Bills Digest 111 1995-96 Migration Legislation Amendment Bill (No. 2) 1996


Numerical Index | Alphabetical Index

WARNING:
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

CONTENTS

Passage History

Date Introduced: 20 June 1996
House: Senate
Portfolio: Immigration and Multicultural Affairs
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.'

Purpose

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.

Background

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.

Policy Background

Australia's policy regarding the treatment of unlawful non-citizens who arrive in small boats has had a lengthy and rather troubled history.

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 said:

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 was that:

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 Affairs(7)

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 Act) 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 that 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 legal advice;
  • 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 lawyers.

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 contact.

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 fairness'.(18)

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 strong:

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 enactment of ss 45-47 and ss 193(2) and 198(4) of the Migration Act. 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.

The 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:

Article 9

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.

Article 10

1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

Article 17

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 rights.'(29)

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 successful.(30)

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 violation).(32)

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:

Principle 13

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 rights.

Principle 17

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 Bill

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 internationally.

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.

Reactions in the Community

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 Commissioner said:

.... 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 life.(37)

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)

Timing

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 grounds that:

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 Ombudsman.

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 procedures.(44)

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.

Comment

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.

Main Provisions

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 Act 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 regarding 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 preserved.

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.

Endnotes

(1) Of the 2 478 unauthorised arrivals and their 71 Australian born children:

1612 have departed Australia

390 have been granted refugee status

80 have been granted permanent entry on either humanitarian or marriage grounds

62 have been granted bridging visas

9 have escaped from custody and remain at large in the community

394 remain in detention.

(Information supplied by the Department of Immigration and Multicultural Affairs).

(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 seeker assistance.

(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

(12) Ibid.

(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 631.

(18) Ibid at 632.

(19) The court was unanimous in upholding the trial judge on this matter.

(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 legislation.

(22) The amending legislation and its effects are documented by Carr J, who quotes the trial judge's summary of the legislative chronology:

  • 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 1995.

(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' General 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 1988.

(34) House Hansard, p 1934.

(35) Alert Digest 4/96, pp. 13 - 17

(36) Appendix 2, List of Submissions Received by the Committee.

(37) See note 30.

(38) Statement issued by the Jesuit Refugee Service, dated 24 June 1996.

(39) Appendix 3, Correspondence to the Minister for Immigration and Multicultural Affairs from Human Rights Commissioner and the Ombudsman.

(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 May 1996.

(43) The Australian, 31 May 1996.

(44) From evidence given to the Senate Committee by Mr Richardson of the Department of Immigration and Multicultural Affairs.

(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+ <== )).

ATTACHMENT A

ATTACHMENT B

ATTACHMENT C

ATTACHMENT D

Contact Officer and Copyright Details

Kirsty Magarey ph (06) 277 2764
28 June 1996
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This Digest does not have any official legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

PRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

ISSN 1323-9032
Commonwealth of Australia 1996

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1996.

This page was prepared by the Parliamentary Library, Commonwealth of Australia
Last updated: 28 June 1996



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