Submission: Necessity and proportionality must guide assessment as to whether counter-terrorism powers remain appropriate

The HRLC has made a submission to the Council of Australian Governments (COAG) on its review and evaluation of the operation, effectiveness and implications of Australia’s counter-terrorism legislation. The submission addresses specific aspects of COAG’s terms of reference that impact on individuals’ rights and raise concerns about Australia’s compliance with international human rights obligations under relevant treaties to which Australia is a party, namely:

  • provisions of the Criminal Code Act 1995 (Cth) relating to the broad application of counter-terrorism laws, such as the definition of terrorist acts and terrorism related activity;
  • provisions of the Criminal Code Act 1995 (Cth) relating to control orders and preventative detention orders;
  • provisions of the Crimes Act 1914 (Cth) (Crimes Act) relating to police powers; and
  • the impacts of counter-terrorism legislation.

Further details about the COAG review is available at www.coagctreview.gov.au.

Submission to the Independent National Security Legislation Monitor

The HRLC has made a submission to the Independent National Security Legislation Monitor on aspects of Australia’s counter-terrorism laws. In preparing his next annual report, the Independent Monitor is seeking public submissions on the powers relating to:

  • questioning warrants and questioning and detention warrants under the Australian Security Intelligence Organisation Act 1979 (Cth); and
  • control orders and preventative detention orders under the Criminal Code Act 1995 (Cth).

The HRLC's submission highlights that:

  • the protection of Australia from threats to national security and the protection and promotion of human rights are complementary goals that are both fundamentally concerned with protecting the community and individuals from harm;
  • there will be instances where human rights need to be limited to some extent for the purpose of protecting national security and countering terrorism. However, limitations on relevant human rights are only permissible where such limitations are absolutely necessary and are proportionate and rationally connected to the threat posed; and
  • the State bears the onus of establishing that a limitation is reasonable and demonstrably justified. The more serious the infringement of rights, the higher the standard of proof required. There must be clear, cogent and persuasive evidence in order to demonstrably justify a human rights infringement.

The extraordinary nature of the powers associated with questioning warrants, control orders and preventative detention orders requires a corresponding level of procedural safeguards to ensure that such powers are not misused.

 

About the Independent National Security Legislation Monitor

The Independent Monitor’s role is to review the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation on an ongoing basis. This includes considering whether the laws remain necessary, contain appropriate safeguards for protecting the rights of individuals, and remain proportionate to any threat of terrorism or threat to national security.

The Independent Monitor’s first annual report was provided to the Prime Minister on 16 December 2011 and tabled in Parliament on 19 March 2012.

The INSLM’s next annual report is required to be provided to the Prime Minister by no later than 31 December 2012.

For further information visit http://www.dpmc.gov.au/inslm/.

 

Coalition policy on Sri Lankan asylum seekers would violate international law

On 2 September 2012, the Coalition announced that, if elected, it would to pursue a bilateral treaty with Sri Lanka to provide for the return of  asylum seekers intercepted at sea without assessing or determining their refugee claims. In a letter to the Deputy Leader of the Opposition, the Hon Julie Bishop MP, the HRLC said that such a treaty:

  • would expose at least some asylum seekers to a real risk of torture, persecution or other flagrant human rights violations and therefore violate Australia’s non-refoulement obligations under international law;
  • would be incompatible with the Convention on the Elimination of Racial Discrimination and Australia’s own Racial Discrimination Act;
  • is not supported by credible evidence which shows that arbitrary arrests, detention, disappearances and even torture and extrajudicial killings remain widespread in Sri Lanka; and
  • is not supported by the rate at which asylum seekers from Sri Lanka are currently accepted to have valid refugee claims by Australia.

While it is important that Australia takes appropriate steps and measures to counter and prevent people-smuggling, such measures must be compatible with international law and should seek to protect asylum seekers, not interfere with their right to seek asylum. They should never compound or expose people to further human rights dangers.

In the HRLC's view,  the Coalition should resile from its announcement that it will pursue a bilateral asylum seeker returns treaty with Sri Lanka. Instead, consistent with a commitment to good international citizenship and respect for Australia’s international legal obligations, the Coalition should develop a policy to:

  1. substantially increase our offshore refugee intake from Sri Lanka and support the UN refugee agency to process and resettle people much more rapidly from the country and region;
  2. ensure that human rights concerns and safeguards are paramount in any security, intelligence, and migration cooperation with Sri Lanka; and
  3. suspend the deportation of any Tamil asylum seekers to Sri Lanka unless and until there is significant progress in reducing human rights violations and strengthening human rights accountability in that country.

 

Submission: National security proposals must comply with human rights

The HRLC has made a submission to the Joint Parliamentary Committee on Intelligence and Security in relation to its inquiry into potential reforms of Australia’s national security legislation. The Committee has been asked to examine a package of national security proposals relating to telecommunications interception, record-keeping and related powers. The HRLC is concerned that many of the mooted reforms to national security legislation raise issues of compliance with Australia’s international human rights obligations. The HRLC’s submission:

  • provides an overview of Australia’s international legal obligations and those human rights principles most relevant to the proposed reforms;
  • addresses a number of the specific proposals contained in the Government’s Discussion Paper; and
  • briefly considers similar proposals in other jurisdictions, including the United Kingdom and the European Union.

Further details about the Committee’s inquiry, including the Attorney-General’s Discussion Paper on the proposals, is available online here.

War Crimes, Human Rights, Media Freedom and International Responsibility

Journalists in Sri Lanka risk life and limb to practice their profession. Lasantha Wickrematunge was one of these champions. He was gunned down by eight men in broad daylight in the capital, Colombo. The Human Rights Law Centre, the Australian Tamil Congress and the Medical Association for the Prevention of War are pleased to present

"War Crimes, Human Rights, Media Freedom and International Responsibility"

The forum is supported by Melbourne Law School.

Date: 6.15pm on Thursday, 6 September 2012

Venue: G08 Theatre, Melbourne Law School, 185 Pelham Street, Carlton

The forum will include the screening of award winning documentary "Silenced Voices: Tales of Sri Lankan Journalists in Exile", produced by Norwegian journalist and director Beate Arnestead. The documentary was recently premiered at the Human Rights Watch Film Festival in Geneva and New York.

A panel discussion will follow featuring human rights law experts from the University of Melbourne and Monash University, the film director and two witnesses to the war crimes and crimes against humanity perpetrated in Sri Lanka.

Please RSVP to admin@australiantamilcongress.com by 27 August 2012.

Parliamentary Joint Committee on Human Rights should urgently review offshore processing law

The Human Rights Law Centre has called on the Parliamentary Joint Committee on Human Rights to conduct an urgent inquiry into Australia's new offshore processing laws. The Regional Processing Act, which provides for asylum seekers arriving by boat in Australia, including unaccompanied children, to be taken to a third country for processing, raises serious issues as to Australia’s compliance with international human rights treaties.

"A Parliamentary Joint Committee inquiry could play a constructive role in identifying the human rights risks associated with the Regional Processing Act and contribute to ensuring that such risks are monitored and mitigated," said Phil Lynch of the Human Rights Law Centre.

"It could also make recommendations as to the human rights safeguards and protections to be included in any amendments to the Act or further legislation designed to give effect to the recommendations of the Expert Panel on Asylum Seekers."

The Bill for the Regional Processing Act was not accompanied by a Statement of Compatibility under section 8 of the Human Rights (Parliamentary Scrutiny) Act.

"In our view, the failure to produce a Statement of Compatibility was based on an unduly narrow interpretation of the Human Rights (Parliamentary Scrutiny) Act and undermined the purpose of that Act to promote and protect human rights by ensuring that they are properly considered in the development and enactment of law," said Mr Lynch.

In a letter to the Committee Chair, Harry Jenkins MP, the HRLC said that, putting to one side the threshold issue as to whether a system of offshore processing for boat arrivals can ever be compatible with human rights, the Regional Processing Act breaches Australia’s international human rights obligations in at least the following ways:

  • It enables the government of the day to designate any country as a regional processing country, regardless of the human rights protections afforded in that country either under international or domestic law. This is likely to give rise to violations of Australia’s non-refoulement obligations under the Refugee Convention, the International Covenant on Civil and Political Rights and the Convention against Torture, all of which have been ratified by Australia.
  • The Act provides for the removal of unaccompanied children to a regional processing country for a range of reasons considered to be in the ‘national interest’, contrary to the general obligation under the Convention on the Rights of the Child to ensure that the best interests of the child are given primary consideration and the specific obligation to ensure that asylum seeker children receive all necessary human rights protections and humanitarian assistance.
  • The Act provides that the rules of natural justice do not apply to a range of Ministerial decisions, including decisions as to which countries should be designated as regional processing countries, whether an asylum seeker should be sent offshore, and which regional processing country an asylum seeker should be sent to. This directly breaches Australia’s obligations under the ICCPR to ensure that, in the determination of rights and obligations, a person must have access to the courts and is entitled to a full and fair hearing.
  • The Act does not provide for any time limit on detention or for any review of detention, in breach of the right to freedom from arbitrary detention under article 9 of the ICCPR. In accordance with the Government’s so-called ‘no advantage’ policy, this means that people are likely to be detained for periods of 5 years and more without any review or remedy.
  • Based on evidence and past experience, it is highly likely that such prolonged, indefinite detention in remote locations will result in serious physical and mental harm, in breach of Australia’s obligations under the ICCPR, the Convention on the Rights of the Child and the International Covenant on Economic, Social and Cultural Rights.

"It is notable and deeply concerning that while the Government and Opposition have expeditiously enshrined most of the Expert Panel’s deterrent or punitive recommendations in law, they have so far failed to enshrine a single one of the safeguards or protections recommended by the Panel in law," concluded Mr Lynch.

In addition to requesting an urgent parliamentary inquiry, the HRLC has also prepared a statement on offshore processing to be presented to the UN Human Rights Council in September, ensuring that the world’s eyes remain focused on Australia’s human rights record in this area.

Review of Australia's Compliance with the ICCPR

The Human Rights Law Centre has made a submission to the UN Human Rights Committee ahead of its next review of Australia's compliance with the International Covenant on Civil and Political Rights. The HRLC submission sets out a number of issues which we recommend the Committee should consider in its development of its List of Issues Prior to Reporting, including:

  • Australia's constitutional and legal framework for the protection of human rights;
  • equality and non-discrimination laws;
  • counter-terrorism measures;
  • the rights of Aboriginal and Torres Strait Islander peoples;
  • violence against women;
  • refugees and asylum seekers;
  • prisoners' rights;
  • policing and use of force; and
  • foreign policy and extra-territorial obligations.

In relation to each of these areas, the HRLC's submission addresses previous Concluding Observations made by the Committee, significant developments in relation to the issue since the Committee’s last review in 2009, and proposed questions for the List of Issues.

A HRLC media release about this submission can be found here.

About the Review

Since Australia was last reviewed in 2009, the Committee has developed a new optional process for the review of states known as the List of Issues Prior to Reporting (LOIPR). Australia has opted into this process and the key steps are:

  • The HRC develops a LOIPR on the basis of previous Concluding Observations and information provided by OHCHR, the UPR, Special Procedures, NGOs and NHRIs. The LOIPR on Australia is scheduled to be adopted by the HRC at its 106th session in Geneva in Oct/Nov 2012.
  • Australia submits its report in response to the LOIPR by 1 April 2013.
  • Australia is scheduled for review by the Human Rights Committee, most probably in 2014.

Further information about the List of Issues Prior to Reporting process is available at http://www2.ohchr.org/english/bodies/hrc/loipr.htm.

Further information about Australia's review by the Human Rights Committee is available at http://www2.ohchr.org/english/bodies/hrc/sessions.htm.

 

Governments must take action to strengthen UN human rights treaty body system

On 24 February 2012, the United Nations General Assembly adopted Resolution 66/254 entitled: “Inter-governmental process of the General Assembly on Strengthening and Enhancing the Effective Functioning of the Human Rights Treaty Body System”. The resolution recognizes the important, valuable and unique role and contribution of the treaty bodies to the promotion and protection of human rights. It mandates the President of the GA to launch an open-ended inter-governmental process to conduct open, transparent and inclusive negotiations on how to strengthen and enhance the effective functioning of the UN treaty body system.

The adoption of GA Resolution 66/254 has happened at a time when States Parties and other stakeholders in the treaty body system have been participating in a consultation process that was launched by the High Commissioner for Human Rights in September 2009 – the so-called “Dublin Process”. Those multi-stakeholder consultations have resulted in rich and varied proposals, many of which reflect the complementary and mutually reinforcing nature of different treaty body activities. It is critical that the inter-governmental process now builds on those recommendations.

A Briefing Paper on the effective participation of NGOs in the intergovernmental process,  which was endorsed by 24 leading human rights NGOs, including the HRLC, was issued on 9 March 2012.

On 12 April 2012, a further Briefing Paper was issued by 26 leading NGOs that regularly contribute to the work of the treaty bodies and that firmly believe that the treaty body system requires strengthening to improve its effectiveness. The paper sets out seven key areas in which action should be taken through the inter-governmental process to enhance the treaty bodies, improve the fulfilment of States Parties’ obligations and strengthen the capacity of rights-holders to enjoy their human rights.

On 30 July 2012, the HRLC made  a further submission to the General Assembly on treaty body strengthening.

The HRLC's engagement with the inter-governmental process complements and builds on our work with the UN High Commissioner for Human Rights and other NGOs to strengthen the UN human rights treaty body system. See: http://www.hrlc.org.au/content/topics/international-human-rights-mechanisms/strengthening-access-to-remedies-for-violations-of-international-human-rights-21-oct-2011/

Major Joint Submission to Expert Panel on Asylum Seekers

A leading group of non-government organisations and experts in the refugee and asylum seeker sector, including the Human Rights Law Centre, has made a major submission to the Government's Expert Panel on Asylum Seekers. The group recognises and accepts the need to reduce the number of people risking their lives on precarious sea journeys to Australia. However, we know from experience that the current policies, based on deterrence, don’t work. The terror in which refugees flee cannot be matched by anything we do. Our focus is on humanitarian policy options that are effective, sustainable, responsive and consistent with Australia’s international obligations.

Unlike our political leaders we don’t pretend that any one approach will “stop the boats”. Nor do we support the view that domestic policies alone will impact on irregular movement. We believe instead that we need to shift our policy objective to focus on:

  • substantially reducing, at source, the incentive for asylum seekers to engage people smuggling networks and make dangerous boat journeys to Australia;
  • improving protections for asylum seekers in our region; and
  • ensuring Australia fulfills its international human rights obligations.

Current policy options will not work

We do not support any of the policy options currently before Parliament. This is because we believe they are harsh, unjust and contrary to our international obligations. Furthermore, the current policy approaches, outlined below, will not achieve their stated aim to reduce asylum seekers seeking out people smugglers and travelling to Australia by boat.

Return to the ‘Pacific Solution’

Re-opening a Detention Centre on Nauru or Manus Island will not be an effective deterrent to asylum seekers seeking to come to Australia on boats. It is well known that the majority of asylum seekers formerly processed in Nauru and Manus Islandwere resettled in Australia or New Zealand. The United Nations High Commissioner for Refugees (UNHCR) welcomed the closure of the Nauru Offshore Processing Centre in 2008.

Return to Temporary Protection Visas

Temporary Protection Visas (TPVs) did not deter boat arrivals when they were first introduced and will not be an effective deterrent now. It is well known that vast majority of people granted TPVs were subsequently granted a permanent protection visa. Because TPVs did not provide family reunification rights, greater numbers of women and children were encouraged to take boats to Australia.

Turning boats around

Turning boats around is difficult and dangerous, putting both asylum seekers and border security personnel in danger and leading to more deaths at sea. Turning boats around and sending them back to their point of departure or a third party country is not constructive. Indonesia has repeatedly indicated that turning boats back is unacceptable.

Malaysia Arrangement

The Malaysia Arrangement is not a long-term or even medium-term solution. Malaysia has a well documented history of ill-treatment towards asylum seekers and refugees and the Malaysia Arrangement undermines compliance withAustralia’s international law obligations. Many operational aspects of the Arrangement are insufficient and the proposed management of unaccompanied minors remains unclear.

Alternate Policy Options

Irregular migration is an international issue which cannot be solved by one country acting in isolation. As has successfully occurred in the past, Australia must work with our regional neighbours to encourage the protection and orderly management of irregular migrants in our region.

We recommend focusing on long term and medium solutions within our region, in addition to making immediate changes to Australia’s approach to asylum seekers.

Immediate initiatives:

Immediate initiatives should focus on measures to provide greater incentive for asylum seekers to utilise orderly migration procedures, rather than seek out the services of people smugglers, and to enhance maritime rescue operations to avert loss of life at sea. Immediate recommendations include:

  • Doubling Australia’s annual humanitarian intake, to offer additional places for vulnerable refugees within the region and to target programs in key source countries.
  • Encouraging other governments to increase their commitment to resettlement.
  • Increasing resources to UNHCR in our region.
  • Increasing regional cooperation to avert loss of life at sea.

Medium term strategies:

Medium term strategies are practical suggestions which the Government should adopt to demonstrate its commitment to a regional approach to asylum seeker and refugee issues. These include:

  • Assisting regional neighbours to create conditions of safety for asylum seekers while their protection claims are assessed in a timely manner.
  • Reviewing the current composition of Australia’s refugee and humanitarian program.
  • Promoting accession to the Refugee Convention within our region.

Long term and sustainable regional framework:

Sustained and genuine long term commitment is required to build a regional protection framework. The Bali Process’ Regional Cooperation Framework offers a suitable platform for these efforts and the Australian Government should work to enhance the protection elements which underpin it.

To understand how to stop people getting on boats, we need to understand what drives people to risk their lives at sea. People get on boats because they have no other choice. As a group representative of people working directly with asylum seekers, we have been told time and time again by people on the ground who are going through the process in Malaysia and Indonesia, that boats are the only option compared to imprisonment, torture and persecution: "I would rather die seeking freedom, than at the hands of my oppressors".

These policy options are supported by the asylum seeker and refugee sector, ensure we meet our international obligations, are practical to implement on the ground in Australia and our region and, most importantly, will save lives at sea.

We have come together as group to present these solutions for consideration by the Expert Panel to ensure, above else, the protection of asylum seekers by Australia as a proud signatory of the Refugee Convention.

Signed:

Human Rights Law Centre

Amnesty International

Asylum Seeker Resource Centre

GetUp!

Refugee Council of Australia

Welcome to Australia

ChilOut

Brigidine Asylum Seekers Project

The Hon Malcolm Fraser AC CH

HRLC Submission to Expert Panel on Asylum Seekers

On 16 July 2012, the HRLC made a submission to the Expert Panel on Asylum Seekers, established by the Government to inquire into "the best way forward for Australia to prevent asylum seekers risking their lives on dangerous boat journeys to Australia". The HRLC is concerned that several policies proposed by the Government and the Coalition breach Australia’s international human rights obligations.

Australia’s non-refoulment obligations prohibit the transfer of asylum seekers to third countries where they face human rights violations. In the HRLC’s view, both the ‘Malaysia Solution’ (where asylum seekers are not protected against being returned to the country from which they fled) and the proposal to send asylum seekers to Nauru (where they would face extended detention) breach this prohibition.

The HRLC’s submission also highlights that international law prevents Australia from  imposing penalties on refugees on account of their ‘illegal’ entry or discriminating against asylum seekers on the basis of their nationality. Policies which operate punitively against boat arrivals or impac disproportionately on asylum seekers from particular countries may breach the requirement to perform these legal obligations in good faith.

The HRLC’s submission also emphasises that any policy involving the detention of children or their transfer to third countries to which they have no ties would fall foul of Australia’s human rights obligations under the Convention on the Rights of the Child.

The HRLC submission recommends thatAustralia increase its humanitarian intake and provide additional resources for the UN refugee agency, UNHCR, to process and resettle asylum seekers in the region. Such policies would help relieve more asylum seekers of the need to pursue riskier options for seeking protection.

The HRLC’s Rachel Ball urged the Expert Panel to recognise that “asylum seekers do not want to make the dangerous boat journey to Australia. People get on boats as a last resort. Many of these people have fled torture, ill-treatment and persecution in their home countries.”

Ms Ball said “As a wealthy, secure country with a bipartisan commitment to good international citizenship, we have an ethical and legal obligation to treat these people humanely and to provide them with refuge and protection.”

The Expert Panel has been asked to provide advice to the Prime Minister and the Minister for Immigration and Citizenship prior to the start of the next Parliamentary sitting period in August 2012.

National Children's Commissioner Bill should be prioritised and passed

On 28 May 2012, the HRLC made a submission to the Senate Legal and Constitutional Affairs Committee inquiry into the Australian Human Rights Commission Amendment (National Children's Commissioner) Bill 2012. The HRLC warmly welcomes the introduction and strongly supports the enactment of the Bill.

The establishment of a National Children’s Commissioner will help to promote and protect the human rights of children and young people and ensure that the best interests of children are taken into account in the development and review of national law and policy. In so doing, it will be an important institutional mechanism contributing to the domestic implementation ofAustralia’s international human rights obligations, particularly those arising under the Convention on the Rights of the Child.

An HRLC media release made following the announcement of the proposed Bill on 29 April 2012 is available here.

Children's rights: Submission to inquiry into detention of Indonesian minors in Australia

On 25 May 2012, the HRLC made a submission to the Senate Legal and Constitutional Affairs Committee inquiry into the detention of Indonesian minors in Australia. The HRLC submission examines the human rights implications of the pre-charge detention of individuals suspected of people smuggling. It focuses, in particular, on circumstances where the detention is authorised by the operation of a Criminal Justice Stay Certificate.

The HRLC has identified the following concerns in relation to pre-charge detention of suspected people smugglers, including children:

  • under the Migration Act 1958 (Cth), the Commonwealth has open-ended powers to detain persons suspected of people smuggling offences and, consequently, individuals may be arbitrarily detained for prolonged and indefinite periods of time;
  • the Australian Federal Police have given evidence before the Senate Estimates Committee that the average time spent in detention prior to charge for alleged crew of people smuggling ventures is 161 days;
  • judicial review in these circumstances is restricted and suspects are not guaranteed legal assistance or representation for the purposes of challenging the lawfulness of their detention; and
  • the detention of children, including in adult immigration facilities, gives rise to particularly grave concerns.

The HLRC considers that, in these circumstances, detention may violate Australia’s international legal obligations under the International Covenant on Civil Political Rights and, in the case of minors, the UN Convention on the Rights of the Child.