Step by step: The insidious evolution of Australia’s asylum seeker regime since 1992 (original) (raw)
Related papers
Human Rights Review, 2009
With the arrival of another wave of "boat people" to Australian waters in late 2009, issues of human rights of asylum seekers and refugees once again became a major feature of the political landscape. Claims of "queue jumping" were made, particularly by some sections of the media, and they may seem populist, but they are also ironic, given the protracted efforts on the part of the federal government to stymie any orderly appeals process, largely through resort to "privative clauses". Such clauses demonstrate the many ways in which human rights of those seeking asylum in far-off lands and are potential future immigrants, who often lack much-touted needed papers, yet who are for the most part genuine refugees, are subject to the slings and arrows of political fortune (and misfortune). Approaching the courts if treated unfairly or seeking a further decision as to your fate would seem one of the fundamental premises of human rights. Yet privative clauses-or attempts to ouster the jurisdiction of the courts and to insulate decisions from appeal-have become an increasingly frequent feature of the Australian migration legislation. With a seemingly watertight federal constitutional power set in stone since 1901, to deal with migration and aliens, and without the tempered contemporary update of a federal Bill of Rights, the Australian federal government has been able to narrow the grounds of judicial review in those contexts. We argue that the concerted efforts to deny such fundamental rights of appeal to those most in need of the full armoury of the protection of the law in a modern, affluent democracy, constitutes both a breach of their human rights and a breach of core constitutional principles such as separation of powers. Those principles may not be formally articulated in the text of the Australian Constitution, but in our view they are implicit in the constitutional arrangements, and hence we can conclude with the arguments of former Justice of the High Court of Australia, Michael Kirby, who asked-to whom does sovereignty truly belong?
In April and May 1999 the High Court handed down rulings in two cases of some moment within the scheme of Australian federal administrative and constitutional law. Both involved non-citizens who had sought and been refused recognition as refugees. The cases are important because each tested the special regime established in 1994 for the judicial review of migration decisions by the Federal Court of Australia. This article begins by explaining a little of the background to the cases. It then details the legal matrix that was at the centre of the two actions. The article then looks sequentially at the two cases, studying first the constitutional issues and then the applications in the High Court's original jurisdiction. The author argues that the majority ruling in Abebe is unsustainable in the longer term and that the decision of the majority in Eshetu amounts to an unwarranted and unhealthy abdication of the curial function of overseeing the legality of administrative decision-m...
Race matters: changing the Australian Constitution
2012
Proposed constitutional changes must be put in terms that promote consensus, argues Russell McGregor • CAN THE changes recently recommended by the Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples [1] succeed? Or to put it another way, can we repeat the success of 1967, when an overwhelming majority of Australians voted for constitutional change favourable to Aboriginal people? To answer these questions, it's helpful to put the recent panel's recommendations in historical perspective. The panel recommended the repeal of the two sections of the Constitution which refer to 'race': Section 25, which permits states to disqualify people of a particular race from voting in state elections (though it also deters states from actually doing so); and Section 51(xxvi), which empowers the Commonwealth parliament to enact 'special laws' applicable solely to specific races. The panel made other recommendations on the constitutional recognition of Aboriginal and Torres Strait Islander peoples, but here I'll focus on the sections recommended for repeal, particularly Section 51(xxvi) since it is, and always has been, the more contentious of the two.
2014
This thesis examines the law and practice concerning two key policies directed at asylum seekers who arrive or attempt to arrive in Australia by boat; immigration detention and offshore processing. It is comprised of four parts. Part 1 provides an overview of the thesis, consolidating the published material with reference to political theory. A summary of the chapters is provided in Part II. Part III considers the contribution maoe by my work to the literature on asylum seeker policy in Australia. The main body of the thesis is contained in Part IV, which is comprised of 11 papers published between 2004 and 2013. ·
Melbourne Journal of International Law, 2003
The Australian government recently implemented various pieces of legislation to amend and expand the country's strict border control strategy. The Migration Legislation Amendment Act [No 6] 2001 (Cth) was one such piece of legislation that directly impacted on the procedural and substantive elements of the refugee status determination process in Australia. One of the most vulnerable groups affected by the changes in Australia's migration legislation has been women asylum seekers. This article assesses the situation of women asylum seekers under the Migration Legislation Amendment Act [No 6] 2001 (Cth) using a paradigm of non-discrimination, which forms the cornerstone of both international human rights and refugee law. It is noted that whilst issues of discrimination are frequently the focal point of the substantive analysis of a claim to asylum, far less attention is paid to the discrimination potentially faced by asylum seekers on arrival in the territory of the state from which they are requesting protection. The examination of various procedural and substantive provisions of the Migration Legislation Amendment Act [No 6] 2001 (Cth) and their impact on women asylum seekers reveals that discriminatory practices infuse Australian domestic migration law. These practices negatively impact on the development and implementation of human rights and refugee law within Australia. It is proposed that a human rights-based approach to the assessment of women's claims for refugee status could provide the foundation for an alternative to the current legislation. This would allow for more consistent decision-making that accords with Australia's international obligations and commitments to the development and respect for women's rights and freedoms.
Judging Refugees: The Clash of Power and Institutions in the Development of Australian Refugee Law
This article explores one aspect of the controversies that have surrounded asylum seekers and refugees in Australia: the conflict between the executive government and the courts over who should have the final say in status determinations and protection issues generally. This author argues that a combination of history, culture and geography has resulted in an extraordinary intimacy of political involvement in the business of immigration control - setting the groundwork for remarkable clashes with the judiciary. The article sketches the development of Australia's jurisprudence on refugees, exploring the impact that public controversy and direct political pressure might have had on the formation of the law. The author notes that Australia's refugee jurisprudence is recent; it is generally conservative, textual and domestic in its focus. At the same time, the author argues that the jurisprudence represents a good example of 'globalisation' in public international law as...