Internationalising Constitutional Law: An Inward-Looking Outlook

Abstract

This article considers how certain domestic policies with respect to immigration have impacted on Australia's diplomatic engagement in the negotiation of international and human rights standards. It considers selected historical examples that illustrate Australia's impulse to internationalise the plenary power of exclusion embodied in ss 51(xix) and (xxvii) of the Constitution. It suggests that this historical impulse has an enduring relevance and is echoed in contemporary attempts to legitimise and normalise controversial aspects of Australia's asylum policy. In this connection, it considers the example of extraterritorial detention and processing of asylum seekers, in particular the issue of resettlement.

Notes

1 See, for example, Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs and Another (1992) 176 CLR 1 (Lim); Al-Kateb v Godwin (2004) 219 CLR 562 (Al-Kateb); Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28; CPCF v Minister for Immigration and Border Protection (2015) 89 ALJR 207 (CPCF); Plaintiff M68-2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 (Nauru Detention Case).

2 In relation to the Office of the High Commissioner for Human Rights (OHCHR), on 17 September 2016, it was reported that the new Pacific representative of OHCHR, Chitralekha Massey, called on Australia to have the ‘political courage’ to end indefinite detention of asylum seekers on Nauru on the grounds that it is unsustainable, a violation, and unnecessary: Paul Farrell, ‘UN Human Rights Office Calls on Australia to End Offshore Detention’ The Guardian (online) 17 September 2016 <https://www.theguardian.com/australia-news/2016/sep/17/un-human-rights-office-calls-on-australia-to-end-offshore-detention> last accessed 26 January 2017. In relation to the Special Rapporteur on the Human Rights of Migrants, see: Office of the High Commissioner for Human Rights, ‘Migrants/Human Rights: Official Visit to Australia Postponed Due to Protection Concerns’ (OHCHR, Media Release, 25 September 2015) and Tekendra Parmar, ‘The UN Special Rapporteur on Migrant Rights Says Australia’s Refugee Island is “Inhuman”’ Time (online) 17 November 2016 <http://time.com/4575976/australia-nauru-refugees-un-francois-crepeau/> last accessed 26 January 2017; In relation to the Office of the High Commissioner for Refugees (UNHCR), see: UNHCR, ‘UNHCR Monitoring Visit to the Republic of Nauru 7 to 9 October 2013’ (UNHCR, 2013); UNHCR, ‘UNHCR Monitoring Visit to Manus Island, Papua New Guinea 23 to 25 October 2013’ (UNHCR, 2013); UNHCR, ‘UNHCR Calls for Immediate Movement of Refugees and Asylum-Seekers to Humane Conditions’ (UNHCR, Media Release, 2 May 2016); Michelle Innis and Somini Sengupta, ‘UN Offers “One-Off” Help to Australia in Resettling Refugees in US’ New York Times (online) 25 November 2016 <https://www.nytimes.com/2016/11/25/world/australia/refugee-deal-united-states-nations.html?_r=0> last accessed 26 January 2017, quoting Volker Türk, UNHCR’s Assistant High Commissioner for Protection. In relation to the Working Group on Arbitrary Detention (WGAD), see: ‘Cancellation of the First Official Visit to Nauru by the UN Working Group on Arbitrary Detention’ (OHCHR, Media Release, 9 April 2014); contrast Karen Barlow, ‘Nauru Says UN Detention Centre Inspectors Weren’t Invited, Questions Cancellation as “Publicity Stunt”’ ABC News (online) 10 April 2014 <http://www.abc.net.au/news/2014-04-09/an-nauru-says-un-cancellation-of-detention-centre-inspections-a/5377990> last accessed 26 January 2017.

3 Contrast European Convention for the Protection of Human Rights and Fundamental Freedoms opened for signature 4 November 1950 ETS 5 213 UNTS 221 entered into force 3 September 1953, as amended (European Convention on Human Rights), establishing the European Court of Human Rights, arts 19–51.

4 See, for example, Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273; Wurridjal v Commonwealth (2009) 237 CLR 309, 412 [271] (Kirby J). On the distinction between dualism and monism, see Ian Brownlie, Principles of Public International Law (Oxford University Press 2012, 8^th edn) 48–50.

5 See, for example, Joint Statement by the Minister for Foreign Affairs, Senator Gareth Evans, and the Attorney-General, Michael Lavarch, International Treaties and the High Court Decision in Teoh (10 May 1995); Joint Statement of the Minister for Foreign Affairs, Alexander Downer and the Attorney-General and Minister for Justice, Daryl Williams, The Effect of Treaties in Administrative Decision-Making (25 February 1997); Gavan Griffith and Carolyn Evans, ‘Teoh and Visions of International Law’ (2000) 21 Australian Year Book of International Law 75. The extent to which the Constitution can be interpreted in light of international legal obligations was the subject of a heated judicial exchange between McHugh and Kirby JJ in Al-Kateb (2004) 219 CLR 562, in which McHugh J described the notion as ‘heretical’ (at 589).

6 Pacific Island Labourers Act 1901 (Cth); Immigration Restriction Act 1901 (Cth); Commonwealth, Parliamentary Debates, House of Representatives 2 October 1901, 5505 (Edmund Barton).

7 See, generally, Gwenda Tavan, The Long Slow Death of White Australia (Scribe 2005).

8 See Lim (1992) 176 CLR 1; Al-Kateb (2004) 219 CLR 562; Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji (2004) 219 CLR 664.

9 CPCF (2015) 89 ALJR 207.

10 Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28, but contrast Namah v Pato [2016] PGSC 13; SC1497 (26 April 2016); Nauru Detention Case (2016) 257 CLR 42.

11 League of Nations, Covenant of the League of Nations adopted 28 April 1919 108 LNTS 188 entered into force 10 January 1920 (Covenant).

12 United Nations, Charter of the United Nations adopted 26 June 1945 1 UNTS XVI entered into force 24 October 1945 (UN Charter).

13 Universal Declaration of Human Rights GA Res 217A (III), UN GAOR, 3^rd sess, 183^rd plen mtg, UN Doc A/810 (10 December 1948) (UDHR).

14 International Covenant on Civil and Political Rights opened for signature 16 December 1966 999 UNTS 171 entered into force 23 March 1976 (ICCPR).

15 See, for example, Elibritt Karlsen and Janet Phillips, ‘Developments in Australian Refugee Law and Policy (2012 to August 2013)’ (Research Paper, Parliamentary Library, Australian Parliament, 25 September 2014) <http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1415/RefugeeLawPolicy> last accessed 27 January 2017. See also Kevin Rudd, ‘Prime Minister Kevin Rudd — Address to the Nation’ on YouTube (19 July 2013) 00:00:31, 00:00:38 <https://www.youtube.com/watch?v=kIapYIBRZIs> last accessed 26 January 2017, where Rudd declares that asylum seekers arriving by boat ‘have no prospect of being resettled in Australia’ and, later, that they will ‘never permanently’ live in Australia; AusCustomsNews, ‘No Way. You Will Not Make Australia Home — English’ on YouTube (10 April 2014) (Angus Campbell) <http://www.youtube.com/watch?v=rT12WH4a92w> last accessed 26 January 2017. In November 2016, legislation with retroactive effect was introduced into Parliament seeking to impose a lifetime visa ban on post-19 July 2013 refugees who had sought to enter Australia by boat: see Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 (Cth).

16 Some support can also be found for this approach in Sale v Haitian Centers Council, 509 US 155 (1993), but compare Hirsi Jamaa and Others v Italy App No 27765/09 (ECtHR, 23 February 2012). Compare also a decision in April 2016 of the Supreme Court of Papua New Guinea, in which the Court held that the detention of refugees and asylum seekers on Manus Island was unconstitutional: see Namah v Pato [2016] PGSC 13; SC1497 (26 April 2016).

17 Naoko Shimazu, Japan, Race and Equality: The Racial Equality Proposal of 1919 (Routledge 1998).

18 Annemarie Devereux, Australia and the Birth of the International Bill of Human Rights 1946–1966 (Federation Press 2005).

19 In relation to Australia see, for example, Musgrove v Chun Teeong Toy [1891] AC 272; Robtelmes v Brenan (1906) 4 CLR 395. In relation to the US, see Chae Chan Ping v United States, 130 US 581 (1889) (known as the Chinese Exclusion Case); Nishimura Ekiu v United States, 142 US 651 (1892); Fong Yue Ting v United States, 149 US 698 (1893). In the Privy Council, see Attorney-General for Canada v Cain [1906] AC 542.

20 See, for example, James A R Nafziger, ‘The General Admission of Aliens under International Law’ (1983) 77(4) American Journal of International Law 804. See also Eve Lester, ‘Myth-Conceiving Sovereignty: The Legacy of the Nineteenth Century’ in Kim Rubenstein, Mark Nolan and Fiona Jenkins (eds) Allegiance and Identity in a Globalised World (Cambridge University Press 2014) 354; Eve Lester, Making Migration Law: The Foreigner, Sovereignty and the Case of Australia (Cambridge University Press forthcoming 2017).

21 Constitution ss 51(xix) and (xxvii).

22 Commonwealth, Parliamentary Debates, House of Representatives, 12 September 1901, 4826 (William Morris Hughes). Hughes served as Prime Minister of Australia from 1915–1923.

23 John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (Angus & Robertson 1901) 599, 623.

24 See above n 1.

25 Official Record of the Debates of the Australasian Federal Convention Melbourne, 8 February 1898, 688.

26 John M Williams, ‘Race, Citizenship and the Formation of the Australian Constitution: Andrew Inglis Clark and the “14^th Amendment”’ (1996) 42(1) Australian Journal of Politics and History 10 at 18–19.

27 Immigration Restriction Act 1901 (Cth) s 3(a).

28 See, for example, Christie v Ah Foo (1904) VLR 533; Mann v Ah On (1905) 7 WALR 182; Potter v Minahan (1908) 7 CLR 272; R v Wilson; Ex parte Kisch (1934) 52 CLR 234. See also Anthony C Palfreeman, The Administration of the White Australia Policy (Melbourne University Press 1967) 82 n 3.

29 Covenant of the League of Nations above note 11.

30 Charter of the United Nations above note 12.

31 See, for example, Arrangement Relating to the Legal Status of Russian and Armenian Refugees 30 June 1928, LNTS Vol LXXXIX No 2005; Convention Relating to the International Status of Refugees 28 October 1933 LNTS Vol CLIX No 3663; League of Nations, Convention Concerning the Status of Refugees Coming From Germany 10 February 1938 LNTS Vol CXCII No 4461, 59; Convention Relating to the Status of Refugees opened for signature 28 July 1951 189 UNTS 137 entered into force 22 April 1954 (Refugee Convention); Convention Relating to the Status of Stateless Persons opened for signature 28 September 1954 360 UNTS 117 entered into force 6 June 1960 (Stateless Persons Convention); Protocol Relating to the Status of Refugees opened for signature 31 January 1967 606 UNTS 267 entered into force 4 October 1967 (Refugee Protocol).

32 Universal Declaration of Human Rights GA Res 217A (III), UN GAOR, 3^rd sess, 183^rd plen mtg, UN Doc A/810 (10 December 1948) (UDHR); International Covenant on Civil and Political Rights opened for signature 16 December 1966 999 UNTS 171 entered into force 23 March 1976 (ICCPR); International Covenant on Economic, Social and Cultural Rights opened for signature 16 December 1966 993 UNTS 3 entered into force 3 January 1976 (ICESCR); International Convention on the Elimination of All Forms of Racial Discrimination opened for signature 21 December 1965 660 UNTS 195 entered into force 4 January 1969 (ICERD).

33 See, generally, Marilyn Lake and Henry Reynolds, Drawing the Global Colour Line: White Men’s Countries and the Question of Racial Equality (Melbourne University Press 2008); Adam M McKeown, Melancholy Order: Asian Migration and the Globalization of Borders (Columbia University Press 2008).

34 Refugee Convention above note 31.

35 See also Devereux above note 18.

36 Covenant of the League of Nations above note 11, Preamble.

37 These were China, the Kingdom of Hejaz, Liberia, and Siam: Frank Swain Marston, The Peace Conference of 1919: Organisation and Procedure (Oxford University Press 1944), 264; Shimazu above note 17 at 1 n 1.

38 Shimazu above note 17 at 1.

39 As above at 6.

40 In particular, they had anticipated a negative response from the US.

41 Woodrow Wilson reportedly described him as a ‘pestiferous varmint’: Aneurin Hughes, Billy Hughes: Prime Minister and Controversial Founding Father of the Australian Labor Party (Wiley 2005) 80. See also Donald Horne, Billy Hughes (Black Inc 1979) 12, where Hughes is described as ‘a noisy and influential figure’.

42 See Shimazu above note 17; Hughes above note 41 at 75–83.

43 Shimazu as above at 17–18.

44 As above at 18.

45 See, generally, Ian Hill Nish, The Anglo-Japanese Alliance: The Diplomacy of Two Island Empires 1894–1907 (Athlone Press 1985, 2^nd edn).

46 See, for example, Note dictated by Balfour on 10 February 1919 on conversation with House, Additional Manuscripts 49751, Balfour Papers, cited in Shimazu above note 17 at 19. Balfour perceived ‘the triple disadvantage of exciting hopes in the Japanese public which could not be fulfilled; of exciting fears in the English-speaking population in new countries lest they should be fulfilled; and burdening the League of Nations with perpetual controversy incapable of satisfactory solution’.

47 Shimazu above note 17 at 15.

48 Hughes above note 41 at 75.

49 See, for example, W A Holman, Six Years of Labor Government (unpublished), in the Papers of William Morris Hughes, MS1538, National Library of Australia, Subseries 5.2, Writings by others, 1915–c1947, cited in Aneurin Hughes above note 41 at 75–76. Hughes himself believed that the use of force was the only way to survive:

Life was a fight for survival; all government rested on force and progress itself was bought with blood. Disputes between nations were as inevitable as disputes between individuals in society and the maintenance of peace, order and the rule of law in society was absolutely dependent on force.

William Morris Hughes, Australia and War Today: The Price of Peace (Angus & Robertson 1935) cited in Horne above note 41 at 176. It was Hughes who first used the term ‘populate or perish’ in 1937: James Jupp, From White Australia to Woomera: The Story of Australian Immigration (Cambridge University Press 2007) 11; Horne at 177.

50 See, for example, Justice Pal, the Indian judge on the War Crimes Tribunal in 1948: Hughes above note 41 at 76.

51 Shimazu above note 17 at 3.

52 Aneurin Hughes describes the racial equality clause as Japan’s ‘demand for reciprocity for Japanese citizens throughout the world’: Hughes above note 41 at 82.

53 Presented to the League of Nations Commission on 13 February as an amendment to art 21 (the religious freedom article), cited in Shimazu above note 17 at 20.

54 Shimazu above note 17 at 20 n 39.

55 As above at 20.

56 As above at 20–21.

57 As above at 21 n 41.

58 As above at 21 n 42.

59 As above at 21 n 43.

60 As above at 21.

61 As above at 21 nn 44–45.

62 As above at 24, citing internal Japanese correspondence.

63 See, for example, Ambassador Ishii’s speech in New York to the Japan Society: as above at 23 n 56.

64 As above at 24.

65 As above at 26 nn 78–80.

66 As above at 13.

67 As above at 24.

68 As above at 24–25. See also Richard Plender, International Migration Law (Martinus Nijhoff 1988, 2^nd edn) 78, citing Robert Wilson, The International Law Standard and Commonwealth Developments (Duke University Press 1966) 139.

69 Shimazu above note 17 at 24.

70 Laurence Frederic Fitzhardinge, The Little Digger, 1914–1952: William Morris Hughes: A Political Biography vol 2 (Angus & Robertson 1979) 404; as above at 25 n 69.

71 For this text, Shimazu cites internal Japanese correspondence. Shimazu above note 17 at 25 n 70. Note, as Shimazu has pointed out, at 133 and 167, Hughes was effectively campaigning for his re-election from Paris.

72 While the US was clearly responsive to domestic political pressure, Wilson’s diplomatic skills were more deft and his position of power superior.

73 Shimazu above note 17 at 117.

74 See, particularly, Pacific Island Labourers Act 1901 (Cth) and Immigration Restriction Act 1901 (Cth), as from time to time amended.

75 See, for example, Chia Gee v Martin (1905) 3 CLR 649; Preston v Donohue (1906) 3 CLR 1089; Li Wan Quai v Christie (1906) 3 CLR 1125; Ah Yin v Christie (1907) 4 CLR 1428; Muller v Dalgety & Co Ltd (1909) 9 CLR 693. In several cases, the outcome favoured the putative immigrant, but nevertheless upheld the constitutional power of exclusion: see, for example, Christie v Ah Foo (1904) VLR 533; Mann v Ah On (1905) 7 WALR 182; Potter v Minahan (1908) 7 CLR 272.

76 See also Hughes, quoted in Hughes above note 41 at 75: ‘there was no objection to a declaration of racial equality in the Covenant [to the eventual treaty] provided that it was stated in precise and unambiguous terms that this did not confer any right to enter in Australia except as and to the extent that its Government might from time to time determine.’

77 Shimazu above note 17 at 25.

78 As above at 26.

79 As above at 27 n 88.

80 As above at 27.

81 As above at 27.

82 As above at 28 n 92.

83 As above at 28–29.

84 25 July 1919, Annales de la Chambre des Députés; Débats Parlementaires: 11ème Legislature; D H Miller, The Drafting of the Covenant vol 2 (New York, privately printed, 1928) 380, cited in Shimazu above note 17 at 29 n 96.

85 Shimazu above note 17 at 9, 28–29.

86 As above at 29 n 97.

87 As above at 29.

88 Poland reportedly objected on the grounds that it was impractical for principles not elaborated in the body of the text to be incorporated in the Preamble: as above at 29 n 98.

89 As above at 28 n 93.

90 As above at 29–30.

91 Hughes reportedly described as a ‘contemptible lie’ the suggestion that the rejection of the racial equality proposal was solely due to Australia’s intransigence, claiming instead that 11 of the delegates had voted against the clause, and that the American had abstained: Hughes above note 41 at 82.

92 Shimazu above note 17 at 31–32 n 114.

93 As above at 35–36.

94 As above at 31 n 114.

95 As above at 4.

96 As above at 7, citing political scientist Ikei Masaru, ‘Pari heiwa kaigi tu jinshu sabetsu teppai mondai’ (1962) 23 Kokusai Seiji 44.

97 Shimazu above note 17 at 4.

98 Other explanations she cites are racial equality as a universal principle and the politics of bargaining at the peace conference. As above at 5.

99 As above at 9.

100 As above at 7–8.

101 As above at 6.

102 As above at 2.

103 John Murphy, Evatt: A Life (NewSouth Publishing 2016) 1.

104 As above.

105 As above at 21. Indeed, Evatt toyed with the idea of writing a biography of Hughes, about which Hughes is said to have been enthusiastic: at 21, 156.

106 As above at 13, 220, 227.

107 As above at 230, quoting Australian journalist Harold Cox.

108 As above at 223, 239.

109 As above at 82.

110 As above at 83.

111 Deputy Prime Minister, Francis Forde, was appointed to lead the delegation at the last minute: as above at 224–25.

112 This is not to understate the significance in the debates of issues relating to Australia’s indigenous population and, to a lesser extent, women. See, for example, Devereux above note 18 at 132–36.

113 As above at 222.

114 UN Charter Preamble.

115 Art 1(3).

116 Third Committee, Report of the 159^th Meeting, UN Doc A/C.3/SR.159, 26 November 1948, 702.

117 UN Charter art 2(7). Chapter VII of the UN Charter (arts 39–51) provides for action which may be taken with respect to threats to the peace, breaches of the peace, and acts of aggression.

118 Devereux above note 18 at 205.

119 Murphy above note 103 at 233.

120 As above.

121 Memorandum submitted to Committee 1/1 on 11^th June 1945, by Evatt, ‘United Nations Charter – UNCIO’ Folder, Evatt Collection, Flinders University, cited in Devereux above note 18 at 207.

122 Devereux above note 18 at 207.

123 As above.

124 ‘Rather than seeking to insulate all domestic policies, Evatt’s focus was on exempting immigration policies. In its general report on the San Francisco Conference, for instance, the delegation noted that Evatt made clear that Article 2(7) was “a recognition, among other things, that migration policy cannot become the subject of any action by the United Nations” outside the Chapter VII context.’ As above, citing Report on San Francisco Conference, ‘United Nations — Conference on International Organization, San Francisco, 1945’ Folder, Evatt Collection, Flinders University. See also Paul Hasluck, Diplomatic Witness: Australian Foreign Affairs, 1941–1947 (Melbourne University Press 1980) 218; Devereux above note 18 at 208.

125 Use of the term ‘solely’ in art 29 also came up in the Third Committee debates in relation to the UDHR. Draft art 30(2) read as follows:

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and meeting the just requirements of morality, public order and the general welfare in a democratic society.

In an intervention which appears to echo the Australian objective in substituting ‘solely’ with ‘essentially’, the Australian delegate in the Third Committee questioned whether the term ‘solely’ implied that the law in question must have for its sole purpose the restrictions mentioned in the paragraph. He suggested that use of the word ‘solely’ in this sense might be unjustified, as a law might have various collateral purposes, all of which might be justified. See Third Committee, Report of the 154^th Meeting, A/C.3/SR.154, 658.

126 Discussed above at 12.

127 For further detail, see United Nations, 1946–47 Yearbook of the United Nations (Department of Public Information, United Nations, Lake Success, New York, 1947) 524–26.

128 For a detailed account of the drafting process, see United Nations, 1948–49 Yearbook of the United Nations (Department of Public Information, United Nations, Lake Success, New York, 1950) 524–37.

129 The Sub-Committee was set up by the Third Committee towards the end of the process ‘to examine the totality of the Declaration of Human Rights … [as] adopted by the Third Committee, solely from the standpoint of arrangement, consistency, uniformity and style’. Annex A to the Sub-Committee’s Report to the Third Committee, UN Docs A/C.3/400 and A/C.3/400/Rev.1, 4 December 1948.

130 Devereux above note 18 at 70.

131 See draft art 12(1), ‘Everyone has the right to seek and be granted, in other countries, asylum from persecution’: Draft International Declaration of Human Rights, UN Doc A/C.3/285, Rev.1, 30 October 1948. Guy S Goodwin-Gill, International Law and the Movement of Persons between States (Clarendon Press 1978) 137 n 6. See also draft art 34, UN Doc E/CN.4/AC.1/3, 12: ‘Every State shall have the right to grant asylum to political refugees’.

132 Memorandum from T H E Heyes, Secretary, Department of Immigration to the Secretary, Department of External Affairs, 17/3/48, in NAA A 1838/1, 856/13/7 Pt 1, cited in Devereux above note 18 at 70.

133 See also the position of the UK in the debates on the UDHR, Third Committee, Report of the 121^st Meeting, UN Doc A/C.3/SR.121, 3 November 1948, 331. Contrast the position of Uruguay and Mexico, at 333, and Pakistan, at 337.

134 Contrast the qualified position of Vattel, discussed in Nafziger above note 20, and Lester above note 20, 371–73. Contrast Schotel who, in a fascinating study, considers the question in the European context, examining the right of a state to exclude people he characterises as ‘normal migrants’ on the (arguable) basis that refugees have a right to admission: Bas Schotel, On the Right of Exclusion: Law, Ethics and Immigration Policy (Routledge 2012) 12.

135 For Australia’s support, see Third Committee, Report of the 121^st Meeting, UN Doc A/C.3/SR.121, 3 November 1948, 338–39. For the proposal of Saudi Arabia, see UN Doc A/C.3/241. See also Draft International Declaration of Human Rights, UN Doc A/C.3/285, Rev.1, 30 October 1948.

136 Third Committee, Report of the 121^st Meeting, UN Doc A/C.3/SR.121, 3 November 1948, 338. Contrast Monsieur Chauvet (Haiti), Third Committee, Report of the 120^th Meeting, UN Doc A/C.3/284, 317, who had reminded the meeting the day before of the difference between the proposed Covenant and the Declaration: ‘Whereas the covenant was to take into account the practices and political considerations peculiar to each country, the declaration was a statement of universally applicable moral principles.’

137 Report of the Commission on Human Rights, UN Doc E/600, 17 December 1947, 19.

138 For the UK proposal, see UN Doc A/C.3/253. The UK defined the right of asylum as ‘the right of every State to offer refuge and to resist all demands for extradition’. This, they said, was what was meant by the right to ‘enjoy’ asylum. Furthermore, the UK strongly opposed any suggestion that the UN should have the right to invite Member States to grant asylum. On the right to ‘enjoy’ asylum, contrast Alice Edwards, ‘Human Rights, Refugees, and the Right “To Enjoy” Asylum’ (2005) 17(2) International Journal of Refugee Law 293.

139 See, for example, Poland and France: Third Committee, Report of the 122^nd Meeting, UN Doc A/C.3/SR.122, 4 November 1948, 341–42.

140 Third Committee, Report of the 121^st Meeting, UN Doc A/C.3/SR.121, 3 November 1948, 338.

141 Report of Representative of the Third Committee on the UDHR, in NAA A 518/1; Item 104/5/2 Pt 1, cited in Devereux above note 18 at 70.

142 Third Committee, Report of the 122^nd Meeting, UN Doc A/C.3/SR.122, 4 November 1948, 342.

143 UDHR art 13.

144 Draft art 11 read as follows: ‘1. Everyone has the right to freedom of movement and residence within the borders of each State. 2. Everyone has the right to leave any country, including his own.’ See UN Doc A/C.3/284, 16 October 1948.

145 See, for example, Mrs Roosevelt (Chairman), who described freedom of movement as ‘a right inherent in the human person, [which] ought to be understood only as the ability to leave a country freely. This right would be limited by the immigration laws of the receiving country’. Commission on Human Rights, Summary Record of the Fourteenth Meeting, UN Doc E/CN.4/SR.14, 5 February 1947, 2. See also Mr Dukes (UK), Commission on Human Rights, Summary Record of the Fourteenth Meeting, UN Doc E/CN.4/SR.14, 5 February 1947, 2: ‘freedom of movement was naturally limited by the absorptive capacity of receiving countries, which had first to find employment for their own nationals’. See also the position of India in the same report, 2–3. A discernible pattern begins to emerge of resistance by Anglo-Saxon countries (ie the US and British Dominions), most of which did not have rights incorporated into their Constitutions. See Commission on Human Rights, Drafting Committee, International Bill of Rights, UN Doc E/CN.4/AC.1/3/Add.1, 11 June 1947.

146 Contrast Francisco de Vitoria (c1486–1546), Political Writings (Anthony Pagden and Jeremy Lawrance eds, trans Jeremy Lawrance) (Cambridge University Press 1991) 278; Hugo Grotius, De Jure Belli ac Pacis Libri Tres (trans Francis W Kelsey) (Clarendon Press 1925 edn, first published 1646) vol 2 [On the Law of War and Peace: Three Books] bk II ch II, 192, 201–2.

147 Australia had, of course, sat on the drafting Committee, and can therefore be assumed to have had some influence on the text of the original draft.

148 Third Committee, Report of the 120^th Meeting, UN Doc A/C.3/SR.120, 2 November 1948, 318: the Belgian delegate was ‘much impressed’, at 322.

149 As above at 319.

150 Indeed, the US proposals did not even mention matters such as asylum and free movement rights. See Commission on Human Rights, United States Proposals Regarding and International Bill of Rights UN Doc E/CN.4/17, 6 February 1947. Contrast Professor Cassin (France): ‘[T]oday large masses of humanity were obliged to live without properly defined rules. Somebody must take care of these masses of humanity. Rights of asylum, [i]mmigration and rights of nationality were so closely intertwined that millions of human beings could not be left without any statute. It was the duty of the community in the International Field to settle these three questions.’ Commission on Human Rights, First Session, Summary Record of the Thirteenth Meeting, UN Doc E/CN.4/SR.13, 6 February 1947, 8.

151 Third Committee, Report of the 121^st Meeting, UN Doc A/C.3/SR.121, 3 November 1948, 338. Contrast Monsieur Chauvet (Haiti), Third Committee, Report of the 120^th Meeting, UN Doc A/C.3/284, 317, who had reminded the meeting the day before of the difference between the proposed Covenant and the Declaration: ‘Whereas the covenant was to take into account the practices and political considerations peculiar to each country, the declaration was a statement of universally applicable moral principles.’ 

152 See, for example, Commission on Human Rights, First Session, Summary Record of the Ninth Meeting, UN Doc E/CN.4/SR.9, 1 February 1947, 4–6 (Colonel Hodgson (Australia)); contrast Commission on Human Rights, Summary Record of the Fourteenth Meeting, E/CN.4/SR.14, 5 February 1947, 6 (Mr Malik (Lebanon)).

153 Tavan above note 7 at 89–108.

154 Devereux above note 18 at 71. The right to asylum was proposed by the Soviet Union in 1960, and was firmly opposed by Australia. Internal note, Draft Covenant on Civil and Political Rights: Soviet Proposal for Article on Right of Asylum: Relation to Extradition Law of Australia, in NAA A432/68, Item 68/2797 Pt 3. Cablegram from DEA to Australian mission to United Nations, New York, 8/11/61, in NAA A432/68, Item 68/2797 Pt 1. See Devereux above note 18 at 71 n 62.

155 Brief for the Australian delegation to the 10^th Session of the General Assembly, Item 28, in NAA A 462/21, Item 575/1, cited in Devereux above note 18 at 71 n 61.

156 Devereux above note 18 at 241.

157 This message was a central platform of the Howard Government’s Federal Election Campaign in 2001: see, for example, ABC TV, ‘Liberals Accused of Trying to Rewrite History, Lateline (21 November 2001). Recent restatements of the claim have been made by Minister for Immigration and Border Protection Peter Dutton and former Prime Minister Tony Abbott: Peter Dutton, Address to the Australian Strategic Policy Institute 20 September 2016 <http://www.minister.border.gov.au/peterdutton/2016/Pages/address-australian-strategic-policy-institute-15092016.aspx> last accessed 26 January 2017; Tony Abbott, Address to the Alliance of European Conservatives and Reformists Lobkowicz Palace, Prague, Czech Republic, 18 September 2016 <http://tonyabbott.com.au/2016/09/address-alliance-european-conservatives-reformists-lobkowicz-palace-prague-czech-republic/> last accessed 26 January 2017.

158 Dutton as above.

159 Elibritt Karlsen, ‘Australia’s Offshore Processing of Asylum Seekers in Nauru and PNG: A Quick Guide to Statistics and Resources’ (Laws and Bills Digest Section, Parliamentary Library, Parliament of Australia, updated 19 December 2016) <http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1617/Quick_Guides/Offshore> last accessed 26 January 2017.

160 CPCF (2015) 89 ALJR 207.

161 Tim Leslie and Mark Corcoran, Operation Sovereign Borders: The First Six Months (2014) ABC News <http://www.abc.net.au/news/interactives/operation-sovereign-borders-the-first-6-months/> last accessed 26 January 2017; Michael Bachelard, ‘Vomitous and Terrifying: The Lifeboats Used to Turn Back Asylum Seekers’, Sydney Morning Herald (online) 2 March 2014 <http://www.smh.com.au/national/vomitous-and-terrifying-the-lifeboats-used-to-turn-back-asylum-seekers-20140301-33t6s.html> last accessed 26 January 2017.

162 See, for example, Helen Davidson, ‘Fake Fishing Boats Used in Asylum Seeker Turnbacks Spotted off Cocos Islands’ The Guardian (online) 28 November 2016 <https://www.theguardian.com/australia-news/2016/nov/28/australia-still-using-fake-fishing-boats-in-asylum-seeker-turnbacks> last accessed 26 January 2017.

163 In relation to PNG, see Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28, but contrast Namah v Pato [2016] PGSC 13; SC1497 (26 April 2016). In relation to Nauru, see Nauru Detention Case (2016) 257 CLR 42.

164 See above note 2.

165 See also Australian Human Rights Commission, Pathways to Protection: A Human-Rights Based Response to the Flight of Asylum Seekers by Sea (AHRC Report, September 2016).

166 Refugee Convention arts 1C(1) and (4).

167 Arts 1C(3) and 1E.

168 Arts 1C(3) and 1E.

169 See, for example, Al Jazeera News, ‘Peter Dutton: No Objection to Nauru-NZ Deal on Refugees’ Al Jazeera News (online) 16 September 2016 <http://www.aljazeera.com/news/2016/09/peter-dutton-objection-nauru-nz-deal-refugees-160915080840192.html> last accessed 26 January 2017 (quoting Scott Morrison, then Minister for Immigration and Border Protection).

170 See, for example, Stephanie Anderson, ‘NZ Has No Plans to Enter into Refugee Resettlement Deal with Nauru’ ABC News (online) 15 September 2016 <http://www.abc.net.au/news/2016-09-15/dutton-leaves-door-open-for-refugee-resettlement-on-nz/7848088> last accessed 26 January 2017 (quoting Malcolm Turnbull, Prime Minister).

171 See, for example, Liam Cochrane, ‘Last Nauru Refugee in Cambodian Resettlement Program Set to Lose Australian Assistance’ ABC News (online) 3 June 2016 <http://www.abc.net.au/news/2016-06-03/nauru-refugee-in-cambodia-could-have-australian-funding-cut/7472966> last accessed 26 January 2017; Lauren Crothers, ‘Syrian Held on Nauru Lands in Cambodia as Sixth Refugee to Take Up Resettlement Offer’ The Guardian (online) 8 November 2016 <https://www.theguardian.com/world/2016/nov/08/syrian-held-on-nauru-lands-in-cambodia-as-sixth-refugee-to-take-up-resettlement-offer> last accessed 26 January 2017.

172 See, for example, Sarah Martin, ‘Kyrgyzstan Option to Resettle Nauru and Manus Island Refugees’ The Australian (online) 31 October 2015 <http://www.theaustralian.com.au/national-affairs/immigration/kyrgyzstan-option-to-resettle-nauru-and-manus-island-refugees/news-story/bfb0f0b534dc44ebd853034f4715f341> last accessed 26 January 2017.

173 See, for example, Fergus Hunter and Amy Remeikis, ‘Turnbull Government Unveils Manus and Nauru Refugee Resettlement Deal with United States’ Sydney Morning Herald (online) 13 November 2016 <http://www.smh.com.au/federal-politics/political-news/united-states-confirms-manus-island-and-nauru-deal-with-turnbull-government-20161112-gso2el.html> last accessed 26 January 2017.

174 Malcolm Turnbull, Australian Prime Minister, Speech at President Obama’s Leaders’ Summit on Refugees, 19 September 2016, available at <http://www.malcolmturnbull.com.au/media/speech-at-president-obamas-leaders-summit-on-refugees> last accessed 26 January 2017.

175 See, for example, Mary Anne Kenny and Nicholas Proctor, ‘Hope, Certainty and Trust: Issues Abound in US Refugee Resettlement Deal’ The Conversation (online) 1 December 2016 <http://theconversation.com/hope-certainty-and-trust-issues-abound-in-us-refugee-resettlement-deal-69625> last accessed 26 January 2017.

176 ABC, ‘A Focus on Australia’s Refugee Policy’ Q&A, 10 October 2016 (Jim Molan) 01:09:41.