These people had not come “the right way”, Morrison told a news conference on Wednesday.
“I want to be very clear about that. I want to send a very clear message to people smugglers in the region that nothing’s changed.
“I will not give you a product to sell and take advantage of people’s misery. My government won’t do it. We never have and we never will.”
Government sources say there are more than 4500 Afghans in Australia on temporary protection visas, almost all of whom arrived by boat.
Although Morrison is adamant they will not get permanent residency, the government is making it clear there will be no attempt to return them to Afghanistan as things stand.
Opposition leader Anthony Albanese is among those who have called for them to be granted permanent residence.
The government announced on Wednesday an initial 3,000 humanitarian places would be allocated to Afghan nationals within Australia’s 13,750 annual program which runs over a financial year.
Immigration Minister Alex Hawke said the government would give Afghan nationals “first priority” within the offshore humanitarian program. The priorities would be family members of Australians, and those facing persecution including women and girls, the Hazara, and other vulnerable groups.
Some 8,500 Afghans have been resettled in Australia since 2013 under the humanitarian program.
Hawke said the government anticipated the initial allocation would increase further over the course of the year.
Morrison stressed: “We will only be resettling people through our official humanitarian program going through official channels.
“We will not be allowing people to enter Australia illegally, even at this time.
“Our policy has not changed. We will be supporting Afghans who have legitimate claims through our official and legitimate processes. We will not be providing that pathway to those who would seek to come any other way. That is a very important message. The government’s policy has not changed, will not change.”
As the government scrambles to evacuate people who assisted Australian forces in Afghanistan, Australia’s first evacuation flight from Kabul took only 26 people. Morrison said they included Australian citizens, Afghan nationals with visas, and one foreign official who had been working with an international agency.
The Afghans being brought to Australia in the evacuation are not included in the 3000.
Morrison emphasised the difficulty of assessing those Afghans seeking to come to Australia on the grounds of having helped Australian forces.
“They may have worked for us four years ago or five years ago. And we knew where they were then.
“And we may not have heard from them for a very long time. And we don’t know what they’ve been doing in that intervening period in what has been a very unstable situation.
“So it isn’t just a matter of people coming along and presenting, you know, a payslip from the Australian government saying, ‘I used to work for you’. I wish it were that simple.”
The Refugee Council of Australia said in a statement: “Permanent protection is needed for the 4300 Afghans on temporary protection visas, recognising that members of this group are unlikely to be able to return in safety for many years to come and need the assurance that they can continue to live in Australia without the constant fear of forced return.”
In the Taliban’s first press conference since seizing control of Afghanistan, this message was intended to allay fears of what a return to power could mean for the country.
In the wake of the Taliban’s stunning sweep across Afghanistan, attention is now focused on whether it can translate its rapid military gains to a political victory. This would require negotiating a governing system that can achieve both domestic and international legitimacy.
The movement’s media-savvy leadership has attempted to downplay fears of the return of its former repressive regime. However, the Taliban has not yet spelled out an alternative political system, aside from offering vague promises of pardons for government and military personnel and that women could continue to participate in society in accordance with sharia law.
In Kabul, which remains under the watchful eyes of the world, the group has largely shown restraint while pursuing an active media campaign. However, there are reports of summary executions, revenge killings of government officials and soldiers, forced marriages of young girls with Taliban fighters, and communications disruptions coming from other provinces.
For many Afghans who remember the previous Taliban regime in the late 1990s, trust will need to be earned.
Who are the Taliban?
The Taliban first emerged in 1994 during the anarchy and civil war that followed the collapse of the pro-Soviet government of President Najibullah in April 1992.
After it took control of Kabul, the movement tortured and killed the president, hanging his body from a pole, and declared a new government, the Islamic Emirate of Afghanistan.
The group attracted international headlines for its violent suppression of women and minorities like the Shi’a Hazaras, as well as the restriction of all civil and political rights. It banned women and girls from attending school and joining the workforce, and prohibited music and photography.
The Islamic Emirate of Afghanistan was led by Mullah Muhammad Omar, a local religious figure with no notable reputation in Islamic law or Afghan politics.
While the Taliban primarily sought to establish its rule over Afghanistan, it also attracted many foreign jihadist groups — most prominently Osama bin Laden’s al-Qaeda. Following the disintegration of the Soviet Union, these groups had shifted their focus to the west, particularly the United States, as their main enemy.
The Taliban relied on brutal and excessive force to dominate much of Afghanistan from 1996–2001. The movement did not develop governance institutions that could provide for political representation — such as establishing a parliament — or perform basic state functions such as delivering social services to the people.
As a result of its repressive policies, it turned Afghanistan into a pariah state. It was only recognised by Pakistan, Saudi Arabia and the United Arab Emirates. These countries saw the group as a proxy to limit the increasing influence of India, Iran and Russia, which were providing support to a coalition of anti-Taliban forces.
The Taliban’s fundamental weaknesses led to its rapid disintegration following the US-led military intervention in 2001.
The movement’s key leaders then fled to Pakistan, where they launched an insurgency against the new Afghan government and US-led NATO forces. After the death of its founder, Muhammad Omar, in 2013, the Taliban selected his deputy, Mullah Akhtar Mohammad, to replace him. He was killed in a US drone attack in 2016.
Much of the international focus has instead been on the leaders in the Taliban’s political office in Doha. This was set up in 2013 to facilitate direct negotiations between the Taliban, the United States and the Afghan government.
Can the Taliban govern with legitimacy?
In its attempts to establish a new government, the Taliban is likely to face some difficult choices.
First, an attempt to restore the Islamic Emirate is likely to cost it international recognition, legitimacy and aid. This will, in turn, weaken its prospect of consolidating its hold internally and limit its capacity to govern.
The challenges facing the group are immense. Afghanistan is on the verge of a humanitarian crisis, exacerbated by COVID-19, a severe drought and a looming hunger emergency. The World Food Program says malnutrition levels are soaring and some 2 million children need nutrition treatment to survive.
The Taliban also needs revenue. The previous Afghan government was heavily reliant on foreign aid. But according to a recent UN report, the Taliban largely finances itself with criminal enterprises, including drug trafficking, opium production, extortion, and kidnapping for ransom. The UN estimates its annual income as anywhere from US$300 million (A$413 million) to US$1.6 billion (A$2.2 billion).
The Taliban spokesperson said in his press conference this week that Afghanistan will no longer be an opium-producing country. Without significant foreign aid, however, the question remains how the Taliban would sustain its emirate if it abandons its main source of income.
Second, if the Taliban embraces a more pluralistic and inclusive political system with fundamental human rights, especially with respect to women, it may face opposition from its more radical factions and rank-and-file members, who have spent years fighting to restore its emirate.
Another important constituency that the Taliban will risk alienating is its regional and global jihadist allies. These groups are now celebrating its victory, but they may turn against the Tablian if it is seen as compromising on its core ideological principles.
The movement has so far avoided dealing with these questions through vague rhetoric. But now it is in control, these issues are becoming urgent priorities.
Nearly overshadowed by the chaos in the US this week was a dramatic escalation of the crackdown on pro-democracy activists in Hong Kong.
Authorities arrested more than 50 pro-democracy figures in early morning raids under the territory’s six-month-old national security law. The opposition lawmakers, activists and lawyers were accused of subversion for holding primaries for pro-democracy candidates for Hong Kong elections.
The Beijing-drafted law has previously been used to target protesters and the independent media in Hong Kong, but this week’s mass arrests marked a sobering turning point for the city.
They make political participation in Hong Kong not just futile but dangerous, and are likely to render the Legislative Council a rubber stamp along the lines of the National People’s Congress in Beijing, which has never challenged an initiative of China’s ruling party.
deliberately misled the world about the true purpose of the national security law, which is being used to crush dissent and opposing political views.
Opposition politics now considered ‘subversion’
Those arrested were all linked to informal primaries convened by pro-democracy parties last year ahead of Legislative Council elections, which were ultimately postponed.
At the time, Beijing labelled the primaries “illegal” and Hong Kong authorities said they would investigate whether the opposition’s plan to win a legislative majority that could veto government initiatives violated the national security law. The law provides for penalties up to life imprisonment.
It is unsurprising Beijing views grassroots political organisation with suspicion. Its authoritarian political system precludes any challenge to the Communist Party’s rule.
In Hong Kong, only half of the legislature’s seats are elected by universal suffrage; the others are reserved for members of trades and industries. But it has still been possible for opposition figures to win election and exercise their rights to vote and, where numbers permit, veto actions.
The fact the Hong Kong authorities now classify such acts as “subversion of state power” confirms the national security law has redrawn Hong Kong’s constitutional landscape. Its enforcement is playing out according to the most pessimistic forecasts.
While Hongkongers nominally enjoy a wide range of rights under the Basic Law, the outline of which was negotiated with Britain before the handover in 1997, some have come under severe pressure following the passage of the security law. These include freedom of speech, assembly and now electoral rights.
A key point of contention has been the progression to full democracy promised in the Basic Law but repeatedly withheld by Beijing. Chinese authorities have persistently misinterpreted the idea of Hong Kong self-government as a challenge to central authority and territorial integrity.
After the 2014 Umbrella Movement, the Hong Kong government told young democracy advocates to take their cause off the streets and into politics. But after many did so with remarkable success, that door has now been slammed shut.
In addition to aggressively prosecuting pro-democracy protesters, the Beijing and Hong Kong governments have orchestrated the disqualification of many pro-democracy candidates and elected officials in recent years. This culminated in the arbitrary removal last November of four sitting legislators, which triggered the resignation of the 15 remaining opposition members.
Around two-thirds of those arrested this week were former legislators or current district councillors. Other prominent opposition figures and members of civil society groups were also targeted. Police also reportedly seized documents from media and polling organisations.
Benny Tai, a longtime opposition figure who was among those arrested, said:
Hong Kong has entered a cold winter, the wind is strong and cold.
Why the world hasn’t done more
With rights and freedoms diminishing under Beijing’s vast national security apparatus, the outlook for Hong Kong is indeed bleak.
Hong Kong’s judiciary has been a bulwark against executive overreach, but it has been criticised by all sides for its decisions in political cases.
Its jurisdiction over national security matters is also constrained: judges are vetted by the executive government and can only apply, not interpret, the law. Cases can also be transferred to mainland courts.
The retiring chief justice recently pleaded for Hong Kong’s judicial independence to be respected, but the government’s fallacious insistence that Hong Kong, like China, has no separation of powers is one of several causes for concern as the baton passes to a new top judge.
This makes the likelihood of international intervention — always a dim prospect — practically negligible.
Western democracies have criticised the erosion of Hong Kong’s democratic principles and rule of law, and Hongkongers can expect easier pathways to residency in some of those countries, but China’s economic power will deter most governments from doing more.
This should not mask the fact that true political repression is taking place in Hong Kong. Key opposition figures have been vilified by pro-establishment media and harassed by law enforcement, leading many to flee overseas. Some have had their assets subsequently frozen by a vindictive government.
The Chinese government’s approach to Hong Kong is consistent with its more assertive approach internationally — it is aggressively pursuing its own interests without apparent regard for the reputational cost.
Once the international community understands how China plays the game, governments can formulate diplomatic and economic policies to deter bad conduct and protect their own national interests, along with the interests of others who fall within China’s sphere of influence.
However, such is China’s determination to crush dissent and opposition that anyone, anywhere in the world who advocates for such policies can be charged under Hong Kong’s national security law.
COVID-19 has caused a global public health emergency, a global economic emergency, and a global human rights emergency. The crisis is detrimentally affecting all recognised human rights in every country.
Unrestrained spread of COVID-19 is prejudicial to the human rights to life and health. All governments have human rights obligations to take appropriate measures to combat the spread of the virus.
In response to recent questions about the human rights compatibility of the curfew in Victoria, Premier Daniel Andrews bluntly responded that the curfew was “not about human rights”, but rather “human life”. That is a stark dichotomy, which leaves little space for human rights arguments. However, human rights are not optional extras, even in this pandemic.
Limits to human rights
Most internationally recognised human rights can be limited in certain circumstances. Even the right to life, globally recognised in Article 6(1) of the International Covenant on Civil and Political Rights, is subject to limitations. A person must not be “arbitrarily” deprived of life, so “non-arbitrary” deprivations are permissible.
Of course, the nature of the right to life dictates that few limitations are tolerable. Furthermore, a COVID outbreak has the potential to be catastrophic, costing many lives, causing debilitating long-term illness to many more, and overwhelming health systems.
But there must be some limit, even in the context of COVID-19. Human rights law does not mandate harsh lockdowns until elimination of COVID-19 or the development of a cure or vaccine. The question becomes one of just how much increased sickness and death, or risk thereof, is permissible under international human rights law?
The flipside of that question is to ask what human rights restrictions are permissible to suppress COVID-19 and decrease the risk of sickness and death?
Proportionality, risk and catastrophe
A key concept in working out the appropriate limitations to rights is that of proportionality: are the limiting measures reasonably necessary for the achievement of a legitimate purpose?
A key consideration in the test of proportionality is how important the limitation might be. The purpose of stopping the spread of COVID-19 is vitally important. But a more precise way of phrasing the purpose of most restrictions is to “stop the risk of the spread of COVID-19”.
For example, the quarantining of a person known to have COVID-19 contains spread, whereas the quarantining of someone who might have it contains risk. As it is impossible to know who might have COVID-19, it may be assumed that containment of spread is the same as containment of risk. But is this so? Not all risks are the same.
Consider the following example. Most Australian states and territories have imposed border restrictions (of varying degrees of strictness and geographic impact) to stop infections from being introduced from interstate. These measures restrict freedom of movement and forcibly separate families and friends.
Sarah Caisip is a Canberra woman who was unable to attend her father’s funeral and comfort her family in Queensland. She was refused an exemption from hotel quarantine due to the potential risk that she might introduce infection to Queensland. Was this a breach of her right to family life?
The ACT has not recorded a positive COVID diagnosis for months. The risk posed by Caisip is tiny: there is virtually no chance she has COVID-19. So the chance she would transmit the virus and cause a serious or catastrophic outbreak was infinitesimal. The problem is every single catastrophic outbreak, anywhere, has logically been sparked by a single case.
So in the Caisip example there is, on the one hand, a miniscule risk, but on the other, the potential for devastating outcomes if the risk materialises. Furthermore, the stakes seem amplified when COVID-19 is under ostensible control, as in Queensland and the less populous states: few decision-makers want to risk the replacement of a situation of control with one of a lack of control.
If decisions can be justified by the possibility of catastrophic outcomes from tiny risks, they can logically be justified if risks are larger, even if still very small. However, there is the danger any measure can be justified based on its marginal impact, or even potentially marginal impact, on reducing the risk of catastrophic outbreak.
For example, Victoria’s curfew has been criticised on human rights grounds. The virus is not more infectious at night. The curfew was not requested by either Victoria’s health authorities nor its police.
However, perhaps the curfew prevented an illicit party which might have led to further extensive spread and longer lockdown in Victoria. Alternatively, that illicit party may have simply moved to the daytime. Regardless, does the possibility of a benefit make the curfew “worth it”?
If we accept anything that might reduce the risk of COVID-19 infections is permissible, we may effectively permit extreme measures with only marginal, and perhaps no actual, benefit. Proportionality is reduced to a rubble, and human rights considerations are effectively jettisoned. If so, the most vulnerable and marginalised are those most likely to have their rights abused.
Government officials deserve some sympathy in having to engage in a wicked “balancing” exercise involving a novel deadly pathogen. But it is very likely some laws and decisions have overreached, and important human rights have been displaced by restrictions with dubious benefit.
It is vital governments face scrutiny and remain accountable over the human rights compatibility of COVID measures.
Under international human rights law (and some domestic laws), Australian governments must take all reasonable measures to prevent and manage COVID infections. Requisite measures extend beyond coercive restrictions to the establishment of appropriate systems to control spread of the virus.
This is particularly important as system failure has contributed greatly to the spread of the virus in Australia and beyond. There are major weaknesses in the regulation of aged care homes, where there has been a devastating death toll in Melbourne. Hotel quarantine failure sparked the Victorian second wave, while sub-optimal contact tracing failed to detect extensive spread before it was too late.
System improvements will help to ensure against further major outbreaks in Australia. Lockdowns and other general human rights restrictions are not the only tool in the kitbox. System improvements should give Australian governments greater confidence in managing the risks associated with any easing of coercive restrictions.
Balancing the right to life with the right to live
Sensibly, Australians are prioritising safety for themselves and their communities over freedom during the COVID-19 pandemic. But how much risk avoidance is sustainable socially, economically, politically, and even legally, if COVID cures and vaccines remain unavailable?
The continued adoption of an extreme precautionary approach could mean Australia remains balkanised, loved ones (including the vulnerable) separated, livelihoods destroyed, and coercive measures tolerated where they offer little benefit. And the countervailing human rights issues will only loom larger and larger. The human right to life is vitally important, but there is also a human right to live.
CCTV cameras mounted on vans have recently been seen in public parks around Melbourne, ostensibly to nab anyone breaking lockdown rules. They are part of a joint initiative between several Melbourne councils, Victoria Police and the Commonwealth government.
Coming on the back of Victorian police arresting and charging a number of people for inciting others to break bans on public gatherings by protesting in the streets, there is likely to be widespread resentment to the presence of these mobile surveillance units.
Many people are already claiming the Victorian government has once again over-stepped the mark in its aggressive approach to suppressing COVID-19.
These mobile units are not new, though. They were introduced in 2018 to help combat crime. They are not cheap, either. The cost to purchase and operate four of the units has been estimated at $3.6 million.
But what are the laws around public surveillance of people going about their daily business or recreational activities outdoors?
Let me tackle this question by posing four related questions:
are the cameras legal?
are such surveillance tools effective?
are these measures acceptable in a vibrant democracy?
It needs to be stated at the outset the Constitution does not include any specific rights related to privacy. And the High Court suggested two decades ago that privacy was unlikely to be protected under common law.
So, it should not be surprising that mobile CCTV cameras driven to and stationed in public places are perfectly legal.
Moreover, so-called “unmanned airborne vehicles” (UAVs), more commonly known as drones, are regularly deployed by police for surveillance purposes, too.
Both of these surveillance tools are backed by regulatory force at all three levels of government.
Are these surveillance tools effective?
Proponents of these mobile surveillance units argue the perceived risks to privacy and heavy investment are worth it, given the social disorder they prevent and the help they provide police in solving crimes.
In one study in 2009, for instance, CCTV cameras were only found to reduce crime by 16% overall (and by only 7% in city and town centres and public housing communities).
The efficacy of these surveillance units in a health emergency has yet to be proven. The cameras would seem to be most useful in providing police with information regarding who is using the parks, and perhaps providing something of a deterrent to those who might consider breaching lockdown restrictions, but not much more.
Are these measures acceptable?
Yes and no. On the one hand, there is no doubt people want the coronavirus restrictions to end. And if these units deter people from breaking lockdown rules, and this, in turn, helps bring the new case numbers down more quickly, people may accept the intrusion in their lives.
On the other hand, some are understandably alarmed at the increasing use of surveillance tools by authorities — dubbed “uberveillance” by sociologists.
But without civic push-back, little will change. Parliamentarians are unlikely to limit the powers of the executive to allow mobile surveillance units to be parked in public places unless it becomes politically unpopular. One can but wonder when this tipping point may be reached.
You might have seen articles or comments on social media lately alluding to “sovereign citizens”, or “SovCits” for short, with some reports suggesting COVID-19 government restrictions have driven a surge of interest in this movement.
So, who are these self-styled sovereign citizens, and what do they believe?
Sovereign citizens are concerned with the legal framework of society. They believe all people are born free with rights — but that these natural rights are being constrained by corporations (and they see governments as artificial corporations). They believe citizens are in an oppressive contract with the government.
SovCits reportedly believe that by declaring themselves “living people” or “natural people”, they can break this oppressive contract and avoid restrictions such as certain rates, taxes, and fines — or particular government rules on mandatory mask-wearing.
The SovCit movement arose in America decades ago, with roots in the American patriot movement, some religious communities, and tax protest groups. It has also been known as the “free-man” movement.
SovCits see themselves as sovereign and not bound by the laws of the country in which they physically live. Accepting a law or regulations means they have waived their rights as a sovereign and have accepted a contract with the government, according to SovCit belief.
The SovCit movement doesn’t have a single leader, central doctrine or centralised collection of documents. It is based on their reinterpretation of the law and there are many legal document templates on the internet for SovCit use to, for example, avoid paying fines or rates they see as unfair.
SovCits tend not to follow conventional legal argument. Some have engaged in repeated court action and even been declared vexatious litigants by the courts.
The SovCit movement has many local variations but there are some key commonalities across the Australian SovCit movement.
Key beliefs and phrases
A central belief, according to news reports, is that the Australian government, the police, and other government agencies are corporations. Believers feel they must be on guard to avoid entering into a contract with the corporation. They often do this by stating, “I do not consent” and trying to get the police officer or official to recognise them as a “living” or “natural” being and therefore as a sovereign.
SovCits are often careful to avoid showing ID such as driver’s licences or giving their name and address. Saying “I understand” also risks being seen to agree to the contract so SovCits will repeat the phrase “I comprehend” to show they are refusing the contract.
Many reject their country’s constitution as false and reportedly refer to the Magna Carta of 1215 as the only true legal document constraining arbitrary power.
SovCits often come to the attention of authorities due to driving offences. It is a core belief of the movement that “sovereigns” have the right to travel freely without the need for a drivers licence, vehicle registration, or insurance.
Until COVID-19, the main threat seems to have been in committing road offences. More recently, actions protesting measures aimed at limiting the spread of COVID-19 have been linked to the sovereign citizen movement.
Indonesia has recently indicated it is considering investigating the killings of hundreds of thousands of people in the 1965 “anti-communist” purge under authoritarian leader Suharto.
If the inquiry goes ahead, it would mark a shift in the government’s long-standing failure to address past atrocities. It is unclear if they will include other acts of brutality alleged to have been committed by the Indonesian regime in the troubled region of West Papua.
Clashes between security forces and the West Papua National Liberation Army have escalated since January, which human rights groups say have resulted in at least five deaths. At least two other civilians were killed in another incident.
Our aim was to bring renewed attention to the protracted crisis in West Papua. We hope that by showing the extent of state-sanctioned violence going back decades, we might encourage the kind of international scrutiny that eventually led to intervention in East Timor.
The map only documents some of the massacres that have taken place in West Papua since the 1970s, as conditions in the territory make it difficult to accurately record and verify deaths. The challenges include a lack of resources for record-keeping, internal displacement and frequently destroyed properties, and a fear of reporting deaths. Others have disappeared, and their bodies have never been found.
We also encountered a relative dearth of data from the 1990s to 2010s, in part due to few journalists reporting on incidents during this period.
many killings were committed while Papuans were peacefully protesting for independence from Indonesia
given the numbers of troops posted to West Papua and the types of weapons at their disposal, the government should have had full knowledge of the extent of devastation caused by attacks by security forces and militia groups. (Indonesian security forces are generally known for being out of the government’s control)
in the vast majority of killings, the perpetrators have never been held to account by the government.
The government claims the National Human Rights Commission (Komnas HAM) is conducting inquiries into some of the more recent incidents, although there are concerns the body doesn’t have sufficient powers and the government has previously been reluctant to accept findings of abuses.
Why has the world stayed silent?
Both Australia and New Zealand have been hesitant about intervening in human rights crises in the region, particularly when Indonesia is involved.
In 2006, Australia signed the Lombok Treaty, which assured Jakarta it would respect the sovereignty of the Indonesian state and not support “separatist movements”.
It was largely the diplomatic intervention at the international level by US President Bill Clinton, alongside the deployment of Australian Federal Police (AFP) working as unarmed civilian police for the UN mission in East Timor, that eventually secured the referendum.
Media coverage played a critical role in persuading the world to take action. In West Papua, the media have not had the same effect.
This is in part due to what the Indonesian security forces learned from East Timor on how to control the media. The Indonesian government has frequently cut internet services in West Papua, enacted a complete ban on foreign journalists and denied requests from the UN Human Rights Commission to investigate human rights violations.
In the absence of extensive media coverage, Papuan pro-democracy advocates and their supporters have been calling for a UN-sanctioned human rights investigation. There is also significant support from human rights defenders in Indonesia for such an inquiry.
As it now has a seat on the UN Human Rights Council, Indonesia should fully support such a move. However, the military retains considerable influence in the country, and holding commanders suspected of human rights abuses to account remains politically difficult.
Given these challenges, what will it take for the world to show enough moral courage to force change in West Papua?
The right way forward is clear. As a member of the UN Human Rights Council, Indonesia needs to put an end to the media ban in West Papuan, support an independent UN investigation and hold accountable those responsible within the government for violent acts.
If Indonesia does not take this course of action, then diplomatic pressure from the world will be required.
For example, term 2 began this week in New South Wales. From week 3, children in government schools have been allocated a day per week when they should learn on site. In Western Australia, parents have been asked to decide if their children will return to the classroom, learn online from home or learn from home with hard copy materials. The situation in both states is to be reviewed around week 3.
In contrast, all Victorian students who can learn from home must do so. The ACT is also proceeding with online learning for all children who can be supervised at home.
Human rights relevant to schooling
Australia lacks a comprehensive human rights framework, although human rights laws have been passed in the ACT, Victoria and Queensland. Little commentary to date has considered the return to school in a human rights context.
Human rights are interconnected values. Many are relevant to this issue and the pandemic more broadly.
Under international law, all people have the right to the highest attainable standard of physical and mental health. The right to health extends beyond access to health care. Importantly in the context of the coronavirus pandemic, it includes a right to the prevention, treatment and control of disease.
All people, and particularly children, also have a right to education. This right is described as essential for people to participate effectively in a free society. Countries are obliged to protect the right by ensuring, at a minimum, free and compulsory primary education and a system of schools to provide equitable access to education at each level.
International law also confirms the right of all people not only to work, but to enjoy just and favourable conditions of work. This includes a right to safe and healthy working conditions.
Human rights issues arising from a return to the classroom
How can we balance human rights implications of a return to classroom learning, when rights may come into tension with each other?
Most human rights can be constrained, although not to the point where their essence is denied. Limitations on rights must be necessary in response to a pressing public or social need. They must also pursue a legitimate aim and be proportionate to that aim.
When we consider rights in tension at this time, it is clear a right to health must be the primary focus. A weakening of protective measures may heighten the risk of a second wave of the virus.
However, the advice for those who are at risk continues to be to stay at home. While some jurisdictions are moving to require in-person attendance, little has been said about how at-risk staff and students are to be protected at school or supported to continue in isolation.
Aspects of a return to school also pose mental health risks. Some students who require set daily routines may become anxious when required to attend only one day per week. Others, especially high school students in their final year, should perhaps be prioritised to return as a cohort in order to complete their education.
For teachers, there are significant workload implications in managing both in-class and online cohorts of students. The right of teachers to enjoy good mental health may also be compromised by a sense of risk in the return to classroom teaching. The potential for stress-related illnesses is obvious among parents, many of whom have found learning from home taxing on their mental health.
There is a widespread desire to support the right of students to education. Schools in Australia have mostly remained open throughout the peak of the crisis for children of essential workers and children who are safer at school than at home. This approach was a measured means of balancing rights to health and education and could be maintained for a longer period across the country.
It has been argued here that the “staggered” return to school in some states ought to prioritise the needs of children at certain key stages of learning.
We add that the most vulnerable children should also be prioritised. For example, greater equity in access to education at this time may call for special arrangements to include students with disabilities, chronic illnesses or mental health conditions. Students who lack at-home access to online learning could also be prioritised in a return to the classroom.
The physical environment in schools is a further complicating factor, particularly in terms of teachers’ rights to safe conditions of work. The prime minister is adamant schools are exempt from social-distancing requirements. Yet those states returning students to the classroom are implicitly undermining that message by setting maximum numbers and requiring staggered break times and other measures.
Many teachers feel confused and stressed about how they can do their work safely. This is unsurprising, given some states and other countries are taking much more cautious approaches to the health and safety of school staff.
No magic right answer
The balancing process between human rights values at this time is highly complex and beyond what we can hope to resolve in this article. And human rights analyses cannot deliver us a simple “right” answer as to how the return to classroom learning should be managed.
What human rights give us is another frame through which to consider these fundamental challenges. There are obvious economic and educational imperatives to prompt a return to classroom learning. Our national debate could be richer and more inclusive if it also included human rights claims.
Australia has just entered its final year of its membership on the UN Human Rights Council. This position was won on the strength of two key arguments:
Australia would be the first Pacific nation to sit on the body, founded in 2007
our long-standing commitments to civil and political rights made us a safe set of hands among a membership that includes several dictatorships.
This championing of Australia’s record, however, sits oddly beside our own well-publicised violations of human rights, most visibly on asylum seekers and Indigenous rights.
My new book, Human Rights in Twentieth Century Australia, probes this contradiction. One of the questions I grapple with is how a nation that crows of its achievements in certain areas of human rights can so flagrantly breach others.
One answer is that Australia has long used its British heritage of civil and political rights and higher average standard of living to discount more expansive social, economic and cultural rights, particularly when it comes to questions of race and citizenship.
It is often forgotten that Australian representatives joined those of seven other nations to draft the Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948.
Attorney-General Herbert Vere Evatt headed the negotiating team. He argued for a strong document enforceable by an international court, which would defend traditional “negative” rights like freedom of expression, alongside “positive” ones such as the right to work.
Even at this high point of global consensus following the second world war, Australia’s double-handed approach to human rights was apparent. While Evatt likened the UDHR to Australia’s sentimental belief that everyone deserves a “fair go”, he guaranteed the White Australia Policy would not be threatened by such a document.
Using language that echoes Australia’s asylum policy today, he said
There is no relationship between the Declaration of Human Rights […] and the exercise by a country of its national right […] to determine the composition of its own people.
This argument for the primacy of so-called “domestic jurisdiction” was also extended to the rights of Indigenous peoples by Evatt and other Australian leaders at the time, meaning their rights were considered to be only of national concern.
The Communist newspaper Tribune captured this in a cartoon depicting the worldly Evatt set against an enchained Indigenous man to whom rights had little meaning.
By positioning itself as a responsible “middle power” on human rights, while also insisting it be judged by a scorecard of its own choosing, a benchmark was set for future Australian governments.
Human rights have, henceforth, been understood very restrictively in Australia.
Challenges to Australia’s human rights policies
Despite such evasions, Indigenous people, refugees and other social movements have long used human rights discussions and debates to further social and political agendas.
Chinese wartime refugees, dubbed a “recalcitrant minority” by Immigration Minister Arthur Calwell, were threatened with deportation in 1949. They petitioned the newly formed Australian Human Rights Commission, protesting “in the name of humanity” for their protection “from the arbitrary and inhuman actions” of the minister.
Indigenous Australians also began petitioning the commission in the 1960s, challenging governmental obfuscations on human rights directly.
While Australia insisted the country’s Indigenous policy accorded with the UN’s language of equality, a 1970 petition by five Indigenous Australians – delivered in person to the UN offices in New York – declared nothing had changed.
Alleging the ongoing “literal, physical destruction of our people”, the petitioners demanded Australia be judged
in light of what it does […] rather than what it says.
From collective to individual rights
Starting in the late 1970s, the focus of international human rights shifted. Protecting individuals from suffering and violence replaced the fight for collective economic and social rights that defined the era of decolonisation in the 1950s and ‘60s.
Groups like Amnesty International, which won the Nobel Peace Prize in 1977, made political prisoners and basic sufficiency the watchwords of rights activism.
Economic, social and cultural rights were thus downgraded in importance compared to civil and political ones. Such a focus imposed few obligations on Australia, already a constitutional democracy governed by the rule of law.
Gareth Evans, attorney-general under the Hawke government, said in 1978 the very idea of economic and social rights was:
beyond the scope of the topic ‘human rights’ as that term has meaning in this country.
Since the late 2000s, though, the ground has moved quickly. On one hand, Australia’s continued violation of Indigenous rights has garnered more international condemnation.
The failure to deliver on the promise of constitutional recognition – one of the “pillars” of Australia’s Human Rights Council bid – seems particularly egregious.
The Declaration on the Rights of Indigenous Peoples in 2007 has also created reporting and compliance mechanisms unavailable to earlier generations. Under this declaration, the UN has already condemned the so-called “Intervention” in the Northern Territory and the revelations of abuse at the Don Dale detention centre.
Western governments like Australia are also back in the crosshairs on economic rights.
Kumi Naidoo, Secretary-General of Amnesty International, acknowledged in December 2018 that Amnesty’s focus on political prisoners meant issues of poverty, inequality, housing, food and sanitation had largely disappeared from activists’ lexicon.
It’s now necessary to view human rights as a “package”, Naidoo said, including renewed focus on economic rights. And importantly, western and non-western nations can – and must – be judged on an equal footing.
Australia has already seen what this future looks like. The UN’s special rapporteur on extreme poverty, Phillip Alston, recently said in a widely publicised report the so-called “Robo Debt” and Cashless Welfare Card schemes were bringing forth a “digital welfare dystopia”.
Australia should expect more uncomfortable finger pointing in future. If we are to remain a human rights leader at home and abroad, the ranking of some rights as more important than others must come to an end.
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