QUESTION
DESCRIPTOR
This is a foundation unit for law students and for students studying in the justice professions. This unit of study involves three related areas – understanding legal discourse, application of legal research skills and developing legal literacy. Each focus area is delivered and assessed by a different strategy.
Like any discipline, law uses is own language and media forms and mastering these is a lifelong task. Legal authorities must be recorded in a certain official format and discussion about these rules systems takes certain shape, using conventional modes of expression. Law is fundamentally concerned with written text and this unit introduces a variety of genres within legal texts and encourages students to develop critical legal reading and comprehension strategies.
LEARNING OUTCOMES
On successful completion of this unit, students should be able to:
1. Problem solving and professional practice
Read and understand course materials as written in this outline as a contract between university and learner.
Understand research as a process of problem solving and an ongoing part of professional development
Understand the law reform process and apply its methods
2. Information literacy
Locate and critically evaluate the impact of legal authorities – case law, legislation and regulatory instruments.
Demonstrate a broad understanding of humanities and social science research methods and be able to contextualise and critically examine legal information
Show ability to use online databases, evaluate the credibility of online sources and use online discussion services.
3. Effective communication
Express opinions in an academic manner supported by research evidence
Develop a student career portfolio
Show development in legal literacy skills
4. Autonomous and collaborative work
Be able to work independently on workshop tasks and support peers in a tutorial environment.
Autonomously perform basic field research and observation of court process
Demonstrate time management skills
5. Respect for social and cultural diversity
Ability to see the discourse of law as one of many approaches to social problems and contextualise legal knowledge in relation to other academic discourses and from the perspective of community members.
Use professional, non-discriminatory language.
UNIT CONTENT
Before a lawyer can understand a legal text, they must first be able to find that text. This unit introduces the various methods of legal research and of social science research for legal professionals. These technical skills involve online research, locating both electronic and print materials, assessing the merits and referencing.
In this unit students will learn research skills through a series of legal research workshops conducted in class and completed in the student’s own study time. Understanding of legal discourse and application of legal research skills are assessed through a research folio worth a total of 70% for this unit.
Success as a legal professional involves more that just finding and understanding legal materials. A professional must be able to engage in legal discourse, to “talk the talk and walk the walk” of law. A legally literate professional is comfortable with legal culture (but remains critical of it) speaks confidently in legal discourse and is competent in ruleplay – managing, using and analysing rules systems.
This legal literacy, or a ‘feel for the game’ of law can only be expressed through communication with others. In this subject the tutorial format is designed to enhance understanding of legal literacies. Development of legal literacy is assessed through tutorials in this unit, worth a total of 30%.
LEARNING IN THE WORK PLACE
The assessment in this Unit of Study does not relate to learning in the workplace.
TEACHING & LEARNING STRATEGIES
This Unit of Study will be delivered as a 2 hour lecture and 1 hour tutorial per week. Lectures will cover the elements of Legal Discourse and Legal Research. Tutorials will involve active participation by students in small team activities, supervised by a tutor. It is expected that you will spend at least ten hours per week studying this Unit of Study (including lecture and tutorial time). This time should be made up of reading, research, working on exercises and group work. In periods where you need to complete assignments or prepare for tests, the workload may be greater.
While all students learn in different ways and respond to different modes of delivery, the best way to learn is by doing. This is a skills-based unit which focuses on application rather than content and therefore learning by participating in group work, self directed study and online assessment. As a skills unit, this unit involves a larger number of small assessment items than you might usually expect.
Learning is student centred which means that you will be expected to keep track of your assessment commitments and read all set materials. Lectures and tutorials are provided to assist the student learner but these are support for student learning, not a substitute. You will be expected to prepare for classes (particularly tutorials) and to be self-motivated to study outside of contact hours.
GRADUATE CAPABILITIES
Victoria University’s Graduate Capabilities are generic skills that all students should possess at graduation. These skills are in addition to the specific knowledge and skills associated with the discipline area of students’ degrees. Graduate Capabilities are divided into five levels (for undergraduates) and will be achieved progressively with increasing levels of sophistication. A full description of the Graduate Capabilities can be found in the VU Graduate Capabilities policy pages 7-8.
This unit of study contributes to development of these Graduate Capabilities in a number of ways, with emphasis on information literacy and effective communication. Table 1 offers examples of how the teaching and learning activity(ies) in this unit and the assessment tasks correspond to each Graduate Capability.
The shaded boxes are capabilities on which this unit of study particularly focuses.
Table 1: Unit of Study Graduate Capabilities
Graduate Capability Level Description of Graduate Capability T & L Activity and Assessment
Problem solve in a range of settings P3 Identify and solve problems through the application of broad knowledge and skills Participation in lecture and tutorial program
Completion of Reflective Tutorial Paper and Research Folio
Work in an environmentally, socially and culturally responsible manner S3 Respond to diverse work, community and learning situations in an environmentally, socially and culturally responsible manner Participation in lecture and tutorial program
Completion of Reflective Tutorial Paper and Research Folio
Work both autonomously and collaboratively W3 Work individually, and/or with others, as both a team member and group leader, to complete tasks and evaluate own and others’ performance using given parameters Participation in lecture and tutorial program
Completion of Reflective Tutorial Paper and Research Folio
Locate, critically evaluate, manage and use written, numerical and electronic information I3 Find, organise, evaluate and synthesise information on a broad range of topics for defined purposes Participation in lecture and tutorial program
Completion of Reflective Tutorial Paper and Research Folio
Communicate in a variety of contexts and modes C3 Communicate with others, using speech and writing, on a broad range of topics using appropriate language and demonstrating increasing control over key genres/text types. Participation in lecture and tutorial program
Completion of Reflective Tutorial Paper and Research Folio
GRADE SETS
There are five grade sets, namely fail (N: 0-49%), pass (P: 50-59%), credit (C: 60-69%), distinction (D: 70-79%), and high distinction (HD: 80-100%).
ASSESSMENT
The assessment scheme has components as listed below:
Assessment Weight Learning Outcome0 Format1 LiWC2 Graduate Capabilities3 ePortfolio4 Due Date
1. Reflective Tutorial Paper 30% 1-5 500-1000 word Reflective Paper n/a 1-5 n/a As assigned by tutor
2. Research Folio 70% 1-5 4000 word Research Folio comprising 9 folios n/a 1-5 n/a 24 May 2012
0 e.g. insert the related Learning outcome no. from pages 2-3
1 e.g. MCT and/or T/F; Short answer; Essay; Other
2 e.g. Simulated Environment; Project (VU); Project (Partner); Co-op/work reflection; n/a
3 e.g. insert Graduate Capability from pages 4-5
4 e.g. upload; n/a
ASSESSMENT TASKS
Under VU policy, we use criterion referenced assessment. This means that clear criteria are established for each grade level for each assessment item. To earn a particular grade, you must satisfy ALL criteria for that level. For example, if your work has high quality research and analysis, but your presentation is only average, then you earn an average grade over all. In order to earn the higher grades you must satisfy the criteria for all the lower grades, plus the additional criteria for the higher grade.
Assessment 1 – Reflective Tutorial Paper (30%) – Learning outcomes 1-5
Each week you are expected to participate in scheduled tutorials. You will be expected to write a 500-1000 word reflective paper discussing what you have learnt from one of your tutorials (as assigned by your tutor) which is due the week following the relevant tutorial.
Reflective Tutorial Paper Criteria
Pass 15/30
Legal Discourse An understanding of key terms and concepts.
An ability to describe and evaluate legal institutions and materials.
Legal Research Write an accurate report of a designated tutorial session.
Ability to read and understand task parameters.
Professionalism & Legal Literacies Use appropriate, professional language.
Demonstrate an ability to reflect on experience.
Ability to meet deadlines.
Credit 18/30
Legal Discourse An ability to critically describe legal materials and concepts and analyse their role in society.
Legal Research Show an understanding of group dynamics, including cultural awareness and sensitivity to the different perspectives of others.
Critique their own decisions – group and personal and reflect on how these shaped outcomes
Professionalism & Legal Literacies Demonstrate an ability to contextualise individual experience within a learning context and show how they have learnt from that experience.
Distinction 21/30
Legal Discourse An ability to draw critical interdisciplinary connections and to compare legal theories and methods to different social knowledges.
Legal Research Reflect on alternatives furnished by the group and explain why the final path was chosen.
Professionalism & Legal Literacies Reflect critically on mistakes or errors made.
Demonstrate an ethical accountability for group decision making.
High Distinction 24/30
Legal Discourse Demonstrate an ability to connect individual and group experience to a disciplinary context – be it law or another justice discipline.
Legal Research Be critical of the parameters of the task and understand how the nature of the task produced the outcome of the group.
Professionalism & Legal Literacies Reflection on professional skills, ability to connect results to future development along with motivation to excel.
Assessment 2 – Research Folio (70%) – Learning outcomes 1-5
4000 words, plus 10% maximum. Please note that penalties will apply for research folios that exceed the word limit.
Legal Research Methods focuses on developing practical research skills. To this end you will participate in a number of research workshops which will assist you in building a research folio on a topic allocated to you. Topics will be allocated according to the last digit of your student ID. Please go to Blackboard for a list of folio topics in a document of the same name.
Reports on these workshops (approx 1-2 pages) must be compiled into a final Research Folio, which is submitted at the end of the semester.
N.B. While only the final folio is submitted and graded, you will need to work on each of the components and you should aim to have a first draft by the dates set out in the table below. Each component requires its own separate time so that you may give it the focus it deserves. Time management is an important skill that you need to develop as students. Study time is self-directed, but you should be aware that markers know a rushed assignment when they see one. You must take these dates seriously as an aspect of your professional development, but please be aware that you do not need to submit folios on a weekly basis. Your final research folio will include the following:
# Research Workshop Work on Report
1 Mind map of topic and reflective research skills audit Week 3
2 Professional CV with reflection on skills+ / Time and resources management plan Week 4
3 Exercise on Statutory Interpretation Week 5
4 Literature review including at least 5 academic sources, properly referenced. Include at least 5 relevant quotes with analysis of the quotes Week 6
5 Analysis of legal authorities Week 7
6 Report on a court visit# Week 8
7 An analysis of one piece of good academic writing from your literature review Week 9
8 A one page paper. This must be properly referenced via endnotes which do not count toward the one page limit Week 10
9 Final report – compilation of parts 1 to 8 with a reflective summary* Week 12
*Your final folio will also require you include a reflective summary of approximately 500 words which may be in one section or distributed throughout your folio. As the folios are submitted only once in Week 12, you should revise all folios carefully leading up to submission. The reflective summary is included in the final word count.
# You are required to visit a court and observe proceedings in Week 6 of the semester at a time that suits you. Please make sure you have read Chapter 7 ofThe Law Workbook beforehand. Refer to p. 158 of this book for details of the nature of the court report which you should aim to complete by week 8.
+ Week 3 will include a 45 minute presentation from Student Careers Services on preparing a Professional CV.
Research Folio Criteria
Pass 35/70
Legal Discourse The folio demonstrates a solid understanding of key legal concepts, institutional structures and jurisdiction.
An ability to evaluate the role of precedent and statute in understanding law.
Academic language and concepts are used appropriately.
Legal Research An ability to use legal and other academic resources including finding cases, legislation, use legal encyclopaedias.
An understanding of the requirements of academic originality including referencing and an ability to write original analysis. Preparation, patience and a capacity to read and comprehend task parameters.
Professionalism & Legal Literacies Ability to plan, time and complete the bulk of work to deadlines.
Describe your own learning process and to reflect on process and learn from both successes and mistakes. Presentation in an appropriate academic style.
Credit 42/70
Legal Discourse A capacity to draw on experience across the law course and to draw on some interdisciplinary analysis. Synthesis of critical analysis from different sources and ability to critically evaluate those sources.
Legal Research A technical understanding of the connections between legal authorities and the ebb and flow of legal discourse development. Problem solving skills, including an ability to map out and evaluate alternative options. A high level of information literacy.
Professionalism & Legal Literacies Ability to complete all work to deadlines. Reflection on own skills and ability to set agenda for improvement. Presentation in a professional style, only minor errors permitted. Understanding ethical issues for researchers.
Distinction 49/70
Legal Discourse Ability to draw connections across bodies of law, demonstrate understanding of how different bodies of law work together across jurisdictions and within a single legal system.
Connecting research to theoretical concepts such as rights, sovereignty and rule of law.
Legal Research Demonstrate critical information literacy, including an understanding of the gaps in authority and discourse. Balancing alternatives and understanding the concept of readership and various readers’ need for information and recommendations.
Professionalism & Legal Literacies Reflection on career and balance the different requirements of education and professional development. Understanding the ethics of public sphere lawyering and accountability. High -level presentation, no errors.
SOLUTION
Introduction:
We see Australia has often been associated with accused violation of refugee laws and thus resulting in rage of International community. It has always been accused of having very harsh laws regarding refugees and violation of international principles of human rights towards refugees.
Refugee rights are recognized all over the world and United Nations has formed a convention specifically to recognize the right of refugees and it has been amended only once which was set out in the 1967 protocol for a positive right granted to refugees the amendment was effected to remove territorial boundary on the refugees.
Australia has been a signatory to the 1951 convention as well as many other international laws relating to the status of the refugees. It is always been a point of debate in Australia relating to the treatment of refugees. Australia has always tried to justify its stand towards the treatment of refugees and following of the international conventions towards refugees.
Due to the some of the reasons Australia has always been accused of mistreating the refugees and breach of international conventions. Thus the paper explains in the light of international law how Australia has justified its stand towards the treatment of Refugees.
International Law Obligations of Australia towards Refugees:
To understand the topic it is very fundamental to understand the concept of refugee and who are qualified for the protection as refugees recognized by the international communities. As we see in the wake of 2nd world war the United Nations passed the convention for recognizing the rights of refugees due to heavy infiltration of the people from their own motherland and seeking mercy in other countries due to their inability to return to their own land.
Thus under that convention refugee is defined as “A refugee, is someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion” ( Article I, United Nation International Convention on Refugees, 1951).
Now as we see Australia is signatory of the convention thus accordingly it is mandated by the convention and bound to follow its rules. Australia thus reiterates to follow the obligations according to the convention towards the refugees. As a party to the convention it has to treat the refugees according to the rules of the convention irrespective of their allowance in the country that is through visa. Moreover as per the convention it is obliged not to send a refugee back home when his life is under threat. The convention also specifies issue of travel documents lawfully stating refugees unless there are compelling reasons of national security or public order for not doing so.
Apart from the convention Australia has other obligations towards the refugees under various heads of International Humanitarian Law being a signatory to these international laws. Now we see these include other agreements on persecution also which include 1948 Universal Declaration of Human Rights (UDHR), the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1989 Convention on the Rights of the Child (CRC). Under the UDR and CAT Australia is obligated to protect the rights of the asylum seekers and not to send them to the country where they are feared of being tortured.( March 2009, Australia’s Obligation Towards Refugees and Asylum Seekers).
Under the wake of these international law and conventions Australia is obligated to follow a uniform policy followed by the international community towards the refugees. But it has often been criticized for not following of the international law barriers that govern the rights and privileges of refugees.
Refugee Law In Australia and criticism:
Australia has a very specific and clear law towards the refugees which has often being criticized for being a harsh law. As the law seeks to detain the asylum seeker until they exhaust all the remedies regarding denial of their refugee status. For this exercise of detention special detention centers are there to hold up the refugee which is often subjected to criticism by the international community.
As we see the international law is very clear upon the rights of the refugees and seeks complete freedom for them and allows them to live in the country of their choice but the laws in Australia comes in direct conflicts with the international law which seeks to detain refugees which is not allowed in the case.
These detention centers are often compared to the concentration camps and people don’t even have the civic amenities and they live in unlivable and inhuman conditions. Thus it violates the conventions and Australia has often been criticized by many countries and international organizations regarding the detention camps.
As a signatory to these international conventions Australia is bound to follow the rules and regulations prescribe under it. But however in the year 2001 the parliament passed legislation narrowing down the meaning of persecution (Migration Legislation Amendment Act (No. 6) 2001 (Cth), section 5). It clearly specified the meaning of persecution in the convention does not apply unless the reason of persecution is a significant one which discriminates the person and serious harm can be caused upon him.
As we see implementation of these international laws are difficult in Australia as Australian law only allows enforcement of local laws in their courts (March 2009, Australia’s Obligation towards Refugees and Asylum Seekers). Thus we see that it is only the domestic law which has to be engrafted as per the conventions and the law in the country has to framed accordingly. As there is no definition of persecution is expressly stated in the UN convention it is open to interpretation by the countries. Thus as the basic legality goes Australia has done an act which legally could not have breached the international laws but it is often criticized because of giving a restrictive meaning to the term persecution which has denied asylum to many genuine asylum seekers.
Moreover recently Australia has passed some amendments which limit the rights of refugees making right of asylum very difficult under the act. Also under the same law it limits the rights of asylum seekers to access the courts as it limits the rights with regard to administrative decisions regarding grant of asylum.
Under the legislation Australia has also amended the meaning of persecution which has been amended to include serious harm, reason for persecution and discriminatory conduct. The judicial opinion has tried to clear the ambiguity on the meaning of persecution. As we have seen in the case of “Applicant A” & Anor v Minister for Immigration and Ethnic Affairs & Anor[ [1997] 190 CLR 225] where it was held ‘Persecution for a Convention reason may take an infinite variety of forms from death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society.’
As we have also seen in the case of Minister for Immigration and Multicultural Affairs v Khawar [ [2002] HCA 14 [108]] where it was held that a clear dictionary meaning of persecution cannot be taken in a strict sense as it has a different understanding as per its appearance in an international treaty. The word should be interpreted and understood as in the context it is given in the text of an international treaty.
Moreover the law is also divided between the exact interpretations on serious harm as the explanatory memorandum to the new law explains that the mental harm should not be excluded from the meaning of serious harm in determining the contents of persecution. As we see that there is a positive thinking in inclusion of mental harm in the exact notion of serious harm is indeed a welcome step by the new law to include all those individuals who have been deprived of asylum it has often been criticized but if we look at it carefully it is specifically structured to increase the class of people demanding the relief of asylum as indeed they can get serious harm if denied.
Pacific Solution:
As we see Australia has clearly defined the law by way of Pacific solution which involves treaties of government of Nauru and New Zealand for those countries to accept asylum seekers and determine whether they are entitled to asylum in Australia.
By this agreement Australia clearly created excision zone within the Migration Act and prohibited certain territories in that and thus limited the rights of people demanding asylum from those areas and also keeping a check on the arrivals by keeping the rights within them to move them from that part to any other country where their rights of asylum may be decided. As we see by this Australia has ensured that the rights of people who are not even considered for asylum in the country get the asylum in a safe place as it is clearly defined legislation which always reigns supreme over the international law as it has a binding effect to regulate the laws that they have defined excision zones thus it is fully within the ambit of the country to define and limit its obligations towards any part of its territory and it cannot be considered any breach at all.
Thus by way of Pacific Solution Australia has clearly defined its law and it has taken care of all the international obligations within its ambit while framing it. It has not violated any international law as it has clearly defined rights of a sovereign under international law which gives it power and authority to exercise it in a manner it likes which is not arbitrary as it is not which can be analysed from the implications of the solution.
Australia’s fulfillment of International Law Commitments:
As we see that the convention does not expressly provide for the meaning of persecution but taking into light the international law in order Australian law’s definition of persecution is clearly explained in the explanatory note along with the definition which clearly envisages the interpretation of serious harm and specifies that mental harm is included and examples are set out which makes the definition very clear and in line with the international regulations.
Now we see differential treatment is also one of the components often critics site as Australia has differential treatment towards refugees which is not allowed under the convention. But however if take a view carefully we see that Australia’s refugee program is divided in offshore and onshore component and as a sovereign Australia has powers to make laws regarding the divided components as it has specifically done and allowed the offshore components to be granted visa without any problem as they have followed all the legal requirements and should not be denied visa and although criticized Australia has very specifically drafted legislation for the onshore asylum seekers and made specific provisions of protection visas under their law thus taking into account the concern of onshore seekers it in no way can be described as discriminatory as the specific law is divided and as per the convention visa is being granted to both the group of seekers but only the process is different which is always open for a sovereign country to decide as the convention does not specify any process.
Australia has always looked at developing this area as it has always been criticized upon the same thus it has always taken special emphasis upon this area of law so that it fulfills the obligations under International law. As we see under the laws of the land individual is prohibited from asking for an asylum if he has already been included by his family which had seek asylum for the whole family. This provision outlines the vision of the legislators as it has specifically ruled out possibility of forged asylum seekers. It is a very intelligent legislation drafted in vision with the security and safety of the country which does not look discriminatory in any sense.
As Australia have changed its migration laws and provided for protection visas since 2001 but they regulate this on time to time basis with the refugees and gives temporary visas. Provision was very open to criticism and was often criticized because of the ground of discriminatory treatment but as we see the asylum seekers are all outside resident and it is very critical to examine their relevancy thus this check is done to serve the national security and in no way could be called discriminatory.
Moreover we see that the laws of Australia allows the asylum seekers who hold a protection visa to obtain the benefits of health rights, have right to work, they are eligible for rent Assistance, Family Tax Benefit, Child Care Benefit, Double Orphan Pension, Maternity Allowance and Maternity Immunization Allowance. (Any Special Benefit entitlement is stringently means-tested and is reviewed every 13 weeks). Apart from all these benefits they are also allowed to torture and trauma counseling and have access to all health and Medicare benefits. Thus by these provisions it becomes abruptly clear that the baseless allegation of discrimination as advocated by many critics find no substance it is although true that the Migration law in Australia divides itself into two programs comprising of offshore and onshore program for asylum seekers but by the virtue of the provisions of the protection visa it is always ensured that the asylum seekers do lead a very normal life free form any fear.
The law seeks to address the rights of asylum seekers putting them with the residents of the country. As by these provisions the asylum seekers gets most of the rights and benefits as a normal citizen of Australia would get thus there is no trace of discrimination and these provisions are framed after taking into account the international treaty obligation that Australia is committed to fulfill as a signatory to those treaties.
Also there are provisions in the Australian law that specifically states about family claim of asylum. In that case Australia gives the permission for the whole family to seek asylum if even one person has threat of persecution. It has made specific process for filling of the asylum. The laws specifically states that the person of the family who has the threat of persecution can only apply for the protection visa and if gets approved then the whole family gets the protection under that visa. The law is also specifically clear upon the family application that if one member of the family has applied for a family protection visa any member of that family cannot individually apply for any other protection visa thus removing ambiguities and overlapping in the applications. Thus these enabling provisions are always been made taking into account the rights of refugees under the international law.
By these provisions it is ensured that if there is one member in fear of life and property he is not alone in an alien country rather he gets the support of the family and the family is also not harassed in the country where there is fear of life. Thus it is a very progressive step towards fulfilling the obligations under various treaties as it seeks to protect not only the asylum seeker but also his family thus reducing the risk of any harm which can be caused to him or his family. Thus by way of this Australia has tried to take care of the situation of ethnic protection of groups preventing the fear of crimes related to genocide.
Also if any person is granted a protection visa individually the law specifically makes it clear that if it is not a family application then it is only that person whose application is allowed is allowed to stay in the country and if his parents want to come and stay it would be upon them to apply for fresh application of protection visa which is not prohibited under any law of Australia.
Also as per the migration act some countries are declared as safe third countries as per the act and people seeking asylum does not need to apply for protection visa if they are from those countries. Moreover it is also important to know that a safe third country is decided in consultation with the UNHCR. The process followed to determine the safe third country is first it is seen that if the person who has stayed in the safe third country for a period of more than 7 days then under the laws of Migration he cannot demand a temporary protection visa in Australia. As we see the implication of these provisions the third country is decided in consultation with the UNHCR so when the person is safe in a third country automatically it ia implied that the person does not need an asylum protection in Australia thus this is in way very just and natural provision for curbing unnecessary demands for asylum which would sometimes act against the country giving the asylums as it has also the chance that dangerous criminals could be harbored which could prove to be a threat to the sovereignty of the country. Moreover to address the applications of genuine persons who are indeed in the need of asylum then the provisions of law allow the minister to use his discretion to allow the application of such person.
Moreover Australia has also created provisions of persons who intentionally act in such a way that he has to flee his country and demand asylum. Thus Australia had made provisions in law not to entertain such applications thus before considering such applications they enquire about the conduct of the person for which he is demanding the asylum. By inserting these type of provisions Australia has ensured that only genuine persons seek the cause of asylum as the basic purpose of asylum is not to shelter criminals but to protect innocent people from getting falsely implicated. Thus making these provisions Australia has ensured that its safety and integrity are protected and no shady person is allowed to enter in Australia.
Australia has specific provisions regarding hearing of cases concerning refugees and courts have determined the rights of refugees by application of judicial mind and taking in light the rights of the refugees under international law. As we see courts have always been supportive of the rights of people involved passed judgment by application of relevant law of the state.
Although judicial review was the due process as per the law in the country but Australia has always been accused of framing legislations that narrows down the powers of the court. As the recent debate was of insertion of section 474 in the Migration Act which stipulated wider powers in the issuing authorities and also included powers to set grounds on which their decision may be challenged in courts. Thus limiting the powers of court in these cases thus as we have seen in these cases also courts have intervened and held in Plaintiff S157/2002v Commonwealth of Australia (2003) 195 ALR 24 that the section does not prohibit judicial review of decisions passed with jurisdictional errors as they are no decisions at all thus resting the debate upon the flaws’ in the legislation.(Chapter-3, Australia’s Refugee Law, Australian Lawyers for Human Rights).
Moreover jurisdictional error is always considered for the judicial review although the Migration Act does not define what would be a jurisdictional error but as per the interpretation of High Courts as we see in the case of Craig v The State of SA [[1994-1995] 184 CLR 163] where it was held that “What constitutes ‘jurisdictional error’ is not defined in the Migration Act, but the High Court has indicated that it can include the decision maker identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, in some circumstances, making an erroneous finding or reaching a mistaken conclusion.”
Moreover as wee to understand the clear process of granting asylum in Australia the asylum seekers are provided with legal advice although migration officers are not obligated under any law to provide the same but on their own concern and initiative they make arrangements for people who are detained and people who apply for asylum to get proper legal advice so that they can understand their rights nad obligations under the laws of Australia. With this attitude the officers also take the concerns of people who are already in difficulties and ensure that human rights are protected under the various international conventions.
Moreover the farce debate upon the detention of refugees has also created a stir here but as we see the convention itself states that the refugees can be detained for investigation and whoever necessary. The necessary clause is provided with a view to give discretion upon the authorities to determine when it is necessary to detain. The authorities have used this discretion to fulfill their duties thus in no way it is violating any international convention thus creating a debate out of nothing will not solve the problems.
Moreover the detention policy was challenged and the High Court dismissed the challenge and validated that detention of the asylum seekers was not illegal under the Australian Constitution [(Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs, (1992) 176 CLR 1].the courts have repeatedly held that giving a wrong meaning to the detention under migration act will not serve any purpose as the detention under the act is not a punishment but it is for the purposes of safety and security of the country which can be hampered if some unwanted person come and prove to be a threat to the citizens of the country. Thus investigation is a necessary process which has to be followed in all cases which is even validated by the various international conventions which proves that there is no arbitrary procedure followed. The time period of detention is are always been criticized that the law validates long detention of refugees but but it must be understood that the detention is only for such a time period which it takes for the authorities to complete the investigation. As it is very necessary for any country to determine that genuine persons come and they should live a responsible life which would not prove any threat to the sovereignty of the country.
Conclusion:
Now under the light of these issues and circumstances we see that the law as per general codified version has not been violated at all. As we have seen in most of the countries the domestic law of the land applies when the question of conflict of laws arise. But it has always to be taken into account the domestic laws are framed in such way that it does not violate any international obligation of the country.
As we see by the paper the researcher had tried to explain the conditions when the steps are to be taken in the interest of the sovereignty of the country to be protected to be breached. Moreover the issues analyzed in the paper reflect upon the application of legal avenues and dealing of refugees in a very legal way as a normal sovereign will do. Moreover every process which is followed is validated by the laws of the country and they are framed after taking into consideration the international obligations.
Thus after working on the paper it is been concluded that the necessary steps have always been taken by Australia along with the Australian judiciary to ensure fairness and respect the rights of the refugees raising a fuss upon some of conditions preliminary to be considered as arriving at any conclusion of violation by Australia.
References:
- United Nations Convention for Refugees, 1951, viewed on 29th March 2012 <http://www.unhcr.org/3b66c2aa10.html>.
- Amnesty International, March 2009, Australia’s Obligation Towards Refugees and Asylum Seekers, viewed on 29th March 2012 < http://www.amnesty.org.au/refugees/comments/20430/>
- Australian Lawyers for Human Rights, Chapter-3, Australian Refugee Law, November 2004, viewed on 29th March 2012 < http://www.alhr.asn.au/refugeekit/chapter_3.html>
JC98
“The presented piece of writing is a good example how the academic paper should be written. However, the text can’t be used as a part of your own and submitted to your professor – it will be considered as plagiarism.
…
