Human Rights
Rule of Law
Refugees
Rule of Law
Institute of Australia
(RoLIA)
What is RoLIA?
- an independent, not for profit organisation
- we do not have affiliations with any political party
- an NGO, we receive no government funding
- we promote discussion of the rule of law through:
education, submissions to government and conferences.
Overview
• Anarchy, Tyranny, Stability
• The Rule of Law
• Different types of rights
• Refugee Law: The High Court and
Executive
• Main focus: The role of the courts in
protecting human rights in Australia.
• Where does this fit in terms of your
syllabus?
"The UN was not created to take mankind to
heaven, but to save humanity from hell."
Dag Hammarskjöld, UN Secretary-General from 1953 to 1961
What happens when the
rule of law is absent?
WITH UNCONTROLLED POWER COMES
INSTABILITY.
which can lead to ANARCHY or TYRANNY!
http://www.bbc.co.uk/news/world-africa-18995686
http://www.guardian.co.uk/globaldevelopment/2012/mar/15/international-criminal-court-firstruling-lubanga
Charles Taylor of
Liberia - 50 Years jail
Thomas Lubanga Congo, 14 years for
child soldiers
Special Court
for Sierra Leone
International
Criminal Court
Effectiveness of the ICC?
The ICC had its 10th birthday last month. Lubanga
was its first successful prosecution.
"We are with the rule of law and everybody has to pay
for his mistakes and for any crime he commits, but
when it will be selectively and targeting only African
leaders it should not be accepted," Chad's ambassador
to the US, Ahmat Mahamat Bachir, told the BBC
http://www.bbc.co.uk/news/world-africa-10723869
State Sovereignty?
Will states allow their citizens to
be prosecuted?
Legal Responses to
Human Rights Issues
The International Criminal Tribunal for the Former Yugoslavia
(ICTY)
The International Criminal Tribunal for Rwanda (ICTR)
Special Court for Sierra Leone
International Criminal Court
UN Security Council Resolutions for Libya and Syria
The main limitation: state sovereignty
Between Anarchy and
Tyranny
Anarchy
No
control
Stability
☺
Tyranny
Too much
control
What protects human
rights in Australia?
The Government
under the rule of law
The Constitution
Access to
justice in courts
Statute and
Common Law
Fair and equal society?
What is the Rule of
Law?
• All people are equal before the law regardless of
their social status
• Individuals and the government are subject to
the law and have limits placed on their use of
power
• That there are independent courts to settle
disputes between individuals and the state
Which rights are most important
in upholding the rule of law?
•
The right to be brought before a court (habeas corpus)
•
The right to a fair trial, access to justice, an impartial and
independent judge - procedural fairness/natural justice
•
Freedom of speech: in Australia the High Court found
freedom of political communication is assumed under the
Constitution to contribute to responsible government
•
Freedom of the press: an independent press that can report
information that is in the public interest - journalistic privilege they pick up the pieces the checks and balances do not.
What institutions uphold
the rule of law?
• Parliament - ultimately responsible for ensuring that
laws they pass are fair and/or in the public interest.
Debate in Senate and House of Representatives is
essential + House and Senate Committees
• Courts and Judges - interpret the law and ensure
people receive a fair trial
• The Executive - must run the country according to
the law with concern for the public interest
Why is this important to
HRs?
• If there are no checks or balances on the use of
power peoples rights and freedoms will be lost
• The rule of law and democracy are related ideas
which allow people rights and freedoms at the
same time as enforcing responsibilities
• Human rights such as the right to life, safety,
security, and many others are protected in
Australia as long as the rule of law is maintained
The Rule of Law and a
Bill of Rights?
• The rule of law is not opposed to a bill of rights
however,
• Under the rule of law certain rights become more
important than others:
• The right to privacy is less important because the
right to freedom of speech and transparency in
government is more important in upholding the
rule of law
Types of Rights
• Individual rights - rights a person has an
individual
• Collective rights - rights which groups
within society receive
• State’s Rights - the right of the state to
exercise power in the public interest
Brown v Board of
Education Topeka (1954)
President Eisenhower and Chief Justice Warren of the
Supreme Court of the United States
Dinner with the
President
• The Brown v Board of Education case led to
the end of segregation between whites and
African Americans in schools in the United
States
• Chief Justice Warren of the Supreme Court of
the United States was invited to dinner with
President Eisenhower.
• At the dinner the Justice was seated next to
the President and the counsel for the
segregationists
•
•
•
President Eisenhower, according to Warren said:
‘These are not bad people. All they are
concerned about is to see their sweet little girls
are not required to sit in school alongside some
big overgrown Negroes.’
cited in Bingham, The Rule of Law, 2010 p.95
A happy ending for
the rule of law and
• The Executive attempted
to influence the judiciary
HRs?
•
•
•
The Chief Justice decided in favour of Brown and
effectively ended segregation in United States
schools
President Eisenhower later enforced the court’s
decision by sending in the army to escort 9 African
American students into Little Rock High School in
Arkansas
Courts and Executive can disagree, but arms of
government must respect the power of the other arms
and make use of legal checks and balances.
Terra Nullius
Native Title
Empty Land
• Mabo v the State of Queensland (No 2)
(1992)
• Established Native Title and led to the Native
Title Act (1993)
• This established a legal process for deciding
on land claims - The Native Title Tribunal
Seesaw Collective
and Individual Rights
• The Mabo decision led to recognition of the
collective rights of Indigenous peoples
• This granted legal recognition of title to their land.
• This right was to be balanced by the Native Title
Tribunal with the rights of farmers and other land
owners
High
Court
and
Federal
Parliament
• Wik Peoples v Queensland (1996) was seen by
the Howard Government as too far toward
recognition of land rights.
• The Wik 10 Point Plan, an act passed by
Parliament, overrode the common law and did
not allow native title claims on pastoral
(farming) leases
• Law reform occurring under the rule of law
through democratic processes
• The rule of law is not concered with what is
good policy, but ensures that legal processes
occur that allow all stakeholders to access the
How does the Rule of Law
Link with Human Rights?
• The right to a fair trial, to challenge or appeal
decisions of courts and government are central to
human rights and the rule of law
• Courts make decisions on the interpretation of statute
law, like the Migration Act
• Their decisions create precedents or common law,
which is influential until parliament overrides it with
legislation
• Legislature and judiciary under the rule of law
The Reality of Human
Rights
• Universal human rights in the pure sense are not a legal
reality.
• Rights imply responsibilities, always.
• The rights of the individual often come into conflict with
the rights of the state/government
• What is in the public interest (majority) does not always
agree with universal human rights
• Conflict between state sovereignty and international law
Asylum Seekers and
Refugees in AU
•
The current state of play:
•
The Migration Act currently defines certain islands off the coast of
Australia as ‘excised offshore places’
•
People who arrive in these places without a visa are deemed ‘unlawful
non-citizens’, ‘offshore entry persons’ or ‘irregular maritime
arrivals’
•
They are subject to mandatory detention until they are granted a visa
OR removed from Australia
•
People in this situation are called asylum seekers until they receive
refugee status from the Australian Department of Immigration and
Citizenship
The Refugee Convention
• What is a refugee?
• From the Refugee Convention:
• ‘A person who owing to a 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/her nationality and is unable or, owing to
such a fear, is unwilling to avail himself of the
protection of that country.’
Current Discussions
About Asylum Seekers
1) How to deter people from getting on boats
and coming to Australia
2) What to do with boats that are intercepted
on their way to Australia
3) Where and how to process asylum seekers:
offshore processing or onshore processing?
The Excise Zone
• The Migration Act 1958 (Cth) exists to regulate the
presence of non-citizens within Australia
• Non-citizens who enter Australia without a visa are:
unlawful non-citizens
• Those who arrive by boat and are unlawful noncitizens are also called irregular maritime arrivals.
• If a person arrives in the excise zone, they cannot
apply for a protection visa unless the Minister ‘lifts the
bar’ under s46A of the Migration Act 1958 (Cth)
•
Map of Australia’s Excised Offshore places from http://www.immi.gov.au/media/fact-sheets/81-excisionplaces-map.pdf
Different Names for
People Seeking Asylum
•
Asylum seeker - a person who has fled their country seeking
refugee status
•
Irregular Maritime Arrivals - people who arrive in Australia via boat
who do not have a visa
•
Unlawful non-citizens - a person who in Australia who is not a
citizen and does not have a valid visa
•
Offshore entry person - a person who enters Australia at an
excised offshore place and becomes an unlawful non-citizen.
•
Refugee - a person who holds a protection visa
•
Boat people - asylum seekers who arrive by boat in Australia, not a
legal term.
Visas
• What is a visa? A legal document which allows
you to be in a country. Sets conditions for what you
can do, and sometimes when you have to leave.
• No visa often means being sent to immigration
detention, then deported.
• Permanent Protection Visa - entitles the holder to
enter Australia and be eligible for resettlement,
government support and eventually full citizenship.
What rights do asylum
seekers have?
• Everything under the ICCPR and ICESCR
• The Refugee Convention (1951)
• Article 31 - prevents states from punishing those
seeking asylum for unauthorised entry, and
• allows for freedom of movement, except while
deciding on their refugee status
• Articles 32 and 33 the right not to be returned
(refoulment)
State Sovereignty or
International Obligations
• Australia is obliged to fulfill its obligations under
the Refugee Convention
• Australia has been criticised for the way it detains
and processes asylum seekers
• Public opinion in Australia influences political
decisions regarding policy. Some of the High
Court decisions about asylum seekers have been
unpopular
Offshore Entry
Persons
•
OEPs arrive in the excise zone do not have the right to apply
for a protection visa under s46A of the Migration Act
•
The Minister for Immigration and Citizenship has the power
to ‘lift the bar’ in the public interest, also under s46A
•
Those claiming protection or ‘refugee status’ are given the
chance to present supporting evidence for their claim and
must pass health, character and security checks.
•
If their claim is successful they are issued a protection visa
and can settle in Australia.
Case 1: Plaintiff M 61/2010E v
Commonwealth; Plaintiff M 69 of 2010
v Commonwealth (2010) HCA 41
• Two Sri Lankan men had their application to
‘lift the bar’ under s46A rejected
• The process did not allow them to respond
effectively to the information used to
determine their refugee status
Before 2010 High
Court Decision
• Insert IMMI flowchart HERE!
If their claim was rejected?
• Prior to a High Court decision in 2010, applicants
whose application for refugee status was rejected could
only receive an independent merits review
• Independent merits review - an independent assessor
(Wizard People Pty Ltd in this case) not employed by
the government assessed the claim and made a
recommendation to the Minister
• This process was not transparent and if the
recommendation went against them they were to be
removed from Australia as soon as possible
The High Court found...
• While s46A means that the Minister does not have to
consider lifting the bar...the Refugee Status Assessment
is Australia’s way of fulfilling its obligations under the
Refugee Convention
• If a member of the Executive (The Immigration Minister)
considers the use of power, the subject of that power is
entitled to procedural fairness, and therefore, judicial
review.
• The plaintiffs had been denied procedural fairness AND
that they were entitled to have their applications reviewed
by a court
What did it achieve?
•
The High Court acted as a check on the power of the Executive
•
It interpreted the Migration Act in a way that protected human
rights
•
The Department of Immigration and Citizenship process now
includes the right to judicial review if the Minister chooses to
consider them for Refugee status under s46A of the Migration Act
•
The practice of the Minister considering refugee status was
considered a key part of fulfilling Australia’s obligations under the
Refugee Convention, but increasing boat arrivals led to the
Government proposing...
Case 2: The Malaysia Solution
Plaintiff M70/2011 v Minister for Immigration
and Citizenship
•
The Malaysia Agreement is a policy that involves offshore
processing in a place such as Christmas Island and then
removal of the IMAs to a declared country under s198A of
the Migration Act 1958 (Cth)
•
The Minister under this arrangement would not allow
IMAs to apply for refugee status - would not lift the bar
•
Under the arrangement 800 irregular maritime arrivals
would be sent to Malaysia in exchange for 4000 refugees
already processed by the UNHCR in Malaysia
•
Map of Australia’s Excised Offshore places from http://www.immi.gov.au/media/fact-sheets/81-excisionplaces-map.pdf
s198A Migration Act
• s198A of the Migration Act empowers the
Minister to order the removal of asylum
seekers to declared country
• This country must pass the ‘test’ outlined in
s198A
• What rights do asylum seekers have in terms
of s198A?
•
Migration Act 1958 (Cth) s198a:
•
•
‘(3) The Minister may:
(a) declare in writing that a specified country:
•
•
•
•
•
(i) provides access, for persons seeking asylum, to effective procedures for
assessing their need for protection; and
(ii) provides protection for persons seeking asylum, pending determination of
their refugee status; and
(iii) provides protection to persons who are given refugee status, pending
their voluntary repatriation to their country of origin or resettlement in another
country; and
(iv) meets relevant human rights standards in providing that protection;
and
(b) in writing, revoke a declaration made under paragraph (a).
The High Court
found...
• 6-1 majority that the Minister could not send
asylum seekers to Malaysia because:
• Malaysia is not a signatory of the Refugee
Convention
• No protection for refugees under Malaysian
law, and that it was not legally bound to
protect refugees
• That the Australian Government owed asylum
seekers protection under s198A
Malaysia Fails the
• The Minister’s interpretation of s198A of the
Migration Act wasTest
invalid because it was
based only on the assumption that Malaysia
would protect the 800 sent there
• This was not good enough for the High Court
to accept that Malaysia passed the test set
out in s198A
• The decision granted a permanent
injunction preventing the plaintiffs or any
other asylum seekers from being sent to
Malaysia
• Which human rights did the High Court
How did the High Court
Protect Rights?
• In M61 / M69 v Commonwealth (2010) the High Court’s
decision allowed for procedural fairness to occur
• This is an example of the judiciary, controlling the power
of the executive and in the process protecting human
rights
• In M70 v Minister for Immigration and Citizenship the
High Court interpreted s198A of the Migration Act to
mean that the Executive could not send asylum seekers
to a country that did not adequately protect their human
rights.
Practice Questions
•
Identify one international agreement which protects human
rights.
•
Outline the process of an IMA applying for refugee status.
How is fairness ensured? Use diagrams.
•
How does common law protect human rights? Use Case 1.
•
Explain how the courts can enforce human rights under the
Migration Act using ONE case. Use Case 2.
•
Why is the separation of powers important in ensuring human
rights are protected?
Thank you.
Rule of Law
Institute of Australia
ruleoflaw.org.au