It has been welldocumented that the intervention of the Australian Federal Police played a central role in the arrest of the Bali Nine in Indonesia in 2005, ultimately leading to the execution by firing squad of Andrew Chan and Myuran Sukumaran on 29 April 2015. Without the information provided by the AFP – apparently on its own initiative, without a request from Indonesia – the Bali Nine would not have been arrested in Indonesia for their role in attempting to smuggle 8kg of heroin into Australia.
In the days since the executions, much has been made of the changes to the AFP’s guidelines on international co-operation made in 2009, ostensibly to prevent such a travesty occurring again, and the changes made to the Ministerial Direction to the AFP in May 2014, which removed any reference to the death penalty as a reason for withholding cooperation with…
In this age of globalisation, states have attempted to restrict access to asylum through a range of extraterritorial measures that prevent asylum seekers from reaching territorial borders in order to claim asylum. As Gammeltoft-Hansen notes, ‘the last decades have seen a number of policy developments to extend migration control well beyond the borders of the state.’ These measures include carrier controls that place financial penalties on airlines that carry those without a visa, visa and immigration regulations, the use of immigration officers in foreign countries, safe third country arrangements, physical barriers, disruption activities and extraterritorial interception beyond maritime borders.
It will be shown that while the non-refoulement obligation prevents states from returning people to persecution, torture or inhumane treatment, there is nothing with the Refugees Convention that prohibits states from preventing asylum seekers from entering their territory. As such, a customary international norm is needed in order to protect the right to seek asylum. Through an analysis of current law, state practice and opinio juris, it will be clear that the right to seek asylum has crystallised into a customary international law. Indeed, the significant state practice of admitting and processing asylum seekers, combined with treaty law and declarations of the United Nations General Assembly, cement this right under international law.
States have increasingly attempted to limit the number of people who enter their jurisdiction in order to apply for asylum. Australia leads international practice in the extra-territorialisation of migration control and the increase of border securitisation. In this age of globalisation, many asylum-receiving states have attempted to restrict access to asylum through a range of extraterritorial measures that effectively prevent asylum seekers from reaching territorial borders. As Gammeltoft-Hansen notes, ‘the last decades have seen a number of policy developments to extend migration control well beyond the borders of the state.’ These measures include carrier controls that place financial penalties on airlines that carry those without a visa, visa and immigration regulations, the use of immigration officers in foreign countries, safe third country arrangements, and extraterritorial interception beyond maritime borders. However, rather than regulating migration, these policies have forced those who seek protection to use irregular and unauthorised pathways to find safety. Those who are feeling persecution and conflicts will always be willing to bypass regular channels and risk their lives on dangerous journeys in order to find safety. While worldwide displacement figures have skyrocketed to more than 51 million people, worldwide asylum channels have decreased. As such, in world with increasing demand and shrinking protection, the use irregular migration pathways becomes more sought after than ever.
Today I would like to talk about promises. Over 60 years ago, Australia made a promise, both to its citizens and to people around the world, that it would protect those fleeing persecution. This promise was made voluntarily, as an act of humanity and solidarity, following the horrors of World War Two.
That promise was made by signing the Refugee Convention, a binding international commitment. This promise is not to be taken lightly, indeed the consequences of Australia breaking its promise is almost certain death for many people. As part of that promise, Australia has committed to not return people to places where they risk persecution, torture or death.
However, of late, Australia seems to show little regard for its own promises, and continues to force people back to countries where they are at grave danger.
The Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples has been accepting submissions as part of its duties to inquire into steps required for a successful referendum on constitutional recognition of Australia’s indigenous population. The Equality Pod, under the guidance of Dr Adam McBeth, has submitted a report that outlines Liberty Victoria’s position on key aspects of the proposed constitutional changes, as suggested by both the Expert Panel Report on Constitutional Recognition of Indigenous Australians and the Committee itself in a 2014 Progress Report.
This report explores the issue of constitutional recognition of Australia’s indigenous peoples within the context of international human rights law, emphasising the current inconsistencies in the Constitution and the substantive protections that could be incorporated into constitutional recognition to better adhere to international legal obligations. The report then uses this discussion to argue for particular recommendations concerning the wording and timing of the proposed referendum. These recommendations include:
That section 25 and section 51(xxvi) of the Constitution be repealed;
That a section 51A be inserted into the Constitution that gives Parliament the power to make laws with respect to the benefit of Aboriginal and Torres Strait Islander peoples, and that ‘benefit’ be defined with reference to ‘an ordinary reasonable member of the community for whom the benefit is intended’;
That a prohibition against racial discrimination be inserted into the Constitution that applies to federal, state and territory governments; and
That a referendum take place at or shortly after the next federal election in 2016, provided sufficient consultation and awareness-raising occurs in the meantime.
The report acknowledges that while constitutional recognition in itself will not rectify past discriminatory laws and practices, it will hopefully contribute to the future reconciliation of the peoples of Australia in the spirit of equality, recognition and respect.
As the former Victorian Privacy Commissioner has said mass data retention:
“…is characteristic of a police state. It is premised on the assumption that all citizens should be monitored. Not only does this completely remove the presumption of innocence which all persons are afforded, it goes against one of the essential dimensions of human rights and privacy law: freedom from surveillance and arbitrary intrusions into a person’s life”
So you’ve got nothing to hide? Not fussed about rights and freedoms? Well, here’s some further practical consequences of data retention to consider.