By MADELAINE SEALEY
AS THE government considers the findings of a national Human Rights consultation, the recent influx of asylum seekers may heat up the Human Rights Charter debate.
What was the finding of the Human Rights Consultation?
The National Human Rights Consultation Report, was handed down earlier this month (October 27 2009), outlining the findings of The National Human Rights Consultation Committee (NHRCC) which was commissioned by the federal government in December last year to determine which human rights should be protected and promoted in Australia. The committee was asked to consider how Australia could better protect human rights. It found that the most frequently discussed topics were: the Northern Territory Intervention (NTER) , the treatment of asylum seekers and national security legislation.
How does this relate to asylum seekers?
During the 10-month consultation, which included 66 community roundtables, three days of public hearings and 35,014 submissions; Australia’s handling of asylum seekers didn’t escape the scrutiny of the consultation process, being referred to frequently during the process. The committee found, that a balance between individual liberty and the public interest might not have been struck. The current system of human rights protection in Australia, largely “depends on the good will of governments in power”. The NHRCC found in its observations, that the current democratic institutions do not work to protect basic human rights in Australia, highlighting “apparent systematic human rights problems”, referring to Australia’s management of asylum seekers.
Why should asylum seekers be recognized with a Human Rights Bill Asylum seekers have minimal protection of their rights due to off-shore processing. The report notes that, increasingly rights are not adequately protected by “the courts, the executive and the parliament”. However, one question that has arisen in the process is whether an Act should apply to citizens only-which would exclude a range of non-citizens [including asylum seekers]. The Committee found that there is much support for a Human Rights Act “to all people, not just citizens”. Among the reasons given was that international human rights law emphasises universal human rights. Recent practices by Australian governments in the immigration context—“including the forcible removal of asylum seekers to Manus Island and Nauru and detaining asylum seekers indefinitely”, was cited as a relevant case point.
What is the current process for asylum seekers?
The processing centres in Manus Island and Nauru were effectively shutdown by the current government following the 2007 federal election, the Christmas Island detention is now struggling to cope with the influx of asylum seekers-its 800 capacity being surpassed by some almost 1,200 detainees. A new arrangement has been struck with Indonesia for a coordinated approach to people smuggling. However, this could prove problematic for Australia, as reports emerge of alleged beatings of detainees in an Australian funded Indonesian detention centre and bribery emerge-this could indicate that Rudd government’s Indonesian solution is less than ideal.
Will that mean that asylum seekers no longer need protection under an Australian Bill of Rights?
The Human Rights Commission said last week that legitimate concerns about people smuggling should not prevent Australia from addressing its international human rights obligations to treat asylum seekers humanely and with fairness. There were also concerns about the mandatory detention and off-shore processing of asylum seekers on Christmas Island. Due to the remote location of the island’s detention centre, detainees have limited access to legal assistance, health care and other services. Asylum seekers arriving in excised offshore places like Christmas Island are barred from the refugee status determination system that applies under Australian law.This equates to no access to the Refugee Review Tribunal and very limited access to Australian courts.
What is the proposed model for a Human Rights Act?
The model is similar to that of the United Kingdom, New Zealand, the ACT and Victoria. It would require law makers and parliament to consider how legislation might affect rights, requiring government and public authorities to comply with human rights. Where courts are not able to interpret legislation consistently with the rights set out in Act, there would be a mechanism for informing parliament of the inconsistency between the two.
Have there been critics against an implementation of a Human Rights Bill?
Yes. Some critics argue that the level of human rights currently enjoyed by Australian is sufficient because of number of influences including the common law, a comprehensive electoral system, entailing representative democracy, federalism, the separation of powers and responsible government—sufficient functions to protect rights. Democratic institutions are in places that are charged with safeguarding human rights, such as the Human Rights Commission. The general fear is that a Human Rights Bill could impede on sovereignty, give “power to unelected judges” and open the floodgate for “legislation”.
What is the case for a human rights bill?
Supporters argue that Australia is the only western democracy without a national Human Rights Charter, and that implementing one would strike a balance between judicial and protection of human rights and state sovereignty. According to them, parliament would retain the power to change the Act and to pass laws that are inconsistent with it as well as dictate what went into a charter. The Act could be used to protect people-such as asylum seekers. Within the framework recommended by the NHRCC, asylum seekers would be able to exercise their political and civil rights. However the federal government would need to include migration zones such as Christmas Island — an impediment to detainees enforcing their human rights. There are also suggestions that the proposed model has proved to “create important systemic and cultural change within governments towards the protection and promotion of human rights”.
