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.