Dissenting Report by Senator Sarah Hanson-Young
Amendment (Strengthening the Character Test and Other Provisions) Bill 2011 is
inconsistent with Australia’s obligations under international law; it is
unnecessary and is unlikely to have any impact on the issue which it purports
proposes to amend the Migration Act 1958 in response to a number of
events that took place in immigration detention early in 2011.
majority of submissions made to the committee on this particular amendment are
not supportive of the proposed changes.
Greens do not support the proposed changes which are unnecessary and
fundamentally contradict the principles underlying the United Nations 1951
Refugee Convention, namely the principles of non-discrimination,
non-penalisation and non-refoulement.
are not necessary.
As it stands,
Section 501 of the Migration Act already sets out broad provisions
relating to the Minister's power to refuse to grant, or cancel an individual’s
visa based on character. The Australian Human Rights Commission submitted that
the “grounds upon which the Minister may cancel or refuse to grant a visa are
already sufficiently broad”.
In the view of
UNHCR “the 1951 Refugee Convention provides the appropriate legal framework and
parameters through which matters relating to a refugee’s character should be
considered by the country of asylum”.
Article 1F of the Convention sets out exhaustive grounds on which an asylum
seeker can be refused protection.
already exist through international conventions and Australian law to refuse,
or deny visas based on character or criminal history.
The Department of
Immigration and Citizenship state that these amendments are necessary to
demonstrate the Government’s capacity to respond to violence in immigration
detention regardless of the adequate provisions already currently contained
under the Migration Act
also confirmed that these amendments would only have applied to around 20
individuals over the past 12 years.
imposes additional punishment.
This Bill imposes
additional, disproportionate punishment on those individuals suffering
challenging mental, physical and emotional environments.
3.2. The Australian Human Rights
Commission submitted that “people who have been involved in disturbances in
immigration detention centres may currently be prosecuted, convicted and
sentenced under the Criminal Code Act 1995”.
3.3. An additional punishment is
incompatible with the principles of a democratic justice system.
proposes amendments that would breach international obligations.
4.1. The Sydney Centre for International
Law highlights that this bill “places Australia in potential breach of its
obligations under arts 7(1), 31(1), 32 and 33 of the Convention Relating to
the Status of Refugees”.
4.2. The Law Council of Australia also
highlights possible breaches with the International Covenant on
International Civil and Political Rights, the non-refoulement principle
of the Refugee Convention, the Convention on the Rights of the Child and the
Convention Against Torture.
The bill is
discriminatory towards detainees.
5.1. This Bill is discriminatory by
unequally burdening those asylum seekers in detention.
5.2. Asylum seekers in detention already
have considerable mental and emotional challenges to face and the deterioration
of mental health of detainees has been well documented. Such deterioration
leads to a desperation created by the conditions of detention.
5.3. Amnesty International cites that
failing the Character Test is not “fair or reasonable punishment for criminal
The organisation goes on to highlight that “unlike punishment in the criminal
justice system such as imprisonment, being denied a visa may have unquantifiable,
ongoing, long term consequences”.
5.4. Detainees, including minors, could
fail the Character Test based on minor incidents in detention.
to section 197B are inconsistent with domestic law.
6.1. The Sydney Centre for International
Law submitted that under Australian criminal law the penalties involving
possession or distribution of a weapon range from 6 months to 2 years depending
on the jurisdiction.
The current penalty for detainees is already greater than this at 3 years. This
is a disproportionate and unreasonable punishment.
undermines the principles
of Australia’s justice system.
7.1. The retrospectivity of the proposed
amendments undermines the justice system. The Rule of Law Institute of
Australia submitted that “retrospective law is arbitrary, and is often directed
at certain groupings or individuals whereas under the rule of law all citizens
should be treated equally before the law”.
7.2. These amendments do not allow for
context, mental and emotional health, psychological trauma or extenuating
circumstances. All these factors are at the discretion of the Minister of the
7.3. Natural justice is denied by denying
a right to appeal a decision by the Minister.
8.1. The Human Rights Law Centre observed
that it is “unprincipled and incoherent for the Australian government to impose
sanctions on detainees who ‘demonstrate a fundamental disrespect for Australian
laws, standards and authorities’ when the face and conditions of detention
itself constitutes a contravention of international laws, standards and
8.2. This Bill will further distance
Australia from our moral obligations to people in distress and from our legal
obligations as a responsible participant in a global community.
8.3. These amendments are not necessary,
are disproportionate, discriminatory, inconsistent with international law,
inconsistent with domestic law and most importantly undermine the principles of
democratic justice in Australia.
8.4. Based on the arguments outlined
above, the Australian Greens recommend that this Bill not proceed.
Australian Greens' Spokesperson on Immigration
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