Mandatory Detention of Asylum Seekers Human Rights - Coursework Example

Student’s Name Course Title Tutor Date Mandatory detention of asylum seeker's human right Introduction Despite enormous lack of protections of human rights in domestic law, the record of human rights in Australia is primarily regarded as being substantially good. However, there are some serious exceptions as the treatment of asylum seekers by the Australian authorities has been widely criticized both in the domestically and globally due to its overwhelming failure in complying with human rights law(DIMIA, 2001, p 24). A unique opportunity has been provided by the National Human Rights Consultation (NHRC) for the citizens of Australia to sufficiently engage in constructive dialogue in relation to protection of human rights of the citizens of Australia. The Human Rights Act (HRA) therefore provides a significant opportunity for the country to make vital strides in its international obligations and duties by adequately enacting legislation in order to satisfy the requirements of the commitments it has made in the global context. This means that Australia has to ratify the instruments of its human rights. The situation of human rights in Australia According to Nicholas and Raza (2003, p12-35), even though Australia has the mandate and sovereign right to willfully determine the people who gains entry into its territorial boundaries, such right should not in effect be absolute. It is therefore limited by certain obligations that the country has voluntarily accepted under international law. International human rights law and refugee law limits the right of the Australian citizens to determine the personalities to enter its territory in relation to the territorial admission point and government actions that relates to the treatment handed to asylum seekers as well as refugees. It also mandates that people should not be subjected to torture, persecution and dehumanizing punishment or treatment as well as being sent to another country to face prosecutorial charges. Due to the dual system followed by Australia, the failure of the country to incorporate the commitments of the human rights which it has voluntarily subscribed to by signing and consequently ratifying the treaties definitely puts at a fix of breaching its fundamental obligations in the light of international law. Such obligation is well stipulated in the International Covenant on Civil and Political Rights in article 2(2). It therefore states that protection of human rights by adopting domestic legislation is very important for putting the country into line with many other models of democracies in the western world. This is significant in countering intellectual isolation of the country in relation to development and perpetuation of international human rights law. Several high profile figures in the corridors of justice have also added there voice to this concern. For example, Justice Kirby observed that if the High Court vehemently ignores international discussions and adoptions on Refugee Convention then it is reducing its own credibility and capacity for good decision-making (DIMIA, 2001, p 24). Mandatory detention The detention of people who are accused of breaching the Australian immigration law is currently a heated political issue in the country and also in other places. Australia is currently the only country in the world that still promotes a system and culture of mandatory detention for individuals perceived to be in the country illegally. As mentioned by Amnesty International (1998, p 13-18), international human rights law has a very significant role to play in regard to the establishment of the circumstances in which an individual may be subjected to detention and consequently what may be regarded as the acceptable treatment standards during period of detention. It is obvious that liberty deprivation inflicts a deep wound the core of protections of human rights for without liberty an individual is deprived of essentially all other rights. According tot US Committee for Refugees (2002, p 14-15), the retrospective introduction of mandatory detention was done in 1992 by the Labor Government and as already focused remains the only barbaric system of forced detention in the western democracies. Despite the continued vigor and focus by the Australian state authorities on deterrence, there has been an increase in the numbers of individuals seeking refuge. The government introduced a new category of visa for the refugee program in 1999, and it is known as Temporary Protection Visa (TPV). Since then it has been the only available visa to asylum seekers who either arrived in the country without legal documents. The TPV has been divided into so many categories since 2001 and has extended to applications that have been made offshore so long as it is outside the home country of asylum seekers. The introduction of TPV was meant to be a deterrent as well as denying those people perceived to be violating immigration procedures of Australia. However, its effectiveness has been subject of criticism for the number of people arriving in Australia without authorization has tremendously increased since its introduction. Critics of the current legal framework have totally opposed the logic behind the position taken by Australia in regard to asylum seekers. They have over the time pinpointed the inadequateness of the government’s harsh stance to discourage people from seeking accommodation in the country and the shortcomings in the policy system pitching diverse categories of individuals seeking asylum. The UNHCR has made it clear that deterrence is not one of the welcomed policy objective as far as refugee convention is concerned. It argues that since the introduction of mandatory detention the numbers of asylum seekers arriving in an unauthorized manner has continued to escalate although there has been variation in the numbers over the time as regional and world crisis takes toll. In recent times the sharp increase from about 1,000 to excess of 5,000 annually appears to be directly related to the events of humanitarian crises in volatile countries such as Iraq and Afghanistan (Oxfam Community Aid Abroad, 2002, p 9-12). A report released recently by the Refugee Council of Australia (RCA) on the situation of refugees in Iran demonstrates that despite all the stringent measures put by the Australian Government, the country still remains a favorite alternative to other European nations for individuals fleeing the Middle East. Although the numbers of people in need of refuge have dwindled since the introduction of the ‘Pacific Solution’, it is not yet clear whether such a move is there to stay or just a seasonal measure. The Executive Committee of the UNHCR, the Joint Standing Committee of Australian Parliament as well as others have voiced their concerns in relation to the impact of long period of detention on asylum seekers mostly children. In Australia, detention is fundamentally not subject to any reviews by the judiciary and thus applies to all illegal arrivals for the whole period whilst claims processing take place in all types of cases irrespective of the circumstance. A lot of concern has been raised by the provisions of detention, which is considered by human right groups as arbitrary and hence violates the provisions of International Covenant of Civil and Political Rights (ICCPR) Article 9, Paragraph. The average cost of detention is pegged at about $120 per individual per day which is principally higher than proposed alternatives. Several quotas of human rights have also raised concerns over the Australian authorities’ attempts to thwart access to asylum seekers who are detained. Protests have come from all corners, notably the union of journalists of Australia, the International Federation of Journalists amongst others. In particular, the UNHCR has raised concerns about the restrictions slumped on the media as journalists are not permitted to have audience with detainees. Guards are also known to hang materials around the detention centers fence to obscure the view (UNCHR, 2001, p 4-18). Conclusion It is shocking and uncalled for when the Australian Government and supporter claim that allowing individuals seeking asylum to live without restrictions in the community as there claims are being processed carries with it a unpalatable amount of risk as they can vanish in the community. However, this is in perfect ignorance of the fact that individuals seeking asylum who enter Australia on valid documents are currently being released on what is called bridging visas. The circus that surrounds the recent enactments in policy is therefore a clear indication of a concerted effort by the Australian Government to justify the wrongful denial of basic rights to the asylum seekers, notably family reunion and access to permanent residency.An all round provision by the Human Rights Act relating to freedom from mandatory detention would form a strategic score given the prevailing human rights environment in Australia. This would be imperative owing to the fact that the High Court has for quite a number of times found that the Australian government has vested powers to detain people seeking asylum which absolutely violates the human rights of the victims. Works Cited Amnesty International, ‘Australia – A Continuing Shame: The mandatory detention of asylum- seekers’, June 1998, pp.13-18. Department of Immigration, Multicultural and Indigenous Affairs (DIMIA), ‘Refugee and Humanitarian Issues: Australia’s Response’, October 2001, p.24. Nicholas Blake and Raza Husain, Immigration, Asylum and Human Rights. Oxford University Press, Oxford, 2003. Oxfam Community Aid Abroad, Adrift in the Pacific: The implications of Australia’s Pacific Refugee Solution, February 2002, pp.9-12. UNCHR, ‘Watchdog slams Australian immigrant detention centres’, World News page, UNCHR web site, March 5, 2001 US Committee for Refugees, ‘Sea Change: Australia’s New Approach to Asylum Seekers’, February 2002, pp.14-5. Read More