Diesel, Nadja --- "Refugee Week Shame" [1996] HRightsDef 25; (1996) Human Rights Defender

Refugee Week Shame

By Nadja Diesel

This year's Refugee Week (23-29 June 1996) invited all Australians to "help make the connection" with refugees by celebrating their contribution to Australian society. On the same night that Refugee Week was launched at the National Press Club in Canberra, the Government introduced the Migration Legislation Amendment Bill (No. 2) 1996 (the Bill) into Parliament. It was inauspicious timing on the part of the Government to choose that particular week to initiate legislation that seeks to turn back the clock on the rights of people seeking asylum in Australia. Despite the urgency given to the Bill, it did not secure passage through the Senate during the Autumn Session. The Government appears committed, however, to reintroducing the Bill during the Budget Session of Parliament in September.

The Bill seeks to achieve two things. First, to remove the right of a person in immigration detention to receive unsolicited communications from the Human Rights and Equal Opportunity Commission (the Commission) and the Commonwealth Ombudsman (Ombudsman). Section 20(6)(b) of the Human Rights and Equal Opportunity Act (HREOC Act) and s 7(3)(b) of the Ombudsman Act provide for the delivery of sealed correspondence to people in civil or criminal detention for the purposes of investigating allegations of human rights abuses.

Second, the Bill seeks to ensure that neither the Minister nor his Department is obligated to assist a person in immigration detention to apply for refugee status unless a request is made in specific terms.

The Bill offends a number of provisions in international instruments to which Australia is a party. The International Covenant on Civil and Political Rights (ICCPR), for example, recognises a number of rights which are overridden by the Bill. These include the right to challenge the lawfulness of detention (article 9(3)), the right to be treated humanely (article 10), the right to be represented in challenging a deportation order (article 13), the right to legal advice and representation (article 14(3)(d)), and the right to receive communications (article 17).

The proposed amendments also breach provisions clearly set out in the Convention Relating to the Status of Refugees (articles 16 and 32), the Standard Minimum Rules for the Treatment of Prisoners (rules 36(3), 37) and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (principles 7(1), 13, 15, 17, 18 and 33).

Legislative Response to Federal Court Ruling

The Bill is the latest in a trend in the area of immigration and refugee law to legislatively reverse court rulings, a trend which reflects contempt for the courts' role in ensuring the basic application of the rule of law in Australia.

The proposed amendments are a direct response to the Federal Court ruling in Human Rights and Equal Opportunity Commission and anor v Secretary of the Department of Immigration and Multicultural Affairs (unreported, Lindgren J, NG 268 of 1996). On an application by the Commission, Lindgren J ordered that a letter from the Commission be delivered to a group of Chinese Nationals who arrived on a boat code-named 'Teal' in January 1996. At the time of the application, the 'Teal' detainees were being held under incommunicado detention at the Port Hedland facility in North-West Australia.

The sealed letter was sent by the Commission in accordance with s 20 of the HREOC Act as part of an investigation following a complaint by the Victorian Refugee Advice and Casework Service (VRACS). The complaint alleged that the 'Teal' detainees were being held and Multicultural Affairs (the Department). The matter progressed rapidly to the Federal Court when the Department challenged the Commission's interpretation of s 20(6)(b) of the HREOC Act. Section 20(6)(b) provides that a person who is detained in custody is entitled ... to have delivered... without undue delay, any sealed envelope, addressed to the detainee and sent by the Commission, that comes into the possession or under the control of the custodian or of a custodial officer.

The Department refused to pass on the sealed letter to the detainees, arguing that s 256 of the Migration Act 1958 had the effect of narrowing the broad right in s 20(6)(b) of the HREOC Act. The Department claimed it was only obliged to deliver a sealed envelope to detainees who had directly solicited contact from the Commission. Section 256 states:

Where a person is in immigration detention under this Act, the person responsible for his or her immigration shall, at the request of the person in immigration detention, afford all reasonable facilities for obtaining legal advice (emphasis added).

The Department was aware of the action by VRACS prompting the letter from the Commission. As the 'Teal' detainees themselves had not requested the Commission's intervention, the Department maintained that the two laws were in conflict. The Federal Court's ruling, however, held that there was no conflict between s 256 of the Migration Act and s 20(6)(b) of the HREOC Act, as they apply to different situations, and that the Department was bound by s 20(6)(b) to deliver the Commission's letter.

Reasoning behind the Bill

The Government's response to the decision was swift. In addition to lodging an appeal against the decision, the Government introduced the Bill with a motion of urgency, restricted public consultation on the Bill to a 48 hour period and extended the Parliamentary Session in an effort to secure passage of the Bill before the winter recess. Offers by both the Commission and Ombudsman to seek an interim alternative to allow for fuller consideration of the Bill were rejected by the Government. The Bill is not only bad law but its construction and debate epitomise bad law making.

The Government justifies the Bill on two principal grounds. The first is an insistence on an inconsistency between the Migration Act and both the HREOC Act and Ombudsman Act in relation to the Department's obligations. This is predicated on a view that a "hierarchy of Acts" exists and should be formally entrenched.

The second is that departmental and governmental policy is allegedly vulnerable to being circumvented by third parties acting through the powers of the Commission and Ombudsman to make contact with persons in immigration detention, contact which would not be possible if the third parties were acting alone. This situation, according to bipartisan views, amounts to a "lawyers picnic". This is a puzzling view, given that the majority of legal work undertaken in relation to unauthorised arrivals is done on a non-profit or pro-bono basis. The Bill does not, however, limit its scope to precluding the Commission and Ombudsman from placing detainees into contact with third parties. Its intention is to preclude either body from initiating unsolicited contact of any kind, and under any circumstances.

The Bill is clear in its intended effect to place the Government above the scrutiny of Australia's human rights watchdogs in the area of immigration control and treatment of detainees.

Implications of the Bill

It is a serious consequence of the Bill that unless a request is made in specific terms by an asylum seeker to access the refugee determination process, the Department will be under no obligation to inform asylum seekers of their right to legal assistance. This amounts to an inhuman denial of the right of asylum seekers to be even informed of their rights. Apart from the fact that this runs counter to the common law principle of procedural fairness, it dismisses the very real linguistic and cultural barriers faced by many people with valid claims to refugee status in asking for assistance from Australian authorities.

There are no safeguards built into the proposed amendments for an asylum seeker who provides departmental officers with sufficient information (that would lead a reasonable person to believe that the person has a valid claim for refugee status) but who does not know to ask for the right documentation. In addition, the Bill effectively places the Department's administration of this process, which is open to abuse given the isolation and powerlessness of the detainees, beyond scrutiny.

The Federal Court decision prompting the Bill reaffirmed the critical role played by the Commission and the Ombudsman in providing external scrutiny and some administrative safeguard against human rights abuses occurring in the Government's immigration control procedures. Denying people access to independent advice on the spurious grounds that they have not asked for it specifically enough, does not induce confidence that the procedures being followed are fair and beyond reproach.

At issue is the accountability of those responsible for detaining unauthorised arrivals. The Bill seeks a level of discretion for departmental officers which constitutes a serious threat to Australia's capacity to meet its international obligations. The proposed amendments jeopardise bona fide refugees accessing Australia's refugee determination process, and contradict the operation of the rule of law in a just and open society. Should the Bill be passed, Australia's standing as a liberal-democratic and just society will be justifiably diminished.

Nadja Diesel is a policy officer at the Human Rights and Equal Opportunity Commission.