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November 2009 Symposium: Protecting Human Rights in Australia: Challenges and Strategies Human rights in Australia: Refugees and asylum seekersDoes Australia’s current legislation sufficiently protect the human rights of those seeking asylum in this country? For those arriving undocumented by boat, the simple answer is no, it does not. Fleeing persecution is a fundamental human right. Despite the 1951 Refugee Convention explicitly stating that those arriving undocumented, or ‘illegally’, should not be penalised for doing so, such people are increasingly being stripped of some of their basic human rights. In Australia over 90 per cent of those arriving by boat are found to be refugees yet it is this group alone who are taken to Christmas Island, where they are detained and processed, at the Minister’s discretion, under procedures which have no statutory legal basis in Australian law.
As a signatory to the 1951 Refugee Convention Australia has signalled its willingness to accept certain obligations to those seeking protection and to provide protection to those who are recognised as refugees; that is, those who face persecution based on their race, religion, nationality, political opinion or social group. However, the rights of those coming to Australia seeking this protection have been gradually eroded as governments (in Australia and elsewhere) continually increase the discretionary powers of the executive to detain, process and remove, while at the same time limiting the role of the judiciary by removing individuals’ ability to challenge these executive decisions in the courts. What difference, then, would a human rights act make? In answering that question it is useful to highlight exactly where current legislation fails vulnerable asylum seekers in Australia in need of protection under the 1951 Refugee Convention. Recent recommendations by the National Human Rights Consultation Committee (2009) included for Australia to adopt a Human Rights Act or alternatively to do a human rights audit of our current legislation. An audit of current legislation would determine if, or where, breaches of Australia’s international human rights obligations occur. Either option would quickly demonstrate the serious human rights failings of current legislation and their impact on those seeking asylum, particularly those arriving by boat. Legislation that ‘excises’ certain islands from Australia’s migration zone, along with legislation that provides for the mandatory detention of all those who arrive undocumented, have consistently been found to be in breach of our international obligations. MANDATORY DETENTIONThe United Nations High Commissioner for Refugees (UNHCR) (1999) sets out standards relating to the detention of asylum seekers, under which detention should be a measure of last resort and used only for the purposes of undertaking identity, health and security checks. Importantly, the decision to detain someone to do these checks should be taken on an individual, case-by-case basis. The individual should then be given the reasons for their detention, and should be entitled to legally challenge these reasons. If a person is detained, they should be entitled to challenge their prolonged detention or any adverse findings made against them. In Australia, however, mandatory detention ensures that anyone arriving without documents, or ‘illegally’, must automatically be detained, cannot legally challenge the reasons for their detention, and can be kept in detention indefinitely at the executives’ discretion (Amnesty International Australia 2009). Legally a person is required to remain in detention until he or she is granted a visa, which can include a bridging visa (granted at the discretion of the executive), or are removed. So what happens then if the person is stateless? Ahmed Al-Kateb, a Palestinian from Kuwait, challenged his ongoing detention in a landmark High Court case, on the basis that despite repeated requests to leave Australia, he could not be returned to another country. In 2004, in Al-Kateb vs Godwin, the High Court held that, as immigration detention was for administrative purposes and hence not punitive, the government was entitled to hold people indefinitely. As such, for non-citizens in particular, Australia’s domestic law overruled both our international convention obligations and common law rights, including to the fundamental common law right of habeas corpus.
According to the chair of the government’s National Human Rights Consultation Committee, Father Frank Brennan, the provision of the Migration Act that allows for the indefinite detention of asylum seekers, as highlighted by the Al-Kateb High Court case, ‘would probably not pass muster in such a review process’ (Brennan, quoted in Pelly 2009). In fact, over the last ten years Australia has been criticised by UN Human Rights bodies on at least fourteen different occasions. Mandatory detention provisions have been consistently criticised for breaching Australia’s obligations under Article 9 of the 1966 International Covenant on Civil and Political Rights (ICCPR), which is supposed to protect people from arbitrary detention. Australia detention policies have also, on occasion, been in breach of Article 10 of the ICCPR, which states that those detained should be treated with dignity and respect. In light of these criticisms, in July 2008 the Minister for Immigration, Chris Evans, outlined his ‘New directions in detention’ (Evans 2009). While intending to signal a more humane approach to detention, ‘New Directions’ reiterated that mandatory detention remained a key policy. The seven key values outlined in the document are supposedly to be codified in legislation through the Migration Amendment (Immigration Detention Reform) Bill 2009 (Parliament of the Commonwealth of Australia 2009). A number of criticisms have however been levelled at the new legislation. Despite affirming that detention will only be used ‘as a measure of last resort … and for the shortest practicable time’ (p. 3), all adults arriving undocumented will still be automatically detained. Even more concerning is that non-citizens can still be detained not just to undertake health character and identity checks but also to ‘resolve the non-citizens’ immigration status’ (p. 3). For a stateless individual like Mr Al-Kateb this means that if it so chooses, the government would still be entitled to detain him indefinitely (Amnesty International Australia 2009). Further, while the new legislation stipulates that a ‘minor must not be detained in an immigration detention centre’ (IDC), this does not preclude them from being detained in alternate detention facilities. This includes Residential Housing Centres which were initially set up so women and children (not husbands and fathers) could be taken out of IDCs and placed in a centre designed to look like a residential street. While entire families are now in the centres they are still surrounded by fencing, under constant guard, with video surveillance and children escorted to and from school. My most vivid memories of witnessing children in detention included talking to a mother and her four year old daughter in the Baxter Residential Housing Centre in 2005. The young girl had been born and spent her entire life in detention. Explaining to a four year old that her current detention environment was somehow better than her previous detention environment seemed absurd, when it was still clearly a breach of Australia’s international obligations both under the ICCPR and the 1989 Convention of the Rights of the Child (CRC). While consecutive Australian governments have attempted to ensure children are no longer held in detention centres, the current arrangements for children taken for processing on Christmas Island again put Australia in breach of obligations as outlined in both the ICCPR and the CRC. The Australian Human Rights Commission’s (2009) recent report on Christmas Island specifically highlighted concerns with the detention arrangements for children. In particular, those held in the old construction housing are under 24-hour guard, are not free to come and go, and are in a confined area with limited room to play. Under Australia’s current legislation a child could be born into these conditions and even if recognised as a refugee, spend the rest of his or her life there. EXCISION AND OFFSHORE PROCESSING
Australia’s excision and offshore processing regime is the second element of asylum seeker policy that puts it directly in breach of a number of its international human rights obligations. All those found on an ‘excised’ offshore territory are automatically taken to Christmas Island and processed with fewer legal protections than those on the mainland. Article 31(1) of the 1951 Refugee Convention clearly states that those seeking asylum should not be penalised for entering a country ‘illegally’. The recent Human Rights Commission report again echoes previous criticisms that ‘excision’ clearly puts Australia in breach of Article 31(1). People taken to Christmas Island under this policy are in fact penalised in a number of respects. Firstly, it is unclear under the Minister’s new vision and the new Immigration Detention Reform Bill whether or not those detained on Christmas Island will be entitled to the same protections as those on the mainland. Experience has already shown that they are not. Even with the best intentions, the lack of alternatives for people to be released into the community, as highlighted by the treatment of children, has meant that the viable alternatives to detention that exist on the mainland simply do not exist for those on Christmas Island. Secondly, the scaled back refugee status assessment (RSA), outlined below, for those processed on Christmas Island, if ‘audited’, would certainly be found not to meet international standards of fundamental justice. Those who seek asylum on the mainland are entitled to do so as a legal right. By contrast, those taken to Christmas Island are only allowed to seek asylum at the Minister’s discretion. In fact, for those seeking asylum, no statutory or regulatory framework exists relating to refugee status determination, so the rules that govern procedural fairness are completely absent. Those processed are not entitled to appeal a negative decision to the independent Refugee Review Tribunal and cannot access the Federal Courts. These important safeguards are provided only to those undergoing their refugee status determination on the mainland. For those on the mainland the last avenue of appeal is to make a ‘request’ to the Minister of Immigration. This provides an opportunity for individuals to highlight where other exceptional circumstances exist for them to remain, including compassionate grounds, including family connections, or health issues, or broader human rights treaty concerns. As such, these exceptional circumstances include our treaty obligations (under the ICCPR and the 1987 Convention Against Torture) not to return (refoule) someone to a country where they face torture or death. Including these treaty obligations in a non-compellable, non-reviewable discretion is problematic enough for those processed on the mainland. Those on Christmas Island are currently given only seven days to write to the Minister, following a negative RSA determination, without any form of legal assistance and virtual zero capacity for those in the IDC to engage a lawyer in such a short time frame. CONCLUSION: A BILL OF RIGHTS FOR ALL
So would a human rights act make a difference for those for those seeking asylum here? The Canadian Charter of Rights and Freedoms (the Charter) provides a clear example of where such protections have had a direct impact. While guaranteeing certain political rights for Canadian citizens, the Charter also protects the fundamental civil rights of all those in Canada from the policies and actions of all levels of government. For vulnerable groups such as those seeking asylum this includes; under Section 7 the ‘right to life, liberty, and the security of person’; Section 9, ‘freedom from arbitrary detainment or imprisonment’; and Section 10, the ‘right to legal counsel and the guarantee of habeas corpus’. It was held in the case before the Canadian Supreme Court, Singh v. Minister of Employment and Immigration, that foreign nationals are protected by the Canadian Charter of Rights and Freedoms. Singh and six others, whose asylum claims had been rejected, challenged the adjudication procedures on the basis that it violated section 7 of the Charter. The Supreme Court found that their rights to security of person and fundamental justice had been violated under Section 7 and the Supreme Court further found, under section 2(e) of the 1960 Canadian Bill of Rights, that their rights to fundamental justice and to fair hearings were also infringed. This decision, significantly, confined the discretion powers of the executive by imposing heightened procedural safeguards (Heckman 2003, p. 252). Australia is not alone among developed countries in its attempts to erode the statutory and procedural safeguards that should protect people seeking asylum. In Europe and North America we have seen both the increasing use of detention, as well as the adoption of ‘first country of arrival’ principles, such as the Dublin Regulation in Europe and the US-Canada ‘Safe Third Country Agreement’. These agreements have been used by states to quickly return people to countries with questionable protection standards, which have serious consequences for asylum seekers and prevent refugees from obtaining the protection they are entitled to. Unlike other developed countries, however, Australia does not have a constitutional or legislated human rights mechanism, such as a bill or a charter, to protect individuals from the ever broadening discretionary powers of the executive. Basic freedoms, rights and principles of fundamental justice, such as the right to habeas corpus, are severely compromised, or lacking, for those seeking asylum here. A human rights act is crucial if Australia is to ensure that the rights of one of the most vulnerable groups on our territory are protected. REFERENCESAmnesty International Australia 2009, Submission to the National Human Rights Consultation, Amnesty International, Sydney. Australian Human Rights Commission 2009, Immigration detention and offshore processing on Christmas Island [Online], Available: http://www.humanrights.gov.au/human_rights/immigration/idc2009_xmas_island.pdf [2009, Nov 24]. Evans, C. 2009, New Directions in Detention, Restoring Integrity to Australia’s Immigration System, speech at the Australian National University, 29 July [Online], Available: http://www.minister.immi.gov.au/media/speeches/2008/ce080729.htm [2009, Jul 26]. Heckman, G. 2003, ‘Securing procedural safeguards for asylum seekers in Canadian law: An expanding role for international human rights law?’, International Journal of Refugee Law, vol. 15, no. 2, pp. 112–253. Parliament of the Commonwealth of Australia 2009, Migration Amendment (Immigration Detention Reform) Bill 2009 [Online], Available: http://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/s720_first/toc_pdf/0914020 [2009, Nov 25]. Narushima, Y. 2009, ‘Labor charged with mistreating boat people’, The Sydney Morning Herald, 24 October. National Human Rights Consultation Committee 2009, National Human Rights Consultation Report [Online], Available: http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report [2009, Nov 24]. Pelly, M. 2009, ‘Human rights plan charter plan changes again’, The Sydney Morning Herald, 16 October. United Nations High Commissioner for Refugees 1999, UNHCR Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers, United Nations, New York [Online], Available: http://www.unhcr.org.au/pdfs/detentionguidelines.pdf [2009, Nov 24]. Dr Graham Thom is the Refugee Campaign Coordinator for Amnesty International Australia. View other articles in this symposium:
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