Australian Judges Mull Integration, Multiculturalism
By Christine Inglis
October 1, 2003
As Australia prepares to mark a quarter century of multiculturalism in public policy, the country's courts are ruling on a series of cases with potentially serious implications for immigrant integration.
Since a landmark official report, the "Review of Migrant Services and Programs," was issued 25 years ago, the Australian government has funded multicultural programs and ethnic organizations. As a consequence, a generation of young Australians has known only multiculturalism as the official policy on racial and ethnic diversity and the integration of minorities.
Multiculturalism, as it took shape, hinged on the rights of all Australians to access services and participate in society on an equitable basis, as well as to maintain their culture. Balancing these rights were responsibilities to support Australian political and legal institutions and values.
However, the absence of major celebrations to mark the anniversary highlights the ambivalent attitude of the present government towards multiculturalism. Prime Minister John Howard, for one, favors a more assimilationist approach and the reduction of government financial support for programs supporting multicultural service delivery. In fact, many analysts feel the Australian government has done little to advance multiculturalism since the mid-1990s, noting attempts to deter a renewed flow of asylum seekers and the government's relationship to the populist, anti-immigration One Nation Party.
Courts Take Center Stage
It is against this background that Australian courts have become involved in cases that directly address migration and settlement policies. Those with the highest and most contentious profile, from the government's viewpoint, involve asylum seekers and rights to residence. These issues of migration policy are widely viewed in Australia as directly linked to settlement policies and multiculturalism, given that they affect who can settle in Australia and the extent to which Australia acts as a tolerant and humane society.
In recent years, Australian courts have been increasingly asked to intervene in matters concerning immigration and residence. This recourse to the court system is indicative of dissatisfaction with the direction of government policymaking on the part of diverse sections of the wider community, who act alongside supporters of individuals involved in specific cases. As such, the trend towards litigation represents a new approach to influencing official policies.
In one key development in 2001, court decisions led to amendments to the Migration Act designed to restrict court appeals against administrative decisions to deny visas to asylum seekers. Furthermore, in 2002, when the Federal Court was being asked to rule on such cases, there was a public dispute between Minister of Immigration Philip Ruddock and the court's chief justice about the role of the courts in policymaking. This dispute is still unresolved, reflecting deep divisions over the role of an "activist" judicial branch in immigration affairs.
The importance of international conventions related to multiculturalism in determining national policies was highlighted in another recent court decision. In the middle of 2003, the Family Court issued a landmark ruling that it has jurisdiction over the welfare of asylum seekers' children in detention centers. This decision by the court, which deals with divorces and other family matters, was based on what it called a "serious breach" by the government of obligations under the UN Convention on the Rights of the Child. The government is currently appealing this decision, and others, to the High Court of Australia, the highest court of appeal. In the meantime, however, the Family Court has released five children from detention pending their deportation, along with their parents, to Pakistan.
Although legal disputes involving asylum seekers and refugees attract more media attention, the recent cases addressing settlement issues nevertheless have important long-term implications for the settlement and integration of migrants and minority group members.
Citizenship rights are widely recognized as among the most important factors affecting the right to residence and integration. The courts are now also engaged in this area. Currently, the High Court of Australia has before it a case involving the Australian-born child of parents staying illegally in Australia. The appeal aims to persuade the court to overturn the 1986 amendments to the Citizenship Act that restricted the applicability of the principle of "jus solis" to cases where, at the time of birth, a parent of an Australian-born child is either a citizen or a legal permanent resident.
State courts are also being asked to play a role in decisions affecting the integration of individuals and groups. In July, the New South Wales Land and Environment Court overturned a local council's decision to refuse permission to build a Muslim prayer center. In another recent case, the Queensland Supreme Court upheld the right of a Bangladeshi temporary resident, who was working illegally, to receive compensation from his employer for job-related injuries. The employer had argued that because the worker was employed illegally, he was not entitled to receive injury benefits. The decision established an important distinction between the legal ability to work and entitlement to compensation for work-related injuries.
These cases, once they have wound their way through the courts, will leave in their wake a string of potentially pivotal rulings with implications for settlement and integration. At that point, the current government's ambivalence towards a quarter century of multiculturalism may find new expressions within the modified ground rules.
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