Tania Penovic

Boatloads of Incongruity: The Evolution of Australia's Offshore Processing Regime

Almost six years on from the introduction of the Pacific Solution, the commitment of Australias federal government to the regime of offshore processing of asylum seekers appears undiminished. The offshore processing regime has damaged Australias international standing and has cost its taxpayers hundreds of millions of dollars. But its highest cost has been in human terms. This article examines the evolution of Australias offshore processing regime with reference to its objectives, its consequences and its ramifications for Australias performance of its human rights obligations under international law.

Undermining Australia's International Standing: The Failure to Extend Human Rights Protections to Indigenous Peoples Affected by Australian Mining Companies’ Ventures Abroad

Standards of human rights are embedded within the statist system of public international law and predicated upon the protection of individuals from the very states that undertake responsibilities towards them. The limitations of this ‘vertical’ model are highlighted by the impact of Australian mining companies’ extraterritorial operations on indigenous peoples. This impact is used in this article as a lens through which I undertake an examination of states’ ability to shape the processes of international law to ensure that protection from abuse is not contingent upon the geographic location of the abuse or the juristic character of the perpetrator. After analysing the applicable framework of existing and emerging standards and the extent to which these standards have afforded protection to indigenous peoples, the article concludes that Australia has a duty to regulate the extraterritorial operations of its mining companies. Such a duty arises from four principal bases. First, the patterns of deprivation associated with mining activity have been addressed primarily through the application of ‘host’ states’ ‘horizontal’ duties to prevent abuses within their territorial boundaries. Yet host states’ ability and desire to regulate has been impaired by the imperative of securing foreign direct investment in a globalised marketplace. Second, the mining sectors bid for self-regulation requires human needs to compete with objectives of profit-generation. Third, soft law initiatives have not yet yielded an international mechanism for direct enforcement of human rights obligations on corporations. Fourth, standards have been developed which enable indigenous peoples to participate in decisions that affect their lives and preserve their relationship with traditional lands and territories. The acceptance and implementation of these standards creates conditions in which guarantees enshrined in universal human rights instruments, which Australia has ratified, may be realised. The good faith implementation of these universal guarantees requires Australia to exercise its regulatory power and thereby forestall catastrophic and preventable deprivations.

Labor's 'New Directions in Detention' Three Years On: Plus Ça Change

The failure of the government’s recent ‘Malaysia Solution’ has forced it to confront the reality of processing asylum seekers in Australia and the continuing crisis in immigration detention. As at 30 September 2011, there were 5597 people in immigration detention. With increased waiting times, overcrowding and concern about mental health services, there were 9157 incident reports provided to the Department of Immigration and Citizenship between 1 October 2009 and 30 June 2011. There have been numerous hunger strikes, acts of self harm and six suicides between August 2010 and October 2011.The crisis in the detention network stands in stark contrast with Labor’s 2007 election platform and policy unveiled in 2008. Introducing the current policy, then Immigration Minister Chris Evans sought to distance his government from its predecessor’s policies, declaring that ‘Labor rejects the notion that dehumanising and punishing unauthorised arrivals with long-term detention is an effective or civilised response’ and that the ‘Howard government’s punitive policies did much damage to those individuals detained and brought great shame on Australia’. Minister Evans released a set of values which promised to finally reverse the presumption of detention and adopt a risk-based approach whereby only those considered to represent a risk to the Australian community would remain in detention after the completion of screening. Australia’s immigration detention regime is the subject of a current federal government enquiry. This is not the first investigation into immigration detention. Thousands of pages of observations and recommendations have been issued by United Nations (‘UN’) bodies, human rights agencies and federal government committees. Yet the printed word has not translated readily into law reform. This article will examine how detention practice came to depart so dramatically from the government’s own policy values and consider the opportunity presented by its grudging retreat from offshore processing and the current enquiry.

Mental Harm as an Instrument of Public Policy

Since 1992, several thousand children and adults have been held in Australias immigration detention centres. The detention environment has created a quagmire of human tragedy. It has exacerbated pre-existing trauma and precipitated preventable mental illness. I will argue in this article that Australias treatment of vulnerable people who have sought its protection as refugees is contrary to the international prohibition on torture and other forms of cruel, inhuman or degrading treatment or punishment. I will then consider the extent to which Australian law has addressed the effect of immigration detention on mental health and comment on the ramifications of the policy.