[126]
3.99
The
legislative creation of a new system of constructed potential indefinite
detention is a matter of great concern to the committee.
Breach of Australia's obligations under international law
3.100
Much of the evidence received by the committee
questioned the compatibility of the Bill's
measures with Australia's
human rights obligations under international law.[127] Most submissions and witnesses who
commented on international law issues argued that, if the Bill
is passed and all unauthorised boat arrivals are processed offshore, Australia
will in fact be in breach of several of its international law obligations.
3.101
Mr Brian Walters SC argued that:
... the international
message is that we will not get up and say openly that we repudiate our
obligations under the refugee convention but we will indicate that we will do
everything we can to ensure that we place our obligations offshore, transfer
them to others who, as in the case of Nauru, do not have those obligations, and
give them money, if necessary, to subvert their constitution to make sure that
they take on our responsibilities and we will say, 'We've done what we're
obliged to do.' The message is that we are being disingenuous as to our
obligations. The message is that we do not care about our international
obligations and we are not to be trusted on our international obligations. That
is a very serious position for Australia to place itself in internationally.[128]
3.102
Mr David Manne from RILC asserted that, in broad terms, what is at stake 'is the very
question of whether Australia will continue with its core international
obligations to protect vulnerable people who arrive in Australia from being expelled to persecution'.[129] He argued that the Bill's proposals 'represent a radical rejection'
of Australia's obligations under international human
rights treaties:
The flagrant violations
of the spirit and letter of international human rights obligations are of
fundamental importance for at least two main reasons: firstly, because they
represent a fundamental repudiation of the rule of law and radically undermine
the cornerstone of refugee protection—that is, the principle of nonrefoulement,
or nonexpulsion; and, secondly, and far more profoundly, we would say, is what
the bill represents in relation to the purpose and the people for whom these
very laws and the protection framework were made—some of the most vulnerable
people in the world, fleeing from torture, rape, arbitrary detention,
extrajudicial killing and the like.[130]
3.103
A
representative from the Department did not agree with the proposition that the Bill would have a significant impact on the
operation of, not only Australia's international law obligations, but on the
very international law instruments upon which Australia's obligations are derived:
... different countries
choose different ways to deal with people under the convention, according to
their own circumstances. For example, some countries choose to resettle people
internationally; some do not. The United States, for example, has chosen to intercept
possible asylum seeker case loads from Haiti and Cuba and process them in a place that is not on
the mainland of the United States. There are quite different practices around
the world to respond to particular circumstances. I know of no proposal for
everyone to choose this particular policy.[131]
Relevant international law obligations
3.104
In particular, the following international law
obligations were identified as being relevant to the regime that the Bill
proposes to put in place:
-
the requirement in Article 33(1) of the Refugee
Convention that a state is not to expel or return a refugee to the frontiers of
a territory where the refugee's life or freedom would be threatened on account
of their race, religion, nationality, membership of a particular social group
of political opinion (that is, the fundamental human rights principle of non-refoulement);
-
obligations under Article 31 of the Refugee
Convention that asylum seekers should not be penalised for arriving illegally
and Article 16 that relates primarily to the requirement of signatory states to
provide access to courts of law in their territory (which includes independent
merits review of initial determinations);
-
obligations under the International Covenant on Civil and Political Rights (ICCPR), including
the principle of non-discrimination (Article 26), ensuring effective remedies
for current and potential breaches of ICCPR rights (Article 2(3)), and the
entitlement to take court proceedings if deprived of liberty by arrest or
detention (Article 9); and
-
obligations under the Convention on the Rights of the Child (CRC), including the
obligation to act in the best interests of the child (Article 3(1)) and the
principle that children should only be detained as a measure of last resort
(Article 37(b)).[132]
3.105
The committee notes that Australia
is a party to, and has ratified, all of these international instruments.
Principle
of non-refoulement
3.106
One of the key issues raised by submissions and
witnesses was the potential for the proposals in the Bill
to result in refugees being returned to countries from which they have fled,
contrary to Article 33(1) of the Refugee Convention.
3.107
The committee notes the assurances of a
representative from the Department who told the committee that:
Australia
takes seriously its obligation not to refoule
refugees and does not remove people where this would be in breach of its
protection obligations under the Refugees Convention or other relevant human
rights instruments.[133]
3.108
The obligation of non-refoulement was discussed in three contexts:
-
as a result of processing of claims for asylum
offshore in a 'declared' country;
-
as a result of the inadequacy of processing
procedures in a 'declared' country; and
-
as a result of actions by the Australian Navy or
other Australian officials within, or even prior to reaching, Australian
waters.
Refoulement
from a 'declared' country
3.109
The committee received evidence from many
submissions and witnesses who argued that Australia
may not be able to meet its obligation of non-refoulement
where asylum-seekers are removed offshore to a 'declared' country for
processing.[134] Essentially, while
the Refugee Convention may, to a limited extent, recognise the concept of 'safe
third countries' to which a state can send asylum-seekers for processing claims,
the current legislative and administrative components of the excision scheme
framework, expanded by the Bill, are not seen as providing adequate substantive
or procedural safeguards against refoulement
from these countries.[135]
The concept
of a 'declared' country and safe third countries
3.110
In the second reading speech for the Bill,
the Parliamentary Secretary to the Minister for Immigration and Multicultural
Affairs, stated that:
It is important to note that the [Refugee Convention] does not
prescribe the processes which signatory states must follow to identify refugees.
The convention also does not establish an entitlement for asylum seekers to
choose the country in which their claims will be assessed or in which
protection will be provided. These are issues for sovereign states to settle.[136]
3.111
This view was also expressed by representatives
of the Department in the course of the committee's inquiry.[137]
3.112
The Bill provides
for asylum-seekers to have claims processed offshore in 'declared'
countries. In his Second Reading Speech
for the Bill, the Parliamentary Secretary to the
Minister stated that:
The minister may only declare a country where satisfied that it
will provide a place of safety for asylum seekers, where their refugee claims
can be assessed, and from which resettlement or voluntary return of refugees can
be arranged.[138]
3.113
By way of background, ALHR's submission noted
that the concept of a 'declared' country was analogous to the term 'safe third
country', although the latter term is ordinarily used to describe a country
through which an asylum-seeker has already passed.[139]
3.114
HREOC and Dr
Jane McAdam,
amongst others, acknowledged that a country will still meet its obligations
under Article 33(1) of the Refugee Convention if it sends asylum-seekers to a
so-called 'safe third country' for processing.[140]
3.115
However, certain conditions must be satisfied
for this to occur: any third country must be able to offer 'effective
protection' for the asylum-seeker. In her submission, Dr
McAdam outlined what was intended by
'effective protection', citing the critical elements determined by the Lisbon
Expert Roundtable, Global Consultations on International Protection, in 2001,
which included:
... respect for fundamental human rights ... in accordance with
applicable international standards, including ... no real risk that the person would
be subjected to torture or to cruel, inhuman or degrading treatment or
punishment'. Furthermore, protection is
only 'effective' if the asylum seeker does not fear persecution in the host
State, is not at risk of being sent to another State in which effective
protection would not be forthcoming, has access to means of subsistence
sufficient to maintain an adequate standard of living, and has his or her
fundamental human rights respected in accordance with international standards.
The State must comply with international refugee and human rights law in
practice (not just in theory), grant access to fair and efficient determination
procedures which include protection grounds that would be recognised in the
State in which asylum was originally sought, take into account any special
vulnerabilities of the individual, and maintain the privacy interests of the
individual and his or her family.[141]
3.116
Section 198A of the Migration Act deals with the
process for making a country a 'declared' country. Subsection 198A(3) provides
that the Minister may declare that a specified country:
-
provides access, for persons seeking asylum, to effective
procedures for assessing their need for protection; and
-
provides protection for persons seeking asylum,
pending determination of their refugee status; and
-
provides protection to persons who are given
refugee status, pending their voluntary repatriation to their country of origin
or resettlement in another country; and
-
meets relevant human rights standards in providing
that protection.
3.117
Significantly, there are no legislative criteria
which must be satisfied before the Minister exercises the discretion to declare
a country under subsection 198A(3); nor is it a requirement under subsection
198A(3) of the Migration Act that a 'declared' country be a signatory to the
Refugee Convention and therefore under the obligation not to refoule.
3.118
However, the Department advised the committee
that the Minister declares countries under subsection 198(3) using a number of
sources, including:
-
publicly available material, such as the US
State Department reports on human rights;
-
assessment of the Government of Nauru's
commitment through the signing of the Statement of Principles (10 September
2001);
-
protection provided under the constitutions of
Nauru and PNG; and
-
consultation with a number of governments and
organisations, including the UNHCR.[142]
3.119
As noted in Chapter 2, PNG and Nauru
are 'declared' countries for the purposes of subsection 198A(3) of the
Migration Act.[143] The committee was
advised that Nauru
is not a signatory to the Refugee Convention. PNG is a signatory (with some
reservations in relation to certain issues) but has not yet passed domestic
legislation implementing a refugee status determination process.[144]
Meeting
non-refoulement obligations using 'declared' countries
3.120
The committee received a significant volume of
evidence arguing that removing asylum-seekers to 'declared' countries may not
meet Australia's
obligations under Article 33(1) of the Refugee Convention.[145]
Many of those objections related to Nauru,
as the EM indicates that the offshore processing centre there was being
prepared to implement the measures contained in the Bill.[146]
3.121
The primary objection in relation to Nauru
was that it is not a signatory to the Refugee Convention, and therefore Australia
cannot absolve its own obligations under that instrument by sending
asylum-seekers to Nauru
for processing.[147] As the UNHCR told
the Senate Legal and Constitutional References Committee in its inquiry into
the Migration Legislation Amendment (Further Border Protection) Bill 2002:
... as a signatory to the Refugee Convention, Australia's
international protection responsibilities to asylum seekers in ... excised areas
continue to be engaged following their transfer to a third country for
processing. Only when a durable solution is found does this cease.[148]
3.122
Submissions and witnesses to this inquiry agreed
overwhelmingly with this analysis. For example, Mr
Angus Francis
maintained that Australia's
obligation not to refoule under Article
33 of the Refugees Convention applies irrespective of the designation of
persons as designated unauthorised arrivals and the removal of these persons to
offshore processing centres.[149]
3.123
Mr David
Manne from RILC expressed a similar view:
Australia does not relieve itself of its protection
obligations by seeking to export them or take them elsewhere. We would say that
of particular concern in this regard is that, even if it were to purport to do
so, what we have here goes to the very heart of the problem, and that is what
safeguards are there in reality and in law to ensure that the non-refoulement
principle is upheld—that is, that people are not refouled.[150]
3.124
In its submission, RILC also described the
transfer of asylum-seekers to Nauru
and PNG as a 'misuse' of the safe third country concept:
Use of the concept of the safe third country to transfer asylum
seekers to transit camps in countries such as Nauru or PNG where they have no
right of entry, to which they have no connection and which have no capacity to
facilitate their resettlement is a serious and dangerous misrepresentation and
misuse of the concept of the 'safe third country.'[151]
3.125
Dr Penelope
Mathew agreed:
I think what is
fundamentally wrong with it is that it seeks to use the somewhat controversial
concept of a safe third country—that is, the idea that Australia can rely on
protection elsewhere to avoid its responsibilities in a manner which does not
conform with accepted practice, which operates to the detriment of refugees and
diminishes rather than extends protection as intended by the refugee
convention.[152]
3.126
Significantly, in relation to Nauru
not being a signatory of the Refugee Convention, submissions and witnesses
pointed out that Nauru
is not bound by the obligation of non-refoulement
in Article 33(1).[153] Further, it was
argued that there is no way for Australia
to effectively bind Nauru
to this obligation via contract. Therefore, Australia
would be in breach of its obligations under Article 33(1) if it were to send
asylum-seekers to Nauru
for processing of their claims.
3.127
Mr Wright
from the UNHCR expressed that organisation's concerns about Nauru
not being a signatory to the Refugee Convention:
Since Nauru
was not a signatory to the refugee convention, there are no guarantees provided
by Nauru, that
UNHCR is privy to, that it is obliged under international law to provide
effective protection, despite the provisions of section 198A of the Australian
Migration Act. The bill therefore heightens the risk of refoulement, contrary
to article 33 of the refugee convention.[154]
3.128
Mr David
Manne from RILC argued that Nauru,
as a sovereign state, was able to determine who enters and who stays within its
territory:
Nauru as a sovereign nation exercises, as do all sovereign nations, authority
over those people within its territory. As a consequence, it is Nauru that decides under what circumstances
people are to go there and for how long they are able to stay. If at any point
Nauru decides, quite properly, to exercise its sovereign right to decide that
someone should no longer stay there, it is entitled to do so. What we know
about Nauru is that it is not a signatory to the Refugees Convention and does not
guarantee any protection to refugees at all, let alone, in our submission, have
the resources to do so.[155]
3.129
In its joint submission, the Victorian Bar and
PILCH stated that obligations under the Refugee Convention were non-assignable.
In addition, even if they were assignable, they were not obligations which
could be assigned to a non-contracting party of the Refugee Convention.[156]
Refugee
status determination procedures
3.130
A further concern raised during the committee's
inquiry was that the processing regime in offshore centres may be so manifestly
inadequate, that it exposes asylum-seekers to a significant risk of refoulement.
Uncertainty
about the process
3.131
A number of submissions and witnesses expressed
their uncertainty as to what the process with respect to offshore refugee
status determination will involve, since no clear procedures are set out in the
Bill itself.[157]
A representative from the Department responded to this concern by asserting
that the offshore refugee assessment process was modelled closely on the
process used by the UNHCR and 'was developed in close consultation' with the
UNHCR.[158] He also stated that, to
date, assessment of refugee claims on Nauru
has been undertaken by both the UNHCR and the Department.
3.132
However, in relation to the specific measures
proposed in the Bill, representatives from the
UNHCR informed the committee of their lack of involvement in the consultation
and development process.[159] They
also noted that the UNHCR had not received a formal request to participate in
facilitating or implementing the measures contained in the Bill:
We have received no
formal request for participation of UNHCR. We have had informal discussions
with regard to whether UNHCR would consider participation in determination,
review or resettlement. As I said, at this stage we want to wait and see what
shape this bill takes and whether it is enacted before we look at the implications
of its practice. We have seen that Australia can carry out its responsibilities and has
demonstrated that in the past, and we do not see a reason at this time for the
UNHCR to welcome or formally participate in the process of implementing this
bill. So we have expressed a disinclination to do so. But the doors are not all
closed on this; let us wait and see what happens with the bill.[160]
3.133
Mr David
Manne from RILC supported this view:
I note that the UNHCR's
submission to this committee notes the comment that what is proposed is to use
a UNHCR model of assessment. The UNHCR state that they are not really sure what
that means in this context and are not able to comment on it, because they do
not even have the information themselves. This is cause for serious concern in
that context. I note that the UNHCR have gone on to state that they do not take
the reference to UNHCR-style processing as a suggestion that UNHCR will assess
the applications themselves. In fact, I note that they are disinclined to participate.[161]
3.134
Dr Jane McAdam addressed the committee on the appropriateness of using a determination
procedure based on a UNHCR model. Noting that her impression was that
determination procedures would operate in a similar manner as they had in the
past, Dr McAdam said:
... the immigration department says it is considering perhaps
whether it can do it better, but I am not yet sure of what substantive changes
are being considered. One of the issues is that UNHCR’s processing is being
held up here as a model of processing, but I think this fails to appreciate
that UNHCR, by its nature, is a very different entity from a state. UNHCR has a
protection mandate. It undertakes refugee status determination. However, it
does not have an independent body to which it can turn for review. This is in
contrast to states, which do have levels of merits and judicial review. UNHCR
is intended to step in where states do not have functioning refugee status
determination procedures. Australia
does have such procedures. It therefore seems at odds with having a state
system for protection—which is really the ideal—that we would be reflecting
back to or adopting procedures which are those of an organisation which lacks
those levels of review.[162]
3.135
Mr Kerry
Murphy of ALHR also expressed concerns about
comparing the procedure for determining refugee status with the UNHCR model:
I just think that the legislation is procedurally flawed in that
it is making the model the lowest common denominator—namely, the UNHCR refugee
status determination process—rather than the more sophisticated, albeit flawed,
Australian model.[163]
3.136
In
response to questioning by the committee in relation to the role of the UNHCR
in offshore processing assessments, a representative from the Department told
the committee that:
It is not necessarily
our expectation. In the various discussions we have had with them, we have said
that the door is open to them to do that ... if it would allow them to have more
assurance about the process, we would be perfectly happy to consider models
which involve them in the primary decision making or review. Certainly, we
would be perfectly happy for them to be involved in the process of resettling
any people should the need arise. At this stage they have said they regard
their previous involvement as a one-off and they cannot see a role for
themselves, for the time being at least, in the current arrangements.[164]
Preserving the integrity of the process
3.137
Mr Manne from RILC stressed the importance of ensuring that refugee status
determination procedures are properly carried out:
In that context, we
note that this matter is not of theoretical importance but, rather, of
fundamental importance, because it goes to the cornerstone principle of refugee
protection—that is, the non-refoulement or non-expulsion principle that, under
any fair and proper system of assessment, there must be necessary safeguards to
ensure that there is a proper assessment of whether or not a person is owed and
needs protection. What we do not have here is any proper information about what
those safeguards will be. We do know what they will not be. What they will not
be are basically the fundamental safeguards under the Australian legal system
which are considered to be the basic prerequisites of fair and just decision
making in this country.[165]
3.138
Representatives from HREOC argued that the
assessment process requires clarification. As Mr
Innes explained:
If the processing is to
be carried out by Australia in Nauru then it is not as problematic, but if the
processing is to be carried out by third countries, particularly countries
which are not signatories to the refugee convention, then that is a much
greater concern.[166]
3.139
During the course of the committee's hearings in
relation to the inquiry, it became apparent that the departmental view was that
offshore assessment processes to be undertaken by Australia
'are administrative matters developed and implemented by the Department'.[167] The committee learned that the
Department has procedural guidelines which set out the standards for offshore
processing, including, for example, what level of compliance is required and
what appeal mechanisms will be available.[168]
3.140
A representative from the Department elaborated:
The document ... is the
core document for use by decision makers in conducting legal determination
offshore. There are no more detailed, specific instructions that go into
further levels of specificity about the process. The concept behind the process
was that when we were looking at a situation where the UNHCR had agreed to the
request from the government of Nauru to conduct refugee assessments for the
first group taken to that location, and Australia was going to be conducting
assessments for the subsequent groups, we attempted to model our process as
close as possible on the UNHCR process so that, from the perceptions of the
people who were in the processing centre there, there was no feeling that
somebody was getting a different treatment from their neighbour. The process is
one that is modelled on a UNHCR field determination process. It is very heavily
orally based, face-to-face contact with individuals, and there is not a huge
amount of specificity about the detail of the conduct of that process.[169]
3.141
The representative noted that some of the
procedures which will take place offshore are similar to those that take place
for onshore processing:
It focuses on the
protection obligations assessment element of our work, which is essentially the
same judgment that has to be made offshore as onshore, whether a person is a
refugee in terms of the refugees convention. To that extent, the principles and
the training that apply to decision making onshore apply to the decision making
offshore, and the officers who are doing the work offshore were people who had
been trained and experienced in the onshore process. So, to that extent, the
framework of instructions and training and law that go to that point of refugee
decision making were applied offshore.[170]
3.142
Several witnesses expressed serious apprehension
in relation to this issue. Ms Anna
Samson from A Just Australia noted that all
these procedures will be exercised under Nauruan law:
... it will not be done under Australian law, so the extent to
which the Australia
government and DIMA will be able to set those standards is questionable.[171]
3.143
Mr Kerry
Murphy from ALHR noted that these procedural
guidelines have not been previously publicly available:
I think this is one of
the major concerns that our organisation has: we have an onshore system for
which the procedures are set out and which is independently reviewable;
offshore it is a mystery and nobody really knows what goes on. It is basically
the department saying 'Trust us'—the same department that has appeared in
numerous inquiries and had difficulties in its own reform. Whilst we would
encourage the reform of the department, I would not say at the moment that we
would be inclined to give them unreviewable powers.[172]
3.144
The
committee notes also that the Department has advised that offshore processing
arrangements are 'currently under review to identify any measures which could
be taken to strengthen the process'.[173]
Increased risk of refoulement
3.145
Mr Hunyor
from HREOC argued that uncertainty about the process is one of the more problematic
areas of the Bill and could ultimately lead to
an increased risk of refoulement:
... the concern that
[HREOC] raises is that a process is being set up that has significant
shortcomings, namely, the uncertainty as to the actual process that is going to
be followed but particularly the absence of merits review. That heightens the
risk in reality of decisions being made that are wrong, resulting in refugees
being returned—or refoulement.[174]
3.146
Further, Mr
Hunyor expressed the view that, where
offshore asylum claim processing was inadequate, it would only be by 'good
fortune' that Australia
did not breach its obligations under the Refugee Convention.[175]
3.147
In relation to PNG, the committee understands
that it is a signatory to the Refugee Convention, although it has made
reservations in respect of seven provisions.[176]
Mr Wright
stated that, in the opinion of the UNHCR, Papua
New Guinea was doing its best to fulfil its
obligations under the Refugee Convention.[177]
3.148
The Department informed the committee that
'(o)ver the period since the establishment of the offshore processing
arrangements in PNG and Nauru, the practical outcome has been that no person
awaiting a refugee assessment or found to be a refugee has been returned to
their homeland against their will'.[178]
Refoulement
directly from Australian waters
3.149
The committee also received evidence relating to
the implications of the actions of the Australian Navy in removing from
Australian waters boats with asylum-seekers on board.[179]
3.150
Mr John
Gibson from the RCA referred to 'Operation
Relex', describing the rules of engagement as requiring the Australian Navy,
irrespective of whether claims for refugee status were made, to tow vessels out
to the open sea.[180] In its submission, the RCA also referred to
actions by the Australian Navy in providing information and intelligence to the
Indonesian Navy in order to assist it to intercept boats.[181]
3.151
Witnesses were unequivocal that such actions, if
they were applied to boats carrying asylum-seekers which were within Australian
waters, and who were coming directly from a territory where they had or were
being persecuted, would amount to refoulement
and would be in breach of Australia's obligations under Article 33(1) of
the Refugee Convention.[182]
3.152
Mr David
Manne from RILC expressed serious concerns
that no guarantees had been given by the Federal Government that a proper
assessment process would be applied prior to boats being removed from
Australian waters:
We would have hoped that ... there would be a guarantee of a
proper assessment process to assess what people’s protection needs were before
taking any steps whatsoever to send them back to a place where they could be
persecuted. Our concern at the moment is that those guarantees have simply not
been given. That raises the very real prospect, in the absence of guarantees,
that we are looking at a situation where the Australian Navy, for example,
could be put in the completely impossible position, in our view, of somehow
having to determine on the face of it whether or not someone should be sent
back to a situation of persecution. There are no guarantees or no proper
measures that have been guaranteed to ensure that that would not occur. For
example, there are no proper measures to ensure an assessment to work out
whether that person needs to come to Australia
to have their claims assessed.[183]
3.153
Mr Gibson
of the RCA expressed the view that the Australian Navy was not equipped to make
such assessments, nor should Australian armed forces be required to make such
an assessment.[184]
3.154
A departmental representative confirmed that
Operation Relex was still happening in Australian's northern waters.[185] Representatives from the Department
acknowledged that, as part of a whole of government effort in respect of
protecting Australian borders, situations would arise where Australian Defence,
Customs or other officers may intercept a boat and push it back from Australian
waters.[186] However, a departmental
official went on to state that any action to turn a boat around would be
scrutinised by the People Smuggling Task Force:
If there was any evidence or suggestion of
any asylum claims then such action could not and would not be taken. Such
action would be overseen by a group called the People Smuggling Task Force,
which is an [Interdepartmental Committee] with representation across a number
of agencies. That task force looks very closely to that issue before any action
is taken to turn around a boat.[187]
3.155
Departmental representatives indicated that a
distinction might be drawn between the situation where asylum-seekers were
coming directly from a territory of persecution and events which occurred in
2001, where boats carrying asylum-seekers were turned away from Australia:
The situation in 2001 had to do with
people who were coming to Australia as secondary movements – it was not a question of first flight
– and there was a possibility of returning them to Indonesia, where arrangements had been made for them to be looked after
and for them to stay while any protection claims were heard there. I think the situation is different
for any people who might be coming to Australia
from a neighbouring country as a matter of first flight.[188]
Prohibition
on imposing a penalty for illegal entry or presence in a state
3.156
The committee received submissions and evidence
as to how various aspects of the offshore processing regime may be regarded as
a 'penalty', which would be in breach of Article 31(1) of the Refugee Convention.[189]
3.157
Article 31(1) of the Refugee Convention states
that contracting states shall not impose penalties, on account of illegal entry
or presence, on a refugee who comes directly from a territory where their life
or freedom was threatened, provided the person presents themselves without
delay to the authorities and shows good cause for their illegal entry or
presence.
Definition
of penalty
3.158
Dr Jane
McAdam's submission noted that the
prohibition in Article 31 extends, not only to persons who are ultimately determined
to be refugees, but also to persons claiming asylum in good faith.[190] Dr McAdam stated that while the
term 'penalty' is not defined in Article 31, a number of factors indicate the
term should be broadly interpreted in this context, such as the United Nations
Human Rights Committee's interpretation of penalty in other international
instruments, and conclusions of the UNHCR's Executive Committee:
The term 'penalties' is not defined in article 31, prompting the
question whether it encompasses only criminal sanctions, or whether it also
extends to administrative penalties (such as administrative detention).
Following the Human Rights Committee's reasoning that the term 'penalty' in
article 15(1) of the ICCPR must be interpreted in light of that provision's object
and purpose, article 31 warrants a broad interpretation reflective of its aim
to proscribe sanctions on account of illegal entry or presence. An overly
formal or restrictive approach is inappropriate, since it may circumvent the
fundamental protection intended. Thus, measures such as arbitrary detention or
procedural bars on applying for asylum may constitute 'penalties'. This is
supported by Executive Committee Conclusion No 22 (1981), stating that asylum
seekers should 'not be penalised or exposed to any unfavourable treatment solely
on the ground that their presence in the country is considered unlawful'.[191]
3.159
A representative from the Department stated that
what is intended by 'penalty' in Article 31(1) of the Refugee Convention are 'criminal
and civil penalties or sanctions that would ordinarily be imposed for illegal
entry to another country'. According to
the Department this interpretation 'is supported by leading academic
commentators on the [Refugee Convention]'. [192]
Imposition
of a penalty
3.160
Submissions and evidence were provided to the
committee as to specific conduct under the Bill
that would amount to a penalty for the purposes of Article 31(1) of the Refugee
Convention.
3.161
Mr Jonathon
Hunyor of HREOC stated that the 'potential
risk of excessive detention, the removal of access of independent merits review
and judicial review, and the unavailability of a legal adviser or assistance in
[offshore processing centres]' were suggestive of a penalty.[193] HREOC noted that, since aspects of
the offshore processing arrangements of unauthorised boat arrivals are less
favourable than the onshore processing arrangements and this distinction is
made on the basis of mode of entry, it is also arguable that:
... as offshore
processing arrangements may produce less favourable treatment for asylum
seekers processed offshore as compared to asylum seekers processed onshore,
these arrangements may constitute a penalty, in breach of Article 31(1) of the
Refugee Convention.[194]
3.162
Dr McAdam
described the offshore processing procedure being 'markedly inferior' to
onshore processing because of the denial of access to independent merits review
and judicial review; the detention of children and their families; and the lack
of a durable solution for recognised refugees. All of these factors, Dr
McAdam concluded, may be regarded as a
penalty for unlawful arrival.[195]
3.163
The Hon
Ron Merkel
QC told the committee that the Bill does impose
a penalty, namely, mandatory deportation:
With respect, we would say that mandatory deportation is a
penalty. It is involuntary. It involves the use of coercive power to ensure
people are detained in Australia
till deported. There is a requirement that they go to a location which is
against their choice and, within that location, Australia has no contractual or
enforceable obligations as to how they are to be treated, merely a declaration
by the minister as to his state of mind on a particular state of affairs. We
say that, in any person's terms, is penalising those persons for arriving in
the way they did. If those kinds of outcomes were offered to Australian
citizens, I do not think there would be any difficulty in saying, 'This is a
penalty.'[196]
3.164
Mr Wright
of the UNHCR noted that the 'interpretation of the bill as a penalty is, in
UNHCR’s view, compounded by the [EM] explicitly stating that it is meant as a
deterrent'.[197]
3.165
Mr Wright
also made the observation that the measures proposed by the Bill
may be inconsistent with UNHCR procedures:
Whilst UNHCR must,
under its charter and its mandate, try to pursue the best possible opportunity
for an effective initial determination and an effective review and appeal
process for refugees, clearly that is going to be very difficult if there is a
transfer of responsibilities and perhaps the courts of Nauru were to take on
the responsibility for the access to the courts. Also, the bill in its current
format talks about the review mechanism not being independent but being carried
out by a second DIMA official. That brings into question whether or not it is
truly independent and whether it strengthens the likelihood of the system being
effective not only in doing the initial determination but in doing a review
that is required under international law or any appeals to the initial
determination or review. So we feel it just weakens the whole mechanism for
determination and for review and appeal.[198]
3.166
Dr Penelope
Mathew's submission highlighted how
different categories of visa being granted to asylum seekers processed offshore
may also constitute a penalty.[199]
However, as noted by Dr Mathew
in her submission, the Bill does not clarify the
kinds of visas which would be applicable to designated unauthorised arrivals.
Until this is made clear it is difficult for the committee to make an
assessment as to whether the kinds of visas granted could, in fact, constitute
a penalty.
3.167
The Department's view is that offshore
processing arrangements do not constitute penalties within the meaning of
Article 31(1), because they are not a criminal or civil penalty or sanction
that would ordinarily be imposed for illegal entry into another country.[200]
Arbitrary
detention
3.168
Many submissions and witnesses argued that
forcible removal of persons to offshore facilities to be held pending refugee
status determination and resettlement has the practical effect of placing
people in detention. As HREOC noted:
The Bill does not address the possibility of
excessive or indefinite detention in OPCs. There is no maximum time period for
offshore processing of claims for asylum and no maximum time in which a person
who is determined to be a refugee must be resettled in a third country.[201]
3.169
Further:
The potential for
asylum seekers to be detained for an excessive period of time raises serious
concerns that the detention may, by reason of its indeterminacy, breach Article
9(1) of the ICCPR which provides that no one shall be subjected to arbitrary
arrest or detention.[202]
3.170
However,
the Department maintained on numerous occasions throughout the course of the
committee's inquiry that persons taken to declared countries are not detained.
For example, a representative from the Department stated that:
People who are on Nauru are not in detention. They are residing on Nauru under conditions established under special
visa arrangements with the Nauru government.[203]
3.171
At the second hearing, department officials
stated that:
The individuals are in Nauru
under a visa arrangement subject to the conditions attached to that visa in Nauru
...
anyone lawfully in Nauru
is free to leave. If they wish to return to their country of residence, they
can.
...
Yes, they are free to leave [Nauru].[204]
3.172
The committee sought further information from
the Department on the types of special visas which would be provided to
asylum-seekers on Nauru.
The committee was told that the visas specify 'where [asylum seekers] might
live, the times at which they may move around the island and the circumstances in
which they may move within the community around the island'.[205] Departmental officials also
indicated that asylum seekers may be in a 'closed' or 'open' processing centre.[206] In a closed centre a person is able
to move outside the centre, provided they are accompanied by an IOM official:
They are certainly not under guard. They are simply accompanied
by an official. There is a bus that will take them down to the internet cafe,
will take them swimming, will take them to educational institutions and will
take children to school. It is simply facilitating movement around the island.
The preference of the government of Nauru
is that they be accompanied.[207]
3.173
Under closed centre arrangements asylum seekers
are not free to go anywhere they like on Nauru.[208]
3.174
Open centre arrangements have operated since
mid-2004:
... the people in the [open] centres were able to move around
freely in the community between the hours of eight in the morning and seven at
night. There were a couple of places that they were not able to go: the
airport, and the presidential and government offices. That was pretty much the
restriction on them.
...
They were not accompanied under open centre arrangements, no.[209]
3.175
A representative from the Department indicated
that under the Bill, initially, women, children
and families would be housed in open centre arrangements. Single men would be
subject to 'slightly more restrictive conditions'.[210]
3.176
The
Department's view that asylum seekers are not 'detained' on Nauru was challenged by a number of
submissions and witnesses.[211] For
example, A Just Australia noted that '(c)learly, the detention issue is proved
by the fact that asylum-seekers who have attempted to leave – or escape – the
camps were arrested and placed in Nauruan police cells'.[212]
3.177
While
acknowledging that the Federal Government, and the Department in particular,
has been proactive in making very significant reforms to the detention regime
in Australia, Ms Kate Gauthier of A Just Australia expressed disbelief at the Department's claim that
people in offshore processing centres would not be in detention:
We have read the submissions from DIMA and the answers that they
gave to questions on notice saying that it is not detention and that children
will not be detained because they are going to be let out during the day. These
arguments are, in a word, ridiculous ... I hope you have all looked into the
conditions of the processing centres, seen the photographs and read the reports
of what Nauru
as a country is like. In essence, the entire island, which is only 10 times the
size of Central Park, becomes the detention centre
itself. The conditions for children are going to be appalling.[213]
3.178
Ms Tania Penovic from the Castan Centre for Human Rights Law made a similar observation,
with particular emphasis on the impact of detention on mental health:
I would like to
reiterate the acknowledged and well-documented impact of detention on mental
health. I am aware that DIMA is saying that this is not detention because these
people are free to move around the island, but I do not think there is any
serious, credible argument that can be accepted that these arrangements are not
detention. These people are subject to security checks, their movement is
confined, they have a 7 pm curfew. According to UNHCR guidelines, this
is detention. The parliament of this country has accepted that long-term
detention has harmful mental health impacts and bears upon a large number of
human rights concerning the right to health and rights under the Convention on
the Rights of the Child and the International Covenant on Economic, Social and
Cultural Rights. This government recognised this last year in its amendment of
detention arrangements, and I believe that this legislation would be a radical
departure from this position. It would cancel out all the good work that has
been done in the last year.[214]
3.179
Ms Angela Chan of the MIA described Nauru as a 'large detention centre by any other
name'.[215]
Discrimination
3.180
Some submissions and witnesses argued that the Bill
potentially breaches Article 26 of the ICCPR which provides that all persons
are equal before the law and are entitled to the equal protection of the law
without any discrimination.
3.181
For example, as Dr
Mathew told the committee:
In offering a lesser
system we are actively discriminating between different classes of asylum
seekers, and I do not know why. The basis for discrimination in this bill is
that people are unlawful arrivals by sea. Why should that determine whether
they get access to the RRT and judicial review while lawful arrivals get that
sort of treatment and unlawful arrivals by plane get it?[216]
3.182
This view was supported by many others,
including HREOC and A Just Australia.[217]
3.183
Reverend Elenie
Poulos, representing Uniting Justice Australia
and the National Council of Churches in Australia,
acknowledged that the Bill has been described as
clearing up the anomaly that exists between asylum-seekers who arrive by boat
on an excised area, and those asylum-seekers who arrive by boat on mainland Australia.
However, Reverend Poulos
stated it was an anomaly which the organisations she represented 'would prefer
done in exactly the opposite way – that is, that everyone who arrives here is
processed on shore'.[218]
Foreign policy concerns
3.184
The committee received considerable evidence
suggesting that Indonesia's reaction to the granting of refugee status to the
West Papuan asylum seekers provided the impetus for the Bill; and that such
political considerations are inappropriate in the context of granting asylum to
those who seek it, and contrary to Australia's overarching international law
obligations.[219]
3.185
The committee heard that the Bill
appears to be a direct response to 'appease' Indonesia
over the grant of protection visas to the 42 West Papuans
who arrived in Australia
in January 2006.[220]
3.186
Many also submitted that yielding to such
external pressure compromises Australia's
commitment to protecting basic human rights in a broader sense.[221]
3.187
ALHR told the committee that this Bill
differs from the first incarnation of the Pacific solution which was designed
to deter so-called 'secondary movement' (that is, those refugees who had
bypassed other countries in which they might have sought and obtained effective
protection):
The character of this Bill is different to those that have gone before
it in a number of respects. It is not framed or justified in terms of border
protection or national security, though it is described as seeking to 'further
strengthen border control measures'. It
does not purport to address the problem of 'irregular' or 'secondary' movement,
elements of which are internationally acknowledged to be problematic. It does
not even pretend that these measures are for the purposes of 'national security
or public order' or designed to preserve the 'integrity' of Australia’s protection regime.[222]
3.188
Accordingly, in ALHR's view, the Bill
creates a bad example to other countries suggesting that it is acceptable to
place political considerations ahead of legally binding human rights and
refugee protection obligations which is extremely damaging to the international
protection regime.[223]
3.189
Mr Brian Walters SC from Liberty
Victoria offered a comprehensive
explanation of the dangers of such an approach:
Once we allow our
response to our fundamental system of government, our rule of law and our protection
of human rights to be determined by any foreign pressure, we are then losing
any moral credibility in the future. We have freely signed up to the refugee
convention and we have done that and adhered to that for years. We have
encouraged other countries to do the same. We have taken a moral stance that is
important. Once we say, 'We won't do that because it has caused friction
locally' for some reason, it is encouraging the kind of treatment that gives
rise to refugees in the first place.[224]
3.190
Moreover,
he warned of the possible flow-on effects:
On an issue like this,
if we show that kind of weakness, we are just allowing that pressure to be
brought to bear by other countries for their own reasons at other times. We
have a region which, as we have heard from an expert, generates some refugees ...
and it cannot be thought that in the future there will not be more ... If we
allow a country, because it feels embarrassed by us adhering to our
international human rights obligations, to feel free to place pressure on this
country and to see that that pressure will produce results, we will just get
more of that pressure and our position will become increasingly inconsistent
and difficult to justify. In the end, we will lose both independence as a
sovereign nation and our human rights credibility—and where we want to
encourage other states to recognise the human rights of Australians, we will
not get a sympathetic voice.[225]
3.191
Mr David Manne from RILC articulated a similar point of view:
... if political
considerations come into the protection equation in that way, it is completely
contrary to the spirit and intent of international protection and could well
have the effect of making finding a durable solution of resettlement, whether
on Nauru or elsewhere, almost impossible. Firstly, people who have arrived in Australia initially are seen as being Australia’s responsibility first and foremost but,
secondly, the obstacle would be even greater if they are seen as people who
could cause diplomatic problems or tensions. That is the serious point in
it—that politicising the situation and importing national interest or foreign
relation elements into the protection equation is not only contrary to
principle but also likely to threaten people’s very ability to get resettlement
in other countries.[226]
3.192
Mr Manne
contrasted the Bill's approach with the approach
taken with the original Pacific solution:
... the current proposal
is far worse than the so-called Pacific solution insofar as the Australian
government have recently branded and vilified West Papuan refugees, who are
partly the subject of this new proposal. In vilifying them on political and
racial grounds, they propose to export them to another place and somehow, if
they are found to be refugees, to find resettlement elsewhere. This policy and
proposal, in our view, is to in effect cast people into indefinite exile,
having branded them to be political trouble, and would quite possibly make any
form of resettlement illusory, meaningless and ineffective.[227]
3.193
Ms Frederika
Steen from the Romero Centre also made a
pertinent point:
There is a
contradiction in our regional relationships. Australia has assumed the moral
high ground, leadership and prime responsibility for law and order and good
governance in the Pacific, yet it proposes to outsource the holding and
processing of asylum seekers simply because it does not want to do so itself.
It is prepared to pay impoverished Pacific nations to be the landlords of non
criminal asylum seekers transported there and detained against their will, and
allow in external hired help like the International Organisation for Migration
to administer the detention centre.[228]
3.194
Mr Erskine
Rodan from LIV noted that the Bill
'is foreign policy dressed up as administrative law'. He argued that foreign
policy should not be conflated with domestic policy and international law
issues:
From our point of view
it is bad law. It may be difficult law. You also have to look at it this way:
we have always tried to have a good relationship with Indonesia, but there are times when we as a nation
have to say to them: 'Back off our domestic policies and our international
obligations. We have those; you look after your own area.' That is a foreign
policy issue.[229]
Committee view
3.195
Overwhelmingly, the view among those who
provided evidence to the committee was that the Bill
should be opposed in its entirety. Indeed, the committee notes that every
submission and witness, besides the Department, expressed opposition in
absolute terms to the Bill and its broader
policy objectives.
3.196
In particular, the committee notes concerns
raised in relation to uncertainty about how the proposed arrangements will
actually work; domestic policy issues such as the Bill's broad incompatibility
with the rule of law; the potential breach of Australia's obligations under international
law in a number of key areas; and arguments that the Bill is an inappropriate
response to what is essentially a foreign policy issue.
3.197
Despite the volume of evidence received, the
committee has been significantly hampered by the absence or limited
availability of critical information to assist with its deliberations in this
inquiry. This is primarily due to the Bill and
associated documentation providing only a minimalist framework for the proposed
system. As a result, the committee has been forced to rely on information
provided by the Department since the Bill was
referred for inquiry to 'fill in the gaps'.
3.198
However, the committee's deliberations have been
frustrated by the fact that crucial information relating to a number of key
elements of the Bill has not been made available
by the Department, or has only been made available after questioning. Moreover,
the committee has not been assisted in its understanding of the full impact of
the measures contained in the Bill by the
brevity and, in some cases, contradictory or sophist nature of some of the
information provided by the Department.
3.199
In this context, the committee understands that
the Department has not been in a position to provide certain information since
a number of relevant reviews and development processes are apparently currently
taking place. The committee notes that some of the issues currently under
review or development relate directly to the practical operation and effect of
some fundamental aspects of the Bill. As such,
an assessment of that information is crucial to a thorough consideration of the
Bill. Without that information the committee is
unable to form a conclusive view on the appropriateness or otherwise of certain
measures, including how refugee status determination procedures will work in
practice, how women and children held in offshore locations will be treated,[230] and whether access to proper legal
assistance for persons on Nauru
will be guaranteed.
3.200
Given the evidence received and compounded by
the lack of information before it, the committee considers that it is
preferable that the Bill not proceed.
3.201
In the event that the Bill
does proceed, however, the committee believes that certain conspicuous
weaknesses with respect to its operation and effect must be considered and addressed.
The Bill should be amended to include explicit
statutory safeguards to protect against potential human rights violations, to
ensure that Australia
is able to more adequately comply with its international law obligations in
this regard, and to uphold the rule of law.
3.202
Of particular significance is the fact that, as
currently drafted, the Bill omits appropriate
scrutiny and oversight of the procedures it seeks to put in place. The
committee considers that it is entirely inappropriate that initial refugee
status determination decisions made by departmental officials are only
internally reviewable. Decisions made by the Department should have, at the
very least, the same quality of merits review applicable to them, regardless of
geographic location. The committee considers that the Bill
should contain a review mechanism equal to the procedural independence and the
level of investigation by the RRT.
3.203
The committee also holds the view that the
reporting requirements contained in the Bill are
inadequate since they do not provide for any independent oversight of offshore
processing arrangements. The committee believes that independent scrutiny of
offshore arrangements should take place to ensure that such arrangements are
subject to the same level of oversight as exists in relation to onshore
processing arrangements. This is crucial in order to alleviate concerns about
the Bill's impact on the human rights of asylum
seekers and refugees, and to assist in ensuring accountability and transparency
in Australia's
migration system. The committee is of the view that the Commonwealth Ombudsman
would be best placed to oversee offshore processing arrangements. In order to
undertake this role, the Commonwealth Ombudsman should be granted full and
proper access to offshore processing centres. In making this recommendation, however,
the committee is aware of the added difficulties associated with any attempt by
an Australian law to guarantee access to people who are physically located in
another country.
3.204
The committee notes that the requirement in Part
8C of the Migration Act that the Commonwealth Ombudsman provide reports on
persons held in detention for more than two years[231] does not apply in relation to
persons held in offshore processing locations. The committee does not believe
that a distinction based on location is appropriate in this regard and
considers that the requirement in Part 8C should apply equally to all relevant
persons.
3.205
The committee also considers that continued oversight
by a parliamentary committee would be useful in helping to provide an
additional layer of accountability.
3.206
The committee acknowledges concerns raised in
relation to the Bill's retrospective application
and the lack of any clear rationale for the provision. Further, the committee urges
the Federal Government to undertake a full costing of the Bill
to ascertain the real financial implications of the proposed measures. The
committee is not satisfied with the assertion that the policy has 'no direct
financial implications', which seems implicitly unlikely given the obvious
costs associated with transporting officials, asylum seekers, and health and
other professionals, to a remote island with little infrastructure in the
middle of the Pacific Ocean.
3.207
Finally, the committee recommends that a sunset
clause should be included in the Bill and that
an independent review of the Bill's operation
and effect should take place at the end of the sunset period.
Recommendation 1
3.208
In light of the limited information available to
the committee, the committee recommends that the Bill
should not proceed.
Recommendation 2
3.209
In the event that the Bill proceeds, the
committee recommends that the Bill be amended to ensure consistency with
previous changes to Australia's refugee determination system including, but not
limited to, government responses to the Palmer, Comrie and Commonwealth
Ombudsman's reports. In particular:
-
specifying
a reasonable time period in which the Minister must determine protection visa
applications for asylum seekers detained in offshore processing centres;
-
specifying that asylum seekers who are found to
be refugees after being processed offshore will be resettled in Australia if
resettlement in other countries is not available;
-
applying
the principle that children should only be detained as a measure of last resort;
-
providing
for asylum seekers who are detained and processed offshore with access to
independent legal advice and legal representatives to assist them in making
their protection visa applications, as well as access to community welfare and
support organisations;
-
providing
for the Minister to grant a visa to an asylum seeker detained in offshore processing
centres regardless of whether they have applied or are eligible for a visa;
-
providing
for the Minister to determine that an asylum seeker detained in offshore
processing centres may reside in a place other than a detention centre (for
example, community housing);
-
providing
for reports by DIMA to the Commonwealth Ombudsman or Australian Parliament
on asylum seekers detained in offshore processing centres; and
-
providing
asylum seekers who are detained and processed offshore with a right to have a
negative decision on their protection visa application independently reviewed
on the merits.
Recommendation 3
3.210
The committee further recommends that the review
of special measures relating to the treatment and accommodation of women,
children and families on Nauru
currently being undertaken by the Federal Government be completed.
Recommendation 4
3.211
The committee recommends that the review
currently being undertaken by the Federal Government, in relation to special
measures for women, children and families on Nauru
should include specific consideration of the impact of offshore processing
arrangements on children.
Recommendation 5
3.212 In
the event that the Bill proceeds, the committee recommends that the Bill be
amended to specifically provide for independent scrutiny of offshore processing
arrangements by the Commonwealth Ombudsman to ensure that offshore processing
arrangements are subject to an equivalent level of independent oversight and
scrutiny as onshore processing arrangements.
Recommendation 6
3.213
The committee recommends that the provision for
independent scrutiny of offshore processing arrangements by the Commonwealth
Ombudsman set out in Recommendation 5 should provide express authority to the
Commonwealth Ombudsman for proper access to offshore processing centres located
in any 'declared' countries. Given the sovereignty issues involved in any such
extra-territorial activities by government officials, this may require the
negotiation of appropriate government-to-government agreements.
Recommendation 7
3.214
In the event that the Bill proceeds, the
committee recommends that the Bill be amended to specifically provide that the
requirement in Part 8C of the Migration
Act 1958 for the Commonwealth Ombudsman to provide reports on persons held
in detention for more than two years also applies in relation to all persons
held in offshore processing locations.
Recommendation 8
3.215
In the event that the Bill
proceeds, and prior to the Bill proceeding, the
committee recommends that the Federal Government undertake a full costing in
relation to the measures contained in the Bill.
Recommendation 9
3.216
In the event that the Bill
proceeds, the committee recommends that the Bill
be amended to include a sunset period of eighteen months for review of the Bill's
operation and practical effect.
Recommendation 10
3.217
In the event that the Bill
proceeds, the committee recommends that the Bill
be amended by inserting an express requirement for a public and independent
review of its operation and effect at the end of the sunset period referred to
in Recommendation 9.
Senator
Marise Payne
Committee Chair
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