By Jane McAdam & Guy Goodwin-Gill
First published in the Sydney Morning Herald on 27 November 2018
For Australia, migration has been a nation-building enterprise that has yielded immense economic, social, and cultural benefits. It is truly part of our DNA.
The ill-informed commentary on the Migration Compact that has been circulating by government ministers and certain conservative commentators suggests a wilful ignorance of both its substance, and the way it’s been negotiated.
The Migration Compact has not been foisted upon states by the UN, as the Prime Minister himself has intimated, but carefully negotiated by states themselves over the past year – including Australia. The world’s governments (bar the US) painstakingly deliberated over every word to craft what most see as a workable document of compromise. Australia was an active player and instrumental in securing some of the more restrictive language of the final text.
The Migration Compact is not a treaty. It does not create any new legal obligations. To quote the compact directly, it is a "non-legally binding, cooperative framework that … fosters international cooperation among all relevant actors on migration, acknowledging that no state can address migration alone, and upholds the sovereignty of states and their obligations under international law." The last part is key: state sovereignty is respected fully, and any obligations reflected in the compact are not new, but ones Australia committed itself to many years ago when it signed up to the various international human rights treaties.
It is hard to see how anyone could quibble with the compact’s central tenet that "safe, orderly and regular migration works for all when it takes place in a well-informed, planned and consensual manner". The compact recognises that migration ‘is a source of prosperity, innovation and sustainable development in our globalised world, and that these positive impacts can be optimised by improving migration governance". It is not a charter of rights for migrants: states’ interests are also front and centre.
So, what does the compact do? It calls for migration policies based on data and evidence – surely something that no one could rationally question. It refers to the need to minimise the adverse drivers and structural factors that force people to leave their homes in the first place. It affirms the importance of saving lives and establishing coordinated international efforts on missing migrants, and the need to strengthen the transnational response to people smuggling and trafficking. It talks about the need to manage borders in an integrated, secure and coordinated manner, ensuring that migrants have proof of legal identity and adequate documentation, and having appropriate screening mechanisms in place. It also addresses a key issue of major interest to states, but which they have singularly failed to deal with effectively on their own, namely, cooperation in the return and readmission of those who do not need international protection or who do not have any other legal basis to enter and remain. Given all of this, anyone concerned about "irregular" migration should surely welcome the compact.
The Prime Minister, Home Affairs Minister and Foreign Affairs Minister are simply wrong when they say that the Migration Compact "fails to adequately distinguish between people who enter Australia illegally and those who come to Australia the right way, particularly with respect to the provision of welfare and other benefits". The compact does nothing of the sort. Likewise, the Home Affairs Minister’s concern that the compact would give Australian courts grounds to undermine the government’s policy and let more refugees stay in Australia is a total red herring. The Migration Compact is not about refugees at all, and it is not an instrument that would bind Australian courts in any way. Not even international treaties can be directly invoked in Australian courts, so a non-legally binding instrument like the Migration Compact would have even less influence.
As inconvenient as it might be for some to accept, human rights are universal and even migrants have the same fundamental rights as everyone else. But even on this point, the Migration Compact says nothing radical. It simply affirms that migrants should not be discriminated against, and that they should be able to access basic services and have decent work conditions. It encourages the use of flexible pathways for regular migration and recommends the mutual recognition of skills and qualifications. Yes, the compact notes that immigration detention should only be used as a measure of last resort, but while that is a sensitive point in the Australian context, it is uncontroversial as a matter of law.
The Migration Compact usefully sketches what governments can do to ensure that people move in as safe and orderly a manner as possible. It does not impose any new legal commitments, nor oblige countries to take in more migrants. Nothing is surrendered, but much is to be gained.
The fearmongering about the Migration Compact is wholly unwarranted. For countries like Australia, whose strength resides in the diversity of its people, the Migration Compact offers the ways and means to engage with others in meeting 21st century challenges humanely and effectively. At the end of the day, Australia’s non-participation will not have much impact internationally. But to see Australia lining up with the xenophobic attitudes of the other countries that will not take part – like the United States, Hungary, Austria, Israel – is disappointing to say the least. Australia is missing an opportunity to help put migration management on a more orderly and humane basis, to the benefit of migrants and states alike.
See also the statement by Professor Guy Goodwin-Gill released on 21 November 2018