Alternative Law Journal
On 1 November 2001, as 433 mainly Afghan asylum seekers from the MV Tampa were being forcibly removed from an Australian naval vessel and interned in a detention centre in Nauru, Prime Minister Howard defiantly declared that ‘we alone will decide who comes to this country and the circumstances in which they come’. Five days later, as US war planes detonated cluster bombs over Afghanistan, President Bush similarly (in)famously iterated that ‘you are either with us or you are against us’. Apart from their temporal and geographic connections, these declarations have something stark in common; they establish a dichotomy of ‘us’ and ‘them’, of ‘included’ and ‘excluded’, of ‘insiders’ and ‘outsiders’. It was a language re-deployed recently in Federal Parliament when, discussing a proposal to strip prisoners of the right to vote, Michael Keenan MP stated, ‘if you have wronged society in such a way that you are to be denied your freedom…it follows you should be denied your right to participate in the democratic process’.
Insiders and outsiders; this is the new socio-political currency.
All of the articles in this edition of the Alternative Law Journal set out to challenge this paradigm; to demonstrate the detriments and disadvantages associated with exclusion and the legal, social and moral imperatives of inclusion. It is a challenge which is well laid out by the international human rights framework which, to use the words of the UN Office of the High Commissioner for Human Rights, ‘underpinned by universally recognised moral values and reinforced by legal obligations’, aims at empowerment of the poor and disenfranchised.
Indigenous Australians, as a collective, endure some of the most disadvantaged and impoverished conditions in the developed world. The history and enduring legacies of colonialism, dispossession, child removal, assimilation and, most recently,
the abolition of the only national Indigenous representative body, have rendered Indigenous Australians outsiders in their own land. The article by Indigenous academic, Megan Davis, reflects on the need for a treaty between Indigenous and
non-Indigenous Australians, arguing that it would go some way towards advancing both practical and symbolic reconciliation. Ros Kidd’s article, which reflects on the practice and effect of stolen Indigenous wages, also proposes legal and social reforms aimed at Indigenous inclusion and empowerment.
In ‘A Charter of (Some) Rights … for Some?’, Melissa Castan and David Yarrow discuss the Victorian Charter of Human Rights and Responsibilities. While importantly and appropriately entrenching civil and political rights, the Charter does not include the right to self-determination thereby, according to Castan and Yarrow, undermining its value and utility to Indigenous Australians and, moreover, detracting from its democratic credentials, with the right to self-determination being central to ‘democratic inclusion and accountability’.
The Charter also fails to enshrine economic, social and cultural rights which, according to the UN Special Rapporteur on the Right to Health, Paul Hunt, in ‘Taking Economic, Social and Cultural Rights Seriously’, bucks against the global trend towards the legislative entrenchment and judicial recognition of such rights. Increasingly, Hunt says, domestic legislatures and courts are recognising that economic, social and cultural rights — such as the rights to adequate housing and health care — are as concrete and important as their civil and political cousins. Moreover, he says, the legislative entrenchment and justiciability of economic, social and cultural rights contributes to and reinforces the realisation of civil and political rights, such as the rights to freedom of expression and association. Indeed, if legitimate criticism of the Charter is to be made, it is that it is not too strong but too weak. As one submission by a homeless man to the independent inquiry into the need for a Charter put it, ‘a Charter must cover the right to proper housing, the right to proper health services, the right to work and the right to education, or it will just be icing without a cake’.
Along with Indigenous Australians, refugees and asylum-seekers are among the most disempowered and excluded peoples in Australia. This situation would have worsened if the federal government proceeded with the enactment of its odious Migration Amendment (Designated Unauthorised Arrivals) Bill 2006. Contrary to Australia’s fundamental human rights obligations, the Bill sought, in effect, to ‘excise the Australian mainland’. Not only would such people have been held in offshore detention centres; they would also not have access to legal assistance, to merits review or to judicial review. This proposal is discussed in detail by Amnesty International’s Graham Thom, while the human rights of refugees, particularly the right to permanent protection, are also the focus of Emily Hay and Susan Kneebone.
Of course, human rights protections are often largely illusory and ineffectual for ‘outsiders’ without adequate access to human rights legal assistance and advocacy services. The contributions by Simone Cusack and Cecilia Riebl, who discuss the role of amici curiae and interveners in the promotion of international human rights law in Australian courts, and Louis Schetzer, who discusses the socio-political history and future of community legal centres, are particularly significant in this regard.
These are just some of the important articles in this edition of the Alternative Law Journal. We hope that they will provide readers with the necessary inspiration, indignation and instruments to use their skills and expertise to make human rights real and relevant for those of us who are not ‘insiders’.
PHILIP LYNCH is the Director of the Human Rights Law Resource Centre.
PAULA O’BRIEN is the Executive Director of the Public Interest Law Clearing House (Vic).
BETH MIDGLEY is a lawyer with Blake Dawson Waldron in Melbourne.
EVE STAGOLL is the Manager of the Law Institute of Victoria Legal Assistance Scheme.