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Speech delivered to Department of Immigration and Citizenship

Rights and Freedoms

Introduction

Good morning everyone, thank you for inviting me to come to speak to you today, and for the warm welcome.I would like to acknowledge the Ngunnawal people, who are the traditional owners and custodians of the land upon which we meet today. I pay my respects to their elders, past and present.

I would also like to acknowledge Deputy Secretary David Fredericks, and Deputy Secretary Wendy Southern.

I am very grateful for this opportunity to speak to you about how Australia’s human rights obligations are relevant on a daily basis for those who work in the APS, and particularly the Department of Immigration and Citizenship. The guiding purpose of all of the work done by myself and my colleagues at the Australian Human Rights Commission is to ensure that human rights values are a part of everyday life and language in Australia, particularly for everyone who works in the public sector.

The work that the Department does is vitally important to the Australian community. In your work of managing the processes through which people arrive and settle in Australia, you are responsible for changing the course of people’s lives. Your work enables individuals and families to become part of the Australian community, and enables us as a nation to benefit from their contributions to our society, our culture, and our prosperity.

Today I want to talk to you first generally about Australia’s human rights obligations, and the role of the Commission. I will then move to discuss three key human rights obligations which are relevant to decisions which some officers within the Department make every day:

  • The first is the obligation of non-refoulement.
  • The second is the obligation not to subject any person to arbitrary detention.
  • The third is the obligation to respect and protect the rights of people who are in immigration detention.

What are human rights and what are Australia’s international human rights obligations?

Let me begin by giving some background about what we mean when we talk about Australia’s ‘human rights obligations’. An important place to start is the adoption of the Universal Declaration of Human Rights by the UN General Assembly in 1948. Since the adoption of the Declaration the term ‘human rights’ has been used worldwide to refer to rights and freedoms which function as standards for how people should be treated by their governments, and each other. There is universal agreement about these standards, which has led to a wide range of human rights being recognised in international agreements.

Underpinning all human rights is the notion of the inherent dignity of all human beings, regardless of their race, sex, age, disability or other attributes.

Australia is a party to several international instruments which impose obligations on States parties regarding human rights. Those obligations which will most frequently impact your work are contained in:

  • the International Covenant on Civil and Political Rights
  • the International Covenant on Economic, Social and Cultural Rights
  • the International Convention on the Elimination of All Forms of Racial Discrimination
  • the Convention on the Elimination of All Forms of Discrimination against Women
  • the Convention on the Rights of the Child
  • the Convention on the Rights of Persons with Disabilities, and
  • the Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.

Under these agreements, the Australian Government is obliged to avoid taking any action (including developing policy and drafting laws) which may breach human rights. The Australian Government is also obliged to take positive steps to ensure that people are able to enjoy their human rights, and are protected against breaches of human rights by other people, organisations.

These obligations apply directly to all public servants, as we are the agents through which the Australian Government acts. Whether we are developing policy, delivering a service to Australia or making other decisions which will affect members of the public, we are engaging Australia’s human rights obligations. These obligations serve as a guide which places those who may be affected by your decisions at the centre of your decision-making.

As you are aware, in order to promote a culture in the Australian Public Service in which human rights are respected, protected and fulfilled, the Australian Government launched the Australian Human Rights Framework in April 2010. The Framework sets out a range of measures to help ensure that Australia gives effect to its international human rights obligations.

Deputy Secretary Fredericks and Deputy Secretary Southern will speak to you in more detail about the Framework and how it is being applied. At this point I want to highlight one particular feature of the Framework - the Parliamentary Joint Committee on Human Rights, which was established in January last year. The Joint Committee has the role of examining all Bills (and legislative instruments) introduced into the Federal Parliament to assess their compatibility with Australia’s international human rights obligations.

Since its inception the Joint Committee has produced 16 reports, which are available on its website. I commend these reports to you, as the Joint Committee’s comments provide helpful guidance as to what human rights mean in the context of domestic policy and laws. You may be aware that just last week the Joint Committee published a report on the regional processing system for unauthorised maritime arrivals. I encourage you all to read the Parliamentary Committee’s detailed examination of the system, and to be aware of its concerns regarding its compatibility with Australia’s human rights obligations.

The role of the Australian Human Rights Commission

I want now to give you a brief overview of the role of the Commission, particularly in relation to asylum seekers, refugees and immigration detention.

The Commission is Australia’s National Human Rights Institution. It was established in 1986 by the Commonwealth Government to be an independent monitor to assess whether Australia meets its international human rights obligations.

In assessing Australian law and practice, the Commission uses as its bench mark the human rights set out in the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and various declarations.

The Commission’s statutory functions include examining Bills, legislation, acts and practices for human rights compatibility. For example, for over a decade the Commission has provided numerous submissions to parliamentary inquiries recommending that mandatory immigration detention under the Migration Act 1958 (Cth) be abolished.

The Commission also has the function of developing guidelines on how to avoid breaches of human rights. For example we have recently developed guidelines on Human Rights Standards for immigration detention, which I will discuss in a moment.

The Commission also works to promote compliance with human rights on the ground, for example:

  • by monitoring the conditions of immigration detention facilities, and
  • by investigating and resolving complaints about unlawful discrimination and alleged breaches of human rights.

In terms of our monitoring role, you may be aware that the Children’s Rights Commissioner visited Pontville Detention Centre just 2 days ago, to speak with the unaccompanied minors who are currently being detained there.

We at the Commission rely on our constructive relationships with the staff running immigration detention facilities in order to access and inspect these facilities. When we conduct a monitoring visit we speak with detainees, staff and service providers, to identify any human rights concerns. Following a visit, we often release a public report in which we make recommendations to address the concerns identified.

The Commission also receives complaints from people who believe that they have been the subject of unlawful discrimination, or have had their human rights breached. In 2011-2012 the Commission received over 290 complaints alleging a breach of human rights by the Commonwealth in the area of immigration. The majority of these complaints were made by people in immigration detention.

Following a written complaint being lodged, the Commission can seek information from the person or organisation that is the subject of the complaint, and will attempt to conciliate the matter.

If a human rights complaint is not resolved, as President of the Commission I then make a decision as to whether there has been a breach of human rights. If I am satisfied that a breach has occurred, I prepare a report for the Attorney-General, which must be tabled in Parliament. In the report, I can recommend compensation for any loss or injury a person has experienced.

An example is our 2012 report concerning an inquiry into complaints by Sri Lankan refugees with adverse security assessments.[1] In that report the Commission made a number of recommendations including that the Government pursue alternatives to holding the complainants in closed detention, such as community detention or bridging visas.

The making of recommendations is one of the ways in which the Commission seeks to provide practical guidance to the Australian Government on how to implement human rights in everyday decision-making, in order to promote human rights compliance.

Human rights obligations relevant to decision-making regarding asylum seekers and refugees

I want to turn now to discuss some of the key human rights obligations which are relevant to the Department’s work in relation to asylum seekers and refugees. It is clear that Australia is currently facing some challenges with respect to asylum seekers and refugees, particularly those who arrive in Australia by boat. Over the last several months the rate of asylum seekers arriving in Australia by boat has increased significantly. As at 30 April this year there were almost 8,800 people being held in closed immigration detention across Australia, including more than 1,600 children.

Effective border control is an important issue, and Australia has a right as a sovereign State to exclude non-citizens from its territory. However, when establishing and implementing its border management practices, the Australian Government must act consistently with the international legal obligations it owes to those who come to Australia by boat seeking refuge from persecution.

Non-refoulement

The first key human rights obligation in the area of asylum seeker policy is that of non-refoulement. Australia’s non-refoulement obligations follow from its ratification of the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Convention against Torture and the Refugee Convention. These obligations prohibit the Australian Government from removing anyone from Australia to a country where they would be in danger of death, torture or other mistreatment, including arbitrary detention. The principle of non-refoulement requires Australia to provide asylum seekers with effective access to fair and efficient procedures for determining refugee status and protection needs.[2]

The Commission is very concerned that the ‘enhanced screening process’ which has been applied to unauthorised maritime arrivals from Sri Lanka since October last year is not a fair or effective procedure for determining a person’s protection needs.

The Commission’s key concerns include that the ‘screening’ process may in fact be used not for screening but for substantive assessment of claims and that people are not informed of their right to seek asylum or their right to seek legal advice.

The Commission has recommended that the ‘enhanced screening process’ be discontinued. Where protection claims are raised, all asylum seekers should be ‘screened in’ and should have their claims fully assessed under the refugee status determination and complementary protection system that applies under the Migration Act. They should have access to legal or migration advice and assistance, independent merits review and judicial review.

Freedom from arbitrary detention

The second key human rights obligation I want to discuss is avoidance of arbitrary detention. Under article 9(1) of the International Covenant on Civil and Political Rights, the Australian Government has an obligation not to subject any person to arbitrary detention.[3]

In order to avoid being arbitrary, detention must not only be authorised by law, but must be a proportionate means to achieve a legitimate aim, and be reasonable and necessary in all the circumstances.[4]

Australia’s obligation to avoid arbitrary detention is even stricter in the case of children. Article 37(b) of the Convention on the Rights of the Child provides that children should only be detained as a measure of last resort, and for the shortest appropriate period of time. The principle that minors should only be detained as a measure of last resort is also reflected in s 4AA of the Migration Act.

For over a decade the Commission has repeatedly called for an end to Australia’s system of mandatory detention under the Migration Act, because it leads to breaches of our international human rights obligations.[5]

However, even while working within a legislative framework of mandatory detention, Department officers can (and indeed, are required to) apply a human rights framework to their decision-making.

For example, officers who conduct reviews of detention placement decisions should focus on the question whether holding people in closed detention is necessary given the particular circumstances of each individual. If the officer does not consider that use of closed detention is necessary, he or she can make a referral for community detention or the grant of a bridging visa. Officers should be guided by the principle that liberty is a fundamental human right and that restrictions should only be imposed where absolutely necessary.

Over the past few years the Commission has welcomed the Government’s move to significantly increase the use of the community detention system, and to use bridging visas for asylum seekers who arrive by boat. There are numerous benefits to using these community-based alternatives to detention. They are far more humane, cheaper and more effective than holding people in remote detention facilities for long periods of time.

Respecting the human rights of people while they are being detained

The last key human rights obligation that I want to discuss today is the obligation to respect the human rights of people while they are in immigration detention. The Australian Government has a positive obligation to take steps to ensure the rights of people held in immigration detention are protected. People who are held in detention are particularly vulnerable to violations of their human rights.

As I mentioned earlier, for over a decade the Commission has monitored and reported on the conditions of Australia’s immigration detention facilities. The practical recommendations that the Commission makes in its immigration detention visit reports are designed to provide guidance to the Department in discharging its international human rights obligations in relation to persons in immigration detention.

In April this year the Commission released the publication Human Rights Standards for immigration detention. This publication sets out benchmarks for the humane treatment of people held in immigration detention. It is designed to provide practical guidance on how to avoid breaching the human rights of people held in immigration detention.

The Standards will assist independent monitors, such as the Commission, to monitor and inspect Australia’s immigration detention facilities.

The Standards should also assist in providing a framework for the monitoring and inspections that will be undertaken when Australia becomes party to the Optional Protocol to the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (the Optional Protocol). The Australian Government signed the Optional Protocol on 19 May 2009, but has not yet ratified it. The purpose of the Optional Protocol is to help States meet their obligations under the Convention against Torture, particularly as it relates to the treatment of people in detention.

Conclusion

Since the adoption of the Universal Declaration of Human Rights in 1948, Australia has been active on the international stage in working to develop international human rights law. It has played a significant role in negotiating human rights treaties, and has ratified a large number of such treaties.

The development and launch of the Australian Human Rights Framework by the Australian Government demonstrates this country’s commitment to bringing human rights law home to Australia. This reflects the recognition that human rights provide a basis for a society in which all persons are treated with dignity and respect. When dealing with people in (or liable to) immigration detention, particularly asylum seekers, there are significant benefits which flow from the application of a human rights-based approach to decision-making.

Of course, it is the role of public servants to implement decisions made by the elected Government. The principle of democratic accountability is itself at the heart of human rights (and for example finds a place in Articles 1 and 25 of the International Covenant on Civil and Political Rights).

I know that the Department operates within a framework which many of you may have little power even to influence. However, the decision to comply with Australia’s human rights obligations, as far as is possible, is one that every person, and in particular each of us as public servants, can make, every day.

I want to leave with you the challenge to do what you can, on a daily basis, to support, respect, protect and promote the human rights of all those who can be affected by your decisions.

[1] Australian Human Rights Commission, Sri Lankan refugees v Commonwealth of Australia (Department of Immigration and Citizenship), Report No. 56 (2012). At http://humanrights.gov.au/legal/humanrightsreports/AusHRC56.html (viewed 8 July 2013).

[2] United Nations High Commissioner for Refugees, Addendum to the report of the United Nations High Commissioner for Refugees, UN Doc A/53/12/Add.1 (30 October 1998), p 8. At http://www.unhcr.org/refworld/docid/3ae68c950.html (viewed 8 July 2013).

[3] Human Rights Committee, General Comment No 8: Right to liberty and security of persons (Art. 9) UN Doc A/37/40, Annex V (1982), para 1. At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/f4253f9572cd4700c12563ed00483bec?Opendocument (viewed 8 July 2013). See also Human Rights Committee, A v Australia, Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997), at http://www.unhcr.org/refworld/docid/3ae6b71a0.html (viewed 8 July 2013); Human Rights Committee, C v Australia, Communication No. 900/1999, UN Doc CCPR/C/76/D/900/1999 (2002), at http://www.unhcr.org/refworld/docid/3f588ef00.html (viewed 8 July 2013); Human Rights Committee, Baban v Australia, Communication No. 1014/2001, UN Doc CCPR/C/78/D/1014/2001 (2003). At http://www.unhcr.org/refworld/docid/404887ee3.html (viewed 8 July 2013).

[4] Van Alphen v The Netherlands, Communication No. 503/1988, UN Doc CCPR/C/39/D/305/1988 (1990), para 5.8. At http://sim.law.uu.nl/SIM/CaseLaw/fulltextccpr.nsf/160f6e7f0fb318e8c1256d410033e0a1/f85ddea1b472abe141256d6600303b7b?OpenDocument (viewed 8 July 2013);

[5] See, for example, Human Rights and Equal Opportunity Commission, Those who’ve come across the seas: Detention of unauthorised arrivals (1998), at http://humanrights.gov.au/human_rights/immigration/seas.html (viewed 8 July 2013); Human Rights and Equal Opportunity Commission, A last resort? National Inquiry into Children in Immigration Detention (2004), at http://humanrights.gov.au/human_rights/children_detention_report/index.html (viewed 8 July 2013). For more recent submissions and reports by the Commission which recommend an end to mandatory detention, see the Commission’s ‘Immigration detention, asylum seekers and refugees’ page at http://www.humanrights.gov.au/immigration-detention-asylum-seekers-and-refugees.

Professor Gillian Triggs, President