Issue 15/2 (2006)
We often talk about ‘human rights’ as if the concept is uncontroversial beyond, perhaps, what counts as a right and what does not. Yet there are many reasons to be sceptical about ‘rights talk’. We are pleased, therefore, to have two articles which examine fundamental ideas about the nature of human rights. Michaelis Michael argues that one should not conceive of rights as existing independently of legal formulations. This does not, however, prevent us making moral judgements on particular laws or social arrangements. Bernadette Radford, by contrast, does not argue with the notion of ‘human rights’ but considers who is entitled to claim the benefit thereof. She contends that the use of malleable socially constructed definitions of ‘persons’ can leave some groups open to ‘every form of discrimination and abuse’.
Reflecting the importance of this issue in contemporary Australia, we have three further articles which examine aspects of the quest for asylum. Claire Hammerton considers the situation of children in immigration detention through the case of Shayan Badraie, whose mental health was affected by his incarceration in truly horrifying ways. Jane McAdam compares the various international systems for ‘complementary protection’ where a need exists for international protection outside the framework of the 1951 Refugee Convention. Jane argues that Australia’s ad hoc procedure for humanitarian protection is deficient as it is framed as a gesture of ‘goodwill’, rather than an international legal duty. Mehera San Roque, Jill Hunter and their co-authors describe aspects of their research into the ways in which the evidence of torture and trauma survivors is considered during the refugee determination process. They look at how expert evidence can be used to support applicants and analyse the use that decision-makers have made of such evidence.
Ben Saul and Matt Thistlethwaite both address highly topical domestic political issues that have strong links to international human rights. Ben’s article on the United Nations Oil for Food Programme and the Cole Inquiry into the role of the Australian Wheat Board addresses the ‘hypocrisy’ involved in Australia’s Iraq policy and examines the ‘casual approach to international law’ that the government’s indifferent or negligent attitude to sanctions entailed. Matt points out that Australia is a signatory to the International Covenant on Economic, Social and Cultural Rights and is thereby committed to the recognition that economic rights are human rights and the promotion of fair wages and conditions. The individualisation and market-focus of the WorkChoices legislation resiles from that commitment.
Finally, we are pleased to be able to publish a speech by Justice Marcus Einfeld delivered on the occasion of Aung San Suu Kyi’s sixty-first birthday. The range of human rights abuses in Burma – from forced labour to summary executions – are brought into sharp relief and we are urged not to ‘ permit this level of brutality to be carried out on our doorstep’.
We trust that you will find this issue of the Defender thought (and action) provoking. As usual, we welcome any feedback.
