2019-2020-2021

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Ending Indefinite and Arbitrary Immigration Detention Bill 2021

 

 

 

EXPLANATORY MEMORANDUM

and

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

 

 

 

 

 

Circulated by authority of

Andrew Wilkie MP

 

 

 

 

 

 

 

 

 

 

 

 

 

Ending Indefinite and Arbitrary Immigration Detention Bill 2021

 

OUTLINE AND SCOPE

 

This bill provides that alternatives to immigration detention, which may take various forms depending on the particular circumstances of the individual, are almost always used in preference to immigration detention. Under this bill, immigration detention for non-citizens and refugees must be lawful, necessary, proportionate and be for the shortest time possible. The provisions of this bill make mandatory detention illegal. This bill clearly outlines the reasons and the time frames, communication and services that are to be available in immigration detention, which will be independently monitored. It adheres to refugee and international human rights law and ensures all decisions are subject to independent oversight and prompt review.

 

FINANCIAL IMPACT

 

The bill will have no financial impact.

 

NOTES ON CLAUSES

 

PART 1 - PRELIMINARY

 

Clause 1: Short Title

 

1. This clause is a formal provision and specifies that the short title of the bill is the Ending Indefinite and Arbitrary Immigration Detention Act 2021

Clause 2: Commencement

 

2. This clause provides for the commencement of the Act on the day it receives Royal Assent.

 

Clause 3: Simplified outline

 

3. Subclauses 3(1) and (2) provide a simplified outline describing what this Act does and how it works.

Clause 4: Act binds the Crown

 

4. This clause sets out that this Act binds the Crown in each of its capacities.

Clause 5: Definitions

 

5. Subclause 5(1) defines several terms used specifically in the Act.

6. Subclause 5(2) sets out that a term or expression used in the Act that is defined for the purposes of the Migration Act has the same meaning in this Act and it would in the Migration Act 1958 . It is not the intention of this bill to rewrite definitions under migration law unless the current definitions are contrary to the intention of provisions within this Act or international law.

 

Clause 6: Constitutional basis of this Act

7. This clause sets out the constitutional validity of this Act.

Clause 7: Additional operation of this Act

 

8. This clause sets out additional constitutional sections that may be relied on to demonstrate the validity of this Act.

Clause 8: Principle of family unity

 

9. This clause sets out that the principle of family unity should be paramount in all actions and decisions under this Act. It recognises the obligation to protect and respect family life and follows the principle, set in international law, that family unity is inherent to the right to family life and this right is entitled to protection by society and the State. [1] Maintaining refugee family life is essential to protection and a key to success of refugees restoring their lives. [2]

10. Subclause 8(2) directs that actions which would disrupt an intact family unit or prevent family reunification should be avoided.

11. Subclause 8(3) outlines that not only should a country refrain from splitting up an intact family unit, it must also take action to allow a dispersed family to reunite without being forced to return to the country from which they have fled. This clause is in line with the principle, within the UNHCR guidelines and under international human rights law, that as a fundamental unit of society the family is entitled to respect and protection. [3]

Clause 9: Principle of the rights and best interests of the child

 

12. This clause sets out that the principle of the rights and best interests of the child should be paramount in all actions and decisions under this Act that affect a child.

13. Subclause 9(2)(a) re-emphasises the principle of family unity as a priority in decisions relating to a child.

14. Subclause 9(2)(b) re-iterates that if the Australian Government is responsible for a child they must ensure that the child has full access to education, health and mental health services, phone and internet and free legal services. They must also be housed, clothed and fed and provided with other necessary financial assistance.

15. Subclause 9(2)(c) states that children must be part of the decision-making process about their future and that their views must be fully considered when their future is being determined.

PART 2 - IMMIGRATION DETENTION

 

16. This part dismantles Australia’s current offshore immigration detention policies as they are abhorrent, cruel and in clear breach of refugee and international human rights law.

 

17. This part inserts into domestic law the fundamental principle that people have a legal right to seek asylum and any restriction on liberty imposed on persons exercising this right need to be provided for in law, carefully circumscribed, and subject to independent oversight and prompt review.

 

18. This part specifies that, under certain conditions, refugees and non-citizens can live in the community while being processed.

 

Clause 10: Relationship with other laws

 

19. This clause ensures that this Act overrides any current conflicting Commonwealth and State law including provisions of the Migration Act 1958 that specifically relate to immigration detention and the detention of minors. For example, s4AA, s189, s196 and s197AB of the Migration Act 1958.

 

Clause 11: Immigration detention

 

20. This clause outlines the Parliament’s objective that this section on immigration detention will adhere to the fundamental human right of liberty and security, the right to freedom of movement and the international prohibition on arbitrary detention.

 

21. Subclause 11(1) prescribes that detention must be in Australia and can only be applied where it pursues a legitimate purpose and has been determined to be both necessary and proportionate in each individual case. [4]

 

22. Subclause 11(2) specifies that it is the intention of Parliament that alternatives to immigration is the preferred option for refugees and non-citizens.

 

Clause 12: Alternatives to immigration detention

 

23. This clause outlines the alternatives to immigration detention that take various forms depending on the particular circumstances of the individual. All alternatives are based on the refugee or non-citizen living in the community with various restrictions imposed.

 

24. Subclause 12(1) specifies that if a reason for immigration detention, as listed under clause 16, cannot be found then the Secretary must determine alternatives to immigration detention. This is done by legislative instrument and is specific to individual cases.

 

25. Subclause 12(2) lists restrictions that may be determined by the Secretary and applied to refugees and non-citizens who is living in the community rather than in immigration detention. The listed restrictions have been taken from the UNHCR detention guidelines and it is expected that the intent of these guidelines are taken into consideration by the Secretary when making a determination. [5]

26. Subclause 12(3) ensures that a non-citizen or refugee remains in Australia legally and is easily identified by authorities when necessary.

27. Subclause 12(4) specifies a written determination must be given to the non-citizen or refugee to ensure transparency and accountability. Any determination under this section is subject to review.

28. Subclause 12(5) ensures that a refugee or non-citizen released into the community are lawful.

 

Clause 13: Access to assistance in alternatives to immigration detention

 

30. This clause outlines the assistance that is to be made available to non-citizen or refugee living in the community while being processed. These are consistent with international refugee and human rights law.

 

31. Subclause 13(1) incorporates Article 24 of the Refugee Convention, which states that Government should provide social security to refugees in a similar manner that is accorded to its citizens. This subclause also includes the provision of housing as specified under Article 21 of the Refugees Convention. [6]

 

32. Subclause 13(1)(b) confirms the right for non-citizens and refugees to work as specified under Article 17 of the Refugees Convention. [7]

 

33. Subclause 13(1)(c) specifies that a refugee or non-citizen in alternative detention should have the same access to services that they would if in immigration detention under this Act. This includes health and mental health services, education, counselling, government services and legal services.

 

34. Subclause 13(2) reinforces that the provisions of this section, ensuring adequate assistance is made available by the government to non-citizens or refugees in the community, overrides other existing Commonwealth and State legislation that may be contrary.

 

Clause 14: Timeframes for the determination of alternatives to immigration detention

 

35. This clause sets out that a determination under this section must remain in force for a minimum of 12 months. This is to ensure that people are not given restrictions within the community for an indefinite time frame.

 

36. Subclause 14(b) ensures that any time frame outside of the 12 month period must be decided by the Federal Circuit Court and is not left to the discretion of the Minister or Secretary.

 

Clause 15: Revocation or variation of restrictions

 

37. This clause sets out that if a non-citizen or refugee breaches the condition of their determination specified under subclause 13(1) then the Secretary can revoke or change the conditions. It is intended that such a decision would follow the principles of international human rights law.

 

38. A decision under this clause can be reviewed by the Administrative Appeals Tribunal as outlined under subclause 23(b) of this bill.

 

Clause 16: Reasons for immigration detention

 

39. Subclause 16(1) sets out that detention must not be arbitrary, and any decision to detain a person must be based on an assessment of the individual’s particular circumstances as outlined in subclauses 16(1)(a) to (h). Detention is an exceptional measure and can only be identified for a legitimate purpose. These conditions for detention have been taken from UNHCR detention guidelines or when detention is considered necessary. [8]

 

40. Subclause 16(2) ensures that detention can only be resorted to when it is determined to be necessary, reasonable in all circumstances, and proportionate.

 

41. Subclause 16(2)(a) sets out that detention must not be discriminatory based on the mode of a person’s arrival.

 

42. Subclause 16(2)(b) recognises that seeking asylum is not unlawful. Article 31 of the Refugee Convention specifically provides for the non-penalisation of asylum seekers and refugees having entered or stayed irregularly if they present themselves without delay and show good cause for their entry or stay.

 

43. Subclause 16(2)(c) aims to ensure that the Secretary’s power is restricted and that all decision-making is subject to independent review.

 

44. Subclause 16(3) outlines that people who have committed a crime should not be held in immigration detention facilities. If they pose a risk to public safety they should be prosecuted under the relevant Act and dealt with through the courts in the same way as Australian residents/citizens.

 

45. Subclause 16(4) prevents the arbitrary or mandatory detention of asylum seekers. Such detention policy is in clear breach of international law and has a catastrophic impact on a person’s physical and mental health.

 

Clause 17: Time frames for immigration detention

 

46. This clause sets out timeframes for immigration detention with the intention of ensuring that an individual’s detention period is as short as possible and regularly reviewed.

 

47. Subclause 17(1) outlines the preferred time frame. Any extension of that time frame must be decided by the Federal Circuit Court and is not left to the discretion of the Secretary.

 

48. Subclause 17(2) outlines what the Federal Circuit Court must take into consideration if it is to lawfully extend an asylum seeker or refugee’s immigration detention. Explicitly identifying the grounds for detention in legislation gives both the public and asylum seekers legal certainty in regards to the reasons and time frames for migration detention.

 

49. Subclause 17(3)(a) sets out the fundamental right to liberty as outlined in all major international and human rights instruments meaning that the detention of asylum seekers should be a measure of last resort, with liberty being the default position.

 

50. Subclause 17(3)(b) refers to alternatives to detention that would allow non-citizen or refugees to reside in the community subject to a number of conditions or restriction on their freedom of movements, which would still be subject to refugee and international human rights law.

 

51. Subclause 17(3)(c) outlines that the Federal Circuit Court, if considering alternatives to detention, must balance the appropriateness of placement in the community with any risks to the public. Matching an individual and family to the appropriate community should also be part of any assessment, including the level of support services needed and available.

 

52. Subclause 17(4) allows the Federal Circuit Court to make an additional order in relation to alternatives to immigration detention.

 

Clause 18: Information provided to detainees

 

53. Clause 18 sets out that if a decision is made that a non-citizen or refugee is to be detained then they must be informed of the reasons for their detention, provided with free and independent legal assistance, and informed of their right in connection with the order, including review procedures, in a  language and in terms which they understand.

 

Clause 19: Access to services in detention

 

54. Clause 19 outlines that if a person is detained then subclause 19(1) (a) to (f) are the services to which they are entitled while detained. This is in accordance with accepted international standards and it is intended that, under the regulations, specific needs are identified and met.

 

55. Subsection 19 (1)(a) lists health and mental health services. Detainees needing medical attention should be transferred to appropriate facilities or treated on site where such facilities exist. A medical and mental health examination should be offered to detainees immediately upon arrival, and conducted by medical practitioners. While in detention, detainees would receive periodic assessment of their physical and mental well-being. Many asylum seekers suffer psychological and physical effects as a result of their detention, and thus a regular assessment should also be undertaken regardless of whether they presented symptoms upon arrival. All detainees need to be provided with appropriate medical care and treatment.

 

54. Subclause 19(1)(b) sets out that counselling and trauma services are to be provided by qualified medical professionals. An initial trauma assessment should be made upon entering the facility and periodic assessment should be made during the period of detention. Victims of torture and other serious physical, psychological or sexual violence need special attention and services.

 

56. Subclause 19(1)(c) sets out that detainees should be able to make regular contact with friends, relatives, international and non-government organisations at all times.

 

57. Subclause 19(1)(d) lists education. This includes vocational training and should be offered as appropriate for the length of detention. Children have the right to access primary or secondary education, which would be offered off-site at local schools when possible.

 

58. Subclauses 19(1)(e) to (f) set out that detainees should be allowed to receive visits from families and friends, government and non-government services when they desire.

 

Clause 20: Communication for the purpose of obtaining immigration assistance and immigration legal assistance.

 

59. Clause 20 sets out that a person in immigration detention is entitled to seek immigration assistance and immigration legal assistance whenever they need to during business hours.

 

60. Subclauses 20(3) and (4) provide that appropriate space and privacy must available to detainees for the purpose of such meetings and/or phone conversations. Subclause 20(5) further reiterates the right to confidential communications with legal advisors.

 

Clause 21:  Children in detention

 

61. This clause sets out the fundamental principle that children should not be detained, as outlined in the United Nations Convention on the Rights of the Child (CRC). This clause sets out the very specific conditions and time frames for when a child can be detained.

 

62. Subclause 21(1) paraphrases Article 37 of the CRC which requires that the detention of children be used as a measure of last resort and for the shortest appropriate time.

 

63. Subclause 21(2) paraphrases Article 22 of the CRC which is that the best interests of the child shall be a primary consideration in all decisions made under this Act. Family unity remains paramount and children should not be separated from family subject to this section.

 

64. Subclause 21(4) paraphrases Article 22 of the CRC which requires that appropriate measures are taken to ensure that children who are seeking refugee status, whether accompanied by a parent or guardian or not, receive appropriate protection and assistance. As a general rule, unaccompanied children should not be detained and this subclause ensures that the matter goes before the Federal court as a priority and in the shortest time frame possible.

 

Clause 22:  Independent monitoring

 

65. This clause sets out the need to ensure that detention centres comply with international human rights law, as well as the provisions of this Act, through scrutiny and monitoring by an independent body. It is recognised that Australia recently ratified the Optional Protocol to the Convention Against Torture (OPCAT) and this will require Australia to create a regime of independent inspections for all places of detention, including immigration detention. The details of how this will work in Australia are still being determined but it is expected that this process will be incorporated for the purpose of this Act.

 

66. Subclause 22(1) specifies an external inspection by an independent body every six months. Such regular inspections are necessary to ensure compliance and transparency.

 

67. Subsection 22(3) outlines the scrutiny and monitoring, as identified by the UNHCR Detention Guidelines, necessary to ensure compliance with international principles.

 

68. Subclause 22(4) sets out that Clause 22 does not impact on other visitation rights set out in this Act.

 

Clause 23: Review of decisions

 

69. Subclause 23(a) ensures merits review of a decision by a Secretary to specify restrictions imposed in alternatives to detention, such as community detention.

 

70. Subclause 23(b) ensures merits review of a decision by the Secretary to revoke a determination of alternative detention under subclause 12(1) if a non-citizen or refugee is seen to breach a requirement of the determination.

 

71. Subclause 23(c) ensures merits review of a decision by the Secretary to vary the restrictions specified in a determination under clause 15.

 

PART 3 - Miscellaneous

 

JURSIDICTION OF COURTS

 

72. This Part affords a non-citizen or refugees with judicial review of adverse decision in accordance with principles of procedural fairness, transparency and accountability.

 

 

 

 

 

 

 

 

 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Ending Indefinite and Arbitrary Immigration Detention Bill 2021

 

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

 

This bill provides that alternatives to immigration detention, which may take various forms depending on the particular circumstances of the individual, are almost always used in preference to immigration detention. Under this bill, immigration detention for non-citizens and refugees must be lawful, necessary, proportionate and be for the shortest time possible. Mandatory detention is illegal under this bill. This bill clearly outlines the reasons and the time frames, communication and services that are to be available in immigration detention, which will be independently monitored. It ensures all decisions are subject to independent oversight and prompt review.

 

Human rights implications

 

The bill is necessary to ensure that Australian law is compliant with refugee and international law. It

implements into domestic law components of: Convention and Protocol relating to the Status of Refugees; International Covenant on Civil and Political Rights; Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment; International Covenant on Economic, Social and Cultural Rights; Convention on the Rights of the Child; Convention on the Elimination of all Forms of Discrimination against Women; and Convention on the Rights of Persons with Disabilities.

 

Conclusion

 

This bill is compatible with the human rights and freedoms recognised in the international instruments listed above. It ends the illegal, inhumane and arbitrary detention of refugees by the Australian Government.

 

 

 

 

 

 

Andrew Wilkie MP