Inquiry into the Migration Amendment (Detention Reform and Procedural
Fairness) Bill 2011

Australian Human Rights Commission
Submission to the Senate Standing Committees on Legal and Constitutional Affairs

23 June 2011

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Table of Contents

• 1 Introduction
• 2 Background
• 3 Summary
• 4 Recommendations
• 5 Mandatory detention
• 6 Prolonged, indefinite and arbitrary detention
  • 6.1 Judicial review of detention
  • 6.2 Time limit on detention
• 7 Offshore processing
• 8 Procedural fairness
• 9 Third country processing
• 10 Conclusion
  

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1 Introduction

1. The Australian Human Rights Commission makes this submission to the Senate
   Standing Committees on Legal and Constitutional Affairs in their Inquiry into
   the Migration Amendment (Detention Reform and Procedural Fairness) Bill 2011.
2. The Commission is established by the Australian Human Rights Commission
   Act 1986 (Cth) and is Australia’s national human rights institution.

2 Background

3. This submission draws on extensive work the Commission has undertaken on
   Australia’s immigration detention system for over a decade,
   including:
   1. two national inquiries – A last resort? (National Inquiry into
      Children in Immigration
      Detention)^[1] and Those
      who’ve come across the seas: Detention of unauthorised
      arrivals^[2]
   2. annual inspections of and reports on conditions in immigration detention
      facilities^[3]
   3. investigating complaints from individuals in immigration
      detention^[4]
   4. examining proposed legislation and making submissions to parliamentary
      inquiries.^[5]
4. The Migration Amendment (Detention Reform and Procedural Fairness) Bill 2010
   (the Bill) proposes to reform the Migration Act 1958 (Cth) (the Migration
   Act) and Administrative Decisions (Judicial Review) Act 1977 (Cth) (the
   ADJR Act) by:
   1. repealing Australia’s policy of excising territories from the
      migration zone
   2. ensuring that detention is only used as a measure of last resort, thereby
      ending the policy of mandatory detention
   3. ending indefinite and long-term detention
   4. restoring the rights of asylum seekers to procedural fairness
   5. introducing a system of judicial review for periods of detention of over 30
      days.

3 Summary

5. Australia continues to have one of the strictest immigration detention
   systems in the world – it is mandatory, it is not subject to time limits
   and people are not able to challenge the need for their detention before a
   court. The Commission has, for many years, called for an end to this system
   because it leads to breaches of Australia’s human rights obligations.
6. The Commission’s concerns about immigration detention in Australia
   have escalated over the past year, with ongoing troubling incidents occurring
   across the detention network. These have included six deaths in detention, five
   of which appear to have been the result of suicide; suicide attempts; serious
   self-harm incidents including lip-sewing; riots; protests; fires; breakouts and
   the use of force against people in detention on Christmas Island by Australian
   Federal Police. In the Commission’s view, the need for reform has become
   urgent.
7. The Commission is of the view that the Bill proposes positive and
   long-overdue reforms to Australia’s migration laws and policies. The
   amendments proposed by the Bill should, in the Commission’s view, be
   supplemented by increased use of community-based alternatives to holding people
   in immigration detention facilities, such as alternatives to detention including
   bridging visas, and alternative forms of detention like Community
   Detention.^[6]

4 Recommendations

Recommendation 1: The Commission recommends that the Bill be
passed.

Recommendation 2: The Migration Act should be amended to provide that
detention of unlawful non-citizens in immigration detention facilities must only
be used as a measure of last resort. There should be a clear presumption against
the detention of children for immigration purposes.

Recommendation 3: A decision to detain a person, or to continue a
person’s detention, should be subject to prompt review by a court. To
comply with Australia’s international obligations, the court must have the
power to order the person’s release if their detention is not lawful. The
lawfulness of detention is not limited to domestic legality – it includes
whether the detention is compatible with Australia’s international
obligations relating to liberty and arbitrary detention.

Recommendation 4: Immigration detention, when it occurs, should only
be for the shortest practicable time. An individual assessment of whether it is
necessary, reasonable and proportionate to hold each individual in an
immigration detention facility should be completed as soon as possible after a
person is detained. A person should only be held in an immigration detention
facility if they are individually assessed as posing an unacceptable risk to the
Australian community and that risk cannot be met in a less restrictive way.
Otherwise, they should be permitted to reside in community-based alternatives
while their immigration status is resolved.

Recommendation 5: A court or independent tribunal should assess
whether there is a need to detain children for immigration purposes within 72
hours of any initial detention.

Recommendation 6: The provisions of the Migration Act relating to
excised offshore places should be repealed and the policy of processing some
asylum claims through a separate ‘non-statutory’ process should be
abandoned. All unauthorised arrivals who make claims for asylum should have
those claims assessed through the refugee status determination system that
applies under the Migration Act.

Recommendation 7: The provisions of the Migration Act that limit
judicial review, including privative clauses, and restrictions on the
application of natural justice should be removed from the Migration Act.

Recommendation 8: Section 198A of the Migration Act should be repealed
to remove the potential for asylum seekers to be removed to third countries for
processing.

Recommendation 9: The Department of Immigration and Citizenship and
the Minister for Immigration and Citizenship should make greater use of
community-based alternatives to holding people in immigration detention
facilities for prolonged and indefinite periods. This should include
alternatives to detention such as bridging visas, and alternative forms of
detention like Community Detention.

5 Mandatory
detention

8. The Bill will amend the Migration Act to remove the requirement that
   unlawful non-citizens in or seeking to enter the migration zone must be
   detained.^[7] The Bill will further
   amend the Migration Act to insert the principle that detention in immigration
   detention facilities must only be used a measure of last
   resort.^[8] The effect of these reforms
   should be to end Australia’s system of mandatory detention and replace it
   with a system by which the detention of unlawful non-citizens is the exception,
   rather than the rule.
9. The Commission supports these amendments and continues to call for an end to
   Australia’s system of mandatory detention, as it has for over a decade.
10. Reform of the system of mandatory detention is necessary because it leads to
    breaches of Australia’s human rights obligations. People in detention are
    particularly vulnerable to infringements of certain human rights that Australia
    is bound to respect and protect, including:
    1. the right to be free from arbitrary
       detention^[9]
    2. the right to be free from torture and cruel, inhuman or degrading treatment
       or
       punishment^[10]
    3. the right of all persons deprived of their liberty to be treated with
       humanity and with respect for the inherent dignity of the human
       person^[11]
    4. the right to freedom from interference with the
       family^[12]
    5. the principle that children must only be detained as a last
       resort^[13]
    6. the right of children seeking refugee status to receive appropriate
       protection and humanitarian
       assistance.^[14]
11. The Commission has, in the past, found the Commonwealth responsible for
    breaches of some of these human rights with respect to people who have been
    mandatorily detained.^[15] Routine
    breaches of Australia’s international obligations may continue to occur
    for as long as Australia continues to mandatorily detain unlawful non-citizens.
12. Under the Australian Government’s 2008 New Directions in Detention
    policy (New Directions), immigration detention is meant to be used as a last
    resort, people are meant to be detained in the least restrictive environment
    appropriate to their individual circumstances and there is meant to be a
    presumption that people will be permitted to reside in the community unless they
    pose an unacceptable
    risk.^[16]
13. Unfortunately, these principles have not been enshrined in legislation.
    Further, the Commission seriously questions the extent to which they are being
    implemented in practice, given the high number of people in immigration
    detention facilities around Australia. The Commission is particularly concerned
    that these principles are not being implemented in the case of asylum seekers
    who arrive by boat and people whose visas are cancelled under section 501 of the
    Migration Act.
14. The Commission believes that the Government’s failure to implement the
    New Directions in Detention policy demonstrates the need for legislative reform
    of Australia’s system of mandatory detention.
15. The Commission acknowledges that use of immigration detention may be
    legitimate for a strictly limited period of time. However, to avoid detention
    becoming arbitrary, the need to detain should be assessed on a case-by-case
    basis taking into consideration individual circumstances. A person should only
    be held in an immigration detention facility if they are individually assessed
    as posing an unacceptable risk to the Australian community and that risk cannot
    be met in a less restrictive way. Otherwise, they should be permitted to reside
    in community-based alternatives while their immigration status is resolved
    – if necessary, with appropriate conditions imposed to mitigate any
    identified risks.
16. The system of mandatory detention and the human rights breaches to which it
    can lead have a devastating human impact. The Commission has observed this
    firsthand during the visits to immigration detention facilities it conducts as
    part of its role in monitoring Australia’s immigration detention
    system.^[17]
17. Over the last year, the Commission visited immigration detention facilities
    that were harsh, restrictive, overcrowded and, in some places, prison-like. The
    Commission found that some people in detention had limited access to essential
    services such as physical and mental health services; few if any opportunities
    for external excursions; and inadequate access to support networks,
    communication facilities, recreational facilities and educational
    activities.^[18]
18. The Commission also monitored the conditions of detention for children.
    Immigration detention facilities that accommodate children are generally less
    restrictive than the high-security immigration detention centres that hold
    adults, but they are still closed detention facilities from which children and
    their families are not free to come and go. The Commission heard that the
    detention of children was of grave concern to parents, many of whom were
    extremely anxious about their children’s
    wellbeing.^[19]
19. The fact of mandatory, prolonged and indefinite detention as well as the
    conditions in detention facilities was causing considerable distress among
    people in detention. The Commission spoke with detainees who expressed immense
    frustration and a lack of comprehension about why it was considered necessary to
    detain them for the duration of their immigration
    processing.^[20] This distress was
    manifested in deterioration in the mental health of people in detention, and
    disturbing levels of self-harm including attempts at
    suicide.^[21]

Recommendation
2: The Migration Act should be amended to provide that detention of unlawful
non-citizens in immigration detention facilities must only be used as a matter
of last resort. There should be a clear presumption against the detention of
children for immigration purposes.

6 Prolonged, indefinite
and arbitrary detention

6.1 Judicial review
of detention

20. The Bill will amend the Migration Act to create a scheme of judicial
    oversight of immigration detention. Under the Bill, the Migration Act will
    provide that a person in immigration detention may apply to a magistrate for an
    order that he or she be released because there are no reasonable grounds to
    justify his or her detention or continued
    detention.^[22] If the magistrate is
    satisfied that it is not appropriate for the person to be detained, the
    magistrate may make any order he or she sees fit, including an order that the
    person be released or granted a visa including a bridging
    visa.^[23] The effect of this
    amendment would be to allow people currently in immigration detention to
    challenge the reasonableness of their detention and, when detention is found to
    be unreasonable, to be released.
21. The Commission supports the amendment of the Migration Act to allow a person
    in immigration detention to challenge the reasonableness of that detention.
    Assessment of the reasonableness of detention includes consideration of whether
    the detention complies with Australia’s international human rights
    obligations, including the requirement to ensure that no one is arbitrarily
    detained. The Commission has, for many years, called for the creation of a
    scheme of independent judicial oversight of immigration detention to protect
    against breaches of detainees’ fundamental human
    rights.^[24] The Commission is
    particularly concerned that the immigration detention of children is not subject
    to judicial oversight.
22. Independent review of immigration detention is essential to prevent
    prolonged, indefinite or otherwise arbitrary detention. Australia has binding
    obligations not to subject people to arbitrary detention, under article 9(1) of
    the International Covenant on Civil and Political Rights (ICCPR) and
    article 37(b) of the Convention on the Rights of the Child (CRC).^[25] The United Nations Human
    Rights Committee has said that ‘arbitrariness’ includes elements of
    inappropriateness, injustice, lack of predictability and
    proportionality.^[26] This finding
    has been echoed by Australian
    courts.^[27] Detention may therefore
    be found to be arbitrary where it is prolonged or indefinite in circumstances
    which are inappropriate, are unjust or lack predictability or proportionality.
23. Article 9(4) of the ICCPR and article 37(d) of CRC provide an essential
    safeguard for ensuring respect for the right to liberty: the requirement that
    any person who has been arrested or otherwise detained be permitted to challenge
    the lawfulness of his or her detention before a court or another competent,
    independent and impartial
    authority.^[28] For detention to be
    ‘lawful’ in this context, it must not only comply with domestic law
    but also be consistent with article 9(1) of the
    ICCPR.^[29]
24. Accordingly, in order to guarantee the prohibition on arbitrary detention in
    article 9(1) of the ICCPR and article 37(b) of the CRC, it is essential that the
    decision to detain, or to continue to detain, is subject to prompt review by a
    court. The court must have the power to review the lawfulness of detention under
    both domestic legislation and Australia’s binding international
    obligations, including under article 9(1) of the ICCPR and article 37 of the CRC
    to not subject anyone to arbitrary detention. The court must also have the
    authority to order the person’s release if the detention is found to be
    arbitrary.
25. The Commission’s concerns that Australian law does not provide for
    judicial review of immigration detention are reflected among people in
    immigration detention. During its recent visit to immigration detention
    facilities at Villawood, for instance, the Commission spoke with people who
    expressed disbelief and a sense of injustice that in a country like Australia,
    they could be detained indefinitely without the ability to challenge their
    detention before a judge.
26. Under the New Directions, the Australian Government has acknowledged that
    ‘detention that is indefinite or otherwise arbitrary is not
    acceptable’.^[30] In the
    absence of judicial review of detention, the New Directions committed to the
    length and conditions of detention being subject to ‘regular
    review’. Once in detention, a person’s situation should be reviewed
    by a senior Department of Immigration and Citizenship (DIAC) officer every three
    months to ensure that his or her continued detention is justified. In addition,
    each person should have their detention reviewed by the Commonwealth Ombudsman
    every six months.
27. The Commission has welcomed these review mechanisms in the past, but has
    expressed concern that they are not sufficient to prevent indefinite or
    arbitrary detention, in particular because the DIAC reviews are not conducted by
    an independent body and the Ombudsman is not able to enforce his
    recommendations.^[31] In recent
    reports the Commission has expressed concerns about the limited transparency
    surrounding the review processes and
    outcomes.^[32]
28. In the Commission’s view, such concerns demonstrate that the scheme of
    review provided by the New Directions is not sufficient to ensure
    Australia’s compliance with its international obligations in relation to
    arbitrary detention.

Recommendation 3: A decision to detain a
person, or to continue a person’s detention, should be subject to prompt
review by a court. To comply with Australia’s international obligations,
the court must have the power to order the person’s release if their
detention is not lawful. The lawfulness of detention is not limited to domestic
legality – it includes whether the detention is compatible with the
Australia’s binding international obligations relating to liberty and
arbitrary detention.

6.2 Time limit on
detention

29. The Bill will amend the Migration Act to provide a time limit for
    immigration detention. Under the Bill, a person cannot be detained under section
    189 of the Migration Act for longer than 30 days unless a magistrate makes an
    order for the person’s continued
    detention.^[33] The effect of this
    amendment is to prescribe a maximum period for which an individual may be
    detained in immigration detention without court approval.
30. The Commission supports the establishment of a time limit into
    Australia’s system of immigration detention.
31. However, the Commission reiterates that there should be an individual
    assessment of whether it is necessary, reasonable and proportionate to hold each
    individual in an immigration detention facility, as soon as possible after a
    person is taken into detention. As noted above, a person should only be held in
    an immigration detention facility if they are individually assessed as posing an
    unacceptable risk to the Australian community and that risk cannot be met in a
    less restrictive way.
32. Further, in the Commission’s view, the Bill makes insufficient
    provision for review of the detention of children. In A last resort?, the
    Commission recommended that Australia’s immigration laws should be amended
    as a matter of urgency to provide for independent review by a court or tribunal
    of the need to detain children for immigration purposes within 72 hours of
    initial detention.^[34] The
    Commission found that such reform was necessary in order for Australia to comply
    with its obligations under the
    CRC.^[35]
33. As Australian law and policy provide no limit to the length of time for
    which people may be detained for immigration purposes, high numbers of people
    – including children – are being detained for prolonged
    periods.^[36] This situation risks
    breaching Australia’s human rights obligations, including those relating
    to arbitrary detention.^[37] As noted
    above, detention may be found to be arbitrary where it is prolonged or
    indefinite in circumstances which are inappropriate, are unjust or lack
    predictability or
    proportionality.^[38]
34. Prolonged detention may also amount to inhumane, cruel or degrading
    treatment, in breach of Australia’s obligations under articles 7 and 10(1)
    of the ICCPR and article 37(a) of the CRC, because it can cause serious
    psychological harm. The United Nations Human Rights Committee has found that
    mandatory immigration detention amounted to cruel, inhuman or degrading
    treatment in circumstances where it was prolonged, arbitrary and contributed to
    a detainee’s mental health problems, when the authorities were aware of
    this but they delayed releasing the detainee from immigration
    detention.^[39]
35. The Commission has seen evidence firsthand of the psychological harm to
    which prolonged and indefinite detention can lead. On its recent visit to
    immigration detention facilities at Villawood, many people spoke to the
    Commission of feelings of frustration, distress and demoralisation after being
    detained for a long period of time, and many spoke of the uncertainty and
    anxiety caused by being detained for an indefinite period of time. People also
    spoke about the psychological impacts of their prolonged detention, including
    high levels of sleeplessness, feelings of hopelessness and powerlessness,
    thoughts of self-harm or suicide, and feeling too depressed, anxious or
    distracted to take part in recreational or educational activities. The
    Commission was troubled by the palpable sense of frustration and incomprehension
    expressed by many people. This appeared to have contributed to marked levels of
    anxiety, despair and depression, leading to high use of sedative, hypnotic,
    antidepressant and antipsychotic medications and serious self-harm
    incidents.^[40] The situation of people experiencing prolonged and indefinite detention in
    immigration detention facilities is of serious concern to the Commission.
36. The potential impacts of prolonged and indefinite detention on children are
    also of significant concern. Children in detention are an especially vulnerable
    group. In A last resort?, the Commission found children detained for long
    periods are at high risk of serious mental
    harm.^[41]
37. In the Commission’s view, a mechanism to ensure that there is that
    there is a maximum time limit to detention for immigration purposes should be
    established as a matter of urgency to prevent the human rights breaches and
    significant human costs to which prolonged and indefinite detention can lead.

Recommendation 4: Immigration detention, when it occurs,
should only be for the shortest practicable time. An individual assessment of
whether it is necessary, reasonable and proportionate to hold each individual in
an immigration detention facility should be completed as soon as possible after
a person is detained. A person should only be held in an immigration detention
facility if they are individually assessed as posing an unacceptable risk to the
Australian community and that risk cannot be met in a less restrictive way.
Otherwise, they should be permitted to reside in community-based alternatives
while their immigration status is resolved.

Recommendation 5: A court or independent tribunal should assess
whether there is a need to detain children for immigration purposes within 72
hours of any initial detention, for example for the purposes of health, identity
or security checks.

7 Offshore processing

38. The Bill will repeal the provisions of the Migration Act relating to excised
    offshore places.^[42] The effect of
    this reform will be to end Australia’s excision regime, under which
    various islands are designated ‘excised offshore places’, and
    ‘offshore entry persons’ are barred from submitting a visa
    application under the Migration Act unless the Minister for Immigration and
    Citizenship determines that it is in the public interest to allow them to do
    so.^[43]
39. The Commission supports this amendment. The Commission has consistently
    raised concerns about the practice of processing the claims of asylum seekers in
    offshore places such as Christmas Island, and has called for the repeal of the
    provisions of the Migration Act relating to excised offshore
    places.^[44]
40. The Commission remains opposed to the excision regime because it establishes
    a two-tiered system under which asylum seekers are treated differently based on
    their place and mode of arrival. Asylum seekers arriving in excised offshore
    places are barred from the refugee status determination system that applies
    under the Migration Act. They are barred from submitting a valid application for
    any visa, including a protection visa – this only becomes possible if the
    Minister exercises his or her discretion to allow an application to be
    submitted.
41. Article 31 of the Convention Relating to the Status of Refugees (Refugee Convention) prohibits state parties from penalising asylum seekers on
    account of their unlawful entry where they are coming directly from a territory
    where their life or freedom was
    threatened.^[45] Australia’s
    differential treatment of asylum seekers based on their place and method of
    arrival arguably breaches this obligation, as well as the right to equality and
    non-discrimination under article 26 of the
    ICCPR.^[46]
42. In addition, Australia is obliged under the Refugee Convention not to
    expel or return people to countries where they would face persecution because of
    their race, religion, nationality, membership of a particular social group or
    political opinion.^[47] Australia
    also has non-refoulement obligations under the ICCPR, CRC and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
    Punishment (CAT).^[48] The
    non-statutory Protection Obligations Determination process may increase the risk
    of refoulement.
43. Further, the CRC affirms the right of child asylum seekers and refugees to
    receive appropriate protection and
    assistance.^[49] The principle of
    non-discrimination in the CRC means that all children seeking asylum are
    entitled to the same level of assistance and protection of their rights,
    regardless of how or where they
    arrive.^[50]
44. The Commission reiterates its view that the excision system be abandoned and
    that all people seeking asylum in Australia should have their claims assessed
    under the provisions of the Migration Act.

Recommendation 6: The provisions of the Migration Act relating to excised offshore places should
be repealed and the policy of processing some asylum claims through a separate
‘non-statutory’ refugee assessment process should be abandoned. All
unauthorised arrivals who make claims for asylum should have those claims
assessed through the refugee status determination system that applies under the
Migration Act.

8 Procedural
fairness

45. Part 4 of the Bill aims to ‘restore fair process and procedural
    fairness.’ This part, together with the intended amendment of the ADJR
    Act, essentially attempts to do this by:
    1. removing privative clauses from the Migration Act
    2. repealing sections which currently provide for exhaustive statements of
       natural justice.
46. The use of privative clauses is relatively controversial, as they
    potentially limit judicial review of administrative
    decisions.^[51] Commentators have
    suggested that the intention behind the introduction of the privative clause
    contained in section 474 of the Migration Act, which would be repealed if the
    Bill was passed, was essentially to limit challenges to instances where
    decisions have involved bad
    faith.^[52] Despite this intention,
    the High Court has interpreted this restriction of the privative clauses in a
    relatively minimalist way, allowing for the review of migration decisions
    involving jurisdictional error.^[53] Review for jurisdiction error can encompass cases where there is alleged to be a
    denial of procedural fairness, failure to comply with statutory procedures,
    error of law, the inflexible application of policy, consideration of irrelevant
    material and failure to consider relevant material.
47. Similarly, the provisions which currently provide for exhaustive statements
    of natural justice arguably impose a limit on procedural fairness by limiting
    the content of rules around natural justice to the specific provisions contained
    in the Act, as opposed to allowing the courts to determine what the common law
    would require in the
    circumstances.^[54]
48. Procedural fairness is a necessary precondition for the protection of
    fundamental human rights. The Commission considers that measures designed to
    limit procedural fairness and the operation of natural justice potentially
    prevent the review of administrative decisions which have resulted in a breach
    of a person’s fundamental human rights.
49. The Commission believes that legislative provisions aimed at limiting
    judicial review and restricting the application of principles relating to
    procedural fairness and natural justice, such as those currently contained in
    the Migration Act, are inherently unfair and unjust. They are generally
    undesirable due to their potential to limit avenues of challenge for a person
    affected by a decision under the Migration Act. The Commission also notes that
    the removal of provisions which limit judicial review and restrict the
    principles of natural justice would be a positive step towards realising the Key Immigration Detention Values that formed part of the New Directions
    policy, including importantly, that ‘people in detention will be
    treated fairly and reasonably within the
    law’.

Recommendation 7: The provisions of the Migration
Act that limit judicial review, including privative clauses, and restrictions on
the application of natural justice should be removed from the Migration Act.

9 Third country
processing

50. Under the Bill, section 198A of the Migration Act would be
    repealed.^[55] Section 198A allows
    the Minister to declare specified countries to which officers may remove
    offshore entry persons. The repeal of this section would exclude the potential
    for third-country processing of asylum seekers who arrive in Australia at
    excised offshore places.
51. The Commission supports the repeal of section 198A and the removal of the
    potential for third-country processing of asylum seekers who arrive in excised
    offshore places.^[56] All people who
    make claims for asylum in Australia should have their claims assessed under the
    refugee status determination system that is set out in the Migration Act.
52. The Commission recognises the need for regional and international
    cooperation on asylum seekers. However, the Commission has serious concerns
    about sending people who claim asylum in Australia to other countries for
    processing.
53. Regional processing of asylum seekers who arrive in Australia at excised
    offshore places may lead to breaches of Australia’s international human
    rights obligations. As stated above, Australia is bound by a number of
    international obligations relating to asylum seekers and refugees. For instance,
    Australia is
    1. prohibited from penalising asylum seekers on account of their unlawful entry
       where they are coming directly from a territory where their life or freedom was
       threatened^[57]
    2. obliged to respect and protect the right to equality and non-discrimination
       of people in its
       jurisdiction^[58]
    3. required to ensure that all child asylum seekers and refugees receive
       appropriate protection and assistance, regardless of how or where they
       arrive.^[59]

54. A regime by which asylum seekers who arrive at excised offshore places are
    sent to third countries for processing, while those who arrive on the mainland
    may have their claims processed in Australia, would arguably breach
    Australia’s obligations to treat asylum seekers humanely and in a
    non-discriminatory manner. Furthermore, the Minister for Immigration and
    Citizenship is currently the guardian of unaccompanied minors who may be subject
    to third country processing and is obliged under the CRC to act in their best
    interests at all times.
55. Moreover, a policy of third country processing may increase the risk of
    Australia breaching non-refoulement obligations under the Refugee
    Convention.^[60] Third country
    processing may also result in Australia breaching its non-refoulment obligations under the ICCPR, CRC and CAT. Asylum seekers sent to third countries
    may experience violations of their human rights, such as the right to freedom
    from arbitrary detention and inhumane treatment.

Recommendation
8: Section 198A of the Migration Act should be repealed to exclude the
potential for asylum seekers who arrive in excised offshore places to be removed
to third countries for processing.

10 Conclusion

56. The Commission is of the view that Australia’s system of mandatory and
    indefinite immigration detention should be reformed as a matter of urgency,
    because it leads to breaches of Australia’s human rights obligations. In
    the Commission’s view, the Bill proposes positive and long-overdue
    amendments to the Migration Act which go some way towards addressing the
    Commission’s concerns in relation to immigration detention in Australia.
57. The Commission supports an end to mandatory detention and the principle that
    detention should only be used as a measure of last resort. The Commission is of
    the view that where detention is used, it should be subject to a maximum time
    limit. The Commission agrees that there should be judicial review of immigration
    detention which continues past the prescribed maximum time limit.
58. The Commission supports the removal from the Migration Act of provisions
    purporting to limit judicial review, including privative clauses, and
    restrictions on the application of natural justice.
59. The Commission supports the removal from the Migration Act of provisions
    relating to excised offshore places, non-statutory processing of asylum claims
    made by offshore entry persons, and third-country processing of asylum claims
    made by people who initially arrive in Australia. In the Commission’s
    view, all unauthorised arrivals who make claims for asylum in Australia should
    have those claims processed through the refugee status determination system that
    applies under the Migration Act.
60. Finally, the Commission is of the view that the reforms proposed by the Bill
    should be supplemented by increased use of community-based alternatives to
    holding people in immigration detention facilities, such as alternatives to
    detention including bridging visas, and alternative forms of detention like
    Community Detention. An immigration system based on such initiatives and
    incorporating the reforms proposed by the Bill would be a more humane system
    which would better meet Australia’s international human rights
    obligations.

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^[1] Human Rights and Equal
Opportunity Commission, A last resort? (National Inquiry into Children in
Immigration Detention) (2004). At http://www.humanrights.gov.au/human_rights/children_detention_report/report/index.htm (viewed 3 June 2011).

^[2] Human
Rights and Equal Opportunity Commission, Those who’ve come across the
seas: Detention of unauthorised arrivals (1998). At http://www.humanrights.gov.au/human_rights/immigration/seas.html (viewed 3 June 2011).

^[3] The
Commission’s reports on inspections of immigration detention facilities
are available at http://www.hreoc.gov.au/human_rights/immigration/index.html (viewed 3 June 2011).

^[4] Reports
of inquiries into complains by people in immigration detention are available at http://www.hreoc.gov.au/legal/humanrightsreports/index.html (viewed 3 June 2011).

^[5] The
Commission’s submissions on immigration issues are available at http://www.humanrights.gov.au/legal/submissions/index.html#refugees (viewed 3 June 2011).

^[6] See
Australian Human Rights Commission, Immigration detention at Villawood (2011), at http://www.humanrights.gov.au/human_rights/immigration/idc2011_villawood.html (viewed 15 June 2011), section
7.

^[7] Migration Amendment
(Detention Reform and Procedural Fairness) Bill 2011, items
2-4.

^[8] Above, item
1.

^[9] International Covenant on
Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS
171, art 9 (entered into force 23 March 1976); Convention on the Rights of
the Child, opened for signature 20 November 1989, 1577 UNTS 3, art 37(b)
(entered into force 2 September
1990).

^[10] International
Covenant on Civil and Political Rights, above, art
7.

^[11] Above, art
10.

^[12] Above, arts 17 and 23; Convention on the Rights of the Child, note 9, art 16.

^[13] Convention on the Rights
of the Child, above, art
37(d).

^[14] Above, art
22(1).

^[15] See the
Commission’s reports under the Australian Human Rights Commission Act
1986 (Cth) at http://www.humanrights.gov.au/legal/humanrightsreports/index.html (viewed 14 June 2011).

^[16] See C
Evans, New Directions in Detention – Restoring Integrity to
Australia’s Immigration System (Speech delivered at the Centre for
International and Public Law Seminar, Australian National University, Canberra,
29 July 2008), at http://www.minister.immi.gov.au/media/speeches/2008/ce080729.htm (viewed 7 June 2011).

^[17] See
Australian Human Rights Commission, ‘Inspections of immigration detention
facilities’, at http://humanrights.gov.au/human_rights/immigration/detention_rights.html#9_3 (viewed 15 June 2011).

^[18] See,
for instance, Immigration detention at Villawood, note 6; Australian
Human Rights Commission, Immigration detention on Christmas Island (2010), at http://www.humanrights.gov.au/human_rights/immigration/idc2010_christmas_island.html (both viewed 15 June 2011).

^[19] Immigration detention on Christmas Island, above, Part C and
section 17.3(b); Immigration detention at Villawood, above, section 12.

^[20] Immigration detention at Villawood, above, p
6.

^[21] Above, sections 11.2 and
11.3; Immigration detention on Christmas Island, note 18, section
19.2(b).

^[22] Migration Amendment
(Detention Reform and Procedural Fairness) Bill 2011, item
5.

^[23] Above.

^[24] See, for instance, Australian Human Rights Commission, Submission to the Senate Standing
Committee on Legal and Constitutional Affairs Inquiry Migration Amendment
(Immigration Detention Reform) Bill 2009, Part 12, at http://www.humanrights.gov.au/legal/submissions/2009/20090731_migration.html;
Australian Human Rights Commission, Submission to the Joint Standing
Committee on Migration Inquiry into Immigration Detention in Australia (2008), pp 13-15 and 24-25, at http://www.humanrights.gov.au/legal/submissions/2008/20080829_immigration_detention.html (both viewed 15 June 2011).

^[25] International Covenant on
Civil and Political Rights, note 9, art 9(1); Convention on the Rights of
the Child, note 9, art 37(b).

^[26] See Van Alphen v The
Netherlands, Communication No 305/1988, UN Doc
CCPR/C/39/D/305/1988, [5.8]; A v Australia, Communication No
560/1993, UN Doc CCPR/C/59/D/560/1993,
[9.2].

^[27] See, for example, MIMIA v Al Masri (2003) 126 FCR 54,
[152].

^[28] International
Covenant on Civil and Political Rights, note 9, art 9(4); Convention on
the Rights of the Child, note 9, art 37(d).

^[29] See United Nations Human
Rights Committee, A v Australia, Communication No 560/1993, UN Doc
CCPR/C/59/D/560/1993 (1997), para 9.5. At http://www.unhcr.org/refworld/docid/3ae6b71a0.html (viewed 17 June 2011).

^[30] New Directions in Detention, note
16.

^[31] Australian Human Rights
Commission, Immigration detention and offshore processing on Christmas Island (2009), at http://www.humanrights.gov.au/human_rights/immigration/idc2009_xmas_island.html (viewed
15 June 2011), section 9.2.

^[32] See Immigration detention on Christmas Island, note 18, section 10;
Australian Human Rights Commission, Immigration Detention in Darwin (2010), section 5. At http://www.hreoc.gov.au/human_rights/immigration/idc2010_darwin.html (viewed 19 June 2011).

^[33] Migration Amendment (Detention Reform and Procedural Fairness) Bill 2011, item
5.

^[34] A last resort?,
note 1, executive summary.

^[35] Above.

^[36] At 20 May 2011, over
half of the 6729 people in immigration detention had been detained for longer
than six months and more than 1800 people had been detained for longer than one
year. See Department of Immigration and Citizenship, Immigration Detention
Statistics Summary (20 May 2011). At http://www.immi.gov.au/managing-australias-borders/detention/_pdf/immigration-detention-statistics-20110520.pdf (viewed 19 June 2011).

^[37] International Covenant on Civil and Political Rights, note 9, art 9(1); Convention on the Rights of the Child, note 9, art 37(b).

^[38] See para 22 of this
submission.

^[39] C v
Australia, Communication No 900/1999, UN Doc CCPR/C/76/D/900/1999 (2002),
para 8.4.

^[40] Immigration
detention at Villawood, note 9, section
11.2(a).

^[41] A last
resort?, note 1, see executive
summary.

^[42] Migration Amendment
(Detention Reform and Procedural Fairness) Bill 2011, pt
3.

^[43] Migration Act 1958 (Cth), s 46A.

^[44] See Immigration
detention on Christmas Island, note 18; Immigration detention and
offshore processing on Christmas Island, note 31; Submission on the
Migration Amendment (Immigration Detention Reform) Bill 2009, note 24;
Australian Human Rights Commission, Submission on Immigration Detention in
Australia, note 24.

^[45] Convention
Relating to the Status of Refugees, opened for signature 28 July 1951, 189
UNTS 150, art 31 (entered into force 22 April 1954). At http://www.austlii.edu.au/au/other/dfat/treaties/1954/5.html (viewed 23 June 2011). Under United Nations High Commissioner for Refugees
guidelines, this provision covers ‘a person who enters the country in
which asylum is sought directly from the country of origin, or from another
country where his protection, safety and security could not be assured.’
It also covers ‘a person who transits an intermediate country for a short
period of time without having applied for, or received, asylum there.’
United Nations High Commissioner for Refugees, Revised Guidelines on
Applicable Criteria and Standards relating to the Detention of Asylum
Seekers (1999), para 4. At http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=3c2b3f844 (viewed 23 June 2011).

^[46] International Covenant on Civil and Political Rights, note 9.

^[47] Convention Relating to
the Status of Refugees, note 45, 33(1).

^[48] International Covenant
on Civil and Political Rights, note 9; Convention on the Rights of the
Child, note 9; Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, opened for signature 4 February 1985,
1465 UNTS 85 (entered into force 26 June 1987).

^[49] Convention on the Rights
of the Child, above, art
22.

^[50] Above, art 2. See
further A last resort?, note 1, pp
272-274.

^[51] M Crock and E
Santow, ‘Privative Clauses and the limits of the law’ in M Groves
and H P Lee (eds), Australian Administrative Law (2007), pp 345-367.

^[52] M Aronson, B Dyer and M
Groves, Judicial Review of Administrative Action (4th ed,
2009), p 41.

^[53] Plaintiff
S157/2002 v Commonwealth (2003) 211 CLR 476.

^[54] R French,
‘Administrative law in Australia: Themes and values’ in Australian Administrative Law, note 51, pp
15-33.

^[55] Migration Amendment
(Detention Reform and Procedural Fairness) Bill 2011, item
22.

^[56] See
Australian Human Rights Commission, Protection of the rights of the
child in the context of migration: Information provided by the Australian Human
Rights Commission to the OHCHR study on challenges and best practices in the
implementation of the international framework for the protection of the rights
of the child in the context of migration (2010), at http://www.hreoc.gov.au/legal/submissions/2010/201004_OHCHR_child_migration.html; Immigration detention and offshore processing on Christmas Island, note
31; Submission on the Migration Amendment (Immigration Detention Reform) Bill
2009, note 24; Australian Human Rights Commission, Immigration detention
report: Summary of observations following visits to Australia’s
immigration detention facilities (2008), at http://www.hreoc.gov.au/human_rights/immigration/idc2008.html; Submission on Immigration Detention in Australia, note 24; A last
resort?, note 1, Part
6.4.4.

^[57] See para 41 of this
submission and Revised Guidelines on Applicable Criteria and Standards
relating to the Detention of Asylum Seekers, note
45.

^[58] See para 41 of this
submission.

^[59] See para 43 of
this submission.

^[60] See para 42
of this submission.