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Inquiry into the Migration Amendment (Health Care for Asylum Seekers) Bill 2012 (2012)

Legal

Inquiry into the Migration Amendment (Health Care for Asylum Seekers)
Bill 2012

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

October 2012

Table of Contents

1 Introduction

  1. The Australian Human Rights Commission makes this submission to the Senate
    Legal and Constitutional Affairs Committees in the Inquiry into the Migration
    Amendment (Health Care for Asylum Seekers) Bill 2012.

  2. The Commission is established by the Australian Human Rights Commission
    Act 1986     (Cth) and is Australia’s national human rights
    institution.

2 Background

  1. Over the last decade the Commission has undertaken extensive work in the
    area of Australian law, policy and practice relating to asylum seekers, refugees
    and immigration detention. This has involved conducting national
    inquiries,[1] examining proposed
    legislation,[2] monitoring and
    reporting on immigration detention[3] and investigating complaints from individuals subject to Australia’s
    immigration laws and policies.[4] More
    specifically, the Commission’s work in this area has included engagement
    regarding the health and mental health impacts of prolonged and indefinite
    immigration detention[5] and the risk
    of breaches of Australia’s human rights obligations posed by third-country
    arrangements for the processing of asylum seekers’
    claims.[6] This submission draws upon
    that body of work.

  2. On 18 August 2012, the Migration Legislation Amendment (Regional
    Processing and Other Measures) Act 2012     (Cth) commenced, amending the Migration Act 1958 (Cth) and the Immigration (Guardianship of
    Children) Act 1946     (Cth). The amendments allow the Minister for Immigration
    and Citizenship to make a further legislative instrument which designates a
    country as a ‘regional processing country’ to which asylum seekers
    who have arrived in Australia’s ‘excised offshore territory’
    on or after 13 August 2012 will be sent for the processing of their protection
    claims. In exercising this power, the only condition is that the Minister thinks
    the designation is in the national
    interest.[7]

  3. The designations of Nauru and of Papua New Guinea as a ‘regional
    processing country’ came into effect on 12 September 2012 and 10 October
    2012 respectively, having been approved by both Houses of
    Parliament.[8]

  4. The Australian Government signed memoranda of understanding relating to the
    transfer of persons with the Governments of Nauru and Papua New Guinea on 29
    August 2012 and 8 September 2012
    respectively.[9] Neither memorandum
    specifies how the respective governments understand legal responsibilities to be
    apportioned between them.

  5. As at 15 October, a total of 292 asylum seekers had been transferred to
    Nauru under this arrangement and 4 615 people had arrived in Australia’s
    ‘excised offshore territory’ since 13 August
    2012.[10] Some of the people who
    have arrived to Australia but not been transferred to Nauru have been
    transferred to the Australian mainland. The Commission understands that all
    remain liable for transfer to a ‘regional processing country’.

3 Summary

  1. The Commission has repeatedly raised serious concerns about the health and
    mental health impacts of prolonged and indefinite immigration detention,
    particularly where persons who are detained have pre-existing vulnerabilities
    and/or where detention occurs in a remote location, including under offshore and
    third-country processing arrangements.

  2. The Commission supports the establishment of an independent, expert panel of
    multidisciplinary health professionals to monitor, assess and report publicly at
    regular intervals on the health of asylum seekers who are transferred to
    designated ‘regional processing countries’.

  3. The Commission notes that considerations relating to the sovereignty of
    Nauru and Papua New Guinea and the jurisdictional reach of Australia may arise
    with respect to the establishment and functioning of a panel such as that which
    is required by the Bill.

  4. The Commission considers that the mandate of the panel required by the Bill
    should be expanded to include the health of asylum seekers who:

    • are in Australia (whether on the mainland or an ‘excised offshore
      place’) and are liable to transfer to a designated ‘regional
      processing country’

    • are undergoing transfer to or from a designated ‘regional processing
      country’ (including being returned or taken to a country other than
      Australia)

    • are in Australia, having been returned from a designated ‘regional
      processing country’ for reasons other than resettlement.

  5. Moreover, the Commission has long been of the view that arrangements for
    monitoring the provision of health and mental health services across
    Australia’s immigration detention network are inadequate, and that an
    independent body should be charged with this function and with reporting
    publicly on its findings.

  6. The Australian Government should ensure that independent bodies charged with
    monitoring the health of asylum seekers and conditions of detention more broadly
    are adequately resourced to fulfil those functions.

4 Recommendations

  1. Recommendation 1: That the Bill be passed, subject to any
    considerations relating to sovereignty and jurisdiction that may arise.

  2. Recommendation 2: That the Bill be amended to expand the mandate of
    the panel to include monitoring and publicly reporting upon the health of people
    who:

    • are in Australia (whether on the mainland or an ‘excised offshore
      place’) and are liable to transfer to a designated ‘regional
      processing country’

    • are undergoing transfer to or from a designated ‘regional processing
      country’ (including being returned or taken to a country other than
      Australia)

    • are in Australia, having been returned from a designated ‘regional
      processing country’ for reasons other than
      resettlement.

5 Mental and physical
health impacts of prolonged and indefinite immigration detention

  1. Under international human rights standards, all people have a right to the
    highest attainable standard of physical and mental
    health.[11]

  2. Each person in detention is entitled to medical care and treatment provided
    in a manner which is culturally appropriate, and of a standard which is
    commensurate with that provided in the general community. This should include
    preventive and remedial medical care and treatment including dental,
    ophthalmological and mental health
    care.[12]

  3. It is well established that holding people in immigration detention,
    particularly for prolonged and indefinite periods, can have devastating impacts
    upon their mental and physical
    health.[13] It is also widely
    acknowledged that detention in remote, climatically harsh and overcrowded
    conditions can be particularly
    harmful.[14]

  4. Over many years of visiting facilities across Australia’s immigration
    detention network, the Commission has heard from numerous people about the
    psychological harm that prolonged and indefinite detention was causing them. For
    instance, people have frequently reported experiencing sleeplessness, loss of
    concentration, feelings of hopelessness and powerlessness, and thoughts of
    self-harm or suicide. Many people have also expressed frustration and
    incomprehension at their prolonged and indefinite detention and apparent delays
    or perceived injustices in the processing of their claims. This appears to have
    contributed to marked levels of anxiety, despair and depression, which has in
    turn led, at times, to high use of sedative, hypnotic, antidepressant and
    antipsychotic medications, as well as serious self-harm
    incidents.[15]

  5. The impact that long-term detention had on the physical and mental health of
    asylum seekers who were detained in Nauru and Papua New Guinea when these
    facilities were last used is also well
    documented.[16] Some people were
    diagnosed with a range of mental illnesses, including depression, anxiety,
    post-traumatic stress disorder, adjustment disorder and acute stress
    reaction.[17] There were also high
    levels of actual and threatened self-harm among these
    people.[18]

  6. The Commission criticised the use of Nauru and Manus Island as places to
    process the claims of asylum seekers under the former Australian
    Government’s ‘Pacific
    Solution’,[19] as the
    arrangements undermined Australia’s international human rights
    obligations, including those relating to: access to health and mental health
    care;[20] conditions of
    detention;[21] and arbitrary
    detention.[22]

  7. With respect to current arrangements, the Commission holds serious concerns
    about the length of time that asylum seekers and refugees could potentially have
    to stay in designated ‘regional processing
    countries’.[23]

  8. The Commission is concerned that the long-term detention of asylum seekers
    in Nauru, Papua New Guinea and other designated ‘regional processing
    countries’ could once again detrimentally affect their physical and mental
    health, and might amount to arbitrary detention.

  9. The Commission is aware that the Australian Government has said that asylum
    seekers will not be detained on Nauru. However, the Commission considers that,
    even if asylum seekers have freedom of movement around Nauru, the conditions
    under which people transferred to third countries are held could be
    characterised as deprivation of liberty amounting to
    detention.[24]

  10. The Commission further notes that it appears
    that people transferred to Nauru to date have been largely confined to the
    facility in which they are being held, with no announcement as to when they will
    be granted freedom of movement.

  11. Furthermore, it appears that all people in Australia who are liable to
    transfer remain in closed immigration detention.

6 Australia’s
international human rights obligations with respect to asylum seekers who are
transferred to third countries

  1. The Commission has considered Australia’s international human rights
    obligations with respect to asylum seekers who are transferred to third
    countries.[25]

  2. It is uncontroversial that Australia’s human rights obligations will
    apply in relation to asylum seekers who are subject to transfer to a third
    country, during the period of their detention on either Christmas Island or the
    mainland, prior to their transfer. They will also apply to the conduct of
    agencies of or engaged by the Australian Government during the transfer.

  3. Australia’s human rights obligations also extend to acts done in the
    exercise of Australian jurisdiction, even if these acts occur outside Australian
    territory.[26] If Australia has
    ‘effective control’ over the people it has transferred to another
    country, then it is obliged to continue to treat them consistently with the
    human rights obligations it has agreed to be bound
    by.[27]

  4. In the Commission’s view, States cannot avoid their international law
    obligations by transferring asylum seekers to a third
    country.[28] Under international
    law, Australia will be in breach of its obligations under the ICCPR if it
    removes a person to another country in circumstances where there is a
    ‘real risk’ that their rights under the ICCPR will be
    violated.[29] The United Nations Human Rights Committee has said that responsibility for
    extra-territorial violations of human rights will arise when a country’s
    act of removing someone from its territory is ‘a link in the causal chain
    that would make possible violations in another
    jurisdiction’.[30] There is a
    responsibility on States to exercise ‘due diligence’ in determining
    whether the requisite level of risk exists, particularly in cases that may
    involve serious threats to physical
    integrity.[31]

  5. In addition, a basic principle of international law is that States have a
    responsibility to implement their treaty obligations in good
    faith.[32] This duty is breached if
    a combination of acts or omissions has the overall effect of rendering the
    fulfilment of treaty obligations obsolete, or defeating the object and purpose
    of a treaty.

  6. The Commission holds serious concerns about the approach taken to
    Australia’s international obligations in the designations of Nauru and
    Papua New Guinea as a ‘regional processing
    country’.[33]

7 Independent monitoring
of conditions of detention

  1. Given that Australia retains some responsibility for the treatment of asylum
    seekers transferred to third countries, and given that it is well documented
    that the prolonged detention of asylum seekers and refugees in remote locations
    may have a detrimental impact on their physical and mental health, the
    Commission encourages the Australian Government to take necessary steps to
    establish a mechanism to monitor the health and mental health of people
    transferred to third countries for processing of their claims for
    protection.

  2. It is well established that regular independent monitoring of immigration
    detention facilities is essential in order to ensure compliance with
    international legal principles and accepted human rights
    standards.[34] Independent
    monitoring of immigration detention facilities should include but not be limited
    to the areas of health and mental health care. Where independent monitors report
    publicly on their findings, this increases transparency and accountability.

  3. The Commission is of the view that there is a need for rigorous, independent
    and ongoing monitoring of the delivery of health and mental health services in
    immigration detention facilities on the Australian mainland, in
    Australia’s ‘excised offshore territory’, and in third
    countries to which Australia has transferred asylum seekers for the processing
    of their claims for protection.

  4. The Commission shares the view expressed by previous inquiries that there is
    a need for more comprehensive monitoring of health and mental health services
    across Australia’s immigration detention
    network.[35]

[1] See 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 16 July 2012); and 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 16 July 2012). See also Australian Human Rights Commission, An age of
uncertainty: Inquiry into the treatment of individuals suspected of people
smuggling offences who say that they are children (2012), at http://www.humanrights.gov.au/ageassessment/report/index.html (viewed 11 October 2012).

[2] The
Commission’s submissions on matters relating to asylum seekers are
available at http://humanrights.gov.au/legal/submissions/indexsubject.html#refugees (viewed 16 July 2012).

[3] See
detailed reports on the Commission’s visits to immigration detention
facilities at http://www.humanrights.gov.au/human_rights/immigration/detention_rights.html#9_3 (viewed 11 October 2012).

[4] Reports are available at http://humanrights.gov.au/legal/HREOCA_reports/index.html (viewed 16 July 2012).

[5] See,
for example, Australian Human Rights Commission, Submission to the Joint Select
Committee on Australia’s Immigration Detention Network (August 2011), at http://www.humanrights.gov.au/legal/submissions/2011/201108_immigration.html (viewed 11 October 2012), and the Commission’s immigration detention
monitoring reports at http://www.humanrights.gov.au/human_rights/immigration/detention_rights.html#9_3 (viewed 11 October 2012).

[6] See,
for example: Australian Human Rights Commission, ‘Human rights issues
raised by the transfer of asylum seekers to third countries’, October
2012, at http://www.humanrights.gov.au/human_rights/immigration/transfer_third_countries.html (viewed 15 October 2012); ‘Offshore processing arrangements carry serious
human rights concerns’ (Media Release, 14 September 2012), at http://www.humanrights.gov.au/about/media/media_releases/2012/78_12.html (viewed 11 October 2012); ‘Migration Act stripped of human rights
protections’ (Media Release, 17 August 2012), at http://www.humanrights.gov.au/about/media/news/2012/81_12.html (viewed 11 October 2012); Australian Human Rights Commission, Submission to
the Expert Panel on Asylum Seekers (July 2012), at http://www.humanrights.gov.au/legal/submissions/2012/20120720_asylum_seekers.html (viewed 11 October 2012); Australian Human Rights Commission, Submission to the
Senate Standing Committees on Legal and Constitutional Affairs Inquiry into
Australia’s agreement with Malaysia in relation to asylum seekers
(September 2011), at http://www.humanrights.gov.au/legal/submissions/2011/20110914_asylum_seekers.html (viewed 11 October 2012); Australian Human Rights Commission, Inquiry into
Australia’s agreement with Malaysia in relation to asylum seekers:
Australian Human Rights Commission’s response to questions on notice (29
September 2011), at http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/malaysia_agreement/submissions.html (viewed 11 October 2012); Submissions on behalf of the Australian Human Rights
Commission (intervening), in Plaintiff M106/2011 v Minister for Immigration and
Citizenship, at http://www.hcourt.gov.au/assets/cases/m70-2011/M106-2011_HRC.pdf (viewed 11 October 2012); Australian Human Rights Commission, Submission to the
Inquiry of the Senate Legal and Constitutional Legislation Committee on the
Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (May 2006), at http://www.humanrights.gov.au/legal/submissions/migration20060522.html (viewed 11 October 2012); ‘Commission warns against revisiting aspects of
“Pacific Solution”’ (Media Release, 22 August 2011), at http://humanrights.gov.au/about/media/media_releases/2011/75_11.html;
‘Sending asylum seekers to Malaysia is not the answer to addressing people
smuggling’ (Media Release, 25 July 2011), at http://humanrights.gov.au/about/media/media_releases/2011/61_11.html;
‘More detail needed on new asylum seeker policy’ (Media Release, 6
July 2010), at http://humanrights.gov.au/about/media/media_releases/2010/71_10.html;
‘HREOC welcomes end of Pacific Solution’ (Media Release, 5 February
2008), at http://humanrights.gov.au/about/media/media_releases/2008/12_08.html;
‘Australia’s treatment of refugees still has a long way to go’
(Media Release, 17 June 2007), at http://humanrights.gov.au/about/media/media_releases/2007/41_07.html;
‘ “Pacific Solution” still poses human rights risks’
(Media Release, 19 September 2006), at http://humanrights.gov.au/about/media/media_releases/2006/75_06.htm (all viewed 23 August 2011); A last resort?, note 2, sections 6.4.4,
6.6.4, 6.7.8, 6.7.9, 7.8.1, 7.8.2, 7.8.3, 16.2.2, 17.4.9; and J von Doussa,
‘Human rights and offshore processing’ (2007) 9 UTS Law Review
41.

[7] Migration Act 1958 (Cth) (Migration Act), s
198AB(2).

[8] A designation comes
into effect as soon as both Houses of Parliament have passed a resolution
approving the designation, or after five sittings days from the date when the
instrument was tabled if there has been no resolution disapproving the
designation.

[9] ‘Memorandum of
Understanding Between the Republic of Nauru and the Commonwealth of Australia
Relating to the Transfer to and Assessment of Persons in Nauru, and Related
Issues’, (unsigned and undated version), at http://www.minister.immi.gov.au/media/cb/2012/cb189579.htm (viewed 14 October 2012), and ‘Memorandum of
Understanding Between the Government of the Independent State of Papua New
Guinea and the Government of Australia Relating to the Transfer to and
Assessment of Persons in Nauru, and Related Issues’, (unsigned and
undated version), at http://www.minister.immi.gov.au/media/cb/2012/cb189719.htm (viewed 14 October 2012).

[10] Commonwealth, Legal and Constitutional Affairs Legislation Committee
Estimates, Senate, 15 October 2012, p 81 (Mr Martin Bowles PSM, Acting
Secretary Department of Immigration and Citizenship) and p 101 (Mr Matt Cahill,
First Assistant Secretary, Status Resolution Services Division, Department of
Immigration and Citizenship), at http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=COMMITTEES;id=committees%2Festimate%2Fa41a5fdb-967c-42a4-b0f4-6ac936ebb9dc%2F0001;query=Id%3A%22committees%2Festimate%2Fa41a5fdb-967c-42a4-b0f4-6ac936ebb9dc%2F0000%22 (viewed 19 October 2012)

[11] See International Covenant on Economic, Social and Cultural Rights (1966), art 12, at http://www2.ohchr.org/english/law/cescr.htm (viewed 14 October 2012); Convention on the Rights of the Child (1989),
note 9, art 24, at http://www2.ohchr.org/english/law/crc.htm (viewed 14 October 2012).

[12] See Human Rights and Equal Opportunity Commission, Immigration Detention
Guidelines (2000), section 13, at http://www.hreoc.gov.au/human_rights/immigration/idc_guidelines2000.html (viewed 12 October 2012).

[13] See, for example, Joint Select Committee on Australia’s Immigration
Detention Network, Joint Select Committee on Australia’s Immigration
Detention Network: Final Report (2012), chapter 5, at http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=immigration_detention_ctte/immigration_detention/report/index.htm (viewed 16 October 2012), A last resort, note 1, chapter 9; GJ Coffey, I
Kaplan, RC Sampson and MM Tucci, ‘The meaning and mental health
consequences of long-term immigration detention for people seeking asylum’
(2010) 70(12) Social Science & Medicine 2070.

[14] See Joint Select Committee
on Australia’s Immigration Detention Network, above, and Australian Human
Rights Commission, Submission to the Joint Select Committee on Australia’s
Immigration Detention Network, note 5, section
16.

[15] See Australian
Human Rights Commission, Submission to the Joint Select Committee on
Australia’s Immigration Detention Network, note 5, section
12.

[16] See Australian Human
Rights Commission, Submission to the Senate Standing Committee on Legal and
Constitutional Affairs Inquiry into Australia’s agreement with Malaysia in
relation to asylum seekers (September 2001), para 76. At http://www.hreoc.gov.au/legal/submissions/2011/20110914_asylum_seekers.html#fnB72 (viewed 27 September 2012).

[17] Above

[18] Above.

[19] See Australian Human
Rights Commission, Submission to the Senate Standing Committees on Legal and
Constitutional Affairs Inquiry into Australia’s agreement with Malaysia in
relation to asylum seekers, note 6, section
11.1

[20] See International
Covenant on Economic, Social and Cultural Rights, note 65, art 12; Convention on the Rights of the Child, note 20, art
24.

[21] International
Covenant on Civil and Political Rights, note 20, arts 7 and 10; Convention on the Rights of the Child, note 20, art 37(c).

[22] International Covenant
on Civil and Political Rights, note 20, art 9(1); Convention on
the Rights of the Child, note 20, art
37(b).

[23] The Australian
Government has stated that it will implement the principle of ‘no
advantage’ – the concept that asylum seekers who come to Australia
by boat will gain no benefit through doing so rather than waiting in another
country to have their claims assessed, and a durable solution provided if they
are found to be refugees. See also, for example, The Hon. Chris Bowen MP,
Minister for Immigration and Citizenship , ‘Asylum seeker transfer to
Nauru, Expert Panel recommendations, 'no advantage' principle, Tony
Abbott’ (Press Conference, 14 September 2012). At http://www.minister.immi.gov.au/media/cb/2012/cb189879.htm (viewed 27 September 2012). This concept underpins the report of the Expert
Panel on Asylum Seekers. , as expounded in the report of the Expert Panel on
Asylum Seekers. Report of the Expert Panel on Asylum Seekers (August 2012), see
especially ‘Overview: the approach underpinning this report’
pp10-13, and recommendation 1 p14, at http://expertpanelonasylumseekers.dpmc.gov.au/report (viewed 12 October 2012). The UNHCR has expressed serious concern about the
basis of such a principle, explaining that there is no ‘average’
time for resettlement. Mr António Guterrres, United Nations High
Commissioner for Refugees, Correspondence to The Hon. Chris Bowen MP, Minister
for Immigration and Citizenship of Australia, 5 September 2012. The Commission
is concerned that the consequence of the application of the ‘no
advantage’ principle for some asylum seekers might be very long periods of
time in detention in third
countries.

[24] The Human Rights
Committee has observed that ‘detention’ is not to be narrowly
understood, and that article 9 applies to all forms of detention or deprivations
of liberty, whether they are criminal, civil, immigration, health, or vagrancy
related. Human Rights Committee, General Comment No 8: Right to liberty and
security of persons (Art. 9) (1982), [1]. The distinction between measures which
constitute a ‘deprivation of’ liberty, as opposed to a
‘restriction upon’ liberty, is one of degree or intensity, and not
one of nature or substance. Nor does it depend in any way upon the labelling of
something as ‘detention’. Rather, it will depend upon criteria such
as the type, duration, effects and manner of implementation of the measure in
question. See, in the context of the European Convention on Human Rights, Amuur
v France (1992) 22 EHRR 533, [42]. The Commission considers that the
circumstances in which people are held on Nauru or another third country might
be characterised as detention if, for example, people are subject to a legal
requirement that they must live in a particular processing centre; if they are
confined to the processing centres for certain periods each day; if they are
only permitted to leave for certain periods of time; if they have no control
over their accommodation; or if they are subject to supervision and monitoring
by security guards. See ‘Human rights issues raised by the transfer of
asylum seekers to third countries’, note
6.

[25] Australian Human Rights
Commission, ‘Human rights issues raised by the transfer of asylum seekers
to third countries’, October 2012. At http://www.humanrights.gov.au/human_rights/immigration/transfer_third_countries.html,
viewed 18 October 2012.

[26] Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory(Advisory Opinion)[2004] ICJ Rep 136(dealing in particular with
rights under the ICCPR and the
CRC).

[27] See the decisions of
the European Court of Human Rights in Banković v Belgium and others (dec.) [GC] no. 52207/99, [2001] ECHR 890 and Al-Skeini v United Kingdom [GC] no. 55721/07, [2011] ECHR
1093.

[28] G Goodwin-Gill and J
McAdam, The Refugee in International Law (3rd ed, , 2007), pp
408-411.

[29] See the following
decisions of the Human Rights Committee: GT v Australia, Communication
No. 706/1996, UN Doc CCPR/C/61/D/706/1996 (2007), [8.1]; ARJ v Australia,
Communication No. 692/1996, UN Doc CCPR/C/60/D/692/1996 (1997); C v
Australia, Communication No. 900/1999, UN Doc CCPR/C/76/D/900/1999 (2002); Kindler v Canada, Communication No. 470/1991, UN Doc CCPR/C/48/D/470/1991
(1993), [13.1]-[13.2]; Ng v Canada, Communication No. 469/1991, UN Doc
CCPR/C/49/D/469/1991 (1993), [14.1]-[14.2]; Cox v Canada, Communication
No. 539/1993 [, UN Doc CCPR/C/52/D/539/1993 (1994), [16.1]-[16.2]; Judge v Canada, Communiation No. 829/1998, UN Doc CCPR/C/78/D/829/1998
(2003), [10.2]-[10.7]; Nakrash and Qifen v Sweden, Communication No.
1540/2007, UN Doc CCPR/C/94/D/1540/2007 (2008), [7.3]; Bauetdinov v
Uzbekistan, Communication No. 1205/2003, CCPR/C/92/D/1205/2003 (2008),
[6.3]; Aumeeruddy-Cziffra v Mauritius, Communication No. 35/1978, UN Doc
CCPR/C/12/D/35/1978 (1990), [9.1]. See also Human Rights Committee, General
Comment 31[80] - Nature of the General Legal Obligation Imposed on States
Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (2004), [12]; and,
under similar provisions in the European Convention on Human Rights, see Hirsi Jamaa and Others v Italy (European Court of Human Rights, Grand
Chamber, Application no. 27765/99, 23 February 2012)
[114]ff.

[30] Munaf v
Romania, Communication No. 1539/2006, UN Doc CCPR/C/96/D/1539/2006 (2009),
[14.2]; Judge v Canada, Communiation No. 829/1998, UN Doc
CCPR/C/78/D/829/1998 (2003),
[10.6].

[31] Ahani v
Canada, Communication No. 1051/2002,UN Doc CCPR/C/80/D/1051/2002
(2004), [10.7]. See also, in the context of the European Convention on Human
Rights, Hirsi Jamaa and Others v Italy (European Court of Human
Rights, Grand Chamber, Application no. 27765/99, 23 February 2012) [117], [133]
and [156]-[157] (‘In order to ascertain whether or not there was a risk of
ill-treatment, the Court must examine the foreseeable consequences of the
removal of an applicant to the receiving country in the light of the general
situation there as well as his or her personal circumstances’. Also, in
the context of return to Libya of persons seeking asylum in Italy: ‘the
Italian authorities should have ascertained how the Libyan authorities fulfilled
their international obligations in relation to the protection of
refugees’).

[32] Vienna
Convention on the Law of Treaties, adopted 23 May 1969, 1155 UNTS 331 (entered
into force 27 January 1980) arts 26 and 31.

[33] In his statement of reasons
for thinking that the designation of Nauru is in the national interest, the
Minister for Immigration and Citizenship stated: “I think that it is not
inconsistent with Australia’s international obligations (including but not
limited to Australia’s obligations under the Refugees Convention) to
designate Nauru as a regional processing country ... . However, even if the
designation of Nauru to be a regional processing country is inconsistent with
Australia’s international obligations, I nevertheless think that it is in
the national interest to designate Nauru to be a regional processing
country.” The Honourable Chris Bowen, Minister for Immigration and
Citizenship, Statement of reasons for thinking that it is in the national
interest to designate Nauru to be a regional processing country, September 2012,
para 35. At http://www.minister.immi.gov.au/media/cb/2012/cb189739.htm (viewed 27 September 2012). Equivalent language is used in the statement
relating to Papua New Guinea. The Commission considers that a blanket statement
that the ‘national interest’ may justify the limitation of rights
goes beyond the circumstances in which rights set out in the treaties to which
Australia is a party may be limited. For example, article 4 of the International
Covenant on Civil and Political Rights (1966) (ICCPR) contemplates that some
(but not all) rights may be limited in ‘time of public emergency which
threatens the life of the nation and the existence of which is officially
proclaimed’. Further, Australia has not given any notification to the
Secretary-General of the United Nations that it intends to derogate from its
obligations under any human rights instruments. See, for example, the process
described in article 4(3) of the ICCPR.

[34] See for example, UN High
Commissioner for Refugees, Guidelines on the Applicable Criteria and
Standards relating to the Detention of Asylum-Seekers and Alternatives to
Detention (2012), Guideline 10 at http://www.unhcr.org/refworld/docid/503489533b8.html

[35] See, for example MJ Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia
Rau (2005) (Palmer report), recommendations 6.11, 6.12, 6.13, at www.immi.gov.au/media/publications/pdf/palmer-report.pdf (viewed 10 August 2010); The 2005 Palmer Report recommended the establishment of
an independent Immigration Detention Health Review Board. In her review of the
implementation of the Palmer Report, Elizabeth Proust observed that
‘[w]hile the Department of Immigration and Citizenship regards the
arrangements via the [Detention Health Advisory Group (DeHAG)] to meet this
recommendation, DeHAG itself believes that an independent body is still
needed’. E Proust, Evaluation of the Palmer and Comrie Reform Agenda
– including related Ombudsman Reports (2008) at http://www.immi.gov.au/about/department/perf-progress/evaluation-report/ (viewed 10 August 2010). This was also noted by the Joint Standing Committee on
Migration in its inquiry into immigration detention in Australia. Joint Standing
Committee on Migration, Immigration detention in Australia: Facilities, services
and transparency - Third report of the inquiry into immigration detention in
Australia (2009) p.91 at http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=mig/detention/report3.htm#chapters (viewed 14 October 2012)