Commonwealth of Australia Explanatory Memoranda

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MIGRATION LEGISLATION AMENDMENT (THE BALI PROCESS) BILL 2012

    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
People smuggling, and its undesirable consequences including the resulting loss of
life at sea, are major regional problems that need to be addressed. These are
challenges that must be tackled in partnership with other countries. The Regional
Cooperation Framework, agreed to in March 2011 by delegates to the Fourth
Ministerial Conference of the Bali Process on People Smuggling, Trafficking in
Persons and Related Transnational Crime (the Bali Process), provides an opportunity
to do this. The proposed amendments to the Migration Act 1958 (Migration Act)
allow for the taking of asylum seekers arriving at excised offshore places to a
designated offshore assessment country (OAC), which is a Bali Process participant,
for the assessment of their claims.
Human rights implications
This Bill engages human rights relating to detention, use of force, non-refoulement
and family and children. These are considered below.
The Bill raises issues in relation to the freedom of movement (Article 12 of the
International Covenant on Civil and Political Rights (ICCPR)) and the expulsion of
aliens (Article 13 of the ICCPR). However, these obligations are not engaged as they
relate to rights for persons who are lawfully in a country and to the right to enter one's
own country. The affect of this Bill is upon people who are not lawfully in Australia
and where Australia is not identified as their own country.
Detention
The Bill proposes an amendment to subsection 189(3) of the Migration Act which
will remove the discretion to detain an offshore entry person (OEP) arriving at an
excised offshore place and make detention mandatory. This change will bring the
detention of unlawful non-citizens in excised offshore places in line with the detention
of those who are not in excised offshore places, reflecting what occurs in practice.
This is consistent with Government policy that generally all OEPs be detained for
identity, security and other relevant checks. Immigration detention for such reasons is
not considered to be arbitrary (Article 9(1) of the ICCPR) and offshore entry persons
can challenge the lawfulness of their detention in the High Court (Article 9(4)) of the
ICCPR) The detention of offshore entry persons pending them being taken to an OAC
is expected to be of a short duration. Such persons will be treated humanely in
accordance with Article 10 of the ICCPR, in line with current arrangements for
persons in immigration detention.
Use of force
The Bill contemplates the use of force by an officer to place an OEP on a vehicle or
vessel, to restrain, or remove them from Australia (subsection 198AD(3)). However
such force may only be that which is `necessary and reasonable'. It is not considered
that the application of reasonable and necessary force in compliance with this
provision would constitute `cruel, inhuman or degrading treatment' (Article 7 of the
ICCPR).
Non-refoulement and rights relating to families and children
In addition to the non-refoulement (non-return) obligations under the Refugees
Convention (which is not one of the treaties that this Statement is required to address),
Australia has an obligation to not forcibly send a person to a country where they are at
a real risk of the death penalty, arbitrary deprivation of life, torture, or cruel, inhuman
or degrading treatment or punishment (Article 6 and 7 of the ICCPR, Article 3 of the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT)) or to a country which would send the person to another country
where they face such a risk.
Australia also has an obligation to treat the best interests of the child as a primary
consideration in all actions concerning children (Article 3 of the Convention on the
Rights of the Child). In addition, Australia must not unlawfully or arbitrarily interfere
with the family (Articles 17 and 23 of the ICCPR).
A legislative scheme that provides for the taking of persons from Australia must
comply with these obligations. However, the legislation need not expressly guarantee
compliance, so long as the combination of legislation, policies, procedures and
practices allows Australia to comply with these obligations.
Subsection 198AB(1) of the Bill provides that the Minister may designate that a
country is an OAC. The only conditions for the exercise of the power under
subsection 198AB(1) is that the Minister thinks it is in the national interest to so
designate a country and that the country is a participant in the Bali Process. In
considering the national interest, the Minister must have regard to whether or not the
country had given any assurances about not returning persons covered by these
arrangements to a country where their life or freedom would be threatened for a
Refugees Convention reason, and about having an assessment process for Refugees
Convention claims.
Moreover, paragraph 198AB(5)(b) provides that the Minister may have regard to any
other matter which, in the opinion of the Minister, relates to the national interest. This
confers on the Minister a broad power to take into account other issues. These issues
can therefore include Australia's other non-refoulement obligations under Articles 6
and 7 of the ICCPR and Article 3 of the CAT. That is, this provision does not
preclude the consideration of international obligations as part of a 198AB(5)(b)
national interest consideration process and policies, practices and procedures can be
put in place to guide the Minister about these issues.
Consequently, this subsection is consistent with international obligations; however, as
indicated above, compliance with these international obligations ultimately requires
governments that make use of subsection 198AB(1) to adhere to the obligation in
practice.
Similarly, although the Bill does not provide a mechanism to permit an individual to
be exempted from the operation of the amendments, it does not preclude relevant
obligations being taken into account prior to the person being taken to an offshore
assessment country.
Conclusion
The Bill is compatible with human rights so long as policies, practices and procedures
are in place to ensure that relevant obligations are complied with in relation to the
taking of a person to a designated offshore assessment country.


                   Mr Robert Oakeshott            Member for Lyne