Migration laws must live up to Australia"s human rights commitments
Last week the United Nations Human Rights Committee found that Australia"s immigration detention regime breaches one of the most fundamental of all human rights obligations - the right to be protected from arbitrary imprisonment. The recent decision in D & E v Australia is the fifth time since 1997 that the UN Committee has found against Australia regarding mandatory detention.
The Human Rights and Equal Opportunity Commission (the Commission) has also spent more than a decade saying that Australia"s mandatory immigration detention laws and policies must change to comply with Australia"s human rights obligations.
Human Rights Commissioner Graeme Innes said the UN Human Rights Committee decisions should act as a warning signal for the legislative changes now under consideration.
"The UN Committee has made five adverse findings against Australia"s detention regime in less than 10 years," said Commissioner Innes. "Yet we are moving towards a system that will remove asylum seekers for processing in other countries and even detention on the open sea. We should be looking to improve the detention laws, not make it worse for people seeking our protection."
"Last year the government made some welcome improvements to the immigration detention laws by introducing the principle that children be detained in detention facilities as a last resort," Commissioner Innes said.
"However, proposals to send all people who arrive in Australia by sea without a visa for offshore processing are likely to put Australia in breach of its human rights obligations."
The Bill to put these proposals into effect, the Migration Amendment (Designated Unauthorised Arrivals) Bill, is due to be debated in federal parliament next Tuesday.
"There is no question that, even with the changes proposed by the Prime Minister on 21 June 2006, the Migration Bill will mark a big backward step in Australia"s treatment of asylum seekers," said Commissioner Innes.
"Australia has an obligation to protect the human rights of every person sent to Nauru under Australian law, yet by sending them to a third country Australia loses the control to make sure that those rights are enforced."
The Commission welcomes moves to try to improve conditions for children in Nauru, but as the Prime Minister"s statement suggests, the Australian government will not be able to ensure that this occurs.
The Commission also welcomes moves to support review by the Ombudsman when people are detained on Nauru for more than 2 years. However, it is alarming that the government expects that asylum seekers will be detained this long, because this would clearly breach international human rights law. There is also no guarantee that the Ombudsman will have the access needed because the detention is not on Australian territory.
While the Commission has no details about the government"s proposal to detain illegal fisherman on boats out at sea, some immediate questions arise.
"Detaining people far out at sea raises a series of issues. We look forward to hearing about how the government is going to ensure appropriate health care and access to legal assistance, as well as facilitate independent scrutiny of the conditions on the boats."
"Protection from arbitrary detention is a simple concept - everyone has the right to be free, except when imprisonment is necessary and proportionate in the circumstances of the case," said Commissioner Innes.
"Currently, Australia"s immigration detention laws say that detention is always necessary when a person does not have a visa. The laws do not allow for a court, or any other review body, to assess whether some people should be detained and others should not. In other words, people in Australia without a visa have even fewer rights than a person who is charged with committing a crime. Accused criminals have a right to go to a bail court within 24 hours to argue their case. People without a visa have no hearing at all."
HREOCs opening statement and written submission to the Senate Committee regarding the original version of the Migration Amendment (Designated Unauthorised Arrivals) Bill can be found at: http://www.humanrights.gov.au/legal/submissions/index.html
HREOC investigated the impact of immigration detention in its National Inquiry into Children in Immigration Detention. The report - A last resort? - was tabled in Parliament in May 2004 (see http://www.humanrights.gov.au/human_rights/children_detention_report/ )
For HREOCs September 2005 report regarding the human rights of Indonesian Fishers detained on vessels in Darwin Harbour see http://www.humanrights.gov.au/human_rights/human_rights_reports/hrc_report_31/index.htmlMedia Contact: Janine MacDonald 0407 660 235
