29 November 2012
The Joint Parliamentary Committee on Human Rights has found that Australia’s offshore processing laws raise “significant and complex issues” as to compatibility with human rights and ordered an inquiry into the legislation.
Details of the inquiry have not yet been announced, but are likely to include public hearings.
“These laws were enacted with undue haste and grossly inadequate human rights scrutiny or safeguards,” said Phil Lynch, Executive Director of the Human Rights Law Centre.
“The Human Rights Law Centre looks forward to the Committee subjecting the offshore processing laws to the rigorous human rights scrutiny to which they should have been subjected from the outset.”
The inquiry comes after the HRLC, together with the Australian Human Rights Commission and the Asylum Seeker Resource Centre, wrote to the Joint Committee in August calling for an inquiry into the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012. That Act, which provides for asylum seekers arriving by boat to be taken to a third country for processing, raises serious issues as to Australia’s compliance with fundamental human rights recognised and protected under the Refugee Convention, the Convention on the Rights of the Child, the Convention against Torture and the International Covenant on Civil and Political Rights.
Following the HRLC request, the Parliamentary Joint Committee on Human Rights called on the Immigration Minister to justify how offshore processing laws are compatible with Australia’s international human rights obligations.
The Minister finally responded to the Joint Committee on 15 November 2012. In a letter from the Hon Chris Bowen MP, just made public by the Committee, the Minister says that “I am happy to confirm that the Act complies with Australia’s human rights obligations”. This is despite the fact that the legislation:
- imposes punishment or penalties on asylum seekers on account of their mode of arrival, contrary to the Refugee Convention;
- enables the government to designate any country as a regional processing country, regardless of the human rights protections afforded in that country either under international or domestic law;
- provides for the removal of unaccompanied children to a regional processing country for a range of reasons considered to be in the ‘national interest’, contrary to the general obligation under the Convention on the Rights of the Child to ensure that the best interests of the child are given primary consideration and the specific obligation to ensure that asylum seeker children receive all necessary human rights protections and humanitarian assistance;
- provides that the rules of natural justice do not apply to a range of Ministerial decisions, including decisions as to which countries should be designated as regional processing countries, whether an asylum seeker should be sent offshore, and which regional processing country an asylum seeker should be sent to. This directly breaches Australia’s obligations under the ICCPR to ensure that, in the determination of rights and obligations, a person must have access to the courts and is entitled to a full and fair hearing; and
- does not provide for any time limit on detention or for any review of detention, in breach of the right to freedom from arbitrary detention under article 9 of the ICCPR. In accordance with the Government’s so-called ‘no advantage’ policy, this means that people are likely to be detained for periods of 5 years and more without any review or remedy.