Abstract
The right to health is a basic human right extending to all persons. Under international human rights law, States must ensure that policies which are under their domestic control do not operate in contradiction of human rights to which any persons, regardless of their citizenship or visa status, are entitled. In the context of Australian immigration detention, the Migration Act 1958 (Cth) enables the Australian Border Force to detain unlawful non-citizens (that is, a person who has arrived without a valid visa) for the purposes of immigration processing. Where such persons are detained for prolonged periods (which is purportedly done in the name of national security), such persons often experience detrimental physical and mental health despite Australia’s obligation to protect the human rights of all persons under their jurisdiction or control. This thesis considers the intersection of the right to health with that of Australia’s right to control its own border and territory.Through an analysis of international human rights law and commentary, this thesis explores the evolution of the right to health and domestic policies which permit immigration detention in Australia. This thesis also examines the relevance of Australia’s extraterritorial human rights obligations because of the use of offshore ‘Regional Processing Centres’. It argues that when exercising domestic border control, States should not violate international human rights law, and in particular, the right to health. Australian border control is examined in order to focus on the detention of children and the effect on their health and well-being. Further, this thesis examines the effects of prolonged detention on children, as is currently used in the Australian context, and the prevalence of long-term disability as a result of prolonged detainment. It provides support for the conclusion that Australia has, so far, failed to ensure that the right to health is protected for all persons under its jurisdiction or control, including any such persons who may have arrived unlawfully. It concludes that there is an opportunity for Australia to correct this path before future detainees are subject to such treatment.
| Date of Award | 16 Jun 2023 |
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| Original language | English |
| Supervisor | Danielle Ireland-Piper (Supervisor), Narelle Bedford (Supervisor) & Lindsey Stevenson-Graf (Supervisor) |