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Wednesday, 9 February 2005
Page: 142


Senator BARTLETT (7:04 PM) —I move:

That the Senate take note of the documents.

These documents are communications under the Optional Protocol to the International Covenant on Civil and Political Rights. Basically they notify the Australian parliament of communications under that covenant on human rights from people in Australia who have a grievance about Australia not meeting its obligations. The Australian government has long been a signatory to the protocol under the covenant, and it is worth drawing attention to these—not to speak about the specifics of the cases that these relate to but to draw attention to the fact that there is no clear protection under law in Australia, in the Migration Act or elsewhere, specifically applying the Covenant on Civil and Political Rights or indeed the convention against torture.

The government’s consistent response has been that our obligations under these treaties are taken into account by the process of ministerial discretion under the Migration Act and that when the minister makes a determination he or she does so taking into account those obligations under the treaties against torture and on other human rights. The trouble is, firstly, that there is no legal requirement for the minister to do so—they do not have to; they just say they do. Secondly, there is no way of independently assessing whether or not they actually do. Thirdly, there is no legal obligation for the minister to even consider a request for ministerial intervention in the first place. It is a non-compellable power, which means you cannot compel the minister to use it and it is not appealable, so, if you think they have applied guidelines wrongly, you cannot do anything about it. I suggest that this is not an adequate protection to ensure that those rights are upheld. That is not a criticism of the current government or minister—although obviously I can make those criticisms and I have in the past—it is a fundamental deficiency in the law. Whoever was in government, that total lack of accountability and transparency would apply.

Two of these communications concern Bangladeshis and one concerns a Pakistani. These people have been in detention in Nauru and Papua New Guinea since October 2001—3½ years ago. Most of that time has been spent in Nauru. There are allegations that—without going into the detail of the individual cases—by virtue of their detention and of what would happen to them if they were returned forcibly to either Pakistan or Bangladesh, it would cause a breach of the International Covenant on Civil and Political Rights. I am not making a judgment about whether it would or would not; all I am saying is that there is no mechanism under Australian law for those obligations to be required to be upheld.

The other communication relates to a Tamil mother and son from Sri Lanka who have been in Australia since December 1995. They have applied unsuccessfully for protection visas and have been unsuccessful in requests for ministerial intervention. Again, I make no comment on their case or whether those decisions are ones I would agree with, but they are also alleging that they would be at risk of mistreatment on the grounds of torture and cruel, inhumane or degrading treatment or punishment if they were returned. I am not saying this would or would not happen; I am saying there is no mechanism under Australian law under the Migration Act for that right to be tested and upheld. It is solely in the hands of the minister. Obviously, in part it comes under the refugee convention, but it is much broader than the refugee convention and thus is not covered in the Migration Act.

So the frequent statements that people’s cases have been properly assessed and they have been found not to be a refugee, therefore they are safe, are simply not correct. They may not be a refugee, but they may still have genuine grounds of breach of rights in being at risk of torture for reasons other than those in the refugee convention. They cannot get those rights upheld via any process in this country other than appealing to the minister, who is under no obligation to even look at that appeal, let alone assess it against those criteria. That is a blatant flaw, and it is about time it was addressed.

Question agreed to.