Examining the role of legislators in the protection of refugee rights: toward a better understanding of Australia's interaction with international law.

AuthorFrancis, Angus

Abstract

This article aims to make a contribution to understanding the relationship between Australia and international law by focusing on the role of legislators in the protection of the rights of asylum seekers arriving in Australia. Asylum and refugee issues have been at the forefront of the public and scholarly debates over human rights in Australia and elsewhere. Yet Parliament's role in relation to the implementation of refugee rights in Australia is a neglected topic. To the extent that the literature in the area addresses the institutionalisation of human rights at the national level, it predominantly focuses on the conflict between the executive and the courts over which institution should have the final say in deciding refugee status or the conditions of sojourn. Recent examples of Parliament's engagement with asylum policy illustrate the potential for greater legislator interaction with human rights.

Introduction

How Australia interacts with international law is a topic ripe for further analysis. (1) While international law issues like Australia's participation in the war in Iraq can dominate public debate, 'little attention is given to how we as a country decide such matters and how our system of government has been designed to deal with them.' (2) Much of the literature ultimately concerns whether international law should be seen as undermining traditional pillars of the Australian legal order. (3) The tendency is to focus on the role and legitimacy of the branches of government in the incorporation of international law into our national legal system, especially the role of the courts in interpreting and applying international law (4) and the role of parliament in reviewing the treaty-making activities of the executive. (5)

Ultimately, this approach is dualistic and atomistic in nature: should international law be viewed as infringing on Australia's national legal institutions? Because of its preoccupation with the invasive qualities of international law, such an approach does not encourage a nuanced understanding of the interaction between international law and our legal system. Scholars are now, however, beginning to take up the challenge of developing a more sophisticated understanding of the relationship between international law and Australia's legal system and a number of seminars and colloquiums are generating further research and debate on the topic. (6) This article is therefore part of a wider initiative in the community of public and international law scholars toward developing an explanatory and normative framework that examines the relationship between the Australian legal system and international law in terms that both acknowledge the complexities of the interaction and chart the way forward.

This article aims to make a modest contribution to this endeavour by focusing on the role of legislators in the protection of the rights of asylum seekers arriving in Australia. While the treatment of asylum seekers is only one area of legislator engagement with human rights, it is an extremely important one. Asylum and refugee issues have been at the forefront of the public and scholarly debate over the role and place of human rights within Australia since at least the MV 'Tampa affair in 2001. The treatment of asylum seekers has similarly dominated the modern human rights debate in other developed countries like the UK.

Yet despite the level of debate on this issue, the Australian Federal Parliament's role in relation to the implementation of refugees rights in Australia is a neglected topic. To the extent that the literature in the area addresses the institutionalisation of human rights at the national level, it predominantly focuses on the conflict between the executive and the courts over which institution should have the final say in deciding refugee status or the conditions of sojourn. (7) In this context, Parliament is typically depicted as the vehicle for executive attempts to restrict judicial review of executive decision-making in the asylum arena. (8) There is enough evidence to support this construction, including Parliament's willingness to introduce a privative clause in an attempt to exclude judicial review of immigration and asylum matters. (9)

On the other hand, this article argues that when the response of Parliament to asylum matters is scrutinised in light of the diversity of ''Parliament' (10) a more nuanced and fuller picture of Parliament's engagement with asylum policy becomes apparent. In particular, the next section of this article examines the role of legislators in contesting Australia's reliance on mandatory detention and the offshore processing of asylum claims. A comparative analysis of developments in the UK in section three of this article demonstrates that the increased activity of legislators in this area is a cross-jurisdictional phenomenon. These examples of Parliament's engagement with asylum policy indicates the potential for greater concretisation (11) of refugee rights within Australia and in other jurisdictions through the law-making and scrutiny processes. The possibility that Parliament, as well as the courts, might emerge as a champion of refugee rights is an alluring prospect for asylum seekers who are typically marginalised, disenfranchised and unpopular. (12)

Given the limited scope of the case studies in this article, it does not seek to definitively prove that Parliament is (or should be) the sole and main protector of human rights or that there is an emerging 'rights culture' within parliaments generally. Instead, the examples in this article simply highlight the potential for Parliament's greater engagement with human rights when its independence and diversity are given scope.

In light of the preceding discussion, section four of this article questions the adequacy of current analytical frameworks that seek to define Parliament's role simply in terms of the dominance of the executive or the juxtaposition of Australia's observance of its international obligations with the assertion of 'national sovereignty'--presented as the triumvirate of popular will, executive action, and legislative sanction. In the final section, this article explores an alternative framework that builds on the interdependence between international human rights and national law and institutions, while also acknowledging the divisibility of sovereignty within the Australian political system.

  1. Legislators Scrutinising and Contesting Key Executive Policies Toward Asylum Seekers

Two recent watershed events in Australia's policy toward asylum seekers illustrate legislators contesting key executive policies in the asylum arena. The first, in 2005, involved in effect an unprecedented Coalition backbench revolt against the Government's policy of mandatory detention of unlawful non-citizens, which took the form of two private members bills prepared by the Liberal member for Kooyong, Mr Georgiou, and introduced into the Senate by Greens Senator Kerry Nettle. (13) The second, in 2006, saw legislators, including members of the then ruling Coalition party, reject the Government's attempts to introduce legislation that would extend the use of offshore detention and processing centres in other countries for the purposes of processing the claims of certain asylum seekers arriving in Australia (so-called offshore entry persons). (14) Before examining these cases in detail, it is important to appreciate the significance of the extraordinary steps taken by individual legislators in contesting the Australian Government's policies of mandatory detention and offshore processing.

  1. Parliament's Traditional Role in Immigration and Asylum Matters

    As Mary Crock and others have highlighted, immigration and asylum policy is an area that has traditionally been under the sway of executive power. (15) Consequently, when the courts were seen to be overstepping the mark and reviewing the merits (as opposed to the legality) of executive decision-making under the Migration Act 1958 (Cth), or seeking to involve themselves in the business of mandatory detention, successive Labor and Liberal governments introduced legislation to limit appeal rights. (16)

    Parliament was a not-so-innocent bystander to the melee between the courts and the executive that accompanied these legislative changes. Aside from giving its official sanction to the laws as passed, there can be little doubt that Parliament was also fully aware that such laws would be in breach of the international rights of non-citizens. Most notably, a succession of parliamentary inquiries, as well as reports from the Human Rights and Equal Opportunity Commission ('HREOC'), placed Australia's mandatory detention policy directly under the spotlight. (17) HREOC, departmental officers from the Attorney-General's Department and individual members of parliamentary committees raised concerns that Australia's policy breached international human rights obligations. Yet this failed to persuade Parliament to pursue reforms to the mandatory detention policy. (18)

  2. A Greater Role for Legislators in Scrutinising and Contesting Asylum Bills

    At the same time, it would be too simplistic to say that Parliament was simply the agent for unfettered executive policy even at the zenith of executive control over asylum seekers during the 1990s. Parliamentary scrutiny (19) during this time provided an important forum for individual legislators to voice their concerns in relation to mandatory detention and other harsh features of the Migration Act. (20) Parliamentary inquiries also provided HREOC and the United Nations High Commissioner for Refugees ('UNHCR') with an opportunity to criticise policy. The parliamentary reports that followed, although tending to endorse the government policy of the day, fostered an expectation of consultation with the wider community and displayed a robust level of debate.

    Most importantly, Australia's international human rights...

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