Discriminatory aspects of Australia's immigration program - Report by the Public Policy Assessment Society Inc.

Background

Racial discrimination

It is unlawful for a person to do any act involving a 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 any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

This provision reflects the definition of "racial discrimination" contained in the International Convention on the Elimination of All Forms of Racial Discrimination, at Part I, Article 1, clause 1:

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 use of the word "descent" clearly shows that racial discrimination does not apply merely to discrimination based on skin colour, but includes discrimination based on ancestry, tribe or family. The "family reunion" scheme, which is a particular feature of Australia's immigration program, thus appears quite plainly to be racially discriminatory, in that it gives preference to applicants who are related by descent or ancestry to people who are already residents of Australia.

Disability discrimination

The objects of this Act are:
(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
(i) work, accommodation, education, access to premises, clubs and sport; and

(ii) the provision of goods, facilities, services and land; and

(iii) existing laws; and

(iv) the administration of Commonwealth laws and programs; and

(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and

(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.

Disability discrimination is defined at s 5 thus:

(1) For the purposes of this Act, a person ("discriminator" ) discriminates against another person ("aggrieved person" ) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person on the ground of the other person's disability, or a disability of any of the other person's associates in the performance of that function, the exercise of that power or the fulfilment of that responsibility.

Australia's migration program would therefore have to treat people with a disability in a non-discriminatory way, allowing them the same opportunity as others to migrate to Australia, were it not for the special exemption at s 52 of the Act, viz:

Neither Division 1 nor 2:
(a) affect discriminatory provisions in the Migration Act 1958 or any regulation made under that Act; or

(b) render unlawful anything done by a person in relation to the administration of that Act or those regulations.

Thus, despite the clearly stated objects of the Disability Discrimination Act 1992, a special exemption permits the most flagrant discrimination in the matter of choosing migrants.

Comment

The disability discrimination which takes place under the Migration Act 1958, while not contrary to law, requires explanation. Given the clear statement of the objects of the Disability Discrimination Act 1992, and the broad general prohibition of disability discrimination, how can the Australian Government possibly justify exempting itself from this prohibition?

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July 1998. The Public Policy Assessment Society Inc.
Box 395 WODEN ACT 2606 Australia.

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