Court of Conscience Issue 13, 2019 Boats and borders: Australia’s response to refugees and asylum seekers Front cover: Iranian-Kurdish asylum seeker Behrouz Boochani. Boochani is a writer, journalist and Associate Professor at UNSW, and was held on Manus Island from 2013 until its closure in 2017 (Jonas Gratzer) Court of Conscience Issue 13, 2019 Boats and borders: Australia’s response to refugees and asylum seekers Court of Conscience respectfully acknowledges the Bedegal, Gadigal and the Ngunnawal Peoples as the custodians and protectors of the lands where each campus of UNSW is located. Editorial team Jacob Lancaster Calum Brunton Brian Wu Editor-in-Chief Editor Editor Jacob Lancaster is a fifth year Calum Brunton is a second year Arts/Law Brian is a second year Commerce/ Science/Law student whose caffeine student who enjoys cycling and walking Law student with an interest in addiction is best understood with in the mountains. In his spare time he learning new languages as a means reference to his TSA approved, travel- can be found in the kitchen perfecting his of gaining an insight into different sized espresso machine. homemade chilli oil or locked in a staring cultures. Having retained around half contest with the unread pile of books at of his French vocabulary from high Beatriz Linsao the end of his bed. school and able to name more than Managing Editor ten types of Italian pasta, his next Beatriz Linsao is a fourth year Arts/Law Glenda Foo linguistic challenge is to try to master student and just your average girl. She Editor all the legal terminology and generous plays Christmas songs three months Glenda Foo is a third year Commerce/ scattering of Latin phrases that inhabit too early and always plans hikes that Law student. When not daydreaming his mountain of law textbooks. she never goes on. One day she hopes about how she could save the world, to have a plant that lives for more than she enjoys experimenting with new two weeks. recipes and critically examining ones in UNSW Law Society the restaurants and cafes she visits. Phoebe Saxon Sophie Berton Managing Editor Drew Gillespie Social Justice Vice-President Phoebe Saxon is a final year Juris Editor Doctor student. When not fretting about Drew Gillespie is a second year Arts/ Natasha Hartanto whether a comma is italicised or not, Law student who enjoys boogying, Fletcher O’Connor she enjoys practising her Spanish, nitpicking grammatical errors, Presidents reading multigenerational family sagas contemplating distributive justice and pickling various vegetables to and watching sunsets. He has been reduce food waste. planning on moving to New York since he was 10 and reading the New York Michael Tanazefti Times since he was in Year 10. Managing Editor Michael Tanazefti is a fifth year Arts/ Rachel Hurwitz Law student. He takes pride in the Editor fact that he’s never run a marathon, Rachel Hurwitz is a second year however is slowly accepting the fact Psychology/Law student. She enjoys that a future career in law may change watching true crime shows almost that. In his spare time he enjoys as much as she loves exploring debating the usefulness of the oxford new cities. comma, and catching up on sleep. Melanie Ling Katharine Tang Editor Managing Editor Melanie is a penultimate year Arts/ Katharine Tang is a fifth year Arts/ Law student. In her spare time, Law student. She loves experimenting Melanie enjoys reading reviews with digital art, watching esports, and of lengthy rail journeys. She pays binging on ice cream. When she is not particular attention to pit stops and doing those things, she is probably trains bearing fancy names. running around the house annoying her dogs. Cherry Tang Editor Sagang Chung Cherry Tang is a third year Criminology/ Editor and Social Media Strategist Law student who doesn’t judge people Sagang Chung is a final year based on race, age or gender, but on Juris Doctor student. When she spelling, grammar and punctuation. isn’t studying, she is an avid food photographer. She manages an Marie Veinberg Instagram food account showcasing Editor Sydney’s vibrant and diverse food Marie Veinberg is a third year Science/ scene. Law student that lives in fear of AI’s inevitable takeover, and yet, is willing to Annabel Rigby accept her cyber overlords if they can Editor and Social Media Strategist finally make a programme that does her Annabel Rigby is a third year AGLC for her. International Studies/Law student who is thrilled by the fact that her Lea Voss compulsive perfectionist qualities Editor have finally become a subject of Lea-Theresa Voss is a Master of praise rather than collective sighs and Laws student all the way from eye-rolls. In her spare time, she enjoys Germany/Austria—she can’t decide colour-coordinating her study notes which she identifies with more. She and crafting aesthetically pleasing hopes to work in international law poké bowls. before the world overheats. Contents Introduction Scrutinising government practices 1 Editorial 63 Data quality and the law of refugee Jacob Lancaster protection in Australia 7 A brief primer on Australia’s treatment Regina Jefferies of refugees and asylum seekers 69 The amended secrecy provisions of Court of Conscience Editorial Team the Australian Border Force Act 13 Timeline of Australia’s refugee policies Sophie Whittaker Court of Conscience Editorial Team 77 Deterring asylum seeking in Australia Dr Antje Missbach and Rethinking the popular narrative Assoc Prof Wayne Palmer 19 Whose island home? Tension between the government and Ingrid Matthews and the courts Prof James Arvanitakis 27 Making migration law 85 Strategic litigation, offshore detention Dr Eve Lester and the Medevac Bill 37 Vanquishing asylum seekers from Anna Talbot and Australia’s borders Adj Prof George Newhouse Prof Linda Briskman 91 Reforming judicial review since Tampa 43 Imitation as flattery Jack Zhou Stephen Phillips 97 Rethinking the character power as it relates to refugees and asylum seekers Increasing support to refugees and in Australia asylum seekers Dr Jason Donnelly 51 An asylum seeker’s access to Medicare The need for statutory reform and associated health services while awaiting determination of a Protection 105 A ‘legacy’ of uncertainty Visa application in Australia Sanjay Alapakkam Danielle Munro and Niamh Joyce 113 Reimagining the protection response 57 Community, belonging and the to irregular maritime arrivals irregular migration Jeswynn Yogaratnam Violet Roumeliotis Content warning This journal contains articles about sexual assault, mental health issues, self-harm, and suicide which may be confronting to some readers. Support Services for Victims of Sexual Mental Health Support Services Assault and other Crimes NSW Rape Crisis Centre provides a 24/7 Lifeline, call 13 11 14 or telephone and online counselling services to visit https://www.lifeline.org.au/ victims of sexual assault in NSW. Call 1800 424 017 or Mensline, call 1300 789 978 or visit nswrapecrisis.com.au visit https://mensline.org.au/ NSW Victims Services provides information Kids Helpline, call 1800 551 800 or and support services to victims of crime visit https://www.kidshelpline.com.au/ in NSW. For the Victims Access Line Beyondblue, call 1300 224 636 or call 1800 633 063 visit https://www.beyondblue.org.au/ For the Aboriginal Contact Line call 1800 019 123 Sexual Assault Counselling Australia provides counselling, information and referral services to victims of sexual assault in Australia. Call 1800 211 028 or visit sexualassaultcounselling.org.au 1800 Respect (National Sexual Assault, Domestic Family Violence Counselling Service) Call 1800 737 732 or visit https://www.1800respect.org.au/ Painting by Abbas Alaboudi Editorial Boats and borders: Australia’s response to refugees and asylum seekers Jacob Lancaster I Introduction refugee definition enshrined in art 1A(2) of the Refugee Convention,3 our politicians focus Welcome to the 13th Issue of Court of instead on a claimant’s mode of arrival.4 At a Conscience. This year’s thematic considers time when refugees and asylum seekers are Australia’s treatment of refugees and asylum treated with suspicion and cast offshore, we seekers. It is a timely and sobering reminder must remember their humanity and our obli- that Australia is failing many of those whom it gations under international law.5 is bound to protect. This topic was selected By way of example, on 4 July 2019, the for two reasons: first, because Australia’s cruel Government introduced the Migration Legis- and inhumane treatment of irregular asylum lation Amendment (Regional Processing seekers focuses more on discouraging people Cohort) Bill 2019 (Cth) (‘Regional Process- smugglers and less on upholding our obliga- ing Bill’). If passed as law, it will permanently tions under international law;1 and second, bar those asylum seekers who attempted to because human rights are universal and come to Australia by boat, and were taken to inalienable,2 and should not be enjoyed only by a regional processing country after 19 July some. We must overcome our apathy to those 2013, from applying for an Australian visa.6 It we turn away from our borders and detain is difficult to square with art 31 of the Refugee offshore in conditions that offend human Convention, which prohibits State signato- rights, human dignity, and human conscience. ries from imposing penalties on refugees on account of their illegal entry or presence.7 It ‘Stop the boats!’ also fails to acknowledge that it is not illegal, The challenge ahead lies in discrediting the under international law, to seek asylum.8 three-word slogan, ‘Stop the Boats’, that Nevertheless, the Bill is ostensibly compatible has come to characterise Australia’s stance with international human rights law because, toward asylum seekers attempting to enter according to the Government, this ‘differential Australia by sea.