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

The proposed amendments to the Immigration (Guardianship of Children) Act 1946 (IGOC Act) seek to remove the requirement for the Minister for Immigration and Citizenship to consent to the removal, taking or deportation from Australia (in accordance with a power in the Migration Act 1958) of a non-citizen child covered by the IGOC Act.  Currently, under the IGOC Act, the Minister for Immigration and Citizenship cannot consent to the removal, taking or deportation of a non-citizen child covered by the IGOC Act from Australia in circumstances where it would be prejudicial to the interests of the non-citizen child.

Human rights implications

The Bill engages human rights such as the best interests of the child under the Convention on the Rights of the Child (CROC), family rights under the International Covenant on Civil and Political Rights (ICCPR) and rights relating to the expulsion of aliens under the ICCPR. 

However, the existing legislation provides a higher level of protection of these rights than is required by Australia’s obligations under the CROC and ICCPR.  For example, the CROC requires that the best interests of the child be treated as a primary consideration in all actions concerning children but the existing legislation treats the best interests of the child as the paramount consideration. 

Similarly, the current legislation may give considerations of family unity more weight than required under Articles 17 and 23 of the ICCPR.  However, so long as Australia meets these obligations in other ways, such as through administrative practices, the removal of the existing legislative requirement does not limit the rights that are engaged.

Similarly, the Bill engages rights relating to the expulsion of aliens in that it removes an impediment to the removal of unlawful non-citizen children covered by the IGOC Act from Australia. However, it does not affect the laws regulating expulsion of aliens in the Migration Act 1958 and these laws will apply to non-citizen children covered by the IGOC Act in the same way as they apply to all other non-citizens.

Conclusion

The Bill is compatible with human rights because, to the extent that it engages human rights and seeks to limit the level of protection currently offered under existing legislation, it does not limit those rights as they may be considered through administrative practices.

Mr Robert Oakeshott           Member for Lyne