The dust had barely settled on the atrocious attacks in Paris when the spectre of terrorists hiding among the refugees fleeing Iraq and Syria was raised. The attacks have caused some to question Australia’s one-off intake of 12,000 Syrian refugees.
NSW Nationals MP Andrew Fraser called on Australia to “close our borders” in the interests of national security. Other former political figures have been sounding the clarion call of the dire consequences of Australia accepting these refugees.
The idea that there are “hidden terrorists” among the refugee intake is being raised due to the likelihood that at least one of the Paris attackers had arrived in France via a refugee channel from Greece. So, is it possible that Australia is about to be infiltrated by Islamic State-inspired militants among the refugees we are offering sanctuary to?
The crisis enveloping Europe in attending to and properly caring for millions of terrified refugees fleeing the Assad regime in Syria and Islamic State (IS) is phenomenally problematic. These problems have ruptured some relationships between European Union and non-EU nations.
This represents the largest mass movement of people in Europe since the second world war. There are other great similarities between these two calamitous movements of people. The UK, for instance, was initially hostile to accepting large numbers of Jewish refugees due to a belief that they would not assimilate.
With so many people fleeing so much persecution, it beggars belief that there are people who have attached themselves to groups seeking to escape this barbarity but whose objectives are the very antithesis of those seeking sanctuary. But this is what some early information in the Paris attacks’ aftermath seems to suggest has taken place.
In this regard, it is entirely possible that a small number of IS followers have infiltrated groups seeking refuge and solace. Those guilty of evil crimes and those with evil intent hiding among the innocent is regrettably not unknown in these situations. In the second world war’s aftermath, the “ratlines” – or escape routes – of Nazis and fascists included their immersion among the refugee populations.
This has also been the case with more recent conflicts in the Balkans and elsewhere. Alleged war criminals have been found living in Australia.
The task of identifying anyone from a war zone is very challenging – even more so when the particular countries people are fleeing have either rudimentary or no form of records of the essential details of their citizens.
This is why, following the September 11 attacks, a great deal of aid came from the US trying to introduce more robust identity-capturing measures globally.
This remains an unfinished project. In many areas where refugees continue to flee, there is not a comparable form of quick computerised identity checking as in Australia. Certain agencies here can access a computer with or without a warrant to look at your records. But this is not the case in countries where discovering someone’s identity is reduced to knowing the names of the individual’s parents and the specific village, town or area from which they hail.
These problems notwithstanding, the agencies tasked with undertaking such checks do so exhaustively. The checks can rely on everything from an allied country’s records to information from refugees themselves. The refugees have a passionate interest in ensuring their former persecutors are not among those persons provided sanctuary.
IS should not be equated with Islam – nor with the terrified Muslim refugees trying to escape the very acts that were perpetrated in Paris.
The Nauruan government announced earlier this week that it will remove the remaining restrictions on the liberty of the asylum seekers detained there, and process all pending claims for asylum. It initially said it would process the claims in a week, but has since backtracked from that commitment.
Many have claimed that the announcement is a strategic move to undermine a constitutional challenge to Australia’s offshore detention regime, heard by the High Court this week – although the Australian government has denied this. So does the policy change spell the end of the challenge?
While that question can only be answered after the High Court’s decision, the hearings give a hint. The short answer is that the Nauruan government’s announcements have already had a much greater effect in the High Court than on Nauru itself.
The plaintiff in this case is a Bangladeshi woman who was detained on Nauru before being brought to Australia during her pregnancy. If the case fails, she, her ten-month-old baby and more than 200 people now in Australia will be sent back to Nauru or Manus Island.
The case, together with a similar one relating to Manus Island, began as a challenge to the Commonwealth’s power to spend money on offshore processing centres. This was on the basis of recent High Court cases that found that legislation was generally required to authorise the Commonwealth entering into contracts and spending money, subject to certain exceptions.
Not unusually, parliament intervened. In late June, the major parties combined to pass “emergency” authorising legislation, which applied retrospectively.
This meant the plaintiff was forced instead to argue that the emergency legislation was invalid because it did not fall within the Commonwealth’s powers to make laws set out under the Constitution. As the High Court’s questions made clear, this is a difficult argument to run. The authorising legislation appears clearly related to at least two of the broadest legislative powers of the Commonwealth – the power to regulate aliens and the power to engage in external affairs.
The plaintiff’s main argument now was that the Commonwealth, by in effect detaining asylum seekers on Nauru, went beyond its constitutional power to detain. The argument rested on two main steps.
First, previous cases had established certain constitutional limits on the executive’s power to detain asylum seekers in Australia. These limits included that such detention must be limited to permissible purposes and limited in time to what was reasonably practicable to effect that purpose, and that the courts must be capable of supervising the legality of that detention.
Second, these constitutional limits did not apply to detention on Nauru. The effect of this was that the offshore processing regime enabled Australia to do outside its borders what it could not do inside. This would in effect subvert the High Court’s role in supervising the constitutionality of executive power.
At the heart of this was an argument that the Commonwealth was to be treated as, in substance, detaining the asylum seekers. That argument rested on the evidence that the Commonwealth funded, authorised and controlled the offshore processing regime.
This is a difficult argument to run. Similar arguments failed last year before the High Court. As High Court justices pointed out this week, there is nothing in either the Migration Act or the Memorandum of Understanding that requires Nauru to detain asylum seekers.
Nauru’s announcements over the past week significantly undermined the plaintiff’s main argument. This argument rests on there being unconstitutional detention, and now there is no detention.
As a consequence, the Commonwealth argued that all of the questions (and associated remedies) in the case relating to the Commonwealth’s future conduct were no longer relevant.
The Commonwealth is also now arguing that it is not useful for the High Court to consider the legality of past detention. This is because deciding that question will not produce any real consequence for the plaintiff.
That might surprise lay observers, but Australian courts have long held that the courts should not decide cases where it can serve no useful result. While a claim for compensation could have been such a result, the case was never argued in this way – as the Commonwealth duly pointed out.
From this week’s hearings, it certainly seems that these sudden changes to policy in Nauru have dramatically weakened this constitutional challenge – if not yet the companion challenge to the constitutionality of offshore processing on Manus Island.
Yet again, it seems, the government may have successfully outmanoeuvred legal challenges by changing the law and the facts on the ground.
For the asylum seekers on Nauru, other facts on the ground remain much the same. They are still unsafe, separated from their families and unable to leave Nauru for a real life.
Foreign Minister Julie Bishop has announced that Australia is running for a seat on the UN Human Rights Council for the period of 2018 to 2020. The bid was originally made by the previous government, and has now been officially endorsed by this one.
The UN Human Rights Council was established in 2006 to replace the UN Commission on Human Rights, which had run from 1947 to 2006. In that time, the commission had some impressive accomplishments, including its early drafting of the Universal Declaration on Human Rights (UDHR) in 1948, and most of the core UN human rights treaties. The commission played a role in promoting and developing human rights norms, and investigating and highlighting human rights issues and crises.
However, by the time of its demise, its reputation was so clouded that its official name seemed to have become “the Discredited” Human Rights Commission. The West felt that too many countries with terrible human rights records, such as Sudan and Zimbabwe, were joining the commission (it had 53 member nations) to protect themselves from censure. In contrast, developing nations felt that the commission had become too antagonistic in its dealings with them.
A revamp was needed, so the commission was replaced by the council, which has the same normative and investigative functions and has 47 member nations. It has one major new function, the Universal Periodic Review (“UPR”), whereby the human rights record of every UN member is reviewed by the council (as well as all other “observer” nations) every four-and-a-half years.
The 47 seats are divided between the five official UN regions in the following way: Africa (13); Asia (13); Latin America and the Caribbean (8); Western Europe and Other (7); Eastern Europe (6). Australia is in the Western Europe and Other Group, known as WEOG. One-third of the council is elected every year by the UN General Assembly, and members serve three-year terms. No member may serve more than two consecutive terms. A member can also be suspended from the council upon a vote of two-thirds of the UN General Assembly: Libya was so suspended in 2011 after Muammar Gaddafi’s crackdown on Arab Spring protesters and armed dissidents.
As the council’s members are representatives of their governments rather than independent human rights experts, it is hardly surprising that the council, like the commission before it, is a highly politicised body. So is the council an improvement upon the “discredited” commission? While the UPR is capable of improvement, it has generally been praised as a jewel in the council’s crown, which clearly distinguishes it from the commission.
Nevertheless, many of the same criticisms arise as were levelled at the commission. Some of its members, now and in the past, have terrible human rights records. After all, while Libya was suspended in 2011, one may fairly ask why it was elected in the first place?
Saudi Arabia’s leadership role is currently attracting much adverse media attention. Russia, China and Cuba are routinely elected, as was the case with the commission, though they all had to sit out 2013 as they had all served two consecutive terms. It is no coincidence that 2013 was a comparatively productive year for the council. **
Human rights criteria were mooted as prerequisites for membership back when the council was created. However, the UN’s nearly 200 members could not agree on substantive criteria, as they have different views on human rights. The US, for example, wanted only “democratic nations” to be eligible, whereas a focus on the implementation of economic and social rights might have led to the exclusion of the US itself.
Procedural criteria, such as a nation’s record on ratification of human rights treaties, would have been more objective. However, such criteria may have led to the exclusion of the two most powerful countries in the world – the US and China. As it stands, members commit to the highest standards of human rights, and countries should take into account a nominee’s human rights record when voting. But both of these rules are basically unenforceable.
Nevertheless, I believe that the membership of the council has generally been better than was the case with the later years of the Commission on Human Rights. It is notable that notorious abusers such as Sri Lanka and Belarus have sought and failed to gain election, while Syria was sensibly talked out of running in 2011. The secret ballot for council elections may be a key here, as there is a chance that a UN region will lose a seat for a year if an insufficient number of its nominees are deemed acceptable enough to be elected by a majority of the UN General Assembly.
The council is also criticised for running hard against human rights abuses in some contexts, while being notably soft in others. For example, inconsistency arose in 2009 when Israel was heavily condemned over Operation Cast Lead in Gaza while Sri Lanka was effectively praised a few months later for the end of its long-running civil war despite thousands of civilian deaths.
To be fair, the 2009 Sri Lanka resolution was possibly a nadir in the council’s operations, and it has been more proactive in responding to major human crises since, such as those in Côte d’Ivoire, Libya, Syria, Mali and the Central African Republic. It has also now adopted resolutions condemning Sri Lanka and calling for war crimes investigations. However, Australia did not support the 2014 resolution, presumably as it sought continued political favour with Sri Lanka to ensure its ongoing co-operation to stop asylum seeker boats.
A global intergovernmental body focusing on human rights is important. Such a body will always be dogged by politics, but it is important to have such a forum as countries care more about what other countries think than they do about the statements of human rights experts and NGOs. The council is that global intergovernmental body, and its evolving membership represents the world of today, warts and all.
It is doubtful that the battle for universal human rights observance will be won by adopting an “us and them” mentality which excludes significant numbers of countries even running for election for the “human rights club”. It could lead to balkanised human rights discussions, and possible competing institutions within the UN. The council must be a forum where non-like-minded countries can talk to each other and cross divides (as does happen on occasion) to make important human rights decisions.
Australia is seeking a three-year term from 2018. It is competing with France and Spain for two WEOG seats. Will Australia be elected?
It is impossible to predict; much water will flow under the bridge before the election in 2017. Widespread praise for the role Australia ultimately played as a Security Council member indicates a reasonable amount of goodwill towards us. Clearly, France and Spain have the advantage of being members of the European Union, meaning they likely have a solid bloc of votes locked in.
On the other hand, Australia benefits from being seen to represent a different region than the always-well-represented Europe. Australia could for example try to position itself as a champion of the Pacific nations, and we will no doubt use the eternal narrative that “we punch above our weight”. Furthermore, the EU has frankly been dysfunctional in its lobbying efforts on the council, due to its slowness in being able to pin down a position among its own members.
Australia’s own human rights record will be of relevance to nations in deciding how to vote. Australia’s upcoming second UPR on November 9 will enable us to see what their major concerns are.
Australia has significant and well-known human rights problems, for example concerning asylum seekers, onshore and offshore detention, Indigenous people, violence against women and counter-terrorism laws. Here, I will focus on issues which have the capacity to undermine Australia’s reputation for cooperation with the UN.
One concern will be the Abbott government’s hounding of Gillian Triggs, the president of Australia’s Human Rights Commission, as those attacks do not sit well with the single resolution that Australia routinely co-sponsors before the council – that concerning the importance and independence of National Human Rights Institutions. However, it is likely that the government’s open hostility towards Triggs will soften under new Prime Minister Malcolm Turnbull.
Of great concern will be Australia’s attitude to its direct engagements with UN human rights bodies. We do not have a good record of implementing the findings of the UN treaty bodies, which have found Australia to be in breach of international human rights law more than 40 times.
In March, the UN Special Rapporteur on Torture, an independent human rights expert who is appointed by and reports to the council, found that Australia’s treatment of asylum seekers contravened anti-torture standards. Then-prime minister Tony Abbott petulantly responded that Australia was “sick of being lectured to” by the UN.
Only this week, the Special Rapporteur on the human rights of migrants postponed his official trip to Australia as the government could not guarantee that he could receive information from people about the offshore detention centres without those people suffering legal reprisals under the Border Force Act.
If Australia’s reputation for non-co-operation with the UN continues to grow, its council bid could and should suffer.
Australia has a long and proud history with regard to human rights and the UN. Herbert Vere Evatt oversaw the adoption of the UDHR in 1948 as the president of the UN General Assembly. Distinguished Australians have served on the UN treaty bodies (for example, Elizabeth Evatt, Ivan Shearer and Ron McCallum) and as Special Rapporteurs (for example Philip Alston is the current Rapporteur on extreme poverty and human rights).
It is appropriate for Australia to continue that history of leadership and engagement by running for the Human Rights Council. It is a flawed body, but a necessary one.
Australia’s road to election in 2018 will however be tough. A good faith attitude to our upcoming UPR and the resultant recommendations, as well as efforts to redress our considerable human rights failings, will help in that regard.
**The sentence on Saudi Arabia was added a few minutes after posting, due to the topicality of that issue.
Malcolm Turnbull confronts a classic “wicked problem” in how to deal with the nearly 1600 asylum seekers who are stuck in terrible conditions on Nauru and Manus Island.
A “wicked problem” is one that is “highly resistant to resolution”. In this case, Turnbull has – if he chooses to take it up – the policy challenge of finding a humane outcome for the detainees while maintaining a convincing “tough on borders” stand vis-a-vis the people smugglers.
This would also involve a political challenge. Hardline conservatives in his party, still appalled by the leadership coup, will use the asylum-seeker issue as one marker by which to judge Turnbull. From the other perspective, so will some moderate Liberals in the party and small-l liberals in voterland.
The present unacceptable state of affairs has most recently been highlighted by the United Nations Special Rapporteur on the human rights of migrants, François Crépeau. He announced he was postponing his September 27-October 9 visit to Australia “due to the lack of full co-operation from the government regarding protection concerns and access to detention centres”.
Crépeau said the new Border Force Act, which threatens detention centre staff who disclose protected information with two years in jail, “would have an impact on my visit as it serves to discourage people from fully disclosing information relevant to my mandate”.
He had asked the government for a written guarantee that no-one he met would be at risk of “any intimidation or sanctions” under that act. The government was not prepared to give the guarantee required by his official terms of reference.
Crépeau said that since March he had repeatedly requested that the Australian government facilitate his access to its offshore processing centres, without success.
Immigration Minister Peter Dutton responded that the government had “accommodated to the fullest extent possible the requests of the office of the Special Rapporteur”. Access to centres in Papua New Guinea and Nauru “is the responsibility of these sovereign nations and needs to be addressed with their governments”, Dutton added.
The most recent numbers (late August) showed 936 males detained on Manus and 653 detainees in Nauru (446 men, 114 women and 93 children). Processing has been painfully slow.
Under the Abbott government it was thought acceptable to let these people languish, apparently indefinitely.
Hopefully Turnbull will take a different view. He hinted at this last week when asked by Sky’s David Speers about the people “stuck” offshore. “I have the same concerns about the situation of people on Manus and Nauru as you do, and as I would think almost all, all, Australians do,” he said.
When some saw this as a potential softening of policy, however, he quickly reiterated that these people would never come to Australia.
Turnbull should address several steps if he is going to deal with the plight of the people on Nauru and Manus.
First, the government should do whatever is required to give the Special Rapporteur proper access to people and places. Ensuring protection for those who speak with the Rapporteur and access to centres is the easiest part of dealing with the wicked problem.
Second, there should be more Australian oversight in the centres. Claims that the sovereignty of PNG and Nauru would be compromised do not hold water – Australia is paying the bills.
Third, the government should find a way of having the people in the detention centres processed more quickly. The processing is done by the Nauru and PNG authorities, so the Australian government says “ask them” in response to questions about delays – a convenient but not convincing answer.
Fourth, those determined to be refugees need to be resettled satisfactorily, bearing in mind that the government won’t allow them to come to Australia.
From the reporting we have seen – most recently at the weekend from The Age’s Michael Gordon, who visited Manus – the conditions of the small number whose refugee claims have been upheld and who are out of the detention centres are appalling.
The government promised large amounts of funding for Cambodia to take people. Only a handful of refugees went.
Other third-country destinations are needed. But what hope of finding them, when the world is awash with great human tides of asylum seekers? Are any countries interested in “people swap” deals?
Fifth, any attempt by people smugglers to take advantage of a more humane policy towards the Manus and Nauru people by trying to restart the trade would need to be stared down. Both sides of politics now endorse turnbacks and there is no reason to think this would not continue to be effective as a deterrent.
Sixth, the Border Force Act should be amended, to allow those working in detention centres proper rights to provide information publicly in appropriate circumstances. The Australian Medical Association has been campaigning against the legislation and its voice should be heeded – it has a professional not a commercial interest in the issue.
In his last days as prime minister, Tony Abbott had Australia make a generous gesture to 12,000 refugees from the Syrian conflict. That actually was easier than solving the problem of the people stranded in PNG and Nauru. But the fate of those close at hand and under our watch is equally important and increasingly urgent.