Migration and Citizenship Amendment

Question: Discuss about the Migration and Citizenship Amendment. Answer: Introduction This senate submission is made by the Refugee council of Australia and it is our humble belief that you are going to consider meaningful the observations and recommendations that have been pronounced herein. The Refugee council of Australia is a non governmental organization that promotes the steadfast and impartial application of the laws and policies that affect refugees and asylum seekers. The organization has revealed a sustained and rigorous commitment to lobby for the formulation of humane and non-degrading policies that do not intrude on the sanctity of humanity of the refugees and asylum seekers. From the outset it is imperative to note that this submission shall discuss the manner in which the Healthy Migrant Bill has offended the constitutional doctrine of Rule of law and flagrantly violated the principles of non-discrimination. Contravention of the Rule of Law Doctrine Act does not conform to the doctrines of the rule law. The doctrine is to the effect that all people must be treated equally before the law and law should not favor anyone despite the position in a state office (Lord Bingham, 2007). The fact that the lawful migrant are not subject to take any criminal or civil action against a medical practitioner who is authorize by the bill to attend to them is an indication that the law favors doctors while they should be treated as any other doctor who ought to be liable for any negligence or criminal act perpetrated. Accordingly, the exclusion of doctors from any liability is a mockery to the rule of law principle which asserts that the law should chiefly protect fundamental human rights. (Lord Bingham, 2007). It is recommended that the provision should be entirely repealed because where no criminal or civil action is taken to a wrong doing the claimant though a lawful non-citizen is left on the losing sides of the scales of justice. The right to proper treatment and medication is an overarching universal international human right law principle that cannot be abrogated by invoking a domestic legal provision. According to the preamble of the Universal declaration of Human Right (1948) states have the moral imperative to ensure that the rule of law safeguards human rights. The application of Section60 (8) can be regarded as inhumane, cruel and a non- degrading treatment of other human beings who should also be treated equally in the eyes of the law. The rule of law also demands that the laws and adjudicative measure that are taken by the government must not only be fair but must also be seen to be fair (Lord Bingham, 2007). It is utterly unfair that a doctor or medical practitioner can do that which is criminal on a patient and contravene the international standards that are expected of any medical practitioner and not be subjected to the rule of law. It defeats logic and is preposterous that an innocent lawful migrant will have his dignity disrespected and trampled upon yet a certain law justifies such outlandish and unfortunate actions. It is the organizations request that section 60(8) of the Healthy Migrant Bill be repealed and replaced with a section that will recognize and appreciate the humanity of the refugees. The law should rather proclaim expressly that the lawful non-citizens will be accorded the best attainable health standards (CESCR General Comment No. 14, Art. 12). Additionally, it should state that the medical experts attending to them will subject to the full force of law incase they breach their professional and legal obligations as they inherently owe patients a duty of care (Donaldson, 2003). It is submitted that the law and justice should is an art of goodness and fairness and the same should be applied in the migrant laws in Australia (Rule of law in United States of America, 1791). Where there is overwhelming evidence showing that the medical practioner was negligent or had done a criminal act, necessary action should be instigated against the medical practitioner as the universal application of laws demand. In further upholding the rule of law doctrine it is our recommendation that the discretionary powers bestowed upon the minister be reduced because absolute power undermines the rule of law. The Siracusa Principles on the Limitation and Derogation the International Covenant on Civil (ICCPR) and Political Rights and the Heath Migrant Bill The Refugee council maintains with absolute certainty that section 28A (6) is discriminatory in every sense of the word and materially breaches the provisions of the Siracusa Principles on the Limitation and Derogation which justify the derogation of the ICCPR. The council does not cast aspersions on the fact that the bill has justified its violation by asserting that the healthy migrant bill has conformed to all Australia human rights law (Healthy Migrants Bill (2016) Explanatory Memorandum). The derogation does not meet the threshold that has been set in the Siracusa principles. It is the submission of the council that section 28A (6) blatantly breaches the ICCPR by ignoring the requirement of a persons consent when any medical treatment is being subject to the individual (ICCPR Art., 7). The forceful manner in which the Bill proposes that the lawful noncitizen shall be treated is cruel treatment and a violation of their dignity to. The drafters of that law should take recognizance of the fact that human rights are attributable to the inherent dignity of the human being (ICCPR Preamble). By dint of Section of the Healthy Migrant Bill the Australian the minister may without the consent of the individual direct that a medical examination be performed on the individual. This provision is overtly an abuse of law and a mere caricature of justice which lacks any moral sense. It can be argued that the section strips of and intrudes on the sanctity humanity in a person and denies one the right in law of right to self determination and autonomy (Venugopal, 2004). The ICCPR recognizes that every individual is equal before any court or tribunal (ICCPR Art., 16). This position resonates more strongly with the contention that that all persons must be treated fairly and equal before the eyes of justice. It is of interest to note that section 60(8) is very deleterious, corrosive to justice and has contravened this principle in totality. It is utterly abhorrent that medical practitioners will not be subjected to any criminal or civil trial in the event they commit an egregious act that is conspicuously unlawful. The lawful non citizen should be accorded a fair trial in an independent court that has been entrenched by the law (Christopher, 2003). As a matter of course, all persons are entitled to the recognition as a person before the eyes the law and therefore no one is a better or idiosyncratic human than the other (ICC Art., 16). The above violations of the ICCPR may however be justified in according to international law (Siracusa Principles 1985). It begs the critical question, however, if the derogation meets the minimum set in standard set by the siracusa principles. It must be evinced that the limitation and the derogation was reasonable and be arbitrary in its application. Clearly the derogation seen in section 28A (6) is unreasonable and utterly tyrannical because it is lackadaisical of the important factors such as existing heath of the individual. Public health is also a justification for the derogation of the rights but there must be a real threat to the health of the occupants of the state. Additionally, the limitation can be justified by an action taken by the government to protect public morals. It can be argued that it is the Bill pursuant to section 28A (6) and section 60(8) that actually contrary to public morals for treating refugees and asylum seekers cruelly and without a sense of humanity. The derogation must be in response to a public emergency which constitutes a threat to the life of the entire population in a state. The threat must pose an imminent danger not only to a few people but to the life of the whole nation. It goes without saying that the response by the House of parliament in formulating the provisions is not pursuant to any the imminent danger. If the provisions of the Bill are brought to life they will lead to a systematic infringement and transgression of the human rights of the lawful non-citizens in Australia and therefore it is the recommendation of the Refugee Council of Australia that identified sections herein be repealed or revised to abide to the precepts of international human rights. It is the humble belief of the Refugee Council of Australia that the above mentioned sections of the proposed bill be repealed with haste so that the house of parliament in Australia can send a sound message that will go beyond the walls of the house to the people of the world. The senate should thus portray the notion, through their actions, that Australia is a bastion for the protection of international human rights of the refugees and asylum seekers rather an appendage to of justice. References Christopher, M. (2003). International Human Rights on Trial , The United Kingdom's and Australia's Sydney Law Review 275 pp. 67-85 Donaldson, L. (2003). Making amends: a consultation paper setting out proposals for reforming the approach to clinical negligence in the NHS. London: Department of Health. Healthy Migrants Bill.(2016). Explanatory Memorandum International Covenant on Civil and Political Rights Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976 Bingham, L. (2007). The Rule of Law. The Cambridge Law Journal, Vol. 66 Migration and Citizenship Amendment (Healthy Migrants) Bill 2016 Rule of law in United States of America. (1791).5th amendment in constitution, Retrieved on 7 November 2016 from https://hmazeem.blogspot.co.ke/2016/07/rule-of-law.html Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights Annex, UN Doc E/CN.4/1984/4 (1984) The Right to the Highest Attainable Standard of Health. (2000). CESCR General Comment No. 14: The United Nations. (1948). Universal Declaration of Human Rights Venugopal, B. (2004). Informed Consent to Medical Treatment, Journal of the Indian Law Institute, Vol. 46