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Temporary Protection Visas
and race discrimination law

This research paper analyses Temporary Protection Visas by reference to the federal Racial Discrimination Act 1975 in sections 1 and 2 and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in section 3.

There are at least two main ways in which the Racial Discrimination Act (RDA) might interact with the Temporary Protection Visa (TPV) regime. First, the regulations imposing the TPV regime might be found to be invalid because they are inconsistent with section 9(1A) of the RDA which makes indirect discrimination unlawful. [1] Second, the TPV regime may trigger the operation of section 10 of the RDA which 'equalises' racial inequalities created by Commonwealth, State or Territory legislation.

The RDA provisions largely mirror the ICERD. As this paper sets out, however, the interpretation of the RDA by Australian courts may differ in significant respects from the interpretation of ICERD by the international committee of experts established to monitor its implementation.

1. TPVs as indirect discrimination under the RDA

Section 9(1A) of the RDA defines indirect discrimination:

Where:

(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b) the other person does not or cannot comply with the term, condition or requirement; and

(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.

It might be argued that the TPV regime is inconsistent with section 9(1A) by reason of the following:

1. Refugees of Iraqi and Afghan national origins are substantially more likely than other asylum seekers to be granted only a TPV upon establishing their refugee status in Australia.

2. As TPV holders they are denied a number of legal and human rights:

3. The Australian government's rationale for creating the TPV regime is "not reasonable" because:

The Commission has, for discussion purposes, considered whether such an argument might support a declaration that those parts of the Migration Regulations 1994 providing for the TPV regime are invalid by reason of their inconsistency with section 9(1A).

1.1 Imposition of an unreasonable term, condition or requirement

The first element of indirect discrimination, in section 9(1A)(a), is that an unreasonable term, condition or requirement is imposed.

The relevant term, condition or requirement here is the requirement that, to be eligible to apply for a permanent protection visa, an asylum seeker must either have applied offshore or arrived in Australia lawfully on a valid visa.

A reasonable term, condition or requirement will not offend the RDA. Is Australia's requirement that asylum seekers enter lawfully or apply offshore in order to be eligible for a permanent visa and its attendant entitlements reasonable?

In Australian Medical Council v Wilson Justice Heery, with whom Sackville J and Black CJ agreed on this point, said that reasonableness for the purposes of RDA section 9(1A)

… speaks of a term, condition or requirement that is dictated by reason and rationality - not necessarily one with which all people or even most people agree. [4]

In addition, Federal and High Court authorities on the test of reasonableness in the context of discrimination legislation make clear that:

Click here to read further comments made by members of the High Court regarding the test to be applied in considering the reasonableness issue in the context of discrimination legislation.

Relevant factors in favour of a finding that the TPV regime is unreasonable may include:

It may also be relevant that a TPV holder, having been granted refugee status in Australia, may not have the option of seeking permanent protection elsewhere. The only alternative to remaining in Australia 'temporarily' may be to return to the country of origin. This raises Australia's international obligation not to return refugees to countries in which they risk persecution (the 'non refoulement' obligation, which arises under article 33 of the Convention Relating to the Status of Refugees).

On the other hand, relevant factors in favour of a finding that the TPV regime is reasonable may include:

1.2 Inability to comply

The second element, set out in section 9(1A)(b), is that the complainant(s) must establish that they are unable to comply with the term, condition or requirement.

The relevant time at which inability to comply is to be demonstrated is the time the relevant term, condition or requirement is imposed. It is unnecessary to prove that there was an "immutable characteristic" of the individual preventing them from ever complying. [10] Taking this approach in the case of the TPV regime, the question whether a particular asylum seeker could have applied for a visa offshore becomes irrelevant. The time the requirement is imposed is the date of application for a protection visa within Australia. At that time, necessarily, it is too late for an application to be made offshore.

1.3 Proof of comparative disadvantage

Section 9(1A)(c) includes a number of relevant elements, which are considered in this section and in section 1.4. The first element is that the requirement to comply with the relevant condition has

… the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of [certain rights].

The courts have grappled with the "elliptical" language of that provision, which reflects the wording of ICERD. [11] It is clear, by reason of the inclusion of the words "on an equal footing", that the section requires a comparison of some kind. The comparison must involve the group to which the complainant belongs and which is defined by reference to race, colour, descent or national origin. Although there has been some difference of opinion, the courts have indicated that the members of the 'comparator group' need not be restricted to those who are also required to satisfy the relevant term, condition or requirement. [12]

Ignoring purpose (which does not seem to be relevant here), we are, in essence, considering whether the condition has a comparatively disadvantageous effect.

As the figures set out in Table 2 in the companion paper 'Temporary Protection Visas: operation and impacts' indicate, a disproportionately high percentage of TPV recipients were born in Afghanistan (30%) and Iraq (37%). Is this a comparatively disadvantageous effect suffered by groups distinguished by their 'national origins'?

It is important to note first that Australian courts have distinguished "national origin" from nationality, citizenship and country of residence. The Full Federal Court has followed the jurisprudence of the House of Lords and accepted that "national origin"

... suggests a connection subsisting at the time of birth between an individual and one or more groups of people who can be described as 'a nation' - whether or not they also constitute a sovereign state .... [13]

In following that jurisprudence, the Full Federal Court noted:

In our opinion, there would have to be very cogent reasons advanced why we should diverge from what we perceive to be a growing body of English and Australian authority and international learning in the field. That body of learning distinguishes between, on the one hand, 'national origin' as an indicator of race and, on the other hand, nationality or citizenship as being a sometimes transient legal status. [14]

To read an extract from the decision of the House of Lords adopted by the Full Federal Court click here.

It is clear that most if not all Iraqi and Afghan TPV holders share national origins as well as nationality, citizenship and country of (former) residence. However, the courts appear to have been concerned to exclude comparatively disadvantageous effects which are not dependent upon characteristics that arose at the time of birth.

For example, the case of Australian Medical Council v Wilson involved an overseas trained doctor from India who complained that the Australian Medical Council's restrictions on overseas trained doctors practicing in Australia amounted to indirect discrimination against him on the basis of national origin. The Federal Court dismissed the doctor's appeal on grounds other than those relating to the requirements of 9(1A)(c). However, in discussing the application of section 9(1A)(c) to the facts, Justice Sackville said:

It must be remembered that s.9(1A)(c) directs attention to the effect of the examination and quota requirements on the enjoyment of rights by persons relevantly of the same national origin as Dr Siddiqui. The issue in the present case is therefore whether the effect of the AMC obliging OTDs to comply with the examination and quota requirements was to nullify or impair the exercise, by persons (like Dr Siddiqui) of Indian national origin, on an equal footing with other groups.

Although it is not necessary to express a final view on this question, I am inclined to the view that the examination and quota requirements did not have the proscribed effect. Persons of Indian origin are of course eligible to apply to accredited medical schools in Australia and New Zealand. In 1994, according to the evidence, some 72,500 people of Indian birth were recorded as resident in Australia (0.41% of the total population). The evidence did not disclose the proportion of students of Indian origin enrolled in or graduating from Australian medical schools (although, as I have noted, in 1994, of 885 first year students for whom information was available 210 were born in Asia). But there is nothing to suggest that a person of Indian origin faces any disability in gaining entry to an accredited medical school, compared with persons within the Australian community of different national origin. Nor is there evidence that persons of Indian origin are under-represented in accredited medical schools, whether in comparison with their representation in the population at large, or in the population from which students at accredited medical schools are drawn. Thus, so far as the evidence goes, persons of Indian origin within the Australian community have precisely the same opportunity to graduate from accredited medical schools as persons of Australian (or New Zealand) origin. Persons of Indian origin who have not graduated from accredited medical schools must comply with precisely the same requirements as persons of Australian or New Zealand origin who have not graduated from those medical schools. [16]

It could have been argued that most medical practitioners of Indian origin would, for various reasons, including those related to population concentration, migration patterns and geography, obtain their qualifications in places other than Australia. As such, it might have been said that the condition imposed by the Australian Medical Council did in fact have a disadvantageous effect, as compared to doctors of Australian national origin, upon people of the same national origin as the overseas trained doctor who brought the case. Justice Sackville dealt with that possible argument in the following terms:

Of course, only a relatively small proportion of the Australian population is of Indian origin. That reflects, in large measure, the fact that the bulk of the Australian population is always likely to consist primarily of persons of Australian origin. It also reflects patterns of migration not relevant to the present proceedings. The small proportion of persons of Indian origin at accredited medical schools has nothing to do with distinctions based on national origin. Rather, it reflects the simple fact that Australian medical schools, like virtually all State-funded Universities throughout the world, primarily serve the resident population of the countries in which they are located. [17]

In other words, his Honour excluded manifestations of inequality that were not related to national origin in the narrow sense discussed above (that is, characteristics that arose at the time of birth). [18]

Similarly, in Commonwealth of Australia v Stamatov [19] the complainant was born in Bulgaria and subsequently emigrated to Australia. He applied for a position with the Department of Defence which employed him on a temporary basis. However, he was dismissed after failing to fulfil an eligibility requirement that he obtain the security clearance of 'secret'. The reason that he was unable to obtain that clearance was that Bulgaria was a country where background checking was unable to be conducted. In concluding that the complainant had not satisfied section 9(1A)(c), Justice Von Doussa stated:

In my opinion when the expression "national origin" is given the meaning attributed to it by the Full Court in Macabenta, the evidence before the Commission could not support a finding that other non-Australian citizens of Bulgarian national origin comprised a group who could not comply with such a condition. The effect of the evidence was that the relevant aspects of checkability depended not upon characteristics that arose at the time of birth, but upon where the non-Australian citizen had lived and worked thereafter. The evidence cannot reasonably support the view that other non-Australian citizens of Bulgarian national origin who had lived their lives in countries where background checks could be conducted could not comply. [20]

Again, in seeking to identify any comparatively disadvantageous effects caused by the imposition of the condition, his Honour seemed concerned to exclude effects related to matters other than the narrow definition of national origin.

If this reasoning were applied in the case of the TPV regime, the court might, as in Stamatov, compare the position of Iraqi and Afghan asylum seekers who live in countries where there is an Australian mission. On that basis, it might be said that persons of Iraqi and Afghan national origin do not comprise groups who cannot comply with the condition of lawful entry to Australia. It might be said instead that any comparatively disadvantageous effect depends upon country of residence rather than national origin.

However, as noted above, Justice Sackville did not need to decide whether the requirements of section 9(1A)(c) were met in the case before him. Indeed, his Honour expressly noted that he was not expressing a final view on that question.

In the absence of binding appellate authority, there may remain some room for argument regarding the exclusion of 'non-narrow' national origin disadvantage. It could be said that all the section requires is a disadvantageous "effect" which operates unequally upon people of a particular group defined by reference to national origin as compared to another group or to other groups. If that effect is present and if it operates in that unequal fashion, there is nothing in the section which requires it to be tested to determine whether it is related to characteristics of members of the group arising at birth. Those characteristics are only relevant to identify the members of the group.

On that basis, it could be argued that Afghan and Iraqi TPV holders comprise two groups, defined by national origin, who, under the requirement to have entered Australia lawfully, are suffering disadvantageous effects as compared to other groups of people.

1.4 Impairment of human rights

As noted above, section 9(1A)(c) refers to rights of a certain character. Those rights are:

… any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

Among the human rights protected against indirect discrimination are all those listed in ICERD article 5. These relevantly include the right to equality before the law, the right to leave one's country and return, the right to equal participation in cultural activities and the right to education and training. Other human rights which Australia has undertaken to respect should also be protected including the right to seek and enjoy in other countries asylum from persecution, [21] the rights of children to family reunion [22] and to have their best interests taken into account in decisions affecting them, [23] and the right of everyone to the protection of the social security system without discrimination based on race. [24]

Click here to read article 5 in full.

Is there a 'right' to a visa?

The Federal Court, in De Silva v Ruddock [25] and Macabenta v Minister for Immigration and Multicultural Affairs [26], has rejected submissions to the effect that the phrase "any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life" encompasses a right of non-citizens to remain where they are temporarily resident or a right to apply for a visa that would confer permanent residency rights. The Full Federal Court in SZ v Minister for Immigration and Multicultural Affairs [27] held that an applicant for a protection visa has

[No] existing right to enter or remain in Australia, but only such rights as are given to him or her by the [Migration] Act. [28]

Nevertheless, those obstacles do not seem insurmountable. In De Silva and Macabenta the court was not dealing with refugees. Indeed, in De Silva, Merkel J expressly noted that refugees occupy a "special position" whose possible claims did not arise on the facts before him. In SZ the court was considering whether there was a relevant legal right recognised by domestic law, not whether there existed a relevant human right for the purposes of the RDA.

The right to equality before the law

The right to equality before the law [29] guarantees equality in domestic law and not just in relation to agreed human rights as explained by the Human Rights Committee:

[The right to equality before the law] prohibits discrimination in law or in fact in any field regulated and protected by public authorities. [It] is therefore concerned with the obligations imposed on States parties in regard to their legislation and the application thereof. Thus, when legislation is adopted by a State party, it must comply with the requirement … that its content should not be discriminatory. In other words, the application of the principle of non-discrimination contained in article 26 is not limited to those rights which are provided for in the Covenant (emphasis added). [30]

Economic and social rights

In addition, the TPV regime has detrimental effects upon the ability of TPV holders to access medical care, social security and social services (see Table 1 in the companion paper entitled 'Temporary Protection Visas: operation and impacts'). Those rights are explicitly mentioned in ICERD article 5 and are thus clearly covered by the RDA. [31]

1.5 Conclusion

In conclusion, the argument that TPVs are indirectly discriminatory contrary to RDA section 9(1A) faces its toughest test establishing that Iraqi and Afghan TPV holders are disadvantaged groups defined by their national origins. Establishing that the TPV regime is unreasonable would be another hurdle.

2. TPVs as discriminatory legislation contrary to RDA section 10

Section 10 of the RDA, unlike section 9, applies to discriminatory legislation. It is headed "Rights to equality before the law" and is "a provision which is directed to lack of enjoyment of a right arising by reason of a law whose purpose or effect is to create racial discrimination". [32] Section 10(1) states:

If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

Attempts to introduce into section 10 principles relating to indirect discrimination have been characterised as raising a false issue. [33] That is because section 10 deals with the effect of a law rather than with discrimination against an individual. That effect can be either direct or indirect. [34] Section 10 is not confined to legislation with a discriminatory purpose. [35]

Section 10 will only operate on legislation with the purpose or effect of discriminating against a group defined by its race, colour, ethnic origin or national origin. Two types of legislation will be 'corrected' or 'equalised' by section 10: one excludes a racial group from a benefit enjoyed by everyone else and the other imposes a detriment or penalty on only one racial group. [36]

The laws and regulations creating the TPV regime are arguably Commonwealth laws "by reason of" which some people (TPV holders) do not enjoy rights enjoyed by others (PV holders). However, the courts have adopted a rigorous approach to the words "by reason of". In Macabenta, the Full Federal Court said:

We think that it is important to have regard to the words "by reason of" when construing s 10. They require the practical application of causation principles … whilst at the same time according due recognition to the beneficial purposes and objects of the RDA. The ambit of the expression "by reason of" is not confined to the absence or limited extent of the enjoyment of the persons first mentioned in the section, but must extend right through to the point at which the section starts to do its deeming work. [37]

In Macabenta, the court was considering federal regulations creating new visas to authorise permanent residency for long-term temporary humanitarian residents in Australia from specified countries to which they could not return because of civil strife or a similar reason. To qualify for those visas, an applicant had to satisfy a number of conditions, including:

Ms Macabenta applied for the new visa but was unsuccessful because she had entered Australia on a Philippines passport. In rejecting her appeal from the decision of Tamberlin J, the Full Federal Court said:

Applying the well-known causation principles, the Visa Provisions should not be characterised as creating different levels of enjoyment between persons or persons of one (or more …) ethnic origin and "another" national origin. Those differences result from differences of citizenship and time of arrival in Australia. There may be some in the favoured group who are of a different national origin to those in the less favoured group, but that is not by reason of the Visa Provisions. In terms of sensible practical causation, it is because they are citizens of a different country and were not in Australia at the relevant time. [38]

Similarly, in the case of refugees from Iraq and Afghanistan, it would most likely be held that any differences in "levels of enjoyment" between them and refugees of other national origins result from the fact those from Iraq and Afghanistan formerly resided in countries where they were unable to make an application for a visa at an Australian visa office. Their country of residence, therefore, would most likely be said by a court to be the "operative discrimen … that breaks the … chain of causal connection" between national origin and the detrimental effects of the TPV regime.

3. TPVs and the Race Convention

Australia became a party to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in 1975 and passed the Racial Discrimination Act to incorporate these new obligations into national law in the same year. ICERD's objective is that all human rights in the political, economic, social, cultural and other fields of public life will be ensured to everyone without racial discrimination.

Racial discrimination is treating a person or group differently because of their race, colour, descent, national origin or ethnic origin when this treatment impairs, or is intended to impair, their human rights and fundamental freedoms.

ICERD permits distinctions between citizens and non-citizens, but not between different groups of non-citizens based on their "nationality".

3.1 ICERD definition of discrimination

ICERD article 1.1 defines racial discrimination as follows:

In this Convention, the term 'racial discrimination' shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

The expert Committee established by ICERD to monitor its implementation has described what is meant by "effect" in this definition:

In seeking to determine whether an action has an effect contrary to the Convention, [the Committee] will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin. [39]

Click here to read the Committee's discussion about the definition of discrimination in full.

The two questions relevant to whether there has been indirect discrimination are, according to the Committee:

1. whether there is a distinction that has a disparate effect or "impact" upon a group distinguished by race, colour, descent or national or ethnic origin, and

2. if so, whether that impact can be justified. [40]

Question 1 - disparate impact

The Committee has raised concerns about mandatory sentencing in Western Australia and the Northern Territory and expressed doubt whether it is lawful under the Convention.

The Committee expresses its concern about the minimum mandatory sentencing schemes with regard to minor property offences enacted in Western Australia, and in particular in the Northern Territory. The mandatory sentencing schemes appear to target offences that are committed disproportionately by indigenous Australians, especially juveniles, leading to a racially discriminatory impact on their rate of incarceration. The Committee seriously questions the compatibility of these laws with the State party's obligations under the Convention and recommends to the State party to review all laws and practices in this field. [41]

It should be noted that the Committee referred simply to the effect or impact of the laws in question. The Committee did not ask, for example, whether the disproportionate effect may have been related to factors other than race or ethnic origin (such as population distribution or socioeconomic disadvantage).

That approach might be contrasted with that adopted by Sackville J in the Australian Medical Council Case and von Doussa J in Stamatov (discussed in section 1.3 above).

However, that does not mean that the approach of the ICERD Committee will invariably give rise to a different result than that arrived at by Australian courts considering the RDA. By way of example, in BMS v Australia, [42] the Committee considered a complaint which followed on from the Australian Medical Council Case. The author, having lost his appeal before the Full Federal Court, complained to the Committee on essentially the same factual basis. The Committee rejected the complaint stating:

The main issue before the Committee is whether the examination and the quota system for overseas-trained doctors respect the author's right, under article 5 (e) (i) of the Convention, to work and to free choice of employment. The Committee notes in this respect that all overseas-trained doctors are subjected to the same quota system and are required to sit the same written and clinical examinations, irrespective of their race or national origin. Furthermore, on the basis of the information provided by the author it is not possible to reach the conclusion that the system works to the detriment of persons of a particular race or national origin. Even if the system favours doctors trained in Australian and New Zealand medical schools such an effect would not necessarily constitute discrimination on the basis of race or national origin since, according to the information provided, medical students in Australia do not share a single national origin. [43]

It is notable that the Committee did not foreclose the possibility that disparities favouring Australian trained doctors could constitute discrimination (only stating that such circumstances did not necessarily constitute discrimination). Presumably, had there been sufficient material before the Committee to satisfy it that the quota system did work to the detriment of a particular nationality, the Committee would have found that discrimination took place.

In contrast, in the Australian Medical Council Case before the Full Federal Court, Sackville J appeared to rule out the possibility that those circumstances would constitute discrimination using the approach described above (ie that any such disparities were more properly characterised as related to "patterns of migration" and the fact that Australian medical schools primarily serve the resident population of Australia).

Question 2 - justification

Unlike the RDA, there is no express requirement in ICERD that the person affected by indirect discrimination should demonstrate that the relevant term, condition or requirement is 'not reasonable'. However, the Committee has indicated only unjustifiable disparate impacts are discriminatory. The Committee has expanded on this, saying that differential treatment will not constitute discrimination if it is based on criteria which, "judged against the objectives and purposes of the Convention, are legitimate". [44] It appears that "legitimate" and "justifiable" are synonymous and both terms seem to indicate that the Committee would consider the substantive merits of the policy underlying the TPV regime.

In section 1.1, we have discussed the elements that might be considered by an Australian court for the purposes of determining whether a condition or requirement is "reasonable". Those same matters would be relevant to the question whether such a requirement is legitimate or justifiable under ICERD. However, the Committee would probably have even greater regard than an Australian court to the fact that the TPV regime may breach other provisions of human rights instruments (such as the prohibition on penalties for unlawful entry in article 31 of the Convention Relating to the Status of Refugees and the right to equality before the law). Those matters alone may take the TPV regime outside the bounds of what is "legitimate" or "justifiable".

3.2 Distinctions among non-citizens of different national origins

ICERD article 1.2 permits member countries to make distinctions between citizens and non-citizens.

This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.

However, article 1.3 prohibits discrimination between non-citizens on the basis of their "nationality".

Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.

The use of the word "nationality" in preference to "national origin" (which appears in article 1.1) might seem to indicate that article 1.3 confers a wider protection against discrimination, based upon nationality in the broader sense. However, it has been suggested that "nationality" should be read more narrowly as "national origin". [45]

The ICERD Committee has criticised Switzerland for imposing restrictions (apparently regulating admission to the country, entry to the Swiss workforce and access to certain facilities) under which preference was given to "foreigners" from "a culture marked by European ideas … and with living conditions similar to our own".

[T]he Committee expresses its disquiet at the so-called three-circle-model immigration policy which classifies foreigners on the basis of their national origin. The Committee considers the conception and effect of this policy to be stigmatising and discriminatory, and therefore contrary to the principles and policies of the Convention. [46]

The TPV regime similarly has the effect of creating differential treatment between asylum seekers of different national origins.

3.3 Country obligations to eliminate discrimination

ICERD articles 2 and 5 impose specific obligations upon ICERD member countries. Article 2 requires every member to pursue "all appropriate means" to eliminate discrimination by public authorities, in public policy, legislation and regulations and by the actions of all individuals, groups and organisations.

In article 5 member countries undertake to prohibit and eliminate racial discrimination in all its forms and guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, including in the enjoyment of specified civil, political, economic, social and cultural rights.

The Committee has emphasised that "the rights and freedoms mentioned in article 5 do not constitute an exhaustive list". [47]

As is clear from its concluding observations on Switzerland, the Committee views ICERD as covering immigration policy which discriminates amongst potential immigrants and non-citizens seeking admission to the Swiss workforce on the ground of national origin. This may indicate that the Committee would take a different view of the Macabenta and De Silva cases from that taken by the Australian Federal Court which was troubled by the notion that the applicants in those cases were invoking a right to remain in a country in which they were temporarily resident.

The entitlements denied to or detrimentally affected for TPV holders appear to be rights covered by ICERD articles 2 and 5. The rights conferred by those articles are discussed in section 1.4 above.

Thus, it could be argued that the TPV regime has a disproportionate effect upon persons of a particular national origin in a manner that breaches ICERD articles 2 and/or 5.

1. It is also possible that non-legislative components of the TPV regime involving denial of the provision of goods and services (eg DIMIA funded settlement support services) might be unlawful by reason of the combined operation of sections 9(1A) and 13 of the RDA. This possibility is not further explored in this paper.

2. See Schedule 2 of the Migration Regulations 1994, clauses 200.211, 201.211 and 202.211

3. See Schedule 2 of the Migration Regulations 1994, clauses 200.5, 201.5 and 866.5. Compare with clause 785.5.

4. (1996) 68 FCR 46, at 61.

5. Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251, per Bowen CJ and Gummow J at 263.

6. The last on, first off retrenchment policy in Banovic v Australian Iron and Steel (1989) 168 CLR 165 was unreasonable partly because of the company's historic refusal to hire women and the fact that it later delayed recruitment decisions in the case of female applicants as compared with males. Women were therefore disproportionately represented among those 'last on'. Deane and Gaudron JJ (at 181) accepted that it was open to the NSW Equal Opportunity Tribunal to find that "the condition or requirement was unreasonable in that it operated to keep alive the effects of past discrimination on the ground of sex and it was not established that it served the employer's legitimate interests". Dawson J (at 191) similarly stated, "the principle of 'last on, first off' is not inherently unfair or unreasonable. All things being equal, it may be a common sense way of selecting employees for retrenchment in the unfortunate event of that being necessary … The requirement imposed in this case was unreasonable because in the particular circumstances it repeated the discriminatory effect of the prior recruitment practice."

7. Waters v Public Transport Corporation (1992) 173 CLR 349, per Brennan J at 378-9.

8. Waters v Public Transport Corporation (1992) 173 CLR 349, per Dawson and Toohey JJ at 395.

9. Article 31 of the Convention Relating to the Status of Refugees provides that:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

It remains an open question whether a person can invoke article 31 if continued flight has been dictated by the refusal of other countries to grant asylum: G Goodwin Gill, The refugee in international law, 2nd edition, Clarendon, 1996, at 152. Margaret Allars has suggested that international treaty obligations that have not been incorporated into domestic law may be analogous to statements of policy: 'International Law and Administrative Discretion' in B Opeskin and D Rothwell (eds) International Law and Australian Federalism, Melbourne University Press, 1997, at 232. In Australian Medical Council v Wilson (1996) 68 FCR 46, an argument that the AMC's examination and quota system were in conflict with federal government policy was dismissed by the court.

10. Australian Medical Council v Wilson (1996) 68 FCR 46, at 79.

11. Australian Medical Council v Wilson (1996) 68 FCR 46, at 80.

12. Australian Medical Council v Wilson (1996) 68 FCR 46, at 81.

13. Macabenta v Minister of State for Immigration & Multicultural Affairs (1998) 90 FCR 202, per Carr, Sundberg and North JJ at 211 citing with approval Ealing London Borough Council v Race Relations Board [1972] AC 342, per Lord Cross at 365. See also the Full Federal Court decisions of De Silva v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 502, per Black CJ, Goldberg and Finkelstein JJ at 512; and Australian Medical Council v Wilson (1996) 68 FCR 46, at 75. Special leave applications to the High Court were made and refused in both De Silva and Macabenta.

14. Macabenta v Minister of State for Immigration & Multicultural Affairs (1998) 90 FCR 202, at 212.

15. Ealing London Borough Council v Race Relations Board [1972] AC 342, per Lord Cross at 365-6.

16. Australian Medical Council v Wilson (1996) 68 FCR 46, at 82-3.

17. Australian Medical Council v Wilson (1996) 68 FCR 46, at 83.

18. The applicant in this case made a complaint to the ICERD Committee, which is discussed in section 3 below.

19. Commonwealth of Australia v Stamatov [1999] FCA 105.

20. [1999] 105 FCA, per von Doussa J at para 46.

21. Universal Declaration of Human Rights article 14.

22. Convention on the Rights of the Child article 8 requires member states, including Australia, to 'respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference'.

23. Convention on the Rights of the Child article 3.1.

24. International Covenant on Economic, Social and Cultural Rights article 9.

25. (1998) 89 FCR 502, per Merkel J.

26. (1998) 154 ALR 591, per Tamberlin J at 600.

27. (2000) 101 FCR 342.

28. (2000) 101 FCR 342, at para 37.

29. The ICERD article 5 obligation to guarantee equality before the law is the source and justification for RDA section 10.

30. UN Human Rights Committee, General Comment No. 18 (1989), para 12.

31. See RDA section 9(2).

32. Gerhardy v Brown (1985) 159 CLR 70, per Mason J at 99.

33. Macabenta v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 591, per Tamberlin J at 601.

34. Macabenta v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 591, per Tamberlin J at 601.

35. State of WA v Ward [2002] HCA 28, per Gleeson CJ, Gaudron, Gummow and Hayne JJ at para 105.

36. Gerhardy v Brown (1985) 159 CLR 70, per Mason J at 98-9.

37. Macabenta v Minister for Immigration and Multicultural Affairs (Full Federal Court) (1998) 90 FCR 202, at 213.

38. (1998) 90 FCR 202, at 213.

39. CERD General Recommendation No. 14 (1993).

40. Or, importantly (but not relevantly here), excused as a special measure as defined by article 1.4.

41. CERD Concluding Observations on Australia, 19 April 2000, UN Doc. CERD/C/304/Add.101.

42. CERD Communication No. 8/1996, 10 May 1999, UN Doc. CERD/C/54/D/8/1996.

43. CERD Communication No. 8/1996, para 92.

44. CERD, General Recommendation No. 14 (1993), para 2.

45. N Lerner, The UN Convention on the Elimination of all forms of Racial Discrimination, Sijtoff and Noordhoff, 1980, at 30.

46. CERD Annual Report, UN Doc A/53/18, para 57.

47. See CERD General Recommendation No. 20 (1996) on non-discriminatory implementation of rights and freedoms.