Does Australia's treatment of non-citizens accord with its international human rights obligations? with specific reference to the treatment of on-shore refugees

The son of immigrants, I was motivated to write a paper addressing the issues of alienation and discrimination which confronts non-citizens upon arriving in Australia. Apart from descendants of Australia's indigenous population, the common bond shared by all citizens and permanent residents of Australia is that they are either themselves immigrants or are descended from immigrants. In this paper I will look at whether Australia's law and practice meets its international human rights treaty and convention obligations vis-a-vis non-citizens. To investigate this issue I trace the history of immigration to Australia and look at the political policies which influenced the treatment of non-citizens from 1788 to present times. In 1958 when my parents stepped upon Australian soil as displaced persons, Australia was a very different place from Australia in the 1990s. At that time Australia was still firmly under the influence of the 'White Australia Policy' which openly encouraged discrimination against non-anglo saxons. Since those times Australia has advanced to become one of the most culturally diverse nations in the world where multiculturalism is encouraged and a non-discriminatory immigration program is supported by both Australia's major political parties. However, notwithstanding the great social advances made in Australia in recent decades the traditional legal sources of law, namely, judicial pronouncements, statutes and the Commonwealth Constitution have not kept pace and it is my submission that Australia's body of law inadequately protects the rights of non-citizens when compared to Australia's international human rights convention and treaty obligations. This paper will consider these major sources of law and will investigate how they have been used in the context of the protection of the rights of non-citizens. It will be asserted that the weaknesses exposed in the Australian legal system can be improved by the adoption of a Bill of Rights1 which encompasses Australia's international human rights treaty and convention obligations. It is envisaged that a Bill of Rights would provide a framework applicable at the State, Territory and Federal levels within which issues pertaining to non-citizens could be resolved. The direction of this thesis owes much to the writings, advice and supervision of Dr. Imtiaz Omar who was always available to discuss the progress of this work. Dr. Omar is a passionate advocate of human rights and has been a tremendous inspiration to me throughout my writing. I owe a debt of thanks to the partners of Coulter Burke who with good nature ignored the sprawl of books and papers on the boardroom table, often for days at a time, thus enabling me to return to my writing from time to time as my inspirational juices ebbed and waned. Thanks also go to my typists Julie Pante, Vesna Dudas and Irene Padula who worked after hours and on weekends always without complaint, on the various versions of this thesis. My final acknowledgement goes to my wife Paula who during the years that I was working on this thesis encouraged me during my darker moments and listened to all my frustrations yet never doubted that I would one day complete the task successfully. I wish to thank her wholeheartedly for her motivation and belief in my abilities. The law relied upon in the thesis is as at the 30th June, 1998. Bill or Charter of Rights 'are taken to be enactments which systematically declare certain fundamental rights and freedoms and require that they be respected'. See Evans, G. 'Prospect and Problems for an Australian Bill of Rights' (1970) 3 Australian Year Book of International Law 1 at 16. Some such notable exception is the New Zealand Bill of Rights Act 1990, contained in an ordinary statute.

Towards a conceptual framework for citizenship

This chapter aims to provide a conceptual framework for discussing citizenship. It
offers a brief account of various dimensions of citizenship that may be used as a
guide to understanding the evolution of Western ideas and forms of citizenship, as
well as contemporary problems with them. The chapter considers citizenship as a
legal status, as an administrative category, as a political practice and as an ideal to
be attained. 1 It also considers the sites or domains in which citizenship is or ought
to be practised. Each of these dimensions raises questions that citizens, non-citizens
and governments have asked over the centuries and that still provoke debate.2
Nonetheless, the chapter makes no claim to be comprehensive and, for the sake of
brevity, its generalizations may not be sufficiently sensitive to the many variations
and peculiarities of Western concepts and practices of citizenship.

Zonal banning and public order in urban Australia

In recent years, Australian governments of various ideological persuasions at local, state and territory and federal levels have introduced a range of zonal governing techniques to manage the flow of people in urban spaces. Zonal governance involves the identification and formal declaration of a specific urban geographic region to enable police and security personnel to deploy special powers and allied forms of surveillance technologies as a supplement to their conventional public order maintenance functions.

Despite the impetus towards open flows or movement within sovereign territories or larger territorial groupings, such as the European Union, considerable governmental effort has been directed towards the use of new forms of criminal law to re-territorialize urban space through new administrative, property law and regulatory measures. These low-level spatial demarcations introduce various supplementary police powers and discretionary procedures that enhance surveillance within a declared area to increase the level of contemporary urban security. Of particular concern is the legal right to ban or exclude “undesirable” individuals and groups from entering or using certain designated urban zones, to prevent antisocial or violent behavior usually associated with alcohol consumption.

To date, most discussion of the impact of banning and related surveillance measures focuses on illegal migration through ports of entry into sovereign nations and the commensurate burdens this creates for both citizens and non-citizens to authenticate their movements at national geographic borders. This logic is permeating more localized forms of regulation adopted by Australian local and mid-tier state and territory governments to control the movement of people in and out of major event sites and in the urban night-time economy.

A survey of recent reforms in the state of Victoria reveals how this new logic of mass-surveillance aims to promote greater levels of urban security while reshaping the conventional order maintenance functions of both the public and private police. This chapter describes these procedures and their impact in sanctioning the efficient screening of people to promote order in specific zones within the contemporary Australian urban environment, at the expense of more progressive and inclusive crime prevention initiatives. We focus on two exemplars of the intensification of surveillance through zonal governance techniques: ‘major events’ and ‘designated alcohol zones’.

What is so ‘primitive’ about ‘primitive democracy’? Comparing the ancient Middle East and classical Athens

This chapter seeks to delve deeper into the ancient history of democracy than is normally permitted, back to a time preceding the developments of classical Athens, when the earliest signs of organized society and complex governmental systems emerged across the ancient Middle East. It then seeks to compare and contrast these ancient Middle Eastern examples with those of classical Athens and to offer new insights into, and questions about, the nature and history of democracy. Building on some recent work (Fleming, 2004; Isakhan, 2007a; Keane, 2009: 78–155), this chapter also hopes to move the discussion beyond the phrase usually associated with ancient Middle Eastern democracies, that of ‘primitive democracy’. This chapter also argues that, while the Middle Eastern experiments were less rigid and formalized, they were in no measurable sense more ‘primitive’ than the later example offered by classical Athens. However, this essay also cautiously notes that, while not all of the elements which made ancient Athens significant occurred in the same way and at the same time in the ancient Middle East, all of them did exist at varying times and in varying guises across these earlier civilizations. To demonstrate this thesis, the remainder of the chapter utilizes several of the key criteria by which we commonly measure Athenian democracy – the functioning of its assembly, the mechanisms of justice and of the law, the varying voting and elective procedures, the rights and freedoms of the citizens, and the systematic exclusion of ‘non-citizens’ – and discusses precedents and parallels drawn from the extant evidence concerning the ancient Middle East.

Surveillance, criminal law and sovereighty

Seeking better understanding of the relationship between criminal law and surveillance demands investigating the evolving nature of sovereignty in an era of transnational digital information flows. While territorial boundaries determine the limits of police investigative and surveillance powers under the criminal law, several recent United States (US) examples demonstrate how new forms of extraterritorial surveillance that enable police to access online communications by foreign citizens and digital information stored in offshore locations are authorized by US courts. This discussion outlines how the processes of mutual legal assistance that ordinarily govern the search, seizure and transfer of digital evidence from one jurisdiction to another are increasingly considered to undermine police efficiency, even though they protect the due process rights afforded to crime suspects under established principles of sovereignty (Palmer and Warren 2013).

Changing attitudes towards immigration and democracy in South Korea

If democracy belongs to 'the people', an important test of any democratic society is its treatment of non-citizens, new citizens and others who do not enjoy full civic rights. At times of economic and social upheaval, even societies where democracy is well established may witness anti-immigrant sentiment. This paper analyses how newcomers in South Korea are perceived as workers, neighbours and citizens. These modes of integration imply different degrees of commitment on the part of the host society to the acceptance of new citizens or residents, and thus to democracy. The paper finds that there is some overlap between public opinion and official immigration policy, in that both exhibit a ‘hierarchy of citizenship’, but public opinion is not monolithic. South Koreans prefer some immigrants over others, but seem open to the notion that the boundaries of the political community can and do change over time.

Enlistment and non-enlistment in wartime Australia : responses to the 1916 call to arms appeal

This article examines men’s responses to the 1916 ‘Call to Arms’ appeal, in which Australia’s federal government questioned military-aged male citizens on their willingness to enlist voluntarily in the armed forces for service at the front. It argues that the appeal illuminated men’s difficult negotiation of choice, in which they weighed their personal sense of obligation to the state at war, to their families, and to themselves. It shows how men not only confronted their decision, but measured their responsibilities against others’, producing a subjective order of sacrifice that paralysed recruiting. In the absence of conscription, that private decision-making was critical to the nature of Australia’s commitment to the war, as men assessed and re-assessed the limits of obligation for themselves.

Are happier people better citizens?

This paper offers new findings which support the hypothesis that a causal link from happiness to social capital might exist. The paper exploits the very long German socio-economic panel of around 15000 people. Using the prospective study methodology, it finds that happier people contribute more to social capital. Both parametric and nonparametric results suggest that there exists an inverted-U shape relationship between happiness to social capital. Moreover, optimism appears to be an important channel through which happiness is linked to social capital. The paper also presents residual happiness as a measure of optimism which might be a valuable tool for empirical researchers. The results are robust to inclusion of various controls including the initial level of social capital, random sampling, non-linearity, different measures of social capital, and estimation techniques.

Consumer-citizens of China : the role of foreign brands in the imagined future China

This book presents a comprehensive examination of Chinese consumer behaviour and challenges the previously dichotomous interpretation of the consumption of Western and non-Western brands in China.

What’s in a name? The personal and political meanings of 'LGBT' for non-heterosexual and transgender youth in Kyrgyzstan

In this article, we focus on the ways in which non-heterosexual and transgender youth involved with the non-governmental organization ‘Labrys’ in Kyrgyzstan have begun to demand the protection of their basic civil and human rights on the basis of self-identification as ‘LGBT’. This acronym, which stands for Lesbian, Gay, Bisexual and Transgender, is relatively new to Kyrgyzstan and other post-Soviet states, and represents a change in the terms used by non-heterosexual and transgender people to describe themselves. We frame our discussion using the concepts of sexual citizenship, private/public divides and stigma and base our discussion on debates amongst the staff and community of Labrys about the purpose and scope of the organization. Centrally, we suggest that the strategic use of ‘LGBT’ as a public and politicized identity represents a new, pro-active form of stigma management. By employing this strategy, young LGBT people become ‘would-be’ sexual citizens and challenge traditional societal norms that seek to keep discussion of sex and sexuality in the private sphere and restrict rights to heterosexual, cisgender citizens.