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Legal and Constitutional Affairs Legislation Committee

EDGERTON, Mr Graeme, Senior Lawyer, Australian Human Rights Commission

TRIGGS, Professor Gillian, President, Australian Human Rights Commission


Evidence was taken via teleconference—

CHAIR: Welcome. Professor Triggs, as I have said to you before, we should actually make you a member of our committee! You attend as many meetings as we do. We have your submission, which we have numbered 163. Perhaps we could get a brief opening statement from you, and from Mr Edgerton if that is needed.

Prof. Triggs: Thank you, very much, Senator Macdonald. I know that you will be speaking to a very large number of people, and perhaps similar points are being repeated. I will make a very brief statement to present what is a very long submission by us in a way that takes us through the various stages in which asylum seekers have an interaction with Australian authorities. At each of the stages that I am going to very briefly describe there is an adverse effect on their human rights, in our view.

The first stage is the interception of asylum seekers at sea. We are concerned that amendments to the Maritime Powers Act would allow people to be arrested at sea and taken to another country without any judicial scrutiny at all as to whether this complies with our non-refoulement obligations. The process will exclude procedural fairness, so that asylum seekers cannot be heard about where they are to be taken, and the processes will authorise detention for as long as it takes to travel to the destination with no requirements that this be done as soon as is reasonably practicable.

The second stage involves the processing of asylum seekers in Australia. We are, as previous speakers have been, very concerned that the fast-track assessment does not provide a review hearing that is fair. It will increase risk that people who are refugees will be wrongly found not to be refugees. There is an interesting precedent from the high court of England and Wales, which considered a detained fast-track system in a context in which there was not enough opportunity for asylum seekers to give instructions to their lawyers. The court held that this was an unacceptable risk of unfairness. Australia no longer provides legal advice to asylum seekers and the unfairness this causes will be compounded by the bill, because if they do not receive advice before their first interview asylum seekers may not be able to present all the information that is relevant to their claim. Under the fast-track system, relevant information that is not presented cannot be considered on review after the first interview.

The third stage I would like to mention is the interaction between asylum seekers and Australian authorities involving decisions in relation to protection claims. The bill codifies and narrows the meaning of the refugee convention. Our written submission sets out examples of how some refugees would no longer have their refugee status recognised under these narrow definitions.

The fourth stage involves the removal from Australia of those found not to be refugees. The primary concern here is that officers will be required to remove people from Australia, regardless of whether this complies with our non-refoulement obligations. If wrong decisions are made about these obligations there is no prospect of judicial review, and it is not sufficient in our view for important matters of this kind to be left to a discretionary assessment by the minister.

The fifth and final stage involves protection given to asylum seekers who are recognised as refugees. Here the proposal is to reintroduce temporary protection visas. We know from scholarly research and from our own work that TPVs have a detrimental impact on refugees' mental health. They also have the result of separating families. We believe there is no convincing policy reason to reintroduce TPVs. First, they are not necessary to get people out of detention. The minister currently has the power to remove asylum seekers from detention on bridging visas while their claims are being assessed and, indeed, he does so.

The conditions on bridging visas ought also, we believe, be amended to include work rights. Secondly, we believe that the historical record shows that TPVs are not a deterrent to people seeking asylum in Australia. Thirdly, the historical record also shows that permanent protection visas can be granted to asylum seekers in Australia without having an impact on unauthorised boat arrivals.

My final comment is that we are very concerned about the situation of the children of asylum seekers born in Australia and you may be familiar with the baby Ferouz case and the recent decision of the Federal Circuit Court. We believe that babies born in Australia should not be deemed to have entered Australia by sea, thereby preventing them from applying for a protection visa or Australian citizenship. One solution is to suggest that the government publish administrative guidelines to facilitate the making and processing of applications for citizenship by children who are currently born in Australia and who would otherwise be stateless before they become vulnerable in practice to offshore processing. That takes us in a rapid way through very complex legislation but we are deeply concerned that the legislation is a very deliberate attempt to exclude international law and to deprive the High Court of a basis for analysing the Migration Act by reference to the international principles developed in respect of the refugee convention. Thank you very much.

CHAIR: Thank you very much Professor, particularly for the conciseness of your presentation. With your submission, that is very helpful.

Senator HANSON-YOUNG: Professor Triggs, thank you for joining us today. You have raised a number of issues and we have just had the Law Council in front of us. I am not sure whether you were on the line for any of their submission, were you?

Prof. Triggs : Yes, I heard nearly the last half hour of their presentation.

Senator HANSON-YOUNG: Obviously they expressed their concerns towards the end in relation to people being able to effectively lodge their applications for protection in a way that addresses their genuine concerns in terms of their own individual fears of persecution or torture. I am extremely concerned that this bill across the board looks as though it is designed to give as few protection visas to people as possible. That is not discounting the fact that even if people are given protection visas they will only be temporary. It seems there is a very long way for people to go before they even have the opportunity to apply for a temporary visa. What is the commission's view on the fast-tracking elements, as referred to in this bill, and the implications they may have on mistakes being made by the department in their assessment process?

Prof. Triggs : Our concerns are that the fast-track process does not constitute a fair process to which they are entitled as a matter of law. What the motives are behind it is not for me to comment on but we are very concerned that it appears to be a way of reducing the backlog, the case load, in a way that seriously threatens their rights. I think the point needs to be made that these asylum seekers have been held since August 2012. There have been ample opportunities to consider their fair claims including by the current government over the last year and two months. We feel it is rather inappropriate to fast track people who have been waiting for so long when they really need and should have as a matter of law a fair opportunity to put their case.

Senator HANSON-YOUNG: What are the practical implications for children caught up in this process? Some children—as you referred to, the baby Ferouz case—have been born in Australia. Others were not born in Australia.

For children who perhaps will be released, finally, from detention—some of them, remembering that there will be hundreds left in Nauru—where does this leave them and their families in terms of being able to start putting their lives back together?

Prof. Triggs : If they are fast-tracked successfully then of course that will enable them to build their lives, if they can get either a bridging visa or, eventually, a protection visa. Obviously the sooner that happens the sooner these children and their families can build their lives. For those who are denied refugee status through this fast-track process, it means that they will continue to be detained and, presumably, have to wait many months, indefinitely, before they can be transferred to their home country, if that is at all possible. And you have heard evidence that, in many cases, that either is not possible or it takes an extremely long time.

Senator HANSON-YOUNG: Do you have concerns that, in relation to the two temporary-type visas, there are obviously legislative provisions being put into the legislation for temporary protection visas as opposed to having that through regulation, but, for the safe haven enterprise visas, that is all up in the air? It will be effectively the power of the minister through regulation. The parliament will not be able to amend. They will not be able to debate the provisions or safeguards for that at all. We are simply being asked to trust the minister on how those visas will operate.

Prof. Triggs : We feel that, because there is so little detail, it is extremely difficult for us to comment on the value, from a human rights perspective, of a safe haven enterprise visa. Your concerns, of course, are those of transparency and ability for parliament properly to scrutinise the proposals, but from our perspective it is almost impossible to know exactly how this is going to work. So I think we have really got to keep our powder dry, in a sense, on this one and wait until the regulatory processes are in place and we see how it operates. But it could potentially, obviously, be an option that might be a valuable one.

Senator HANSON-YOUNG: The second recommendation in your submission effectively recommends that the Australian government simply get on with processing the claims of people in this case load. Just clearly for the record, your recommendation for that is because there is nothing legally stopping the government from just getting on and processing people's claims? Is that what you are saying—we do not need any of this legislation to do that?

Prof. Triggs : Not at all. Exactly. There is nothing to stop the government going forward with it. There has been a freeze now for something like two years and three months, and there is no need for this. Quite clearly it is causing immense problems both for the government in having to deal with this problem and for the individuals themselves, the asylum seekers. The numbers are huge, and that processing needs to start immediately.

Senator HANSON-YOUNG: In relation to the deletion of references to the refugee convention, to other elements of international law, in schedule 1, where they amend the Maritime Powers Act, in relation to amendments to effectively remove Australia's obligations to nonrefoulement—from the Australian Human Rights Commission's perspective, how does that put us within the international context and in the eyes of the United Nations?

Prof. Triggs : Perhaps I can say that it is virtually unprecedented for a mature democracy like Australia that has been a major player in developing contemporary international human rights law to have an express legislative provision that failure to comply with international law is not a basis for invalidating the act. That is a retrograde step, I think, and one that will bring Australia, in my view, into disrepute.


I think you will already be aware of the concerns of the United Nations Committee Against Torture and the concerns of the Human Rights Council and the High Commissioner for Human Rights. We have had two decisions in relation to our detention of asylum seekers found by the Human Rights Committee to be cruel, inhuman and degrading treatment.

It is a very great shame for Australia, with our extraordinarily good record as an international citizen and developer and promoter of human rights, to have an explicit legislative provision that excludes the obligation to comply with our treaty obligations. Australia is President of the United Nations Security Council and is seeking a seat on the Human Rights Council, and, if I may say so, I know personally that these provisions are understood and have caused considerable concern within the United Nations system.

Senator JACINTA COLLINS: Thank you for your submission. It was as comprehensive as usual. On that last point, are you aware—and I asked the previous witnesses this also—where this approach is coming from? Their impression was from a practical departmental level, but is there some other new view about the application of international rule of law that is encouraging this approach?

Prof. Triggs : Thank you for that question. We have puzzled about the reasoning, and I think your previous witnesses alluded to this. We have seen almost a monumental and probably unprecedented struggle between the government handling migration asylum seeker issues on the one hand and the federal courts and the High Court on the other. We have a number of High Court decisions which have in fact turned on the fact that the refugee convention is the point of reference for the Migration Act. That has allowed the High Court to reach decisions based on what the international legal principles are as reflected in the refugee convention, a very recent one being the S4 decision, a unanimous decision of the High Court of Australia to the effect that the minister must either deport or make a decision as soon as is reasonably practical.

I think the concern of the government is that it believes—I believe wrongly—that it can only mop up this problem by deleting the references to the refugee convention so that the High Court of Australia cannot, to put it rather bluntly, interfere with the processes of government. That raises a very serious question in my mind about the rule of law and perhaps disrespect of the views of the High Court. Generally, of course, the position in Australian law has been that legislation is presumed to comply with Australia's international obligations and international law. This legislation explicitly cuts across that.

Senator JACINTA COLLINS: I suppose the other issue is the notion that, in some circumstances under that philosophy, people only have temporary rights—as in, until we mop up the problem—or a lack of temporary rights.

Prof. Triggs : That is one way of looking at it. In other words, for a short period of time we disregard their rights at international law, we mop up the problem quickly and we move on. I am afraid I would have to say from our perspective—and, as you know, our mandate is international law—that we would find that a very disturbing conclusion. Also, if I may say, I think it is something all Australians should be concerned about that the rule of law can be so easily dispensed with on what might be seen by the government as practical grounds.

Senator REYNOLDS: Thank you very much, Professor Triggs, for your evidence. I want to pick up a couple of points that you made. On the one hand, in your last response you were saying that speed is very important to deal with these things expeditiously, but, on the other hand, it seems you were also saying that the measures taken to speed things up were not desirable. To me what you were saying just seemed contradictory.

Prof. Triggs : Thank you. With respect, I think a previous witness discussed this question of expeditious completion. I have never used that word and I would not. I of course fully accept that the government, if one is going to be practical, has a very serious problem of management on its hands and I certainly agree that the process needs to get started, but I do not agree that, in the interests of expeditious treatment—and that is not my word—we should ride over the core principles of human rights law and the refugee convention. What is curious is that, as we talk about this, we have about 5½ thousand people in indefinite mandatory detention and we have the remainder on bridging visas or in community detention, all waiting for the processes that we have in place to begin. I think, if we are really serious about a practical outcome, we need to start now with existing processes.

Senator REYNOLDS: My understanding, I think from advice we have had, is that, under existing processes, to clear the backlog of 30,000 cases it would take up to seven years, and I think whatever way we look at it seven years for people in the current circumstances is not reasonable.

Prof. Triggs : Firstly, I would challenge that, but, secondly, these people have already been waiting up to two years and three months.

Senator REYNOLDS: Under the current processes, what are your calculations as to a time frame for a resolution for these 30,000 people?

Prof. Triggs : I am afraid I cannot give you an answer to that question. Obviously, if we have trained officials and people ready to embark on a system that we already have available to us, I would think within a couple of years you could clear the backlog, but please accept that is a completely amateurish judgement. I really do not know, but I would certainly challenge seven years.

Senator REYNOLDS: In relation to your comments about their access to the legal system under these changes, my understanding is that under the Constitution we cannot deny anybody access to the High Court, and under this process there still would be access to the High Court. My understanding at the moment is that there is nothing in here that would preclude anyone getting legal advice throughout the process. Is that not your understanding?

Prof. Triggs : I will ask my legal colleague to answer that question, if I may.

Senator REYNOLDS: Certainly.

Mr Edgerton : If I could take those in reverse order, the first relates to legal advice. One of our key concerns is that, until March this year, asylum seekers were given access to free legal advice by the government, and that has now been withdrawn. Certainly the government is not precluding people from obtaining legal advice, but there are real practical issues for asylum seekers who have arrived in Australia and may not have the resources to engage a lawyer actually getting access to legal advice.

Senator REYNOLDS: To clarify, all 30,000 still have access to legal advice; the only question is who pays for it. Is that correct?

Mr Edgerton : They are not prevented from getting legal advice. Whether they have access to legal advice is a practical question.

Senator REYNOLDS: So there is nothing to preclude people providing pro bono advice. I guess your assumption is that everybody who comes here—all 30,000—have no access to any financial resources. Is that the assumption you are making?

Mr Edgerton : I do not say that, but I say that many of them will not have financial resources.

Senator REYNOLDS: Of the 30,000—remembering that a lot of them will have paid at least $10,000 a head to get here—my understanding is there are quite a few who do have access to financial resources. In those cases, would it not be fair for them to pay for their own legal representation, not the taxpayer?

Mr Edgerton : I think the concern is that there may well be a large cohort of people who will not have financial resources and will be unable to get access—

Senator REYNOLDS: But that is not my point. My point is: do you not think that those who can afford their own legal advice should pay for it and not the Australian taxpayer? I am not talking about those who do not have the financial resources.

Senator HANSON-YOUNG: There is no means testing in this bill for legal assistance.

Senator REYNOLDS: There have been some suggestions here, with respect, Senator Hanson-Young, that this is stripping away everybody's legal rights, and we have just heard that it is not stripping away their legal rights.

Senator HANSON-YOUNG: If you are living in a squalid flat in Dandenong—

Senator REYNOLDS: Excuse me, Chair, I do not think this is a debate between members.

Senator HANSON-YOUNG: after not being able to work for two years—

Senator REYNOLDS: If I could please be allowed to continue using my time to ask questions, I would be grateful.

Senator HANSON-YOUNG: Maybe speak to the facts rather than politics.

CHAIR: You are not giving evidence, Senator Hanson-Young.

Mr Edgerton : Senator Reynolds, if I could answer it this way: I think the suggestion for a means testing of legal assistance could be a good one. If we have a legal aid system that provides legal assistance to people who cannot afford to get legal assistance privately but does not provide legal assistance to people who can afford to, that may well be a framework that would address both concerns.

Senator REYNOLDS: That is really a philosophical sort of argument rather than an issue of equity, I think, in terms of the use of taxpayers' dollars. On the point of the High Court, as I understand it, any of the 30,000 would still have recourse to the High Court, correct?

CHAIR: That was the first part of Senator Reynolds's question that you were going to address next, Mr Edgerton.

Mr Edgerton : Yes. It is true that, for any administrative decision made by any public official, there is recourse to the High Court. That is something that cannot be excluded by legislation, but that minimum judicial review right, which would be limited to the question of whether there was a jurisdictional error by the decision maker, would still be available in relation to these decisions.

Senator REYNOLDS: Previously, at a different hearing, we had evidence that the first part of the process in terms of the departmental review is not necessarily taken very seriously. I understand that some of these changes are designed to bring efficiencies into the process so that those seeking protection do take that more seriously and provide the evidence that they need to provide up-front rather than going through the process not very seriously up-front and waiting for further processes to provide more information. To me, that seems to be not a good use of the process and something that would slow a decision down not only for the department but also for those going through the process. Have you had any feedback or do you have any thoughts on how to make the process more streamlined?

Mr Edgerton : I think the best solution to that is to make sure that people are properly advised at the outset of what needs to be presented in a hearing, and really the solution to that is to make sure that people have proper legal advice right at the start of the process. One of the concerns that we have about the fast-tracking is that, if people do not say something at that first interview with a departmental officer that is relevant to their claim, they will be locked out of presenting that material on review to the immigration assessment authority. It is really important, as you say, for people to present everything up-front, and the best way to do that is to make sure that they have got proper legal advice.

Senator REYNOLDS: But shouldn't the burden be on anybody who is going through that process to be frank and to provide as much information and truthful information right from the beginning, rather than having to wait for other processes to provide what should be quite clear information about their background and their history?

Mr Edgerton : I think it is really important for all of the relevant information to come out at the first instance. The best way to ensure that is to make sure that people do get proper legal advice. If they do not get proper legal advice, there may be a range of reasons why they are reluctant to talk to an official unaided, particularly if they are not being particularly well treated by government officials in their home country before they have reached Australia.

Senator REYNOLDS: Are you saying that they currently do not have access to any advice at all up-front—that they should be truthful and honest and provide the correct information in the first instance? Is that what you are saying?

Mr Edgerton : I am saying that, since the removal of government funded free legal advice in March this year, there is no guarantee that people will have legal advice prior to that first interview.

Senator REYNOLDS: I would like a final point of clarification on that, because I am just trying to nail down what you are saying. I would have thought, as a matter of principle for the Australian people and the Australian government, that anybody seeking asylum or protection should, right up-front, have to be honest and frank and fulsome in terms of who they are and the circumstances in which they are seeking protection. The evidence we have had previously is that people do drag that out for an extended period of time and are quite often dishonest. I would have thought the onus should be on people to be honest up-front.


And if they do get that advice up front—you just said that they do—then the onus should be on them. They should not have to go through all these processes for the system to drag the truth out of them.

Mr Edgerton : I think our concern is that they will not get that advice up front, necessarily, under these new processes. And if they do not then there are dangers. There may be a whole range of reasons, aside from truthfulness, as to why they might not be—

Senator REYNOLDS: Do we slow the whole system down for everybody? Surely there has to be a better way, rather than slowing the whole system down, for those people who are not honest, rather than speeding it up . We should be processing those who are going to get protection quickly and up front, and then isolating and dealing with those people who have not been honest or who have issues with their claims, rather than dragging everybody down with them.

Mr Edgerton : I think the best way to have a really efficient system is to have people properly advised at the outset so that they can present all of the relevant material and that can be considered, rather than having to have several different stages of the process. If people are not properly advised up front there is a real risk that they will not present all of the relevant information. The concern with the amendments in this bill is that there will be unfairness later, because relevant information will not be able to be able to be presented on review.

CHAIR: Thank you very much Mr Edgerton, Senator Reynolds and Professor Triggs. Unfortunately, we are on a very constrained time limit today. We have your submission, which we and the secretariat have pored through. Thank you very much for making your time available.