Submission: MIGRATION AMENDMENT (DESIGNATED UNAUTHORISED ARRIVALS) BILL 2006

Supplementary Submission by the Human Rights and Equal Opportunity
Commission to the Inquiry into the Provisions of the Migration Amendment
(Designated Unauthorised Arrivals) Bill 2006

1. The Human Rights and Equal Opportunity Commission (the Commission) makes
   this supplementary submission to the Inquiry to respond to the following
   submission of the Department of Immigration and Multicultural Affairs
   (DIMA):

   People transferred to OPCs are not detained under the Migration Act 1958 or any other Australian law. On Nauru residents of the
   offshore processing centre are accommodated under the Government of Nauru visa
   arrangements. These visas impose some restrictions on movement and place of
   residence for the visa holder, in accordance with domestic law in
   Nauru.^[1]

2. While it is correct to state that people are not detained in OPCs under
   Australian law, for the reasons that follow the Commission is strongly of the
   view that people transferred to OPCs are nevertheless held in detention. Because
   this detention is a consequence of the policy and practices to which the Bill
   gives effect, Australia continues to bear responsibility for breaches of human
   rights that foreseeably result from that detention.

Significance
of ‘Detention’

3. The question of whether persons in OPCs are being held in detention is
   relevant to determining whether Australia is in compliance with its
   international obligations under the International Covenant of Civil and
   Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC).
   The United Nations Human Rights Committee has held consistently that a State
   will contravene its obligations under the ICCPR if it removes a person to
   another country in circumstances in which there is a real risk that their rights
   under the ICCPR will be violated. ^[2]
   
4. Article 9(1) of the ICCPR prohibits arbitrary detention. Article 37(b) of
   the CRC states:

No child shall be deprived of his or her liberty
unlawfully or arbitrarily. The arrest, detention or imprisonment of a child
shall be in conformity with the law and shall be used as a measure of last
resort and for the shortest appropriate period of time.

5. The ways in which this Bill may, or is likely to, result in a breach of
   these obligations is set out in the Commission’s substantive submission to
   this Inquiry: see paras 5.1-5.8; 5.12-5.20.
   
   
   
6. It is not sufficient, for the purpose of complying with Australia’s
   international obligations, to assert that persons are not detained under
   Australian law. Rather, it is necessary to focus on the practical reality of the
   operation of OPCs. The Commission submits that, for the reasons set out below,
   persons who would be removed to OPCs under the Bill are, in substance, being
   held in detention.

Meaning of
‘Detention’

7. The Human Rights Committee General Comment 8 states:
   

   Article 9
   which deals with the right to liberty and security of persons has often been
   somewhat narrowly understood in reports by State parties, and they have
   therefore given incomplete information. The Committee points out that paragraph
   1 is applicable to all deprivations of liberty, whether in criminal cases or in
   other cases such as, for example, mental illness, vagrancy, drug addiction,
   educational purposes, immigration control, etc.

8. The Committee on the Rights of the Child has adopted the definition of
   deprivation of liberty contained in the United Nationals Rules for the
   Protection of Juveniles Deprived of their Liberty. This definition
   states:

   The deprivation of liberty means any form of detention or
   imprisonment or the placement of a person in another public or private custodial
   setting from which this person is not permitted to leave at will, by order of
   any judicial, administrative or other public
   authority.^[3]

Indicia of Detention

9. The conditions under which persons are held in OPCs go beyond mere
   restrictions on freedom of movement and are correctly characterised as a
   deprivation of liberty amounting to detention. In particular, the Commission
   observes the following features apparent in the operation of OPCs:
   
   
   
1. Persons found to be ‘Designated Unauthorised Arrivals’ are
   forcibly removed to OPCs under the Migration Act;
   
   
   
2. Those people are then subject to a legal requirement (as part of their visa
   arrangements in Nauru) that they reside in the OPCs;
   
3. Persons are confined to the OPCs for certain periods everyday and are not
   free to leave the OPCs during these
   times^[4];
   
   
   
4. Persons ‘residing’ in OPCs are only permitted to leave for
   certain periods and must return to the OPCs;
   
   
   
5. Persons ‘residing’ in OPCs are subject to other restrictions on
   their movement as part of the conditions of their visa (i.e.here
   
   are certain
   parts of Nauru to which they are not permitted to go);
   
   
   
6. Persons ‘residing’ in OPCs have no control (in any meaningful
   sense) over their living accommodation, conditions or the circumstances of their
   detention;
   
   
   
7. Persons ‘residing’ in OPCs are subject to supervision and
   monitoring by security guards;
   
   
   
8. There is no public access to
   OPCs.^[5]

10. The Commission is of the view that because existing OPCs are in substance,
    places of detention, the proposal to forcibly remove all persons found to be
    ‘designated unauthorised arrivals’ to OPCs is in breach of
    Australia’s obligations under article 37(b) of the CRC and increases the
    risk of Australia committing a breach of article 9(1) of the ICCPR.

Human Rights and Equal Opportunity Commission

1 June 2006

^[1] DIMA, Submission no 118, Senate
and Legal Constitutional Committee Inquiry into the Provisions of the Migration
Amendment (Designated Unauthorised Arrivals) Bill 2006, p
3

^[2] See GT v Australia,
Communication No 706/1996, UN Doc CCPR/C/61/D/706/1996; C v Australia Communication No 900/1999, UN Doc CCPR/C/76/D/900/1999; Kindler v Canada,
Communication No. 470/1991, UN Doc CCPR/C/48/D/470/1991; Ng v Canada,
Communication No. 469/1991, UN Doc CCPR/C/49/D/469/1991; Cox v Canada,
Communication No. 539/1993, UN Doc
CCPR/C/52/D/539/1993.

^[3] Committee
on the Rights of the Child, General Guidelines Regarding the Form and
Contents of Periodic Reports to be Submitted by States Parties, adopted by
the Committee on the Rights of the Child on 11 October 1996, Part V111B(2), UN
Doc CRC/C/58, 20 Nov 1996, para
138.

^[4] The Commission notes that
it is no answer to assert that asylum seekers may leave the OPCs at any time to
‘return home’. A refugee is, by definition, unable or unwilling to
do so owing to a well-founded fear of persecution. Such argument can therefore
only be relevant to persons who are not, in fact, refugees: a matter that cannot
be known to authorities until processing of their claims in
undertaken.

^[5] DIMA has stated
that security guards at OPCs are present to prevent ‘unauthorised and
unnecessary access’ by residents of Nauru. DIMA, Submission no. 118, Senate and Legal Constitutional
Committee Inquiry into the Provisions of the Migration Amendment (Designated
Unauthorised Arrivals) Bill 2006.

Last
updated 26 May 2006.