Children
in immigration detention: The Bakhtiyari family in the Family Court
By Adiva Sifris
The article is based on the decision in B and B and Minister for Immigration and Multicultural and Indigenous Affairs. It analyses the Family Court's welfare power and examines its sources.
Children in
immigration detention: The Bakhtiyari family in the High Court and beyond
By Adiva Sifris and Tania Penovic
On 29 April 2004, the High Court of Australia overturned on appeal the Full Family Court's decision that its welfare jurisdiction extended to ordering the release of children from immigration detention. This article explores the legal ramifications of the judgment in Minister of Immigration and Multicultural and Indigenous Affairs and B & Anor.
The separation
of powers: Lim and the 'voluntary' immigration detention of children
By Tania Penovic
This article considers whether the
provisions of the Migration Act 1958 (Cth) requiring detention of all
unlawful non-citizens may contravene the separation of powers enshrined in Australia's
Constitution insofar as they require the detention of children. In light
of the punitive effect of immigration detention as practised in Australia today,
it is argued that the detention regime violates the separation of powers with
respect to adults and children.
Immigration
detention vs imprisonment: Differences explored
By Matthew Groves
This article examines the laws governing both criminal imprisonment and immigration detention, and the principles that distinguish them. The first section explores the preliminary issue of why the Commonwealth does not use prisons, or at least places that are formally described as prisons, to hold people in immigration detention. The next sections review the legal meaning of a prison and an immigration detention centre. The following sections compare several of the basic features of imprisonment and immigration detention, such as the purpose, possible duration and conditions of each form of detention. It is suggested that there is little practical difference between many of the features of immigration detention and imprisonment and that those held in immigration detention are in many ways treated like prisoners even though they have neither been convicted of, nor charged with, a criminal offence.
A
last resort? Report of the national inquiry into children in immigration detention
By Sev Ozdowski, OAM
The Human Rights and Equal Opportunity Commission's National Inquiry into Children in Immigration Detention was established to examine whether the laws requiring the detention of children and the treatment of children in immigration detention met Australia's obligations under international law, especially the Convention on the Rights of the Child (CROC). This article briefly outlines the findings and recommendations of the report.
The
Prime Minister as puppet: Taking Howard to the High Court
By Nicole Rogers
The author examines a constitutional oddity, the common informer suit. This mechanism allows a member of the public the opportunity to challenge the right of a Member of Parliament to continue to sit in the event that he or she meets one of the grounds for disqualification in section 44 of the Australian Constitution. The author evaluates the use of the common informer suit as a means by which any person can mount a challenge in the High Court against the Prime Minister, John Howard. The relevant ground for disqualification is the second limb of section 44(i), which disqualifies Members of Parliament who are under any acknowledgment of allegiance to a foreign power.
Retrospective
criminal laws and Guantanamo Bay: Digging a deeper 'legal black hole'
By Michael Head
The continued detention of David Hicks and Mamdouh Habib, together with more than 600 others, in a United States military prison on Guantanamo Bay, Cuba is an affront to the basic democratic right of freedom from arbitrary imprisonment. Moreover, the willingness of the Australian Government, aided by Labor, to leave them in open-ended detention, by one means or another, is a warning that even the most fundamental legal rights are no longer safe from violation. The adoption of retroactive penal provisions, directly or indirectly via international law, as proposed by Labor, would compound the injustice and establish a precedent for the revival of methods of rule once regarded as tyrannical.
Immigration
detention: Pushing the boundaries
By Alex Reilly
The Brief examines the constitutional
limits on the power of the Executive to detain aliens in the decision of Al-Kateb
v Godwin & Ors [2004] HCA 37. After Al-Kateb, there would seem
to be no limits on the power of the Executive to detain aliens outside of a
judicial process of judgment and punishment. This would seem to be a significant
shift from the position in Chu Kheng Lim v Minster for Immigration, Local
Government and Ethnic Affairs (1992) 176 CLR 1. The article notes a change
in the High Court's descriptions of aliens and their rights, which might suggest
a heightened concern about the threat of invasion or of terrorism on our shores.
The article concludes that it is during such times of increased fear that we
rely on the vigilance of the courts to determine the limits of lawful executive
action.
Human rights:
The dilemma of Guantanamo Bay
By Tom Davis
The 'war on terror' has created rights predicaments beyond even those evidenced in 20th century guerilla warfare. This brief looks at the human rights issues raised by situation of David Hicks who is detained at Guantanamo Bay, Cuba awaiting his trial before a US military commission.
Asia-Pacific:
People of Chemor vs a rubber factory
By Theivanai Amarthalingam
This is a story of villagers from
a Chinese new village in the state of Perak, Malaysia who have been battling
long-term exposure to hydrogen sulphide emitted by a factory involved in the
manufacturing and processing of rubber since 1995. As a result of the exposure
to hydrogen sulphide, there were high incidences of nasal cancer, frequent flu
and cough, eye irritation, itchiness, headaches and depression amongst the villagers.
Armed with basic community organising skills and together with the help
of local non-governmental organisations, these villagers formed a committee
and took the factory and the state government to task. They employed every strategy
they knew to combat the problems they were facing. Although their battle was
never an easy one, they have finally succeeded in having the factory relocate
before the end of March 2005 and at the same time, the factory has agreed to
take extensive measures to abate the foul odour that has been plaguing their
lives for the past 10 years.
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