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Defining strangers: human rights, immigrants and the foundations for a just society.

Article Excerpt
[This article explores the extent to which the law's treatment of immigrants has shaped notions of human rights in Australia. It examines the ramifications of the choice made at Federation not to include Australian citizenship in the Australian Constitution, but rather to confer power on the Parliament to legislate such status. It is argued that the constitutional silence resulted in fragilities in both concepts of membership and in the regime for the protection of human rights in Australia. As well as creating profound ambiguities as to who was and was not a constituent part of the Australian polity, vesting the power to determine membership in Parliament has made the protection of human rights highly politicised. The discomforting results of judicial deference in such a climate are seen in cases like Al Kateb v Godwin. It is dangerous to align notions of human rights with citizenship because of the ease with which people can be deliberately or mistakenly characterised as societal 'outsiders'.]



CONTENTS I Immigrants and Human Rights II Human Rights and Belonging: The Fragility of Citizenship in Australia III Immigration and the Rule of Law IV Human Rights as Privilege: Immigration and the Dangers of Exceptionalism V An Immigrant Country or a (Model) Globalised Society

I IMMIGRANTS AND HUMAN RIGHTS

The decade of conservative rule in Australia that was marked in 2006 has been characterised by economic prosperity and apparent stability in governance at both state and federal levels. From the perspective of human rights advocates and lawyers, however, the successes of these years have masked a deeper revolution, the effects of which have not been so positive for the country. At no other time in Australia's history have such profound divisions opened up between the citizen and the non-citizen on the one hand, and between the economically powerful and Australia's battlers on the other.

In this article various aspects of Australia's immigration laws are studied to explore the role that they have played in creating partitions between what might be termed societal insiders and outsiders. While the primary impact of the immigration control measures taken by the government before and after the watershed election of 2001 has been on the human rights of immigrants themselves, the effects of the laws have been felt also in the legal domain occupied by Australian citizens. The central argument is that to have real meaning, 'human rights' must be read as an indivisible phrase--not as two words that can be separated according to putative membership of a society. The treatment of the alien outsider inevitably impacts on the citizen insider.

The starting points for this reflective article are two projects that have been a focus for the author in recent years. The first was conducted with Jacqueline Bhabha of Harvard University's John F Kennedy School of Government (1) and involved a three-year comparative study of unaccompanied and separated children and the protections afforded by refugee law. (2) The second is work undertaken with Associate Professor Helen Irving examining the impact that migrants have had on the development of public law in Australia. (3)

Bhabha has written recently on how immigration has changed the face of human rights law in Western states through a tripartite process of internationalisation, globalisation and universalism. She argues that the phenomenon of inter-country migration has lead to 'rights spillovers', such that the discourse on human rights has been irrevocably enriched. (4) She points out that migrants compel internationalisation in the way a society thinks by literally bringing home events that are occurring in different parts of the globe. (5) They encourage globalisation in the law in that events in distant lands must be taken into account when making domestic decisions to deport or remove. (6) Finally, indeterminacy of membership within communities of mixed cultural heritage leads to re-evaluation of notions of belonging and increases pressure for the universalisation of rights and entitlements. (7) One example of this in the Australian context is the unease generated by policies that deny social security and other benefits to temporary protection visa holders and other non-citizens whose presence is barely tolerated by the federal government. (8)

The transformative effect of immigration is at the heart of the research with Associate Professor Irving. (9) We are finding that immigration cases have had and are having extraordinary influences on both the law and on societal attitudes to key human rights principles. Whether the intersections have enriched the discourse on human rights in Australia is highly debatable. As explored in this article, it may be more accurate to say that political and legal responses to immigration have distorted and continue to distort notions of human rights in this country.

In Seeking Asylum Alone, Australia emerged as the worst of the three states studied in terms of its human rights record in dealing with the phenomenon of children travelling without the assistance of a responsible adult. (10) At the time the research was undertaken, Australia was the only country that mandated the detention of children arriving without a visa. Its practices were in breach of most of the key precepts of the United Nations' supreme human rights convention for children: the Convention on the Rights of the Child ('CRC'). (11) It mirrored and continues to mirror the United States in the adoption of programmes to interdict and deflect asylum seekers arriving by boat--with no exceptions made for unaccompanied children. These are programmes that have led directly or indirectly to horrendous loss of life at sea. Australia continues to resist calls to appoint an effective guardian to assist all children arriving without the protection of a responsible adult in their initial dealings with the migration bureaucracy. (12) Even where such children have gained recognition as refugees, we continue to condemn them to the debilitating uncertainty of three or five-year temporary protection visas which preclude the reunification of the children with their families. (13)

Although Australia is party to all of the key international human rights instruments--from the Convention on the Prevention and Punishment of the Crime of Genocide ('Genocide Convention') (14) through to the CRC--its human rights record in immigration is patchy, to say the least. This article examines how this might have come about--and why it is something that should be of concern to all Australians.

The article is in three main Parts. It begins with some reflections on why Australia is the only Western democracy without a bill of rights. The omission is no accident: it has much to do with historical and contemporary attitudes to who is and is not a member of the Australian community. The end result is fragilities in both concepts of citizenship in Australia and in the regime for the protection of human rights.

There follows in Part III an exploration of the consequences of the choices made by the drafters of the Australian Constitution. I will argue that the constitutional decision to assign to the federal Parliament the power to make laws about alienage and citizenship in both form and content has made the protection of human rights in this country a highly politicised affair. The politicians have become increasingly resistant and/or hostile to the notion of judicial oversight of their laws and actions. Hence, we have seen the courts and the executive engage in a titanic struggle over who should control immigration to Australia. This has indeed spilled over so as to affect relations more generally between these two arms of government. The conflict has not been good for human rights protection. The Parliament has taken successive measures to try to minimise, and even eliminate, the supervisory role of the courts in reviewing government action. Sadly, the courts (or at least some judges) have responded to the tremendous political pressures being exerted on them by becoming increasingly literal, formalist and introspective in their approach to the curial review function. Nowhere is this more apparent than in the series of cases heard by the High Court in 2004 in which the lawfulness of mandatory immigration detention was considered. (15) The experiences of Vivian Alvarez Solon and Cornelia Rau illustrate that it is not just non-citizens who have been hurt in the fallout. (16)

Part IV of this article extends this discussion with a study of attempts that have been made to create literal and figurative law-free zones which are justified as exceptional measures for exceptional times. I conclude with the assertion that there has been no political will to create a system of enforceable human rights protection because the politicians have seen electoral advantage in enacting increasingly punitive laws in respect of immigrants who do not possess certain attributes or conform to certain norms of behaviour. This is a particularly dangerous endgame to play in a multiracial society like Australia.

II HUMAN RIGHTS AND BELONGING: THE FRAGILITY OF CITIZENSHIP IN AUSTRALIA (17)

In her 2006 book The Citizen and the Alien, US academic Linda Bosniak provides a critique of the popular discourse that has developed over the multiple meanings of citizenship and membership in society. (18) She points to the proliferation of writings on citizenship where that word is used as an aspirational status denoting equality, acceptance and respect for a variety of human rights. Consider in this context the justice claims made for women, African Americans, homosexuals and the disabled: claims that are framed as rights to equal citizenship. (19) Bosniak describes this as 'soft' citizenship, which she argues often stands in contrast to either express or implicit assertions that equality of rights should only operate within the confines of a defined community. (20) In other words, the soft universalist aspirations are bounded by a 'hard' external boundary that separates 'us' from 'them'. In a culturally mixed society like...

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