The Joint Standing Committee on Migration of the Australian Parliament reported in February 1994 on Asylum, Border Control and Detention (not available online, but can be ordered ).

No reference has been made in Australia's Report to the fact that the Joint Standing Committee on Migration was not unanimous in its recommendations, and that there were two separate reports from members who made the following recommendations:

•  In his minority report, Senator Barney Cooney recommended that
  ...the courts should have a power to release people held in administrative detention under the Migration Act which is at least as extensive as the one they have to bail those held in custody after being charged with a criminal offence but before conviction (Asylum, Border Control and Detention at 197).

• In her dissenting report, Senator Christabel Chamarette recommended an end to the system of mandatory detention of unauthorised border arrivals, save for limited purposes of preliminary checks on identity, security and health (Asylum, Border Control and Detention at 212).

No reference has been made to the almost unanimous rejection of the Committee’s recommendations by non-government organisations. As was pointed out by the Refugee Council of Australia , the Committee received 96 submissions, of which 85 recommended that the policy of detention be changed, 3 gave no opinion as to whether the policy should change, and only 8 submissions supported the current policy (Refugee Council of Australia, Media Release 2/3/94: Detention Inquiry Report ).  However, the majority report adopted by the Committee recommended that current policy of detention be retained.

The Refugee Council of Australia, which is the peak umbrella organisation for refugee NGOs in Australia, also made the following comments:

In calling for submissions, the Committee Chairman challenged organisations and the public to have their views counted.  The resultant report, however, makes a mockery of his statements and will cause people to think seriously about putting the time and effort into preparing submissions for a parliamentary inquiry where there is the real possibility that their views will be ignored...

Asylum Border Control and Detention is very much that which was expected of it: a conservative report recommending some cosmetic changes but essentially supporting the status quo.  It does nothing to further debate and offers little in the way of substance. Nor does [it] alleviate the concerns of those who made submissions to the Inquiry because by treading a cautious middle ground, it satisfies neither the vast majority who called for major changes nor the small minority who advocated more restrictive policies (Refugee Council of Australia, Asylum Border Control and Detention: RCOA Response to the Report, March 1994 ).
 

Finally, the recommendations of the Joint Standing Committee are now very much open to question, given the findings of the UN Human Rights Committee in the Communication of A (name deleted) v Australia (Communication No. 560/1993; Human Rights Committee, Fifty-ninth session, 24 March - 11 April 1997, UN Doc CPR/C/59/D/560/1993 dated 30 April 1993).

While the legislation under consideration in A’s case pre-dated the deliberations of the Joint Standing Committee, the recommendations - and the amendments to the Migration Act 1958 (Cth) enacted as a result of the Committee’s Report - are inconsistent with the findings of the Human Rights Committee on the following grounds:

(i) There is no requirement that the detaining authorities provide justification of the decision to detain an asylum seeker in each  individual case.

(ii) There is no provision for regular, effective review by the courts of the decision to detain an asylum seeker.

It is suggested that it is simply not appropriate to use as an example of a mechanism of public scrutiny the recommendations of a Committee which have almost unanimously been rejected by the NGO sector and which are demonstrably inconsistent with international human rights law as established by independent international scrutiny. For this reason, it is suggested that paragraph 16 be deleted from the Report.
 

COMMENTS ON PARAGRAPHS 43-47 (Refoulement)

 The reference in paragraph 46 to humanitarian visas granted to persons outside Australia is irrelevant to the issue of refoulement and non-refoulement which, by definition, requires that a person be within Australia before the obligation arises. It is suggested that this paragraph be deleted.

 The Attorney-General’s attention is drawn to a number of substantive issues relating to Australia’s obligation of non-refoulement which will be raised in a separate NGO submission to the Committee Against Torture. These will include:

1. The introduction of provisions in the Migration Act which deny certain groups of asylum seekers any right to apply for refugee status in Australia, e.g., all non-citizens “covered” by the Comprehensive Plan of Action, and all non-citizens for whom there is a “safe third country” (See Migration Legislation Amendment Bill (No 4) 1994 ).

2. The increasing difficulties which are faced by those asylum seekers who are eligible to apply for refugee status in gaining access to the determination process, such as detention in isolated centres, incommunicado detention and lack of access to lawyers, time restrictions on the lodgement of applications, lack of access to effective judicial review of decisions, and lack of access to health and welfare benefits during the determination process.

3. The increasing evidence that large groups of genuine asylum seekers are being summarily deported from Australia despite having made it clear that they are seeking protection in Australia - eg., the deportation of Irian Jayan asylum seekers to Paua New Guinea in January 1998. ("Irian Jayans deported to PNG”, The Weekend Australian, January 10-11 1998 at 6)

There has been some concern in the NGO sector as to the effect of the passing of responsibility for security and welfare in detention centres from Government organisations to Australasian Correctional Management Pty Ltd. While it is too early to make any substantive comment on this, it is a matter which will be monitored with a view to later comment by NGOs.

In relation to part five and, in particular, paragraphs 102-105, attention is again drawn to a number of issues relating to procedural guarantees which are either lacking or under threat, which will be developed in a separate NGO submission. These include:

1. The practice of holding some groups of detainees in immigration detention centres - mainly unlawful non-citizens - in prolonged incommunicado detention. This practice is clearly in breach of the Torture Convention.

2. The refusal of immigration officials to advise detainees in immigration detention centres of their right to request legal advice.

3. Other difficulties faced by detainees in immigration detention centres who wish to obtain legal assistance, including restrictions on the choice of legal adviser and lack of funding for legal advice.

4. The events surrounding the introduction into Parliament of Migration Legislation Amendment Bill (No 2) 1996 and the accompanying threat to prevent the Human Rights and Equal Opportunity Commission and the Commonwealth Ombudsman from initiating contact with detainees in immigration detention centres.

Australian Lawyers for Human Rights Inc.
Immigration Sub-Committee

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This page last updated 4th May 2004