CHAPTER 2
Key matters
2.1
Submitters and witnesses raised various matters in relation to the Bill.
In particular, stakeholders opposed the extension of the regional processing
regime from offshore entry persons to unauthorised maritime arrivals on the
mainland, and argued that Australia is in breach of its international law
obligations, including by transferring responsibility for unauthorised maritime
arrivals to regional processing countries. A few witnesses also commented
on the omission of reporting obligations in the Bill.
Opposition to extension of regional processing regime
2.2
While a number of submitters and witnesses were expressly supportive of
measures aimed at preventing the further loss of life at sea as the result of
dangerous maritime journeys, they opposed extending the policy of transferring asylum
seekers to third countries for the processing of protection claims.[1]
The reasons for this opposition varied.
Flawed policy basis
2.3
In evidence, Professor Penelope Mathew stated that the policy
justification for the Bill is flawed:
[T]he one justification that has been advanced is that we
have to stop deaths at sea. Unfortunately, I do not think the bill will do
that, even on its own logic. I think that pretending Australia does not
exist—excising ourselves from our own migration zone—may, in fact, result in
even longer journeys...[T]here was a report about some Sri Lankans who were
saying that they would go even further to seek asylum.[2]
2.4
Mr Sean Bain submitted that the Explanatory Memorandum presents the Bill
as a reasonable measure designed to rectify inconsistencies with the
application of the Migration Act. However, he highlighted the inconsistency
between the legal status conferred on irregular maritime arrivals arriving by
boat at excised offshore places, and the legal status of those persons arriving
by boat at any other place:
The remedy proposed in the Bill is to extend discriminatory
measures active in excised offshore places to the Australian mainland. The [g]overnment
is using a questionable and problematic legal anomaly as the basis for policy
making for the Australian mainland. This is policy on‑the‑run
rather than a measured response to a complex issue.[3]
'Push' and 'pull' factors
2.5
Other evidence argued that the policy of regional processing does not
deter asylum seekers from undertaking maritime journeys to
Australia,[4]
with some submitters focussing on the 'push' and 'pull' factors involved in refugee
migration.
2.6
As Dr Gabrielle Appleby, Associate Professor Alexander Reilly and Dr Matthew
Stubbs from Adelaide Law School explained:
[G]iven the severity of the 'push' factors facing asylum
seekers who cannot seek protection in their home states, there is a serious
doubt as to whether the incapacity to apply for a protection visa and immediate
removal from Australia to a third country will deter people from attempting to
reach Australia by boat.[5]
2.7
Mr Bain submitted that the key factors in a person's decision to travel
onward to Australia are the absence of satisfactory protection arrangements in
transit states, and deficiencies of regular pathways for resettlement in a
third country:
Most asylum seekers travelling by boat to Australia depart
from Indonesia...Asylum seekers in Indonesia have little hope of obtaining
resettlement through formal mechanisms. This serves as a push factor
influencing the decisions of asylum seekers to undertake the boat journey to
Australia...[T]here are proactive measures the Government could pursue to buffer
against push factors and reduce the number of asylum seekers [undertaking]
dangerous boat journeys to Australia from Indonesia.[6]
2.8
Professor Ben Saul from the University of Sydney similarly focussed on
the position of asylum seekers and refugees arriving in Indonesia:
[O]ne key reason why asylum seekers and refugees departed or
intended to depart Indonesia by boat to Australia was precisely because [United
Nations High Commissioner for Refugees (UNHCR)] processing times and
resettlement processes were too long and too uncertain. Upon arrival in
Indonesia, a person registering with UNHCR will typically wait between [six]
and [nine] months just to be interviewed, followed by a further [six] months to
a year awaiting a decision, followed by an unspecified period of time waiting
for resettlement – which also might never happen.
One of the most immediate ways Australia could save lives at
sea, therefore, is to provide support (through more funding and staffing) to
UNHCR to rapidly improve the speed of refugee status determination, as well
[as] by increasing the number of resettlement places from Indonesia and the
speed with which resettlement happens.[7]
Need for regional approach
2.9
At the public hearing, the United Nations High Commissioner for
Refugees' (UNHCR) representative, Mr Richard Towle, emphasised the need for a
regional approach to asylum seeker and refugee issues:
[T]he best way to deal with th[e]se issues is to improve the
quality of refugee protection and security for asylum seekers in other parts
of the region, to provide them with a real option other than to take these
dangerous and difficult journeys to Australia...[T]he proper and the most
sensible investment is in South-East Asia. The key lies in South-East Asia,
where people are coming from, buttressed by robust, fair asylum procedures in
Australia...Unilateral approaches that divert refugee populations on to other
countries, particularly poor and under-resourced Pacific island states, do not
really deal with the root causes of the problem[.][8]
Australia's alleged breach of its international law obligations
2.10
Many submitters and witnesses identified a wide range of international
law obligations, which are relevant to the measures proposed in the Bill. For
example:
- article 26 of the Vienna Convention on the Law of Treaties, which
states that parties must perform their treaty obligations in good faith;[9]
- article 14(1) of the Universal Declaration of Human Rights, which
provides that everyone has the right to seek and enjoy in other countries
asylum from persecution;[10]
- article 9 of the International Covenant on Civil and Political Rights
(ICCPR), which protects the right to liberty and the right not to be
arbitrarily detained;[11]
and
- article 3 of the Convention on the Rights of the Child, which requires
that member states must give primary consideration to a child's best interests
in all actions concerning children.[12]
2.11
Stakeholders particularly expressed concerns regarding Australia's
international law obligations under the Refugee Convention, including the
principle of non-refoulement, and article 26 of the ICCPR.
Refugee Convention
2.12
Submitters and witnesses commented on a range of international law
obligations contained in the Refugee Convention, including:
- article 31(1) – the prohibition against the imposition of
penalties on refugees;[13]
and
- article 21(1) – the prohibition against the expulsion of refugees
lawfully in the territory of a member state.[14]
Principle of non-refoulement
2.13
In general, stakeholders expressed the most concern in relation to the
principle of non-refoulement (article 33(1)):
No Contracting State shall expel or return ("refouler")
a refugee in any manner whatsoever to the frontiers of territories where his
life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion.[15]
2.14
A large number of submitters expressed concern that the Bill breaches
the non-refoulement principle, by applying regional processing
arrangements to all unauthorised maritime arrivals arriving by boat on the
Australian mainland.[16]
Some stakeholders argued that Australia directly breaches this principle by,
for example, not permitting refugee status determination to occur in Australia;[17]
while others contended that the breach occurs vicariously through the refugee
status determination procedures in regional processing countries.[18]
2.15
The Law Council of Australia (Law Council), for example, submitted that
the Refugee Convention does not specifically prohibit the excision of territory
for migration purposes, or expressly mandate that Contracting States process
asylum seekers within their borders:
However, the non-refoulement obligations contained in the
[Refugee] Convention require [s]tate parties to provide access to a refugee
status determination process that considers the individual circumstances of the
person seeking protection and that complies with international standards and
the object and purpose of the [Refugee] Convention.[19]
2.16
Several submitters considered that current offshore refugee status
determination procedures do not comply with international standards. Professor
Saul stated that the Bill fails to meet these standards:
[B]y degrading the status determination procedure for more
irregular arrivals, the Bill increases the probability of bad decisions and
heightens the risk of refoulement.[20]
Discrimination among asylum seekers
2.17
The issue of discrimination between regular and irregular arrivals
(unauthorised maritime arrivals) in Australia was also a concern in relation to
article 26 of the ICCPR, which provides:
All persons are equal before the law and are entitled without
any discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.[21]
2.18
Several submitters and witnesses argued that the proposed measures
breach Australia's international law obligations under article 26 of the ICCPR,
by discriminating among asylum seekers based on their mode of
arrival in Australia;[22]
the time of their arrival;[23]
and also on the basis of race, or national or social origin due to certain
groups of asylum seekers and refugees having no option but to travel by boat.[24]
2.19
The Law Council described the practical effect of such discrimination:
[The] Bill effectively creates two classes of refugees based
on mode of arrival. Under the approach endorsed by the [Bill], a temporary visa
holder arriving by air who becomes unlawful after visa expiry and subsequently
applies for protection will have access to the Migration Act provisions and be
able to access legal or migration assistance, merits review and judicial review
in Australia. In contrast, a person who arrives by boat seeking protection will
be liable to transferred to an offshore location. If this occurs, he or she will
be dependent upon whatever legal frameworks and processes apply in that
location for his or her protection claim.[25]
2.20
Dr Appleby, Associate Professor Reilly and Dr Stubbs argued:
The concept of the excised offshore place makes sense if
there is a territorial migration zone. However, the Bill completely changes the
concept of the migration zone. It is no longer an absolute concept (where land
is either in or out of the migration zone). It is now a relative concept. The
same territory can be part of the migration zone, or not, depending on the mode
of arrival of the person and their national identity.[26]
2.21
In evidence, Mr Towle from the UNHCR reflected on the current
'bifurcated' model of differential treatment, and asserted that the Bill
entrenches this model:
In [UNHCR's] view, this bifurcated system can discriminate
unfairly and arbitrarily on the basis of the manner of arrival if the rights
and entitlements are significantly different, which in our assessment they will
be under the current policy parameters of the government.
...[T]he UNHCR does not agree that deterrence is a legitimate
justification by which substantially different treatment can be justified.[27]
Access to the legal system
2.22
Some stakeholders expressed concern that the measures proposed in the
Bill deny asylum seekers and refugees access to the legal system in Australia,[28]
for example, by:
- transferring unauthorised maritime arrivals from Australia to
regional processing countries (item 20 of Schedule 1);
- repealing certain transitory persons' rights to access the
Refugee Review Tribunal, as set out in section 198C of the Migration Act (item
48 in Schedule 1);[29]
and
- banning the institution or continuation of certain legal
proceedings against the Commonwealth, as set out in section 494AA of the
Migration Act (items 51 to 58 of Schedule 1).[30]
2.23
The Law Council expressed concern that the Bill fails to adhere to
several rule of law principles, including, for example, not providing
'unauthorised maritime arrivals' with equal access to competent and independent
legal advice, as is available to asylum seekers arriving by air.[31]
Australian Lawyers for Human Rights agreed:
There is better access to legal representation when a refugee
is processed in Australia, including a clearly defined process for the
provision of interpreters, migration agents, solicitors and barristers.
Historically, legal assistance to offshore detainees in declared countries is
not only unavailable – it has been actively blocked.[32]
2.24
Mr Towle from the UNHCR highlighted the potential for discrimination in
the rights, entitlements and treatment of people who have arrived by boat in
Australia after 13 August 2012, and who have not been transferred offshore
for processing:
[B]y far the majority of the post 13 August arrivals group
will remain in Australia. In [UNHCR's] view, the rights and entitlements for
their treatment in this country needs to be aligned as closely as possible to
all other asylum seekers to avoid the kind of discriminatory treatment that...
would be offensive to article 31 of the [R]efugee [C]onvention [the prohibition
against penalisation of non-citizens].
For those people who will inevitably remain in Australia and
be processed in Australia, we are concerned that they face uncertainty, delays
to the commencement of their refugee status determination process and lesser
rights and entitlements, potentially following recognition as refugees as well.[33]
Breach of rules of natural justice
2.25
Liberty Victoria and the Law Council particularly commented on proposed new
subsection 198AE(1A), which will allow the Minister to vary or revoke a
determination made under subsection 198AE(1) of the Act (item 31 of Schedule 1). Subsection 198AE(1) of the Migration Act
allows the Minister to determine that a person is exempt from transfer to a
regional processing country.
2.26
Liberty Victoria described proposed new subsection 198AE(1A) as a
'retrospective power',[34]
and the Law Council remarked on it not being subject to the rules of natural
justice (subsection 198AE(3) of the Migration Act; item 33 of Schedule 1):
The effect of these amendments is to invest the Minister with
a broad power to reverse a decision that prevents a person from being
transferred offshore – without requiring that this decision be made in
accordance with the rules of natural justice. Any individual subject to these
provisions will be placed in a precarious situation where decisions that could
have a highly significant impact on their visa status and well-being can be
made and changed without regard to basic principles of fairness and justice.[35]
2.27
The Law Council of Australia recommended that the Minister be required
to:
...have regard to the full range of Australia's human rights
obligations and [be] bound by the rules of natural justice when making
decisions under section 198AE to exempt certain people from being transferred
to a regional processing country, or to vary or change such an exemption, and
to allow for judicial review of such decisions.[36]
Transferring responsibility to
regional processing countries
2.28
Some submitters and witnesses argued that Australia is seeking to avoid
its international protection obligations, by transferring responsibility for
asylum seekers and refugees who arrive in Australia by boat to third countries for regional processing.[37]
For example, the Law Council submitted:
[The Bill] broadens the scope of the Government's offshore
processing policy and leaves in no doubt the Government's intention to avoid a
number of its human rights obligations at international law, and in particular
its obligations under the [Refugee] Convention.[38]
2.29
According to the UNHCR, a member state cannot avoid its international
law obligations on account of domestic policy:
[U]nder international law any excision of territory for a
specific purpose has no bearing on the obligation of a country to abide by its
international treaty obligations which apply to all of its territory. This
includes the 1951 Refugee Convention, to which Australia is a party.
...
If asylum-seekers are transferred to another country, the
legal responsibility for those asylum-seekers may in some circumstances be
shared with that other country, but such an arrangement would not relieve
Australia of its own obligations under the [Refugee] Convention.[39]
2.30
Several submitters and witnesses provided examples of instances in which
Australia's international protection obligations could be breached, or are
alleged to have been breached, by a third country to which asylum seekers and
refugees have been sent from Australia for regional processing.[40]
2.31
Professor Mathew, for example, contended that Australia could only rely on
Nauru and Papua New Guinea for the purpose of meeting international law obligations
if those countries had relevant legal obligations, and could implement those
obligations in practice:
Nauru is not party to the ICCPR, and neither Papua New Guinea
nor Nauru are party to [the Convention Against Torture and Other Cruel, Inhuman
and Degrading Treatment or Punishment (CAT)]...Nauru and Papua New Guinea are
bound by customary international legal obligations with respect to torture and
related ill-treatment, however it is foolhardy to rely on mere obligation alone
and essential to ensure that the obligations are respected in practice.
Australia is relying on the procedures for determination of
refugee status in [Papua New Guinea] and Nauru to ensure that Australia's own non‑refoulement
obligations are met under the Refugee Convention. In theory, these procedures
would also go some way to ensuring that Australia's non-refoulement
obligations under the ICCPR and CAT are met too. However, Papua New Guinea and
Nauru do not presently have the capacity to determine refugee status fairly and
efficiently.[41]
2.32
In this context, some submitters and witnesses argued that the Bill adversely
affects Australia's international reputation,[42]
and does not encourage ratification of and compliance with international
instruments.[43]
Stakeholders indicated further that the Bill undermines a multilateral, or
regional, protection regime.[44]
2.33
At the public hearing, Mr Towle from the UNHCR commented:
[T]he practice of excising territory domestically not only
impacts on Australia's international obligations but is also watched very
carefully by other countries, which face different and sometimes similar
problems and challenges around balancing the humanitarian and human rights
needs of individuals against the legitimate concerns of state about border
integrity and security. We are concerned that measures to excise large portions
of territory to set up systems which substantially reduce fundamental refugee
protection rights set a negative precedent internationally. If all 148
countries that have signed the refugee convention were to set up similar kinds
of systems, which are in essence designed to deter and relocate asylum seeker
populations to other territories, this would have quite a significant and
deleterious impact on the international system of refugee protection.[45]
Departmental response
2.34
Officers from the Department of Immigration and Citizenship (Department)
confirmed that the Department has considered whether the Bill is consistent
with Australia's international obligations:
Part of the paperwork around the tabling of the [B]ill was a
statement about human rights obligations as seen against the purpose and the
provisions of the [B]ill. We are of the view...and have advice to the effect that
it is not in breach of our international obligations.[46]
2.35
A representative confirmed further that the Australian Government is
working with both the Nauruan and Papua New Guinean Governments:
...the arrangements for refugee status determination and the
memoranda of understanding that [we] have with those countries provides that
all people who are transferred under these arrangements under our legislation
will have access to refugee status determination processes.[47]
Reporting requirements
2.36
At the public hearing, a few witnesses provided evidence in relation to
the inadequacy of the Bill's reporting requirements. Ms Penovic from the Castan
Centre for Human Rights commented:
The Migration Amendment (Designated Unauthorised Arrivals)
Bill 2006 was the apogee, if you like, of the Howard government's Pacific
strategy and, in effect, would have erased Australia's onshore protection
program and converted it into a discretionary resettlement scheme. Yet this
earlier bill would have required the minister to report on arrangements for
refugee status assessment, accommodation, education and health care. The
current bill lacks these safeguards, raising profound concerns about the
protections accorded to those subject to its provisions.[48]
2.37
Professor McAdam also expressed concerns regarding the sufficiency of reports
which are, or have been, presented to the parliament, and questioned whether
the conditions in which people are detained offshore will in future be
rigorously scrutinised.[49]
Committee view
2.38
The committee notes that the intent of the Bill is to prevent the
further loss of life at sea by dangerous maritime journeys to Australia. Not
only is this the stated rationale for the Bill,[50]
it was also a key factor in the deliberations of the independent Expert Panel
on Asylum Seekers (expert panel), which recommended the current course of
action to the Australian Government.[51]
Although the number of persons arriving at the Australian mainland is
relatively small,[52]
the committee concurs that any loss of life at sea by persons seeking asylum is
simply not acceptable.[53]
2.39
The measures adopted in the Bill represent one approach to resolving asylum
seeker and refugee issues, and the committee is particularly mindful that the
proposed legislation implements one of 22 integrated recommendations – all of
which the Australian Government has accepted in principle, and has committed to
implementing.[54]
2.40
In view of the efforts currently being undertaken by the
Australian Government and regional processing countries to implement fair
and effective regional processing arrangements,[55]
the committee supports the intent of the Bill, subject to one important
amendment.
2.41
The committee considers that a comprehensive reporting requirement would
be desirable, to ensure transparency and accountability in relation to regional
processing arrangements. The committee considers that such an important
requirement should be included in the Bill, to enable the parliament to properly
scrutinise the arrangements for unauthorised maritime arrivals transferred to
regional processing countries as a result of this legislation. The details to
be provided to the parliament should cover issues such as refugee status
determination procedures and their outcomes, as well as arrangements for the
accommodation, health care and education of unauthorised maritime arrivals in
regional processing countries.
Recommendation 1
2.42
The committee recommends that the Bill be amended to require the
Minister for Immigration and Citizenship to report annually to both Houses of
Parliament in respect of the following matters:
- arrangements during each 12 month period for unauthorised maritime
arrivals seeking asylum, including arrangements for:
- assessing any claims for refugee status made by such unauthorised
maritime arrivals;
- the accommodation, health care and education of such unauthorised
maritime arrivals;
- the number of asylum claims by unauthorised maritime arrivals
that are assessed during each 12 month period; and
- the number of unauthorised maritime arrivals determined during each
12 month period to be refugees.
Recommendation 2
2.43
Subject to recommendation 1, the committee recommends that the Senate
pass the Bill.
Senator Trish Crossin
Chair
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