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Demand for more change on immigration detention

Yesterday morning’s interview on AM with Graeme Innes, Australia’s Human Rights Commissioner, is interesting, especially given the hopes with which many Australians voted the ALP into power federally in 2007:

BRENDAN TREMBATH: The Australian Human Rights Commission says asylum seekers are still being treated like political footballs and enduring "miserable" conditions at some immigration detention centres.

The commission's latest report on immigration detention again calls for the new Christmas Island centre to close and parts of the Villawood centre in Sydney to be demolished.

The Government says conditions are improving and it is committed to a set of immigration values.

But the Human Rights Commissioner, Graeme Innes, has told Naomi Woodley in Canberra that he's still waiting to see if those values translate into actual changes.

GRAEME INNES: It's starting to show through but there are still far too many people in detention for far too long a time. As at the middle of last year there were, the average length of time for people in detention was 308 days, which is more than 10 months, and 13 per cent of people in detention had been there for more than two years.

NAOMI WOODLEY: You're calling for some legislative changes. You'd like minimum standards for conditions and treatment of people in detention. Why do you think there needs to be those legislative changes?

GRAEME INNES: Well, I think the Minister's proposals and the Minister's policies are excellent but they're not yet put into law and in some cases not yet put into practice. And I would like to see some solid changes to the detention process so that a future government can't come back and take us back to the bad old days that we had three or four years ago.

What the Government is going to do, likely to do, is introduce some of its changes administratively and look at legislation in the medium term. But we need to get to a situation where detention is the exception rather than the rule.

NAOMI WOODLEY: Is the Government though, in a difficult position where, as you say, it might choose to do these changes administratively because it doesn't require the Senate to get them through? Is that just a reality that perhaps they have to face?

GRAEME INNES: The Government may be in a difficult position as far as legislation is concerned. Unfortunately immigration detention and particularly unlawful boat arrivals have been made somewhat of a political football. And that's very sad considering the plight that these asylum seekers are in.

I think it's important to put that in perspective. There were only 170 boat arrivals last year. There 148 the year before. So there hasn't been a huge increase as has been suggested. And compared to the number of people who sought asylum after World Youth Day, which was 217, it's a trickle; it's not a flood.

NAOMI WOODLEY: On Christmas Island you've called for the new centre there to be closed. It's only recently had some detainees put in there with the arrivals late last year. This has been a very expensive, very large centre that's been sitting empty. Why should it be closed?

GRAEME INNES: Well, it's a forbidding, prison-like facility and in fact we've called for no detention on Christmas Island of any type, not just in the new centre. That's because people are in a very remote situation where there isn't available support from the community.

Yes, the new detention centre has been built but we need to, as a community, recognise that as a mistake. We do not need a prison for detainees and we need to move on from it.

The main observations and recommendations (taken from the summary factsheet) of  the Australian Human Rights Commission 2008 Immigration Detention Report are as follows:

What were the Commission’s main observations in 2008?

Despite observing improvements in the physical conditions in immigration detention facilities over the past few years, the Commission has significant ongoing concerns. Major concerns include the following:

  • While there are fewer people in detention and the number of long-term detainees is decreasing, some people are still held for prolonged and indefinite periods. It is well established that this can lead to negative impacts on the mental health of detainees. The Commission met with people who had been detained for periods of up to six years.
  • Off-shore processing of asylum seekers continues on Christmas Island. The new immigration detention centre is a formidable high-security facility that the Commission believes should not be used. The island’s remoteness and the small size of the local community make it difficult for detainees to get adequate access to basic services, and make the island an inappropriate place for holding people in immigration detention.
  • Children are no longer held in immigration detention centres. However, they are still held in other closed immigration detention facilities, both on the mainland and on Christmas Island.
  • The Stage 1 section of Villawood Immigration Detention Centre remains in use, despite the Commission’s repeated recommendations that it should be demolished. While there are ongoing efforts to refurbish some detention facilities, the Commission has significant concerns about the infrastructure and prison-like environment at the mainland immigration detention centres.
  • Services and activities in immigration detention have, on the most part, improved over the past few years. Still, many detainees express frustrations about a range of issues including lack of access to external excursions, interpreters and translated documents, and recreational and educational activities.

What are the report’s major recommendations?

The Commission’s recommendations are set out in full in section 3 of the report. Major recommendations include the following:

  • Minimum standards for conditions and treatment of persons in immigration detention should be codified in legislation. These should be based on relevant international human rights standards. 
  • Australia’s mandatory detention law should be repealed. The Migration Act should be amended so that immigration detention occurs only when necessary. This should be the exception, not the norm. It must be for a minimal period, be reasonable and be a proportionate means of achieving at least one of the aims outlined in international law. These limited grounds for detention should be clearly prescribed in the Migration Act.
  • The Migration Act should be amended so that the decision to detain a person is subject to prompt review by a court, in accordance with international law.
  • The Migration Act should be amended to include periodic independent reviews of the ongoing need to detain an individual, and a maximum time limit for detention.
  • A comprehensive redevelopment of the Villawood and Perth Immigration Detention Centres should be undertaken as a matter of priority. This should include the demolition of Stage 1 at Villawood as a matter of urgency, and its replacement with a new facility. This is subject to there being a continuing need for such a facility, given the Government’s stated intention to detain people in immigration detention centres only as a last resort.
  • People should not be held in immigration detention on Christmas Island. The Australian Government should repeal the provisions of the Migration Act relating to excised off-shore places. All unauthorised arrivals who make claims for asylum should have those claims assessed through the refugee status determination process on the Australian mainland.
  • The Australian Government should implement in full the recommendations made by the Commission in the report of its national inquiry into children in immigration detention, A last resort? These include amending Australia's immigration laws to comply with the Convention on the Rights of the Child, including the key principle that the detention of a child should be used only as a measure of last resort and for the shortest appropriate period of time.
  • DIAC and the Minister for Immigration and Citizenship should make greater use of community detention arrangements, rather than holding people in immigration detention facilities.
  • A new client placement model should be implemented to reflect the Government’s ‘new directions’ in immigration detention, in particular that detention in immigration detention centres is to be used as a last resort and for the shortest practicable time, and that the presumption will be that persons will remain in the community while their immigration status is resolved.
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Culture

Am taken with Jay Somasandarum's helpful provision of a working definition for "culture".

It really frees us at this point from a useless dichotomy that prevents us from both loving our culture, which is to say ongoing life and humanity and empowering ourselves by accepting that there is a space available for objective contemplation at a distance, of how the thing works, without the betrayal of our own.

For it is way too reductionist just to seize on the notion that its "all bullsh-t" as a cop out for avoidance of the effort of thought. For in the end there are just too many variables to allow for that sort of scepticism, either.

Far better to be free; to consider what ifs and maybes given certain situations and then to work to have these tried out.

If folk hadn't been prepared to be a little open minded, we would never have had the success that immigration has proven to be up till now, although I really suffer a shudder of disappointment at the laziness of our leaders (rather than newcomers) in their lack of forethought and planning for the future.

So much will be wasted in the way of resources, as to dry out the lubrication of prosperity and with declining living standards thru mismanagement and corruption, have the victims blamed, as people begin to fight for artificially limited resources with the onset of global ecological crises and recession.

And I suspect the same disillusion is behind Alga's pessimism, given some of his earlier comments on other issues.

Suicidal direction

Jay I have Koori, Palawa and European in my heritage, so see our culture as deriving from all those as we have no other option. Except to accept the direction believers want us to take, which is certain suicide for maturing Australia into a culturally sane and free country. There's no sanity in god and increasing the number of factional religious into a country, can be seen worldwide as social disaster .

The remnants of western Christianity as you describe, were mostly trying to survive, as the elite of European christian society overindulged themselves, no different to today. More religious apologetics, clearly less than 20% of Anglo Australians practise christianity. Considering only about 12% ever attend church, I fail to see where you get your figures from, but I can guess.

As it is, this country has suffered greatly under the arm of Christianity. Do you expect people to accept the apologetics of not blaming your beliefs for the carnage they inflict world wide. That's like saying, don't blame the parents for the upbringing of the children, an irresponsible and denialist attitude. This form of logic is the reason we have so much religious turmoil and devastation around the world. Why should we continue to import those who are clearly incapable of any rational or logical approach to life, all they display is the signs we see when factional religion is involved, discrimination, suppression, carnage and war.

Justin the belief in god is supposedly a way of life which brings love, caring understanding and acceptance. Considering the historical verifiable outcomes of all expansionism by gods followers, explain the logic in such negative results.

I am fully aware of what christianity has done to the indigenous peoples of this country and have personally experienced the degrading and discriminatory attitude of gods followers and representatives, when dealing with those they class as inferior. But as you say, most indigenous southern hemisphere cultures managed their heritage with long term understanding and care. Something gods follower have never done, only the opposite

Importing more of the same ilk as those who have destroyed Australia for god and the dollar, something I find as being one and the same, seems rather irrational and suicidal. You only have to look at their own countries to see their outcomes and the direction they will take us.

If it survives, the human race will evolve out of this bizarre need for a mythical war god and self centred destruction of all they come in contact with. Yep, god sure has created lovely followers. The results of upbringing and direction can be seen in the actions of those under the influence of that upbringing. God has failed, so why accept more failures, except in an attempt to sink the country. Humanity takes second place to survival, unless you're a psychopath determined to be right, no matter what carnage you cause.

By the way, there's not one scrape of verifiable evidence to support jesus ever existed as claimed, all the evidence is against it and the story as being a plagiarised folk story which gained a cult following from a small number of disgruntled jews. A little bit of cultural anthropological studies will show you those facts, against the non evidence of christians. All his words and sayings can be found in works from many different cultures of earlier times.

God is but one tool of the cynical and greedy

Alga: "The 18th and 19th century of Australian history saw a physical and cultural genocide, carried out by the follows of god."

How many genuine followers of god were involved in this genocide? Or was Christianity the convenient tool to justify same in the eyes of the secular?

At first we denied the existence of our indigenous people. Terra Nullius. Sounds familiar.

Then we resorted to the Bible to justify our slaughter and theft. The black fella didn't farm the land in the manner we do, they just wandered around like nomads; as such they didn't deserve the land. Besides they were sub human and didn't deserve our compassion.

History now teaches us that the black fella was far more in sync with Australia then we have ever been. Rape and pillage a culture then rape and pillage a continent, that's what we did. Now we are all paying for our stupidity, greed and arrogance.

The black fella lived here for 60 thousand years or so. In just 200 years we have successfully stuffed this land. Well done.  And in a few days time we will celebrate the rape and pillage of Australia and pat ourselves on the back for doing so. Patriotism is the religion of the secular and used in exactly the same manner as religion to motivate the punters into doing stuff that no sane human being would ever consider.

(The majority of patriotic Americans and Australians (after the war started) were all for the Iraq war. Waving flags, brass bands and bright young faces in uniform off to learn the lesson of a life time. War only benefits the bullet and bomb manufacturers. Our children die.)

Our Christian religion in fact was bastardised to rationalise our criminal behaviour. Would Jesus rape and pillage? I would argue most of the white immigrants couldn't give a shit about god or anything else.  But quite happily followed the leader using whatever bullshit available to make respectable our theft and bloody murder.

It was always about exploitation and wealth.

Personally I don't have a problem with religion and respect anybody's desire to believe in whatever god they wish. I believe in them all and nobody can ever take that from me.

What I do have a problem with is the manner in which our cowardly leaders pervert our religions for reasons of manipulation, control, power and wealth.

A cursory look at the history of China will see heaps of conflict over the centuries. War lords fight war lords for territory wealth and power. Not much religion involved in that at all. The same in Africa.

Cynical leaders will always find a way to get the people to fight their dastardly wars. Religion is but one.

If our sick and twisted leaders didn't use religion and patriotism to justify slaughter they would simply find others reasons to rape and pillage when they so desired.

One day we may grow up - but let's not hold our breath.

Selective viewing

Fiona I apologise for being a pest.

1, As there were few posts, I thought it would be evident as to who I was quoting, however I shall attempt to toe the politically correct line.

2, My reference for the objectives of the Ummah is from some notes I was given back in the late 1990's during my studies, so I have no reference, but had thought I used accepted italics as a quote.

3, I have heeded your request and am posting plain text, it could be because I run a Linux box and currently have some issues with keyboard layout. I hadn't used text because from my end, the formatting looks terrible, whilst HTML looks fine.

Marilyn, ideological apologetics is all you've posted, just like holding the bible up and saying here's my proof and that's all there is and I need. Irrelevant to all the viewable and verifiable evidence.

Jay The 18th and 19th century of Australian history saw a physical and cultural genocide, carried out by the follows of god. The 20th century saw an ecological genocide carried out by various ideologies, which is continuing unabated. Yet the irreligious developing culture began taking steps to reverse a lot of the previous centuries carnage. Now the direction has changed and we again have ideological control in the form of political correctness. Plus the beginnings of another religious invasion by stealth, the results can be seen worldwide. This is being aided and abetted by the current ruling religious and political elite, against all the evidence.

Paul, I make my observations from accumulated evidence which is not related to media hysteria, or ideological agendas. I understand and agree with your concerns as to some of the treatment handed out to those in detention centres and the unaccountability of privatisation of any description. I would call it inhuman the way many other countries handle refugees and non invited people, compared to how we do. After all religious immigration and refuges, doesn't fix the problems, it just brings them here as we are beginning to see. What can you expect from a government of either faction, but to break their election promises. Name me which party hasn't constantly, you only get what you are prepared to accept and with the political system here, its lies and deceit people accept. To me that's completely bizarre and illogical.

Selective culture

Is your defence of Australian culture, Alga, the cultures of the different Aboriginal nations, or the middle-eastern/anglo-saxon culture that represents the renmnants of western Christianity as practised by the majority of Australian citizens? 

There is a lovely definition of culture:  "systems of symbols and meanings that even their creators contest, that lack fixed boundaries, that are constantly in flux, and that interact and compete with one another" (Fiona, to please you: Findley, C. V., & Rothney, J. A. (2006). Twentieth-century world (6th ed.). Boston, MA: Wadsworth, p10)

I'm picking on side issues and avoiding your main argument, Alga, but I can't stop chuckling. When I first saw your post, I wasn't sure whether you were sending everybody up to start a good brawl. 

No, that would be the law

Are these enough?

The Federal Court in Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs:

60 In any event, while it is literally correct to describe the applicant as an "unlawful" entrant and an "unlawful non-citizen" that is not a complete description of his position. The nomenclature adopted under the Act provides for the description of persons as "unlawful non-citizens" because they arrived in Australia without a visa. This does not fully explain their status in Australian law as such persons are on-shore applicants for protection visas on the basis that they are refugees under the Refugees Convention.

61 The Refugees Convention is a part of conventional international law that has been given legislative effect in Australia: see ss 36 and 65 of the Act. It has always been fundamental to the operation of the Refugees Convention that many applicants for refugee status will, of necessity, have left their countries of nationality unlawfully and therefore, of necessity, will have entered the country in which they seek asylum unlawfully. Jews seeking refuge from war-torn Europe, Tutsis seeking refuge from Rwanda, Kurds seeking refuge from Iraq, Hazaras seeking refuge from the Taliban in Afghanistan and many others, may also be called "unlawful non-citizens" in the countries in which they seek asylum. Such a description, however, conceals, rather than reveals, their lawful entitlement under conventional international law since the early 1950's (which has been enacted into Australian law) to claim refugee status as persons who are "unlawfully" in the country in which the asylum application is made.

62 The Refugees Convention implicitly requires that, generally, the signatory countries process applications for refugee status of on-shore applicants irrespective of the legality of their arrival, or continued presence, in that country: see Art 31. That right is not only conferred upon them under international law but is also recognised by the Act (see s 36) and the Migration Regulations 1994 (Cth) which do not require lawful arrival or presence as a criterion for a protection visa. If the position were otherwise many of the protection obligations undertaken by signatories to the Refugees Convention, including Australia, would be undermined and ultimately rendered nugatory.

63 Notwithstanding that the applicant is an "unlawful non-citizen" under the Act who entered Australia unlawfully and has had his application for a protection visa refused, in making that application he was exercising a "right" conferred upon him under Australian law. As he is entitled to do under the Act, the applicant has now requested his removal and the Minister is obliged to remove him but, in the circumstances of the present case, the Minister is no longer entitled to detain the applicant pending his removal.

The High Court in Al-Kateb v Godwin:

86 From 1901 to 1994, federal law contained offence provisions respecting unlawful entry and presence in Australia, which was punishable by imprisonment as well as by liability to deportation. The legislation gave rise to various questions of construction which reached this Court[90]. The first of these provisions was made by the Immigration Restriction Act 1901 (Cth) ("the 1901 Act")[91]. Section 7 thereof stated:

"Every prohibited immigrant entering or found within the Commonwealth in contravention or evasion of this Act shall be guilty of an offence against this Act, and shall be liable upon summary conviction to imprisonment for not more than six months, and in addition to or substitution for such imprisonment shall be liable pursuant to any order of the Minister to be deported from the Commonwealth.

Provided that the imprisonment shall cease for the purpose of deportation, or if the offender finds two approved sureties each in the sum of Fifty pounds for his leaving the Commonwealth within one month."

As enacted in 1958, s 27 of the Act continued this pattern. That provision eventually became s 77 of the Act, but this was repealed by s 17 of the Migration Reform Act 1992 (Cth) ("the 1992 Act"). It has not been replaced[92].

The Federal Court in Hamdan v Minister for Immigration & Multicultural & Indigenous Affairs:

30 It is important to emphasise that the client did not escape from custody. It would have been an offence for him to have done so: see 197A of the Act. He was released from detention pursuant to a court order. Neither was he committing or proposing to commit an offence simply because he was taking steps to avoid being detained. As Gummow J indicated in Al-Kateb at [86] ff, the current Migration Act, unlike its precursors, does not make it an offence for an unlawful non-citizen to enter or to be within Australia in contravention of, or in evasion of, the Act.

31 Further, as Hayne J observed in Al-Kateb at [207]-[208] the description of a person’s immigration status as "unlawful" serves as no more than a reference to a non-citizen not having a "valid permission to enter and remain in Australia". The use of the term "unlawful" does not as such refer to a breach of a law.

Power

I don't understand why you are so angry with religion, Alga. The underlying thread in all the cases you cite is not religion, but the misuse of power by those who have it.

Religion is used to both get power and to excuse their actions, but we humans use other means as well. Our invasion of Iraq was in the name of Democracy (the current religion?).

fallout

Alga, don't  be too cautious on these things.

I made the same mistake and only after some time discovered that so much of all the fear and loathing was political stuff dreamed up by Howard and the Murdoch press and tabloid TV. Most of the asylum seekers (98%) of the early 2000's were in fact actual refugees fleeing wars, famines  etc,  caused by us and our allies, not "queue jumpers" as that snake Ruddock claimed.

A related subject to the rights and wrongs of the handling of asylum-seekers is the privatisation of institutions like detention centres (like some prisons), following the yank neolib model, so that government can be at arms length should abuses occur, as recent reports have described.

Jewel  Topsfield, reporting in the Age, 19/1, observes that, "Labor breaks election promise", by renewing the contract of a controversial private contractor.

Now, whilst asylum seekers may be a separate issue, it is clear that a government has ducked its responsibility for humanitarian duty of care by adopting this conservative course, given evidence of previous events reported on by commissions etc.

Remember, Alga, one of the main reasons the former immigration/asylum policies came unstuck was due to reports of brutality and neglect finally filtering thru to the press from privatised institutions run by corporation like the US W(h)ackenhut organisation, during the later part of Howard's era.

Good, evidence based analysis

Robust, scientific analysis, Alga. Your concerns are built on sound evidence. Australian culture, freedoms and even life has suffered deeply due to immigration. It was very true of immigration in the 18th and 19th century. I would suggest, however, that 20th century immigration has been far less damaging. Perhaps we have got wiser.

The open border syndrome and its consequences

It's amazing how the ALP hang on to the discredited policy of detention and then maintain they are upholding human rights. The two are completely incompatible.

Not when you are trying to hold up the rights of Australians and our culture against the flood of invaders. Or don't you think we have to right to maintain our freedoms and open culture against the demand of these primitive and violent religious cultists?

Below is a couple of reasons why we should stop muslim refugees and Immigrants being allowed into this country and why we should stop the family reunion program for any refugee or immigrant before it's too late.

The world seminar on State and Politics in Islam that met here in London in August 1983 formulated the “political objectives of the Ummah” in the following terms:

  1. to eliminate all authority other than Allah and His Prophet ;
  2. to eliminate nationalism in all its forms, in particular the ‘nation-states’;
  3. to unite all Islamic movements into a single global Islamic movement to establish the Islamic State;
  4. to reconstruct the world of Islam into a system of Islamic States linked together by such institutions as are necessary to express the unity of the Ummah [all Muslims];
  5. to eliminate all political, economic, social, cultural and philosophical influences of the western civilization that have penetrated the world of Islam;
  6. to re-establish a dominant and global Islamic civilization based on the concept of tawheed worship of one god, Allah
  7. to create the necessary institutions for the pursuit of al-amr bil ma’ruf wa al-nahy ‘an al-munkar [that which Allah approves and the forbidding of that which Allah disapproves];
  8. to establish ‘adl [Justice i.e. Shariah Law] in all human relationships at all levels throughout the world.’

The methods they use to achieve their aim are migration and refugee claims, more than 120000 migrants come to this country each year, the fastest growing number are muslim, as well as more than 12000 refugees, more than 90% muslim. Family reunions and male refugees, who are the largest proportion, returning to their homelands and bringing back women and their illiterate families to breed at their whim. Only those with their heads in the sand don't see a growing trend to flood the country with islam and introduce by lies and stealth, sharia law and customs. As it is they have forced many businesses and organisations as well as the criminal justice system to allow them to have the halal food, places of worship and prayer times and they are pushing for forms of sharia law to be acceptable as legal. Already they have recruited many criminals in the jail system to jihad and Wahhabism, creating a future violent force.

Then we add the use ‘al-taqiya’, a doctrine that permits lying and deception in a variety of circumstances, usually to protect themselves and promote Islam. This is common in all religions, Christians and jews all believe it’s all right to lie to non believers and those from other factions or cults – you only have to read their biblical claims and then read the historical facts to see those glaring truths.

Some quotes fro the Quran to so you understand their real intent.

[Allah] shall cast terror into the hearts of the infidels [Non Muslims]. Strike off their heads; strike off the very tips of their fingers. That is because they defied Allah and His apostle. (8:12).

  1. Fighting is obligatory for you, much as you dislike it. But you may hate a thing although it is good for you, and love a thing although it is bad for you. Allah knows, but you know not. (2:216).
  2. The true believers [Muslims] fight for the cause of Allah, but the infidels fight for the devil. Fight then against the friends of Satan. (4:76).
  3. Believers [Muslims] make war on the infidels who dwell around you. Deal firmly with them. Know that Allah is with the righteous. (9:123).
  4. Prophet [Muhammad], make war on the unbelievers and the hypocrites and deal rigorously with them. Hell shall be their home: an evil fate. (9:73; cf. 66:9).
  5. When the sacred months are over slay the idolaters wherever you find them. Arrest them, besiege them and lie in ambush everywhere for them. (9:5).
  6. Fight against such of those who have been given the Scripture as believe not in Allah…Allah (Himself) fighteth against them. How perverse are they! (9:29,30) Pickthall’s translation. These two verses (7) were written about Christians and Jews after they rejected Muhammad’s religion, and cancel earlier verses that favoured them as ‘people of the book’ i.e. 2:62 & 5:69 etc. See “law of abrogation” later in “Islam, a religion of peace”.

Islamic school are bobbing up everywhere and they are pushing to build more in areas which currently have very low or negligible numbers of muslims in them. Plus we have the huge number of muslim students coming here each year – thousands over stay or apply for residency and get it.

Fiona: Alga, Some points for you:

(1) It is courteous to indicate in your post which Webdiarist’s words you are quoting.

(2) It is desirable to include a reference for material such as your quotation about the material objectives of the Ummah.

(3) Could you possibly paste your comments into the comment box in plain text (e.g., from a Notepad document)? Currently, your formatting is incompatible with Webdiary, and takes considerable time to fix.

Thank you.

Dry up

This is incomprehensible, old son. The reality is that we cannot close the borders: we don't have any. And please read these cases. Strangely enough they all involve our appalling treatment of Palestinians over the years and make us complicit in the abuse and torture they receive from the Zionists who you detest.

This is what the Federal Court said in Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs:

60 In any event, while it is literally correct to describe the applicant as an "unlawful" entrant and an "unlawful non-citizen" that is not a complete description of his position. The nomenclature adopted under the Act provides for the description of persons as "unlawful non-citizens" because they arrived in Australia without a visa. This does not fully explain their status in Australian law as such persons are on-shore applicants for protection visas on the basis that they are refugees under the Refugees Convention.

61 The Refugees Convention is a part of conventional international law that has been given legislative effect in Australia: see ss 36 and 65 of the Act. It has always been fundamental to the operation of the Refugees Convention that many applicants for refugee status will, of necessity, have left their countries of nationality unlawfully and therefore, of necessity, will have entered the country in which they seek asylum unlawfully. Jews seeking refuge from war-torn Europe, Tutsis seeking refuge from Rwanda, Kurds seeking refuge from Iraq, Hazaras seeking refuge from the Taliban in Afghanistan and many others, may also be called "unlawful non-citizens" in the countries in which they seek asylum.

Such a description, however, conceals, rather than reveals, their lawful entitlement under conventional international law since the early 1950's (which has been enacted into Australian law) to claim refugee status as persons who are "unlawfully" in the country in which the asylum application is made.

62 The Refugees Convention implicitly requires that, generally, the signatory countries process applications for refugee status of on-shore applicants irrespective of the legality of their arrival, or continued presence, in that country: see Art 31.

That right is not only conferred upon them under international law but is also recognised by the Act (see s 36) and the Migration Regulations 1994 (Cth) which do not require lawful arrival or presence as a criterion for a protection visa. If the position were otherwise many of the protection obligations undertaken by signaturoes to the Refugees Convention, including Australia, would be undermined and ultimately rendered nugatory.

63 Notwithstanding that the applicant is an "unlawful non-citizen" under the Act who entered Australia unlawfully and has had his application for a protection visa refused, in making that application he was exercising a "right" conferred upon him under Australian law. As he is entitled to do under the Act, the applicant has now requested his removal and the Minister is obliged to remove him but, in the circumstances of the present case, the Minister is no longer entitled to detain the applicant pending his removal.

This is what the High Court said in Al-Kateb v Godwin:

86 From 1901 to 1994, federal law contained offence provisions respecting unlawful entry and presence in Australia, which was punishable by imprisonment as well as by liability to deportation. The legislation gave rise to various questions of construction which reached this Court[90]. The first of these provisions was made by the Immigration Restriction Act 1901 (Cth) ("the 1901 Act")[91]. Section 7 thereof stated:

"Every prohibited immigrant entering or found within the Commonwealth in contravention or evasion of this Act shall be guilty of an offence against this Act, and shall be liable upon summary conviction to imprisonment for not more than six months, and in addition to or substitution for such imprisonment shall be liable pursuant to any order of the Minister to be deported from the Commonwealth.

Provided that the imprisonment shall cease for the purpose of deportation, or if the offender finds two approved sureties each in the sum of Fifty pounds for his leaving the Commonwealth within one month."

As enacted in 1958, s 27 of the Act continued this pattern. That provision eventually became s 77 of the Act, but this was repealed by s 17 of the Migration Reform Act 1992 (Cth) ("the 1992 Act"). It has not been replaced[92].

In Hamdan v Minister for Immigration & Multicultural & Indigenous Affairs, the Federal Court said:

30 It is important to emphasise that the client did not escape from custody. It would have been an offence for him to have done so: see 197A of the Act. He was released from detention pursuant to a court order. Neither was he committing or proposing to commit an offence simply because he was taking steps to avoid being detained. As Gummow J indicated in Al-Kateb at [86] ff, the current Migration Act, unlike its precursors, does not make it an offence for an unlawful non-citizen to enter or to be within Australia in contravention of, or in evasion of, the Act.

31 Further, as Hayne J observed in Al-Kateb at [207]-[208] the description of a person’s immigration status as "unlawful" serves as no more than a reference to a non-citizen not having a "valid permission to enter and remain in Australia". The use of the term "unlawful" does not as such refer to a breach of a law.

One flew over a cuckoos nest

They had a fair bit on this on the teev news, also. Very understated from the person who prepared the report and a fair bit from the department spokesman, telling us how it proved what wonderful people they'd been, too. And they'd be shutting down Villawood, an "old" facility.

But, as with Dr Haneef a few weeks ago, you knew in the end that an era had fortunately come to an end.

Although not entirely. As with Haneef, it seems that the underlying problematic applicable laws are to be tinkered with rather than got rid of wholesale.

But at least the thing is no longer being valorised.

Just stop locking up innocent people

It's amazing how the ALP hang on to the discredited policy of detention and then maintain they are upholding human rights. The two are completely incompatible.

How public relations works

Why would anyone be amazed by that?

You may as well be 'amazed' that Peter Garrett hasn't banned plastic bags, timber milling or coal exports.

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