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Taylor, Savitri --- "The Importance of Human Rights Talk in Asylum Seeker Advocacy: A Response to Catherine Dauvergne" [2001] UNSWLawJl 18; (2001) 24(1) UNSW Law Journal 191

[*] B Com (Melb), LLB (Hons) (Melb), PhD (Melb); Lecturer, School of Law and Legal Studies, La Trobe University. The author gratefully acknowledges the funding provided for this research by the School of Law and Legal Studies, La Trobe University and the research assistance provided by Dr Francesca Bartlett.

[1] In Catherine Dauvergne, ‘The Dilemma of Rights Discourses for Refugees’ (2000) 23(3) University of New South Wales Journal 56, Dauvergne refers only to Australia’s obligations under the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) and the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967). However, Australia also has protection obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) and the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[2] For example, one employee of Australasian Correctional Management (‘ACM’) is quoted as saying of the Woomera Immigration Detention Centre run by ACM: ‘It’s a bloody horrible place, that’s the bottom line, and there’s an unwritten rule to make it as difficult for the detainees as possible’: Terry Plane and Stuart Rintoul, ‘Woomera manager is out of his depth’, The Australian (Sydney) 30 November 2000, 4.

[3] Dauvergne, above n 1, 57-8.

[4] Ibid 57.

[5 ] Ibid 63-71.

[6] Ibid 73.

[7] See, eg, Seyla Benhabib, ‘Citizens, Residents, and Aliens in a Changing World: Political Membership in the Global Era’ (1999) 66(3) Social Research 709; Christian Joppke, ‘Asylum and State Sovereignty: a Comparison of the United States, Germany, and Britain’ (1997) 30(3) Comparative Political Studies 259; Daniel Warner, ‘The Refugee State and State Protection’ in Frances Nicholson and Patrick Twomey (eds), Refugee Rights and Realities: Evolving International Concepts and Regimes (1999) 253, 255-6.

[8] Particularism is a moral perspective which treats group membership (being, in this context, membership of the political community) as the only source of moral rights.

[9] Frederick Whelan, ‘Citizenship and Freedom of Movement: An Open Admission Policy?’ in Mark Gibney (ed), Open Borders? Closed Societies? The Ethical and Political Issues (1988) 3, 17.

[10] Emanuel Adler, ‘Seizing the Middle Ground: Constructivism in World Politics’ (1997) 3(3) European Journal of International Relations 319, 337.

[11] Ibid 337-40.

[12] See Thomas Risse et al (eds), The Power of Human Rights: International Norms and Domestic Change (1999), and Samantha Power and Graham Allison (eds), Realizing Human Rights: Moving from Inspiration to Impact (2000) for many convincing case studies.

[13] Peter Mares, Borderline: Australia’s Treatment of Asylum Seekers and Refugees (2001); Glenn Nicholls, ‘Unsettling Admissions: Asylum Seekers in Australia’ (1998) 11(1) Journal of Refugee Studies 61, 64.

[14] Catherine Dauvergne, ‘Confronting Chaos: Migration Law Responds to Images of Disorder’ (1999) 5(1) Res Publica 23, 32-3.

[15] Nicholls, above n 13, 76.

[16] Dauvergne, above n 1, 72-4.

[17] Dennis Shanahan, ‘Anyone who had a heart’, The Weekend Australian (Sydney) 10-11 April 1999, 27.

[18] David Feldman, ‘Human Dignity as a Legal Value – Part I’ [1999] Public Law 682, 690-1.

[19] See generally Savitri Taylor, ‘Do On-Shore Asylum Seekers Have Economic and Social Rights? Dealing with the Moral Contradiction of Liberal Democracy’ (2000) 1 Melbourne Journal of International Law 71; Savitri Taylor, ‘Protection or Prevention? A Close Look at the New Temporary Safe Haven Visa Class’ [2000] UNSWLawJl 55; (2000) 23(3) University of New South Wales Law Journal 75; Savitri Taylor, ‘Protecting the Human Rights of Immigration Detainees in Australia: An Evaluation of the Effectiveness of Present Accountability Mechanisms’ [2000] SydLawRw 2; (2000) 22(1) Sydney Law Review 50; Savitri Taylor, ‘Should Unauthorised Arrivals in Australia Have Free Access to Advice and Assistance?’ [2000] AUJlHRights 3; (2000) 6(1) Australian Journal of Human Rights 34; Savitri Taylor, ‘Rethinking Australia’s Practice of “Turning Around” Unauthorised Arrivals: The Case for Good Faith Implementation of Australia’s Protection Obligations’ (1999) 11(1) Pacifica Review: Peace, Security and Global Change 43; Savitri Taylor, ‘Weaving the Chains of Tyranny: The Misrule of Law in the Administrative Detention of Unlawful Non-Citizens’ (1998) 16(2) Law in Context 1; Savitri Taylor, ‘Understanding the Changes to Australia’s On-shore Protection Program’ (2000) 22(1) Migration Action 4.

[20] Don Greenlees, ‘Neighbour’s unwelcome toss over the back fence’, The Weekend Australian (Sydney) 20-21 November 1999, 4; Megan Saunders and Paul Toohey, ‘Human cargo, return to sender’ The Australian (Sydney) 12 November 1999, 1; Paul Toohey, ‘A roo shooter and his ute hold the line against illegals’, The Weekend Australian (Sydney) 13-14 November 1999, 1, 4.

[21] Dauvergne, above n 1, 72.

[22] Jeremy Harding, The Uninvited: Refugees at the Rich Man’s Gate (2000) 65.

[23] Julie Macken, ‘Power in Australia’, The Australian Financial Review Magazine, 24 November 2000, 37.

[24] Ibid 40.

[25] Department of Immigration and Multicultural Affairs, Annual Report 1998-99 (1999) (also at <http://www.immi.gov.au/annual_report/annrep99/html/contents.htm> at 8 June 2001).

[26] Ibid; see generally Mares, above n 13.

[27] This is a strategy employed by, for example, the Refugee Council of Australia: see Melissa Phillips, ‘Working with the media: notes for refugee advocates’ (2000) 8 Forced Migration Review 33 (also at <http://www.fmreview.org/fmr0813> at 8 June 2001).

[28] Raimond Gaita, A Common Humanity: Thinking about Love and Truth and Justice (1999) 26.

[29] Ibid. Kant is, of course, one of the greatest proponents of the universalist morality underpinning the concept of human rights.

[30] Taylor, ‘Rethinking Australia’s Practice’, above n 19.

[31] See David Forsythe, Human Rights in International Relations (2000) 173-4.