Jessie Nguyen 99141766

Jessie Nguyen | 99141766
Ethics Law and Justice
AUSTRALIA AND ASYLUM SEEKERS:

Human rights devoid of humanity?
I INTRODUCTION
The legal system arguably exists to maintain right, to uphold justice, to protect rights,
to redress wrongs.1 However, the quixotic nature of human rights, often more
honoured in speech than observance,2 poses many challenges regarding the issue of
asylum seekers. It is clear that a deontological model,3 may cultivate a complacent
acceptance of actions justified by the authority of law.4
This essay will argue that the very nature of human rights demands consideration in
light of legal and moral obligations because their mere existence is not sufficient to
ensure their protection. The difficulty of enforcing international law renders domestic
governments effectively responsible for the protection of human rights. Furthermore,
obligations under domestic law are often aligned with political agendas and the need to
maintain impartiality. When coupled with the inherent subjectivity of morality, the
weaknesses of the law are salient. Therefore, breaches of human rights may ascertain
the extent to which moral obligations, or lack thereof, is considered justified.
II LEGAL OBLIGATIONS
A. International
Under international law, Australia has a legal duty to protect refugees fleeing from
persecution,5 and several responsibilities to protect fundamental human rights.6 Despite
1 John Salmond, Jurisprudence (Ballantyne Press, 4th edn, 1913), 13.
2 Julian Burnside, Who Cares About Human Rights? (2003) 26 (3) University of New South Wales Law
Journal 703, 703.
3 Paula Baron and Lillian Corbin, Ethics and Legal Professionalism in Australia (Oxford University
Press, 2014) 38-39.
4 Felicity Nelson, Burnside: lawyers must challenge unjust laws, Lawyers Weekly (online) 3 February
2015 <http://www.lawyersweekly.com.au/news/16115-julian-burnside-plans-to-stir-the-pot-at-alhrannual-dinner>.
5 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137
(entered into force 22 April 1954).
6 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened
for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987); Convention on the
Rights of a Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2
September 1990); International Covenant on Civil and Political Rights, opened for signature 16
December 1966, UNTS 171 (entered into force 23 March 1976); International Covenant on Economic,
this, Australia has failed to satisfy many of these obligations, most pertinently in terms
of arbitrary detention.7 It is imperative to question the authority of law and whether it is
justified to ensure that human rights remain universal, inalienable and indivisible.8
Amnesty International has condemned the indefinite mandatory detention of refugees
under the Regional Resettlement Program on Manus Island as a host of human rights
violations.9 It found that detainees were subject to conditions that denied them
fundamental human rights: crowded accommodations, lack of access to drinking water
and hygiene and sanitary needs, medical and mental health services, and legal
resources.10 In light of findings such as these, it is clear that current processes are
inconsistent with international treaties.
While lawyers have a duty to the law,11 lawmakers and enforcers also have a
fundamental responsibility to ensure the development of law per international
instruments. A recent United Nations Human Rights Committee report has heavily
censured Australias refugee policy and recommended Australia review its migration
legislation to ensure its conformity with international instruments.12 However, the
Governments tardy and disappointing response,13 saliently demonstrates the
weaknesses of international law in enforceability, which problematically creates a
system of self-regulation.
Under international law, Australia currently has an obligation to ensure that the
detention of a child must not be arbitrary and must only be a measure of last resort.14
Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (Entered into force 3
January 1976).
7 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, UNTS
171 (entered into force 23 March 1976) art 9.
8 Office of the High Commissioner for Human Rights, United Nations, What are Human Rights?
<www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx>.
9 Amnesty International, This is Breaking People: Human Rights Violations at Australias Asylum Seeker
Processing Centre on Manus Island, Papua New Guinea (2013) 9.
10 Ibid 6-7.
11 Baron and Corbin, above n 2, 83.
12 Juan Mndez, Special Rapporteur, Report on torture and other cruel, inhuman or degrading treatment
or punishment, UN HRC, 28th sess, Doc A/HRC/28/68 (5 March 2015).
13 Olivia Bell, How weve failed as a nation on arbitrary detention, The Age (online), 7 April 2015
<http://www.theage.com.au/comment/how-weve-failed-as-a-nation-on-arbitrary-detention-201504061mf1ac.html>.
14 Convention on the Rights of a Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered
into force 2 September 1990) art 37(b).
However, the Australian Human Rights Commission has found that Australia is in
serious breach of this obligation as there were over 1000 children detained in facilities
both in mainland Australia and offshore as at 31 March 2014.15 Further, it found that the
non-delegable duty of care owed to refugee children should be set at a high level and
extends to a positive duty to take action to prevent harm from occurring.16 Thus, the
particular vulnerability of child refugees renders it difficult to accept definitively that
arbitrary detention is justified.
B. Domestic
The implementation of treaties into legislation such as the Migration Act 1958 (Cth) and
the Maritime Powers Act 2013 (Cth) demonstrates an attempt to meet international
obligations in domestic law. However, numerous amendments have explicitly
authorised government officers to act in violation of international law or fail to meet due
process laws.17 As such, it has created a byzantine legal and common law framework
that has failed to protect adequately human rights. Some commentators have also
highlighted the economic ramifications of these violations.18
Australia has consistently maintained two key refugee policies: indefinite mandatory
detention introduced under the Keating Government,19 and offshore processing, under
the 2001 amendment to the Act.20 However, it is clear that offshore processing is in
breach of the governments non-delegable duty of care and placing an undue burden on
taxpayers in compensation for negligence.21 As prescribed in the landmark case of New
15 Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in
Immigration Detention (2014) 21.
16 Australian Human Rights Commission, above n 9, 25.
17 Gillian Triggs, Freedom, Parliament and the Courts (Speech delivered at the Human Rights Dinner,
Sydney, 12 June 2015) < https://www.humanrights.gov.au/news/speeches/freedom-parliament-and-courtsspeech-human-rights-dinner>.
18 Andrew Morrison and Greg Barns, Manus Island negligence may have financial costs, The Drum
(online), 25 March 2014 <http://www.abc.net.au/news/2014-03-25/morrison-and-barns-manusnegligence-may-have-financial-costs/5341926>; Kristy Needham, Compensation payouts to asylum
seekers reach $23m, The Sydney Morning Herald (online), 10 November 2011
<http://www.smh.com.au/national/compensation-payouts-to-asylum-seekers-reach-23m-201111091n7i0.html>.
19 Brynn OBrien, Australias founding father of indefinite mandatory detention, The Drum (online),
11 November 2011 www.abc.net.au/news/2011-11-11/obrien-the-founding-father-of-australias-indefinitemandat/3658804>.
20 Migration Amendment (Excision from Migration Zone) Act 2001 (Cth).
21 Andrew Morrison and Greg Barns, Manus Island negligence may have financial costs, The Drum
(online), 25 March 2014 <http://www.abc.net.au/news/2014-03-25/morrison-and-barns-manusnegligence-may-have-financial-costs/5341926>.
South Wales v Lepore,22 governments can be held liable in negligence on behalf of

others who are employed to perform a task of care for a third party. The punitive
transfer of refugees demonstrates another failure to protect human rights under
Australian law in accordance with international obligations.23 However, the High
Courts ruling in favour of the Constitutional validity of ss 198AB and 198AD of the
Act,24 demonstrates the way in which the judiciary has complacently enabled the
government to circumvent the law.25
Moreover, the executive has a duty to look at the law and determine whether it is legally
and morally justifiable,26 and responsibility to ensure that the administration of law is
consistent with the protection of human rights. A salient example is whistleblower Liz
Thompson, the first migration agent to publicly resign from Manus Island, following an
outbreak of violence that resulted in the death of Reza Barati.27 The governments
dismissal of Ms Thompsons allegations as false,28 delineates how state sovereignty may
render governments less answerable to their violations of human rights.
However, the ability of individuals to challenge the quasi-legal authority of the law is
often inhibited as a result of a lack of action on the part of governments. Chairman of
Suicide Prevention Australia, Michael Dudley, has stated that despite his frustration
with the ongoing policy of mandatory detention, he continued to work for the
Immigration Department because If you cant change things, you bear witness. You
write it all down;29 thereby elucidating the multifaceted nature of this issue.
22 New South Wales v Lepore (2003) 212 CLR 511.

23 Oliver Laughland, Asylum seeker reports department to federal police over punitive transfer, The
Guardian (online), 2 April 2014 <http://www.theguardian.com/world/2014/apr/02/asylum-seekercomplaint-punitive-transfer>.
24 Migration Act 1985 (Cth). See Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011)
244 CLR 144.
25 Azadeh Dastyari, Detention of Australias Asylum Seekers in Nauru: Is Deprivation of Liberty by
Any Other Name Just As Unlawful? (2015) 38 (2) University of New South Wales Law Journal 669, 673674.
26 Nelson, above n 4.
27 I was told to lie: Manus Island staffer, SBS (online), 25 February 2014
<http://www.sbs.com.au/news/article/2014/02/25/i-was-told-lie-manus-island-staffer>.
28 Ibid.
29 Kristy Needham, Compensation payouts to asylum seekers reach $23m, The Sydney Morning
Herald (online), 10 November 2011 <http://www.smh.com.au/national/compensation-payouts-to-asylumseekers-reach-23m-20111109-1n7i0.html>.
The government has been forced to pay $23 million in compensation as a result of the
circumvention of their non-delegable duty of care.30 While the economic ramifications
should not be the impetus behind a shift in refugee policy, the crippling administrative
burden that these claims impose on resources,31 warrants consideration to ensure that the
law is applied effectively and in accordance with international legal obligations.
IV MORAL OBLIGATIONS
It is axiomatic that Australias treatment of refugees is in violation of legal obligations.
Although human rights warrant a consideration of the law within the context of moral
and ethical obligations, it is often inhibited as a result of the judicial obligation to
impartiality. This was most salient in the case of Al-Kateb v Godwin,32 where McHugh J
stated:
It is not for the courts, exercising federal jurisdiction, to determine whether the course
taken by Parliament is unjust or contrary to basic human rights. The function of the
courts in this context is simply to determine whether the law of the Parliament is within
the powers conferred on it by the Constitution.33
While lawyers have a duty to the law,34 they should be allowed, as global citizens, to
question whether processes are indeed justified and consistent with international and
moral obligations to protect basic human rights.
Further, some commentators have argued the media has enabled the Australian public to
be derelict in their constitutional duties.35 As the media has the power to significantly
shape the trajectory of public discourses on refugees and thus to ensure greater
transparency and accountability, journalists could investigate and report on violations
in detention centres.36 While this suggestion has some merit, the ability for journalists to
30 Ibid.
31 Morrison and Barns, above n 21.
32 Al-Kateb v Godwin (2004) 219 CLR 56.
33 Ibid 595 (McHugh J).
34 Baron and Corbin, above n 2, 83.
35 Alexander Reilly, Gabrielle Appleby and Rebecca Laforgia, To watch, to never look away: The
publics responsibility for Australias offshore processing of asylum seekers (2014) 39 (3) Alternative
Law Journal 163.
36 Elizabeth OShea, Punitive refugee detention: how much worse can it get?, Overland (Melbourne),
18 February 2014.
pursue these stories is unlikely in a political paradigm that is already circumventing its
duties as legally justified under domestic law. However, an upheaval of the dominant
discourse, which perpetuates the illegality and criminality of asylum seekers and
promotes the positive engagement of the Australian public could be a viable
alternative.37
V IS THIS JUSTIFIED?
Australias current refugee policy is clearly in contravention of international legal
obligations, despite its justification under the quasi-constitutional authority of domestic
law. The recent cuts to legal aid for asylum seekers,38 only serves to reinforce this
argument. Further, the failure to safeguard the rights of those who desperately need
protection is clearly inconsistent with the moral and ethical principles of a democratic
society.
The withdrawal of the legal aid for the majority of asylum seekers under the
Immigration Advice and Application Assistance Scheme, 39 demonstrates another area
that is inconsistent with international law.40 The political motivation of this decision, as
an election promise, can be ascertained through the Immigration Ministers statement:
Its not going to be the responsibility of taxpayers anymore to fund people pursuing
appeals and various other things through the process.41 Further, there is a clear
correlation between having legal advice and the recognition of a refugees status,42
which serves to reinforce the argument against the complacent acceptance of actions
justified under the premise of Constitutional authority.43
Gillian Triggs, President of the Australian Human Rights Commission, has recently
encapsulated the nature of the precarious balance between human rights and freedoms
37 Reilly, Appleby and Laforgia, above n 33, 166.
38 Government cuts legal aid for asylum seekers SBS (online), 31 March 2014
<http://www.sbs.com.au/news/article/2014/03/31/government-cuts-legal-aid-asylum-seekers>.
39 Ibid.
40 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, UNTS
171 (entered into force 23 March 1976) art 9.
41 Above n 37.
42 Azadeh Dastyari,Why refugees need legal aid New Matilda (online), 4 April 2014
<https://newmatilda.com/2014/04/04/why-refugees-need-legal-aid>.
and public and national security.44 She echoed the sentiment that human rights are often
more honoured in speech than observance,45 stating:
The validity of laws that, on their face, breach liberties depends on whether they are
necessary and proportionate to achieve a legitimate end. This legal test has been
adopted by the High Court of Australia and reflects international jurisprudence. This
legal test is of course easy to state, but difficult to apply.46
The protection of human rights also hinges upon the expectation of Australians that our
freedoms will be protected.47 Concerning the issue of refugees, it is clear that a
championing of a respectful culture towards human rights, Constitutional protections
for democracy and the rule of law,48 is necessary to redress the complacent acceptance
of the authority of law. Thus, the violation of both legal and moral obligations certainly
seems incongruous with international human rights benchmarks.
V CONCLUSION
Australias current refugee policy is fundamentally inadequate and inconsistent with the
protection of human rights, both legally and morally. The quintessence of human rights
does not negate the obligation of governments, lawyers and the community to look at
the law and see whether it is justifiable.49 However, it is also important to acknowledge
the limitations of the rejection of complacent acceptance. Therefore, the extent to which
violations of human rights is can be deemed justified exists, albeit, meagre and subject
to moral censure.
BIBLIOGRAPHY
A Articles/Books/Reports
Baron, Paula and Lillian Corbin, Ethics and Legal Professionalism in Australia (Oxford
University Press, 2014)
Burnside, Julian, Who Cares About Human Rights? (2003) 26 (3) University of New
South Wales Law Journal 703
44 Gillian Triggs, Freedom, Parliament and the Courts (Speech delivered at the Human Rights Dinner,
Sydney, 12 June 2015) <https://www.humanrights.gov.au/news/speeches/freedom-parliament-and-courtsspeech-human-rights-dinner>.
45 Burnside, above n 2.
46 Triggs, above n 43.
47 Ibid.
48 Ibid.
Dastyari, Azadeh, Detention of Australias Asylum Seekers in Nauru: Is Deprivation of

Liberty by Any Other Name Just As Unlawful? (2015) 38 (2) University of New South
Wales Law Journal 669
Reilly Alexander, Gabrielle Appleby and Rebecca Laforgia, To watch, to never look
away: The publics responsibility for Australias offshore processing of asylum seekers
(2014) 39 (3) Alternative Law Journal 163
Rolls, Alice, Avoiding Tragedy: Would the Decision of the High Court in Al-Kateb
Have Been Any Different if Australia Had a Bill of Rights like Victoria? (2007) 18
Public Law Review 119.
Salmond, John, Jurisprudence (Ballantyne Press 4th edn, 1913)
B Legislation
Maritime Powers Act 2013 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Excision from Migration Zone) Act 2001 (Cth)
C Cases
Al-Kateb v Godwin (2004) 219 CLR 56
New South Wales v Lepore (2003) 212 CLR 511
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144
D Treaties
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189
UNTS 137 (entered into force 22 April 1954)
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into
force 26 June 1987)
Convention on the Rights of a Child, opened for signature 20 November 1989, 1577
UNTS 3 (entered into force 2 September 1990)
International Covenant on Civil and Political Rights, opened for signature 16 December
1966, UNTS 171 (entered into force 23 March 1976)
International Covenant on Economic, Social and Cultural Rights, opened for signature
16 December 1966, 993 UNTS 3 (Entered into force 3 January 1976)

E Other
Amnesty International, This is Breaking People: Human Rights Violations at Australias

Asylum Seeker Processing Centre on Manus Island, Papua New Guinea (2013)
Australian Human Rights Commission, The Forgotten Children: National Inquiry into
Children in Immigration Detention (2014)
Australian Law Reform Commission, Australian Government, Refugee Law in Australia
<http://www.alrc.gov.au/publications/22-refugee-law/refugee-law-australia-0>
Bell, Olivia, How weve failed as a nation on arbitrary detention, The Age (online), 7
April 2015 <http://www.theage.com.au/comment/how-weve-failed-as-a-nation-onarbitrary-detention-20150406-1mf1ac.html>
Dastyari, Azadeh, Why refugees need legal aid New Matilda (online), 4 April 2014
<https://newmatilda.com/2014/04/04/why-refugees-need-legal-aid>
Government cuts legal aid for asylum seekers SBS (online), 31 March 2014
<http://www.sbs.com.au/news/article/2014/03/31/government-cuts-legal-aid-asylumseekers>
I was told to lie: Manus Island staffer, SBS (online), 25 February 2014
<http://www.sbs.com.au/news/article/2014/02/25/i-was-told-lie-manus-island-staffer>
Laughland, Oliver, Asylum seeker reports department to federal police over punitive
transfer, The Guardian (online), 2 April 2014
<http://www.theguardian.com/world/2014/apr/02/asylum-seeker-complaint-punitivetransfer>
Mndez, Juan, Special Rapporteur, Report on torture and other cruel, inhuman or
degrading treatment or punishment, UN HRC, 28th sess, Doc A/HRC/28/68 (5 March
2015)
Morrison, Andrew and Greg Barns, Manus Island negligence may have financial costs,
The Drum (online), 25 March 2014 <http://www.abc.net.au/news/2014-03-25/morrisonand-barns-manus-negligence-may-have-financial-costs/5341926>
Needham, Kristy, Compensation payouts to asylum seekers reach $23m, The Sydney
Morning Herald (online), 10 November 2011
<http://www.smh.com.au/national/compensation-payouts-to-asylum-seekers-reach23m-20111109-1n7i0.html>
Nelson, Felicity, Burnside: lawyers must challenge unjust laws, Lawyers Weekly
(online) 3 February 2015 <http://www.lawyersweekly.com.au/news/16115-julianburnside-plans-to-stir-the-pot-at-alhr-annual-dinner>
OBrien, Brynn, Australias founding father of indefinite mandatory detention, The
Drum (online), 11 November 2011 www.abc.net.au/news/2011-11-11/obrien-thefounding-father-of-australias-indefinite-mandat/3658804>
Office of the High Commissioner for Human Rights, United Nations, What are Human
Rights? <www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx>
OShea, Elizabeth, Punitive refugee detention: how much worse can it get?, Overland
(Melbourne), 18 February 2014
Triggs, Gillian, Freedom, Parliament and the Courts (Speech delivered at the Human
Rights Dinner, Sydney, 12 June 2015) <
https://www.humanrights.gov.au/news/speeches/freedom-parliament-and-courts-speechhuman-rights-dinner>

Jessie Nguyen 99141766

Transféré par

Informations du document

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Jessie Nguyen 99141766

Transféré par

Droits d'auteur :

Formats disponibles

Jessie Nguyen | 99141766

Ethics Law and Justice

AUSTRALIA AND ASYLUM SEEKERS: