Threatened with the possibility of prosecutions over crimes that have taken place at refugee detention centres, the Australian Government, led by Tony Abbott, has taken the unprecedented and extraordinary step of doing what every dictator in the world does when under siege: declare unlawful activity (in this case, in regard to the detention of refugees) as lawful. The Migration Amendment (Regional Processing Arrangements) Bill 2015 – an amendment to the 1958 Migration Act – is currently being rushed through the Australian Parliament. Quite simply, this is fortress politics, blocking off any loophole through which the Government’s alleged criminal and/or illegal activities can be revealed and thus prosecuted.
“The Government repeatedly assures the Australian people it is acting legally. A Government confident its actions are lawful doesn’t suddenly change the law when its actions are challenged in court,” said the Human Rights Law Centre’s Director of Legal Advocacy, Daniel Webb.
Note: the apparent reason for rushing through this law was because the Human Rights Law Centre (HRLC) had lodged a case in the High Court on behalf of a group of asylum seekers and their families.; the government was reportedly concerned the High Court might rule against it before Parliament returned after the winter recess. (For more on this, see article in New Matilda.)
UPDATE: the Amendment to the Act was passed in Parliament on Thursday 25 June with the support of the Labor opposition. By forcing through this amendment the Government has admitted that its offshore refugee detention policy was (is?) illegal – AND WAS ALWAYS ILLEGAL – and so subject to challenge in the courts. Despite the passing of the Amendment, we understand that the legal challenge to the Government by the HRLC will still proceed and is scheduled to be heard later this year.
Here is the amendment to the 1958 Migration Act. The most relevant section is shown in the image below (check the wording).
The Explanatory Notes (that accompany the Amendment) shows how the legislation will be retrospective and backdated to August 2012 – which is why this amendment was endorsed by the Labor opposition (to protect their own misdeeds):
“Table item 2 ensures that the amendments in Schedule 1 to the Bill operate retrospectively from 18 August 2012, which is the date of commencement of the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (the Regional Processing Act). The Regional Processing Act replaced the previous framework in the Migration Act for transferring unauthorised maritime arrivals to another country for an assessment of their claims to be refugees.” and “The retrospective operation of these amendments is to put beyond doubt the Commonwealth’s authority to take, or cause to be taken, actions in relation to regional processing arrangements or the regional processing functions of a country, and associated Commonwealth expenditure, from the date of commencement of the Regional Processing Act. The retrospective operation of these provisions will provide authority for all activity undertaken in relation to regional processing arrangements for the entire period these arrangements have been in place.”
In an Attachment that accompanies the Amendment it is stated:
“This Bill does not engage with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011…” And…
“The Australian Government’s long-standing view is that Australia’s human rights obligations are essentially territorial. Persons in regional processing countries are outside Australia’s territory. Australia has accepted that there may be exceptional circumstances in which the rights and freedoms set out under the ICCPR may apply to persons beyond the territory of a State party, and the extent of the obligations that a State may owe under international human rights law where it is operating extraterritorially will be informed by the degree of control exercised by the State. The Government’s position is that Australia does not exercise the degree of control necessary in regional processing countries to enliven Australia’s international obligations.”
Consequences of this new legislation:
1. Currently the Senate Inquiry into abuse at offshore refugee detention centres has seen a raft of serious allegations of abuse being submitted by professionals – care workers, doctors, etc. The amended legislation may mean that anyone accused of such abuse either over the last three years – or in the future – could escape prosecution for their alleged crimes.
Abuse heard by the Senate Inquiry includes:
- Charlotte Wilson, the former Save the Children case manager at Nauru detention centre, testified how security guards employed by Wilson Security paid for and taped sex with refugees.
- a written statement from Dr Young (downloadable in pdf format) confirming that child sex abuse had taken place at Nauru detention centre and that the Department of Immigration and Border Protection was aware of this but did nothing to alleviate the problem.
- a detailed submission by Kirsty Diallo.
- testimony by former Wilson Security employee – click here (pdf).
- testimony by former Save the Children Australia senior social worker Viktoria Vibhakar – click here (pdf).
2. The amendment to the legislation should also be seen alongside the new Border Force Act legislation, which makes it a criminal offence for detention centre workers, including health and social care professionals, to report abuse (see Appendix A below).
3. The Amendment makes it clear that Australia will not accept responsibility for any infringements of human rights under international legislation, as according to the Amendment the offshore centres do not come under Australian jurisdiction. (However, this can still be subject to challenge as the detention centres – including their management – are resourced directly by the Australian Government.)
4. Assuming a legal challenge to this new legislation in the High Court fails, the only other legal recourse available against abuse at the offshore detention centres will be via the international courts (see Appendix B below).
A. Reporting restrictions
Under the heading of “secrecy and disclosure provisions“, the new Border Force Act states that releasing information to anyone is only permitted by the secretary of the department responsible for detention centres. “Under the proposed measures, the unauthorised disclosures of information, including personal information will be punishable by imprisonment for two years”.
As well as Border Protection staff, professionals who work at the detention centres, as well as employees of Transfield, the company that runs the centres, and employees of Wilson Security, which organises security at the centres, may all be required to adhere to the oath that forms part of the Act.
B. Note re international treaties/obligations
According to Juan Mendez, the UN Rapporteur on Torture, “The government of Australia, by failing to provide adequate detention conditions; end the practice of detention of children; and put a stop to the escalating violence and tension at the regional processing centre, has violated the right of the asylum seekers including children to be free from torture or cruel, inhuman or degrading treatment… The Migration and Maritime Powers Legislation Amendment… violates the Convention Against Torture (CAT) because it allows for the arbitrary detention and refugee determination at sea, without access to lawyers. The Migration Amendment (Character and General Visa Cancellation Bill) violates the CAT because it tightens control on the issuance of visas on the basis of character and risk assessments.”
In an article by Dr Michael Gliksman in Australian Medicine (journal of the Australian Medical Association) he states: “The Australian Government is obliged, as a signatory to the UN Convention Relating to the Status of Refugees, to provide the same standard of health care to detainees as is available to the general population. There can be little doubt Australia is in breach of that Convention.”
The Australian Government has obligations under various international treaties to ensure that the human rights of refugees and asylum-seekers are respected and protected. These treaties include the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CRC). These rights include the right not to be arbitrarily detained. Australia also has obligations not to return people who face a real risk of violation of certain human rights under the ICCPR, the CAT and the CRC, and not to send people to third countries where they would face a real risk of violation of their human rights under these instruments. These obligations also apply to people who have not been found to be refugees.