OF SUBMISSION OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
to the SENATE LEGAL AND
CONSTITUTIONAL LEGISLATION COMMITTEE
AMENDMENT (DESIGNATED UNAUTHORISED ARRIVALS) BILL 2006
22 May 2006
We thank the Committee for inviting us to appear before this inquiry.
This Bill represents a backward step in Australia's treatment of asylum seekers. The Commission acknowledges that important improvements have been made in relation to Australia's treatment of asylum seekers. We have witnessed the removal of children from detention centres, the implementation of time limits on processing protection claims, the introduction of independent review of long-term detention and, in October last year, the removal of almost all of the remaining asylum seekers detained on Nauru, after concerns about their deteriorating mental health.
The Commission recognises that it is necessary and proper to facilitate the detection of unauthorised boats arrivals in Australian territorial waters. However, the Commission believes that once unauthorised boat arrivals have been detected they should be processed onshore in a manner which is consistent with Australia's human rights obligations.
The Commission believes the proposal to process all unauthorised arrivals offshore will undermine Australia's compliance with its human rights obligations under the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights.
Australia has an obligation under the Convention on the Rights of the Child to act in the best interest of the child and to respect the principle that children should only be detained as a measure of last resort. Under the proposed changes children will be detained as a measure of first resort, not last resort.
The Commission's concerns are heightened by the lack of statutory safeguards in the Bill to protect against wrong decisions, excessive periods of detention and human rights abuses.
The Bill does not address the possibility of excessive or indefinite detention. There are no set time limits for processing asylum claims or resettling refugees. This potential for asylum seekers to be detained for an excessive period time raises serious concerns about arbitrary detention, in breach of Article 9(1) of the International Covenant of Civil and Political Rights.
By denying asylum seekers processed offshore access to independent merits reviews the Bill will increase the risk of wrong decisions and increase the risk of a person genuinely in need of Australia's protection being returned to a place of persecution.
The most effective safeguard to protect against the risk of human rights violations is independent scrutiny. It is of great concern that this Bill does provide for independent scrutiny of offshore processing centres or independent review of departmental decisions about the refugee status of designated unauthorised arrivals.
The Commission has serious concerns that the Bill will result in Australia undermining its compliance with human rights obligations owed to some of the world's most vulnerable people. By failing to provide explicit statutory safeguards to ensure that offshore processing arrangements are subject to independent scrutiny the Bill does nothing to alleviate these concerns. The Commission submission recommends that this Bill should not be passed. In the event that the Bill is passed, the Commission recommends that explicit statutory safeguards are introduced to guard against the risk of human rights violations.
Human Rights and Equal Opportunity Commission Website: Legal Information
updated 26 May 2006.