Asylum children lose plea to go free (Australia)

THE High Court has rejected an application by four Afghani children to be released from immigration detention, finding the detention was legal under Australian law, even if it broke international human rights conventions.

The unanimous decision by the seven judges yesterday found that commonwealth laws trumped Australia's obligations under human rights conventions, and is the latest in a series of rulings that has given federal law clear precedence over agreements such as the Convention on the Rights of the Child and the Refugees Convention.

"Whether or not Australia may be in breach of its international obligations cannot affect (the) constitutional question," said Justice Michael McHugh.

The decision will be seen as a victory for the Howard Government's hardline stance on immigration, forged by former immigration minister Philip Ruddock, who introduced temporary protection visas and the Pacific solution for boat arrivals, and for the mandatory detention system introduced by the Keating Labor government in 1992.

Labor immigration spokesman Stephen Smith promised yesterday to remove children from detention if his party won power in tomorrow's election, with the Australian Democrats and Greens vowing to back the necessary legislation.

"On Saturday, Australians can choose to end the detention of children by voting in a Labor government, or they can choose to allow the detention of children for three more years," Mr Smith said.

The four children, who had spent more than three years in detention, were released in July on TPVs after bringing the case before the High Court in February. At present 72 children are being held in Australian immigration detention centres.

The court dismissed the children's application to be released from the Baxter centre in South Australia on the grounds they they were being held unlawfully and that the detention amounted to a punishment that was illegal under international conventions.

The seven High Court judges ruled the Migration Act applied to children as well as adults and that it was within the commonwealth's power to legislate to detain child asylum-seekers as well as adults. The court also found the detention was not a punishment, but a "protection" of Australia's borders under the Immigration Act.

The decision prompted leading human rights lawyer Jeremy Moore to point to parliament as the next battleground over refugee detention.

"The justices are making a strong conservative statement that Australia is not bound to follow international conventions," said Mr Moore, who assisted in the case of the four Afghani children.

"Those (people) who support the need for international conventions will need to encourage politicians to bring in legislation to adopt these conventions."

Outside court, the children's lawyer, Eric Vadarlis, said they could be returned to detention once their TPVs expired.

"Under this decision, they'll be there until either they're released on a visa, which in most cases is unlikely, or returned to their country, and they can't go back because there is so much trouble happening back home, or until they die," he said.

They aren't genuine refugees (as determined by both the UN and Australia). They arrived illegally and were detained (after having passed through any number of countries where they would be safe to claim asylum), once they were judged not to be genuine refugees they remain in detention until they can be deported (usually after a lengthy appeals process to all manner of courts and the like).

But the interesting bit is this:

The High Court (Australia's version of the USSC) ruled that Australian law and the Australian constitution has precedence over 'international law'.

A little sanity goes a long way.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.