Community arrangements -asylum seekers, refugees and stateless persons

Community arrangements for asylum seekers, refugees and stateless persons

Observations from visits conducted by the Australian Human Rights Commission from December 2011 to May 2012

4 Australia’s mandatory detention and excision regime

Mural, Villawood Immigration Detention Centre.

4.1 The origins and impact of mandatory immigration detention and excision

This year marks the twentieth anniversary of Australia’s introduction of mandatory immigration detention and the eighteenth anniversary of the system of mandatory, indefinite immigration detention. In the current context, it is apt to recall that mandatory detention was introduced in reaction to the arrival of asylum seekers by boat, with concerns about a potential ‘influx’ spurring bipartisan support for increasingly tough measures on persons who arrived in Australia without a visa.^[8]

Amendments to the Migration Act 1958 (Cth) (Migration Act) in 1992 both required the detention of certain ‘designated persons’ and prevented any judicial review of detention by providing that ‘a Court is not to order the release from custody of a designated person’.^[9] These amendments did, however, impose a 273 day time limit on immigration detention.^[10]

Additional legislative amendments in response to further boat arrivals in Australia commenced in 1994. The 1994 legislation:

broadened the application of mandatory detention to all persons who either arrived without a visa or who were in Australia on an expired or cancelled visa
removed the 273 day time limit on detention, instead providing that an ‘unlawful non-citizen’ could only be released from detention on the grant of a visa, removal or deportation from Australia
introduced a system of bridging visas to allow release from immigration detention in certain circumstances.^[11]

The next major change to Australia’s system for responding to asylum seekers who arrive by boat occurred in September 2001. A raft of amending legislation was enacted at this time in response to what became known as ‘the Tampa crisis’^[12] and in pursuit of the so-called ‘Pacific Solution’.^[13] Among other things, the 2001 legislation:

designated Christmas Island, Ashmore and Cartier Islands and the Cocos (Keeling) Islands as ‘excised offshore places’
prohibited persons who arrived in Australia via such places, or ‘offshore entry persons’, from making a protection visa application, other than at the discretion of the Minister
provided for the transfer to third countries for processing of their protection claims of asylum seekers who are intercepted at sea or reach an ‘excised offshore place’.

In more recent times, Australia has taken significant steps towards implementing a system of community placement on the mainland for asylum seekers and refugees who have arrived in Australia by boat. As noted above, this is a welcome development, aspects of which align with recent Commission recommendations and international human rights standards.

Nevertheless, Australia retains a legal and policy framework of excision and of mandatory, indefinite immigration detention. Under this framework, any person who is not a citizen and does not hold a valid visa must be detained, regardless of his or her individual circumstances. For people who arrive on the Australian mainland, this requirement is contained in the Migration Act.^[14] For people in this situation who arrive at an ‘excised offshore place’, such as Christmas Island, detention is discretionary under the Migration Act, but current Australian Government policy is that all such people are detained.^[15] Further, as noted, immigration detention in Australia is not subject to a time limitation. Once detained, non-citizens who do not hold valid visas must be kept in detention until they are removed from Australia or granted a visa.^[16] It would be legal under Australian law to hold someone in immigration detention for the rest of his or her life, as long as detention continues to be for one of the purposes in the Migration Act.^[17]

The Commission has raised concerns over many years that the system of mandatory, indefinite detention leads to breaches of Australia’s international human rights obligations, including the prohibition on arbitrary detention. Concerns about Australia’s system of mandatory, indefinite immigration detention are also held by a number of United Nations bodies.^[18]

Australia has binding obligations to ensure that no one is subjected to arbitrary detention.^[19] To comply with international law, detention must be a proportionate means to achieve a legitimate aim. In determining whether detention is proportionate, consideration must be had to the availability of alternative means for achieving that end which are less restrictive of a person’s rights.^[20] Detention should only be used as a last resort,^[21] and when it is used, it should be the least restrictive form available and should not continue beyond the period for which it can be justified.^[22]

The Commission recognises that immigration detention may be legitimate for a strictly limited period of time. However, the need to detain a person should be assessed on a case-by-case basis taking into consideration their individual circumstances.

To avoid detention being arbitrary, there should be an individual assessment of the necessity of detention for each person, as soon as possible after a person is taken into detention. 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 the community while their immigration status is resolved – if necessary, with appropriate conditions imposed to mitigate any identified risks.

The Commission has also repeatedly raised concerns about the significant human impact of mandatory immigration detention. During visits to immigration detention facilities over many years, people in detention have repeatedly told the Commission of the detrimental impact of lengthy detention upon their physical and mental health, and of the anxiety and desperation which they experience due to the indefinite nature of their detention. People have often spoken to the Commission about the psychological impacts of their prolonged detention, including high levels of sleeplessness, loss of concentration, feelings of hopelessness and powerlessness and thoughts of self-harm or suicide. The Commission heard of the devastating impact of detention again during the visits that are the subject of this report.^[23]

Artwork by man in detention, Melbourne Immigration Transit Accommodation.

4.2 Recent developments

Because of Australia’s system of mandatory, indefinite immigration detention, asylum seekers who arrive in Australia by boat spend at least some time, and often protracted periods, in immigration detention. An increased detention population, comprising many people who had experienced lengthy periods of detention, led to significant overcrowding and heightened tensions in immigration detention facilities during 2010 and early 2011.

As tensions rose, critical incidents in immigration detention became common. Self-harm in detention has occurred at high rates for much of the past two years and has involved instances of lip-sewing, self-laceration, voluntary starvation and ingestion of chemicals.^[24] There have also been eight deaths in immigration detention, six of which appear to have been suicides.^[25] Further, detention facilities have been the scenes of violent protests, including at Christmas Island Immigration Detention Centre (Christmas Island IDC) in March 2011 and at Villawood IDC in April 2011.

A number of inquiries and investigations have recently been conducted into aspects of the immigration detention network, with a focus on critical incidents. Additionally, in 2010 and 2011 the High Court of Australia handed down two decisions which had a significant impact on Australian asylum seeker and refugee law and policy.

(a) The Hawke-Williams review

On 18 March 2011, Minister for Immigration and Citizenship, the Hon Chris Bowen MP, announced an independent review would be conducted by Dr Allan Hawke AO and Ms Helen Williams AO into the incidents including riots that occurred at Christmas Island IDC in March 2011. On 21 April 2011, the Minister announced that the scope of the review would be expanded to include the protests that took place at Villawood IDC on 20-21 April 2011.

The review’s terms of reference covered:

the respective roles and responsibilities of DIAC and the detention services provider Serco in managing these detention centres
the means by which breaches of security were achieved
prior indicators which may have assisted in preventing the incidents
the adequacy of infrastructure, staffing and case management at the relevant facilities
training and supervision of DIAC and Serco staff
communication and coordination between relevant government agencies and contractors
the appropriateness of the measures taken in response to the incidents.

The report of this review was released on 31 August 2011.^[26] It contains 48 recommendations aimed at preventing further critical incidents in detention, all of which DIAC agreed to. The Minister for Immigration and Citizenship has asked DIAC to report on its progress in implementing the recommendations by mid-2012.^[27]

(b) The NSW coronial inquest

Also last year, the NSW Coroner conducted an inquest into the deaths of Mr Josefa Rauluni, Mr Ahmed Al-Akabi and Mr David Saunders at Villawood in 2010. Magistrate Mary Jerram handed down the findings of the inquest on 19 December 2011.^[28] Her Honour found that the three men took their own lives. Her Honour observed that people in immigration detention centres, due in part to the loss of their families, freedom, status and work, must be ‘at much greater risk of suicide than the general community’.^[29] For this reason, those responsible for people in detention ‘owe a greater than normal duty of care to those persons regarding their health and wellbeing’.^[30] In Her Honour’s view, DIAC, Serco and the detention health services provider IHMS all warranted criticism for the way in which that duty of care was fulfilled with respect to the three men who died.^[31]

Magistrate Jerram found that some individual DIAC, Serco and IHMS staff members were ‘careless, ignorant or both, and communications were sadly lacking’ in relation to the men who died, but that no individual acted in bad faith deliberately.^[32] Rather, in Her Honour’s view, a series of systemic failures led to the deaths. These included a lack of appropriate screenings and protocols to minimise risk for the deceased men; a lack of consistency arising from high staff turnover; a failure to record or share important information and ‘startling examples of mismanagement’.^[33]

(c) The Joint Select Committee on Australia’s Immigration Detention Network

The Commonwealth Parliament established a Joint Select Committee (JSC) on Australia’s Immigration Detention Network on 16 June 2011. The JSC was charged with conducting a comprehensive inquiry into various aspects of Australia’s immigration detention network, including its management, resourcing, potential expansion, possible alternative solutions, the government's detention values, the effect of detention on people detained and various issues relating to riots and disturbances in detention.^[34]

The JSC handed down a substantial report of its inquiry on 30 March 2012.^[35] The report contains 31 recommendations, which include that:

Following initial health, identity, character and security checks, asylum seekers should be granted bridging visas or released into community detention.
People held in immigration detention should be accommodated in metropolitan rather than remote facilities wherever possible.
The Minister for Immigration and Citizenship should be replaced as guardian of unaccompanied minors in immigration detention.
Consistent child protection arrangements should be implemented across the detention network.
Effective review mechanisms should be made available to people who have received adverse security assessments.
IHMS staffing levels within immigration detention should be reviewed.

At the time of publication of this report, the government had yet to respond to the JSC’s report and its recommendations.

(d) Challenge to the dual processing of claims for asylum

In 2010, the High Court of Australia heard and decided Plaintiff M61/2010E v Commonwealth.^[36] In this case, two Sri Lankan asylum seekers who arrived in Australia by boat challenged the separate system of processing asylum claims which applied to people who arrived in Australia at an ‘excised offshore place’ like Christmas Island.

The plaintiffs argued that they were not afforded procedural fairness in the assessment of their refugee claims or the merits review of the negative decisions which arose from those claims. They argued that the officers conducting the primary assessments and reviews erred in law by considering themselves not to be bound by the provisions of the Migration Act or the decisions of Australian courts. The Commonwealth and the Minister for Immigration and Citizenship argued that refugee status assessment and review processes applying to people who arrived in Australia at an ‘excised offshore place’ are an exercise of non-statutory executive power and therefore there was no obligation on officers conducting these processes to afford applicants procedural fairness or to decide applications according to law.^[37]

The High Court unanimously decided that the refugee status assessment and review processes are not an exercise of non-statutory executive power but rather are ‘steps taken under and for the purposes of the Migration Act’.^[38] Officers responsible for undertaking the assessments and reviews in the immediate case were therefore bound to act according to law and to afford the plaintiffs procedural fairness. This decision resulted in access to Australian courts for judicial review being granted to asylum seekers who arrive in Australia by boat at Christmas Island and other ‘excised offshore places’.

On 25 November 2011, the government announced that Australia would return to a policy of using a single statutory system for processing asylum claims.^[39] The new streamlined arrangements commenced on 24 March 2012.^[40] All claims for protection are now assessed according to the refugee status determination process established by the Migration Act, regardless of the place or mode of arrival of the person lodging the claim. All asylum seekers in Australia now have access to the same opportunities to appeal a negative decision in the Refugee Review Tribunal or Administrative Appeals Tribunal.^[41] In addition, a scheme for assessing complementary protection claims also commenced on 24 March 2012.^[42]

The Commission welcomed Australia’s return to a single system for processing claims for protection, which should lead to a fairer, more efficient and more cost-effective system.^[43] However, the Commission remains concerned that the provisions relating to ‘excised offshore places’ remain in the Migration Act, allowing the government to return to a policy of dual processing at any time.^[44]

(e) Challenge to the Malaysian arrangement

In May 2011, the Australian Government announced the Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement, whereby up to 800 asylum seekers who arrived in Australia by boat would be removed to Malaysia for processing of their claims for protection. Under the arrangement, the Australian Government agreed to accept 4000 recognised refugees from Malaysia for resettlement in Australia.

In Plaintiff M70/2011 v Minister for Immigration and Citizenship, the validity of this arrangement was challenged by two asylum seekers who were subject to transfer under the arrangement.^[45] The High Court held that the Minister for Immigration and Citizenship’s declaration of Malaysia as a third country to which asylum seekers who arrive in Australia by boat can be removed was invalid, and ordered that the Minister not remove the plaintiffs from Australia to Malaysia.

The majority of the High Court concluded that the Minister could only validly declare a country under s 198A of the Migration Act to which asylum seekers can be taken for the processing of their claims if that country satisfies the criteria set out in that section as a matter both of law and of objective fact. These include that the third country must provide:

access to effective procedures for the processing of asylum claims
protection for asylum seekers pending a decision on their claims for refugee status
protection for people found to be refugees, pending their voluntary return to their countries of origin or their resettlement in other countries.

The High Court found that Malaysia was not, and is not, obliged under law to provide these protections. Malaysia is not a party to the Convention Relating to the Status of Refugees or its 1967 Protocol. The arrangement between the Australian and Malaysian Governments, and the purported protections contained therein, were not legally binding.^[46] Further, domestic Malaysian law does not recognise the status of refugees.

The High Court also held that the removal of unaccompanied minors who arrive in Australia by boat seeking asylum, or the taking of children in this situation to another country pursuant to s 198A of the Migration Act, cannot lawfully be effected without the written consent of the Minister for Immigration and Citizenship (or his delegate). It confirmed that any decision to provide that consent would be subject to judicial review.^[47]

In response to the decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship, on 12 September 2011, the Prime Minister and the Minister for Immigration and Citizenship announced that the Australian Government would introduce amendments to the Migration Act to ‘restore the understanding of the third country transfer provisions of the Migration Act that existed prior to the High Court’s decision on 31 August 2011’.^[48] The Ministers also announced an intention to amend the Immigration (Guardianship of Children) Act 1946 (Cth) (IGOC Act), ‘to enable decisions to be made with respect to minors’.^[49]

The amendments to the Migration Act and IGOC Act were introduced by the government on 21 September 2011, but have not yet passed Parliament.

(f) Further attempts to allow removal of asylum seekers to third countries

In two incidents over the space of a week in July 2012, a known 94 asylum seekers tragically drowned en route to Australia. This led to intense parliamentary debate surrounding the reintroduction of proposed legislative amendments to enable the removal of asylum seekers who arrive in Australia by boat to third countries for the processing of their protection claims.^[50] The amendments were not passed.

The Prime Minister of Australia, the Hon Julia Gillard MP, subsequently announced the appointment of an Expert Panel on Asylum Seekersto provide recommendations to the Australian Government on policy options to prevent asylum seekers risking their lives on dangerous boat journeys to Australia.^[51] The Expert Panel will take into account Australia’s international obligations and right to maintain its borders.^[52] It will consult with a Multi-Party Reference Group, amongst others, and is due to report before the end of August 2012.

^Top

^[8] For further discussion of the origins and history of Australia’s mandatory immigration detention see J Phillips and H Spinks, Immigration Detention in Australia, Background Note, Parliamentary Library, Parliament of Australia, 23 January 2012, at http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2011-2012/Detention (viewed 23 July 2012).

^[9] Migration Act 1958 (Cth), s 183.

^[10] See Migration Amendment Act 1992 (Cth), s 3 which inserted the then s 54Q(2)(b) into the Migration Act.

^[11] See Migration Reform Act 1992 (Cth); Migration Laws Amendment Act 1993 (Cth). Section 2 of the Migration Reform Act 1992 (Cth) provides that the main provisions of the Act commence on 1 November 1993. Section 2 of the Migration Laws Amendment Act 1993 (Cth) deferred the commencement of certain amendments contained in the Migration Reform Act 1992 (Cth) until 1 September 1994.

^[12] For a description of the Tampa crisis see, for example, M Crock, B Saul and A Dastyari, Future Seekers II: Refugees and the Law in Australia (2006).

^[13] See Migration Amendment (Excision from Migration Zone) Act 2001 (Cth); Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth).

^[14] Migration Act 1958 (Cth), s 189.

^[15] See Migration Act 1958 (Cth), s 189(3); 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 6 June 2012).

^[16] Migration Act 1958 (Cth), s 196.

^[17] Al-Kateb v Godwin (2004) 219 CLR 562. See also Migration Act 1958 (Cth), s 196.

^[18] See, for example, ‘UNHCR urges Australia to review policy of detaining asylum seekers’ (Media Release, 1 February 2002), at http://www.un.org/apps/news/story.asp?NewsID=2785&Cr=australia&Cr1=asylum; ‘Changes to Australian detention arrangements’ (Media Release, 19 April 2010), at http://unhcr.org.au/unhcr/index.php?option=com_content&view=article&id=175&catid=35&Itemid=63; United Nations Human Rights Committee, Concluding observations of the Human Rights Committee: Australia, UN Doc CCPR/C/AUS/CO/5 (2009), para 23, at https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx; United Nations Committee on Economic, Social and Cultural Rights, Concluding observations of the Committee on Economic, Social and Cultural Rights: Australia, UN Doc E/C.12/AUS/CO/4 (2009), para 25, at https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx; A Grover, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health: Mission to Australia, UN Doc A/HRC/14/30/Add.4 (2010), pp 21-24, at http://www.unhcr.org/refworld/docid/49faf7652.html; United Nations Human Rights Council, Report of the Working Group on the Universal Periodic Review: Australia (2011), see paras 28, 42, 49, 78, 86.123, 86.127, 86.131 and 86.132, at https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx; United Nations Commission on Human Rights, Report of the Working Group on Arbitrary Detention: Visit to Australia (2002), UN Doc E/CN.4/2003/8/Add.2, see Executive Summary, at http://www.unhcr.org/refworld/type,MISSION,,AUS,3e2e7ca54,0.html; United Nations Committee on the Rights of the Child, Concluding Observations: Australia (2005), UN Doc CRC/C/15/Add.268, para 62, at http://www.unhcr.org/refworld/publisher,CRC,,AUS,45377eac0,0.html (all viewed 6 June 2012).

^[19] See International Covenant on Civil and Political Rights (1966), art 9(1), at https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 6 June 2012); Convention on the Rights of the Child (1989), art 37(b), at https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (viewed 6 June 2012).

^[20] United Nations Human Rights Committee, C v Australia, Communication No 900/1999, UN Doc CCPR/C/76/D/900/1999 (2002), para 8.2, at http://www.unhcr.org/refworld/docid/3f588ef00.html (viewed 6 June 2012).

^[21] See Working Group on Arbitrary Detention, Report of the Working Group on Arbitrary Detention (15 January 2010), UN Doc A/HRC/13/130, para 59, at http://www2.ohchr.org%2Fenglish%2Fbodies%2Fhrcouncil%2Fdocs%2F13session%2FA.HRC.13.30_en.pdf (viewed 6 June 2012); this requirement is set out explicitly in the Convention on the Rights of the Child, note 19, art 37(b).

^[22] The United Nations Human Rights Committee has held that detention should not continue beyond the period for which a State party can provide appropriate justification. See A v Australia [1997] UNHRC 7, UN Doc CCPR/C/76/D/900/1993 (the fact that the author may abscond if released into the community with not sufficient reason to justify holding the author in immigration detention for four years); C v Australia [2002] UNHRC 52, UN Doc CCPR/C/76/D/900/1999. In the case of children, international law specifically requires that detention be used only for the shortest appropriate period of time: Convention on the Rights of the Child, note 19, art 37(b). These requirements are reflected in the Australian Government’s New Directions in Detention policy, which states that ‘[d]etention in immigration detention centres is only to be used as a last resort and for the shortest practicable time’: New Directions in Detention, note 15.

^[23] See sections 6 and 7 of this report.

^[24] See, for example, observations relating to self-harm by people in detention at Commonwealth Ombudsman, ‘Inquiry to examine suicide and self-harm in immigration detention’ (Media Release, 29 July 2011), at http://www.ombudsman.gov.au/media-releases/show/189 (viewed 10 July 2012); Australian Human Rights Commission, 2011 Immigration detention at Curtin: Observations from visit to Curtin Immigration Detention Centre and key concerns across the detention network (2011), section 8.3, at http://www.humanrights.gov.au/human_rights/immigration/idc2011_curtin.html (viewed 10 July 2012); Australian Human Rights Commission, 2011 Immigration detention at Villawood (2011), section 11.3, at http://www.humanrights.gov.au/human_rights/immigration/idc2011_villawood.html (viewed 10 July 2012).

^[25] The deaths in immigration detention occurred at Curtin Immigration Detention Centre on 21 August 2010 and 28 March 2011; Villawood Immigration Detention Centre on 20 September 2010, 16 November 2010 and 8 December 2010; Scherger Immigration Detention Centre on 17 March 2011 and Sydney Immigration Residential Housing on 26 October 2011 and 27 February 2012.

^[26] A Hawke and H Williams, Independent Review of the Incidents at the Christmas Island Immigration Detention Centre and Villawood Immigration Detention Centre (2011), at http://www.immi.gov.au/media/publications/pdf/2011/independent-review-incidents-christmas-island-villawood-full.pdf (viewed 27 June 2012).

^[27] Independent Review of the Incidents at the Christmas Island Immigration Detention Centre and Villawood Immigration Detention Centre: Minister’s response, p 1, at http://www.immi.gov.au/media/publications/pdf/2011/response-independent-review-incidents-christmas-island-and-villawood-full.pdf (viewed 27 June 2012).

^[28] Findings in the inquests into the deaths of Josefa Raulini, Ahmed Obeid Al-Akabi and David Saunders at Villawood Detention Centre, New South Wales, in 2010, at http://www.coroners.lawlink.nsw.gov.au/agdbasev7wr/_assets/coroners/m401601l3/05_villawoodfindings-redacted.pdf (viewed 27 June 2012).

^[29] Above, p 10.

^[30] Above, p 10.

^[31] Above, p 10.

^[32] Above, p 11.

^[33] Above, pp 10-11.

^[34] Joint Select Committee on Australia’s Immigration Detention Network: Terms of reference, at http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=immigration_detention_ctte/immigration_detention/tor.htm (viewed 27 June 2012).

^[35] Joint Select Committee on Australia’s Immigration Detention Network, Final Report (2012), at http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=immigration_detention_ctte/immigration_detention/report/index.htm (viewed 27 June 2012).

^[36] Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, at http://www.austlii.edu.au/au/cases/cth/HCA/2010/41.html (viewed 28 June 2012).

^[37] It should be noted, however, that DIAC did provide officers conducting the primary assessments and reviews with guidance on making decisions in accordance with natural justice or procedural fairness. This guidance was contained in, for example, the Refugee Status Assessment Procedures Manual. See above, para 43.

^[38] Above, para 9(a).

^[39] Minister for Immigration and Citizenship, ‘Bridging visas to be issued for boat arrivals’ (Media Release, 25 November 2011), at http://www.minister.immi.gov.au/media/cb/2011/cb180599.htm (viewed 23 July 2012).

^[40] Minister for Immigration and Citizenship, ‘New Single Protection Visa Process Set to Commence’ (Media Release, 19 March 2012), at http://www.minister.immi.gov.au/media/cb/2012/cb184344.htm (viewed 25 May 2012).

^[41] For further information about the new streamlined processing arrangements, see Department of Immigration and Citizenship, Implementation of a single process for Irregular Maritime Arrivals (Questions and Answers), at http://www.immi.gov.au/visas/humanitarian/_pdf/implementation_single_process_ima.pdf (viewed 22 May 2012).

^[42] The International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment and the Convention on the Rights of the Child all require that people who are at risk of death or serious human rights violations in their countries of origin not be returned to face such risks – see further note 88 below. Complementary protection schemes provide people who have not been found to be refugees, but whose return would lead to serious human rights violations, to be provided with a level of protection similar to ‘Convention’ refugees. The Migration Amendment (Complementary Protection) Act 2011 (Cth) came into force in October 2011 and administrative processing of claims under the complementary protection scheme commenced on 24 March 2012.

^[43] Australian Human Rights Commission, ‘Bridging visas are a more humane way to treat people seeking protection’ (Media Release, 25 November 2012), at http://www.humanrights.gov.au/about/media/media_releases/2011/115_11.html (viewed 8 June 2012).

^[44] Above.

^[45] Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, at http://www.austlii.edu.au/au/cases/cth/HCA/2011/32.html (viewed 28 June 2012).

^[46] Arrangement between the Government of Australia and the Government fo Malaysia on Transfer and Resettlement (25 July 2011), Clause 16, at http://www.minister.immi.gov.au/media/cb/2011/cb168739.htm (viewed 10 July 2012).

^[47] The Commission’s submissions as Intervener in Plaintiff M70/2011 v Minister for Immigration and Citizenship can be found at http://www.hcourt.gov.au/cases/case-m70/2011 (viewed 10 July 2012).

^[48] Prime Minister and Minister for Immigration and Citizenship, ‘Legislation to restore Migration Act powers’ (Media Release, 12 September 2011), at http://www.alp.org.au/federal-government/news/legislation-to-restore-migration-act-powers/ (viewed 28 June 2012).

^[49] Above.

^[50] See transcripts of parliamentary debate of Migration Legislation Amendment (The Bali Process) Bill 2012 (Cth) at http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r4747 and http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2F77c820b8-ec44-4d61-a787-9d81d07e3ff0%2F0014%22 (viewed 10 July 2012).

^[51] Prime Minister and Minister for Immigration and Citizenship, Transcript of Joint Press Conference, Canberra (28 June 2012), at http://www.pm.gov.au/press-office/transcript-joint-press-conference-canberra-29 (viewed 24 July 2012).The Expert Panel is led by retired Air Chief Marshall Angus Houston AC AFC and also comprises Mr Paris Aristotle AM, Director of the Victorian Foundation for Survivors of Torture, and Professor Michael L'Estrange AO, Director of the National Security College.

^[52] Expert Panel on Asylum Seekers, Terms of Reference, at http://expertpanelonasylumseekers.dpmc.gov.au/terms (viewed 10 July 2012).