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Article 23 universal declaration of human rights research paper
Article 23 universal declaration of human rights research paper
Does Australian law adequately protect human rights? Why or why not
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Case Note: Al-Kateb v Godwin
Legal issue
Does the Migration Act authorise the indefinite (non-judicial) detention of an 'unlawful non citizen' if their removal is not reasonably practicable in the foreseeable future? If yes, is the indefinite non-judicial detention an infringement of the Chapter III powers of the Constitution?
Facts
Al-Kateb (the appellant) was born and lived in Kuwait but is not eligible for Kuwaiti citizenship. He arrived in Australia in 2000 without a passport or visa and was taken into detention as an unlawful non citizen under s 196 of the Migration Act. In 2002, after being refused a visa, Al Kateb requested to leave Australia, however, his stateless status meant that Australia could not find a country to take him.
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S 51(xix) of the Constitution provides the executive the power to make laws with respect to 'aliens', including the power to detain aliens if it is reasonably necessary for entry processing or deportation.
Arguments made by the appellant
" Ss 189 and 196 only authorise the continued detention of a person until they are deported, granted a visa or removed under s 198. The sections do not authorise continued detention when removal under s 198 is not possible.
" Following Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs, continued detention for the purposes of removal is only authorised if the removal is likely in the reasonably foreseeable future.
" Parliament did not foresee that s 198 may not be complied with, therefore the Act should be interpreted considering fundamental rights and in compliance with Australia's international obligations regarding arbitrary detention.
" While s 51(xix) of the Constitution provides the Parliament the power to detain aliens for visa processing or removal, if the removal is not reasonably likely in the foreseeable future then the purpose of detention is not for removal, and it is outside the scope of executive
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" The executive detention is constitutionally valid because it is 'reasonably capable of being seen as necessary' for the non-punitive purpose of visa processing and deportation. The length of the detention is not itself relevant to the lawfulness of the detention.
Decision and reasoning
The High Court held the detention was lawful under the Migration Act and constitutionally valid:
" Ss 189, 196 and 198 of the Migration Act can authorise the indefinite detention of non citizens. Even if it is unlikely that removal of an unlawful non citizen will happen in the foreseeable future, it does not mean that detention is not for the purpose of removal.
" The Migration Act is clear and there is no basis for considering the Act in light of fundamental rights or international obligations.
" The non-judicial indefinite detention is constitutional because the detention is non punitive, therefore there is no violation of Ch III.
If the right to habeas corpus is not being extended to the detainee, the majority judges are of the opinion that the branches such as executive and etc. except judicial, would have a whole control over Guantanamo Bay causing the judicial branch to have no position in reviewing the legal processes. The majority judges had stated
...be taken into custody for deportation; and if that, it is argued they may also be held for some undetermined
The Government of the United States, going against Mr.Padilla’s Constitutional rights and not providing him an opportunity to contest the legality of his detention, comprises the value of the Government’s accountability as a law-abiding state. In this particular case, it appears that government officers, including the president, believe that they should be able to do what is against pre-existing laws, if it is necessary to the preservation of the state and its citizens. However, this view raises some serious problems. If committed to a principle Rule of Law, one should never expect the government to act in an illegal way. The Rule of Law refers to “an end state in which all individuals and institutions, public and private, and the state itself are held accountable to the law, which is supreme” (Rule, n.d.). Therefore, the Rule of Law states, that every citizen is subject to the law, including the lawmakers themselves. All government officers of the States, including the president, the Justice of the Supreme Court, and all members of Congress, pledge to uphold the Constitution; affirming that the Rule of Law is superior to the rule of any human leader (Vile, 2006).
This program meant that the presidency had begun to ignore law. For Savage, Bush and Cheney’s authorization to ignore law, “was no different in principle between the warrant law and any other law that regulates how the president can carry out his national security responsibilities.” Furthermore, Savage claims, that this act “locked down the president’s power to arrest U.S. citizens on U.S. soil and imprison them in a military brig without trial if he or she thinks they pose a terror threat.” What Savage argues is that Bush through Cheney’s “signed statements” did not need to seek congressional approval, but as president could enact in any manner that he, as president, deemed necessary in order to protect the
We first see the depth of the unilateral executive power in the Hamdan versus Rumsfeld case. Hamdan as a non-citizen was tried under military commission. The Supreme Court ruled that the military commissions had entrenched on Article 3 of the Geneva Conventions, but also the “uniform code of military justice” (Brandwein). Additionally, they ruled that if tried after the Detainee Treatment Act of 2005 then you would not be allotted rights to “habeus corpus.” After the MCA of 2006 passed, Hamdan went to trial again. While the Bush administration argued for a 30 year sentence, the court panel ruled 60 months. Hamdan had already served 5 years and this case was interpreted as ‘weak,’ however, Bush decided to express his unilateral power and hold Hamdan anyways. Regardless of the court’s ruling, the time served, and because he was dubbed an ‘enemy combatant,’ Bush had the authority within his powers as commander in chief to hold him. The establishment of the term ‘enemy combatant’ aided the president in flexing this power. While Margulies finds this to be strictly a new and made up term with no real substance, Yoo says it is a traditional term which allots real power (Brandwein).
The conditions of Australia’s immigration detention policies have also been cause for concern for probable contraventions of Articles 7 and 10 of the ICCPR. Whilst in Sweden, asylum seekers are afforded free housing whilst their applications are being processed, Australia’s methods are much more callous. Under the Pacific Solution, maritime asylum seekers are sent to impoverished tropical islands with no monitoring by human rights organisations allowed (Hyndman and Mountz, 2008). The UNHCR criticised Australia’s offshore processing centres stating that “significant overcrowding, cramped living quarters, unhygienic conditions, little privacy and harsh tropical climate contribute to the poor conditions of… Nauru and Papua New Guinea” (Morales
Detention is a term used by certain governments and their military to refer to individuals held in custody. Most of the time rights are taken away from the person in detention.
Hundreds of people have marched in Brisbane to show their support for an innocent Iranian student who was sent to an immigration detention centre after spending two years living in the community. Mojgan Shamsalipoor had just been months away from completing high school, but her application for a visa to live in Australia had been rejected. Ms Shamsalipoor will now accept her year 12 certificate behind bars of Darwin’s Wickham immigration detention centre, where here on her life will never be the same again. What is life really like inside a closed detention centre? Well imagine a life torment with anxiety and depression or being surrounded by people with their lips sewn together on hunger strikes. There are people willing to die due to the immense torture inside what can only be described as hell. These are the devastating reality described by those who are forced by the Australian Government to live in.
The attacks on The World Trade center on September, 11 2001 created complications between the separation of power between the President and Congress regarding war-making decisions. Upon the attacks, Congress passed the Authorization for Use of Military Force (AUMF) against Terrorists. George W. Bush invaded Afghanistan and captured suspected members of the Taliban government and placed them in Guantanamo Bay, Cuba. This highlights a problem with the War Powers Resolution because AUMFs bring up the question of where the definition of literal declarations of war fall and it seems that AUMFs are its constitutional equivalent (Griffin, 2013). These detainees were held due to the belief that because Guantanamo Bay was outside US jurisdiction, that they could not protect themselves with the use of habeas corpus and other protections stated in the United States Constitution. These prisoners were then able to get help from people within the United States and as a result, habeas corpus petitions were made within the United States Federal Courts. The first case in which the judicial system reviewed the Bush Administration policies was in 2004, the case of Rasul vs. Bush. The court found that by law, they had to review the petitions. The Bush Administration reacted to Rasul by allowing prisoners to bring their petitions to military tribunals. The Supreme Court then stated that the President did not have
By force of the Migration Act 1958 they must remain in detention until they are given a visa or are removed from Australia. The government and the media refer to them as ‘illegals’, but the fact is that to come to Australia without authority and seek asylum is not an offence against Australian law. To the contrary, Article 14 of the Universal Declaration of Human Rights guarantees to every human being the right to 2 Migration Act 1958. Those who come to Australia trying to exercise that right are locked up in desert camps or, under the Pacific Solution, in remote islands. As an example, an Iranian asylum seeker Mojgan Shamsaliipoor, had been finishing her high school education in Yoronga State High School on release from the Brisbane Immigration Accommodation centre. She was giving hope and a change to start a new life outside the immigration accommodation. However, about 2 or 3 months ago, she was forcibly transferred to a Darwin detention centre, even without a change to say goodbye to her husband. Mojgan is one of the many asylum seekers who have fought that Australia will be their dream place, however were again mistreated. This clearly demonstrates that Australia recognises the law before the principle of equality and
The human rights and policy for the immigrants are Numerous international human rights documents firmly estab¬lish the principle that no human being can be “illegal” or outside the protection of the law. Yet despite the clearly established principle that discrimination and abuse based on immigration status are violations of human rights, U.S. government policies continue to sanction human rights violations against migrants and
Mandatory detention in Australia was introduced in 1992, by the Keating government to control the unauthorised refugees arriving in Australia by boats (Department of Parliamentary Services, 2013, p. 1). The policy allowed authorities to detain all unauthorised non-citizens, including children, until they have satisfactorily completed health, character and security checks and been granted a visa (Department of Parliamentary Services, 2013, pp. 5-6).
These “containment centers”, or Centers of Temporary Stay, have received a fair amount of criticism from other countries and international agencies alike. These centers, which resemble jail cells, are small rooms where illegal immigrants await their deportation. Originally, the maximum stay in the CPT’s was only 30 days. It was later increased to 60 days for those seeking asylum. In 2008, Berlusconi decreed that the maximum amount of time that anyone was allowed to stay in the CPT’s was 180 days. He also renamed the CPT’s to Centers for Identification and Expulsion. In 2011, the new Italian government increased the time of detention to 18 months.
Have you ever wondered what the United States would be like if law forces could arrest citizens for no valid reason such as one’s appearance, or where they’re from, or even the way they talk and dress. Thankfully, as a US citizen, no one would ever have to experience anything like that under the life-long protection of the writ of habeas corpus. A writ of habeas corpus is a court order person or agency holding someone in custody to deliver the imprisoned individual to the court issuing the order and to show a valid reason for that person’s detention. Basically, the writ of habeas corpus ensures due process for every citizen of the United States. Throughout our country’s existence, there’s been plenty of controversy surrounding the suspension of habeas corpus and wartime powers of an executive. The constitution grants citizens’ rights that are
To overcome this problem of undertrials the section 436A was introduced in the Criminal Procedure Code in 2005. The section 436A reads as “Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties”.