Migration and Citizenship Amendment Healthy Migrants

Question: Discuss about theMigration and Citizenship Amendmentfor Healthy Migrants. Answer: Introduction The Refugee Council of Australia is a non governmental organization that has exuded vigilance to protect and promote the rights and interests of refugee and asylum seekers in Australia. It has played an anomalous role through engaging in advocacy with the United Nation High Commission for Refugees and the government of Australia to ensure that human rights of refugees and asylum seekers are upheld. The Refugee Council of Australia has authored this senate submission in performance of its role of safeguarding the interest of the lawful non citizens in Australia. It is the expectation of the council that the senate will find legal and moral sense in this submission and enforce the recommendations that shall be exemplified herein. Infringement of the Rule of Law Doctrine In concrete manifestation the rule of law doctrine is underpinned by fundamental principles that were propounded by the Lord Birmingham. (Lord Bingham, 2007) Firstly is that the law should apply equally to all. The Healthy migrant bill has violated this principle by stating in Section 60(8) that the doctors and the medical attendants will not face any criminal or civil prosecution incase they commit any criminal of civil wrong while conducting the medical tests on a non lawful citizen. It is the submission of the council that the lawful non citizen should be given an equal treatment like other Australian citizens. The second principle of the rule of law is that the law should uphold international law principles (Lord Bingham, 2007). Where the medical practitioners under section 60(8) have an unfettered discretion to do anything with the body of a human being it contravenes the principle that all human beings have a right to the highest attainable standards of medical care (International Covenant on Economic, Social and Cultural Rights, Article 12) The bill should insert a provision that states that the government will provide quality medical treatment to the lawful non citizens. The doctrine of the rule of law also encapsulates the principle that the law should give a fair trial. This is cardinal principle of the rule of law and the fact that section 60(8) has excluded the doctors from any criminal or civil liability amounts to a miscarriage of justice to the lawful non citizen. They should also be accorded a fair hearing in a competent court of law or tribunal within Australia or any other recognized body of international law (ICCPR Art., 16). The immunity that is granted to the doctors by the act is a mere caricature of justice and is to all intents and purposes unjustified. Such immunity is not even recognized at the international law level. The bill should state that wile conduction the medical tests on the lawful non citizen a medical practitioner will be liable for their action. The rule of law is the most prosperous invention against marginalization, oppression and administrative injustice and the law makers should not undermine its relevance by providing for a harsh application of the law in the Bill. The minister under section 28A (1C) should not have an absolute power to declare what he deems as a threat to public heath care. The rule of law requires that power should be limited and in this case the decision of the minister must be vetted by a special committee of experts. Another guiding principle of the rule of law is that the law must protect the fundamental human rights (Lord Bingham, 2007). In this case the bill has transgressed upon these fundamental human rights in every sense of the word. The law makers should make peace with the fact that they are also obligated to enforce and protect the fundamental human rights. The Refugee council of Australia recommends that the section 60(8) should be repealed and a new section inserted requiring medical doctors to uphold the medical law principles and should not go below the standard of acre that is expected of them. Application of the Siracusa Principles and the International Covenant on Civil (ICCPR) and Political Rights on the Heath Migrant Bill The Siracusa principle provides a justification for the breach of the ICCPR and further provide for the reason why the human right that have been provided in international instrument should be limited. The Refugee council of Australia appreciated the fact that the lawmakers have sought to justify any limitations and violation perpetrated by proclaiming that the bill is in consonance with all Australian and international human rights law (Healthy Migrants Bill (2016) Explanatory Memorandum). It is only prudent that we investigate the various derogated section of the ICCPR to possibly determine if indeed they are justified by the Siracusa principles on Limitation and Derogation. According to section 28 A (6) it is abundantly clear that the medical consent of a lawful non citizen will not be necessary when the government want to conduct any test on the individual. To add insult to the injury, the medical attendants will not pay attention to the fact whether one has a severe preexisting medical condition. Canon of interpretation cannot eliminate the daunting reality that this section is a undisguised violation of the inherent human dignity of an individual and which everyone is entitle to and it ought to be upheld and respected (ICCPR, Preamble). The council asserts that it is a serious incongruity to give less value to ones life humanity. A person who is of sound mind and of legal age must give a medical consent to any treatment that they are to undergo or be subjected to (ICCPR Art., 7). Section 28 A (6) is an undisguised infringement and violation of this requirement. It defies the fundamental concepts that have been laid down by the principle of self determination and autonomy that have been recognized at both the international domestic level. In this respect, it is brought to the knowledge of the house of parliament that international law principles cannot be violated and be justified by invoking a municipal law. The Siracusa principle state that the ICCPR may only be violated under special circumstances which include where there is a threat to public health and life of the entire nation. However, it is of particular significance to note that the threat must be imminent. Section 28 A (6) does not take this factor into consideration as it states that the government may perform the medical tests any time they deem find it appropriate to do so. Such a violation is so gross and does not meet the threshold that has been provided by the siracusa principles. The siracusa principles also state that the human right violation under the ICCPR may be justified if there is a threat to the public morals. It is indispensible that the house parliament should take recognizance of the fact that the bill contravenes morality principles by giving a less value to humanity and life. Section 28 A (6) poses a great threat to the life and health of the lawful non citizen. The council thus recommends that this be repealed and fairer provision be included in the act that will require the consent of the lawful non citizen and the medical doctors will have to consider the age and current health condition of the individual before conducting any medical health conditions. The preamble of the bill should categorically state that it seeks to uphold the dignity of humanity. The Explanatory Memorandum of the bill that justifies the limitation and violations of the human right should be considered irrelevant and be repealed entirely. Summary The House of Parliament in Australia should evolve a principled and coherent approach towards fundamental human rights of the refugees, asylum seekers and other lawful non citizens which is critical in the realization of Australias constitutional aspirations. The Health Bill should sail towards the tide of justice and fairness to all humanity and not be drowned in non discrimination and autocracy. It is our hope that the senate will consider this submission as it retires to make a decision on the validity of our claims. Yours Sincerely, Phil Glendenning President Refugee Council of Australia Suite 4A6, 410 Elizabeth Street Surry Hills NSW 2010 admin@refugeecouncil.org.au References 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 Retrieved from https://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx International Covenant on Economic, Social and Cultural Rights entry into force 3 January 1976 Retrieved from https://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx Bingham, L. (2007). The Rule of Law. The Cambridge Law Journal, Vol. 66 Retrieved from https://www.cambridge.org/core/journals/cambridge-law-journal/article/the-rule-of-law/0E971B5BB930C2E363D351C5CBC3B855# Migration and Citizenship Amendment (Healthy Migrants) Bill 2016 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) Retrieved from https://icj.wpengine.netdna-cdn.com/wp-content/uploads/1984/07/Siracusa-principles-ICCPR-legal-submission-1985-eng.pdf