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Legal and Constitutional Affairs Legislation Committee
16/06/2011

LINDLEY, Ms Michelle, Acting Director, Legal Section, Australian Human Rights Commission

TEMBY, Ms Kate, Director, Human Rights Unit, Australian Human Rights Commission

[18:16]

Evidence was taken via teleconference—

CHAIR: Good evening and welcome. We have a submission from the Australian Human Rights Commission, which we have numbered 22 for our purposes. I am going to ask you to make a short opening statement, after which we will go to questions.

Ms Temby : I would like to start by passing on the apologies of the President of the Australian Human Rights Commission, Catherine Branson, who regrets that she is unable to appear personally before the committee this evening. Thank you for the opportunity to appear before the committee.

As you will be aware from our submission, the Australian Human Rights Commission does not support the amendments to the Migration Act contained in this bill. The commission believes that these amendments are unnecessary and is concerned that, if they are implemented, they may result in breaches of Australia's international human rights obligations. The commission believes that the current provisions of the Migration Act dealing with issues of character are sufficiently broad to allow the Minister for Immigration to, if he should wish to do so, cancel or refuse to grant a visa in response to serious criminal conduct should it occur within a detention facility.

The commission is most concerned that the proposed additional grounds might lead to individuals who are involved in disturbances in immigration detention facilities receiving an additional tier of punishment over and above that which may be imposed by a court. People found to be refugees who are refused visas or have their visas cancelled but cannot be returned to their home countries could face the prospect of indefinite detention, which could amount to arbitrary detention. If a refugee who has failed the character test is granted a temporary visa they face the prospect of being unable to reunite with family members overseas, which may compromise their right to family unity. We are concerned that these provisions might result in disproportionate consequences to a person's commission of a potentially minor offence whilst in immigration detention. The Human Rights Commission do not condone violence or the destruction of property; however, we do not believe it is a lack of or inadequate sanctions that have led to unrest in immigration detention facilities. Rather, we believe that the source of the recent unrest is the impact of prolonged and indefinite detention, and because of the conditions of that detention. We reiterate our call for an end to Australia's system of mandatory and indefinite detention. Thank you.

CHAIR: Thanks very much. Ms Lindley, did you want to make any comments?

Ms Lindley : No, thank you, Senator.

CHAIR: All right. We will go to questions. I might start with a question I wanted to ask, which goes to the seriousness of offences. The Sydney Centre for International Law argued in its submission that the bill does not satisfy any of the three circumstances—national security; crimes that threaten the community and serious crimes in particular—'in which a state party may refuse or revoke protection for a refugee based on crimes committed within that state' under the refugee convention. Could you provide us with the commission's views on whether the amendments to the character test, in terms of the seriousness of offences, are consistent with article 1F of the refugee convention.

Ms Temby : Our view is that these amendments go much further than what is contemplated by the refugee convention. The refugee convention only provides that the principle of nonrefoulement will not apply in the case of particularly serious crimes. These amendments go much further because they contemplate that a person might fail the character test if they are convicted of any offence while in immigration detention, and that is precisely why we think that they are a disproportionate response to disturbances within immigration detention facilities. It is particularly concerning that, in such a situation, asylum seekers and refugees in Australia's detention system may face serious consequences such as refoulement, prolonged and indefinite detention or, basically, living in a state of limbo on a temporary visa of some kind.

CHAIR: On a similar matter, many organisations have raised concerns that minor offences could lead a person to fail the character test—for burning a rubbish bin or smashing a window. Are people likely to be convicted of offences for that sort of activity?

Ms Temby : The commission's view is that it is not possible to determine whether or not it is likely that someone will be convicted for that kind of offence. But, basically, the way that these provisions work means that it is possible that a person convicted of a minor offence might then fail the character test. The consequences are particularly serious, so it should be contemplated only for extremely serious offences. In these circumstances, the person would not be granted a protection visa because they failed the character test. So the issue is not whether or not it is likely they would be convicted but that, if they were convicted, this would be the potential consequence for them.

CHAIR: But it is just a potential consequence, and there is still a discretion by the minister, isn't there?

Ms Temby : Yes, that is right. There is a discretion by the minister.

CHAIR: All right. Senator Barnett, do you have any questions?

Senator BARNETT: I do, just the one question. It relates to similar matters. The department say that what they have put before us in this legislation is consistent with international law. I seek your response to that, and the reasons why.

Ms Temby : Our concerns about inconsistency with international law go to the potential consequences of a person failing the character test. It is basically around the proportionality of the consequence for a person in this situation. But there are several ways in which there could be potential breaches of international law. First is the potential for the refoulement, or the return of a refugee to a situation where they may face persecution. Although it is clear, and it was stated in the explanatory memorandum, I understand, that it is the intention that a person who failed the character test in these circumstances, if they were a refugee, would be given some kind of temporary visa, that is still a discretion of the minister, and it may not be the case that that would happen. So there is the potential that a person could be returned to a situation where they faced persecution.

There is also the potential that a person may face prolonged and indefinite detention and that it could be potentially arbitrary detention in breach of the International Covenant on Civil and Political Rights. Basically, the commission's view is that international law requires that there be an individual assessment of the need to keep a person in detention—and that is the case even if a person does fail the character test. We would view the prolonged, and potentially indefinite, detention of a person who has failed the character test as being quite possibly arbitrary detention in breach of Australia's international obligations.

The final potential breach of international law is a breach of the rights to family unity which are also set out in the International Covenant on Civil and Political Rights and in the Convention on the Rights of the Child. If a person is on a temporary visa of some kind, and the consequence is that it restricts their right to travel and they may be unable to be reunited with their family, this could also be a potential breach of that human right to family unity.

Senator BARNETT: Thanks very much for that.

CHAIR: Senator Pratt, do you have a question?

Senator PRATT: Just briefly. Thank you, Ms Temby. On the exercise of discretion, as I understand it, the bill says when to exercise discretion, and one of the primary considerations is a relevant international obligation. It seems like that would be automatically triggered, but are you concerned that it would not be?

Ms Temby : No, I expect that that would be triggered; however, we are still concerned that there may potentially be breaches of the international human rights obligations that I have just outlined. Given the parameters of what is likely to happen if a person does fail the character test in these circumstances, the most likely breach is possibly the right to family unity if a person is given temporary protection. I think it is really important to remember the very harsh consequences for people who receive temporary protection. It is particularly around issues like being unable to travel and being unable to be reunited with family members.

Senator PRATT: Okay, so in terms of the restriction of the visa because of the initial failure but it might still uphold the other obligations. Thank you.

CHAIR: If there are no other questions, Ms Temby and Ms Lindley, thank you very much for your time this evening. We certainly appreciate your submission and for making yourself available at this hour of the day. Thank you very much.

Ms Temby : You're welcome, Senator: thank you very much.