Online Examination Paper

SEMESTER: SECOND SEMESTER SUPPLEMENTARY/DEFERRED EXAMINATIONS 2023

UNIT: LLB140 HUMAN RIGHTS LAW – ONLINE EXAM

DURATION OF EXAMINATION: 3 HOURS 10 MINUTES

INSTRUCTIONS TO STUDENTS:

THERE ARE TWO (2) QUESTIONS AND ALL QUESTIONS ARE COMPULSORY.

WORD LIMIT:

QUESTION 1: 1000 WORDS MAXIMUM

QUESTION 2: 1000 WORDS MAXIMUM

TOTAL: 2000 WORDS MAXIMUM

MARKS FOR EACH QUESTION ARE AS INDICATED.

QUESTION 1

X, Y and Z were residents of a Southeast Asian developing country called Turma (fictional). They
belong to an ethnic minority group called the Doringa people. Doringa people have resided in
Turma’s Barkana province for more than 500 years. Along with the majority ethnic group of the
Turmis people, the Doringa people played an important role in achieving independence from a
Western colonial power in the year 2000. During the first ten years of the independence of Turma,
the Doringa people enjoyed full citizenship rights along with other ethnic groups in the country.
In 2010, Turma’s military ousted the democratically elected government and killed the founding
President of Turma. In the last 13 years, Turma has been ruled by this very oppressive military
government. Many international organisations and global human rights NGOs have been voicing
serious concern for widespread human rights violations in the country.
In 2015, the military government declared that the Doringa people were not citizens of Turma.
After this declaration, the military brutally attacked the Doringa people. In the last eight years,
they killed at least 20,000 Doringa people, including many women and children. The brutal killing
of the Doringa people is still ongoing unabated.
The international community failed to protect this vulnerable ethnic minority group. The only
country helping these people is a neighbouring developing country called Durma (fictional).
Nearly one million Doringa people live as refugees in Durma in an appalling condition. The host
country, Durma, does not have the means to provide for one million Doringa refugees. Moreover,
Durma is one of the most densely populated countries in the world, with a very small land area
and a large population.
In 2020, 110 Doringa people arrived by boat in a highly developed Asia-Pacific country called
Bestasia (fictional). Bestasia is one of the world’s largest economies and a very large country with
a relatively small population. 110 Doringa people were rescued by the Bestasia navy from the
country’s territorial waters and taken to an immigration detention facility. These 110 people
include X, Y and Z.
X is a 12-year-old boy, Y is a 10-year-old boy, and Z is a nine-year-old girl. They are orphaned
siblings. Turma’s military killed their parents. They initially arrived at a refugee camp in Durma.
After living at the refugee camp for two years in appalling conditions, they took a boat with other
people from their village. Finally, they arrived at the territorial waters of the Bestasia after a
perilous journey at sea.
Concerned about many boat arrivals, the Bestasia government announced that no person who
arrived by boat would ever be settled in Bestasia. They will be processed elsewhere; even if proven
to be refugees, they will be sent to other countries. The Bestasia government made an offshore
immigration processing arrangement with one of the neighbouring countries called Nowhereisland
(fictional). Nowhereisland has a dreadful human rights record. There are many allegations of
abusive behaviour and torture in the detention camps of Nowhereisland.

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Question 1 continued

After their arrival to Bestasia, X, Y and Z were initially detained in a detention centre of Bestasia
for three years with adult detainees from many different nations and cultures without initiating a
refugee status determination process. As per the recent policy, the Bestasia government decided to
transfer them to Nowhereisland to complete the refugee status determination process. However,
there may be some less restrictive means to achieve compliance with the national immigration
laws of Bestasia, rather than detaining these minors to detention centres or sending them to
Nowhereisland.
(a) Explain whether Bestasia violated international human rights law by detaining X, Y and Z
for three years without initiating the refugee status determination process. In your answer,
refer to the relevant provisions of the pertinent international legal instruments.
(13 marks)

(b) Explain whether it will be a violation of international human rights law if the Bestasian
authorities transfer X, Y, and Z to the Nowhereisland. In your answer, refer to the relevant
international legal instruments.
(12 marks)
[TOTAL 25 MARKS]

QUESTION 2

In the Concluding observations on the sixth periodic report of Australia, the Human Rights
Committee stated that:
5. The Committee notes the State party’s position that existing domestic laws adequately
implement the Covenant provisions, but observes that gaps in the application of Covenant rights
still exist. The Committee thus remains concerned about the lack of comprehensive incorporating
legislation…
6. The Committee reiterates its recommendation … that the State party should adopt
comprehensive federal legislation giving full legal effect to all Covenant provisions across all state
and territory jurisdictions ... UN Doc. CCPR/C/AUS/CO/6 (1 December 2017).

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Question 2 continued

Similarly, the Committee on Economic, Social and Cultural Rights, in the Concluding
observations on the fifth periodic report of Australia, stated that:
5. The Committee remains concerned that in spite of its previous concluding observations, the
Covenant provisions are still not fully incorporated into the State party’s domestic legal order and
therefore not justiciable in domestic courts…
6. The Committee recommends that the State party take immediate steps to incorporate fully the
Covenant provisions into the State party’s legal order so as to render them justiciable in domestic
courts. In this regard, the Committee reiterates its recommendation that the State party consider
introducing a federal charter of rights guaranteeing the full range of economic, social and cultural
rights… UN Doc. E/C.12/AUS/CO/5(11 July 2017).

(a) Write a short essay critically analysing the implications of the lack of a Bill of Rights in
protecting human rights in Australia. Do you think Australia should enact a Bill of Rights?
Why or why not? Explain with reasoning.
(20 marks)

(b) List the relevant provisions of the Australian Constitution that may appear to recognise some
human rights.
(5 marks)
[TOTAL 25 MARKS]

END OF PAPER

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