In the face of international condemnation of Australia’s mandatory detention of refugees, a new Bill threatens to further blemish our human rights record. Alex Boxsell reports
AMENDMENTS PROPOSED to a Migration Bill presently before Federal Parliament have done nothing to assuage the fears of organisations that say it will violate human rights.
As Lawyers Weekly went to press this week, both the Public Interest Law Clearing House (PILCH) and the Human Rights Law Resource Centre (HRLRC) said the Migration Amendment (Designated Unauthorised Arrivals) Bill2006 has the potential to violate fundamental human rights and freedoms and would constitute a repudiation of Australia’s international human rights obligations.
Efforts to address criticisms in a report by the Senate Legal and Constitutional Committee by amending the original Bill are without substance, according to PILCH and HRLRC. They said that if the amended Bill were to be passed, then Australia would risk repudiating its international obligations under the Convention Relating to the Status of Refugees1951.
The Bill aims to transfer all those arriving on the Australian mainland by sea — without a visa — offshore, which will place Australia’s refugee determination system out of reach. The Minister will withhold the discretion to allow any person to remain in Australia and be processed accordingly.
PILCH said that nothing within the Bill guarantees that those who arrive by sea and are consequently moved offshore, if found to be a legitimate refugee, will be afforded the protection of Australian law. According to the organisation, no amendment could salvage what is essentially a fundamentally flawed piece of legislation.
“The Refugee Review Tribunal recently overturned the decision of the Department of Immigration not to afford protection to David Wainggai, who was the only West Papuan refugee from the group which arrived in January 2006 who was refused a visa,” said Michelle Panayi of PILCH.
“If the Bill had been passed, with the proposed amendments, David Wainggai would have had no legal recourse to challenge the decision of the Department of Immigration to refuse him a visa and would have faced indefinite detention offshore or forcible removal to West Papua.”
The Human Rights and Equal Opportunity Commission weighed in to the argument with reference to a recent decision of the UN Committee that Australia has once again breached its obligation to protect people from arbitrary imprisonment.
In D & E v Australia, the UN found Australia had for the fifth time since 1997 breached human rights in its use of mandatory detention. In the face of these rulings, Human Rights Commissioner Graeme Innes believes Australia “should be looking to improve the detention laws, not make it worse for people seeking our protection”.
“There is no question that, even with the changes proposed by the Prime Minister on 21 June 2006, the Migration Bill will mark a big backward step in Australia’s treatment of asylum seekers,” Innes said.
“Australia has an obligation to protect the human rights of every person sent to Nauru under Australian law, yet by sending them to a third country Australia loses the control to make sure that those rights are enforced.”
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