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Article 23 universal declaration of human rights research paper
Article 23 universal declaration of human rights research paper
Does Australian law adequately protect human rights? Why or why not
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Case Note: Al-Kateb v Godwin
Legal issue
Does the Migration Act authorise the indefinite (non-judicial) detention of an 'unlawful non citizen' if their removal is not reasonably practicable in the foreseeable future? If yes, is the indefinite non-judicial detention an infringement of the Chapter III powers of the Constitution?
Facts
Al-Kateb (the appellant) was born and lived in Kuwait but is not eligible for Kuwaiti citizenship. He arrived in Australia in 2000 without a passport or visa and was taken into detention as an unlawful non citizen under s 196 of the Migration Act. In 2002, after being refused a visa, Al Kateb requested to leave Australia, however, his stateless status meant that Australia could not find a country to take him.
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S 51(xix) of the Constitution provides the executive the power to make laws with respect to 'aliens', including the power to detain aliens if it is reasonably necessary for entry processing or deportation.
Arguments made by the appellant
" Ss 189 and 196 only authorise the continued detention of a person until they are deported, granted a visa or removed under s 198. The sections do not authorise continued detention when removal under s 198 is not possible.
" Following Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs, continued detention for the purposes of removal is only authorised if the removal is likely in the reasonably foreseeable future.
" Parliament did not foresee that s 198 may not be complied with, therefore the Act should be interpreted considering fundamental rights and in compliance with Australia's international obligations regarding arbitrary detention.
" While s 51(xix) of the Constitution provides the Parliament the power to detain aliens for visa processing or removal, if the removal is not reasonably likely in the foreseeable future then the purpose of detention is not for removal, and it is outside the scope of executive
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" The executive detention is constitutionally valid because it is 'reasonably capable of being seen as necessary' for the non-punitive purpose of visa processing and deportation. The length of the detention is not itself relevant to the lawfulness of the detention.
Decision and reasoning
The High Court held the detention was lawful under the Migration Act and constitutionally valid:
" Ss 189, 196 and 198 of the Migration Act can authorise the indefinite detention of non citizens. Even if it is unlikely that removal of an unlawful non citizen will happen in the foreseeable future, it does not mean that detention is not for the purpose of removal.
" The Migration Act is clear and there is no basis for considering the Act in light of fundamental rights or international obligations.
" The non-judicial indefinite detention is constitutional because the detention is non punitive, therefore there is no violation of Ch III.
The validity of British’s occupation of Australia has been fundamentally shaken. The decision protected Aboriginal people’s cultures and lifestyles to a certain degree. Moreover, it guaranteed that some of the lands they live will not be developed. There were five key issues of importance to legal precedent in the Mabo decision for the recognition of Indigenous peoples’ rights in Australia (Australian Institute of Aboriginal and Torres Strait Islander Studies, 2017). For example, it helps to promote the idea of non-discrimination. From then on, a series of laws had been introduced to help safeguard their standard legal rights and
If the right to habeas corpus is not being extended to the detainee, the majority judges are of the opinion that the branches such as executive and etc. except judicial, would have a whole control over Guantanamo Bay causing the judicial branch to have no position in reviewing the legal processes. The majority judges had stated
Detention is a term used by certain governments and their military to refer to individuals held in custody. Most of the time rights are taken away from the person in detention.
time in detention camps. How far the principle of this case would be extended before plausible reasons would play out, I do not know." (pg. 1389).
Australians by not clarifying it’s stance on it’s international obligations to Indigenous Australians or reflecting it’s international rhetoric and signature on UN conventions by implementing some in domestic law. This inadequacy in the development of Indigenous Peoples Land Rights in Australia has been declared by the Working Group on Indigenous Populations in July 1997, and highlights the Australian government policy regarding Indigenous Peoples Land Rights and may be argued as a denial of justice for Indigenous People by the Australian legal system. Australia can be said to be ineffective in achieving justice for Indigenous People due to it’s failure to recognise Indigenous Australians rights to land domestically by failing the Human Rights standards contained in international initiatives to which it is a signatory.
The Government of the United States, going against Mr.Padilla’s Constitutional rights and not providing him an opportunity to contest the legality of his detention, comprises the value of the Government’s accountability as a law-abiding state. In this particular case, it appears that government officers, including the president, believe that they should be able to do what is against pre-existing laws, if it is necessary to the preservation of the state and its citizens. However, this view raises some serious problems. If committed to a principle Rule of Law, one should never expect the government to act in an illegal way. The Rule of Law refers to “an end state in which all individuals and institutions, public and private, and the state itself are held accountable to the law, which is supreme” (Rule, n.d.). Therefore, the Rule of Law states, that every citizen is subject to the law, including the lawmakers themselves. All government officers of the States, including the president, the Justice of the Supreme Court, and all members of Congress, pledge to uphold the Constitution; affirming that the Rule of Law is superior to the rule of any human leader (Vile, 2006).
This program meant that the presidency had begun to ignore law. For Savage, Bush and Cheney’s authorization to ignore law, “was no different in principle between the warrant law and any other law that regulates how the president can carry out his national security responsibilities.” Furthermore, Savage claims, that this act “locked down the president’s power to arrest U.S. citizens on U.S. soil and imprison them in a military brig without trial if he or she thinks they pose a terror threat.” What Savage argues is that Bush through Cheney’s “signed statements” did not need to seek congressional approval, but as president could enact in any manner that he, as president, deemed necessary in order to protect the
The conditions of Australia’s immigration detention policies have also been cause for concern for probable contraventions of Articles 7 and 10 of the ICCPR. Whilst in Sweden, asylum seekers are afforded free housing whilst their applications are being processed, Australia’s methods are much more callous. Under the Pacific Solution, maritime asylum seekers are sent to impoverished tropical islands with no monitoring by human rights organisations allowed (Hyndman and Mountz, 2008). The UNHCR criticised Australia’s offshore processing centres stating that “significant overcrowding, cramped living quarters, unhygienic conditions, little privacy and harsh tropical climate contribute to the poor conditions of… Nauru and Papua New Guinea” (Morales
We first see the depth of the unilateral executive power in the Hamdan versus Rumsfeld case. Hamdan as a non-citizen was tried under military commission. The Supreme Court ruled that the military commissions had entrenched on Article 3 of the Geneva Conventions, but also the “uniform code of military justice” (Brandwein). Additionally, they ruled that if tried after the Detainee Treatment Act of 2005 then you would not be allotted rights to “habeus corpus.” After the MCA of 2006 passed, Hamdan went to trial again. While the Bush administration argued for a 30 year sentence, the court panel ruled 60 months. Hamdan had already served 5 years and this case was interpreted as ‘weak,’ however, Bush decided to express his unilateral power and hold Hamdan anyways. Regardless of the court’s ruling, the time served, and because he was dubbed an ‘enemy combatant,’ Bush had the authority within his powers as commander in chief to hold him. The establishment of the term ‘enemy combatant’ aided the president in flexing this power. While Margulies finds this to be strictly a new and made up term with no real substance, Yoo says it is a traditional term which allots real power (Brandwein).
Overall Australia’s human rights record is of high-quality but is blemished by few human rights violations. Australia has freedom of speech, a corruption-free legal system, legal protection against discrimination, access to secondary education, the right to vote in elections, access to clean water, privacy protection, freedo...
The continuous abysmal and brutal treatment against asylum seekers is a direct violation of human rights and the convention of torture. This ultimately leads to severe mental and physical health problems for the victims and in which Australia is to blame. The current policy forces people to live in an indefinite detention centre where they are unware of their future. As a result of the cruelty and brutality of the system, suicide is the only option for many of the detainees. Are we providing protection for asylum seekers or are we helping traumatised people suffer more than they already ever had. Therefore, it is time for a new solution that does not breach the international laws and conventions and protect the
Mandatory detention in Australia was introduced in 1992, by the Keating government to control the unauthorised refugees arriving in Australia by boats (Department of Parliamentary Services, 2013, p. 1). The policy allowed authorities to detain all unauthorised non-citizens, including children, until they have satisfactorily completed health, character and security checks and been granted a visa (Department of Parliamentary Services, 2013, pp. 5-6).
By force of the Migration Act 1958 they must remain in detention until they are given a visa or are removed from Australia. The government and the media refer to them as ‘illegals’, but the fact is that to come to Australia without authority and seek asylum is not an offence against Australian law. To the contrary, Article 14 of the Universal Declaration of Human Rights guarantees to every human being the right to 2 Migration Act 1958. Those who come to Australia trying to exercise that right are locked up in desert camps or, under the Pacific Solution, in remote islands. As an example, an Iranian asylum seeker Mojgan Shamsaliipoor, had been finishing her high school education in Yoronga State High School on release from the Brisbane Immigration Accommodation centre. She was giving hope and a change to start a new life outside the immigration accommodation. However, about 2 or 3 months ago, she was forcibly transferred to a Darwin detention centre, even without a change to say goodbye to her husband. Mojgan is one of the many asylum seekers who have fought that Australia will be their dream place, however were again mistreated. This clearly demonstrates that Australia recognises the law before the principle of equality and
These “containment centers”, or Centers of Temporary Stay, have received a fair amount of criticism from other countries and international agencies alike. These centers, which resemble jail cells, are small rooms where illegal immigrants await their deportation. Originally, the maximum stay in the CPT’s was only 30 days. It was later increased to 60 days for those seeking asylum. In 2008, Berlusconi decreed that the maximum amount of time that anyone was allowed to stay in the CPT’s was 180 days. He also renamed the CPT’s to Centers for Identification and Expulsion. In 2011, the new Italian government increased the time of detention to 18 months.
Have you ever wondered what the United States would be like if law forces could arrest citizens for no valid reason such as one’s appearance, or where they’re from, or even the way they talk and dress. Thankfully, as a US citizen, no one would ever have to experience anything like that under the life-long protection of the writ of habeas corpus. A writ of habeas corpus is a court order person or agency holding someone in custody to deliver the imprisoned individual to the court issuing the order and to show a valid reason for that person’s detention. Basically, the writ of habeas corpus ensures due process for every citizen of the United States. Throughout our country’s existence, there’s been plenty of controversy surrounding the suspension of habeas corpus and wartime powers of an executive. The constitution grants citizens’ rights that are