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STATEMENT OF COMPATIBILITY FOR A BILL OR LEGISLATIVE INSTRUMENT THAT RAISES
HUMAN RIGHTS ISSUES
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011
Migration Legislation Amendment (The Bali Process) Bill 2012
This Bill is compatible 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.
Overview of the Bill
The proposed amendments to the Immigration (Guardianship of Children) Act
1946 (IGOC Act) seek to remove the requirement for the Minister for
Immigration and Citizenship to consent to the removal, taking or
deportation from Australia (in accordance with a power in the Migration Act
1958) of a non-citizen child covered by the IGOC Act. Currently, under the
IGOC Act, the Minister for Immigration and Citizenship cannot consent to
the removal, taking or deportation of a non-citizen child covered by the
IGOC Act from Australia in circumstances where it would be prejudicial to
the interests of the non-citizen child.
Human rights implications
The Bill engages human rights such as the best interests of the child under
the Convention on the Rights of the Child (CROC), family rights under the
International Covenant on Civil and Political Rights (ICCPR) and rights
relating to the expulsion of aliens under the ICCPR.
However, the existing legislation provides a higher level of protection of
these rights than is required by Australia's obligations under the CROC and
ICCPR. For example, the CROC requires that the best interests of the child
be treated as a primary consideration in all actions concerning children
but the existing legislation treats the best interests of the child as the
paramount consideration.
Similarly, the current legislation may give considerations of family unity
more weight than required under Articles 17 and 23 of the ICCPR. However,
so long as Australia meets these obligations in other ways, such as through
administrative practices, the removal of the existing legislative
requirement does not limit the rights that are engaged.
Similarly, the Bill engages rights relating to the expulsion of aliens in
that it removes an impediment to the removal of unlawful non-citizen
children covered by the IGOC Act from Australia. However, it does not
affect the laws regulating expulsion of aliens in the Migration Act 1958
and these laws will apply to non-citizen children covered by the IGOC Act
in the same way as they apply to all other non-citizens.
Conclusion
The Bill is compatible with human rights because, to the extent that it
engages human rights and seeks to limit the level of protection currently
offered under existing legislation, it does not limit those rights as they
may be considered through administrative practices.
Mr Robert Oakeshott Member for Lyne