considered dangerous. As a hint, the risk required to be demonstrated is below 30% (because the risk is more likely than not compared to the base recidivism rate which isn’t above 30% for any dangerous crime). So, we’re happy to imprison our own citizens with a risk below 30% but we need far more convincing to keep these people seeking our help from danger?

    Ex-memo for those who can’t sleep (note: this will make it harder unlike most ex-memos)
    http://www.comlaw.gov.au/Details/C2014B00154/Explanatory%20Memorandum/Text

  29. jordanrastrick

    Thanks for actually shedding some light on the possible purpose/effects of the legislation, Narcotic.

    The purpose of Sch 2 of the Bill (where you’ll find 6A that Jeremy quoted) is to ‘clarify’ Australia’s non-refoulement obligations under the ICCPR (ie. will we even recognise rights violations which has implications as to whether we can then recognise them under the refugee convention) and CAT (which has already been discussed on this thread). This new section means that the Minister can ONLY be satisfied that Australia has protection obligations if, and only if, they have a more than 50% chance of torture (and yes the ex-memo clarifies the percentages). The key here, is to remember that it applies to the ICCPR – which has translational impacts on the refugee convention and how it is applied. Thus, I would say that until tested in the courts, there is a risk that both legit refugees under the convention (who now fail due to the shifted thresholds for accepting the ICCPR) and those who have a strong risk of harm will be refouled.

    I for one could still do with a little more “clarity”.

    Wikipedia (what is it with me and unauthoritative sources) says that article 7 of the ICCPR against cruelty etc is often now interpreted to imply non-refoulement.

    Likewise the Convention Against Torture (CAT) expounds roughly the same rights as ICCPR article 7 at greater length, correct? And its article 3 explicitly prohibits refoulement of torture victims; however this convention does not lay out any explicit positive framework for how to deal with expatriated torture victims, or seekers of asylum more generally.

    Finally the Convention Relating to the Status of Refugees (CRSR) and its subsidiary treaties establishes the current such positive framework.

    All of these are incorporated into the domestic law treatment of asylum seekers through the Migration Act.

    Mondo has hypothesised that in rare cases our domestic process rejects claims for asylum under the CSRS for people who are nonetheless considered to be at risk of torture or similar harms, and who it is therefore not legal to refoule due to the requirements of the ICCPR/CAT – essentially people who are “not refugees” per se but nonetheless have a secondary claim on asylum – and that the legislated change to the interpretation of “at risk of torture” is narrowly applicable to these cases.

    But if I read you correctly, Narc, you’re saying the implications are much broader, because of the ICCPR’s “translational impacts” on the CSRS. That is to say, presumably, that the ICCPR is the cornerstone of all international human rights’ law, and that subsequent treaties like the CSRS are derivative from it, and hence any changes to the interpretation of the ICCPR can give rise to concomitant changes to the interpretation of the CSRS.

    I feel this all probably hinges somewhat on what “translational impacts” means, which I admit comes across as a technical detail that I simply don’t understand. While I can see how such a relationship between the ICCPR and CSRS holds *in general*, is there any chance you could give more detail on how a specific change to the risk assessment threshold for “obligations under the ICCPR” could alter the broader “obligations under the CSRS”? Or whether the premise, that there is a secondary avenue for asylum outside the CSRS which is being altered here, is itself wrong? To me this seems to go to the heart of the point that Mondo originally raised.

  30. jordanrastrick

    Ugh. I need a better end of “blockquote” tag before my “I for one could do with a little more “clarity”. Sorry. Frigging WP and its (still) raw markup based comment system 😛

  31. Narc – you don’t really believe that anyone would propose and/or support a refugee intake program that required all asylum applicants to prove a >50% likelihood of torture do you?

    That legitimate refugees – i.e. those who have established “a well-founded fear of being persecuted” – would have their claims rejected unless they could demonstrate that the persecution to which they would be subject involves an element of torture?

    Come on. That’s a patently ridiculous interpretation of the impact of the changes. It would entirely gut refugee intake laws and would clearly put us in breach of our obligations under the refugee convention.

    And yet – thanks to a multitude of commentators on the Left – that’s exactly the interpretation that many have mistakenly assumed.

  32. Narc – you don’t really believe that anyone would propose and/or support a refugee intake program that required all asylum applicants to prove a >50% likelihood of torture do you?

    Yeah, I think that’s where you’ve got confused, Mondo. We’re objecting to us sending ANY people back with a 49% likelihood of torture. We’re objecting to that EVER being a thing that we as a country would do.

    It doesn’t need to be “ALL” to be unacceptable.

  33. narcoticmusing

    Jordan – apologies, but I don’t have time to give this the consideration it needs to answer your question. It’s been a while since I’ve instructed on a case like this. But I’m happy to give you a quick overview of how these matters work. I’ll try to keep it simple (apologies to the legal scholars) – Jeremy, I’d be happy for you to jump in here too, it’s been ages since I’ve looked at this sort of thing.

    First thing to realise is that no international instrument has any real impact in a country unless they specifically make an Act to make that so. Second, is that the rule of law (ie as applied by the Courts) would (generally) say that what we ratify should be considered when the Government does stuff.

    Thus the ICCPR is applicable (to varying degrees) in all administrative decisions, including those made pursuant to the Convention due to the rule of law, not due to black letter law (statute). There is a friction between the rule of law which says, hey, Australia signed up to this so it should be considered in decisions of the Australian government (or else what good is our word when we sign these things?), and whether those international agreements/covenants/conventions/etc have been specifically incorporated into Australian law, making them actually enforceable . As you’d be aware, we have no Commonwealth human rights instrument equivalent to the ICCPR, meaning it is not specifically incorporated and thus not specifically enforceable (notwithstanding that some elements are incorporated into certain statutes).

    So the only real way to use the ICCPR is either incorporation in legislation, or that rule of law element that is really only in question if someone challenges an administrative decision.

    Now, what we have here, is a Bill that’s purpose is to incorporate the ICCPR but only to the extent that it will lower the threshold of when we would normally go, hey, that decision is really not consistent to what we signed up to when we ratified the ICCPR. Thus it will erode the basis for when an administrative decision regarding the refugee convention is consistent with the ICCPR.

  34. narcoticmusing

    Mondo, I apologise I’m joining the discussion a little late. I am not talking absolutes like ALL or NONE and I’m not sure that Jemery nor the commentary you pointed to was either. Rather, the concern is that there will be legit refugees who will be in that position.

    Consider your (quite sound) logic: surely a person who is at risk of torture could demonstrate the (seemingly) lower standard of persecution? The problem is that persecution is usually demonstrated via human rights abuses, and modifying the application of the ICCPR modifies the threshold we give a shit about human rights abuses. The Bill seeks to weaken the thresholds for rights abuses as defined by the ICCPR. So now, suddenly, that right we cared about before needs to be abused WAY more before we care. Suddenly the risk of torture and harm needs to be far more than we would expose our own people to (and lock people up for).

    If you want absolutes, consider it in terms of capital punishment. We all agree that IF there is to be capital punishment, it should only be for the guilty. Would you be satisfied with balance of probabilities for that? How about I soften it, make it corporal punishment – I’ll cut of your hand. Would you be happy for a balance of probabilities for that? Balance of probabilities is defined in the Bill as more than 50%. So, at 51% there goes your hand. How hard do you think it is to prove a Criminal case to that standard? EASY. Too easy, because the consequences are significant. Thus, we have a beyond all doubt standard.

    That is the standard that should be used for torture – it should be beyond all reasonable doubt that there is no risk of torture. Otherwise, the risk is too high. The odds are so stacked against these folk – they have the onus of proving something our government finds inconvenient for their international relationship and they must prove that to a standard that is not just unreasonable or unjust, but inhumane. We treat dogs better.

  35. “You don’t need the transcripts bobby – even Lefty now accepts that my interpretation is correct.”

    Just wondering if it was Sarah Henderson agreeing with your interpretation of the story, or any politician for that matter.

  36. Narc – I have always accepted that the change does lower the bar we set for deciding whether Australia has protection obligations under the Convention against Torture and the ICCPR. I’ve never argued otherwise.

    My central argument here is (and has consistently been) that – despite appearances – the change has only limited application and does not directly lower the bar we set for deciding whether Australia has protection obligations under the Refugee Convention.

    I have further argued that Lefty (and all the other commentators I’ve quoted above) have rather spectacularly failed to point this out – i.e. they have been posting articles making it appear that the change in requirements will apply to ALL asylum seekers. They’re misleading their readers into believing that all those who seek asylum in Australia must now pass a new torture test.

    Lefty defends this and now argues that the comment: “people seeking protection within our borders must [now] show they have minimum 51 per chance of being significantly harmed if returned home” is not misleading because it doesn’t say that all people seeking protection will be subject to that rule. Even though most people would obviously read it that way (and even though I strongly suspect that he himself read it that way initially).

    After all, if I were to write an article about how “people who live in Wagga are criminals” I would hardly expect Lefty to come roaring to my defence by pointing out that my article is technically correct because I didn’t say all people living in Wagga are criminals.

    And yet that is the standard he is using here.

  37. Otherwise I agree with you narc – at least up to a point.

    A “beyond reasonable doubt” test for application of our torture protections – i.e. we will only repatriate you if it is beyond reasonable doubt that you will be torture-free upon your return – seems like a reasonable starting point. Based on that measure I would tend to agree that the change made by Morrisson seems unnecessarily harsh.

    But I don’t really know what current practice amongst asylum seekers is, nor whether there is a real (or perceived) glut of failed asylum seekers – i.e. those who we have determined to be economic refugees – trying to use the torture convention as a back-door path to residence. I don’t know why the change was deemed necessary in the first place, and so evaluating it within this utter absence of context is difficult.

    Not that this lack of context seems to have slowed anyone else down – to the contrary it actually seems to have been declared irrelevant by the professional outrage-mongers. After all – admitting that this topic is complex and driven, at least in part, by the specious claims of refugee advocates, significantly reduces its usefulness as a moral bludgeon.

  38. narcoticmusing

    Mondo, I think it is unfair to call those who see this Bill as manifestly unjust as merely ‘the professional outrage-mongers’. The left sits back too passively about most shit, debating technicalities while the right just rides ram-shot over the lot. What do you propose people that believe this is unjust do? Are they not to use passion as the right does when invoking the fear of the invader?

    It reminds me of commentators who whine about those people that are kicking up a stink about the budget. Their response to people’s (legitimate) concerns are things like: but it won’t even be in effect until next year. As if I have to wait for a draconian measure to be implemented against me to disagree with it. I’ll never be directly effected by the GP co-payment, that doesn’t mean I cannot express my outrage, that doesn’t mean I cannot see and point out injustice. That doesn’t mean I should not seek change – because I do see the impact on others in my community.

    the change has only limited application and does not directly lower the bar we set for deciding whether Australia has protection obligations under the Refugee Convention
    I disagree with your assessment. As I discussed earlier, decisions under the Convention are administrative. We have not explicitly incorporated the ICCPR in legislation and its incorporate in this Bill acts to reduce its effect rather than to make it enforceable. It means that an administrative decision pursuant to the Refugee Convention may need to be done differently to the day prior to when/if this Bill is operational. This is a concerning activity because persecution is linked to rights violations, so to think that reducing whether we care about rights violations won’t impact the operation of the Ref Conv is naive. The Government knows it can’t fuck with Refugee Convention directly, just like the US knew it couldn’t set up Gitmo within its own jurisdiction. It is the same smoke and mirrors type policy in order to directly impact the effect of the Refugee Convention.

    And I certainly wouldn’t take the Minister’s work on it, especially on Q&A. The policy of this govt seems to be: say something people agree with and later have their office make a quiet correction.

    IMO, it is misleading to suggest this Bill will not impact assessments of refugees under the convention.

  39. Mondo, I think it is unfair to call those who see this Bill as manifestly unjust as merely ‘the professional outrage-mongers’.

    Come on narc – that’s obviously not what I’m doing. I’ve provided several excerpts above to demonstrate that there is an element of commentator who is either unaware of the real import of the change, or who is willing to out-and-out lie about it in order to push a political viewpoint. Those who use their “professional outrage” as a shield to protect them from the nuances of reality.

    I mean, Richard Ackland is writing that we’re sending people back to “certain torture or harassment”! Remind me when “less than 50%” became a synonym for absolute certainty. I’m all for arguing with passion – but there’s a line past which passionate argument becomes propoganda.

    As far as your argument about the ‘translational’ impacts of this change go – well I think you’re stretching legal principle a bit there but even if you’re right, it still could never have the effect of incorporating a torture test into the definition of refugee. And yet how many people reading Lefty, Ackland, Taylor and that other doofus have walked away believing exactly that?

    I don’t have a problem with those who see this bill as manifestly unjust – I’m sure there’s a reasonable debate to be had about the balancing act involved in ‘assessing’ asylum seekers – it’s just that I’ve yet to see it. So far all I see is a whole bunch of preening bullcrap built on a foundation of misrepresentation and moral absolutism.

    Doesn’t it bother you that our media seems incapable of discussing the refugee issue without immediately resorting to moral grandstanding and simplistic sloganeering? I mean, is that approach actually producing anything closely resembling an edifying outcome for the progressive side of politics?

  40. narcoticmusing

    I mean, Richard Ackland is writing that we’re sending people back to “certain torture or harassment”! Remind me when “less than 50%” became a synonym for absolute certainty. I’m all for arguing with passion – but there’s a line past which passionate argument becomes propoganda.

    I’ll remind you that the onus is on the applicant to demonstrate that the risk of torture is above 50%, in a scenario that the decision maker is obliged to start with a presumption of a negative inference against them. Ergo, the decision maker must start with a presumption the applicant is not telling the truth and/or there is a lower risk than the applicant claims. The applicant then, without any access to resources must prove that which the govt does not want proven. So, with this setup, it is not unreasonable to say that if the person could prove 49% then the reality is a lot higher and that does fall into the realm of certainty – particularly when the decision maker is aware of that certainty and does not need to include that in the decision (indeed the Bill forbids the govt from including their own understanding of the situation if it does not generate a negative inference against the applicant).

    it still could never have the effect of incorporating a torture test into the definition of refugee.
    I will happily admit I”m not as polished on this legal space as I once was (fatigue), however, I completely disagree with you on how it will be applied in practice. Unless the ICCPR effects + the required negative inference forces far more people down the torture test path. So, I’d say never say never. Indeed, my reading of the Ex memo is that that is entirely the point of the Bill, to erode the recognition of rights abuses which will undermine the function of the refugee convention by stealth and thus create a different default test (the torture test). In my opinion, there is a very real goal here, combined with the reduction in funding for legal aid to assist people in appealing these decisions, to shunt them into another pathway. A pathway that is the torture test. The convention relies on the ICCPR and identification – this Bill makes both harder. This Bill places a negative inference on any non-Australian applicant under any international instrument.

    Mondo, absolutes like never are never wise. For one who has been complaining about people using’ moral absolutism’, you have used it constantly. Branding people as wrong without understanding their concern; using words like ‘never’, and ‘all’.

    Mondo, it does bother me that the media is incapable of having a reasonable conversation on refugees, but if you haven’t noticed, it is primarily about demonising them. It is quite naive to expect that any debate that stuck to the technical facts to the letter will ever win hearts and minds in any cause. No better example of that was the recent debate here regarding violence against women – even you seemed to think the only reason my concerns were valid was some harm that had come to me specifically; it mattered not that this was real everywhere for all women.

    There is a very real concern of this Bill being used to erode the current rights and operation of the Refugee convention in this country – that is not grandstanding. It is a significant goal of this Bill.

  41. In my opinion, there is a very real goal here, combined with the reduction in funding for legal aid to assist people in appealing these decisions, to shunt them into another pathway. A pathway that is the torture test.

    Narc – the clear purpose of this change is to push people away from the Torture Convention, not towards it. It’s an attempt to close – or at least make harder – any use of the Torture Convention as a back-up claim to protection.

    It might have the indirect effect of changing the way the courts interpret the concept of “well-founded fear” – and that might leech its way into the way the Courts interpret the Refugee Convention (although that’s a pretty big stretch given that the Bill specifically notes that it doesn’t apply to the Refugee Convention). But it could never have the effect of incorporating a “greater than 50% likelihood of torture” test into our requirements for protection under the Refugee Convention. I’m surprised you’re not willing to concede even this.

    For one who has been complaining about people using’ moral absolutism’, you have used it constantly. Branding people as wrong without understanding their concern; using words like ‘never’, and ‘all’.

    That’s not what moral absolutism is narc – hell it’s not even close.

  42. narcoticmusing

    Mondo, we will have to agree to disagree. I only hope you realise in your passionate defence of technicalities (which I disagree with you on those technical points) you only strive to support the Bill, by diminishing the harm it seeks to do which is overtly detailed in the explanatory memorandum.

    I’d challenge you to consider that one of the things the left has done the poorest in the last few years is propaganda. The right can make up whatever shit they want, any ‘opinion’ is given equal weight to fact. Science is considered left wing and thus those facts are given equal time to the opinions of the right in a useless attempt to appear balanced. The right has won the propaganda space well and truly. So while you might bask in your ‘gotcha’ moment*, all you do is assist in this legislation and others like it to pass. It derails the argument into technicalities rather than whether the Bill in and of itself is good or bad law. It ignores the big picture and the incremental steps that laws take, so that no one step really does a lot on its own until you look at the whole scheme and realise the bigger picture. That one incremental step creates precedents that further other incremental steps. That this incremental step seeks to undermine the application of the ICCPR in all administrative decisions, meaning all law is being changed here in terms of the way the government recognises rights (or not). It derails the conversation in favour of those who want this Bill to not have any attention. It makes the conversation fatiguing.

    Fatigue, is why I shall say no more on this, other than, we’ll have to agree to disagree.

    *which I remind you, we’ll have to agree to disagree on.

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