BRIEFING PAPER
Human Rights and International Law implications of Migration Bills
21 September 2001
This briefing paper, prepared by the Human Rights and Equal Opportunity Commission, outlines the human rights and international law implications of the following Bills currently before the Australian Senate:
- Border Protection
(Validation and Enforcement Powers) Bill 2001 ("the Border
Protection Bill");
- Migration Amendment
(Excision from Migration Zone) Bill 2001 ("the Migration Amendment
Bill 1"); and
- Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Bill 2001("the Migration Amendment Bill 2").
The provisions of the Amendment Bills are of great concern to the Commission for the reasons outlined below. It is the Commission's view that the provisions of the Amendment Bills undermine Australia's commitment to international human rights obligations.
1. The Amendment Bills erode the universal application of human rights
It is a basic tenet of human rights that such rights should be applied equally, without distinction. Everyone within Australian territory is entitled to have his or her human rights respected and protected. For example, Australia has undertaken to ensure the rights in the International Covenant on Civil and Political Rights ("ICCPR") and Convention on the Rights of the Child ("CROC") to all persons within its territory:
Each State Party
to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the
rights recognized in the present Covenant …
International Covenant on Civil and Political Rights article 2(1).
States Parties shall
respect and ensure the rights set forth in the present Convention to each
child within their jurisdiction without discrimination of any kind …
Convention on the Rights of the Child article 2(1).
Article 26 of the ICCPR also provides for rights of non-discrimination.
The Migration Amendment Bill 1 attempts to excise from Australia's migration zone certain territories. This in turn creates two categories of asylum seekers with access to different rights: those in the excised territories and those landing elsewhere.
Despite the proposed legislation, Australia continues to be bound by its human rights obligations. Asylum seekers in the "excised territories" will still fall within the ICCPR, CROC and the Refugee Convention.
2. The Bills undermine core international human rights guarantees
The right of non-refoulement
Australia's obligations to people presenting in its territory claiming to be at risk of persecution are set out in four international treaties to which Australia is a party, not only the Refugee Convention.
Convention Relating to the Status of Refugees
Article 33 of the Refugee Convention prohibits States Parties from returning ('refouling') a refugee to the frontier of a country where his or her life or freedom would be threatened.
Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT)
Article 3 of CAT provides 'No State Party shall expel, return ('refouler')
or extradite a person to another State where there are substantial grounds
for believing that he would be in danger of being subjected to torture'.
The right of such a person to resist expulsion is not made dependent upon
him or her satisfying the Refugee Convention definition of 'refugee'.
International Covenant on Civil and Political Rights (ICCPR)
The obligation of non-refoulement is also imposed by the ICCPR. Article 7 provides that 'No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'. The UN Human Rights Committee has stated that: 'States Parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement' (General Comment 20, paragraph 9).
In addition the Committee has pointed out that in relevant circumstances, placing a person at risk of torture or cruel, inhuman or degrading treatment or punishment by another country will be a breach of article 7 as much as if the first country had committed the act of torture itself. The protection thus afforded by article 7 is afforded both to refugees and also to others who are at risk but do not satisfy the Refugee Convention definition of 'refugee' (like CAT article 3). The same argument should be applicable to the ICCPR article 6 protection of the right to life and the article 9 protection of the right to security of person.
Convention on the Rights of the Child (CROC)
CROC article 22 provides comprehensive and special protection for children who are refugees or who are seeking refugee status. They are to 'receive appropriate protection and humanitarian assistance in the enjoyment of [their CROC rights and also other human rights and humanitarian instruments to which the State Party is a party]'. Thus CROC article 22 explicitly includes Australia's obligations to asylum seeker children under the Refugee Convention and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Under CROC Australia must, in all its actions towards children, including asylum seeker children, make their best interests a primary consideration (article 3). An unaccompanied asylum seeker child must be afforded 'special protection and assistance' by the government (article 20). In the case of children in Australia, Australia must 'take all appropriate measures to promote physical and psychological recovery' of all those who are victims of torture or any other form of cruel, inhuman or degrading treatment or punishment or of armed conflict regardless of their nationality (article 39).
Like the ICCPR, CROC protects children from torture and other cruel, inhuman and degrading treatment and punishment (article 37) and recognises the child's inherent right to life (article 6). Again there is an obligation not to expel, return or extradite a child to another country where he or she will be subjected to or at risk of being subjected to torture or other cruel, inhuman or degrading treatment or punishment or of death.
The Border Protection Bill and the Migration Amendment Bill 2 each authorise the expulsion of asylum seekers from Australian territory. The Border Protection Bill allows expulsion from Australia, the Migration Amendment Bill 2 allows removal of an individual to a country that the Minister deems appropriate.
These provisions create a system in which Australia's non-refoulement obligations are not met.
The right not to be arbitrarily detained
Clause 8 of the Border Protection Bill provides for the substitution of a revised version of section 245F(9) of the Migration Act for the existing sub-section. The revised sub-section allows people on detained ships or aircraft to be themselves detained and then either taken outside Australia or brought into the migration zone.
As illustrated by the Tampa incident, such detention may be lengthy, potentially involving people being detained in poor conditions during protracted negotiations with other states and international institutions. In such circumstances, the detention may, by reason of its indeterminacy, breach article 9 of the ICCPR.
The provisions also raise issues under the Convention on the Rights of the Child (CROC). Articles 37(b) of the CROC provides that:
No child shall be deprived of his or her liberty unlawfully of arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with law and shall be used only as a measure of last resort and for the shortest appropriate period of time.
Proposed section 245F(9) appears to contemplate that any child aboard a detained boat or aircraft may be taken into detention without expressly requiring:
- consideration
of alternatives to detention for those persons; or
- separate consideration of the human rights of those persons.
As such, an exercise of the powers under proposed section 245F(9) stands to involve Australia breaching its obligations under article 37(b) of CROC.
Related issues arise under Guideline 5 of the United Nations High Commissioner for Refugees' "Guidelines on Detention of Asylum Seekers" (the "Guidelines"). The Guidelines were developed to assist governments formulate and implement detention policies and practices. These Guidelines apply to all asylum seekers who are in detention or detention-like circumstances. They apply to all asylum seekers who are confined within a narrowly bounded or restricted location where the only opportunity to leave this area is to leave the territory. Under Guideline 5 Australia is obliged to take steps to ensure an appropriate environment for children who are detained:
If children who are asylum seekers are detained in airports, immigration-holding centres or prisons, they must not be held under prison-like conditions. All efforts must be made to have them released from detention and placed in other accommodation.
Proposed section 245F(9) does not expressly require a person exercising powers under that section to undertake such efforts, potentially giving rise to a breach of Guideline 5.
3. The Amendment Bills undermine judicial protection of human rights
The Border Protection Bill introduces mandatory minimum terms of imprisonment
The mandatory sentencing regimes are contrary to Australia's obligations under the ICCPR. Mandatory sentencing, of its nature, may result in arbitrary detention. Arbitrary detention is incompatible with the principles of justice and with the dignity of the human person.
As noted above, ICCPR article 9 proscribes arbitrary detention.
ICCPR article 14.5 states that "Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law."
Sentencing may be arbitrary notwithstanding that it is authorised by law. The term "arbitrary" includes not only actions which are unlawful per se but also those which are unjust or unreasonable.
Mandatory minimum terms of imprisonment do not allow the judiciary to apply proper sentencing principles. Such fetters on judicial discretion to adjust the penalty according to the personal circumstances of the case should be avoided where possible.
Further, proportionality between sentence and offence is an entrenched principle of the Australian judicial system (Veen v The Queen (No.2) (1988) 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ, 472).
The Migration Amendment Bill restricts the rights of offshore entry persons to initiate legal proceedings in Australia
The proposed legislation removes rights of persons characterised as offshore entry persons to initiate legal proceedings against the Commonwealth. This prevents people accessing legal protection where they allege there has been a breach of the rights which Australia, as a matter of International law, is bound to accord them.
The Human Rights Committee has said, in Concluding Observations, that the duty to comply with Covenant obligations should be secured in domestic law. It recommended that persons who claim that their rights have been violated should have an effective remedy under that law.
The Migration Amendment Bill 1 prevents unauthorised arrivals from accessing the procedures to apply for refugee status under the Migration Act at the point of arrival
"Offshore entry persons" who arrive in the proposed excised zones are not afforded equivalent opportunities to apply for refugee status as other asylum seekers.
People who are genuinely fleeing persecution should be assisted in accessing processes to establish refugee status at their point of arrival.
An unfettered and non-compellable Ministerial discretion to allow individual offshore entry persons to apply for visas is an inadequate recognition of Australia's international human rights obligations in respect of these persons.
The Bills referred
to in the above Briefing Paper were passed by Parliament and commenced
operation upon Royal Assent on 27 September 2001.
