AUS Context
AUS HR record is positive when compared to many other countries, eg. States where:
Women are considered inferior to men and are subjected to discrimination and inequality
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Where children are trafficked, sexually exploited and forced to serve as child soldiers
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Where homosexuality is still punishable by death
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Significant curtailments on free speech
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HR Framework
Response to the findings and recommendations of AUS's largest ever national human rights inquiry--> 2009 National Human Rights Consultation
Asked Australians:
Which hr should be promoted and protected in AUS 1.
Are such rights sufficiently promoted and protected?
2.
How could AUS better protect and promote hr?
3.
▪
Five key findings:
Human rights matter deeply to australians
Resonate with aus democratic values, the rule of law, and our sense of a fair go
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Strong support for promotion and protection of all hr, incl economic, social and cultural rights
- 1.
While aus has strong democratic and legal institutions, they do not provide comprehensive or even adequate protection of hr
2.
Hr are not enjoyed fully or equally by all australians Homeless
- ATSI -
Mental illness -
Asylum seekers -
Disabilities -
3.
Need for better education about hr in community and govt 4.
Strong support for a comprehensive human rights act 5.
▪
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Human rights framework commitments
Educate 1.Enhance hr education, both for community and public sector Significant funding allocated to NGOs, AUS HR commission and Cth public sector
2.
Engage 1.Develop a new national action plan on hr
Protect Establish a joint parliamentary committee on hr, with a mandate to review lego and conduct inquiries on hr issues
Committee comprised of 5 members of HoR, and 5 senators
• 1.
Introduce lego requiring that each new bill introduced to parliament be accompanied by a statement which assesses its compatibility with the 7 core hr treaties to which aus is a party
Human rights (parliamentary scrutiny) act 2011
Statements are not binding on a court or tribunal, and that a failure to prepare a statement does not affect the validity or operation of a bill that becomes law
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Purpose is to improve parliamentary scrutiny of new laws for consistency with hr obligations
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• 2.
Respect Review lego, policies and practices for compliance with aus int hr obligations
Commitment has only been implemented in an ad hoc manner, subsumed as a component of legislative and policy reviews that
• 1.
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Week 1 & 2
Tuesday, 5 March 2019 10:01 PM
subsumed as a component of legislative and policy reviews that were already happening
Develop draft exposure lego to harmonise and consolidate cth anti- discrimination laws
Shortcomings of current discrimination laws:
reactive and complaints-based;
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fail to actively promote equality or address systemic discrimination;
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do not address all grounds of discrimination or multiple discrimination;
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are ineffective in areas that have been granted permanent exemptions
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Consolidation project should include an act:
Contains an explicit duty to promote equality and eliminate discrimination
1.
Act should include a non-exhaustive list of protected attributes, prohibit harassment and vilification on the basis of these attributes
e.g. gender identity, sexual orientation, industrial acivity, family/carer responsibilities, intersex status, religion, criminal record, political opinion,
homelessness, experiences of domestic/family violence
▪ 2.
Act should share burden of proof when discrimination complaints are heard by court
Complainant must make out a prima facie case that discrimination occurred
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Onus then shifts to respondent to show conduct complained of was justified
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Act should include mechanisms to identify, target and address systemic discrimination
4.
Act should explicitly recognise and prohibit compounded or intersectional discrimination
5.
Act should remove arbitrary and outdated blanket exemptions for religious bodies, clubs, partnerships or voluntary work
6.
Act should relieve the burden on complainants (i.e.
ordered to pay respondents legal costs) 7.
Should include a provision mandating that after four years of operation, and inquiry will be held into a constitutional amendment aimed at enshrining the right to equality
8.
- 2.
Review of the framework
Failed to commit to a human rights act, contrary to the NHRC Committee
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The Way Forward
There is significant room for improvement in the protection of human rights in Aus -
Solutions:
HRE(Gerber and Pettit)
Comprehensive school-based human rights education for all children in Aus
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At the time of drafting the UDHR, the UN considered HRE to be an important tool to prevent HR violations
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National HR framework
recognises the role in promoting and protecting HR in AUS
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Federal govt has committed significant funding to HRE initiatives
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HOWEVER, HRE needs to be embedded in the school curriculum -->
opportunities are present given the shift from a state based education
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opportunities are present given the shift from a state based education systems to a single national curriculum
Strong comprehensive legislation
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Change requires a multifaceted approach:
Transparent
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Built on principles of non-discrimination and equality
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Looks at the root causes of human rights violations and addresses those causes
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Encourages the participation and empowerment of all persons
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Hold govt accountable
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Prioritises widespread awareness-raising and education about human rights
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Do Australian's care about Human Rights?
75% say that hr are important -
Only 20% report hr infringements affect them (or someone close to them) -
26% perceive the need for further action on hr -
Universality of hr is qualified in the public mind
Substantial minority of aus are fine with suspending hr protections for certain groups, especially those constructed as a problem or otherwise deviant
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There needs to be public resilience to the suggestions from powerful actors who demonise a group as a means of limiting their human rights
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Sovereignty
Unlike other areas of treaty implementation in which obligations are characterised by reciprocity, human rights obligations are at times portrayed by governments as an incursion into national sovereignty
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AUS history--> strong culture of immigration control and preferences for selecting refugees from overseas
Australia's settler history and "self-consciously selected" immigrant population, restrictions on non-white settlement
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Humanitarian Program
Comprises two elements:
Onshore protection 1.
Offshore resettlement 2.
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Onshore protection
Concerns asylum seekers who arrive in AUS with or without a valid visa and claim refugee protection
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Those with visas--> usually travelled by air and have a low success rate in establishing refugee status
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Those without visas--> travelled by boat--> most can establish they are refugees Despite being consistently outnumbered by air arrivals, IMAs have been the subject of harsh policies aimed at deterring and obstructing entry
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These are often seen as the queue jumpers -
Offshore resettlement
Granted to people outside of AUS, usually in camps and settlements in developing countries
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Visas are granted to refugees and people who are accorded special humanitarian
protection due to the danger of substantial discrimination amounting to a gross violation of their HR in their home country
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International human rights standards Vienna Convention
Art 26 requires states to perform their treaty obligations in good faith -
Art 27 states may not invoke the provisions of their domestic law to justify non- compliance
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Obligation of good faith is breached where the practical effect of the acts or omissions is to defeat the treaty's object and purpose or render fulfilment of treaty obligations obsolete.
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Refugee convention Refugee
1951 refugee convention (art 1A(2)) and 1967 Protocol
refugee, shall apply to any person who: (2) As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
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Particular social group--> women are now in this group -
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Week 3
Thursday, 14 March 2019 12:01 PM
Non-refoulement
Art 33: prohibition of expulsion or return (“refoulement”)
No Contracting State shall 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.
1.
The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
2.
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Penalty in International Law Art 31 Refugee convention
The Contracting States shall not impose penalties, on account of their 1.
illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
The Contracting States shall not apply to the movements of such refu- 2.
gees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.
Immigration Detention
Foundations of mandatory detention Lim v Minister for Immigration (HC)
Such a regime would be unconstitutional if applied to AUS citizens because its penal or punitive character would bring it within the exclusive power of the courts
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HOWEVER, non-citizens are different
Involuntary detention of non-citizens for the purposes of admission, exclusion or deportation is an incident of the aliens' power in s 51(xix) Cn
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Remained valid as long as the detention was limited to what was reasonably necessary to achieve the purpose
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Migration Act S 14
Since Sept 1994 it is required to detain all unlawful non-citizens, namely non-citizens without a valid visa
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S 196
Unlawful non-citizen must be kept in immigration detention until they are granted a visa or removed from AUS
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Time limit
Used to be a 273 day time limit, which was later removed -
Al Kateb Facts
Stateless palestinian from kuwait who requested removal from AUS pursuant to s 198(1) which requires removal as soon as reasonably practicable
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Al-kateb remained in detention because his removal could not be effected in the reasonably foreseeable future due to lack of international cooperation
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Court
HC found that the Migration Act authorised indefinite detention which may continue for life
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HUMAN RIGHTS HAD NO BEARING ON THE DECISION
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HUMAN RIGHTS HAD NO BEARING ON THE DECISION
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Inconsistency with human rights Arbitrary detention
Art 9(1) ICCPR
Prohibition on arbitrary detention
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UN human rights committee
Immigration detention is not intrinsically arbitrary and may be necessary to facilitate screening and identity checks
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BUT detention is arbitrary if applied to all IMAs without justification with reference to their individual circumstances, and where the aims pursued by detention are achievable by less restrictive means
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Judicial review of detention
Limited opportunities for judicial review of detention afforded by s 189 and 196 Migration act, have been found to breach Art 9(4)'s right to challenge the legality of detention
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