Footnotes
CHAPTER 1 - Introduction
[1]
See Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff
M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32.
CHAPTER 2 - Background
[1] [2011] HCA 32.
[2] The Hon Julia Gillard MP, Prime Minister of
Australia and the Hon Dato' Sri Najib Tun Razak, Prime Minister of Malaysia,
'Joint Statement with the Prime Minister of Malaysia', media release, 7
May 2011, http://www.pm.gov.au/press-office/joint-statement-prime-minister-malaysia (accessed 24 August 2011).
[3] The Hon Julia Gillard MP, Prime Minister of
Australia and the Hon Dato' Sri Najib Tun Razak, Prime Minister of Malaysia,
'Joint Statement with the Prime Minister of Malaysia', media release, 7 May
2011, http://www.pm.gov.au/press-office/joint-statement-prime-minister-malaysia (accessed 24 August 2011).
[4] The Hon Julia Gillard MP, Prime Minister of
Australia and the Hon Chris Bowen MP, Minister for Immigration and Citizenship,
'Australia and Malaysia sign transfer deal', media release, 25 July
2011, http://www.pm.gov.au/press-office/australia-and-malaysia-sign-transfer-deal (accessed 24 August 2011).
[5] Instrument of Declaration of Malaysia as a
declared country under subsection 198A(3) of the Migration Act 1958, 25 July
2011, http://www.comlaw.gov.au/Details/F2011L01685 (accessed 7 October 2011).
[6] The remaining sections of this chapter rely
heavily on Parliamentary Library, 'Migration Legislation Amendment
(Offshore Processing and Other Measures) Bill 2011', Bills Digest No.
53, 2011-12, 22 September 2011.
[7] Plaintiff M70/2011 v Minister for
Immigration and Citizenship; Plaintiff M106 v Minister for Immigration and
Citizenship, [2011] HCA 32, per Gummow, Hayne, Crennan and Bell JJ at 135.
[8] Per Gummow, Hayne, Crennan and Bell JJ at 143
and 146. Justice Heydon adopted a different
interpretation of the requirements of subsection 6A(4) of the Guardianship of
Children Act. In his Honour's view, 'the fundamental difficulty in the second
plaintiff's position is that s. 6A(4) provides that the section does not affect
the operation of any other law "regulating the departure of persons from
Australia". Section 198A is a law of that kind': per Heydon J at 198.
[9] The Hon Julia Gillard MP, Prime Minister, and
the Hon Chris Bowen MP, Minister for Immigration and Citizenship, transcript of
joint press conference, Brisbane, 1 September 2011, available at http://www.pm.gov.au/press-office/transcript-joint-press-conference-brisbane-1 (accessed 1 October 2011).
[10] Dr David Bennett AC QC, 'Offshore processing
still possible despite High Court decision', Sydney Morning Herald, 12
September 2011, p. 13.
[11] Stephen Gageler SC, Stephen Lloyd SC and
Geoffrey Kennett SC, In the matter of the implications of Plaintiff M70/2011
v Minister for Immigration and Citizenship for offshore processing of asylum
seekers under the Migration Act 1958 (Cth), opinion SG No. 21 of 2011, 2
September 2011, p. 2, available at http://www.minister.immi.gov.au/media/media-releases/_pdf/SG21-implications-of-migration-decision.pdf (accessed 21 September 2011).
[12] Dr David Bennett AC QC, 'Offshore processing
still possible despite High Court decision', Sydney Morning Herald, 12
September 2011, p. 13.
[13] The Hon Julia Gillard MP, Prime Minister of
Australia, and the Hon Chris Bowen MP, Minister for
Immigration and Citizenship, 'Legislation to restore Migration Act powers',
media release, 12 September 2011, available at http://www.pm.gov.au/press-office/legislation-restore-migration-act-powers (accessed 28 September 2011).
[14] Migration Legislation Amendment (Offshore
Processing and Other Measures) Bill 2011, Exposure Draft, 16 September 2011,
available at http://www.minister.immi.gov.au/media/media-releases/_pdf/migration-act-legislative-amendments.pdf (accessed 10 October 2011).
[15] Migration Legislation Amendment (Offshore
Processing and Other Measures) Bill 2011, Revised Exposure Draft, 19 September
2011, available at http://www.minister.immi.gov.au/media/media-releases/_pdf/updated-migration-act-legislative-amendments.pdf (accessed 10 October 2011).
[16] See Revised Exposure Draft, Schedule 1, item 25,
subsection 198AB(3).
[17] The Hon Tony Abbott MP, Leader of the
Opposition, 'Joint press conference with Senator the Hon George
Brandis SC, Shadow Attorney-General, and Mr Scott Morrison MP, Shadow Minister
for Immigration and Citizenship', 19 September 2011, available at http://www.wa.liberal.org.au/national-security/border-protection-tony-abbott-george-brandis-and-scott-morrison (accessed 10 October 2011).
[18] The Hon Tony Abbott MP, Leader of the
Opposition, 'Joint press conference with Senator the Hon George
Brandis SC, Shadow Attorney-General, and Mr Scott Morrison MP, Shadow Minister
for Immigration and Citizenship', 19 September 2011, available at http://www.wa.liberal.org.au/national-security/border-protection-tony-abbott-george-brandis-and-scott-morrison (accessed 10 October 2011).
[19] Dr David Bennett AC QC, Advice to Senator the
Hon George Brandis SC on behalf of the Coalition in relation to proposed
amendments to the Migration Act, 19 September 2011, p. 1.
[20] Dr David Bennett AC QC, Advice to Senator the
Hon George Brandis SC on behalf of the Coalition in relation to proposed
amendments to the Migration Act, 19 September 2011, pp 1-2.
[21] Chris Uhlmann, interview with the Hon Tony Abbott
MP, 20 September 2011, ABC website, available at http://www.abc.net.au/7.30/content/2011/s3322087.htm (accessed 28 September 2011).
[22] Dr David Bennett AC QC, Advice to Senator the Hon
George Brandis SC on behalf of the Coalition in relation to proposed amendments
to the Migration Act, 19 September 2011, p. 2.
[23] Dr David Bennett AC QC, Advice to Senator the
Hon George Brandis SC on behalf of the Coalition in relation to proposed amendments
to the Migration Act, 19 September 2011, p. 2.
[24] The Hon Tony Abbott MP, 'If Julia Gillard was
serious about stopping the boats she would support the Coalition's amendments',
media release, 19 September 2011, available at http://www.tonyabbott.com.au/LatestNews/PressReleases/tabid/86/articleType/ArticleView/articleId/8335/If-Julia-Gillard-was-serious-about-stopping-the-boats-she-would-support-the-Coalitions-amendments.aspx (accessed 10 October 2011).
[25] House of Representatives Hansard, 21
September 2011, pp 4-6.
[26] Schedule 1, item 25.
[27] Migration Legislation Amendment (Offshore
Processing and Other Measures) Bill 2011, amendments to be moved by Mr
Morrison, available at http://parlinfo.aph.gov.au/parlInfo/download/legislation/amend/r4683_amend_0c6655a5-264d-4864-aeee-dadda098468b/upload_pdf/11210b01Morrison.pdf;fileType=application%2Fpdf, (accessed 10 October 2011).
CHAPTER 3 - Key concerns
[1] See,
for example, Amnesty International Australia (Amnesty), Submission 13,
p. 8; Mr Andrew Bartlett and Ms Marianne van Galen-Dickie, Submission
19, pp 3-4.
[2]
Submission 2, p. 2.
[3] Committee
Hansard, 23 September 2011, p. 9.
[4] See,
for example, Australian Human Rights Commission (AHRC), Submission 18,
p. 8; Law Council of Australia, Submission 24, p. 10; Australian
Lawyers Alliance, Submission 22, p. 30.
[5]
Submission 13, p. 8.
[6]
Submission 18, p. 7.
[7]
Submission 19, p. 3.
[8] Committee
Hansard, 23 September 2011, p. 17. See also Ms Marianne van Galen-Dickie, Committee
Hansard, 23 September 2011, p. 24.
[9] Submission
17, p. 5.
[10]
Committee Hansard, 23 September 2011, p. 6.
[11]
See clause 13 of the Arrangement and Item 5.0 of the Operational Guidelines.
[12]
See, for example, International Commission of Jurists (Australia) (ICJA), Submission
4; Coalition for Asylum Seekers, Refugees and Detainees (CARAD), Submission 11;
Refugee Action Network Newcastle, Submission 12;
Liberty Victoria, Submission 15; Refugee Council of
Australia, Submission 17; AHRC, Submission 18;
Commonwealth and Immigration Ombudsman (Ombudsman), Submission
29.
[13]
Submission 15, p. 9.
[14]
Submission 18, p. 14.
[15]
ICJA, Submission 4, pp 6-7; Refugee Council of Australia, Submission
17, p. 5. The concern with respect to independence was also raised by the
AHRC, Submission 18, pp 13-14.
[16]
Submission 4, pp 6-7.
[17]
Committee Hansard, 23 September 2011, pp 20, 21.
[18]
Committee Hansard, 23 September 2011, p. 1.
[19]
ICJA, Submission 4, p. 7; Refugee Action Network Newcastle, Submission
12, p. 4; Amnesty, Submission 13, p. 6.
[20]
Committee Hansard, 23 September 2011, p. 5.
[21]
Committee Hansard, 23 September 2011, p. 5. The committee notes
that the Pre-Removal Assessment Process for Transfers to a Third Country for
Processing were provided by the Department of Immigration and Citizenship
(DIAC) as an attachment to its response to question on notice 20, received 30
September 2011.
[22]
Committee Hansard, 23 September 2011, p. 12.
[23]
Australian Refugee Law Academics, Submission 25, p. 10.
[24]
Submission 17, pp 1-2.
[25]
Submission 4, p. 7.
[26]
Submission 11, p. 4.
[27]
Submission 15, p. 9. See also ICJA, Submission 4, pp
7-8; ACT Refugee Action Committee, Submission 5, pp 14-15; Refugee
Council of Australia, Submission 17, p. 11; AHRC, Submission 18,
p. 8; Law Council of Australia, Submission 24, pp 10-11;
Australian Lawyers for Human Rights, Submission 28, p. 9; National
Ethnic and Multicultural Broadcasters' Council, Submission 36, p. 4.
[28]
Submission 24, pp 10-11.
[29]
Committee Hansard, 23 September 2011, pp 27-28.
[30]
See, for example, ACT Refugee Action Group, Submission 5, p.
15; AHRC, Submission 18, p. 12, which noted that the
Arrangement makes 'no provision for even basic assistance in accessing legal
advice or advocacy'. See also Refugee Council of Australia, Submission 17,
p. 11, which recommended 'immediate clarification' on a number of issues,
including access to legal advice.
[31]
Committee Hansard, 23 September 2011, p. 17.
[32]
Submission 24, p. 11.
[33]
Submission 28, p. 11.
[34] Clause
1(3) of the Arrangement. See further, clause 12(1) of the Arrangement.
[35] Some
submitters and witnesses also identified obligations arising under norms of
customary international law, such as the principle of non-refoulement: see, for
example, ICJA, Submission 4, p. 2; Professor Jane McAdam, Committee
Hansard, 23 September 2011, p. 12. See further, Declaration of
State Parties to the 1951 Convention and/or its 1967 Protocol Relating to the
Status of Refugees (12‑13 December 2001), UN DOC
HCR/MMSP/2001/09.
[36]
See, for example, Human Rights Watch, Submission 2; United Nations
Association of Australia, Submission 3; ICJA, Submission 4;
Liberty Victoria, Submission 15; Refugee Council of Australia, Submission
17; AHRC, Submission 18; Castan Centre for Human Rights Law, Submission
21; Australian Lawyers Alliance, Submission 22; Australian Refugee
Law Academics, Submission 25; Australian Lawyers for Human Rights, Submission
28. See further, Mr Andrew Bartlett and
Ms Marianne van Galen‑Dickie, response to question on
notice, received 28 September 2011.
[37] Opened
for signature 28
July 1951 [1954] ATS 5, (entered into force for Australia on
22 April 1954).
[38] Opened
for signature 31 January 1967, [1973] ATS 37, (entered into force for Australia
on 13 December 1973).
[39] Refugee
Convention, Article 33(1).
[40] Refugee
Convention, Article 3.
[41] Refugee
Convention, Article 31.
[42] See,
for example, ICJA, Submission 4, p. 4; ACT Refugee Action Committee, Submission
5, p. 12; Liberty Victoria, Submission 15, pp 5-6; AHRC,
Submission 18, pp 9-13; Australian Refugee Law Academics, Submission
25, pp 3 and 15; Darwin Asylum Seekers Support and Advocacy Network
(DASSAN), Submission 20, p. 3; Castan Centre for Human Rights
Law, Submission 21, pp 3, 5-8; Australian Lawyers Alliance, Submission
22, pp 9-10, 22-23; Law Society of NSW, Submission 23,
p. 4; Law Council of Australia, Submission 24, p. 10;
Australian Lawyers for Human Rights, Submission 28, pp 7-8. See
further, the Hon John Dowd AO QC, ICJA, Committee
Hansard, 23 September 2011, p. 27.
[43] See
Articles 3, 4, 15, 16, 17, 21, 22, 26, 27, 28.
[44] Opened
for signature, 19 December 1966, [1980] ATS 23, (entered into force for
Australia on 13 November 1980).
[45] Opened
for signature 19 December 1966, [1976] ATS 5 (entered into force for Australia
on 10 March 1976).
[46] See
ICCPR, Articles 2(3), 9, 26; ICESCR, Articles 11-13.
[47] ICESCR,
Articles 11-13.
[48] Opened
for signature, 4 February 1985, [1989] ATS 21 (entered into force for Australia
on 7 September 1989). See especially, Articles 2 (prohibition on torture),
3 (prohibition on refoulement where there are substantial grounds for believing
that the person would be in danger of being subjected to torture on his or her
return), 16 (prohibition on cruel, inhuman or degrading treatment). See
further, ICCPR, Article 7 (prohibition on torture and cruel, inhuman or
degrading treatment or punishment).
[49] Opened
for signature 20 November 1989, [1991] ATS 4 (entered into force for Australia
on 16 January 1991). See especially Articles 2, 3(1), 20(1), 22, 24(1),
28, 37(b).
[50] See,
for example, Human Rights Watch, Submission 2; United
Nations Association of Australia, Submission 3; ICJA, Submission 4;
Liberty Victoria, Submission 15; Refugee Council of
Australia, Submission 17; Castan Centre for Human Rights Law, Submission
21; Australian Lawyers Alliance, Submission 22; Australian
Refugee Law Academics, Submission 25; Australian Lawyers for
Human Rights, Submission 28. See further, Professor Jane McAdam, Committee
Hansard, 23 September 2011, p. 12;
the Hon John Dowd AO QC, ICJA, Committee Hansard, 23 September
2011, pp 27-28, 32.
[51] This
broad categorisation was articulated by the Australian Refugee Law Academics, Submission
25, pp 10-13. See further, Professor Jane McAdam, Committee
Hansard, 23 September 2011, p. 12.
[52] AHRC,
Submission 18, p. 8; Castan Centre for Human Rights Law, Submission
21, pp 16-17; Australian Refugee Law Academics, Submission 25,
p. 10.
[53]
Opened for signature 17 March 1966, [1975] ATS 40 (entered into force for
Australia 30 October 1975).
[54] Australian
Refugee Law Academics, Submission 25, p. 10; Amnesty, Submission 13,
pp 6-8; AHRC, Submission 18, p. 8.
[55] Castan
Centre for Human Rights Law, Submission 21, p. 11, citing UN
Committee on the Rights of the Child, General Comment 6 (2005), p. 10.
[56] Australian
Refugee Law Academics, Submission 25, p. 10; Professor Jane
McAdam, Committee Hansard, 23 September 2011, p. 12. See
further, CARAD, Submission 11, p. 2; UnitingJustice Australia, Submission 14,
pp 1-2; Liberty Victoria, Submission 15, pp 2-4.
[57] Australian
Refugee Law Academics, Submission 25, p. 10.
[58] Australian
Refugee Law Academics, Submission 25, p. 10.
[59] Professor
Jane McAdam, Committee Hansard, 23 September 2011,
p. 12.
[60] Human
Rights Watch, Submission 2, p. 1; ICJA, Submission 4,
p. 4; Law Council of Australia, Submission 24, p. 9.
[61] ICJA,
Submission 4, p. 4; ACT Refugee Action Committee, Submission
5, pp 10-12; Liberty Victoria, Submission 15, p. 6;
AHRC, Submission 18, pp 11-12; Law Council of Australia, Submission
24, p. 9.
[62] See,
for example, reports by the United Nations High Commissioner for Refugees (UNHCR),
United Nations Children's Fund (UNICEF), Amnesty and other Malaysian and
international non-government organisations, summarised in ACT Refugee Action
Committee, Submission 5, Appendix 1, pp 20-24; Australian
Refugee Law Academics, Submission 25, pp 15-16; ICJA, Submission 4,
p. 2.
[63] See
clause 11(2) of the Arrangement.
[64] AHRC,
Submission 18, p. 8. See further, Australian Refugee Law
Academics, Submission 25, pp 10-11.
[65] ICJA,
Submission 4, p. 2; ACT Refugee Action Committee, Submission 5,
Appendix 1, p. 18; Office of the Commissioner for Equal Opportunity,
South Australia, Submission 10, p. 1; Amnesty, Submission 13,
pp 5-8; Refugee Council of Australia, Submission 17, p. 4;
AHRC, Submission 18, pp 7-8; Castan Centre for Human Rights Law, Submission
21, p. 17; Australian Lawyers Alliance, Submission 22,
pp 20-21; Law Society of NSW, Submission 23, p. 3;
Law Council of Australia, Submission 24, p. 10; Australian Refugee
Law Academics, Submission 25, pp 11-13; New South Wales
Council for Civil Liberties, Submission 27, p. 2.
[66] See,
for example, Australian Refugee Law Academics, Submission 25, pp
11-12.
[67] See,
for example, Australian Refugee Law Academics, Submission 25, p.
13. See further, Amnesty International, 'Abused and Abandoned: refugees denied
rights in Malaysia', June 2010, p. 14, available at: http://www.amnesty.org.au/images/uploads/ref/abused_and_abandoned-refugees_denied_rights_in_malaysia.pdf
(accessed 30 September 2011).
[68] See,
for example, ICJA, Submission 4, p. 3; Liberty Victoria, Submission
15, pp 2-4; Castan Centre for Human Rights Law, Submission 21,
p. 5. See also Professor Jane McAdam, Committee Hansard, 23 September
2011, p. 12.
[69] See,
for example, ICJA, Submission 4, p. 3; Liberty Victoria, Submission
15, pp 2-4; AHRC, Submission 18, pp 9-10; DASSAN, Submission
20, p. 1; Castan Centre for Human Rights Law, Submission 21,
p. 5; Professor Jane McAdam, Committee Hansard, 23 September
2011, p. 12; Dr Judyth Watson, CARAD, Committee Hansard, 23
September 2011, p. 23. The Law Society of NSW, Submission 23, p.
3 expressed uncertainty as to whether the Arrangement imposes a penalty, but
stated that it does place Transferees in a position of 'great disadvantage and
vulnerability'.
[70] ICJA,
Submission 4, p. 3; Amnesty, Submission 13, p. 9;
Liberty Victoria, Submission 15, p 3; AHRC, Submission 18,
p. 8.
[71]
ICJA, Submission 4, p. 3; Liberty Victoria, Submission 15,
p 4; AHRC, Submission 18, p. 11.
[72]
ICJA, Submission 4, p. 3; Amnesty, Submission 13, p.
8; Law Society of NSW, Submission 23, p. 3.
[73]
UNHCR website, '2011 UNHCR country operations profile – Malaysia',
available at: http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e4884c6&submit=GO
(accessed 26 September 2011).
[74]
See, for example, Amnesty, Submission 13, pp 4-5; AHRC, Submission
18, pp 11-12; DASSAN, Submission 20, p. 5; Mr Paul Power,
Refugee Council of Australia, Committee Hansard, 23 September 2011,
p. 4. See also Dr Judyth Watson, CARAD, 'Refugee Council of Australia
visit to Malaysia July 11th-15th', p. 2, available
at: http://www.carad.org.au/images/stories/RCOA_visit_to_Malaysia_11072011.pdf
(accessed 27 September 2011).
[75]
Amnesty, Submission 13, pp 4-5; Dr Judyth Watson,
CARAD, 'Refugee Council of Australia visit to Malaysia July 11th-15th',
p. 2, available at: http://www.carad.org.au/images/stories/RCOA_visit_to_Malaysia_11072011.pdf
(accessed 27 September 2011).
[76]
See Amnesty International, 'Abused and Abandoned: refugees denied rights
in Malaysia', June 2010, p. 15, available at: http://www.amnesty.org.au/images/uploads/ref/abused_and_abandoned-refugees_denied_rights_in_malaysia.pdf
(accessed 30 September 2011).
[77]
See Amnesty International, 'Abused and Abandoned: refugees denied rights
in Malaysia', June 2010, p. 9, available at: http://www.amnesty.org.au/images/uploads/ref/abused_and_abandoned-refugees_denied_rights_in_malaysia.pdf
(accessed 30 September 2011). Amnesty International goes on to note that in
July 2009 it was informed by the Director General of Immigration that RELA's
role in immigration enforcement would end in July 2009. At the time of writing
of Amnesty International's report (June 2010), RELA continued to operate in
that capacity.
[78]
Submission 20, p. 5.
[79]
Clause 10(3)(a) of the arrangement. This covers the period where the Transferee's
claim for protection is being considered and, where a Transferee is determined
to be in need of protection, any period they wait for resettlement.
[80]
Clause 10(4)(a) of the arrangement.
[81]
Item 1.1.2 (f) of the Operational Guidelines.
[82]
Clause 8(1) of the arrangement.
[83]
Item 3.0 of the Operational Guidelines.
[84]
Item 3.1 of the Operational Guidelines.
[85]
Item 3.2 of the Operational Guidelines.
[86]
Item 3.3 of the Operational Guidelines.
[87]
Item 3.4 of the Operational Guidelines.
[88]
Refugee Council of Australia, Submission 17, p. 5; AHRC, Submission
18, p. 11.
[89]
See, for example, AHRC, Submission 18, pp 9-14; Australian
Refugee Law Academics, Submission 25, p. 15.
[90]
Submission 17, pp 3-4.
[91]
Submission 2, p. 4.
[92]
Submission 18, pp 12-13.
[93]
Submission 18, p. 12. See also Castan Centre for Human
Rights Law, Submission 21, p. 7.
[94]
Mr Andrew Bartlett, Committee Hansard, 23 September 2011, p. 21,
who recommended that Australia provide more resources to the UNHCR and IOM. See
also Dr Judyth Watson, Board Member, CARAD, 'Refugee Council of
Australia visit to Malaysia July 11th-15th', pp 5-6,
available at: http://www.carad.org.au/images/stories/RCOA_visit_to_Malaysia_11072011.pdf
(accessed 27 September 2011).
[95]
Submission 25, p. 15.
[96]
Dr Judyth Watson, Board Member, CARAD, 'Refugee Council of Australia
visit to Malaysia July 11th-15th', p. 6, available
at: http://www.carad.org.au/images/stories/RCOA_visit_to_Malaysia_11072011.pdf
(accessed 27 September 2011).
[97]
Dr Judyth Watson, Board Member, CARAD, 'Refugee Council of Australia
visit to Malaysia July 11th-15th', p. 2, available
at: http://www.carad.org.au/images/stories/RCOA_visit_to_Malaysia_11072011.pdf
(accessed 27 September 2011).
[98]
Submission 2, p. 4.
[99]
ICJA, Submission 4, p. 8.
[100] ACT Refugee Action
Committee, Submission 5, p. 15.
[101] Liberty Victoria, Submission
15, p. 5.
[102] Submission 18,
pp 16-17. See also Castan Centre for Human Rights Law, Submission 21,
p. 10; Australian Refugee Law Academics, Submission 25, p.
16; Mr Allan Asher, Ombudsman, Committee Hansard, 23 September 2011,
p. 6.
[103] See, for example, ICJA, Submission
4, p. 10; Castan Centre for Human Rights Law, Submission 21,
pp 10-11. The committee notes, however, that the Commonwealth Ombudsman has
acknowledged 'as a positive initiative that an independent observer role is to
be provided by a service provider [to oversee the transfer of unaccompanied
minors]. Under that arrangement, the provider will be available to attend
interviews with unaccompanied minors and advise the interviewer of any concerns
about the emotional and physical state of the child or young person, to provide
a reassuring and friendly presence for the child or young person, ensure his or
her understanding of the process, and otherwise to look out for his or her
interest': Ombudsman, response to question on notice, received 30 September
2011, p. 3.
[104] AHRC, Submission 18, p.
16; DASSAN, Submission 20, p. 4. In this regard, the committee
notes advice from the Commonwealth Ombudsman's office that it is its
understanding that the arrangement envisages that unaccompanied minors entering
Malaysia would fall under the provisions of the Malaysian Child Act 2001,
and that a Malaysian government official would become their legal guardian.
That official would seek a court order (within 24 hours) for the unaccompanied
minors to be placed in suitable care, including supervised group house
arrangements for older unaccompanied minors and foster care arrangements, as
appropriate: Ombudsman, response to question on notice, received 30 September
2011, p. 3.
[105] See, for example, Liberty
Victoria, Submission 15, p. 10. See also CARAD, Submission 11,
p. 4; Refugee Council of Australia, Submission 17, pp 2-3; Law
Council of Australia, Submission 24, p. 12; Professor Ben Saul, Committee
Hansard, 23 September 2011, p. 16; the Hon John Dowd AO QC,
ICJA, Committee Hansard, 23 September 2011, p. 27.
[106] Submission 15, p.
10.
[107] Submission 28, p. 10.
[108] See, for example, ICJA, Submission
4, p. 11; AHRC, Submission 18, pp 15-16; DASSAN, Submission
20, p. 4; Castan Centre for Human Rights Law, Submission 21,
pp 15-16; Australian Lawyers Alliance, Submission 22, pp
12-13; Law Council of Australia, Submission 24, p. 12; DIAC,
Submission 31, p. 15.
[109] See, for example, ICJA, Submission
4, pp 16-17; CARAD, Submission 11, p. 2; Amnesty, Submission
13, p. 2; Refugee Council of Australia, Submission 17, pp 6-7;
Australian Refugee Law Academics, Submission 25, p. 7; Mr
Allan Asher, Ombudsman, Committee Hansard, 23 September
2011, p. 9; Ms Marianne van Galen-Dickie, Committee Hansard,
23 September 2011, p. 22; the Hon John Dowd AO QC,
ICJA, Committee Hansard, 23 September 2011, p. 33.
[110] Submission 13,
p. 3.
[111] Submission 17,
pp 6-7.
[112] Mr Garry Fleming, DIAC, Committee
Hansard, 23 September 2011, p. 40 (evidence on the existing
resettlement figures from Malaysia of 200‑500 per year). See further,
DIAC, Submission 31, p. 8 (evidence on the resettlement intake
under the arrangement being additional to intakes under ongoing resettlement
programs).
[113] Submission 31, p,
8.
[114] Mr Garry Fleming, DIAC, Committee
Hansard, 23 September 2011, pp 40-41.
[115] Mr Garry Fleming, DIAC, Committee
Hansard, 23 September 2011, p. 41.
[116] Committee Hansard,
23 September 2011, pp 40-41.
[117] Mr Garry Fleming, DIAC, Committee
Hansard, 23 September 2011, p. 40.
CHAPTER 4 - Committee view and recommendations
[1]
See clauses 8 and 10 of the Arrangement.
[2]
Ms Vicki Parker, DIAC, Committee Hansard, 23 September 2011, p.
41.
[3]
DIAC, response to question on notice 32, received 30 September 2011.
[4]
Dr Wendy Southern, DIAC, Committee Hansard, 23 September 2011, p.
34.
[5]
Transcript of Interview with Howard Sattler, Radio 6PR, 8 July
2010, available at: http://www.pm.gov.au/press-office/transcript-interview-howard-sattler
(accessed 26 September 2011).
[6] Submission
31, p. 12; Dr Wendy Southern, DIAC, Committee Hansard, 23 September
2011, pp 34-35. According to the Department, the assessment will take into
account 'any issues raised by a potential transferee, general country
information and safeguards within the Arrangement...' p. 12. See further
Ms Vicki Parker, DIAC, Committee Hansard, 23 September 2011,
p. 42, noting that the screening will also be 'undertaken in relation to
character- and security-type issues'.
[7]
Supplementary Submission 31, p. 2.
[8]
See Committee Hansard, 23 September 2011, pp 49, 52-53 and 55.
[9]
Pre-Removal Assessment Process for Transfers to a Third County for
Processing, provided by DIAC as an attachment to its response to question
on notice 20.
[10]
See Supplementary Submission 29, p. 1.
[11]
Committee Hansard, 23 September 2011, p. 10. However, the committee
notes advice from the Department that the Ombudsman withdrew the request for the
guidelines in light of the High Court case and instead requested a
(second) briefing by the Department. On 22 September 2011, the
Department offered to provide a (further) briefing to the Ombudsman: DIAC,
response to question on notice 35, received 30 September 2011.
[12]
See Committee Hansard, 23 September 2011, pp 42-43. The committee
was told that pregnant women and sick children would be transferred if
appropriate medical assistance were in place, but 'it would depend on the
circumstances'; a diagnosis of tuberculosis would prevent a person from being
transferred because the person would not be fit to travel by plane; a person
with an adverse security assessment from the Australian Security Intelligence
Organisation would not necessarily be prevented from being transferred
(although a person whose name appears on a Malaysian prohibited immigrants,
terrorism, or international wanted list would not be transferred, according to
Item 1.1.2(b) of the Operational Guidelines); and a person who could credibly
claim fear of persecution in Malaysia would not be transferred.
[13]
See clause 8(1) of the arrangement.
[14]
Item 3.0 of the Operational Guidelines.
[15]
See Mr Paul Power, Refugee Council of Australia, Committee Hansard,
23 September 2011, p. 2.
[16]
UNHCR, response to question on notice, received 30 September 2011, p. 3.
[17]
See Mr Stephen Allen and Ms Vicki Parker, DIAC, Committee Hansard,
23 September 2011, p. 44; DIAC, response to question on notice 15, received 30
September 2011.
[18]
See Human Rights Watch, 'Malaysia: Disband Abusive Volunteer Corps', 9 May
2007, available at: http://www.hrw.org/en/news/2007/05/08/malaysia-disband-abusive-volunteer-corps
(accessed 30 September 2011).
[19]
See Amnesty International, 'Malaysia should halt expansion of security
force accused of abuses', 20 August 2010, available at: http://www.amnesty.org.au/news/comments/23562/
(accessed 30 September 2011).
[20]
Ms Vicki Parker, DIAC, Committee Hansard, 23 September 2011, p. 50.
[21]
See Amnesty International, 'Abused and Abandoned: refugees denied rights
in Malaysia', June 2010, p. 15, available at: http://www.amnesty.org.au/images/uploads/ref/abused_and_abandoned-refugees_denied_rights_in_malaysia.pdf
(accessed 30 September 2011).
[22]
Ms Vicki Parker, DIAC, Committee Hansard, 23 September 2011, p. 50.
[23]
Dr Wendy Southern, DIAC, Committee Hansard, 23 September 2011, p.
35.
[24]
DIAC, answer to question on notice 25, received 30 September 2011.
[25]
See Mr Stephen Allen, DIAC, Committee Hansard, 23 September 2011,
pp 43-44.
[26]
Mr Stephen Allen, DIAC, Committee Hansard, 23 September 2011, pp
46-47
[27]
Mr Stephen Allen, DIAC, Committee Hansard, 23 September 2011, p.
44.
[28]
DIAC, Submission 31, p. 14.
DISSENTING REPORT BY GOVERNMENT SENATORS
[1]
Department of Immigration and Citizenship (DIAC), Submission 31,
p. 3.
[2]
Submission 31, p. 3.
[3]
The Hon Chris Bowen MP, Minister for Immigration and Citizenship,
'Safest way to stop the boats', The Australian, 16 September 2011, p.
12.
[4]
Submission 31, p. 5.
[5]
The Hon Chris Bowen MP, Minister for Immigration and Citizenship,
'Safest way to stop the boats', The Australian, 16 September 2011, p.
12.
[6]
Dr Wendy Southern, DIAC, Committee Hansard, pp 34-35.
[7]
Dr Wendy Southern, DIAC, Committee Hansard, p. 35.
[8]
Dr Wendy Southern, DIAC, Committee Hansard, p. 35.
[9]
Dr Wendy Southern, DIAC, Committee Hansard, 23 September 2011, p.
35.
[10]
The Hon Julia Gillard MP, Prime Minister of Australia, House of
Representatives Hansard, 19 September 2011, p. 54.
[11]
The Hon Julia Gillard MP, Prime Minister of Australia, House of
Representatives Hansard, 19 September 2011, p. 57.
[12]
Ms Vicki Parker, DIAC, Committee Hansard, 23 September 2011, p. 42.
[13]
See Ms Vicki Parker, DIAC, Committee Hansard, 23 September 2011, p.
50.
[14]
DIAC, response to question on notice 25, received 30 September 2011.
[15]
DIAC, Submission 31, p. 11.
[16]
Submission 7, p. 1.
[17]
Submission 7, p. 1.
[18]
Response to questions on notice, received 30 September 2011, p. 5.
[19]
Submission 7, p. 1.
[20]
See further DIAC, response to question on notice 20, received 30 September
2011.
[21]
DIAC, Submission 31, p. 9.
[22]
Mr Allan Asher, Commonwealth and Immigration Ombudsman, Committee
Hansard, 23 September 2011, p. 7.
[23]
Commonwealth and Immigration Ombudsman, Supplementary Submission 29.
ADDITIONAL COMMENTS BY SENATOR SARAH HANSON-YOUNG
[1] http://www.refugeecouncil.org.au/resources/statements/110606_JS_Nauru_Malaysia.pdf.
[2] Australian
Refugee Law Academics, Submission No. 25 https://www.aph.gov.au/senate/committee/legcon_ctte/malaysia_agreement/submissions.htm.