This month's political showdown about which asylum seeker policy Australia will implement was a study in the victory of politics over law. The policies put forward by the Gillard Government and Tony Abbott's opposition have attracted fierce criticism from legal commentators concerned with human rights and civil liberties, and while some steps taken by Gillard have been cautiously applauded, it is clear that both proposals are seriously lacking when it comes to compliance with international law.

Dispensing with international law

According to University of Western Sydney associate professor and civil libertarian Michael Head, both policies are in clear breach of international law.

"[They] are based on denying asylum seekers the right enshrined in the Refugee Convention to flee persecution without being punished, deterred or discriminated against," he says.

"Whether they are taken off to Timor, Nauru or Christmas Island, effectively they are being punished in a way that is designed to deter them from exercising that right."

Law Council of Australia president Glenn Ferguson believes neither policy provides a fair process for asylum seekers, and that Australia is obliged to treat people fairly and be part of the global response to refugees.

But both policies, he says, fall well short in this regard, particularlywhen off-shore processing comes into the mix.

"Playing our part in the international refugee response requires the government to be fair and reasonable in its approach to asylum seekers," he says. "Offshore processing leaves vulnerable people with no guarantees that their basic legal rights will be protected."

The federal opposition's policy has undoubtedly drawn more criticism than that of the government, especially the suggestion that those without identification will be excluded from processing and that boats will be turned around "where circumstances permit".

"That is outrageous. It's quite outrageous," says prominent human rights barrister and asylum seeker advocate Julian Burnside QC.

"Whether or not you have identification has nothing to do with the question of whether you are a refugee. [The coalition] would be quite willing to breach the Refugee Convention and send people back to persecution merely because they don't have a piece of paper. If you are running for your life, you do whatever it takes."

Ferguson shares Burnside's concerns.

"Processing of claims should be conducted under the principles in the Migration Act, with only a limited role for ministerial discretion," he says. Head's primary concern is that the policies effectively jeopardise asylum seekers' access to justice.

"Both proposals are designed, quite explicitly, to prevent people having access to the Australian legal system and a proper system of review," he says.

"The present regime on Christmas Island, excised from the migration zone, was erected specifically to stop those who are denied protection visas from seeking review, and the proposals put forward by Abbott and Gillard take that proposition even further."

The Law Council is further troubled by the opposition's plans to abolish free legal advice to asylum seekers wishing to initiate a review of an unfavourable decision.

"Vulnerable people should have access to the advice they need to understand our legal processes," says Ferguson.

"Access to justice is denied if this does not occur."

Misdirected concerns endangering justice

According to Burnside, irrational fears are shining the spotlight on an issue which actually holds little consequence in the overall picture of migration to Australia, and he is critical of the language adopted by Gillard in describing the issue. "I wasn't enthusiastic to hear her talk about 'border protection' because ... I don't think we need to be protected from people who are coming from places like Afghanistan, asking for our help. It's not a 'border control' problem either, because on the numbers we actually have watertight borders."

The real problem, says Burnside, is the 50,000 illegal immigrants - mostly backpackers from Europe and the USA - who overstay visas.

Despite this, he says, society is far more concerned with the comparably low number of asylum seekers arriving by boat (approximately 6,000 per year).

According to Head, this is because asylum seekers have become scapegoats for discontent and social unrest produced by the economic downturn, growing unemployment and a shortage of social services.

"If you look at how this issue has been whipped up historically, it has always come to the fore in periods of recession and downturn, and that is certainly what we are in now," he says.

"Whenever the economy suffers and there is the onset of real social deprivation in working class areas across the country, [the government] suddenly brings forth the refugee card. I don't think [Australians] are inherently racist, but their fears, insecurities and social deprivations are manipulated and diverted in a nationalist direction."

Hope on the horizon

Despite the criticism, Gillard's immediate action did draw some guarded praise. "Overall, I am cautiously optimistic," says Burnside.

"It was very encouraging that [Gillard] acknowledged the small asylum seeker arrival rate, because there has been fear mongering about us being flooded, and she was very clear on the fact that the numbers coming are very small. I was also pleased to hear talk about the Australian tradition of generosity and a fair go."

Ferguson too has some praise, and welcomes the government's decision to recommence the processing of Sri Lankan asylum seeker claims and its promise to review the suspension of Afghan claims.

"Treating people fairly means considering the situation of each person on a case-by-case basis," he says.

"The lifting of the suspension is a step in the right direction."

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