Tuesday 4 September 2018

A law that would retrospectively make hundreds of asylum seekers ‘unauthorised maritime arrivals,’ is inconsistent with human rights principles, the Human Rights Commissioner has told a Senate Committee.

Commissioner Edward Santow on Monday made oral submissions to the Senate Legal and Constitutional Affairs Legislation Committee about the Migration (Validation of Port Appointment) Bill 2018.

The Bill would validate the Australian Government’s treatment of asylum seekers who arrived at Ashmore Reef between 2002 and 2013 as ‘unauthorised maritime arrivals,’ and could impact on their future immigration status in Australia. 

It has come in response to recent Australian court decisions that found a 2002 legislative instrument was invalid. This instrument had resulted in the mischaracterisation of those who arrived via the reef until 2013.

“If passed, this Bill would have a detrimental effect on the human rights of a large number of asylum seekers,” Commissioner Santow said.

“International human rights law would only permit a limitation on human rights if the law in question can be justified as necessary and proportionate to a legitimate aim. In the Commission’s view, the Government has not made the case in respect of this Bill.”

The Bill could prevent some of the affected people from applying for protection in Australia and would validate having prevented them from applying for protection for many years, Commission Santow said. 

Those still waiting for a decision on protection applications may also lose their right to a review, and some people who arrived many years ago - and have become permanent residents - may have family reunions delayed.

The Bill would also retrospectively authorise the act of taking these people to offshore processing facilities on Nauru and Manus Island.  “The Commission has expressed human rights concerns about regional processing for many years,” Commissioner Santow said.

The Australian Human Rights Commission’s full submission is available here.