Following the amendment of the Australian law to recognise national policies on emigration (especially asylum seekers), this paper addresses the legislative considerations and then argues their implication for a fair policy that handles asylum seekers in the Australian context. Of a serious concern is that asylum seekers are getting visas and they do not get work permit and that they are not even able to access healthcare.
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This paper also looks at the current state of operation of Australian, at the moment. Related to this, the paper also addresses how the current policy has transformed. It is important to bear in mind the negative impact of the governmental policy on the many lives of those individuals seeking asylum in Australia.
This has raised concerns among human activists and other people of goodwill. The goal of the research paper is to bring together different views, evidence, and facts on the issue of asylum seekers in the context of Australian public policy.
This paper addresses the concerns of the policies on asylum in Australia as well as the injustices of these policies. It is expected that a discussion in this paper would prompt aggravated reaction from asylum seekers. However, the paper provides information for the policy makers and other activists who wish to offer their support to this or take another action.
This paper also assesses the means that can be used to address refugee policy for Australian law. It is believed that there is great inequity in conceptualization of what is referred to as ‘National Interest’ with regard to the ongoing prioritization of state rule over the humanitarian obligation of Australia.
It is important that the Australian law on Human rights and National security is changed. Nonetheless, to attain it is important to make better Australian laws that will be guiding policy makers to rectify the current condition. The Australian legal system is greatly criticized for offering a hotchpotch of human rights safeguard (Birell & Betts 2001, p. 3).
There is a feeling of dominance of the politicians in the recent years as there is insufficient parallel creation of checks and balances. Many studies show that legal safeguard of human rights and national security of Australia is still ad hoc and deficient (Birell & Betts 2001, p. 3).
Matters of national security and human rights about asylum seekers in Australia are critical as the law is set to regulate national interest and conceptualise it in the law dealing with refugee policy (Leach, 2003, p. 25). There are major policy issues that concern Australian law and there is enough scope of rectifying it by reformulation.
Statement of the Problem
National policy is a critical aspect of human life in any country. The Australian law has been criticized for being insufficiently equipped to address the plight of asylum seekers in the context of human rights recognition and issues of national security (Leach 2003, p. 25). Australia also bases its policy on the narrow definition that the UN has provided.
Refugees are those persons that have left their home country to a foreign land as a result of an impending fear related to persecution owing to their differing political stands, belonging to a different religion, race, or social group (Birell & Betts 2001, p. 4). These definitions do not protect other people from violation of human rights. Government of Australia in such cases deny its citizens their natural rights on legal grounds.
Purpose of Study
This paper helps to explain the law to the policy makers. They have to understand asylum seekers are human beings and hence they need to enjoy several human rights, just like the normal citizens do (Leach, 2003, p. 27). Asylum seekers in Australia do not consider these rights in the best regard.
Besides having the right to food, peaceful life (principle of national security) and accommodation, asylum seekers are entitled to good medical care, education, and a reunion with their families (Birell & Betts 2001, p. 5).
This paper offers a basis to give asylum seekers an opportunity to exercise their faiths, independently practise their culture and traditions and also take responsibility of their live. They also become better placed to acquire work permit. This way they are likely to work harder and positively contribute to the community and sustain themselves (Leach 2003, p. 28).
Significance of study
Over the recent past, Australia has experienced some tremendous changes in its law. Human rights activists are addressing issues of concern especially laws that are thought to have loopholes in them and that they do not take into account serious matters about groups of individuals that are vulnerable to bad law formulation like asylum seekers.
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This is an awakening call to the policy makers so that they can take such issues into account (McMaster 2001, p. 56).
The questions to guide the study assisted it in making sure that the recent differential treatment of the refugees in Australia is addressed with regard to the national interest (Leach 2003, p. 29). This is because there is increasing control and in order to fulfil humanitarian obligation Australia should deal with gaps that exist in its national policy. The questions include;
- Is Australia doing enough to meet the internationally accepted humanitarian obligation as it regards asylum seekers? Are there possible violations of the human rights as far as asylum seekers law is concerned?
- What are some of the measures that can be put in place in Australian policy to ensure that the problem of human rights violation is addressed and that national security is upheld for the asylum seekers sake?
- Is the Australian law on asylum seekers really harsh or its genuine in the national interest’s sake?
- Do asylum seekers actually present a serious danger to the society? Are there compelling reasons for such allegations?
- What should the Australian government be doing to safeguard the human rights of asylum seekers and at the same time uphold the national security?
The issue of asylum seekers is very critical in Australia because these groups of people are seen as a threat to the national security. This paper hence seeks to talk about some of the human rights violation that asylum seekers in Australia face (Bashford & Strange 2002, p. 509). The paper also highlights how the federal government and its human rights policies would assist in addressing these issues.
The Australian law defines asylum seeker are individual who are in another country which is not their motherland, for fear of persecution back home (Bashford & Strange 2002 p. 509). Asylum seekers usually go to the Australian immigration department and file applications for consideration as refuges in the country. Accordingly, they rely on the Australian government to provide them with protection that they deserve.
The Australian government’s policy on immigration issues has had whereas negative impact on thousands of asylum seekers (McMaster 2001, p. 56). The plight facing asylum seekers is not a very new issue but lately, owing to increased cases of conflict, social upheavals and wars, an increasingly high number of individuals are seeking for asylum in foreign countries (Bashford & Strange 2002, p. 509).
International humanitarian bodies have been working to ensure that refugees are treated nicely but cases of forcibly displaced individuals are still created in places where international measures are not adequate.
What Rights are to be addressed?
By and large, matters of human rights are said to affect everyone. International organization like the UN also support that every individual is entitled to certain humanitarian rights regardless of the nationality, ethnicity and other statuses.
This means that asylum seekers in Australia should be given equal human rights as other national of the country (Bashford & Strange 2002, p. 510). Some of the human rights under contention and that are very important to the asylum seekers include;
- Right to question authority of the court to detain them
- Right to not to be subjected to torture, cruelty, inhumane treatment, any form of punishments or arbitrary detention (McMaster 2001, p. 56).
- Right not to be deported or sent back to home country in case their lives or freedoms are threatened (McMaster 2001, p. 56).
- Right to get an education, healthcare and to work in the host country
The children usually have other special privileges as well. This means that they are entitled to better humanitarian aid and tracking of their family for a possible re-union. The best interests of the child should be considered as the main factors of consideration for any measures to be taken an that detaining a child is the last resort in any worse scenario and should be very short-lived (McMaster 2001, p. 59).
A Threat to National security
In this dispensation where international terrorism is a major concern for the peace in the world, Australian national policy is not to tolerate this and that it must protect its people at all time. This is the reason why its policy holds the national interest in high regard than the human rights (McMaster 2001, p. 62). There has been claims that terrorist usually pose as asylum seekers so that they can be able to gain entry into Australia.
However some claim that this is just a feature for politics and has been used to treat asylums unfairly with no strong grounds. This claim is said to overlook the facts and just makes a connection between the terrorists and asylum seekers (Stevens 2002, p. 864). Some facts that can be considered are that;
- The terrorists of today work in groups that have considerable resources and capabilities (Stevens 2002, p. 864).
- The refugee convention has presented a description for people (asylum seekers) to meet in order to be able to get the protection visa. The definition specifically excludes people whom the nation deems seriously as having been involved in serious criminal activities (Stevens 2002, p. 867).
- Australian security body the ASIO and the department of immigration have carried out extensive security checks besides the long and complicated procedure of evaluating the claims of asylum seekers to get governments protection.
- All the refugees arriving without their valid form of identification and visa including all those who come through water or fly in are all sent to compulsory detention (Brennan 2002, p. 69).
The probability that Terrorists would probably expose themselves to such thorough, complicated and prolonged inspection by the state that they could want to attack is very low. Nor would they be likely to go through that lengthy detention or use risky sea routes like leaking boats (Brennan 2002, p. 69).
However, since the September 11 attacks on the US, countries are now aware that terrorist are unpredictable and that they can use any means to launch an attack. Still, the national strategy guideline for fighting terrorism has not indicated that they could pose as asylum seekers (Stevens 2002, p. 869). This connection is an automatic reaction.
Human Rights Issues
Over the recent decade, Australia has been accused of breaching human rights of people entering the country as asylum seekers. For instance;
Several hundreds of children have been detained for lengthy periods of time in the detention centres set in Australia (Brennan 2002, p. 69). It’s said that one Cambodian boy was held for over five years. The outcomes of this long detention usually have a negative impact on the children’s mental health.
In most cases like in desert locations, the people are seriously affected mentally as they ought to get the right to education and medication (Brennan 2002, p. 72). The temporary protection visas have been abolished and children have been removed from these detention centres. Nonetheless, serious concerns have remained critical. For instance;
- Mandatory detention laws are still intact and immigration detainees cannot challenge these measures in a court (Brennan 2002, p. 74).
- Some children are still in the detention centres in Australia.
- There is no policy that governs the manner in which people have been treated in the detention facilities (Brennan 2002, p. 76)
- The legal guarantees are inadequate to stop asylum seekers from coming back, especially those who do not meet the description of a refugee, but still they get threatened, tortured and also threatened of death in their home country.
- At some points, asylum seekers only get bridging visas allowing them to stay but they cannot work or access medical care. This means that they can only depend on support from charities (Brennan 2002, p. 77).
Many nations in the west including Australia have set their asylum polices on the grounds which have very narrow definitions of what asylums principles mean. The UN convention on the statuses of refuges of 1951 and the protocol of refugee status of 1967 form the main grounds for these asylum laws (Stevens 2002, p. 872).
Asylum seekers are recognized as people who have fled their parent countries due to a strong reason for fearing persecution like religion, race or political affiliation. This definition has not protected other rights that are critical.
Human Rights are Universal
Besides getting food, shelter and peaceful life free from violence, refugees also have a right to education and healthcare as well as reunion with families. They should also have the right to get a job (King 2001, p. 73).
The law in Australia conceptualizes the idea of national interest with regard to the asylum policy as basically a realist idea and some aspects idealist notion (King 2001, p. 73; Vaughn 2004, p. 96). Recognition of human rights as an aspect of national interest is just a way of extending the foreign relationships of the primary values of Australia.
National Interest or Security
The Australian migration law states that its aim is to regulate the national interest for the citizens and non-citizens. This policy causes one to ask the question that ‘what makes up national interest?’ in order to establish the extent to which the offer of protection given to the refuges is considered to be in the national interest (King 2001 p. 75).
Australian law is mainly a realist consideration of the law and this overrides the priority to sustain state control over some flows with inclusion of some that Australia owes protection (Vaughn 2004, p. 96).
Realist View: in this perspective, national interest is considered to be the benefits the state enjoys in sustaining and enhancing its power in relation to other nations (Vaughn 2004, p. 96). In order to preserve itself, any nation has to safeguard its sovereignty and this is a fundamental aspect of statehood. Realists assert that sovereignty as a major part of national security (King 2001, p. 77).
Idealist view: this perspective evaluates matters of human rights with regard to national interest as something that contributes to the sustained expansion of the international community.
This view also contents that, upholding human rights and traditions like democratic rights and fair rule of law are national interest issues and these principles comprise the optimum reason on which a state is built (Hamilton & Maddison 2007, p. 36). Finally, it is important to note that human rights should be sustained as they are intrinsic values for human life.
Idealist notion states that nature is equally critical for survival. In this regard, a country that breaches human rights and the international legal responsibility can survive and become more powerful but this kind of progress is not fair and is sustainability is questionable (King 2001, p. 78).
States need to be legitimate are they protect human rights rather than base their policies on sheer need to survive in conflict system (Hamilton & Maddison 2007, p. 36).
Balancing Realist and Idealist Views
Realists consider states interest as its security. In the context of asylum concerns realist put protection of the state as the first priority (Inglis, 1994, p. 15). Idealist views on the other hand considered human rights first and then protect borders later. These schools of thought exhibit merits and demerits.
However, these concerns can be balanced since continued development and also addressing human rights is critical for the welfare of the country (King 2001, p. 79). Australia approach to deal with asylum seekers has to be able to balance realistic and idealistic views where the ability of the state to help and its responsibility to people that needs help are applied in the states protection.
This kind of approach can integrate level of control over refugee influx and also take care of humanitarian concerns to those are seeking protection (Vaughn 2004, p. 96).
Australia’s humanitarian and asylum seekers policy is an effort on the part of the government to reach an agreement with what they have identified as priorities in competition to meet obligations of international law and universal human rights (Vaughn 2004, p. 96).
The prevailing balance appears to hinge upon realist control or view, at the expense of those individuals seeking for the protection of Australia. At the moment, the Australian government appears to hold the view that the diverse priorities should be regarded as competing ideas even as it continues to regard them as not breaching human rights in any way.
This is a process of studying Australian policy on asylum seekers with regard to national security and their human rights. For this reason, several sources were used in this study to give wider coverage of the topic. Both qualitative and quantitative methods were used in the study (Mason 2002, p. 56).
The objective of integrating the research design this way is to ensure that study results are properly translated into logical and sensible findings. The research design selected should contribute towards the study being of a high degree of accuracy.
Some data was collected from earlier reports from medical journal databases (Mason 2002, p. 56). A screening interview was be used to find out the total number and ratio of cases that have indeed affected by the medical malpractice of negligence.
Research Design: In any kind of qualitative research undertaken, the process of research assumes centre stage and this study is no exception. Qualitative analysis has many advantages (Yin 2003, p. 67). This research methodology shall consider the fact that the survey needs to be restricted in terms of time.
Furthermore, the methodology that was considered was interpretive philosophy as the basis for research of this kind. Several reports and research papers about asylum seekers law was be evaluated (Mason 2002, p. 56).
Data Collection: This was a synthesis study. The researcher was identified 15 papers that have been written about Australian law and stories that have been written about Australian asylum seekers and analyses of existing law.
These secondary sources formed the basic form of collecting data (Tashakkori & Teddlie 1998, p. 45). The researcher shall visit some important sites like Australian policy databases that offer relevant information about national interest issues and treatment of refugees.
Data Analysis: this was a systematic review of the papers and reports that have been done before so that the research can be able to make sensible recommendations that are based on strong assessment (Yin 2003, p. 67).
The analysis was separate reports on national interest and asylum seekers against the Australian law regarding the same issues (Tashakkori & Teddlie 1998, p. 45). This assisted to make comparison of the real law and what other researchers have done.
Data Presentation: the problem statement was restated in the first part of the results to provide information about the problems of asylum seekers especially when their human rights are breached as the state struggles to achieve its national interest obligations (Tashakkori & Teddlie 1998, p. 45).
There was also the part regard the law as instituted by the government, dissonance between understanding of how the mistake came about and how Australian policy applies. On the part of the reviews, basic concepts were analyzed and given the proper reasoning to ensure national interest is upheld and universal human rights addressed (Yin 2003, p. 67).
The Australian law is insufficiently equipped to deal with the problems of asylum seekers. The fact that the law upholds the national interest in high regard and that the policies are realist in nature, power relations are critical to the government than the concerns of human rights (Klocker 2004, p. 9). The Australian government seems to focus mainly on the sovereignty of the state.
The review revealed that in order to address the plight of asylum seekers, the country has to find equilibrium of its vested interests in meeting the obligation to uphold human rights by the international community and maintenance safety on its borders (Klocker 2004, p. 9). In order to attain a successful implementation of the better asylum laws in Australian, the law in asylum seeking is much better.
The patients should be able to establish what is counted as satisfactory service. In this manner, the state is said to be under obligation to giver asylum seekers some form duty to the patient that conforms to certain standards in professional field (Vaughn 2004, p. 99).
Australia’s policy on refugees is an effort by the Australian government to assess the competing priorities of national interest and humanitarian obligation of refugees. Realist perception is favoured. Many adults on the other hand have been exposed to longer detention some even being indefinite under the mandatory detention (Klocker 2004, p. 14).
It was discovered that asylum seekers have been shifted to other offshore centres for detention in other nations like Papua New Guinea and in these facilities; they cannot access Australian refugee status. Whereas the faculties have closed since then, the refugees are still following the process offshore (Inglis 1994, p. 17).
Some asylum seekers got only the temporary protection visa and they only lasted for only 3 years and this then stopped them from travelling to meet their families or making arrangements for their families to join them in Australia.
This is what left refugees and also children who were unaccompanied, separated families for several years and people who are traumatized to more doubt (Kumin 2004, p. 3). In the recent past, there are some changes that have been made so that asylum seekers get good treatment.
Australia has several measures put in place to ensure that asylum seekers are treated as human beings and their rights respected. This means that there need to be effective decision making system that will address issues like resettlement of offshore asylum seekers (Kumin 2004, p. 3).
The way Australia treats onshore asylum is greatly condemned both at home and overseas as being unnecessarily harsh and not a genuine concern of national interest.
The need to have a very tight control by the state over the impact that asylum seekers would have on the country is in most cases iterated by the government officials especially in immigration and multicultural affairs (Inglis 1994, p. 18).
The immigration department has at many occasion given a statement that differential treatment of the refugees in Australia is entirely set to address the national interest and that this is the ultimate way of making sure that Australians live up to its obligation when it comes to the human rights issues (Klocker 2004, p. 15).
The government has shown prioritization of the state over the humanitarian responsibility that is indicated through the growing discrepancy handling of onshore applicants. These are the asylum seekers that the government has not had a chance to control and the offshore asylum seekers are the ones that the government has total control over (Inglis 1994, p. 19).
National interest is decisive and an essential element in the context of citizen’s and refugees’ life. It is believed that there are insufficient formulations in the context of Australian public policy related to the important issues of asylum seekers. The major issue in this context is the issue of human rights (Kumin 2004, p. 5).
However, the issues relating to asylum seekers, human right and national security are also related elements and all these would be addressed in the research (Kumin 2004, p. 5). As per the basic research, it can be stated that there is major issues related to Australian public policy and there is enough scope to rectify and reformulate it.
Conclusion and Recommendations
In order to improve the condition of asylum seekers and the incorporation of national interest doctrine the policy should and must include bigger balance between state sovereignty and considerations hence both ends will be served.
In doing this, the research paper argued that the issue of National Interest already has some factors that are humanitarian and it only need conceptualization. The realist and idealist description of what ‘National Interest’ means and how this concept can be made use of to characterize the refugee policy of Australia will be given.
Australia needs to increase its involvement in the international effort to affect the problems of asylum seekers and to restrict unrestrained migration. These types of measures could include enhancement of the UN commissioner of refugees which can handle 50 million refugees.
Regional initiatives are also very important and that Australia can provide help to the poor nations in areas like Asia. These areas are traditional produce asylum seeker. This could as well contribute to the monitoring.
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