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Abstract

This article considers the legality of Australia’s second TPV regime (introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)) under the Convention Relating to the Status of Refugees and accompanying International Human Rights Law instruments. It is argued that the current regime suffers from three defects. First, it unlawfully interferes with the rights of refugees to mental and physical health, and to family reunification. Second, the policy is unlawfully discriminatory pursuant to the International Covenant on Civil and Political Rights (read with the Convention Relating to the Status of Refugees). Third, as a result of these conclusions, TPVs constitute unlawful penalties under the Refugee Convention. The result is that for Australia’s domestic regime to comply with its protection obligations under international law, Australia must significantly amend its asylum seeker and refugee policy.

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