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Issue #1779      May 31, 2017

Human rights

The call by a United Nations expert for an Australian human rights act reminds us that fundamental human rights in Australia are not protected by a Bill of Rights, says the Australian Lawyers Alliance (ALA).

The UN Special Rapporteur on the human rights of migrants visited Australia in November 2016 to investigate the human rights status of migrants and people being held by Australia in immigration detention. A report on his visit will be presented to the UN Human Rights Council next month.

In the report, the Special Rapporteur noted that the “strong focus on securitisation and punishment blemishes the country’s good human rights record” and that “it is a fundamental principle of human rights law that one person cannot be punished only for the reason of deterring another”. Ultimately, the Special Rapporteur concluded that “regarding human rights issues, the [offshore processing] system cannot be salvaged”.

The report added that “crossing borders irregularly is at most an administrative offence and cannot be considered a crime, especially when done with a view to requesting international protection.” It said that “pushbacks and screening at sea” do not meet Australia’s human rights obligations.

ALA national president Tony Kenyon welcomed the report, saying it was a wake-up call regarding the status of human rights protections in Australia.

“Australia should guarantee that no one will ever again be subjected to the systematic inhumane treatment that arises in offshore detention, as has been revealed by so many reports and investigations,” Mr Kenyon said.

“As Australia seeks election as a member of the UN Human Rights Council, it must demonstrate its commitment to respecting human rights by implementing the recommendations of UN experts.”

“The Special Rapporteur was right when he said that the only way to resolve this problem is to end the offshore detention policy. Australia must finally join the vast majority of countries and pass a strong human rights act that provides genuine protection to everyone subjected to Australia’s jurisdiction,” Mr Kenyon said.

“Of particular concern is the sexual assault of female asylum seekers and refugees on Nauru. Women living in offshore detention facilities are getting married for protection, because they know there is no protection from the police, according to the Special Rapporteur,” Mr Kenyon said.

The report contains more than 30 specific recommendations to the Australian government, to ensure the treatment of migrants does not conflict with obligations under international law, including:

  • Incorporating human rights protections into its law, by way of a constitutional guarantee, a Bill of Rights, or “at least a legislative guarantee of human rights – a human rights act – with a clause of precedence over all other legislation”.
  • Ensuring that all legislation, including the Migration Act, is fully in line with international human rights standards.
  • Ensuring that immigration detention is only used “as a measure of last resort and is limited to the shortest time possible”. Migrants should only be detained if they present a danger to the public or of absconding.
  • Stateless people and refugees with adverse security or character assessments should not be held in indefinite detention.
  • Quickly closing down the regional processing centres in Papua New Guinea and Nauru and terminating the offshore processing policy, in order to remedy the systemic human rights violations that the policy gives rise to.
  • Ensuring that reports of abuse in regional processing centres are properly investigated by an independent and competent oversight mechanism, and that persons found guilty are held accountable.
  • Ensuring full and proper access to justice for all detainees, including by means of a more accountable system for lodging complaints within detention centres.
  • Ensuring that migrants, asylum seekers and refugees have free access to competent lawyers so that they can “challenge any decision made that threatens their rights and freedoms, especially in expulsion, detention and asylum procedures”.
  • Repealing laws that discriminate against migrants on the basis of disability.

“Administrative decisions surrounding migration can have serious ramifications, such as deportation to cruel, inhuman or degrading treatment in offshore detention, or even being sent back to face death in a migrant’s home country, as the Special Rapporteur has noted,” Mr Kenyon said.

“As we hear that the detention centre on Manus Island will be closing down soon, it is essential that everyone who has been sent there by Australia is treated humanely and that their safety is assured. Forcing people to settle in PNG is not the answer. Implementing the Special Rapporteur’s recommendations in full is more important than ever.”

“A strong federal human rights act will ensure that the rights of everyone in Australia are protected,” Mr Kenyon said.

“The ill-treatment that we see too often in immigration detention could be avoided if essential protections, such as access to natural justice and fair trial guarantees, were enshrined in legislation.”

Next article – A sorry tale of capitalism

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