Current human rights issues

Asylum seekers

  • Al-Kateb v Godwin 2004 (indefinite detention)
  • M70 v Immigration Minister 2011 (Malaysian solution)


  • Australia is party to, and has ratified, the Convention Relating to the Status of Refugees 1951
  • Ratified in the Migration Act 1958
  • Asylum seekers face mandatory detention to process their claims, which, according to the UN, may hinge upon arbitrary detention in some circumstances and hence infringing upon human rights
  • Also, offshore processing may not allow Australia to meet its HR obligations
  • There is a presumption towards detention


  • Essentially – a conflict between rights to security and rights to liberty (positive and negative rights)

Example: Haneef v Minister for Immigration 2004 (example of wrongful imprisonment by AFP)

Anti-Terrorism Act 2005

  • Gives the gov’t power to imprison people indefinitely without being charged
  • Removes the presumption in favour of bail
  • Allows AFP to detain people for up to 14 days, without a warrant from the court etc.
  • Allows ASIO to question people in secret
  • Updated sedition offences
  • I.e. removes presumption of innocence, as well as infringes on separation of powers

Note the National Security Legislation Amendment Bill 2014 which provides for immunity of ASIO etc. from liability (carrying out a criminal offence for the purposes of national security) BUT not when it includes death, torture, sexual abuse.




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