Is it right to describe asylum seekers as 'illegal'?

(File: AAP)

The language used in the asylum seeker debate is again under scrutiny after Immigration Minister Scott Morrison directed department staff to describe all people coming by boat as "illegal maritime arrivals".  

The language used in the asylum seeker debate is again under scrutiny after Immigration Minister Scott Morrison directed department staff to describe all people coming by boat as "illegal maritime arrivals".

The directive is in keeping with well-established Coalition practice of discussing asylum seekers who arrive by sea in terms of illegal boats, illegal immigrants or simply "illegals".

So is the use of the word "illegal" justified?

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Some academics say on one level, the Immigration Minister is correct in describing asylum seekers who arrive by boat as illegal.

Professor of international and refugee law at the Australian National University in Canberra, Penelope Mathew;

"Technically under domestic law, you could say he is correct. People have arrived without a visa and our domestic immigration law has a universal visa requirement."

But Professor Mathew insists the paramount legal document is the 1951 United Nations Refugees Convention.

"From a perspective of international law in the Convention there is a specific provision that says that refugees should not be penalised because they've arrived in contravention of domestic immigration law."

Immigration Minister Scott Morrison points to Article 31 of the Convention, which refers to the "illegal entry" of asylum seekers.

He says when he uses the term "illegal" he's referring to the way asylum seekers arrive by boat.

"I've never said it's illegal to claim asylum. That's not what the term refers to. It refers to their mode of entry and so I am going to call a spade a spade."

University of New South Wales Professor of International Refugee Law, Jane McAdam, disagrees.

She says Mr Morrison is completely twisting the intent of the Refugee Convention.

"He's taken one word quite out of context because in fact the provision that the minister relies upon to say Australia can call boat arrivals 'illegals' actually has quite the opposite intention if read within context and that is because the Refugee Convention says that whereas in ordinary circumstances countries might require people to have visas before they enter a country, in the case of asylum seekers that requirement has to be waived."

Professor McAdam says by using the word "illegal" the Immigration Minister is trying to invoke connotations of criminal behaviour.

"The use of the term 'illegal' is quite mischievous and is deliberately provocative, I think, because it undermines the very idea that asylum seekers do have a right under international law to seek asylum and Australia recognises that this is the case."

Anna Copeland is a migration agent and senior lecturer at Murdoch University in Perth.

She says technically, international law does not override domestic law.

"This is very difficult for people in our legal system where we're very used to this hierarchy where a higher court will override if you like a lower court, federal legislation overrides state legislation. International law is a little bit different. So it's not correct to say the international law in some way overrides domestic law. What it is correct to say is that when you sign up to international obligations, part of what you're signing up to is to is to ensure that your domestic legislation is consistent with those obligations at an international level."

Anna Copeland says the Migration Act states all people arriving without visas are "unlawful non-citizens".

But she says that does not mean domestic law has to conflict with Australia's international commitment to the UN Convention on Refugees.

"The interesting issue really here on Refug9is that the Minister for Immigration choses to use that terminology and yet he's the one that can actually issue them with bridging visas immediately on arrival - or once they've established basic health checks and identity checks - he can issue them with bridging visas which would mean that they would not even be unlawful within the Migration Act. But he choses not to and then turns around and uses terminology which is inaccurate in international law and only partially accurate even within our own Migration Act."

The directive for Immigration Department staff to refer to all people coming by boat as "illegal maritime arrivals" comes amid a number of changes to official language.

Mr Morrison has also instructed staff to refer to asylum seekers in detention in Australia as "detainees", not "clients".

He says people in Australia's overseas detention centres should be called "transferees", not "clients".

Deakin University's Law School Dean, Professor Mirko Bagaric, says the language highlights the shift in government policy.

"It reflects an attempt I think by this government to have a sterner and a harsher approach towards people who do come to this country without a pre-existing visa determination and in particular a visa which is determined to be valid."

Pamela Curr from the Asylum Seeker Resource Centre says it's all about dehumanising asylum seekers.

"If we send sheep to the Middle East we still call them sheep. If we send cattle to Indonesia to be killed for the Indonesian meat market we still call them cattle. Why, if we're sending people offshore (overseas) do we not still call them people?"



Source World News Australia

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