The Sydney Morning Herald Australia has missed the boat on refugee dilemma
Date: 21/12/2001 Legal protection of human rights would give balance to our treatment of asylum seekers, writes Hilary Charlesworth. In the past few months here in the United States the most common question I have been asked about my home country is "What is Australia doing with those asylum seekers arriving by boat?" Many students and colleagues at Harvard have been amazed that a country they thought of as open, humanitarian and multicultural would refuse entry to people seeking asylum and would pay great sums to less wealthy neighbouring countries to persuade them to deal with the problem temporarily. It is difficult to imagine that the Australian Government's reaction would be the same if the boats were full of white farmers from Zimbabwe and their families. The pictures of Australia's defence forces boldly protecting our maritime frontiers from the miserable boats and their human cargo has made Australia appear closed, uncaring and racist. The dramatic incidents of this year are simply an extension of Australia's unsatisfactory policies regarding the treatment of asylum seekers. The system of long-term detention, for example, has created considerable human suffering and may especially scar children caught up in it. Apart from the moral failure to develop fair and humane methods of responding to the international problem of refugee flows, Australia's practices are also in violation of international law. They breach a range of human rights treaties to which Australia is a party as well as the Refugee Convention of 1951. Australia's carefully nurtured image as a "good international citizen" has been shattered by its treatment of asylum seekers. But perhaps the most disturbing aspect of its response to these refugee applicants is the great gaps it demonstrates in its legal system. Because the Constitution does not protect human rights in a systematic way, Australia's parliaments can validly enact laws that target individuals and groups in a way that violates their human rights. All other common law countries are bound by their constitutions or by legislation to protect human rights. Even our constitutional parent, Britain, must now consider the effect of all legislation on the protection of human rights. Its Human Rights Act, which took effect last year, requires laws to be read and given effect to, and all public authorities to act, in a way compatible with the European Convention of Human Rights. The Australian reluctance to commit to the legal protection of human rights is typically explained by politicians (of all colours) as based on faith in the wisdom of our legislatures. For example, earlier this year the Federal Attorney-General, Daryl Williams, and NSW Premier, Bob Carr, argued that we should leave judgements about balancing individual rights and community interests to parliaments which could be entrusted to make wise decisions. The ultimate safeguard, they asserted, was the accountability of parliaments to the electorate. This bipartisan faith in the traditions of majoritarian parliamentary sovereignty to protect individual rights has not been justified in practice. Our history is littered with laws that discriminated against particular groups: the legal framework that allowed Aboriginal children to be taken from their families; laws that made homosexuality a criminal offence; laws that institutionalised discrimination against women; immigration laws that effectively restricted entry into Australia to particular races. Australian parliaments today tolerate laws that allow mandatory sentencing of children, that sanction discrimination against women, that allow degrading treatment of prisoners and, of course, laws that treat "boat people" who apply for refugee status more harshly than other refugee applicants. Political majorities and the majority of the community are unlikely to be concerned if the rights of an unpopular minority group are infringed. Indeed, the major political parties in Australia typically agree on the groups whose rights can be restricted and legislation restricting the rights of these groups usually has bipartisan support. Labor's support for the post-Tampa legislation package ratifying Australia's response to asylum seekers is evidence of this. The claim that robust parliamentary debate operates to protect rights has little empirical basis in Australian history. Indeed, recent research into the operation of Federal Parliament indicates the sharp diminution of the role of the legislature in all areas of policy development. Political debate is strictly governed by party allegiance, and rare attempts by individual politicians to pursue human rights issues have almost always been muzzled. This utilitarian approach places the rights of vulnerable minority groups at the mercy of the will of the majority, as well as making particular rights subject to trading off with others. A richer understanding of democracy involves acknowledging that there are some rights that are so basic to human dignity that they should be taken out of the political arena and given special protection. A rights framework would allow us to deal with asylum seekers in a just and humane manner, balancing the interests of the community with their rights to be treated with dignity. Hilary Charlesworth is director of the Centre for International and Public Law at the Australian National University, and is the Manley O. Hudson Visiting Professor of Law at Harvard Law School. This material is subject to copyright and any unauthorised use, copying or mirroring is prohibited. http://www.smh.com.au/news/0112/21/text/opinion2.html --------------------------------------------------------------------- To unsubscribe, e-mail: [EMAIL PROTECTED] --------------------------------------------------------------------- RecOzNet2 has a page @ http://www.green.net.au/recoznet2 and is archived at http://www.mail-archive.com/recoznet2%40paradigm4.com.au/ until 11 March, 2001 and Recoznettwo is archived at http://www.mail-archive.com/recoznettwo%40green.net.au/ from that date. 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