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Legal and Constitutional Affairs Legislation Committee
16/06/2011

BUDAVARI, Ms Rosemary, Co-director, Criminal Law and Human Rights Unit, Law Council of Australia

MOULDS, Ms Sarah, Senior Policy Lawyer, Law Council of Australia

POYNDER, Mr Nicholas, Member, Refugee Council of Australia

[17:41]

Evidence from Ms Moulds and Mr Poynder was taken via teleconference—

CHAIR: Welcome. Do you have any comments to make on the capacity in which you appear?

Mr Poynder : I am a barrister at the Sydney bar. I have been requested by the Refugee Council of Australia to appear on their behalf. If possible, I would like to add a couple of my own comments, but I am primarily here because of the Refugee Council.

CHAIR: Thank you. We have a submission from the Law Council which we have numbered 13, and a submission from the Refugee Council of Australia which is No. 19. I invite both groups to make a brief opening statement and then we will go to questions. I will go to the Law Council first.

Ms Budavari : The Law Council opposes the passage of this bill on the basis that the amendments have not been demonstrated to be necessary, are likely to have a disproportionately punitive impact on those currently held in immigration detention and may in fact result in a breach of Australia's international human rights obligations. As we have outlined in our written submission, the existing character test in section 501 of the Migration Act is already broad in scope. It already provides that a person fails the character test if he or she is convicted of an offence attracting a penalty of 12 months imprisonment or if the decision maker is satisfied that the person's past criminal or general conduct renders the person of bad character. Further, the decision to cancel or refuse a visa on character grounds is subject to very limited forms of external review and has life-changing and often devastating consequences for the individual concerned, even where that individual is found to be a refugee who is owed protection.

By amending the character test to ensure that any person who engages in any offence in immigration detention that results in the recording of a conviction will automatically fail the character test, the amendments remove the features of the existing test that require a decision maker to focus on matters such as the gravity of the offence and the type of sentence imposed. On this point we note that the Senate Scrutiny of Bills Committee yesterday issued an alert digest which also raised concerns about that change to 'any conviction' in relation to the character test, and requested that its digest be brought to the attention of this committee.

As outlined in further detail in our submission and those of many other organisations, such as the Australian Human Rights Commission, by passing these amendments Australia is at risk of being in breach of its international human rights obligations. For example, the proposed amendments clearly move the character test well beyond the scope of the existing exception to the non-refoulement or non-return obligation under the refugee convention. That existing exception is limited to those persons who present a danger to the security of the country. This means that a person assessed by Australia as being a refugee could nonetheless fail the section 501 character test, leaving them open to the risk of visa refusal and either prolonged immigration detention or removal to a country where they could face persecution on the grounds recognised in the refugee convention.

We also noted in our submission that Australia has non-refoulement obligations under the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the convention against torture. We also have obligations to prevent arbitrary detention under the International Covenant on Civil and Political Rights, and we note that the Australian Human Rights Commission, in its submission, has put forward statistics about the periods of detention that people are undergoing when their visas are cancelled on character grounds. I think one of those periods of detention for a person has been over three years. This has to raise significant human rights concerns and concerns about our international obligations.

Having said all that, the Law Council understands the need to ensure that violent and disruptive behaviour does not continue to occur at immigration detention facilities because it risks the safety and welfare of both staff and detainees. Indeed, we do not dispute the fact that serious criminal behaviour whilst in immigration detention should be a relevant factor to be considered in determining whether a person should be allowed to remain in Australia. But we seriously question whether the amendments proposed in this bill will be effective at furthering that policy aim, particularly given the fact that this behaviour occurs in an environment of mandatory and often prolonged detention, and in the context of well-documented evidence that overcrowding, delays in processing and other unsatisfactory conditions are continuing to result in a deterioration of the mental health of detainees and an increase in disruptive behaviour.

We do not intend to elaborate any further on our written submission in relation to other aspects of the bill, other than to point out that neither the explanatory memorandum nor the departmental submission to this inquiry provide adequate justification for increasing the maximum penalty of the offence in relation to possessing a weapon in immigration detention by an additional two years' imprisonment. In this context, we note that this point has also been raised by the scrutiny committee in its alert digest.

Finally—and probably most significantly from the Law Council's point of view—we take particular issue with the fact that the key provisions of the bill will have retrospective application; that is that they will apply to offences that occurred prior to the bill's enactment. This runs counter to entrenched concepts of the rule of law, and is of particular concern given the punitive nature of the amendments and their very serious consequences. Once again, we note that the Scrutiny of Bills Committee has specifically focused on the retrospectivity aspect of these amendments.

In closing, we also note the concurrence today by the Senate to the establishment of the Joint Select Committee on Australia's Immigration Detention Network and a number of matters that will be investigated by that committee. We consider the work of that committee will be relevant to the matters being considered in the context of this bill, and that this committee should recommend that parliament not consider this bill further until that other inquiry is completed. That concludes our opening statement, thank you.

CHAIR: Thanks. Ms Moulds, have you got anything you wanted to add?

Ms Moulds : No, thank you.

CHAIR: Mr Poynder?

Mr Poynder : Yes, mine will be a little less formal, but you have a copy of the Refugee Council of Australia's submission. Essentially, the points that they wish to make are that, firstly, there are already measures in place to address violent behaviour in the Migration Act, and that these are adequate. Secondly, a completely isolated situation could lead to a minor losing the loss of a right to asylum, which is a fundamental human right. Thirdly, the detention centre environment, as we all know, is itself toxic and is by no uncertain means a primary reason for misbehaviour which may lead to criminal behaviour. It is somewhat ironic that that can then lead to the loss of refugee status.

The council also points out that there are presently a number of inquiries underway in Australia's detention centres, and to pass legislation that could so adversely affect some individuals while these inquiries remain incomplete seems premature. They are really the main matters that they wish to point out.

I did not put in a submission, but can I add some of my own comments? I have been doing this stuff since about three months after they opened Port Hedland in late 1991, and I do have views of my own on this. If I have the floor, I would very much like to put them.

CHAIR: Mr Poynder, I am sure that will be fine and that you are giving them in the context of the council which you represent as well. I do want to remind you, though, that we want to go to questioning fairly quickly.

Mr Poynder : Okay. These are my personal comments; they are not the Refugee Council's comments. My view is that this is an inappropriate means of dealing with unlawful behaviour by asylum seekers. It treats the grant of a protection visa as if it were part of Australia's migration program. That is wrong, and it is a wrong way to approach it. The grant of a protection visa is not part of our migration program; it is an international obligation, which we signed up to by signing on to the refugee convention.

So, for the same reason which I have said for years, the Department of Immigration and Citizenship and the Minister for Immigration ought not to have control over our refugee obligations. It is an issue of international law, and it should be in the hands of the Attorney-General's Department. The proper means of dealing with serious criminal conduct by asylum seekers is to apply Article 33(2) of the refugee's convention. It entitles a country to refuse the benefit of protection to a person who has been convicted of a particularly serious crime where they constitute a danger to the community of the country. This ensures that refusal of protection is saved for the most serious cases, and also ensures that there is independent review of such decisions by the AAT.

I would imagine that in cases such as this the minister is going to try to use his personal non-reviewable power to refuse visas under the character test. In my view, this is political grandstanding and simply issuing threats to detainees in a transparent attempt to intimidate them into being compliant. It is a confected argument; the minister has always had the power to refuse a visa under the character test where there has been criminal conduct. There is no necessity for the criminal conduct to be such that it attracts a 12-month minimum penalty.

There will also remain a discretion with the minister, or any other decision maker for that matter, not to refuse the visa, even when there has been serious criminal conduct. The minister says that visa refusal under the so-called general provisions needs to be clarified because the courts have said that a one-off event is usually not enough to justify bad character, but it is enough to justify bad character under section 501. The one-off event might be a murder.

I submit that it is a bit rich, given that the longstanding detention of asylum seekers is causing the anger and frustration which has led to the protests. We know from various communications to the Human Rights Commission that mandatory detention of asylum seekers is unlawful at international law. So here we have a situation where the minister unlawfully detains asylum seekers in circumstances which cause them to go mad with frustration and despair, then punishes them for this reaction. As I say again, in closing: the proper way to deal with this situation is to assess their claims for protection in a fair and even-handed manner, and with reference to Article 33(2) only if necessary and appropriate; that is, if there is a particularly serious crime and the person constitutes a danger to the community of this country. Otherwise, any criminal conduct should properly be dealt with by the law enforcement authorities, as with any other person in Australia, whether they be citizens or non-citizens.

Senator HANSON-YOUNG: Some people have described the implications of this bill as somewhat similar to double jeopardy. What would be the Law Council's response to that description?

Ms Budavari : I guess the implications of the bill do not constitute double jeopardy in the traditional meaning of the phrase. However, there is an argument that if someone is prosecuted for an offence committed in immigration detention, as people have been before the court today in relation to the Christmas Island incidents, they are given a punishment by the court and that that should be sufficient punishment, and anything further than that is unnecessary.

However we do have a character test within the Migration Act, as it currently stands, and that character test does need to be applied to people. What we are saying about the proposed amendment to that test is that we are very concerned that the amendment goes so broadly that any conviction of a person committed, which arises from their time in immigration detention, will automatically mean that they fail that test.

Senator HANSON-YOUNG: In the context of when the minister announced this amendment bill—and we have all seen the incidents on Christmas Island and in Villawood—do you believe that currently under the act there are sufficient measures to deal with those people appropriately?

Ms Budavari : Yes. We have pointed out that there are a number of subparagraphs of section 501(6) which sets out when a person does not pass the character test including if someone is deemed not to be of good character, having regard to either the person's past and present criminal conduct and/or the person's past and present general conduct, or if there is a significant risk that, if the person were allowed to enter or remain in Australia, he or she would engage in criminal conduct, represent a danger to the Australian community or a segment of that community whether by way of being liable to become involved in activities that are disruptive or in violence threatening harm et cetera. So there are already quite broad provisions within the general provision which relates to when you fail the character test, that could easily deal with the behaviour we have seen.

Mr Poynder : It is simply not appropriate to cancel or refuse protection visas under section 501. Traditionally—and that is, for years—section 501 has not been used to refuse or cancel protection visas. Section 501 asks the question: is this the sort of person we want to migrate to Australia? It is a migration issue. The question of whether or not a person is owed protection obligations is a fundamental international obligation issue; it is not a migration issue. It is not appropriate with asylum seekers to ask whether or not these are the sorts of persons we want to migrate to Australia. The question is: are these people to whom we owe protection obligations? So if they are of bad character they are entitled to come to Australia regardless, as long as they are not within article 33(2), that is, a danger to the Australian community. It is not appropriate to treat these as part of the migration program in this way.

Senator HANSON-YOUNG: Under the way government has structured this amendment—and correct me if I am wrong—you would not be able to challenge the decision, would you?

Mr Poynder : If the minister makes a personal decision, there is no merits review in the AAT. Now that all comes down to the way the minister makes decisions, because there is an option. If a delegate of the minister makes the decision, there will be merits review in the AAT; if the minister personally makes a decision, there is no merits review in the AAT. But in either case there is judicial review in the Federal Court. So, yes, the decision can be challenged by judicial review in the Federal Court.

Senator HANSON-YOUNG: The way it currently stands?

Ms Moulds : If I may add something here? If the decision is made by a delegate of the minister, and, as Mr Poynder said, it may be subject to merits review by the AAT, in that situation the minister will also retain his or her discretion to effectively override or substitute the decision of the delegate. For example, if a person has had a negative assessment under 501 by a delegate and then seeks merits review, the minister can step in and make a decision to refuse that person a visa. That personal decision by the minister is then only subject to the more limited judicial review.

Senator HANSON-YOUNG: Is there any advantage in having this amendment passed?

Mr Poynder : Sorry, I missed the last part of that question?

Senator HANSON-YOUNG: Is there any advantage in this bill at all?

Mr Poynder : There is a political advantage to the government to make it look as though they are doing something about the rights on Christmas Island. That is the only advantage that I can see, there is no legal advantage in it whatsoever.

Senator HANSON-YOUNG: So it is a perception. But, if I am correct, the Law Council believes that they can take action against the people who destroyed property anyway?

Ms Budavari : Yes. That is our view. There is already enough power. I suppose the advantage of the amendment is that it extends the grounds on which the character test can be failed, but it extends those grounds in a way which we think is far too broad. The example we have given in the written submission is that if someone commits what would generally be regarded as a fairly minor offence, like breaking a window or damaging a rubbish bin, and they are convicted of that, they will now automatically fail the character test.

Senator HANSON-YOUNG: Which means they cannot be given permanent protection.

Ms Budavari : There is still a ministerial discretion, and the department has pointed this out in their submission and—

Senator HANSON-YOUNG: So what is the point, then?

Ms Budavari : —the ministerial discretion is what Mr Poynder has also referred to. However, by amending the legislation in this way you send a message to the community about what type of behaviour may lead to someone failing the character test. In our submission, it then makes it more difficult for either a departmental decision maker or the minister to exercise that overriding discretion in favour of granting the visa regardless.

Senator HANSON-YOUNG: Is there any other nation that signed the Refugee Convention that has this type of restriction?

Ms Moulds : I am not sure that the Law Council can conclusively answer this but, in a submission provided by Professor Crock, she suggested that in the UK the requirement in relation to criminal conduct is a sentence of two years' imprisonment, or an equivalent sentence. That is the only comparative analysis I am aware of, where another country that is a convention signatory also has some form of character test. I do not think the Law Council would be able to comment more broadly than that at this stage.

Senator FURNER: Ms Budavari, you indicated in your opening submissions that these amendments may be in breach of our international obligations. Why were you not decisive on it? Why were you not of the opinion that they are in breach? Have you had some legal opinion on this at all?

Ms Budavari : We have not had legal opinion from counsel in relation to the issue. However, I think it is fair to say that our analysis is that these amendments certainly do seriously impact on our refoulement obligations, and we probably cannot put it any higher than that at this stage. There are other people who have made submissions who I think take a stronger position on that.

Senator FURNER: Reflecting on the media footage, I am sometimes troubled by media footage on anything, but it certainly dramatised the effects on both Christmas Island and Villawood in those major disruptions. How would you describe that behaviour in your own opinion?

Ms Budavari : I am not really sure that my own opinion about it is relevant. What we have said is that, where there is criminal behaviour, that criminal behaviour should be subject to the criminal law. It is where that then interacts with the operation of the migration legislation that we see that difficulties arise, particularly if the parliament is going to amend the provision about failing the character test to refer to any conviction, because it would not just be some of the more, I suppose, serious behaviour that has been filmed that would be the reason that someone fails the character test; it could be very minor behaviour as well that results in a conviction. I am not sure if my colleague—

Senator FURNER: Can I just prompt you on that response. Section 39 of your submission indicates that the amendments relate to minor criminal convictions and relatively minor criminal behaviour. Surely the behaviour that we have seen in the media, where buildings have been burnt and people have been orchestrating violence and making weapons that can cause harm, is not minor criminal behaviour.

Ms Budavari : No, and we certainly would not say that that is minor behaviour. Charges like arson attract quite significant penalties under the legislation and, we would say, are probably going to result in terms of imprisonment of 12 months or more, or at least would qualify under one of the other existing arms of the character test relating to behaviour which would indicate that someone is of bad character having regard to either their past and present criminal conduct or their general conduct. We would say that those scenes that have been witnessed, where people have been engaging in the activity of setting fire to buildings, would clearly already be caught by the character test. Where our concern lies is that the proposed amendment actually seeks to expand that test to cover any conviction, so that could be for loitering or littering. There are a range of summary offences of which people can be convicted.

Senator FURNER: Thank you for that. I noted your comments earlier about breakage of windows or damage to rubbish bins, so you expanded on what your concerns are; I appreciate that. Thank you.

Ms Budavari : Thank you.

Mr Poynder : The difficulty there is that, if someone is going to be refused refugee status because of arson or such things in detention centres, at international law and in accordance with our international obligations it has to be measured against article 33(2) of the refugee convention, not section 501 of the Migration Act. So you would have to show that they have been convicted of a particularly serious crime where they constitute a danger to the community of Australia. With an arson charge, that might well be a particularly serious crime. They also have to represent a danger to the community of Australia before you can deport them; it can be measured against that. Your difficulty is that the reason people are behaving like this in detention is because they are being driven to madness by their despair and frustration. Once they are released, they are of no danger to anyone. So you are not going to succeed in your argument that they are not to be recognised as refugees because of this sort of incident in detention centres unless you can show that they will continue to behave like that when they are out of detention—which, of course, they will not, because the stressor is removed at that stage.

CHAIR: Senator Barnett, you have some questions?

Senator BARNETT: Yes, Chair. Thank you to the witnesses for your evidence today. There has been a good deal of evidence and submissions from witnesses to suggest that the bill before us is contrary to international law, but the Department of Immigration and Citizenship state in their submission that in their view it is consistent with international law. I am seeking any response from you to contradict or provide arguments that are different to the view of DIAC.

Mr Poynder : The department has been saying since 1992 that the mandatory detention of asylum seekers is not contrary to international law. I think we are up to about 10 decisions of the Human Rights Committee—which is set up under the First Optional Protocol to the ICCPR—that say that, without a shadow of a doubt, Australia's policy of mandatory detention is in breach of international law because it is arbitrary and it is essentially nonreviewable. So the department does not have a good track record when it comes to being honest on whether our domestic legislation complies with international law.

This legislation is potentially in breach of international law. It is not in itself in breach of international law. But if you were to remove the protection of the refugees convention from a person because of criminal conduct which falls below particularly serious crimes or where they are not a danger to the community—if you were to remove people on those grounds or where conduct falls short of those grounds, then you would be committing refoulement, which is in breach of the refugees convention, and thereby be in breach of international law. My understanding is that the department is saying, 'Trust us, we won't do that.' Well, they have been locking up people for almost 20 years now and they cannot be shown to be trusted on that basis.

Ms Moulds : The Law Council notes that in the DIAC submission one of the answers that they provide to some of the criticisms that suggest the amendments would be in breach of international law is to suggest that the minister could use his or her personal power under section 195A of the act to grant a temporary visa that applies pending removal of the person. They suggest that this could be used in a situation where someone is found to be a refugee but then fails the character test and has their visa refused on that ground. However, these types of temporary visas that DIAC is referring to, in the view of the Australian Human Rights Commission—and I think the Law Council would agree with this view—do not offer near anywhere near the protections that either an alternative protection visa would offer or that is required under the refugee convention.

So even if the minister was minded to grant this type of temporary visa it would be very restrictive; for example, it would restrict the person being able to move or travel or have access to family reunion and would restrict that person's ability to access certain welfare assistance. It would effectively mean the person has to be on standby for removal even if they were found to be a refugee that is owed protection.

The final comment we would make on that is that it is clear from the explanatory memorandum that the purpose behind these amendments is to lead to a situation where a message is sent that any offence in immigration detention that attracts a conviction results in the likelihood of a visa cancellation or refusal. So it seems unlikely that this type of scenario would be occurring with any degree of frequency.

Senator BARNETT: Thank you very much.

CHAIR: Mr Poynder, thank you very much for your time this evening. Ms Budavari, thank you once again. Ms Moulds, thank you very much.