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The
committee’s mandate
2.1
The committee's
remit is to consider bills and legislative instruments introduced into the
Parliament for compatibility with human rights as defined in the Human
Rights (Parliamentary Scrutiny) Act 2011, as well as to examine Acts for
compatibility with human rights, and to report to both Houses of the Parliament
on these matters.
2.2
The Act defines
human rights by reference to the rights and freedoms contained in seven core
human rights treaties to which Australia is a party. These treaties are:
-
International
Covenant on Civil and Political Rights (ICCPR);
- International
Covenant on Economic, Social and Cultural Rights (ICESCR);
- International
Convention on the Elimination of All Forms of Racial Discrimination (CERD);
- Convention on
the on the Elimination of All Forms of Discrimination against Women (CEDAW);
- Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT);
- Convention on
the Rights of the Child (CRC); and
- Convention on
the Rights of Persons with Disabilities (CRPD)
2.3
In interpreting
the treaties the consistent practice of the committee has been to draw on the
views of human rights treaty bodies, international and comparative human rights
jurisprudence and general international law sources where these are relevant
and appropriate. At the same time, the committee considers that its
interpretation of these rights and freedoms must have relevance within an
Australian context.
2.4
The Refugee
Convention and its Protocol[1]
are not among the treaties listed in the Human Rights (Parliamentary
Scrutiny) Act 2011 as treaties against which the committee is mandated to
measure the human rights compatibility of bills, Acts and legislative
instruments. However, a number of submissions to this committee and to other
Parliamentary committees which have examined the regional processing
legislation have referred to the Refugee Convention, arguing that the measures
are inconsistent with Australia’s obligations under that treaty.[2]
2.5
The committee
notes that the Refugee Convention is a specialised body of law which can inform
the general guarantees of the human rights treaties (and vice versa). For
example:
- the provisions
of the Refugee Convention and its associated jurisprudence may provide a guide
to what constitutes ‘arbitrary detention’ under article 9 of the ICCPR as
applied to asylum seekers or refugees, who may be detained for certain purposes
which may not be applicable to citizens or other non-citizens present in a
State;
- the rights of
refugees to work and to access education guaranteed by the Refugee Convention
may be relevant to determining whether it is permissible to limit the enjoyment
of the general right to work guaranteed by article 6 of the ICESCR or to limit
the access to schooling of refugee children; and
- the different treatment
of refugees or asylum seekers compared with other categories of persons who may
have arrived in a country without immigration permission, may give rise to
issues of equality and non-discrimination, which references to the rights of
refugees under the Refugee Convention might help to resolve (their status and
the applicable international obligation may provide an ‘objective and
reasonable justification’ for the differential treatment and thus be
permissible differentiation).
National interests and
human rights
2.6
The committee
recognises that under international law every State has the sovereign right to
determine who may enter its territory. However, the exercise of this right is
subject to any obligations the State accepts under international treaties
(including human rights treaties) or by which it is bound under customary
international law.
2.7
The committee
acknowledges that the setting of immigration policies may involve judgments
about the national interest. These national interest considerations may
properly be taken into account in determining whether any restrictions on human
rights resulting from the implementation of immigration policy are permissible.
A State may derogate from some of its obligations under article 4 of the ICCPR
in 'time of public emergency which threatens the life of the nation and which
is officially proclaimed'. However, in the absence of a permitted derogation,
it will be necessary to show that any immigration measure restricting rights
pursue a legitimate goal in a rational and proportionate manner.
2.8
The goals
pursued by immigration policies will generally involve the pursuit of a
legitimate objective. Nonetheless, such measures must also be demonstrated to
be rationally connected to the achievement of that objective and also to be a
proportionate means of pursuing it, in order to be permissible under human
rights law.
2.9
In the materials
before the Parliament and those submitted to the committee in relation to its
examination of the human rights compatibility of the regional processing
legislation, there has been much discussion of the extent of Australia’s
obligations under the applicable human rights treaties (and the Refugee
Convention). In particular, the issue has been raised whether Australia’s
obligations under the applicable human rights treaties apply to the treatment
of asylum seekers once they have been transferred to Manus Island and Nauru.
Australia’s human rights
obligations in relation to actions inside Australia
2.10
Australia’s
obligations under the relevant human rights treaties will apply to
circumstances where asylum seekers are present on Australian territory (including
Christmas Island and other offshore territories) or in Australian territorial
waters. That will include:
- the period
during which they are under the control of Australian customs and border
control authorities in Australian maritime zones;
- when they are
held in detention in Australia or released into the Australian community; and
- when they are
subject to decisions to remove them from Australia that may give rise to their
rights being violated outside Australia.
2.11
It is
uncontested that Australia’s human rights obligations will apply while a person
is detained in Australia or released into the community, and to the actions
taken to transfer them to another country.
‘Effective
control’
2.12
The question of
how far Australia’s obligations under the relevant human rights treaties extend
to asylum seekers outside its territory is more complex.[3]
2.13
The UN Human
Rights Committee has stated that:
[A] State
party must respect and ensure the rights laid down in the [ICCPR] to anyone
within the power or effective control of the State Party, even if not situated
within the territory of the State Party.[4]
2.14
While the outer
limits of the extraterritorial applicability and relevance of a State’s obligations
are not yet agreed, it is now well-accepted in international jurisprudence that
the human rights obligations of a State extend to persons who are outside the
territory of the State but ‘under the effective control’ of the authorities of
the State. While the applicability of a particular treaty or right may depend
on the specific wording of the relevant provisions, this position has also been
accepted in relation to the other UN human rights treaties.[5]
2.15
Australia’s
obligations under the relevant human rights treaties will therefore apply to
those situations where asylum seekers are under the ‘effective control’ of
Australian authorities outside Australian territory. If Australia has
‘effective control’ over asylum seekers outside Australian territory, it must
treat them consistently with its human rights obligations.[6]
2.16
The government
has accepted that its human rights obligations extend outside Australian
territory where it exercises ‘effective control’. This position was set out, in
relation to the ICCPR, in Australia’s formal statement to the UN Human Rights
Committee in 2009:
Australia
accepts that there may be exceptional circumstances in which the rights and
freedoms set out under the Covenant may be relevant beyond the territory of a
State party (although notes that the jurisdictional scope of the Covenant is
unsettled as a matter of international law). Although Australia believes that
the obligations in the Covenant are essentially territorial in nature,
Australia has taken into account the Committee’s views in general comment No.
31 on the circumstances in which the Covenant may be relevant
extraterritorially.
Australia
believes that a high standard needs to be met before a State could be
considered as effectively controlling territory abroad. It is not satisfied in
all, or necessarily any, cases in which Australian officials may be operating
beyond Australia’s territory from time to time. The rights under the Covenant
that a State party should apply beyond its territory will be informed by the
particular circumstances.[7]
2.17
The government also
agrees that its human rights obligations will extend to asylum seekers who are
under its ‘effective control’ outside Australian territory.[8] It is also not contested
that Australia’s human rights obligations will apply, for example:
- during the
period that asylum seekers are under the control of Australian customs and
border control authorities after being rescued on the high seas;[9] and
-
to the conduct
of Australian authorities when transporting asylum seekers to offshore centres.[10]
2.18
The question of whether
Australia is exercising ‘effective control’ over the asylum seekers in Nauru or
on Manus Island, however, is contested. The disagreement has been as to whether
asylum seekers transferred to the regional processing centres remain under the
‘effective control’ of Australia once they arrive in Papua New Guinea and
Nauru.
2.19
The Immigration
Department has maintained that asylum seekers in the regional processing centre
in Manus Island and Nauru are not under the ‘effective control’ of Australian
authorities and that Australia’s obligations under the ICCPR (and other
treaties) do not apply to them. The Department’s view is that:
[The] regional
processing centres are a matter for the Nauruan and Papua New Guinean
governments as these centres are located in their sovereign territory’.
It is in
relation to a centre that is being run in another sovereign nation where any
powers to detain, where the lawfulness of the people in Nauru or Papua New
Guinea depend upon the laws of another sovereign nation. Australia does not, in
fact, have the effective control that would be necessary to mean that our human
rights obligations are transferred when the people are taken to Nauru or PNG.[11]
2.20
The 'effective
control' test is essentially one of sufficient control and the question as to whether
Australia is exercising sufficient control and authority is a question of fact
and degree.[12]
It is possible for Australia to be in ‘effective control’ of persons even if
formal legal authority over those persons lies with another State.[13]
2.21
The government
has agreed that the question of whether ‘effective control’ exists will depend
on the facts in the particular circumstances. In its response to the UN Human
Rights Committee set out above, the government stated:
The rights
under the [ICCPR] that a State party should apply beyond its territory will be
informed by the particular circumstances. Relevant factors include the degree
of authority and degree of control the State party exercises, and what would
amount to reasonable and appropriate measures in those circumstances.[14]
2.22
The government’s
statement above also suggests that it accepts that the ‘effective control’ test
is not predicated on a State’s capacity to fulfil all of its human rights
obligations extra-territorially. The obligations may extend to the protection
only of certain rights that are appropriate for application in the
circumstances.[15]
2.23
Multiple
submissions to this committee argued that Australia is likely to have
‘effective control’ over the asylum seekers in the regional processing centres
in Nauru and on Manus Island. These submissions pointed to the level of
Australia’s involvement in relation to the care for, the processing of and the
resettlement or achievement of a durable solution for those asylum seekers, as
well as its involvement in the construction, maintenance and operation,
funding, staffing and contractual arrangements for managing the facilities and
providing services at the processing centres.
2.24
For example, the
Refugee and Immigration
Legal Centre submitted:
While there
is a lack of transparency and scrutiny in relation to the regional
arrangements, it appears that Australia is exercising effective or de facto
control of the people staying in regional processing countries.
For example,
Australia is responsible for the transfer of people from its territory to an
offshore processing country; Australia is funding the arrangements; Australia's
contractors manage the detention centre and provide security services;
Australia's contractors provide case management and health care; and Australia
is responsible for the transfers or resettlement of people from regional
processing countries. UNHCR has also recently report[ed] that DIAC officials,
seconded to Nauru, are currently undertaking registration interviews on Nauru.[16]
2.25
Another
submission noted that:
While
processing will be done under local law and people will be detained as an
exercise of PNG or Nauruan sovereignty, there are other factors which suggest
that Australia does have de facto, if not de jure, control of the process.
These include the engagement of Australian officials and the total financial
reliance of Nauru and PNG on Australia with respect to the entire program (from
establishment of the facilities to visa costs to the costs of processing and
review). Even on the terms of the relevant memoranda of understanding, the
ultimate resettlement obligation with respect to those whose refugee claims are
successful remains with Australia.[17]
2.26
In evidence to
this committee, the President of the Australian Human Rights Commission
expressed the view that:
My own view,
as an international lawyer—and the view of the team of legal lawyers at the
Australian Human Rights Commission—is that Australia is internationally
responsible for the activities in relation to these asylum seekers on Nauru and
Manus Island and that these are acts for, on behalf of, the Commonwealth and we
therefore have a jurisdiction.[18]
2.27
While the issue
of whether Australia is exercising ‘effective control’ over (asylum seekers in)
an area outside its territory has generated a great deal of discussion, it is
not the exclusive basis by which Australia may have responsibility with regard
to the treatment of asylum seekers in Nauru and Manus Island.
Joint
or accessory responsibility
2.28
In addition to
any responsibility that may arise if Australia is considered to be in
‘effective control’ of transferees, Australia may also be jointly responsible
with Nauru and Papua New Guinea for any violations that take place in Nauru or
on Manus Island, especially where Australia is in joint control of the
arrangements that are in place,[19]
pursuant to the respective memoranda of understanding with Nauru and Papua New
Guinea.[20]
2.29
By providing aid
and assistance to Nauru or PNG, Australia may also be liable if that aid or
assistance contributes to the commission of human rights breaches.[21]
2.30
The bases for
these liabilities arise under the international legal principles of state
responsibility as they apply to Australia’s primary obligations under the
applicable human rights treaties (and the Refugee Convention). These may give
rise to liability, irrespective of whether Australia has ‘effective control’
over those asylum seekers in relation to the acts in question.
2.31
The Expert
Panel’s report acknowledges that the law of state responsibility is relevant to
the implementation of regional processing arrangements:
If a breach
of an international obligation (such as a human rights obligation) occurs,
international law prescribes rules which determine when a particular State is
responsible for that breach. Key principles of state responsibility include:
- A
State is responsible for conduct that may be attributed to it. The basic
principle is that a State will be responsible for any actions of its officials
to the extent that they are acting in a government capacity.
- The
conduct of bodies which are not, or persons who are not, State organs may also
be attributed to a State if, for example, the State instructs or directs or
controls that conduct.
- In
addition, a State may be responsible for wrongful conduct committed by another
State, where the first State knowingly aids or assists in that conduct.[22]
2.32
Various
submissions to the committee agreed that even if Australia’s involvement did
not amount to effective control, Australia can still be responsible for actions
occurring within the territorial sovereignty of Nauru and PNG because
international law recognises joint and several liability.[23]
For example, one submission noted that:
Liability
for breaches of international law can be both joint and several. Any State that
aids or assists, directs or controls, or coerces another State to commit an
internationally wrongful act is also responsible if it knows the circumstances
of the wrongful act, and the act would be wrongful if that State committed it
itself. Furthermore, an internationally wrongful act is attributable to a State
if it is committed by a legislative, judicial or executive organ of government,
or a person or entity which, although not a government organ, has nonetheless
been delegated certain aspects of governmental authority (even if that person
or entity exceeds the actual authority they have been given or goes against
instructions). In other words, States cannot ‘contract out’ of their
international responsibilities. This was recently emphasized by the Grand
Chamber of the European Court of Human Rights in respect of Italy’s transfer of
irregular migrants to Libya, where it stated that Italy could not contract out
of its international obligations via a bilateral agreement with another State [Hirsi
Jamaa v Italy (App No 27765/09, European Court of Human Rights, Grand
Chamber, 23 February 2012) para 129].[24]
2.33
The Immigration
Department accepted the potential for such liability to arise but maintained
that it would depend on the facts of a particular breach of human rights:
The
application of the principles of state responsibility is highly dependent on
the circumstances of the alleged breach in question. In the absence of specific
details of an alleged breach of human rights, it is difficult to make
definitive conclusions on the operation of the doctrine of state
responsibility. Notwithstanding this, the Government has sought to ensure human
rights are adequately protected in the context of the regional processing
arrangements.[25]
2.34
While the
regional processing centres are physically located in Nauru and on Manus
Island, Papua New Guinea, as discussed above, stakeholders have suggested that
Australia has exercised and will continue to exercise a significant degree of
control over the centres and the asylum seekers sent there.[26] The following section sets
out the nature and extent of that involvement.
Funding
and lease arrangements for regional processing centre sites
2.35
Australia has
had significant involvement in the creation of temporary regional processing
centres and the establishment of permanent centres in both Nauru and Manus
Island. According to the Immigration Department, 'the processing centres are
funded by the Australian government' and are 'under the control of service
providers'.[27]
Contracts to provide these facilities and services include contracts involving
significant public expenditure: $184.3 million for Transfield for construction
on Nauru; $74.9 million for the Salvation Army for welfare; $80.5 million for
G4S for security; $496,000 for Maximus to look after children; $63.1 million
for International Health and Medical Services for health care; $8 million for
Save the Children for care for children on Manus Island.[28] In addition, the operating
expenditure for Nauru up to 30 April 2013 was $112.9 million and for Manus
Island was $49.1 million.[29]
This totals $573.296 million – with 795 people transferred, this equates to approximately
$721,000 per asylum seeker thus far.
2.36
Australian
responsibility for funding is confirmed in the memoranda of understanding
between Australia and PNG and Nauru which both specify that the Australian
government will bear all costs incurred under the MOUs. In relation to the MOU
with PNG the parties also agreed to 'develop a package of assistance focused on
Manus Province and other bilateral cooperation, which will be in addition to
the current allocation of Australian development cooperation assistance to
PNG'.[30]
2.37
In relation to
the establishment of a permanent regional processing centre on Manus Island the
Australian Government recently nominated its preferred site for the centre to
the PNG Government and will lease approximately half of the site from the PNG
Government for 15 years.[31]
Similarly, the Australian Government has already negotiated a 20-year lease
with the Nauruan Government for regional processing centre site in Nauru.[32]
Australian
staff at the regional processing centres
2.38
In evidence to
the committee, the Immigration Department noted that the composition of staff
working at the regional processing centres currently includes some Australian
public servants, while the majority are staff working for service providers
contracted by the department.[33]
As at 16 January 2013, 43 per cent of service provider staff working on Nauru were
Nauruan citizens, while 70 per cent of service provider staff working on Manus
Island were PNG citizens.[34]
Services provided by Australian contractors are diverse and include, for
example, a formal education programme at Manus Island in which Save the Children
Australia teaches the Australian English as a Second Language curriculum to
children at the centre.[35]
2.39
In its mission
to the regional processing centre at Nauru, the UNHCR noted that there was not
'a regular presence of Nauruan Government' at the centre, while there was a
'fairly high visibility (and level of control) by Australian officers,
notwithstanding messaging to the effect that responsibility for the asylum
seekers had purportedly been transferred to the Government of Nauru.' The UNHCR
also reported that the primary contact of the asylum seekers on Nauru has been
through organisations contracted by the Immigration Department.[36]
2.40
The UNHCR noted
that the Immigration Department officially coordinates the implementation of
service provider contracts in Nauru and:
appeared to
be in effective control of management of the [regional processing centre].
While not housed within the perimeter of the Centre, the DIAC presence was very
visible, with a number of DIAC officials in DIAC visibility attire. In addition
a number of DIAC staff seconded to the Government of Nauru to undertake
'transferee' (essentially registration) interviews are present, though without
identifying attire. Approval to enter the [regional processing centre] appears
to be controlled by DIAC, and not the Government of Nauru.[37]
Access
to the regional processing centres
2.41
An SBS
journalist reported on 28 May 2013 that he had obtained permission to visit the
Manus Island facilities from the PNG Prime Minister and the centre
administrator but that Australian contractors providing security to the centre
refused him access, citing their contracts with the Immigration Department.[38]
Similar reports have
been made by journalists in relation to access to the regional processing
centre in Nauru.[39]
2.42
On 5 June 2013
the Prime Minister was asked in Parliament whether journalists were being
prevented by the Immigration Department and its contractors from accessing the
regional processing centre on Manus Island.[40]
The Prime Minister said that ‘PNG is a sovereign nation so it has the ability
to control who gets visas and who enters PNG’ but that the Australian
Government was ‘in the business of enabling there to be transparency about what
is happening in detention centres’.[41]
Australian
involvement in the processing of asylum claims
2.43
In evidence to
the committee the Immigration Department stated that while processing of claims
would be undertaken under the respective laws of PNG and Nauru, there would be
'assistance from the Australian government in terms of helping to provide
capacity'.[42]
Both MOUs provide that Nauru and PNG will undertake to make an assessment, or
permit an assessment to be made, of transferees' claims for refugee status.[43]
2.44
The Immigration
Department noted that 'the refugee status determination processes will be
governed by the regional processing country's domestic legislation as opposed
to Australian legislation'. However, it is not clear what level of involvement
Australia has had or is having in the development of these processes. In this
regard, the committee notes that the Immigration Department was able to advise
that the processes under development would include claims assistance and merits
review.[44]
In relation to claims assistance, the Immigration Department advised that it
was finalising a tender process for the provision of independent claims
assistance and that the people providing the assistance 'could be Australian
people or it could be international people'.[45]
2.45
As noted above,
in Nauru the UNHCR reported that 'transferee interviews' to collect preliminary
registration information were conducted by three DIAC officials seconded to the
Government of Nauru. The UNHCR also reported that asylum seekers:
...are
confused as to whether the Government of Australia or Nauru has ultimate
responsibility for assessing their claims to international protection and
seeking permanent solutions. This situation is compounded by the conflation of
procedures in that previously collected information by the Government of
Australia is offered to the applicant for clarification, and additional
documentation submitted by an applicant is submitted through a DIAC email
address.[46]
2.46
Further, the
UNHCR reported that the Government of Nauru was not present at the regional
processing centre at the time of their visit and had no direct involvement in
the scheduling, notification and/or interviewing of the transferees (which was
completed by Australian officials on behalf of Nauru). The UNHCR was, however,
of the understanding that Nauruan officials from the Department of Justice and
Border Control would participate in transferee interviews after 5 December
2012.[47]
It is not clear from other evidence provided to the committee whether this has
occurred.
2.47
In relation to
Manus Island, the UNHCR reported that:
DIAC had
advised of its intention to send two officials to the Centre in the near future
to begin conducting initial interviews with asylum seekers, with PNG officials
attending the interviews for professional development purposes. These
interviews are understood to be preliminary in nature and will not form part of
a formal refugee status determination, although transcripts of the interviews
will be shared with decision-makers once the formal process commences.[48]
2.48
The Immigration
Department also advised the committee that if Nauru or PNG did not uphold the
assurances in the MOUs 'that transferees will be treated with dignity and
respect and that the relevant human rights standards are met' then it may be
possible for Australia 'to take the people back'.[49]
Australian
involvement in resettlement
2.49
Australia has
undertaken a number of specific commitments under the MOUs, including that it
‘will make all efforts to ensure’ that persons transferred to PNG or Nauru
‘will have left within as short a time as is reasonably necessary for the
implementation’ of the MOUs.
2.50
The MOU with PNG
confirms that it is Australia's responsibility 'to arrange for the resettlement
or transfer from Papua New Guinea of all persons entering Papua New Guinea
under this MOU'.[50]
Joint
monitoring and oversight
2.51
Both MOUs also
provide for the establishment of a 'Joint Committee with responsibility for the
oversight of practical arrangements required to implement this MOU including
issues relating to the duration of stay of transferees.' Under the memoranda
‘joint cooperation’ is to be facilitated;[51]
the Joint Committees must meet at least once per month and are co-chaired, in
the case of Nauru 'by mutually agreed representatives of the Australian High
Commission Nauru and the Republic of Nauru', and in the case of PNG 'by mutually
agreed representatives of the Australian High Commission Port Moresby and the
PNG Immigration and Citizenship Service'.[52]
2.52
The UNHCR stated
in its report on its mission to Nauru that 'the composition of the oversight
body [the Joint Committee], together with the de facto areas of control
exercised by Australian officials and contractors, reinforces UNHCR's clear
view that both States are equally responsible for the care, welfare and
protection of all transferred persons.'[53]
2.53
Similarly, in
relation to Papua New Guinea, the UNHCR concludes that:
The terms
under which transfers have taken place and will continue to take place as well
as the significant de facto control exercised by Australian officials and
contractors on Manus Island reinforce UNHCR's view that legal responsibility
under international law for the care and protection of all transferees from
Australia to PNG remains with both contracting States.[54]
Committee view
2.54
The
committee notes that Australia’s involvement in the arrangements relating to the
detention, upkeep and provision of services to persons transferred from
Australia for the processing of asylum claims in Manus Island and Nauru is
significant.
2.55
The
committee notes that the evidence demonstrates that Australia could be viewed
as exercising ‘effective control’ of the arrangements relating to the treatment
of persons transferred to Manus Island or Nauru.
2.56
Whether
or not Australia’s involvement is sufficient to reach the level of ‘effective
control’, the committee considers that the level of Australia’s involvement
gives rise to Australia’s responsibility under international law in relation to
internationally wrongful acts that may be involved in the treatment of asylum
seekers in those countries. Such responsibility arises irrespective of whether
Papua New Guinea or Nauru might also be jointly responsible in relation to the
same acts.
2.57
The
committee reaches its conclusion on the basis of the establishment in each case
of a Joint Committee, the role of which is to agree on the arrangement in the
two countries and oversee their implementation. The joint nature of the
arrangements in each case is made clear by the provision of the two MOUs, in
particular by the references to the objective of joint cooperation, the
procedures for agreement on arrangements and their implementation, and the
extent and nature of the financial and practical steps taken to give effect to the
two MOUs.[55]
2.58
The
committee considers that the nature and extent of Australian involvement in,
and financial and other support for, the treatment of transferees in Manus
Island and Nauru may also constitute providing aid and assistance in the
commission of human rights breaches, if such acts have occurred.
2.59
The arrangements
for dealing with ‘irregular maritime arrivals’ engage a range of rights,
including:
- the prohibition
against sending a person to a country where there is a real risk that they will
be subjected to torture (article 3 of the CAT and article 7 of the ICCPR) or to
cruel, inhuman or degrading treatment or punishment (article 7 of the ICCPR and
possibly article 16 of the CAT);
- right to humane
treatment in detention (article 10 of the ICCPR);
- right to health
(article 12 of the ICESCR);
- the prohibition
against arbitrary detention (article 9 of the ICCPR)
- the rights of
children in the CRC;
- family rights
(articles 17 and 23 of the ICCPR);
- the right to
work (article 6 of the ICESCR)/ adequate standard of living (article 11 of the
ICESCR)/social security (article 9 of the ICESCR); and
- the right to
non-discrimination (articles 2 and 26 of the ICCPR, etc).
Prohibition
against torture or cruel, inhuman or degrading treatment or punishment and
obligations of non-refoulement
2.60
Australia has
obligations under a number of the UN human rights treaties not to send a person
to a country where there is a real or substantial risk that the person may be
subject to particular forms of human rights violations.[56] There is a
clear obligation under article 7 of the ICCPR and article 3 of the Convention
against Torture, not to send a person to a country where there is a real risk
that they will be subjected to torture or cruel, inhuman or degrading
treatment. Article 16 of the CAT arguably prohibits return where there is a
real risk of cruel, inhuman or degrading treatment.
2.61
The obligation
in these types of cases do not involve the extraterritorial application of
obligations – the obligation is not to send a persons who is in Australia to a
country where there is a real risk of suffering the rights violations in
question. Obligations also arise under article 6 of the ICCPR to not send a
person to a country where they are at real risk of the death penalty or arbitrary
deprivation of life.
2.62
Australia is not
relieved of its human rights obligations in this regard by the receipt of
assurances from the receiving country; it must ensure that processes, such as
monitoring of the treatment of returnees, are put in place to ensure compliance
with those assurances.
2.63
These
obligations are analogous to and overlap with, but are not identical to, the
obligation of non-refoulement under article 33 of the Refugee Convention which
provides that no Contracting State ‘shall expel or return (refouler) a refugee
in any manner whatsoever to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion.’
Right
to humane treatment/right to health
2.64
Article 10 of
the ICCPR provides that all persons in detention must be treated humanely. This
provision overlaps with Article 7 of the ICCPR which prohibits torture and
related forms of ill-treatment. Provision of decent accommodation is one aspect
of humane treatment in detention.
2.65
Article 12 of
the ICESCR recognises 'the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health' and requires steps to be
taken to achieve the full realisation of this right.
Prohibition
against arbitrary detention
2.66
Article 9 of the
ICCPR provides that no one may be subjected to arbitrary arrest or detention,
and no one may be deprived of liberty except on such grounds and in accordance
with such procedures as are established by law. Article 9 of the ICCPR applies
to all deprivations of liberty and is not limited to criminal cases. Detention
must not only be lawful but reasonable and necessary in all the circumstances.
The principle of arbitrariness includes elements of inappropriateness,
injustice and lack of predictability.
2.67
The UN Human
Rights Committee has held in a number of cases, including cases brought against
Australia, that prolonged mandatory detention of asylum seekers may violate the
guarantee against arbitrary detention in article 9 of the ICCPR.[57]
2.68
In order for
detention not to be arbitrary, it must be necessary in the individual case
(rather than the result of a mandatory, blanket policy); subject to periodic
review by an independent authority with the power to release detainees if
detention cannot be objectively justified; be proportionate to the reason for
the restriction; and be for the shortest time possible.
Right
to work/social security/adequate standard of living
2.69
Article 6 of the
ICESCR guarantees the right to work. The UN Committee on Economic, Social and
Cultural Rights (CESCR) has described the right to work as ‘essential for
realising other human rights and . . . an inseparable and inherent part of
human dignity’.[58]
2.70
The rights to social
security and an adequate standard of living are protected in articles 9 and 11
of the ICESCR, respectively. The CESCR has stated that social security should
be available, adequate and accessible. Adequacy means that:
... the
benefits must be adequate in amount and duration in order that everyone may
realize his or her rights to family protection and assistance, an adequate
standard of living and adequate access to health care, as contained in articles
10, 11 and 12 of the [ICESCR]. States parties must also pay full respect to the
principle of human dignity contained in the preamble of the Covenant, and the
principle of non-discrimination, so as to avoid any adverse effect on the
levels of benefits and the form in which they are provided’.
Family
rights
2.71
Articles 17 and
23 of the ICCPR protect family rights. Article 17 of the ICCPR prohibits
arbitrary interference with the family, while article 23 of the ICCPR affirms
the right of families to protection by 'society and the State'. In a general
comment on the rights of non-citizens, the UN Human Rights Committee stated
that:
The [ICCPR]
does not recognise 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, in certain circumstances an alien may enjoy
the protection of the Covenant even in relation to entry or residence, for
example, when considerations of non-discrimination, prohibition of inhuman
treatment and respect for family life arise.[59]
2.72
Article 3(1) of
the CRC requires that, ‘in all actions concerning children ... the best
interests of the child shall be a primary consideration.’ The UN Committee on
the Rights of the Child has stated that the best interests of the child
principle requires:
active
measures throughout Government, parliament and the judiciary. Every
legislative, administrative and judicial body or institution is required to
apply the best interests principle by systematically considering how children’s
rights and interests are or will be affected by their decisions and actions -
by, for example, a proposed or existing law or policy or administrative action
or court decision, including those which are not directly concerned with children,
but indirectly affect children.[60]
2.73
The CRC also
requires that:
- applications for
family reunification are dealt with in a positive, humane and expeditious
manner (article 10, CRC);
- unaccompanied
children are provided with special protection and assistance (article 20, CRC);
- child asylum
seekers receive appropriate protection and humanitarian assistance (article 22,
CRC); and
- children are
detained only as a measure of last resort, and for the shortest appropriate
period of time (article 37(b), CRC).
Right
to non-discrimination
2.74
Article 26 of
the ICCPR guarantees the right to non-discrimination and equal protection of
the law. It prohibits
discrimination in law or in practice.[61]
2.75
Discrimination
means any distinction, exclusion, restriction or preference or other
differential treatment that is directly or indirectly based on the prohibited
grounds of discrimination and which has the intention or effect of nullifying
or impairing the recognition, enjoyment or exercise, on an equal footing, of
all rights and freedoms.
2.76
The grounds of
prohibited discrimination are not closed, and include race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status. The UN Human Rights Committee has not issued
any specific guidance on the meaning of ‘other status' but has treated it on a
case by case basis. It has nevertheless indicated that a clearly definable
group of people linked by their common status is likely to fall within the
category of 'other status'.[62]
2.77
A difference in
treatment on prohibited grounds, however, will not be directly[63]
or indirectly[64]
discriminatory provided that it is (i) aimed at achieving a purpose which is
legitimate; (ii) based on reasonable and objective criteria, and (iii)
proportionate to the aim to be achieved.[65]
2.78
A key element in
the committee's consideration of human rights in the legislative process is the
statement of compatibility. The Human Rights (Parliamentary Scrutiny) Act 2011
requires all bills and disallowable legislative instruments introduced into the
Parliament to be accompanied by a statement of compatibility.[66]
2.79
Some of the
pieces of legislation making up the package of legislation under examination by
the committee were accompanied by statements of compatibility but others were
not.[67]
The reasons for these omissions varied.
2.80
For example, the
Migration Legislation Amendment (Regional Processing and Other Measures) Act
2012 did not have a statement of compatibility as the original bill was
introduced into the Parliament before the Human Rights (Parliamentary
Scrutiny) Act 2011 came into force and the amendments to this bill
introduced by the government in August 2012 to give effect to the Expert Panel’s
recommendations were not subject to the statement requirement.[68]
2.81
The instruments
designating Nauru and PNG as ‘regional processing countries’ were not
accompanied by a statement of compatibility because they were not ‘disallowable
legislative instruments’, subject to the statement requirement.[69] For similar reasons, the instrument
which removed work rights for particular classes of asylum seekers on bridging
visas did not have a statement of compatibility.[70]
2.82
These omissions
were criticised by various stakeholders.
For example, in evidence to this committee, Father Frank Brennan said:
I think it
is troubling...that in relation to both instruments of designation of Nauru and
Papua New Guinea the executive has provided you with a statement to say that
there was no need for a statement of compatibility here in this instance,
because, to quote, 'Under section 44 of the Legislative Instruments Act, this
instrument is not subject to disallowance' ... I think it should be acknowledged
that it is essential, particularly when we are going to be concerned about
whether or not the conditions in offshore processing are human rights
compliant, that all due process be followed by the executive in providing the
necessary statements of compatibility and that there be due acknowledgement of
the parliament to be properly informed in order to decide whether to disapprove
or to disallow such a declaration.[71]
2.83
The Immigration
Minister subsequently provided an assessment of the human rights compatibility
of the Migration Legislation Amendment (Regional Processing and Other
Measures) Act 2012, following a request from the committee for such an
assessment.[72]
The letter stated that the legislation raised a number of human rights
considerations, including in relation to detention, non-refoulement, family and
children but ‘confirm[ed] the Government’s clear view that the Act complies
with Australia’s human rights obligations’.[73]
The letter stated that the government considered it was complying with human
rights obligations in practice as well:
While the
Act does not breach any of Australia’s human rights obligations, as you would
appreciate, the absence of inconsistency alone does not guarantee compliance
with human rights standards. Rather, compliance with Australia’s international
obligations extends to what Australia does in toto by way of
legislation, administration and practice. The Government considers that the
actions taken under the Act to date also comply with Australia’s international
obligations.[74]
2.84
While the other
pieces of legislation were accompanied by statements of compatibility, the
statement that was provided for the Migration Amendment (Unauthorised
Maritime Arrivals and Other Measures) Act 2013 has been criticised for its
analysis of the human rights impact of extending the regional processing regime
to asylum seekers arriving by boat anywhere in Australia (rather than just to
those who arrive at offshore excised places).[75]
The statement noted that Australia has human rights obligations in relation to
non-refoulement, detention, families and children but suggested that the
amendments did not engage any of these rights because removal arrangements
already existed pursuant to the Migration Legislation Amendment (Regional
Processing and Other Measures) Act 2012. The statement concluded that the
amendments did ‘not engage any human rights obligations’ because extending
these measures to a wider group of people did not alter the current substantive
law:
[T]he Bill
does not contain or amend any existing provisions which relate to removal that
already exist with the Act (as amended by the Regional Processing Act). To that
extent, the provisions in the Bill only contemplate increasing the scheme to
those people who arrive directly at the Australian mainland. They do not affect
the substantive current operation of the Act in relation to removal or regional
processing arrangements nor impact on the protections...which already exist in
legislation, policies and procedures.[76]
Committee view
2.85
The
committee regrets that the government did not provide Parliament with
statements of compatibility for particular pieces of this legislative package.
While the committee acknowledges that statements were not strictly required in
those instances, the committee has consistently
indicated that it would be good practice to do so, particularly where the
legislation has the potential to impact on human rights.
2.86
The
committee welcomes the fact that the government subsequently provided an
assessment of the human rights compatibility of the Migration Legislation Amendment (Regional
Processing and Other Measures) Act 2012. This information, along with the
information contained in the statements of compatibility for the other pieces
of legislation, has assisted the committee in its examination of this package
of legislation.
2.87
The
committee, however, is disappointed by the inadequacy of the human rights
analysis contained in the statement of compatibility for the Migration
Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013. The committee has previously expressed
its expectation that where a bill or legislative instrument expands the
operation of existing legislation, the relevant statement of compatibility should
include an examination of the compatibility of the existing legislation with
human rights. The committee considers that an analysis of the legal effect and
practical impact of these amendments require consideration of the statutory
framework of which they form part.
2.88
Most of the
rights engaged by these measures (as outlined in the previous section above) are
not absolute and may be subject to permissible limitations. However, the
prohibition against sending a person to a country where there is a real risk
that they will be subjected to torture, cruel, inhuman or degrading treatment
is absolute and may not be subject to any limitations.
2.89
With regard to
rights that may be subject to limitations, the inquiry into whether the
limitations are permissible is three-fold:
- whether the
measure is aimed at achieving a legitimate objective;
- whether there is
a rational connection between the measure and the objective; and
- whether the
measure is proportionate to that objective.
2.90
Restrictions
which meet these three criteria will be likely to be compatible with human
rights.
2.91
The committee
has consistently applied this framework for analysing limitations of rights and
has emphasised that the
government bears the onus of demonstrating that a limitation is justifiable.[77]
Legitimate objective
2.92
A legitimate
objective is one that addresses an area of public or social concern that is
pressing and substantial enough to warrant limiting the right.
Preventing
deaths at sea
2.93
The government
has stated that the purpose of these measures is to prevent asylum seekers
risking their lives on dangerous boat journeys to Australia.[78]
According to the government, more than 1,000 asylum seekers and crew are
estimated to have died at sea on boats en-route to Australia from 2001 to
August 2012.[79]
Of these, around 700 people have lost their lives since October 2009.[80]
2.94
The measures are
based on the recommendations of the Expert Panel, which stated that:
The loss of
life on dangerous maritime voyages in search of Australia’s protection has been
increasing. The number of irregular maritime arrivals who have arrived in
Australia in the first seven months of 2012 (7,120) has exceeded the number who
arrived in total in 2011 (4,733) and 2010 (6,850). The likelihood that more
people will lose their lives is high and unacceptable. These realities have
changed the circumstances that Australia now faces. They are why new,
comprehensive and integrated strategies for responding are needed. Those
strategies need to shift the balance of Australian policies and regional
arrangements to give greater hope and confidence to asylum seekers that
regional arrangements will work more effectively, and to discourage more
actively the use of irregular maritime voyages.[81]
2.95
Various
stakeholders acknowledged that preventing the loss of lives at sea is a
legitimate purpose, and is arguably supported by article 6 of the ICCPR which
requires governments to take positive steps to protect the right to life.[82] Similarly, in
its inquiry into extension of the regional processing regime, the Senate Legal
and Constitutional Affairs Legislation Committee concluded that it ‘support[ed]
the intent of the [measures] because ‘any loss of life at sea by persons
seeking asylum is simply not acceptable’.[83]
Preventing
people smuggling operations
2.96
A related,
ancillary objective of these measures is to discourage irregular
maritime voyages to Australia for the purpose of claiming protection or seeking
asylum, that is, to disrupt people smuggling operations:
Australia is
committed to breaking the people smugglers’ business model and the trade in
human misery on which the smugglers rely.[84]
2.97
In his letter to
the committee relating to the compatibility of the Migration Legislation
Amendment (Regional Processing and Other Measures) Act 2012 with human
rights, the Immigration Minister similarly stated that:
[T]hese
measures seek to achieve a legitimate purpose of preventing unlawful
non-citizens from travelling to Australia by irregular means.[85]
Committee view
2.98
The
committee notes that these objectives are directed at pressing and substantial
concerns and are therefore likely to be legitimate.
Rational connection
2.99
The key issue
here is whether the measures in question are likely to be effective in
achieving the objective being sought. It is not sufficient to put forward a
legitimate objective if, in fact, the measure limiting the right will not make
a real difference in achieving that aim. In other words, the objective might be
legitimate but unless the proposed measure will actually go some way towards
achieving that objective, the limitation is not likely to be permissible.
2.100
These measures
have been operating since September 2012. From 1 September 2012 to 16 April
2013, there were approximately 90 estimated deaths at sea – about 0.7 percent
of the total number of asylum seekers who arrived by boat during that time.
This can be contrasted with the estimated 700 deaths between October 2009 and
August 2012 – roughly 2-3 % of the total number of boat arrivals for the
corresponding period.[86]
On one view, the reduction in deaths at sea might be attributed to success in
intercepting and rendering assistance to or rescuing boats. However, it is not
clear that these figures provide a sound empirical basis for drawing that
conclusion.
2.101
While the deaths
at sea fell soon after the new arrangements commenced, the number of boat
arrivals, however, has continued to rise – it is estimated that over 18,000
people have arrived since August 2012. The Refugee Council of Australia has
noted:
Indeed, in
the six months since the release of the Panel’s report, the total number of
asylum seekers who have arrived in Australia by boat was greater than for any
previous six-month period in Australian history – and, in fact, higher than any
previous annual total. Between 13 August 2012 and 11 April 2013, 14,184 asylum
seekers reached Australian territory by boat, well exceeding the previous
annual record of 8,092 in 2011-12.[87]
2.102
The UNHCR
representative in Australia, Mr Richard Towle, has emphasised the need for a
regional approach:
[T]he best
way to deal with [these] issues is to improve the quality of refugee protection
and security for asylum seekers in other parts of the region, to provide them
with a real option other than to take these dangerous and difficult journeys to
Australia...[T]he proper and the most sensible investment is in South-East Asia.
The key lies in South-East Asia, where people are coming from, buttressed by
robust, fair asylum procedures in Australia...Unilateral approaches that divert
refugee populations on to other countries, particularly poor and
under-resourced Pacific island states, do not really deal with the root causes
of the problem.[88]
2.103
The Immigration
Department has acknowledged that the new ‘no-advantage’ arrangements have not
as yet proved to be an effective disincentive and the high number of arrivals
has to be considered within the broader context of refugee movements:
Senator
HANSON-YOUNG: The main pillar of this policy was promoted as 'no advantage'. ...
That policy is in place.
Mr Bowles:
It still is, Senator.
Senator
HANSON-YOUNG: Yet, we have not even seen a decrease; we have seen an increase
of people coming.
Mr Bowles:
That is true. It is evident, if we have got the number of people arriving.
However, we still need to remember the context in which we are living, and the
context is shifting quite dramatically in this particular space. There is
something like 45 million displaced people around the world, including 15
million refugees and probably close to two million asylum seekers at the
moment, with the significant changes around what is happening in places like
Syria. Asylum seekers have been growing in the last couple of years in
particular. You have also seen impacts on that due to further civil unrest and
conflict and economic conditions, quite frankly.
Senator
HANSON-YOUNG: So a 'no advantage' rule is not really going to work to deter
those people from seeking safety, is it?
Mr Bowles:
It is one of the measures that we believe will have an impact in the longer
term. We also must understand that we are operating in a global context at the
moment.[89]
2.104
The Immigration
Department noted that the government was still in the process of implementing
the suite of measures recommended by the Expert Panel and that the actual
effect of some of those measures, such as the increase in Australia’s
humanitarian intake, would take some time to realise:
The
humanitarian increase is part of a suite of measures under the Expert Panel on
Asylum Seekers. The greatest thing is to confirm, by the lived experience, to
people who are coming irregularly that there is another mechanism for them to
get here. Let us not forget that this is the first year that this program has
operated in this way with this number. Once we get through this—and we are
confident that we will reach the 20,000 target this year, with significant
increases of people, particularly out of the Middle East region—we will actually
have an impact. But a lot of this is about the lived experience, and people
believing that it will happen. Clearly, we are nine months into a program.
Actually it is less than nine months because this was only announced in August
and, by the time we ramped it up, it is probably about six months old.[90]
Committee view
2.105
The
committee notes that the increase in boat arrivals since the implementation of
these measures may cast some doubt over their effectiveness in discouraging
asylum seekers from undertaking irregular maritime travel. However, the
committee acknowledges that it may be too early to conclusively determine these
matters as complementary initiatives such as the increase in Australia's
humanitarian program intake may take some time to have an effect.
Proportionality
2.106
Proportionality
requires that even if the objective of the limitation is of sufficient
importance and the measures in question are rationally connected to the
objective, it may still not be justified, because of the severity of the effects
of the measure on individuals or groups. The inclusion of adequate safeguards
will be a key factor in determining whether the measures are proportionate, including whether there are
procedures for monitoring the operation and impact of the measures, and avenues
by which a person may seek review of an adverse impact.
2.107
The following
discussion sets out the effect of the measures as they apply to:
- people subject
to the new arrangements who remain in Australia;
- the transfer of people
from Australia to Nauru or Manus Island; and
- people subject
to the new arrangements who are in Nauru or onManus Island.
People
subject to the new arrangements who remain in Australia
2.108
As noted above,
a large number of asylum seekers who have arrived in Australia by boat since 13
August 2012 have not been transferred to Nauru or Manus Island and currently
remain in Australia.
2.109
The majority of
this cohort (estimated at being over 8,000 people) is currently in detention
either on Christmas Island or on the Australian mainland.
2.110
It is estimated
that an additional 7,000 people from the post-13 August cohort have been given
bridging visas and are permitted to live in the community while their claims
for protection are assessed. As at 24 May 2013, this included 295 people in
family groups with children aged 16 years and under.
2.111
Those asylum
seekers who remain in Australia are subject to the ‘no advantage’ principle in
that:
-
they will not be
issued with a permanent protection visa if found to be a refugee ‘until such
time that they would have been resettled in Australia after being processed in
our region’;
- they remain
liable to transfer to a regional processing country at any point unless and
until they are granted a permanent protection visa;
- those who are
determined to be refugees and who are granted a protection visa will only be
able to bring their families to Australia through the regular family stream of
the Migration Program, and not under the Humanitarian Program;
- those who are
released on bridging visas while their protection claims are being assessed and
who remain on bridging visas after their refugee status has been determined
‘will have no work rights and ... receive only basic accommodation assistance,
and limited financial support’; and
- their bridging
visa will lapse if they travel out of Australia and they will not be permitted
to re-enter Australia or have their protection claims assessed.[91]
2.112
The Refugee
Review Tribunal has advised that none of this caseload has come before the tribunal
and 'no formal announcement has been made as to what role, if any, the tribunal
might play in relation to arrivals post 13 August [2012]'.[92] If valid applications for a
protection visa will not be allowed until the end of the 'no advantage' period,
it seems unlikely that applicants will have access to the tribunal during this
time.
2.113
The key human
rights issues that arise in relation to asylum seekers subject to the new
arrangements who remain in Australia relate to the right to work and the right
to an adequate standard of living, family and children’s rights, and the
prohibition against arbitrary detention.
Arbitrary
detention
2.114
The government’s
position is that the detention of individuals requesting protection is neither
unlawful nor arbitrary per se under international law.[93] However, the government
accepts that continuing detention without proper justification may become
arbitrary after a certain period of time. The determining factor is not the
length of detention, but whether the grounds for the detention are justifiable.[94]
2.115
The Secretary of
the Immigration Department has said that under the current policy, Australia
holds asylum seekers in detention only as long as it takes to conduct health
and security checks.[95]
But he also confirmed that the Department has not commenced processing the
protection claims of arrivals post 13 August 2012:
With regard
to processing post 13 August people, we have not got into the refugee status
determination process. We are still in the interim phases around entry
interviews and the like with that cohort. We expect to be starting actual
processing around RSD very shortly.[96]
2.116
The Secretary
said the government hoped to begin processing people on Christmas Island and on
the mainland soon but did not clarify when, or how, that was to occur.[97]
2.117
Various
submissions to the committee have considered that the ‘no-advantage’ principle
would lead to asylum seekers being detained indefinitely, contrary to article 9
of the ICCPR:
Many people
are actually being released into the community now from detention. But were
they to be held, as they have been in the past, in indefinite detention, our
key submission would be that [it is] unjustifiable and unlawful. It does not
take away from this fact: it would be unjustifiable and unlawful ... to detain
someone indefinitely in those circumstances. ... The no-advantage concept is
driven by a deterrence imperative which does not have a particular connection
to that individual but rather is designed to stop others coming; I think that
is clear. If we accept that, then it follows that one of the key purposes of
the policy—and, indeed, the detention—is punitive. And detention which is
punitive of an innocent person seeking asylum is prohibited under international
law. It is unlawful.[98]
Right
to work, right to social security and the right to an adequate standard of
living
2.118
For those
released into the community, the government has stated that '[c]onsistent with 'no
advantage', people from this cohort going onto bridging visas will have no work
rights and will receive only basic accommodation assistance, and limited
financial support.'[99]
The prohibition on the
right to work will also apply to a person who has been assessed to be a refugee
but remains on a bridging visa:
So some people who arrived in Australia after 13 August will be
processed in Australia and processed in the community, but will remain on
bridging visas, even after they are regarded, through the process, as refugees.[100]
2.119
The decision to
release asylum seekers into the community on bridging visas has been welcomed
by the Australian Human Rights Commission as a ‘humane and legally appropriate
response to the growing number of detainees in Australian facilities’.[101]
However, the Commission has expressed concern that denying this particular
group of asylum seekers the right to work, pursuant to the ‘no advantage’
policy, is likely to breach provisions of the ICESCR:
In other
contexts, UNHCR has recommended that, at most, asylum seekers might be denied,
on a non-discriminatory basis, access to the labour market for no longer than
six months. The Commission considers that the regime of forced unemployment for
a prolonged period of years may fail the ‘necessary and proportionate’ test for
legitimate limits on asylum seekers’ rights.[102]
2.120
The government
did not provide any assessment of the human rights compatibility of these
measures when they were introduced.[103]
However, in response to a question on notice, the Immigration Department
provided the following explanation:
[T]he right
to work may be limited where such limitations are provided for by legislation,
necessary to achieve the desired purpose and proportionate to the need on which
the limitation is predicated.
Asylum seekers
who are subject to the post-13 August 2012 arrangements who do not have
permission to work in Australia will have access to alternative support
services, including Medicare, and income support payments through the Community
Assistance Support (CAS) or Asylum Seeker Assistance Scheme (ASAS) programs
(which is capped at 89% of Centrelink Special Benefit [equivalent to Newstart
Allowance]
The
department considers the [bridging visa] measures to be a necessary element of
a package of measures designed to achieve the legitimate aim of discouraging
asylum seekers from making the dangerous journey to Australia by boat.
Financial support will be provided by the Australian Government to asylum
seekers to provide appropriate support and care while they wait for their
claims for protection to be assessed.[104]
2.121
The restrictions
on work rights do not appear to stem from any recommendations of the Expert
Panel. A member of the panel, Paris Aristotle, for example, has described the
work ban as inconsistent with the ‘no advantage’ principle.[105]
2.122
The evidence
suggests that many asylum seekers on bridging visas face poverty and
homelessness and are dependent on community services for their basic
subsistence.[106]
Charities have said they are being forced to bear the cost of caring for asylum
seekers in the community, with many unable to pay for rent, essential
medication, utilities and food.[107]
2.123
As the committee
has previously noted, human rights concerns will arise if the total support
package available to disadvantaged individuals is not sufficient to satisfy
minimum essential levels of social security as guaranteed in article 9 of the
ICESCR and the minimum requirements of the right to an adequate standard of
living in Australia as guaranteed in article 11 of the ICESCR.[108]
2.124
Human rights
case law has also established that where basic benefits are evidently
insufficient with regard to the actual needs of those concerned, and combined
with restrictions on the right to work, such measures may be inconsistent with
the prohibition against degrading treatment in article 7 of the ICCPR.[109] For
example, the House of Lords in the United Kingdom has found that treatment is
inhuman or degrading if an asylum seeker:
... with no
means and no alternative sources of support, unable to support himself, is, by
the deliberate action of the state, denied shelter, food or the most basic
necessities of life’.[110]
Family
and children’s rights
2.125
Irregular
maritime arrivals after 13 August 2012 will not have the right to sponsor
family members under the Humanitarian Program and will have to seek family
reunion through the family stream of the migration program.[111] To accommodate the expected increase
in demand for visas in the family migration stream the government announced it
would increase the number of family stream places by 4000 per year which will
be quarantined specifically for humanitarian entrants (including irregular
maritime arrivals).[112]
2.126
While refugee
advocates have welcomed the increase in family reunion options for humanitarian
entrants, they have expressed concerns that the strict eligibility requirements
and high application costs under the migration program will effectively prevent
access to family reunion for most irregular maritime arrivals.[113]
The statement of compatibility for these amendments acknowledged that:
As refugees
are unable to return to their country of origin, if family reunification is not
available there is the potential that some refugees may be permanently separated
from their family...[and] there may be cases where, as a consequence of the
amendment and ineligibility for other visas, family reunion will not be
possible.[114]
2.127
Although stating
that refugees are in a unique position of not being able to return to their
home country, the statement, nevertheless, goes on to conclude that the changes
are justifiable because Australian citizens and permanent residents are subject
to the same requirements for family reunion:
Australia
considers that changes to family reunification do not amount to a separation of
the family as there has been no positive action on the part of Australia to
separate the family. An [irregular maritime arrival] becomes separated from
their family when they choose to travel to Australia without their family. To
this end, Australia does not consider that Articles 17 and 23 [of the ICCPR] are
engaged. Even if Articles 17 and 23 were engaged, the change does not seek to
remove the ability of [irregular maritime arrivals] in Australia to achieve
family reunification; it simply places [them] on an equal footing with all
other Australian citizens and permanent residents wanting their family to join
them in Australia.
2.128
The statement of
compatibility also acknowledged that for unaccompanied minors wanting to
sponsor their parents under the family migration stream, eligibility requirements
may mean that family reunion is no longer possible. The statement explained
that ‘family reunion prospects for [unaccompanied minors] are likely to become
more difficult with the proposed changes’ because:
unlike adult
proposers of partners or children, [unaccompanied minors] will not have ready
access to family reunion through the Family Migration stream. This is because
Parent visa applications will be subject to either long visa processing times
or a significant Visa Application Charge, depending on which subclass of visa
is applied for. In addition, applications for family reunion under the Parent
visa stream must meet eligibility requirements such as the balance of family
test which requires that the majority of the parent’s children reside permanently
and lawfully in Australia rather than in any country overseas. The test
is intended to ensure that the limited number of parent places available go to
those who have the strongest connection with Australia.[115]
2.129
The statement of
compatibility noted that article 10 of the CRC requires applications for family
reunification made by minors or their parents to be treated in a positive,
humane and expeditious manner but justified these restrictions on the following
basis:
[The]
considerable limitations on the family reunification options available to
[unaccompanied minors] ... exist for the legitimate purpose of maintaining the
integrity of Australia’s migration program and deterring minors from risking
their lives by travelling to Australia by irregular means in order to sponsor
their family to Australia. The Australian Government will not provide a
separate pathway to family reunification that will allow people smugglers to
exploit children and encourage them to risk their lives on dangerous boat
journeys. Creating a priority channel and/or an exemption from the balance of
family test in the Parent visa stream of the Migration Program would be counter
to achieving this policy goal by recreating the incentive for children to be
used as ‘anchors’ for their family to migrate to Australia. As such, to the
extent that the rights under Article 10 are limited by this Legislative
Instrument, Australia considers that these limitations are necessary,
reasonable and proportionate.[116]
2.130
The Immigration
Department has previously acknowledged that more families began to arrive by
boat due to the lack of family reunion options under the former Temporary
Protection Visa (TPV) regime.[117]
2.131
The Australian
Human Rights Commission has expressed concern that the changes may be
inconsistent with Australia’s obligations under article 23 of the ICCPR and
recommends that the Migration Amendment Regulation 2012 (No. 5) be
amended to ensure greater access to family reunion for unaccompanied minors
arriving by boat after 13 August 2012.[118]
Transfer
of persons from Australia to Nauru or Manus Island
2.132
As discussed
above, under the new regional processing arrangements all irregular maritime
arrivals who arrive after 13 August 2012 must be transferred to a regional
processing country to have their protection claims assessed unless they are
granted an exemption by the Immigration Minister.
2.133
Various
submissions to the committee emphasised that Australia has international
obligations to ensure that:
- it does not send
asylum seekers to countries where they are at risk of refoulement;[119]
and
- it does not
knowingly send asylum seekers to conditions which do not meet minimum human
rights guarantees.[120]
2.134
These
obligations relate to the right of non-refoulement and the prohibition against
torture, cruel, inhuman and degrading treatment, which are absolute rights and
may not be subject to any limitation.
2.135
In his letter to
this committee regarding the compatibility of the Migration Legislation
Amendment (Regional Processing and Other Measures) Act 2012, the
Immigration Minister agreed that Australia had obligations under articles 6 and
7 of the ICCPR and article 3 of the CAT not to send a person to a country where
they are at real risk of the death penalty, arbitrary deprivation of life,
torture, or cruel, inhuman or degrading treatment or punishment; or to a
country which would send the person to another country where they would face
such a risk.
2.136
The concerns
raised by stakeholders primarily relate to:
- the process for
designating a country as a ‘regional processing country’;
- the lack of
human rights safeguards in relation to decisions to transfer asylum seekers;
and
- the inability of
the currently designated countries (Nauru and Papua New Guinea) to ensure
sufficient human rights guarantees.
The
designation process
2.137
Stakeholders are
concerned that the following aspects of the designation process do not
adequately reflect Australia’s obligations under articles 6 and 7 of the ICCPR
and article 3 of the CAT:
- The only
condition which must be met if the Immigration Minister is to designate a
country for regional processing is that he or she believes it is in the
national interest to do so. In considering the national interest, the Minister
must have regard to whether the designated country has provided assurances
(which need not be legally binding) that it will comply with the principle of
non-refoulement under the Refugee Convention and allow access to refugee status
determination procedures.
- The Immigration
Minister is not required to consider any other human rights criteria and the
designated country need not provide any assurances that asylum seekers’ claims
will be considered against the non-refoulement obligations under human rights
law.[121]
Concerns have been expressed that this automatically heightens the risk of
refoulement on account of arbitrary deprivation of life or the infliction of
torture, or cruel, inhuman or degrading treatment or punishment.[122]
2.138
The
compatibility letter from the Immigration Minister notes that while the only
condition for designating a ‘regional processing country’ is for the Minister
to think that it is in the national interest to do so (which includes having
regard to the non-refoulement obligations under the Refugee Convention), the
Minister nevertheless has the discretion to take account of other matters which
the Minister thinks is in the national interest.[123]
The letter suggests that this could include whether the country has given
assurances with regard to non-refoulement obligations under articles 6 and 7 of
the ICCPR and article 3 of the CAT.[124]
2.139
The
compatibility letter further argues that the legislation provides the Minister
with the discretion to exempt individuals from being transferred if it is in
the public interest to do,[125]
and that this power could be exercised should issues arise in relation to
obligations under the CAT or the ICCPR.[126]
2.140
In its
submission to this committee, the Australian Human Rights Commission expressed
concern about the discretionary nature of human rights considerations in the
designation process:
[T]he
requirements for a designation of a ‘regional processing country’, as well as
the actual designations and supporting documentation, appear to intend to make
compliance with Australia’s international human rights obligations discretionary.
Under s 198AB of the Migration Act the Minister is not required to consider
Australia’s obligations under international human rights treaties in
designating a country. In practice, the two countries which the Minister has
designated are countries about which the UNHCR has expressed significant
concerns, in terms of the safeguards in place in those countries to prevent
violations of the rights of asylum seekers who are sent there.[127]
2.141
The Commission noted
that:
a blanket
statement that Australia’s ‘national interest’ may justify the limitation of
human rights goes beyond the circumstances in which the rights set out in the
treaties to which Australia is a party may be limited. ... [A]rticle 4 of the
ICCPR contemplates that some (but not all) rights may be ... ‘derogated from’ in
a ‘time of public emergency which threatens the life of the nation and the
existence of which is officially proclaimed’. ... The Australian Government has
made no suggestion to that effect, nor has there been any official proclamation
or notification to the Secretary-General of the United Nations that Australia
intends to derogate from its obligations under any human rights instruments.[128]
Decisions
to transfer asylum seekers
2.142
As noted above,
the legislation provides the Immigration Minister with discretion to exempt a
person from transfer to a third country for processing if the Minister thinks
it is in the public interest to do so.[129]
The Minister also has the power to revoke or vary a previous determination to
exempt a person, if he or she considers it is in the public interest to do so.[130]
2.143
Neither of these
powers is subject to the rules of natural justice,[131]
meaning that a person does
not have a right to make representations to the Minister or to be provided with
information before the decision is made or to be given the reasons for the
decision. Ministerial guidelines issued by the Immigration Minister state that:
A request
for the exercise of my public interest power under section 198AE can only be
made by the department.
I will not
consider a request to exercise my public interest power under section 198AE
from a person or persons other than an officer of my department.[132]
2.144
Several
stakeholders have expressed concerns that
asylum seekers may be involuntarily transferred to a regional processing
country with no right of appeal and with insufficient safeguards to protect
their rights.
2.145
The Australian
Human Rights Commission observed that:
The power to
reverse an exemption has the consequence that an asylum seeker who has been exempted
and is living in the Australian community whilst having their claim processed
could at any point be ‘unexempted’ and transferred to a ‘regional processing’
country.
2.146
The Law Council
remarked on the potential impact on individuals subject to such determinations:
The effect
of these amendments is to invest the Minister with a broad power to reverse a
decision that prevents a person from being transferred offshore – without
requiring that this decision be made in accordance with the rules of natural
justice. Any individual subject to these provisions will be placed in a
precarious situation where decisions that could have a highly significant
impact on their visa status and well-being can be made and changed without
regard to basic principles of fairness and justice.[133]
2.147
Before a
decision is made to transfer a person, the Immigration Department conducts a
pre-transfer assessment to determine whether it is ‘reasonably practical’ for
the person to be transferred.[134] In
determining if it is 'reasonably practicable' to transfer a person, the
following considerations may be taken into account:
-
the physical or
mental health of the person to be taken;
- special needs
that are identified, including torture and trauma history;
- their fitness to
travel assessment;
-
vulnerabilities
the person may have, including their age;
- the resources
and facilities available in Nauru or Manus Island to receive the person and to
respond to any health issues, vulnerabilities or special needs they may present
(now and in the future);
- capacity to
accommodate additional persons at any centre in Nauru or Manus Island;
- whether the
person has a spouse or partner or dependent child in Australia.[135]
2.148
In the case of
children, a Best Interest Assessment (BIA) is also undertaken as part of the
pre-transfer assessment.
2.149
UNHCR has
reviewed a sample of pre-transfer assessments of asylum seekers transferred
from Australia to Nauru and Manus Island, and is concerned:
by the rigid
proforma template which appears to restrict the scope of questioning and limit
the assessment to a record of comments rather than any analysis of needs.[136]
2.150
According to the
UNHCR, the Pre-Transfer Assessment Forms contained no evidence of the
interview, or any external information intended to inform the assessment, such
as the International
Health and Medical Services (IHMS) health
assessment:
[T]he
sample reveals that the Assessment Forms do not contain any substantive analysis of the factors
affecting the reasonable practicability of transfer to the [regional processing
centre], notably the physical and mental characteristics (physical or mental
health of the persons, special needs identified, fitness to travel, and other
vulnerabilities) or logistical considerations (resources and facilities
available in the RPC to accommodate the needs of the person and physical
capacity to accommodate the person). UNHCR is concerned that potential
survivors of torture and trauma may not be identified until after transfer, at
which point the quality and availability of support services is significantly
diminished.[137]
2.151
In the case of
children, the UNHCR considered that a BIA should result in an individualised
assessment of the situation of the child and include recommendations on
protection and care interventions.[138]
In relation to decisions to transfer children to Manus Island, the UNCHR
stated:
In view of
UNHCR’s findings in this Report, including that the legal framework and
detention environment at the Centre on Manus Island fall short of international
standards of protection, it is difficult to see how the ‘best interests’ of
transferee children could have been appropriately weighed, and led to a
conclusion that adequate and appropriate levels of care and support are
currently available on the island.[139]
2.152
The UNHCR called
for the review of pre-transfer assessments in Australia to ensure that these
fully take into account vulnerabilities of individuals who may have suffered
torture or trauma and include a realistic assessment of the quality of support
and capacities of service providers at the centres.[140]
2.153
The shortcomings
identified by the UNHCR in the pre-transfer assessment processes are heightened
by the discretionary and non-compellable nature of the Minister’s powers to
make or vary exemptions to transfer people. The Law Council of Australia recommended that the
Immigration Minister should be required to:
...have regard
to the full range of Australia's human rights obligations and [be] bound by the
rules of natural justice when making decisions under section 198AE to exempt
certain people from being transferred to a regional processing country, or to
vary or change such an exemption, and to allow for judicial review of such
decisions.[141]
Capacity
for Nauru and PNG to guarantee human rights
2.154
For the purposes
of meeting Australia’s international obligations, Nauru and PNG must have
relevant legal obligations under international law or domestic law, and they
must be able to implement those obligations in practice.
2.155
With regard to
Nauru, Professor McAdam submitted that:
Nauru
acceded to the Refugee Convention in 2011 but has only recently sought to
establish national refugee status determination procedures. As such, there is
no expertise within that country for determining refugee claims. As the UN High
Commissioner for Refugees wrote to the Immigration Minister, there is no
‘experience or expertise to undertake the tasks of processing and protecting
refugees on the scale and complexity of the arrangement under consideration in
Nauru.’ Furthermore, Nauru is not a party to the ICESCR, ICCPR or CAT. This
means that it has not agreed to respect the human rights set out in those
instruments, including non-refoulement obligations based on the right to life
and the right to be free from torture or cruel, inhuman or degrading treatment
or punishment.[142]
2.156
In relation to
Papua New Guinea, Professor McAdam explained:
Although
Papua New Guinea is a party to the ICCPR, ICESCR, CERD, the CRC and CEDAW, it
has a significant reservation to the Refugee Convention. This provides that
Papua New Guinea does not accept the obligations set out in articles 17(1)
(work rights), 21 (housing), 22(1) (education), 26 (freedom of movement), 31
(non-penalization for illegal entry or presence), 32 (expulsion) and 34
(facilitating assimilation and naturalization). This means that there is a
significant curtailment of the rights of refugees and asylum seekers in Papua
New Guinea. ... As the UN High Commissioner for Refugees wrote to the Immigration
Minister in October 2012, ‘PNG does not have the legal safeguards nor the
competence or capacity to shoulder alone the responsibility of protecting and
processing asylum seekers transferred by Australia.’[143]
2.157
The key concerns
about the capacity for Nauru and Papua New Guinea to meet the required
standards relate to:
- the inadequacy
of current mechanisms for refugee status determination and protection;
- the inadequate
facilities to deal with vulnerable groups such as children, unaccompanied
minors, pregnant women, people with disabilities or other complex health needs,
or survivors of torture and trauma;[144]
and
-
the lack of
independent monitoring and oversight.[145]
People
subject to the new arrangements who are in Nauru or on Manus Island
2.158
There are
currently 732 people who are living in Nauru and on Manus Island under the new arrangements,
including 34 children on Manus Island. This comprises approximately 4% of the
number of people who have arrived in Australia since 13 August 2012.
2.159
The main issues
of concern expressed by many stakeholders revolves around:
- the conditions at
the regional processing centres;
- the physical and
mental health impacts of detention on those held in the centres; and
-
the lengthy
periods of time that many asylum seekers may spend on Nauru and Manus Island
while their claims were being processed and subsequently, as a result of the
‘no advantage’ principle.
2.160
The key human
rights issues that arise in connection with asylum seekers who are located in
Nauru or Manus Island relate to the right to humane treatment, the right to
health, children’s rights and the prohibition against arbitrary detention.
Impact
on physical and mental health
2.161
A number of
submissions were made to the LCA Committee inquiry into the Migration Amendment
(Heath Care for Asylum Seekers) Bill 2012 that considered the effect of
offshore processing and detention on the health of asylum seekers. The
Australian Medical Association noted:
The physical
conditions and remoteness of Nauru and Manus Island present particular service
challenges, constraining access to health and mental health providers, posing
barriers to recruiting onsite staff, and limiting the ability to refer
detainees to external health services, including specialist mental health
treatment. [146]
2.162
The Immigration
Department has advised this committee that four species of malaria and dengue
fever are present on Manus Island. Asylum seekers transferred to the island are
required to take anti-malarial medication. Vector-control services are
undertaken on Manus Island to remove or reduce stagnant water, use larvicides
and insecticides to control mosquito populations and through bed-nets and
window screens.[147]
2.163
The Australian
Medical Association's submission to the LCA Committee inquiry noted that when
Nauru was last used as an offshore processing centre '[u]nsanitary conditions
and a lack of access to fresh water contributed to diarrhoea and other
gastrointestinal diseases, skin and eye infections, and dengue fever'. [148]
In relation to Manus Island, the AMA submitted:
While the
conditions on Manus were marginally better, a malaria outbreak prompted the
Royal College of Physicians to call for an immediate evacuation of all asylum
seekers from the island, citing particular concern for pregnant women and
children, neither of whom are able to take most malaria prophylaxis. The World
Health Organisation has identified Papua New Guinea as the highest risk country
in the Western Pacific Region for malaria, and categorises Manus Island as
having the highest numbers of probable and confirmed malaria cases in all of
Papua New Guinea.[149]
2.164
Once a person
arrives in Nauru or Manus Island they are provided by the Immigration
Department with a fact sheet that explains their immigration status on the
island. The fact sheets explain that the process of who will assess their
refugee claim is still being developed and agreed, that it is not known how
long it will take to hear and assess claims and that it is 'not possible to say
precisely how long you will need to stay' in PNG or Nauru and that even if a
person is found to be a refugee it is unclear where or when they may be
resettled.[150]
The fact sheet for Manus Island informs people that they 'should expect to be
here for as long as several years' and the fact sheet for Nauru tells people to
'expect it may take several years, from when you first arrived in Nauru, to
being potentially resettled if you are found to be a refugee'.
2.165
A number of
submitters to the committee raised concerns about the effects of offshore
processing on a person's mental health. The Refugee Council of Australia
submitted:
Australia’s
previous experience with offshore processing under the Pacific Solution has
shown this policy approach to be extremely detrimental to the mental health of
asylum seekers and refugees. Throughout the life of the Pacific Solution, there
were multiple incidents of self-harm, 45 detainees engaged in a serious
and debilitating hunger strike and dozens suffered from depression or
experienced psychotic episodes ...the
factors which had the greatest impact on mental health in the past – isolation,
limited services and support, restricted freedom of movement, separation from
family members and constant uncertainty – remain features of the current model.
As such, there is little reason to believe that the mental health impacts can
be avoided under the new regime, particularly in light of the fact that hunger
strikes, self-harm and suicide attempts have already occurred in the new
facilities.[151]
2.166
In submissions
to the LCA Committee inquiry on the Migration
Amendment (Heath Care for Asylum Seekers) Bill 2012, the Australian Psychological Society
submitted:
Long-term
indefinite immigration detention has been shown to have serious adverse effects
on the mental health and wellbeing of those detained, with these impacts
lasting well beyond the period of detention, particularly for those who are
detained in remote and/or offshore detention facilities.[152]
2.167
A group of
Australian health and mental health professional organisations also submitted:
The current
offshore processing policy for irregular maritime arrivals raises risks of
incidents of violence, self-harm and suicide attempts in both on and offshore
detention facilities due to the potential for loss of hope in individuals who
are typically already psychologically vulnerable added to the potential for
prolonged periods of time in detention.[153]
2.168
There is
evidence that asylum seekers currently in offshore detention are self-harming
or attempting suicide.[154]
According to stakeholders, the evidence suggests that the circumstances of the
detention also risk inflicting serious psychological harm, contrary to the
right to humane treatment in article 10(1) of the ICCPR. Such harm cumulatively
arises because of the conditions of detention. These conditions include
inadequate physical and mental health services; exposure to unrest and violence
in detention; and risks of experiencing or witnessing self-harm. Cases before
the courts in the UK and Europe concerning asylum seekers’ living conditions suggest
that the cumulative impact of such conditions could further amount to inhuman
or degrading treatment, contrary to article 7 of the ICCPR.[155]
Conditions
in Nauru
2.169
A UNHCR team
visited Nauru on 3-5 December 2012. Assessed as a whole, UNHCR was of the view
that the transfer of asylum seekers to what are currently harsh and
unsatisfactory temporary facilities, within a closed detention setting, and in
the absence of a fully functional legal framework and adequately capacitated
system to assess refugee claims, do not currently meet the required protection
standards.[156]
2.170
At a hearing at
17 December 2012, the Immigration Department confirmed to the committee that:
All of the
people on Nauru at present are accommodated in tents. As time has progressed we
have put in place, in conjunction with them, a number of measures which help to
make the tents more liveable than was first the case, where they did flood
regularly when the heavy rains come ... There is no doubt that the tents are, at
best, a temporary measure and hence we are moving as quickly as we can to
replace them with the permanent structure.[157]
2.171
The UNCHR told
the committee that:
The
conclusion we have reached is that, as of today, the international standards
that we would expect to see by Australia and Nauru have not been met; and I
think the logical conclusion from that is that transfers of people to those
circumstances was premature.[158]
2.172
The Immigration
Department has advised that all asylum seekers in Nauru have now been moved out
of tents into fixed accommodation.[159]
Conditions
on Manus Island
2.173
In a submission
to the Public Works Committee inquiry, the Immigration Department acknowledged
that asylum seekers may spend extended periods of time on Manus Island:
Transferees
may be accommodated on Manus Island for an extended period in consideration of
the 'no advantage' principle which states that Refugee Status Determination
(and re-settlement of those found to be refugees) will not receive a higher
priority than for refugees in transit countries. As a result, there is an
urgent need to establish permanent facilities.[160]
2.174
In the same
submission, the Immigration Department identified the following concerns with
the current Manus Island facility:
Problematic
living arrangements and limited amenity: Living arrangements for transferees at the temporary
facility are problematic. The facilities predominantly consist of military
tents with wooden floors, each with camp beds/stretchers. This presents key
risks in terms of safety and health management. The facilities have a useful
life of 12 months and are subject to degradation from humidity and high use.
The existing buildings, some constructed in WWII, have high maintenance costs.
The canvas tents and wooden floor boards deteriorate quickly, and each tent has
reticulated 240v power which can be unsafe in the wet conditions.
Health
and well-being risks given the climatic conditions: 240v pedestal fans have been
provided to each tent, humidity is high and the tents are still very hot due to
the average daytime temperature ranging between 26 and 38 degrees centigrade.
Transferees have complained about the heat which is a contributing factor to
behavioural issues. In addition the site is in a low lying swampy area subject
to localised inundation which encourages mosquito breeding.
Limited
recreational activities:
The temporary centre is cramped and recreation facilities are limited and in a
poor state. Transferees are subject to boredom which contributes to a focus on
the progress of their Refugee Status Determination. Activities that provide
exercise and limit frustration, divert attention from processing and support
mental health outcomes of transferees.
A
potential for increased tension and problematic behaviour: This includes an increased risk of
self-harm, mental health problems, and problematic behaviour. Past experience
in the Australian immigration detention network indicates that limited amenity
and space quickly leads to behavioural changes which in turn can lead to
substantial increases in health and security costs.
Inefficient
processing: Private
interview rooms at the temporary facility do not have adequate infrastructure
to support processing of refugee status assessments. ...[161]
2.175
In a supplementary
submission to the Public Works Committee inquiry, the Secretary of the
Immigration Department sought to clarify that the Department’s initial
submission did not reflect current arrangements in the Manus Island facility
and provided the following updates:
-
The department
has an ongoing process for monitoring, repairing and replacing electrical items
as needed. G4S, the garrison services provider, is contracted to provide
facilities maintenance services at the site, and to monitor, report on, and
address any issues of concern;
- A rigorous
mosquito vector control program was implemented when the centre was established
in late 2012, and drainage is monitored on an ongoing basis to identify and
rectify any potential issues. Health Services are well established, covering
both primary and mental health care services.
- A range of
recreation and educational services are now provided by service providers,
including English language classes and handicraft classes. To support this, the
school room has been upgraded and air conditioned and a library is in place.
Internet access is provided for up to nine hours per day.
- Service
providers have established incident management protocols and procedures.
- Appropriate
infrastructure is being put in place to support the commencement of the PNG
refugee status determination process. This will include air-conditioned
interviewing facilities.[162]
2.176
The submission,
however, concluded that ‘the need for permanent facilities remains high, given
temporary facilities are not sustainable in the medium to long term’.[163]
2.177
A UNHCR team
visited Manus Island from 15-17 January 2013 to assess how Australia and PNG
are implementing their obligations and to review the conditions at the
facility.[164]
2.178
The report noted
that at the time of the visit, the living conditions for most detainees at the
centre were harsh and, for some, inadequate, and recommended that no further
transfers of children to Manus Island should occur until all appropriate legal
and administrative safeguards for their processing and treatment were in place,
including their placement in an open centre as opposed to the current
environment of detention.[165]
The UNHCR stated that:
The
situation of children transferred to Manus Island gives particular cause for
concern. The lack of any appropriate legal or regulatory framework for their
treatment (in what UNHCR finds to be a mandatory, arbitrary and indefinite
detention setting), and on-going delays in establishing any procedures to
assess children’s refugee protection needs, and broader best interests, is
particularly troubling.[166]
2.179
Similar concerns
have also been expressed by Paris Aristotle, a member of the Expert Panel, who
said that the safeguards the panel insisted on have not been implemented on
Manus Island, in particular that children should not be detained on Manus
Island and that there should be an independent review board to oversee the
detention centre.[167]
Arbitrary
detention
2.180
In response to a
question by the committee as to whether the application of the ‘no advantage’
principle, with the consequence that people would remain in Nauru and on Manus
Island for longer than would otherwise have been necessary, was compatible with
the prohibition against arbitrary detention in article 9 of the ICCPR, the
Immigration Department said:
A primary
question in relation to article 9 of the ICCPR is whether the ... circumstances
for transferees in regional processing countries amount to detention.
Given the
fluid nature of arrangements on both Nauru and Manus Island, the department is
unable to make a definitive statement on whether the conditions relating to
[regional processing centres] amount to detention.[168]
2.181
The Department
noted that the government was ‘continu[ing] to discuss freedom of movement
arrangements with the PNG Government’ but acknowledged that:
In practice,
all transferees to both Nauru and Manus Island are currently residing at the
[regional processing centre] (and are escorted when they leave the centre).[169]
2.182
The UNHCR’s
report on Manus Island considered that the current policy and practice of
detaining all asylum seekers, including children, on a mandatory and indefinite
basis, without an individual assessment or possibility for review, amounted to
arbitrary detention which was inconsistent with the obligations of both
Australia and PNG under international human rights law.[170]
The UNHCR noted that it has since been advised that escorted visits and
excursions for some transferees, including children, have begun, but they did
not ‘resolve UNHCR’s underlying concerns about the arbitrary character of the
detention at the Centre’.[171]
2.183
According to the
Immigration Department, negotiations are underway with the PNG government to
begin processing at Manus Island ‘at the end of June or early July’.[172] The
Department has advised that processing of refugee claims for the 430 men in
Nauru began on 19 March 2013, but no claims have been finalised as yet.[173] Committee view
2.184
In light
of this evidence, the committee makes the following conclusions on these
measures, as set out below.
2.185
The committee
does not underestimate the scale of the challenge facing the government. Prior
to August 2012, the estimated fatality rate for people seeking to reach
Australia’s shoreline was around 20 to 30 deaths per thousand asylum seekers
arriving by sea. The committee is in no doubt that the risks faced by people
seeking Australia’s protection by irregular maritime travel is significant and
it is a legitimate and pressing objective for the government to explore all
reasonable solutions to reduce such risks. Effective polices to dissuade asylum
seekers from contemplating the dangerous journey by sea are understandably at
the frontline of efforts to reduce the number of asylum seekers and hence the
number of fatalities.
2.186
The committee
notes that the work of the Expert Panel in 2012 is the most recent of a series
of efforts over the years to reduce the number of irregular maritime arrivals
seeking Australia’s protection. The underlying logic appears sound. That is, by
reducing the relative attractiveness of undertaking an unauthorised journey by
sea, fewer lives will be lost. Such an outcome would also reduce pressure on
Australia’s annual humanitarian intake.
2.187
However, the
data available in the period since the government accepted and acted upon the
recommendations of the Expert Panel shows mixed or even contradictory results.
2.188
The rate of
irregular maritime arrivals has not let up, and indeed has reached
unprecedented levels. Forecasts from the Immigration Department indicate that
around 25,000 asylum seekers will arrive by boat in 2012-13. The committee,
however, notes that this forecast still represents only around one per cent of
the global refugee population.
2.189
Despite the high
number of arrivals, the rate of known fatalities appears to have declined. It
is too soon to say whether this decline is statistically significant or if it
will be sustained.[174]
Nonetheless, the continued high rate of arrivals raises doubts about the
effectiveness of the newest policies to achieve a reduction in the number of
people travelling by sea (and therefore at great personal risk) to seek
Australia’s protection.
2.190
The ‘no
advantage’ policy is central to the Expert Panel’s recommendations and was
adopted by the government to remove any incentive for people to come to
Australia by sea. The committee is concerned by several aspects of this
underlying policy, as given effect through the suite of legislation examined by
the committee.
2.191
The first is in
relation to the way the government intends to translate the idea of ‘no
advantage’ into its procedures for processing individuals seeking asylum. The
government has been unable to provide any details as to how the ‘no advantage’
policy will operate in practice. It remains a vague and ill-defined principle
that risks creating a complex framework with insufficient transparency. It has
resulted in a confusing array of measures focused not so much on the status of
the person as their mode and date of arrival in Australia.
2.192
Moreover, in
seeking to apply the ‘no advantage’ principle, the measures may have unintended
consequences. The removal of family reunion rights, for example, may provide
greater incentive for all family members (including children) to seek to travel
together by boat, and thereby increase demand for people smugglers’ services.
In that regard, the committee recommends that the government monitor and report
whether there have been changes to the composition of asylum seekers that would
indicate whether family units are now more likely to risk the journey than was
the case previously.
2.193
Finally, the
evidence suggests that the government’s approach to ‘no advantage’ has gone
further than that which was originally contemplated by the Expert Panel to
actively create disadvantage.
2.194
The committee’s
primary concern is how this impacts on Australia’s fulfilment of its human
rights treaty obligations. Australia has international obligations in relation
to asylum seekers who come to Australia, regardless of their mode of arrival.
These obligations are set out in the Refugee Convention and also in the
international human rights treaties to which Australia is a party, including
the International Covenant on Civil and Political Rights, the International
Covenant on Economic, Social and Cultural Rights, the Convention on the Rights
of the Child, and the Convention against Torture.
2.195
Specifically,
the committee is concerned by:
- The absence of
any human rights criteria in the process for designating regional processing
countries. The committee shares the concerns raised by numerous stakeholders
that the regional processing arrangements do not ensure that Australia’s
non-refoulement obligations will be respected.
- The absence of
safeguards in the pre-transfer processes by which people are selected to be
transferred to offshore processing locations and that children and vulnerable
individuals are among those being transferred. The committee notes the concerns
raised by numerous stakeholders that the current conditions in Manus Island are
unfit for children and vulnerable individuals, and fall short of the standards
of treatment required under the Convention on the Rights of the Child and the
ICCPR. The committee considers that all children and vulnerable individuals
should be returned to Australia as a matter of urgency and further transfers of
such individuals be suspended until more appropriate living conditions are
established.
- The absence of
legally-binding requirements relating to minimum conditions in regional
processing facilities. The committee recognises that detention necessarily
involves constraints on the full enjoyment of rights by detainees. However, in
view of the material presented to the committee by government and others and
even accepting that conditions may have improved since the first transfers of
asylum seekers, the committee does not consider that the government has
demonstrated that the conditions are consistent with the provisions of the ICCPR,
the ICESCR, the CRC, and the CAT.
- The cumulative
effect of the arrangements, which is likely to have a significant impact on the
physical and mental health of asylum seekers, contrary to the right to health
in article 12 of the ICESCR and the prohibition against degrading treatment in
article 7 of the ICCPR.
2.196
The committee is
concerned about the practical consequence of the application of the ‘no
advantage principle’, which would appear to be either a deliberate slowing down
of processing applications for refugee status or deliberate delays in
resettlement once a person has been determined to qualify as a refugee,
inconsistent with the prohibition against arbitrary detention in article 9 of
the ICCPR. In this respect the committee notes that as of late May 2013, some
nine months after the adoption of the policy, processing of the claims of those
who arrived by boat has not commenced in Australia or PNG and that there have
been only preliminary interviews of some of those who have been transferred to
Nauru. A failure to put in place such procedures for persons held in detention
for such periods appears to the committee to constitute arbitrary detention of
those who have been held for an extended period.
2.197
The committee is
also concerned that the removal of work rights combined with the provision of
minimal support for asylum seekers on bridging visas in Australia risks
resulting in their destitution, contrary to the rights to work and an adequate
standard of living in articles 6 and 11 of the ICESCR and potentially the
prohibition against inhuman and degrading treatment in article 7 of the ICCPR.
2.198
Finally, the
committee is concerned that the overall regime which differentiates between
asylum seekers on the basis of their mode and date of arrival has a disproportionate
impact on asylum seekers (in particular children) who arrive by boat after 13
August 2012, inconsistent with the right to non-discrimination.
2.199
In summary, the
committee recognises the seriousness of the challenge facing government on the
question of irregular maritime arrivals. While the committee considers that
seeking to reduce the incentives – the so-called ‘pull factors’ – to travel to
Australia in this way are a legitimate goal, there remain serious concerns
about the way that the ‘no advantage’ principle is being applied.
2.200
The evidence
that this approach will work is not yet supported by any downward trend in boat
arrivals. While the committee is sympathetic to the view that this is still a
‘work in progress’, it is not the committee’s role to assess on a hypothetical
basis whether implementation of the Expert Panel’s recommendations in their
entirety at some point in the future would satisfactorily meet Australia’s
human rights obligations. On the basis of the evidence before it, the committee
considers that the measures as currently implemented carry a significant risk
of being incompatible with a range of human rights. To the extent that some of
those rights may be limited, the committee considers that the reasonableness
and proportionality of those limitations have not been clearly demonstrated.
Mr Harry
Jenkins MP
Chair
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