A last resort?
National Inquiry into Children in Immigration Detention
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As a sovereign country, Australia has a right to decide
who is allowed to enter and stay in the country. However, with this right
comes a set of legal responsibilities.
Sovereignty doesn't mean that nations can do whatever they
like. Over the past 50 years, the nations of the world have worked together
to develop a system of international human rights law based on agreed
standards and principles.
By ratifying a treaty or convention, a country agrees to
take on the rights and responsibilities of the treaty and uphold its principles
in the policies and practices of the government.
The fact that Australia has ratified a treaty does not mean
that it automatically becomes part of Australian law - it needs to be
specifically written into domestic law before there are enforceable rights.
However, this does not mean that ratifying a treaty has no
significance for Australia. As the High Court has said in the Teoh
case, 'ratification of a convention is a positive statement ... that
the executive government and its agencies will act in accordance with
Australia has, as a sovereign country, freely entered into
a range of human rights treaties and, therefore, has an obligation to
put the principles of these treaties into practice in how it carries out
its immigration policies.
The Convention on the Rights of the Child
The Inquiry has taken the rights set out in the Convention
on the Rights of the Child, which Australia ratified in 1990, as the
basis for its investigations. One of the basic principles of the Convention
is that the best interests of the child should be a primary
consideration in all decisions that affect them.
The Convention also sets out specific requirements to protect
the liberty of children including:
Other key rights in the Convention are that:
The Inquiry also drew on other important human rights treaties,
including the 1951 Convention relating to the Status of Refugees (and its 1967 Protocol), which requires Australia to offer protection
to people fleeing persecution because of their race, religion, nationality,
membership of a particular social group or political opinion.
© Human Rights and Equal Opportunity Commission. Last updated 13
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