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Introduced into the House of
Representatives on 31 October 2012
Portfolio: Immigration and Citizenship
Committee view
1.2
The committee notes that this bill forms part of a complex package of
primary and secondary legislation which raise issues of compatibility with
human rights and will consider it in the context of the broader package of
amendments arising from the Migration Legislation Amendment (Regional
Processing and Other Measures) Act 2012.
Purpose of the bill
1.3
This bill amends the Migration Act 1958 to:
- implement a recommendation of the Expert Panel on Asylum Seekers to
provide that asylum seekers who unlawfully arrive anywhere in Australia are
subject to the same regional processing arrangements as asylum seekers who
arrive at an excised offshore place;
- ensure that a person does not cease to be a transitory person if they
have been assessed to be a refugee; and
- provide for discretionary immigration detention of Papua New Guinea
citizens who are unlawful non-citizens and are in a protected area.
Compatibility with human rights
General issues of compatibility with human rights
1.4
In principle, as a matter of international law persons who are not 'lawfully'
present in Australian territory nonetheless enjoy a range of rights under the
ICCPR and other relevant human rights treaties while they are present in
Australia or under Australian jurisdiction. Those rights would include the
right not to be arbitrarily deprived of life, to be free from torture or cruel,
inhuman or degrading treatment, and a range of other rights. However, they
would not enjoy all the rights guaranteed in the treaties, and their enjoyment of
some rights may in certain circumstances be lawfully restricted to a greater
extent than is the case for those who are lawfully in the country. Those rights
in general would be applicable from the time such persons come under the
effective control of Australian officials or enter Australian territory
(including offshore territories). Australia’s international responsibility for
the treatment of such persons is also likely to continue even if the persons
are transferred to other countries which become involved in the detention of
transferred persons or the consideration of their refugee claims.
Compatibility with human rights
1.5
The statement of compatibility states that the bill is compatible with
human rights ‘because it does not engage any obligations under relevant human
rights treaties.’ It states that the bill does not engage or is compatible with
the right to freedom of movement (article 12, ICCPR) and the rights of aliens
in relation to expulsion (article 13, ICCPR); the right not to be arbitrarily
detained (article 9, ICCPR); the rights of children (Convention on the Rights
of the Child, in particular article 3); and non-refoulement obligations under
the ICCPR and the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment.
1.6
It is difficult to assess these claims on the basis of this bill alone,
given that it forms part of a complex set of legislative and administrative
arrangements. Nonetheless, the committee considers that this bill on its face
gives rise to issues of compatibility with human rights, in particular in so
far as it involves the holding of children in detention and may involve
transferring them to other countries as part of a regional processing
framework.
1.7
The committee also considers that there may be issues of compatibility
with the right not to be arbitrarily detained under article 9 of the ICCPR, if
persons are detained while their refugee claims are processed in order to give
effect to the 'no –advantage test' and the detention involved deliberate delays
to what would otherwise have been the reasonably expeditious processing of such
claims. While the Refugee Convention and its Protocol are not treaties listed
in the Human Rights Parliamentary Scrutiny) Act 2011, issues of
compliance with Australia’s obligations under those treaties have also been
raised by commentators.
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