Bills Digest 111 1995-96
Migration Legislation Amendment Bill (No. 2) 1996
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
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.'
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.
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.
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.
(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
Kirsty Magarey ph (06) 277 2764
28 June 1996
Bills Digest Service
Parliamentary Research Service
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be consulted to determine whether the Bill has been enacted and, if so,
whether the subsequent Act reflects further amendments.
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public.
ISSN 1323-9032
Commonwealth of Australia 1996
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