Labor has dropped any reference to non-refoulement - the principle which protects refugees from being returned to a country where they face harm - from its draft national platform.
The move has drawn sharp criticism from lawyer and refugee advocate Julian Burnside and Greens senator Sarah Hanson-Young, but Labor's immigration spokesman Richard Marles and Labor for Refugees spokesman Shane Prince point to a replacement clause they argue covers Australia's obligations under the UN Refugee Convention.
The change is one of a slew of amendments contained in the ALP's draft national platform and is part of a shake-up of the ALP's approach to refugee policy.
Those changes include:
- For Australia's refugee intake to be increased from 13,750 to 27,000 over time. This aspiration is contained in the draft platform and is an increase on the 20,000 target set in 2011;
- Detention facilities - including those offshore - to be subject to transparent, independent oversight;
- The abolition of temporary protection visas;
- Current detention centres will continue to be run with private sector contractors for the term of the current contracts.
The platform is silent on the issue of Labor adopting the Coalition's policy of turning back asylum seeker boats.
Labor leader Bill Shorten and Mr Marles left the door open to that policy being adopted on Monday, but it is expected the party's Left faction will fight that move by putting a resolution that explicitly prohibits Labor in government from implementing turn-backs.
According to the 1951 Refugee Convention, which Australia signed in 1954, any signatory nation shall not "expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion".
The two previous national platforms, published in 2009 and 2011, both explicitly committed an Australian Labor government to "comply with the non-refoulement and all other protection obligations we have voluntarily assumed in signing the Refugee Convention".
The new draft, which will be the subject of vigorous debate at national conference, instead contains a new clause numbered 206 that states: "Labor will treat people seeking our protection with dignity and compassion and in accordance with our international obligations, the rule of law and core Australian principles of fairness and humanity".
Mr Burnside said the principle of non-refoulement was the central obligation of the Refugee Convention, which "imposes very few obligations, but the central one is that you do not send a person back to a place where they face possible persecution and you must not do it directly or indirectly".
He suggested the omission "opens the way to turn-backs" [of asylum seeker boats] and that it may have been cut because "until the last election, Labor was in flagrant breach of many obligations and certainly in breach of the Refugee Convention".
"The only difference between the two big parties is the Liberals are cruel to refugees and boast about it and Labor is cruel to refugees and feel ashamed about it," he said.
But Mr Marles, who has led the drafting process in consultation with a group of backbench MPs, said the absence of a specific reference to non-refoulement was to "make sure it [the platform] is readable and non-repetitive".
"There are numerous references to the Refugee Convention, international obligations and the principles of protection, all of which are about adhering to the principle of non-refoulement. I can assure you that Labor is committed to the principle of non-refoulement which is at the heart of the Convention," he told Fairfax Media.
" The draft platform specifically references putting the Refugee Convention back into the Migration Act."
Asked about the looming debate about turn-back policy, Mr Marles said: " I'm not going to pre-empt what debate occurs other than to say it will be a debate characterised by dignity, which stands in stark contrast to our political opponents since 2001".
Mr Prince, who has been involved in negotiations with Mr Marles on the platform, said Labor for Refugees viewed clause 206 as "requiring compliance with the Refugee Convention and other international obligations which are breached by turn-backs".
In a sign of the looming debate, he added the group was "of a view that turn-backs are in breach of the existing platform".
Senator Hanson-Young said that " deleting the core principle of refugee protection [non-refoulement] from the Labor platform signals one more dangerous step towards Tony Abbott's policies".
TIMELINE: HISTORY OF LABOR'S ASYLUM SEEKER POLICY
May 1992
Keating Labor government introduces mandatory detention for arrivals who don't have valid visas, a policy that has had bipartisan support ever since.
September 2001
Howard Coalition government introduces offshore processing through excising several islands in the migration zone, with the support of the Labor opposition.
December 2007
During the election campaign, opposition leader Kevin Rudd promises to end the "Pacific Solution" if elected.
February 2008
Rudd Labor government dismantles Howard government's "Pacific Solution", winding down of the Manus and Nauru detention centres, in favour of Christmas Island. This was an election promise.
May 2008
Rudd government abolishes the temporary protection visa regime.
April 2010
As asylum seeker arrivals continue their post-2008 surge, the Rudd government temporarily suspends all processing of applications from Sri Lanka and Afghanistan.
July 2010
Gillard Labor government reinstates offshore processing. It announces the beginning of discussions with nearby countries with the intention of re-establishing a "regional processing centre for the purpose of receiving and processing irregular entrants to the region".
October 2010
Gillard government expands community detention to ease pressure on detention facilities.
July 2011
Gillard government signs asylum seeker transfer agreement with the Malaysian government. A memorandum of understanding is signed with the government of Papua New Guinea regarding sending asylum seekers to Manus.
August 2012
After the High Court finds that the "Malaysia solution" was invalid under the Migration Act, offshore processing in Nauru and PNG are announced as alternatives. A memorandum of understanding is signed with the government of Nauru. The government introduces a "no advantage" principle for people who arrive by boat.
September 2012
An updated memorandum of understanding is signed with the government of PNG regarding transferring asylum seekers to Manus Island.
May 2013
Gillard government excises the entire Australian mainland from the migration zone.
June 2013
Second Rudd government announces tougher measures that send all asylum seekers offshore for processing, stopped any asylum seekers arriving by boat being settled in Australia, and returned those found not to be refugees to their home country.
December 2014
Abbott Coalition government reintroduces temporary protection visas despite opposition from Labor and the Greens. The legislation also empowers the government to fast-track refugee status determinations, circumvent the Refugee Convention and fast-track the release of children from detention.
June 2015
Labor opposition supports government's emergency legislation to close loophole making offshore detention illegal. Explicit guarantee of non-refoulement (which protects refugees from being returned to danger) is dropped from ALP platform, but new draft says "international obligations" will be complied with. Pressure mounts for the party to declare a position on turning back boats.
Fergus Hunter
