This Digest is prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments.
This Digest was available from 28 June 1996
Date Introduced: 20 June 1996
Portfolio: Immigration and Multicultural
Commencement: 19 June 1996, however Schedule 2
provides that the Act is 'not intended to alter the effect of any
orders made by a court before the commencement of this Act.'
To remove the statutory right of the Human Rights and Equal
Opportunity Commission and the Commonwealth Ombudsman to initiate
confidential contact with people held in immigration detention
under s. 189 of the Migration
Act 1958, and to ensure that officers of the Department of
Immigration and Multicultural Affairs are under no duty to give
visa applications to such detainees unless a request by the
detainees is made.
There are two main aspects of this Bill. The Explanatory
Memorandum advises that the legislation is a response to the recent
decision of the Federal Court in Human Rights and Equal
Opportunity Commission & Another v Secretary of the Department
of Immigration and Ethnic Affairs (unreported, 7 June 1996,
Lindgren J, NG 268 of 1996). The provisions regarding access to
detainees by the Human Rights and Equal Opportunity Commission
(HREOC) and the Commonwealth Ombudsman are the Government's
response to this case.
The Bill also has provisions which reinforce the legality of the
Department's practice of not advising some people in immigration
detention regarding their right to an application form for a visa.
To qualify for consideration as a candidate for refugee status any
detainee must submit an application for a Protective Visa on Form
866, a form stipulated by the Migration Regulations (the
Regulations). The Explanatory Memorandum says these provisions will
simply function as a clarification. Presumably the need for this
clarification has been prompted by concerns the Department of
Immigration and Multicultural Affairs (the Department) may have had
following the case of Wu Yu Fang & Others v Minister for
Immigration and Ethnic Affairs and Another (1996) 135 ALR
583. Both these cases will be discussed after a discussion
of the background of the Bill.
Australia's policy regarding the treatment of unlawful
non-citizens who arrive in small boats has had a lengthy and rather
According to figures provided by the Department of Immigration
and Multicultural Affairs, as at 16 June 1996 there were 394 people
who were unauthorised boat arrivals in detention in Australia. In
the period since November 1989 there have been a total of 2 478
arrivals and 71 have been born to parents in detention.(1)
The Minister answered a question on notice during the course of
the week that the Bill was before the Parliament regarding the
current system of the process of review.(2) He said that he would
like to see it made more efficient. He pointed out that 'some
people come to Australia and seek to advantage themselves by
accessing programs that are there for those who have particular
needs.' He explained there are a large number of people who enter
Australia illegally and that '[m]any more who come here outlining
circumstances such as a bone fide visit to lead to them being able
to access Australia.' With regard to the costs of the process he
The situation we have at the moment is in no way satisfactory.
My department is involved at the moment in something of the order
of 559 cases before the courts and the numbers are steadily
increasing. Sixty per cent of that workload relates to applications
for asylum here in Australia. They have been made by people who
have primarily come here illegally or who have misled us as to
their intention when they have come to Australia. Last year my
department spent something of the order of $60 million in financing
detention and processing procedures in relation to this very large
number of people. This amounts to a very significant proportion of
my department's total budget.(3)
Under the Chairmanship of Senator Jim McKiernan, the Joint
Standing Committee on Migration examined the issue of immigration
detention in Australia (presenting their report Asylum, Border
Control and Detention in February 1994).
On the question of legal advice the Committee's recommendation
7. public funding be available through the Department of
Immigration and Ethnic Affairs for the provision of legal advice
and assistance to border refugee claimants in relation to the
preparation of primary applications for refugee status and review
applications to the Refugee Review Tribunal. Thereafter, publicly
funded legal assistance to refugee claimants seeking review of a
refusal decision to the Federal Court be provided only on the basis
of a merits test.(4)
In coming to this decision the Committee commented that they
were 'swayed by evidence that a significant percentage of
applicants who are unsuccessful at the primary stage in fact are
determined to be refugees at the review stage.'(5)
Legislative developments since this Report have created a
greater distinction between unlawful non-citizens who are
applicants for refugee status and those who are not. The latter
have no standing to challenge the administrative procedures by
which Australia asserts its sovereign right to eject illegal
entrants. The difficulty is in determining at what stage of this
administrative process a satisfactory answer can be given to the
question of whether or not an illegal entrant is or is not a
potential candidate for refugee status.
The Joint Select Committee's report recommended that illegal
entrants would be kept in detention for the duration of the
determination process and called for the removal of a number of the
rights of review that detainees had previously had access to. Many
of the recommendations in the Report have been acted upon, however
the question of how access to legal assistance should be organised
has clearly not yet been resolved.
The Migration Committee did not deal with the question of
whether detainees should be advised that they are entitled to be
informed that they may request legal assistance. On the basis of
evidence supplied to the Senate Legal and Constitutional
Legislation Committee's enquiry regarding this Bill it would seem
that the conditions under which detainees are now held may have
changed significantly as compared to the conditions discussed in
the Joint Select Committee's report.(6)
Human Rights and Equal Opportunity Commission & Another v
Secretary of the Department of Immigration and Ethnic
In this case a lawyer from the Refugee Advice and Casework
Service (RACS) sought contact with certain people in immigration
detention in Port Hedland. The Department of Immigration and Ethnic
Affairs (the Department) refused to deliver their letter, pointing
out that under
s. 256 of the Migration
Act 1958 (the Migration
they were under no duty to do so.
Section 256 of the Act provides that:
Where a person is in immigration detention under this Act, the
person responsible for his or her immigration detention shall,
at the request of the person in immigration detention,
afford to him or her all reasonable facilities for making a
statutory declaration for the purposes of this Act or for obtaining
legal advice or taking legal proceedings in relation to his or her
immigration detention. [emphasis added]
The Department drew the attention of RACS to the emphasised
words and explained that since the detainees had not sought legal
advice they declined to pass on the letter. RACS made a complaint
on behalf of the detainees to the Human Rights and Equal
Opportunity Commission ('HREOC' or 'the Commission'), saying they
believed the detainee's human rights were being abused.
HREOC commenced an investigation of the complaint and wrote to
the detainees. The letter informed the detainees of HREOC's
inquiry, gave a brief explanation of its genesis and suggested that
they may wish to contact an officer of the Commission or a lawyer.
They supplied a contact number for the Commission and for the RACS
lawyer who had made the complaint on their behalf.
HREOC sent this letter in a sealed envelope to the manager of
the detention centre and asked that it be delivered as soon as
possible without being opened. The covering letter also pointed out
s. 20(6) of the
Human Rights and Equal Opportunity
Commission Act 1986 (the HREOC Act) imposed a
statutory duty on the Department to pass on the letter.
Section 20 (6) provides that:
A person who is detained in custody (in this subsection and
subsection (7) referred to as the 'detainee') is entitled:
(a) upon making a request to the person (in this subsection and
subsection (7) referred to as the "custodian" in whose custody the
detainee is detained, or to any other person (in this subsection
and subsection (7) referred to as a "custodial officer") performing
duties in connection with the detention:
(i) to be provided with facilities for preparing a complaint in
writing under this Division, for giving in writing to the
Commission, after the complaint has been made, any other relevant
information and for enclosing the complaint or the other
information (if any) in a sealed envelope; and
(ii) to have sent to the Commission, without undue delay, a
sealed envelope delivered by the detainee to the custodian or to a
custodial officer and addressed to the Commission; and
(b) to have delivered to the detainee, without undue delay, any
sealed envelope, addressed to the detainee and sent by the
Commission, that comes into the possession or under the control of
the custodian or of a custodial officer.
The Department refused to deliver this letter on advice from the
Attorney-General's Department that the statutory construction of
the provision did not require them to do so.
HREOC commenced proceedings in the Federal Court seeking an
order in the nature of mandamus(8) compelling the Department to
deliver the letter. The Court granted this order, saying that the
'plain and grammatical effect of para 20(6)(b) is to require the
Department to pass on the Commission's letter.'(9) Lindgren J also
commented that it was 'almost too obvious to merit statement that
in the case of a detainee whose human rights are, according to a
third party, being infringed, the infringer might be the custodian
or those whom the custodian represents.'(10) This led Lindgren J to
give a broad interpretation of HREOC's right to contact detainees.
The Judge gave the Department time in which to decide whether to
appeal the decision.
The primary background issue during the case was that there has
been 'a longstanding controversial issue concerning the right to
access to lawyers to persons detained after illegal entry into
Australia on small boats.'(11) The various positions which could be
taken regarding access to legal advice for such detainees were
outlined as being:
- that lawyers are free to approach such detainees;
- that the detainees should be advised of their right to have
- that the detainees should only have the right of access to a
lawyer on request; and
- that the detainees should not have a right of access to
The position of the Department has been that the detainees
should only have access to a lawyer upon request and 'as a matter
of practice the Department does not permit lawyers to approach
detainees unless there has been a request by detainees.'(12)
Lindgren J accepted that it was likely his order would have the
probable result that 'the detainees will be given legal advice on
the question of their refugee status although they have not
requested it.'(13) However he concluded that this did not warrant a
refusal of the order.
The primary purpose of the Migration Legislation Amendment
Bill (No. 2) 1996 is to respond to this case by ensuring that
detainees may only communicate with HREOC or the Commonwealth
Ombudsman if the detainees have themselves initiated the
Wu Yu Fang and 117
others v. The Minister for Immigration and Ethnic Affairs and
Commonwealth of Australia(14)
It is clear that, despite the fact the neither the Explanatory
Memorandum nor the Second Reading Speech discuss this case, the
clarificatory provisions of the Bill are a response to comments and
concerns raised by it.(15)
In Wu Yu Fang & Others v Minister for Immigration and
Ethnic Affairs and Another(16) (Fang's Case) 117
'Sino-Vietnamese', who had been informed that they would be
returned to China, sought the support of the Court against the
actions of the Department of Immigration and Ethnic Affairs (as it
then was). The case was dismissed by a majority of 2:1, with the
majority finding that there was no requirement on the Department to
accord the applicants with procedural fairness.(17) Nicholson J's
majority judgement commented that Parliament had clearly and
deliberately made provisions under which there was no obligation on
an officer of the Department to act with a 'sense of justice and
The applicants had made no explicit claim to refugee status.(19)
The majority of the court concluded that the applicants had made an
implicit claim to refugee status which had been ignored by the
Department.(20) However, since the Department had not responded to
the implicit claim, and since the applicants had not requested or
completed, the appropriate visa application form specified in the
Regulations (Form 866) there was no remedy for the applicants.(21)
Had the applicants requested Form 866 Departmental
officials would have been required by s. 256 to supply them with
it. However since the applicants had not requested or completed the
application form before the operation of amendments to the Act came
into effect (amendments precluding the applicants from applying for
such a visa(22)), there was no remedy available to them.
Nicholson J's comments on the intentions of Parliament were
This is a case in which Parliament has negated the possibility
of common law concepts of procedural fairness applying in favour of
the non-citizen applicants. Parliament has achieved this by the
ss 193(2) and
198(4) of the Migration
The inference from the findings of the trial judge is that the
representatives of the relevant arm of the executive were well
informed of this and avoided acting so as to place the applicants
in the position where they had the means to apply for a Protection
Visa when the course remained open to them, prior to its preclusion
by legislation. While that executive conduct does not accord with
internationally expressed goals relating to conduct in relation to
refugees, the conditions for application of international law, as
prescribed by Australian domestic law, are not present to enable
international law to control that conduct. Furthermore, such
conduct was supported by the enactments of the Australian
Parliament which, to that extent, evince an intention in relation
to non-citizens to negate the application of those internationally
commended basic procedural requirements. The result is that the
non-citizen applicants are unassisted by either Australian domestic
law or by international law. For these reasons I consider the
appeal should be dismissed.(23)
It could be pointed out at this stage that Parliament did not
rule out the possibility that procedural fairness may
nevertheless be observed. While the requirement that it be
observed was removed, the question of how the Department chose to
act was a question to be determined by Departmental policy and
practice. The Act, as amended, did not preclude the Department from
acting according to 'common law concepts of procedural fairness'.
It simply did not require them to do so.
Relevant International Law
The question of what international law applies to the processing
of illegal entrants is important not only because of the
implications for Australia's standing in the international
community, and for the integrity of commitments that Australia has
made to the international community, but also because of the
possibility of complaints to the UN Human Rights Committee - a
process which may involve significant cost to the Government.
The international instrument governing Australia's obligations
regarding detainees which has the most well established
significance in international law is the International Covenant on
Civil and Political Rights (ICCPR).(24) Australia signed the
Covenant under the Whitlam Government(25) and it was ratified by
the Fraser Government.(26)
In 1991, Australia acceded to the First Optional Protocol to the
Covenant, which allows individuals, who believe that their rights
under the Covenant have been violated, to complain to the United
Nations Human Rights Committee, (a body established under Article
28 of the Covenant).(27)
The provisions of the Covenant tend to be fairly general, and
consequently open to a variety of interpretations. One of the Human
Rights Committee's roles is to provide views regarding the
interpretation of provisions of the Covenant.
The Articles which are particularly relevant to this legislation
are Articles 2, 9.4, 10 & 17. Article 2 is relevant because it
stipulates that the provisions of the Covenant must be applied by
States Parties to everyone 'within its territory and subject to its
jurisdiction.' This has been taken to cover illegal entrants in
detention.(28) The other relevant articles provide:
4. Anyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings before a court, in order that
court may decide without delay on the lawfulness of his detention
and order his release if the detention is not lawful.
1. All persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of the human
1. No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence, nor
to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against
such interference or attacks.
The applicability of Article 17 to legislation which prevents
the delivery of mail to detainees does not seem to warrant much
comment, although obviously the definition of 'arbitrary' would
have to be decided. Regarding the other Articles, the Human Rights
Committee (the Committee) issues General Comments about the
articles of the Covenant. These Comments are designed to assist
States in their reporting obligations under the Covenant and 'to
stimulate the activities of these States and international
organizations in the promotion and protection of human
During consideration of this Bill there have been questions
raised regarding the legal significance of these General Comments.
At the Senate Legal and Constitutional Legislation Committee's
hearings Senator Spindler asked the Human Rights Commissioner his
view of the chance of success of a hypothetical complaint under the
Optional Protocol regarding the provisions of the Bill. Mr Sidoti
replied that while he could not give a definitive answer he had
serious concerns that a complaint to the Committee might be
Senator Spindler also posed this question to officers of the
Attorney-General's Department. Mr Henry Burmester, Chief General
Counsel, expressed the Department's view that there would not be
the basis for a successful complaint. When Senator Spindler
questioned Mr Burmester regarding the significance of the General
Comments, which Senator Spindler believed supported a contrary
view, Mr Burmester pointed out the General Comments are 'not
binding documents' and do not create binding obligations on
Australia. The question as to whether the Committee would see its
Comments as binding, or at least persuasive, on itself when
deciding a complaint was not put to Mr Burmester.
In so far as they are relevant to the interpretation of the
Covenant, the Committee's General Comments on these Articles have
said that Article 9 applies to all deprivations of
liberty, including (inter alia) immigration control.(31) With
regard to Article 10 the Committee has indicated that it will have
regard to the relevant United Nations Standards, that is, the
Standard Minimum Rules for the Treatment of Prisoners (1957) and
the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment (1988). The Committee also said
that there must be concrete measures taken by the 'competent
authorities to monitor the effective application of the rules
regarding the treatment of persons deprived of their liberty' and
that arrested or detained persons should know these rules apply and
should have access to effective legal means enabling them to ensure
that those rules are respected, to complain if the rules are
ignored (and to obtain adequate compensation in the event of a
The Bill has provisions which will, if Departmental policy
continues in its current form, be at odds with the Body of
Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment(33) which provide that:
Any person shall, at the moment of arrest and at the
commencement of detention or imprisonment, or promptly thereafter,
be provided by the authority responsible for his arrest, detention
or imprisonment, respectively with information on and an
explanation of his rights and how to avail himself of such
1. A detained person shall be entitled to have the assistance of
a legal counsel. He shall be informed of his right by the competent
authority promptly after arrest and shall be provided with
reasonable facilities for exercising it.
2. If a detained person does not have a legal counsel of his own
choice, he shall be entitled to have a legal counsel assigned to
him by a judicial or other authority in all cases where the
interests of justice so require and without payment by him if he
does not have sufficient means to pay.
The final consideration regarding the treatment of unlawful
non-citizens is provided by the guidelines published by the Office
of the United Nations High Commissioner for Refugees - UNHCR. There
are certain basic procedural requirements approved by the Executive
Committee of the High Commissioner's Programme in October 1977
(Official Records of the General Assembly, Thirty-Second Session,
Supplement No 12 (A/32/12/Add 1), para 53(6)(e)). It should be
noted that Australia has been a member of this Committee since its
inception in 1975.
No. 8 provides that the procedures for the determination of
refugee status should satisfy the following basic requirements:
(ii) The applicant should receive the necessary guidance as to
the procedure to be followed.
(iv) The applicant should be given the necessary facilities,
including the services of a competent interpreter, for submitting
his case to the authorities concerned. Applicants should also be
given the opportunity, of which they should be duly informed, to
contact a representative of UNHCR.
Reactions to the
The Second Reading Speech identified the rationale for the
legislation as being in large part due to the concern regarding the
costs that may be generated if unlawful non-citizens invoke
'lengthy and expensive processing'. It identified the additional
detention costs resulting from Fang's case (see above) as being
over 2 million dollars. The Minister, Mr Philip Ruddock, said that
the Refugee Advice Casework Service has been 'engaged in a direct
attack on the fundamental underpinning's of our capacity to manage
effectively the boat people issue.'(34)
The day that the Bill was introduced the Shadow Minister for
Immigration, Mr Duncan Kerr, issued a Media Release declaring
Labor's commitment to support the Government legislation. Mr Kerr's
statements suggested that there has been a 'lawyers' picnic' in
which lawyers have touted for business from people who claim
refugee status. He also said the legislation would not hinder the
access of the Human Rights Commission to arrivals.
The Democrats also issued a Press Release. This condemned the
Bill and said it would significantly weaken laws protecting human
rights in Australia, as well as damaging Australia's reputation
The Scrutiny of Bills Committee brought out a unanimous report
regarding this Bill which raised concerns regarding both the
retrospectivity of the legislation and the undue trespass on the
personal right and liberties of unlawful non-citizens. The
Committee said that the protection of rights ought not to be
governed by cost-benefit analysis.(35)
The Senate Legal and Constitutional Legislation Committee's
report tabled on the 27th of June recommended that the Bill be
adopted without amendment.
While there was not a great deal of time for consideration
between the introduction of the Bill and the Government's stated
intention of passing the legislation prior to the end of the
sittings there were a number of responses from human rights groups.
The Senate Legal and Constitutional Legislation Committee (the
Senate Committee) heard evidence from an array of people including
representatives from the Refugee Advice and Casework Service, the
Human Rights and Equal Opportunity Commission, the Ombudsman, Uniya
- the Jesuit Social Justice Centre, the Refugee Council of
Australia, the Secretary-General, Australian Section of the
International Commission of Jurists and the Independent Council for
Refugee Advocacy. It also received written submissions from a
number of 'eminent academic lawyers.'(36)
The Human Rights Commission issued a Press Release, also on the
day the legislation was introduced, saying that 'The Australian
Parliament should not allow the Department of Immigration to change
the law every time it is found to be breaking it. Enough is enough.
If this Bill is successful, the rights of the Commission as a
statutory authority appointed by Parliament to conduct legitimate
investigations will be denied."
In his evidence to the Senate Committee the Human Rights
.... the legislation should not be passed lightly. Perhaps the
significance of the legislation is seen in relation to the powers
of the Commission itself. The Human Rights Commission was
established 10 years ago. It was preceded by another commission
which had a life of five years. During the course of those 15 years
parliament has seen fit, on a number of occasions, to enhance the
functions and powers of the commission. To my knowledge, this is
the first occasion on which there has been a proposal put to the
parliament for legislation to restrict the functions and power of
the Human Rights Commission in the 10 years of the present
commissions life and the five years of its predecessors
The Jesuit Refugee Service expressed significant concerns and
said that the Bill, introduced in the days leading up to Refugee
Week, requires people, 'who probably do not speak English and who
may not be literate, to write to HREOC seeking advice regarding the
legality of their detention.'(38)
A significant development during the Senate Committee's hearings
was the tabling by the Human Rights Commissioner and the Ombudsman
of letters in which they proposed to the Minister that the pressure
creating a 'haste' in the formulation and consideration of the Bill
could be averted if the Minister was prepared to accept an offer
they had made to him as follows:
To enable fuller discussion of the Bill and alternative
approaches without the pressure of the current Parliamentary
timetable the Commission (including staff) is prepared to handle
complaints under its legislation until 20 September 1996 as if the
Bill had been passed in its present form.(39)
To date there has been no publicly available material regarding
the Minister's response. The Committee rejected this offer on the
The Committee is of the view, however, that the offers, albeit
genuine, would be of no avail should an application for a writ of
mandamus be made against the Commission or the Ombudsman.(40)
The Committee did not address the issue of making this offer
legally effective by passing the Bill in its current form and
including a sunset clause. This would prevent the possibility of a
writ of mandamus being taken out against the Commission or the
It is likely that there will be a number of developments in the
area of processing unlawful non-citizens in the near future. Mr
Ruddock has been reported earlier this year as having plans to
overhaul the immigration program and to look at legislation 'to
curb dramatically the ability of Indo-Chinese boat people and other
asylum-seekers to go to the courts to prolong their fight to remain
in Australia.'(41) He has also been reported as aiming to 'clear
the logjam of refugee appeals by abolishing the Refugee Review
Tribunal or by blocking easy access to the courts.'(42) The
Government has called for public submissions regarding the refugee
process, a call which will apparently be open until July 5th - with
a report expected in early August.(43)
There is also a report currently being prepared by the
Australian National Audit Office in respect of entry and detention
An issue which is yet to be debated is the impact of any finding
by the UN Human Rights Committee regarding the current complaint
before it concerning Australia's refugee law and practice.
According to information provided by the Attorney-General's
Department in answer to a question in the Senate Legal and
Constitutional Legislation Committee last year there were six
complaints before the Committee in mid 1995. One of these was a
complaint (No 560/93) which deals with a refugee applicant.(45)
In the initial complaint there were six allegations of breach by
Australia of the Covenant. In its examination of the admissibility
of the complainant's allegations in April 1995, the UN Human Rights
Committee admitted three allegations regarding the length of the
period of detention, the reviewability of the detention and the
alleged difficulty in gaining legal assistance during the initial
preparation of the refugee application, the administrative stage
and the judicial review stage of the application. At the time of
the answer the Federal Government was due to make further
submissions regarding this allegation 'later in 1995'. The
Committee has yet to give its views.
A major point of contention has been whether the Bill changes
the law or merely reiterates Parliament's initial intention. Any
suggestion that the Department's practice of refusing to pass on
letters containing a reference to a detainee's right to request
legal advice is mandated by the Migration
Act is clearly mistaken.
Sections 256 and
193 presently operate to remove any onus on
Departmental Officers to provide this advice of their own
initiative. The legislation is silent on the question of whether
communications from third parties should be transmitted.
The suggestion has been made that the Bill merely returns the
situation of access to advice for detainees to the status quo
before Human Rights and Equal Opportunity Commission &
Another v Secretary of the Department of Immigration and Ethnic
Affairs. However, as the Scrutiny of Bills Alert
Digest suggests, the Bill actually goes further than
Parliament had previously provided for in
ss. 256 and
193. The more compelling reading of these sections(46) shows
that the provisions give the Department a discretion as to whether
or not to pass on a communication from a third party (or indeed
whether to make their own communications regarding the detainee's
access to legal advice).
The provisions of the Bill removing the right of the HREOC and
the Commonwealth Ombudsman to initiate contact with a detainee
unless a written complaint has first been made by a detainee remove
a right that Parliament had not previously removed by its enactment
of amendments to the Migration
Act. The fact that the use of HREOC's power to initiate contact
with detainees could undermine Departmental practice of
refusing to allow detainees knowledge of their legal rights should
not be confused with whether or not the present legislation
mandates the approach taken by the Department.
The main amendments are provided in Schedule 1 of the Bill,
which will amend the Migration
Act 1958 in the following ways:
Item 1 of Schedule 1 amends
subsection 193(2) so that there is no question regarding the
supremacy of the provisions of the Migration
Act over other legislation or common law which would require
the Department to give a person in detention a visa.
Item 2 of Schedule 1 amends
section 193 of the Migration
so as to add a subsection which provides that the right of a
detainee under para 20(6)(b) of the
Human Rights and Equal
Opportunity Commission Act 1986 to receive a sealed
envelope sent to them by the Commission does not apply if they are
being held in immigration detention. It makes similar provisions
section 7 of the Ombudsman's
Act 1976, removing the right of a detainee to receive a
communication which has been addressed to them from the Commission.
In both cases the right to initiate a complaint in writing is
Item 3 of Schedule 1 repeals subsection 198(4).
This subsection is no longer necessary in the light of the
amendments to subsection 193(2) and section 256.
Item 4 of Schedule 1 adds 'application forms
for a visa' to the list of facilities which must be supplied to a
detainee when he or she ask for it.
Item 1 of Schedule 2 provides that the
amendments are not intended to alter the effect of any orders made
by a court before the commencement of this Act.
(1) Of the 2 478 unauthorised arrivals and their 71 Australian
1612 have departed Australia
390 have been granted refugee status
80 have been granted permanent entry on either humanitarian or
62 have been granted bridging visas
9 have escaped from custody and remain at large in the
394 remain in detention.
(Information supplied by the Department of Immigration and
(2) House of Representatives, Hansard, 24th June p. 2551.
(3) Ibid. It should be noted that the Minister made it clear
that this figure of sixty million dollars relates to the
overall cost of the system of dealing with detention,
processing, defending cases before the courts and paying asylum
(4) p. 105.
(5) p. 103.
(6) Evidence given to the JSC was that 'detainees have access to
telephones and postal services, and are able to receive visitors.'
(p. 37 of Asylum, Border Control and Detention). Evidence
to the Senate's enquiry on this Bill was that some of the detainees
held in immigration detention are now held incommunicado.
(7) Unreported, 7 June 1996, Lindgren J, NG 268 of 1996.
(8) An order of mandamus is an order of the court which compels
a person or body to perform a public legal duty imposed on it.
(Principles of Australian Administrative Law, Hotop, SD,
Law Book Company, 1985.)
(9) At p. 24 of Human Rights and Equal Opportunity
Commission & Another v Secretary of the Department of
Immigration and Ethnic Affairs (unreported judgment No 444/96,
7 June 1996, Lindgren J, NG 268 of 1996).
(10) Ibid p. 25.
(11) Ibid p. 22
(13) Ibid, p. 32.
(14) 135 (1996) ALR 583.
(15) The Senate Legal and Constitutional Legislation Committee
also came to this conclusion in its report on the Bill.
(16) This term is used to refer to the fact the applicants were
people born in Vietnam with an ethnic Chinese background. They had
been expelled from Vietnam and resettled in China in 1979.
(17) per Nicholson J (with whom Jenkinson J concurred) at
(18) Ibid at 632.
(19) The court was unanimous in upholding the trial judge on
(20) Ibid at 623.
(21) The Court raised the possibility that substantial
compliance with regard to the manner in which Form 866 is completed
by an applicant (p. 617) may satisfy the requirements of the
(22) The amending legislation and its effects are documented by
Carr J, who quotes the trial judge's summary of the legislative
- In November 1994, at about the time of the appellants' arrival
in Australia, legislation was introduced which established the
concept of a "safe third country", [Migration Legislation
Amendment Bill (No. 4) 1994] so that if a non-citizen was
covered by an agreement between Australia and a safe third country,
that person could not apply for a protection visa. At that stage
the new subdivision did not apply to the appellants;
- The PRC became a safe third country on 27 January 1995.
[Statutory Rules 1995 No 3]. As from that date Vietnamese refugees
who had been settled in the PRC prior to coming to Australia and
who had resided in PRC at any time before entering Australia, could
no longer apply for a protection visa; and
- The amendment to the Act in February 1995, by its reference to
Statutory Rules 1995 No. 3, directly targeted the same Vietnamese
people and pushed back the effective date for the lawful lodgment
of applications for refugee status to 29 December 1994
[Migration Legislation Amendment Bill (No. 2) 1995].
at p. 592.
(23) Ibid at pp. 636-637.
(24) The ICCPR came into force on 23 March 1976. There are
currently 58 Signatories and 134 Parties.
(25) 18 Dec 1972
(26) 13 Aug 1980
(27) The only Australian complaint which has so far succeeded
under this procedure was the complaint made against Tasmania's
criminal laws regarding homosexuality. In response to the Human
Rights Committee's views in this case the Federal Labor Government
introduced the Human Rights (Sexual Conduct) Act
(28) This article is elucidated upon by the Committee's General
Comment No 15 on 'The position of aliens under the Covenant'
(Twenty-seventh session, 1986). The Committee actually make the
point that this Article 'does not recognize the right of aliens to
enter or reside in the territory of a State party. It is in
principle a matter for the State to decide who it will admit to its
territory.' However the Article would seem to apply the provisions
of the Covenant once an alien has entered or is residing in the
territory of the State party. See the full text of the General
Comment at Attachment A. (If you would like to look at the text of
the General Comment through the University of Michigan's Human
Rights Library follow the link given. To return to this digest you
will need to select the 'Back' function (in Netscape this is the
top left hand button on your screen, or press 'Alt + left arrow
key' General Comment
15 at the University of Michigan's Human Rights Library.
(29) The introduction to document CCPR/C/21/Rev.1 (General
comments adopted by the Human Rights Committee under art. 40, para.
4, of the International Covenant on Civil and Political Rights;
date: 19 May 1989) explains the purpose of the general comments.
See Attachment B. (If you would like to look at the text of this
General Comment through the University of Michigan's Human Rights
Library follow the link given. To return to this digest you will
need to select the 'Back' function (in Netscape this is the top
left hand button on your screen, or press 'Alt + left arrow key'
Comment adopted by the Human Rights Committee at the University of
Michigan's Human Rights Library.
(30) The Hansard from the Committee's enquiry is not yet
available. This account is based on the 'first turn' of the Hansard
that was provided by the Department of the Parliamentary Reporting
Staff to the Senate Committee.
(31) The full text of the General Comment is appended at
Attachment C. (General Comment 8 on Article 9 (U.N. Doc.
HRI\GEN\1\Rev.1 at 8 (1994)). (If you would like to look at the
text of the General Comment through the University of Michigan's
Human Rights Library follow the link given. To return to this
digest you will need to select the 'Back' function (in Netscape
this is the top left hand button on your screen, or press 'Alt +
left arrow key' (Alt+ <== )). General Comment 8 at the
University of Michigan's Human Rights Library.
(32) General Comment 21. See Attachment D. (If you would like to
look at the text of the General Comment through the University of
Michigan's Human Rights Library follow the link given. To return to
this digest you will need to select the 'Back' function (in
Netscape this is the top left hand button on your screen, or press
'Alt + left arrow key' (Alt+ <== )). General Comment
21 at the University of Michigan's Human Rights Library.
(33) Adopted by General Assembly resolution 43/173 of 9 December
(34) House Hansard, p 1934.
(35) Alert Digest 4/96, pp. 13 - 17
(36) Appendix 2, List of Submissions Received by the
(37) See note 30.
(38) Statement issued by the Jesuit Refugee Service, dated 24
(39) Appendix 3, Correspondence to the Minister for Immigration
and Multicultural Affairs from Human Rights Commissioner and the
(40) p. 22.
(41) Sydney Morning Herald, 21 March 1996 (Michael Millett).
(42) The Minister was quoted as saying "I have been provocative
enough to say that a system has to be either full independent merit
review or judicial review but it cannot be both" The Australian, 31
(43) The Australian, 31 May 1996.
(44) From evidence given to the Senate Committee by Mr
Richardson of the Department of Immigration and Multicultural
(45) The UN Human Rights Committee has guidelines requiring
neither party to the complainant to discuss the complaint publicly,
however the Department provided this information in answer to a
question from that Senate Committee, and now provides the same
information to enquiries.
(46) As supported by Fang's case.
These Attachments take you to the text of the General Comments
through the University of Michigan's Human Rights Library. To
return to this digest you will need to select the 'Back' function
(in Netscape this is the top left hand button on your screen, or
press 'Alt + left arrow key' (Alt+ <== )).
Kirsty Magarey ph (06) 277 2764
28 June 1996
Bills Digest Service
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Commonwealth of Australia 1996
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