People often ask ‘What practical difference will a charter of rights make?’ This is not an easy question in the abstract, but much easier if we use a hypothetical example. The treatment of David Hicks provides an excellent case study.

Along with other lawyers and organizations concerned with international law in Australia, The Justice Project (TJP) is alarmed by the government’s treatment of David Hicks. The situation has not been remedied by David’s plea of guilty and the ‘deal’ he was obliged to do, as a condition of being repatriated.

Very little could be done in the Australian courts to force the US authorities either to charge David, or else to release him. For the most part, jurisdiction of Australian courts depends on the party concerned physically being in Australia.

Catherina Toh

This policy position has resulted in the mandatory detention of the Sri Lankan asylum seekers not in Australia, not even on Christmas Island (excised from Australia for immigration purposes), but in Nauru. And for any of the Sri Lankans found to be genuine refugees, the Government intends to “swap” them with the United States for Cuban refugees currently held in American immigration detention on Guantanamo Bay. Not content with the Pacific solution, the Government is pursuing talks with Indonesia to set up the “Indian Ocean solution” – getting Indonesia (not a signatory to UN Convention or Protocol on Refugees) to detain and process any intercepted boat arrivals seeking asylum.

What we have also seen from the case of the Sri Lankan asylum seekers and from David Hicks is that the Government will sometimes respond to public sentiment. With the Federal Election due later this year those of us concerned about the direction the Government’s refugee and asylum seeker policy is headed must speak out. We need to let our politicians (both Government and Opposition) know that Australia’s refugee and asylum seeker policy must be consistent with our international obligations and voice our concerns about refugee swapping and the proposed “Indian Ocean solution”.

1. As a barrister practising in Victoria I am interested in three practical aspects of how the Charter of Human Rights and Responsibilities Act 2006 (“the Charter”) may work in practice in the future:

• Will the Charter clothe people with real rights they can use in court?
• What role will the courts play in refining and/or fleshing out the rights contained in the Charter?
• As the Charter stands, are the courts likely to meaningfully engage in the development of human rights law, or will most of this be left to Parliament and to the public service?