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Australian Refugee Protection in the Wake of the Tampa

Published online by Cambridge University Press:  27 February 2017

Penelope Mathew
Penelope Mathew*
Affiliation:
Australian National University
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American Journal of International Law , Volume 96 , Issue 3 , July 2002 , pp. 661 - 676
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Copyright © American Society of International Law 2002

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References

1 Border Protection Bill 2001, H.R., 39th pari., §2.

2 Id.,§4.

3 Id.

4 Id,§7.

5 Id., §9.

6 Id., §10.

7 Victoria is an Australian state (province).

8 Victorian Council for Civil Liberties Inc. v. Minister for Immigration & Multicultural Affairs (2001) 110 FCR 452. Most of the facts for this introduction are taken from id., paras. 14-40.

9 Ruddock v. Vadarlis (2001) 110 FCR 491 (Fed. Ct.) (three-judge panel).

10 Id., para. 193 (French, J.).

11 Id., para. 202.

12 Id., paras. 212-15.

13 Id., para. 29 (Black, C.J.).

14 Id., paras. 60-64.

15 Id., paras. 80-90.

16 Migration Legislation Amendment Act (No. 6) 2001 (Austl.) (inserting §§91R, S into the Migration Act 1958 (Austl.)). The Migration Act and other Australian statutes are available online at <http://www.austlii.edu.au/au/legis/cth/consol_act>.

17 Migration Legislation Amendment (Judicial Review) Act 2001 (Austl.) (repealing and replacing §474 of the Migration Act).

18 Border Protection (Validation and Enforcement Powers) Act 2001, sched. 2, cl. 7 (Austl.) (inserting §245F(8) into the Migration Act) & sched. 2, cl. 2 (inserting §7A into the Migration Act) [hereinafter Border Protection Act].

19 Migration Amendment (Excision from Migration Zone) Act 2001 (Ausd.) [hereinafter Excision Act].

20 See the definitions in section 5 of the Migration Act, as amended by id.

21 Migration Act §46A (inserted by the Excision Act, supra note 19). Protection visas are the usual way that Australia meets its obligations under the Refugee Convention, infra note 45.

22 Migration Act §198A (inserted by the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Austl.)).

23 Visa subclass 447; see Migration Regulations 1994, cl. 447, as amended by Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001. The Migration Regulations are available online at <http://www.ausdii.edu.au/au/legis/cth/consol_reg/>.

24 The major Australian political parties are the Liberal Party and die National Party, which generally form a coalition, and die Labor Party.

25 See die transcript concerning die application for leave to appeal to die High Court in Vadarlis v. Minister for Immigration & Multicultural Affairs, No. M93/2001 (Nov. 27, 2001, High Ct.) (three-judge panel), available at <http://www.ausdii.edu.au/au/odier/hca/transcripts/2001/M93/3.html>.

26 Given die full federal court’s decision, the government would argue that there is nothing to validate.

27 The three cases enumerated in section 245F(8) are (a) a craft in Australia reasonably suspected to be or to have been involved in a contravention of die Migration Act, in or outside Australia; (b) an Australian ship outside Australia where one may reasonably suspect that it is, has been, or will be involved in a contravention of the Act, either in or outside Australia; and (c) a foreign ship outside Australia where one may reasonably suspect that it is, has been, or will be involved in a contravention of die Act in Australia.

28 Border Protection Act, supra note 18.

29 See the definitions in Migration Act §5, supra note 20.

30 Id.

31 There are two types of onshore protection visas. Visa subclass 866, the permanent protection visa, is available to refugees arriving in Australia on a visa (for example, a student visa), while visa subclass 785, the temporary protection visa, is now only available in principle to refugees arriving unlawfully (as a matter of Australian law) on the mainland. For the terms and conditions of these visas, see Migration Regulations, supra note 23, sched. 2, cls. 785,866.

32 Migration Act §46A(2).

33 Id., §189(3), (4).

34 Id.,§198A(l).

35 Id., §198A(3)(a).

36 See, for example, the “Statement of Principles” signed by the president of Nauru and Australia’s minister for defense on September 10, 2001 (copy on file with author). The “agreement” appears to be a memorandum of understanding, which Australia usually regards as nonbinding, and neither party seems to have registered it with the United Nations Secretary-General (not that either of these facts is determinative of the status of the agreement).

37 The Australian government has presented this refusal as a withdrawal of Australia’s request: “Australia welcomed the serious consideration the government of Fiji gave to its request, and in view of Fiji’s current situation, decided to withdraw the request.” Minister for Foreign Affairs and Trade, Media Release, Fiji Visit, FA180 (Dec. 12, 2001), at <http://www.dfat.gov.au/media/releases/foreign/2001>.

38 Migration Regulations, supra note 23, sched. 2, cl. 451.

39 See supra note 23.

40 Migration Regulations, supra note 23, sched. 2, cls. 447.411, 451.411 (stipulating that” [t] he applicant must be outside Australia at the time of grant” of the visa).

41 Id., sched. 2, cls. 200.212, 202.212, 204.213.

42 Id., sched. 2, cl. 866.228A.

43 It is now a criterion for a visa subclass 866 that” [t] he applicant has not held a Subclass 447 (Secondary Movement Offshore Entry (Temporary)) visa since last entering Australia.” Id., sched. 2, cl. 866.214(1).

44 A person must be a citizen or permanent resident of Australia in order to sponsor a spouse or other family members for migration to Australia.

45 Convention Relating to the Status of Refugees, July 28,1951,189 UNTS 150, as amended by Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 UST 6223, 606 UNTS 267 [hereinafter Refugee Convention].

46 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171.

47 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, 1465 UNTS 85 [hereinafter Convention Against Torture].

48 Convention on the Rights of the Child, Nov. 20, 1989, 1577 UNTS 3.

49 See Communication No. 560/1993, A v. Australia, UN Doc. CCPR/C/59/D/560/1993 (1997), available at <http://www.unhchr.ch/tbs/doc.nsf>.

50 See the text at and following supra note 26.

51 See supra note 22.

52 Refoulement is prohibited by Article 33 of the Refugee Convention, supra note 45; Article 3 of the Convention Against Torture, supra note 47; implicitly, Articles 6 and 7 of the International Covenant on Civil and Political Rights, supra note 46; and Article 22 of the Convention on the Rights of the Child, supra note 48.

53 See generally Göran, Melander, Refugees In Orbit (International University Exchange Fund, 1978)Google Scholar.

54 Harold, Hongju Koh, America’s Offshore Refugee Camps, 29 U. Rich. L. Rev. 139, 139–58 (1994)Google Scholar; Carlos, Ortiz Miranda, Haiti and the United States During the 1980s and 1990s: Refugees, Immigration, and Foreign Policy, 32 San Diego L. Rev. 673, 693–94 (1995)Google Scholar.

55 Sale v. Haitian Centers Council, Inc., 113 S.Ct. 2549,2563-66 (1993). The Court’s decision is premised largely on the presumption against extraterritorial application of the relevant U.S. statute, 8 U.S.C. §1253(h) (1) (2000), but the Convention itself was also considered.

56 See, e.g., Goodwin-Gill, Guy S., The Refugee in International Law 143 (2d ed. 1996)Google Scholar; Arthur, C. Helton, The United States Government Program of Intercepting and Forcibly Returning Haitian Boat People to Haiti: Policy Implications and Prospects, 10 N.Y.L. Sch.J. Hum. Rts. 325, 339–42 (1993)Google Scholar.

57 See Crawford, James & Hyndman, Patricia, Three Heresies in the Application of the Refugee Convention, 1 Int’l J. Refugee L. 155,171 (19891)Google Scholar.

58 UNHCR Executive Committee, Conclusion No. 85 (XLIX), International Protection, para, (q) (1998) [hereinafter Conclusion No. 85]; Conclusion No. 82 (XLVIII), Safeguarding Asylum, para. (d)(iii) (1997); Conclusion No. 22 (XXXII), Protection of Asylum-Seekers in Situations of Large-Scale Influx, para. 2 (1981); Conclusion No. 6 (XXVIII), Non-Refoulement, para, (c) (1977). The Executive Committee’s conclusions are available online at <http://www.unhcr.ch/cgi-bin/texis/vtx/home/>. These conclusions are part of the soft law used to interpret the Refugee Convention. Sztucki, Jerzy, The Conclusions on the International Protection of Refugees Adopted by the Executive Committee of the UNHCR Programme, 1 Int’l J. Refugee L. 285 (1989)CrossRefGoogle Scholar. This is because they are an indication of consensus on particular questions of refugee protection. Volker, Türk, The Role of UNHCR in the Development of International Refugee Law, in Refugee Rights and Realities: Evolving International Concepts and Regimes 153, 165 (Nicholson, Frances & Twomey, Patrick eds., 1999)Google Scholar.

59 GA Res.2312 (XXH),UNGAOR,22dSess.,Supp.No. 16,at 81, UN Doc. A/6716 (1967), available at <http://www.unhchr.ch/html/menu3/b/o_asylum.htm>.

60 Assembly resolutions are evidence of states’ views of the law. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, para. 188 (June 27).

61 See, for example, the decisions of the Human Rights Committee concerning interpretation of the words “territory and jurisdiction” in the cases against Uruguay involving the issue of passports and kidnapping by Uruguayan authorities in neighboring countries, discussed in Nowak, Manfred, U.N. Covenant on Civil and Political Rights: CCPR Commentary 41–43 (1993)Google Scholar.

62 See, for example, the conclusion reached by Lauterpacht, Elihu and Bethlehem, Daniel, The Scope and Content of the Principle of Non-Refoulement, para. 67, opinion prepared for the UNHCR global consultations (June 20, 2001)Google Scholar, at<http://www.unhcr.ch/cgi-bin/texis/vtx/home?page=events>.

63 Ruddock, Philip, Minister for Immigration and Multicultural and Indigenous Affairs, Media Release, Suspected Illegals Turned Back, MPS 193/01 (Dec. 21,2001)Google Scholar, at http://www.minister.immi.gov.au/media_releases).

64 For discussion of the customary law status of non-refoulement, see Goodwin-Gill, supra note 56, at 134-37.

65 See, e.g., International Conference on Indo-Chinese Refugees, Declaration and Comprehensive Plan of Action, June 13-14, 1989, UN Doc. A/CONF.148/2, pt. E, excerpted in id. at 534.

66 E.g., Jens, Vedsted-Hansen, Non-Admission Policies and the Bight to Protection: Refugees’ Choice Versus States’ Exclusion ? in Refugee Rights and Realities, supra note 58, at 269,283 Google Scholar.

67 Australia’s own practice recognizes the relevance of general human rights in the declarations as to a particular country’s safety under both sections 91N and 198A of the Migration Act.

68 Papua New Guinea has lodged reservations to Articles 17(1),21, 22(1),26,31,32, and 34 of the Refugee Convention, supra note 45.

69 For a detailed explanation as to the difficulty of drawing a definitive conclusion from the Refugee Convention itself, see Vedsted-Hansen, supra note 66.

70 Professor Hathaway conceptualizes the Refugee Convention as offering surrogate protection to refugees only when national protection is not forthcoming. James, C. Hathaway, The Law of Refugee Status 189 (1991)Google Scholar. Support for this idea may be drawn from Article 1A(2), second para., Article IE, and Article 1C(5) and (6) of the Refugee Convention, supra note 45.

71 Refugee Convention, supra note 45, Art. 31 (emphasis supplied).

72 Id.

73 Byrne, Rosemary & Shacknove, Andrew, The Safe Country Notion in European Asylum Law, 9 Harv. Hum. Rts. J. 185, 190 (1996)Google Scholar.

74 See Nazaré, Albuquerque Abell, The Compatibility of Readmission Agreements with the 1951 Convention Relating to the Status of Refugees, 11 Int’l J. Refugee L. 60, 78 (1999)Google Scholar; Goodwin-Gill, Guy S. Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-penalization, Detention and Protection, para. 24, paper prepared for the UNHCR global consultations (Oct. 2001)Google Scholar, at <http://www.unhcr.ch/cgi-bin/texis/vtx/home?page=events>.

75 Goodwin-Gill, supra note 74, para. 28.

76 Regina v. Uxbridge Magistrates Court, ex parte Adimi, [1999] 4 All E.R. 520, 527-28 (Q.B.) (Simon Brown, L.J.); see also id. at537 (Newman, J.).

77 UNHCR Executive Committee, Conclusion No. 15 (XXX), Refugees Without an Asylum Country (1979).

78 Id., para. (h)(ii).

79 M, para. (h)(iii).

80 Id., para. (h)(iv).

81 Id.

82 Convention Determining the State Responsible for Examining Applications for Lodged, Asylum in One of the Member States of the European Communities, June 15,1990,30 ILM 425 (1991)Google Scholar [hereinafter Dublin Convention].

83 Id., Arts. 5, 6, 7. For the European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4,1950, see 213 UNTS 221. Article 3 implicitly prohibits torture. See, e.g., Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989).

84 Dublin Convention, supra note 82, Art. 9. In addition, Article 3(4) recognizes the ability of states parties to take responsibility outside the usual Dublin Convention principles.

85 Id., Art. 3(5).

86 Weidlich, Sabine, First Instance Asylum Proceedings in Europe: Do Bona Fide Refugees Find Protection”? 14 Geo. Immigr. L. J. 643, 652 (2000)Google Scholar.

87 Migration Act §91N.

88 Joanne, van Selm, Access to Procedures: “Safe Third Countries,” “Safe Countries of Origin,” and “Time Limits,” para. 47, background paper for the third track of the UNHCR global consultations (June 2001)Google Scholar, at <http://www.unhcr.ch/cgibin/texis/vtx/home?page=events>.

89 European Council on Refugees and Exiles, Comments on the Proposal for a Council Regulation Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Asylum Application Lodged in One of the Member States by a Third Country National 1-3 (Dec. 2001), available at <http://www.ecre.org/eu_developments/stateresp.shtml>.

90 Id. at 3.

91 UNHCR Skopje, Guidelines for the Humanitarian Evacuation Programme of Kosovar Refugees in the Former Yugoslav Republic of Macedonia (Apr. 11, 1999), at <http://www.refugees.net/en/evacuations.html>. Australia’s regulations speak of asylum seekers’ acceptance of offers of temporary stay in Australia. Migration Regulations, supra note 23, reg. 2.07AC.

92 Council Directive 2001/55/EC of 20 July 2001 on Minimum Standards for Giving Temporary Protection in the Event of a Mass Influx of Displaced Persons and on Measures Promoting a Balance of Efforts Between Member States in Receiving Such Persons and Bearing the Consequences Thereof, 2001 O.J. (L 212) 12, Art. 26(1).

93 For discussion of this policy, see Aleinikoff, T. Alexander Safe Haven: Pragmatics and Prospects, 35 Va. J. Int’l L. 71 (1994)Google Scholar; Koh, supra note 54.

94 In the period between July 1,2000, and June 31,2001, there were 1508 unlawful air arrivals and 4141 unlawful arrivals by boat in Australia. Department of Immigration and Multicultural and Indigenous Affairs, Fact Sheet 70, Border Control (Nov. 19, 2001), available at <http://www.immi.gov.au/facts/70border.htm>. In 2000 the total number of asylum applications in Australia was 19,400. UNHCR, Refugees by Numbers 2001, at 8, available at <http://www.unhcr.ch/cgi-bin/texis/vtx/home?page=basics>.

95 See particularly Ruddock, Philip, Australian Statement to Parties to the Convention Related to the Status of Refugees, UNHCR Ministerial Council (Dec. 12, 2001)Google Scholar, at <http://www.minister.immi.gov.au/transcripts/index.htm>.

96 Anker, Deborah, Fitzpatrick, Joan, & Shacknove, Andrew, Crisis and Cure: A Reply to Hathaway/Neve and Schuck, 11 Harv. Hum. R.J. 295 (1998)Google Scholar.

97 Id. at 304.

98 Fry, Greg, The ‘Pacific Solution’? in Refugees and The Myth of The Borderless World 23,26 (Australian National University, Dep’t of Int’l Relations, 2002)Google Scholar.

99 See supra note 77.

100 UNHCR Executive Committee, Conclusion No. 58 (XL), Problem of Refugees and Asylum-Seekers Who Move in an Irregular Manner from a Country in Which They Had Already Found Protection (1989).

101 Id., para. (f)(ii).

102 Id., para. (g).

103 See supra note 58.

104 See Marx, Reinhard, Non-Refoulement, Access to Procedures, and Responsibility for Determining Refugee Claims, 7 Int’l J. Refugee L. 383, 404 (1995)Google Scholar, and his numbered conclusions 3 and 4 at 405.

105 Principled Observance of Protection Obligations and Purposeful Action to Fight People Smuggling and Organised Crime—Australia’s Commitment 5-7 (2001) [hereinafter Principled Observance] (on file with author). For further information about the arrangement, see U.S. Committee for Refugees, Paying the Price: Australia, Indonesia Join Forces to Stop “Irregular Migration” of Asylum, Seekers Refugee Rep., Aug./Sept. 2001, at <http://www.refugees.org/world/themes/asylum.htm>.

106 Principled Observance, supra note 105; see also supra note 41 and corresponding text (noting that amendments to the major offshore visa categories speak of “effective protection” by either the state or UNHCR).

107 Statute of the Office of the United Nations High Commissioner for Refugees, GA Res. 428(V), annex, paras. 1, 8 (Dec. 14, 1950), excerpted in Goodwin-Gill, supra note 56, at 384.

108 This limitation is particularly apparent from the language used in paragraph 8 of the Statute, id

109 Of course, states parties to the Refugee Convention owe a specific duty of cooperation to UNHCR under Article 35 of the Convention. For nonparties, UNHCR’s status as a subsidiary organ of the General Assembly gives it some status.

110 See supra note 86 and corresponding text.

111 This omission may be contrasted with the amendments introduced by the Border Protection Legislation Amendment Act 1999. Sec Migration Act §91(Q)(1), (2).

112 Conclusion No. 85, supra note 58; see supra text at note 103.

113 It seems highly likely that Nauru would regard the “Statement of Principles,” supra note 36, as legally binding and, moreover, that Australia might be estopped from failing to remove the asylum seekers.

114 Conclusion No. 85, supra note 58.

115 John, P. Pace, Report of Mission to the Republic of Nauru, paras. 51–56 (Amnesty International, Nov. 16, 2001)Google Scholar (on file with author).

116 See A v. Australia, note 49 supra.

117 James, C. Hathaway & Neve, R. Alexander Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection, 10 Harv. Hum. Rts.J. 115, 130–31 (1997)Google Scholar.

118 See Draft Articles on State Responsibility for Internationally Wrongful Acts, Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, ch. TV.E.l, UN Doc. A/56/10 (2001).

119 See supra note 31 concerning permanent and temporary protection visas.

120 Migration Act §§36(3)-(6), 91N.

121 “The refugees convention does not confer a right on any of these people to choose their country of asylum. ... [T]he bill amends the migration regulations to implement a visa regime aimed at deterring further movement from, or the bypassing of, other safe countries.” Ruddock, Philip, 39 Cth. Parl. Deb., H.R. (Hansard) (Sept. 18, 2001) 30,871 Google Scholar, 30,872.

122 The three major offshore visas for refugees—the refugee visa subclass 200, the global special humanitarian visa subclass 202, and the woman-at-risk visa subclass 204—are all permanent visas. Migration Regulations, supra note 23, sched. 2, els. 200.511, 202.511, 204.511.

123 Id., cl. 785.

124 Id.,cl. 451.

125 See supra note 44.

126 As stated in Articles 26 and 31 of the Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331 (a codification of customary international law), treaties are to be interpreted and implemented in good faith by the parties.

127 See text supra at notes 112-13.

128 Decision of the Social Security Commissioner, Case No. CIS 4439/98, para. 16 (Nov. 25, 1999), at <http://www.courtservice.gov.uk/tribunals/tribs_home.htm>.

129 The return of a Chinese woman to face a compulsory abortion in the eighth month of her pregnancy demonstrates that noncompellable discretion does not always fulfill Australia’s human rights obligations. See Senate Legal and Constitutional Committee [Austl.], A Sanctuary Under Review: An Examination of Australia’s Refugee and Humanitarian Determination Processes, ch. 9 (2000).

130 See text supra at note 75. 131 See the case law discussed in Nowak, supra note 61, at 467-75.

132 As Goodwin-Gill notes, “‘No duty to admit’ begs many questions . . . . State practice in fact attributes little weight to the precise issue of admission, but far more to the necessity for non-refoulement through time, pending the obtaining of durable solutions.” Goodwin-Gill, supra note 56, at 123.

133 International Covenant on Civil and Political Rights, supra note 46, Art. 12(2).

134 Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Final Act, Recommendation B( July 28, 1951).

135 UNHCR Executive Committee, Conclusions No. 88 (L), Protection of the Refugee’s Family (1999); No. 85, supra note 58, paras. (u)-(x);No.84 (XLVIII), Refugee Children and Adolescents (1997);No.24 (XXXII), Family Reunification (1981); No. 9 (XXVIII), Family Reunion (1977);No. 1 (XXVI), Establishment of the Sub-Committee and General, para, (f) (1975).

136 Human Rights Committee, General Comment No. 19, para. 5 (July 27,1990), reprinted in Compilation of General Comments and General Recommendations Adopted By Human Rights Treaty Bodies, UNDoc.HRI/ GENl/Rev.5, at 137, 138 (2001), available at <http://www.unhchr.ch/tbs/doc.nsf>.

137 Human Rights Committee, General Comment No. 15, para. 5 (Apr. 11, 1986), reprinted in id. at 127,128, available at <http://www.unhchr.ch/tbs/doc.nsf>.

138 Communication No. 930/2000, Hendrik Winata & So Lan Li v. Australia, UN Doc. CCPR/C/72/D/930/ 2000 (2001), available at <http://www.unhchr.ch/tbs/doc.nsf>.

139 European Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 83, as amended by Protocol No. 11, May 11, 1994, 33 ILM 943 (1994).

140 See Jastram, Kate & Newland, Kathleen, Family Unity and Refugee Protection 28, background paper for discussion at the UNHCR global consultations (2001)Google Scholar, at <http://www.unhcr.ch/cgi-bin/texis/vtx/home?page=events>; cf. Hélène, Lambert, The European Court of Human Rights and the Right of Refugees and Other Persons in Need of Protection to Family Reunion, 11 Int’l J. Refugee L. 427, 438 (1999)Google Scholar.

141 UNHCR and Graduate Institute of International Studies in Geneva, Geneva Expert Roundtable, Summary Conclusions on Family Unity, para. 5 (Nov. 8-9, 2001), at <http://www.unhcr.ch/cgi-bin/texis/vtx/home?page=events>.

142 Many of the participants are eminent publicists within the meaning of Article 38(1) (d) of the Statute of the International Court of Justice. Some members of the roundtables, however, participated as governmental representatives rather than independent experts.

143 Detrick, Sharon, A Commentary on The United Nations Convention on the Rights Of The Child 371 (1999)Google Scholar.

144 Id. at 170.

145 Convention on die Rights of the Child, supra note 48, Art. 10(1) (emphasis supplied).

146 UN Doc. E/CN.4/L.1575, para. 74 (1981), cited in Detrick, supra note 143, at 192 n.56.

147 Australia has previously been criticized concerning family reunion for refugee children. Concluding Observations of the Committee on the Rights of the Child: Australia, UN Doc. CRC/C/15/Add.79, para. 30 (1997), available at <http://www.unhchr.ch/tbs/doc.nsf>.

148 Only Ireland has shown any interest in resettling the asylum seekers. Clennell, Andrew, Refugee Plan May Backfire, Says Ruddock, Sydney Morning Herald, Dec. 6, 2001,Google Scholar available at <http://old.smh.com.au/news/0112/06/national/national5.html>.

149 This is evidenced by Australia’s failure to amend its legislation in response to the Human Rights Committee’s views in A v. Australia, supra note 48, and strong advocacy of the Pacific Solution by the minister for immigration, see, e.g., Ruddock, supra note 95.

150 It was alleged in the lead-up to the recent federal election that some boat people had thrown children into the sea. Apparently, there was no evidence to support this statement and the Senate has established a “select committee for an inquiry into a certain maritime incident.”

151 See AAP, Blast for Reith on Terrorism, AGE, Sept. 15, 2001, available at <http://www.theage.com.au/news/national/2001/09/15/FFXlPUKMLRC.html>.

152 See Mary, Crock, Immigration and Refugee Law in Australia 11–15 (1998)Google Scholar; Donmcmaster.Asylum Seekers: Australia’s Response to Refugees (2001).