Human Rights Rule of Law Refugees Rule of

Human Rights Rule of Law Refugees Rule of Law Institute of Australia (Ro. LIA)

What is Ro. LIA? - 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 10 th 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 HRs? • The Executive attempted to influence the judiciary • • • 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 s 46 A of the Migration Act 1958 (Cth)

• Map of Australia’s Excised Offshore places from http: //www. immi. gov. au/media/fact-sheets/81 -excision-places -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 s 46 A of the Migration Act • The Minister for Immigration and Citizenship has the power to ‘lift the bar’ in the public interest, also under s 46 A • 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 61/2010 E v Commonwealth; Plaintiff M 69 of 2010 v Commonwealth (2010) HCA 41 • Two Sri Lankan men had their application to ‘lift the bar’ under s 46 A 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 s 46 A 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 s 46 A 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 M 70/2011 v Minister for Immigration and Citizenship • The Malaysia Agreement is a policy that involves offshore processing in a place such as Christmas Island then removal of the IMAs to a declared country under s 198 A 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 -excision-places -map. pdf

s 198 A Migration Act • s 198 A 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 s 198 A • What rights do asylum seekers have in terms of s 198 A?

Migration Act 1958 (Cth) s 198 a: ‘(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 s 198 A

Malaysia Fails the • The Minister’s interpretation of s 198 A of the Test Migration Act was 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 s 198 A • 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 protect?

How did the High Court Protect Rights? • In M 61 / M 69 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 M 70 v Minister for Immigration and Citizenship the High Court interpreted s 198 A 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