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Inquiry into Australia’s agreement with Malaysia in relation to asylum seekers

Legal Legal
Friday 14 December, 2012

Inquiry into Australia’s agreement with Malaysia in relation to asylum
seekers

Australian Human Rights Commission
Submission to the Senate Standing Committees on Legal and Constitutional Affairs

14 September 2011


Table of Contents


1 Introduction

  1. The Australian Human Rights Commission makes this submission to the Senate
    Standing Committees on Legal and Constitutional Affairs in their Inquiry into
    Australia’s agreement with Malaysia in relation to asylum seekers. The
    Commission is established by the Australian Human Rights Commission Act
    1986
    (Cth) and is Australia’s national human rights institution.
  2. This submission draws on extensive work the Commission has undertaken in
    relation to Australian immigration law, policy and practice over the past
    decade. This includes national
    inquiries,[1] examinations of proposed
    legislation,[2] the investigation of
    complaints from individuals subject to Australia’s immigration laws and
    policies,[3] and commenting on
    policies and procedures at the request of the Department of Immigration and
    Citizenship (DIAC).
  3. More specifically, this submission draws on the Commission’s work on
    issues regarding the offshore and third-country processing of asylum claims,
    including analyses in academic
    journals,[4] specific elements of
    national inquiries,[5] examinations of
    relevant bills,[6] and numerous public
    statements.[7]

2 Background

  1. The Prime Ministers of Australia and Malaysia announced on 7 May 2011 that
    they would enter into an arrangement in relation to asylum seekers and refugees
    in the Asia-Pacific region. The Prime Ministers stated that, under the
    arrangement, 800 asylum seekers who arrived in Australia by boat would be
    transferred to Malaysia to have their claims for protection assessed and
    Australia would resettle 1000 recognised refugees from Malaysia per year for up
    to four years.[8]
  2. On 25 July 2011, the Arrangement between the Government of Australia and
    the Government of Malaysia on Transfer and Resettlement
    (the arrangement)
    was signed;[9] the ‘Operational
    guidelines to support transfers and resettlement’ (operational
    guidelines), produced to supplement the arrangement, were
    issued;[10] and the Minister for
    Immigration and Citizenship declared that asylum seekers could be transferred
    from Australia to Malaysia under the ‘Instrument of Declaration of
    Malaysia as a Declared Country under subsection 198A(3) of the Migration Act
    1958’.
  3. The High Court of Australia’s decision in Plaintiff M70/2011 and
    Plaintiff M106/2011 v Minister for Immigration and Citizenship
    on 31 August
    2011 held that the Minister for Immigration and Citizenship’s declaration
    of Malaysia as a third country to which ‘offshore entry persons’ can
    be removed was invalid. The majority of the High Court concluded that the
    Minister could make a valid declaration under s 198A(3)(a) of the Migration Act 1958 (Cth) (Migration Act) only if the third country to
    which the declaration related satisfied the criteria set out in
    s 198A(3)(a)(i)-(iv) as a matter of objective
    fact.[11] Moreover, it concluded
    that the particular protections and procedures prescribed by s 198A(3)(a)
    must be available in the third country as a matter of law; it was insufficient
    for the Minister to have regard merely to what has happened, is happening or may
    be expected to happen in that
    country.[12] The High Court found
    that Malaysia was, and is, not obliged under international law to provide the
    protections referred to in s 198A(3)(a)(i)-(iii) and nor does its domestic
    law contain provisions recognising or affording rights to asylum seekers. The
    Court also held that in order to satisfy the criteria in
    s 198A(3)(a)(i)-(iii), the procedures for determining refugee status and
    the protection provided by the country are protections of the kind that
    Australia undertook to provide when it signed the Convention Relating to the
    Status of Refugees
    (Refugee Convention); that is, the protections are to be
    understood as ‘a reflex of Australia’s
    obligations’.[13] Lastly, the
    High Court held that the removal of a person from Australia who is a
    ‘non-citizen child’ within the meaning of the Immigration
    (Guardianship of Children) Act 1946
    (Cth) (IGOC Act), or the taking of that
    child to another country pursuant to s 198A of the Migration Act, cannot
    lawfully be effected without the written consent of the Minister for Immigration
    and Citizenship (or his
    delegate).[14] It confirmed that any
    decision of the Minister to provide that consent would be subject to judicial
    review.[15]
  4. The Prime Minister and the Minister for Immigration and Citizenship
    announced on 12 September 2011 that the Australian Government intended to
    introduce legislation to ‘restore the understanding of the third country
    transfer provisions of the Migration Act that existed prior to the High
    Court’s decision on 31 August
    2011’.[16] The Ministers also
    announced on this date an intention to amend the IGOC Act ‘to enable
    decisions to be made with respect to
    minors’.[17]
  5. In light of the High Court’s findings in Plaintiff M70/2011 and
    Plaintiff M106/2011 v Minister for Immigration and Citizenship
    and
    Australia’s binding international obligations, the Commission strongly
    recommends against a revival of the arrangement to transfer asylum seekers to
    Malaysia. As it is unclear what form any future arrangement with Malaysia in
    relation to asylum seekers and refugees may take, this submission addresses the
    Commission’s primary concerns with respect to the original arrangement and
    operational guidelines.

3 Summary

  1. The Commission recognises the need for appropriate regional, indeed
    international, cooperation on issues relating to asylum seekers and refugees.
    The Commission also welcomes the Australian Government’s agreement to
    accept an additional 4000 refugees over the next four years.
  2. However, the Commission holds serious concerns about the human rights
    implications of a number of aspects of the arrangement, including that:

    • The detention of people awaiting transfer under the arrangement may be
      arbitrary as the conditions of detention under which these people may be held
      may be unnecessarily restrictive.
    • Transferring asylum seekers to Malaysia under the arrangement may lead to
      serious breaches of Australia’s international human rights obligations.
      Most significantly, transfer under the arrangement may lead to breaches of
      Australia’s non-refoulement obligations, as well as those relating
      to equality and family unity.
    • There are inadequate pre-transfer assessment processes in place under the
      arrangement to safeguard against breaches of fundamental human rights.
    • The safeguards included in the arrangement and operational guidelines are
      inadequate to ensure that the rights of people transferred to Malaysia with
      respect to liberty and humane treatment will be protected.
    • The safeguards included in the arrangement and operational guidelines are
      inadequate to ensure that people transferred to Malaysia will receive
      appropriate services and support.
    • There is limited provision for independent oversight and monitoring of the
      arrangement. In the absence of independent monitoring, the Australian Government
      may not be able to adequately ensure that Malaysia is complying even with the
      modest safeguards included in the
      arrangement.[18]
    • The arrangement may compromise Australia’s obligation to ensure that
      children’s best interests are a primary consideration in all actions
      concerning them. The Commission is particularly concerned about the fate of any
      unaccompanied minors transferred to Malaysia under the arrangement.
  3. The Commission was highly critical of past policies of third-country
    processing established under bilateral agreements with Asia-Pacific nations such
    as Nauru and Papua New Guinea. In the Commission’s view, re-establishing
    third-country processing in these places would not be a humane, viable
    alternative to the arrangement with Malaysia.
  4. In the Commission’s view, all people who make claims for asylum in
    Australia should have those claims assessed on the mainland through the refugee
    status determination system that applies under the Migration Act. Further, in
    other than exceptional cases, those who claim asylum should be placed in
    community-based alternatives to detention while their claims are
    processed.

4 Recommendations

Recommendation 1: Asylum seekers should not be transferred from
Australia to Malaysia under the Arrangement between the Government of
Australia and the Government of Malaysia on Transfer and Resettlement
.

Recommendation 2: All people who make claims to Australia for asylum
should have those claims assessed on the mainland through the refugee status
determination system that applies under the Migration Act. Community-based
alternatives to mandatory and indefinite immigration detention should be used
while asylum seekers’ claims are being processed.

5 Detention
of people awaiting transfer

  1. The Commission has concerns about the detention in Australia of people who
    are subject to the arrangement prior to their transfer. People subject to
    transfer to Malaysia face considerable uncertainty as to their future and it is
    inhumane to place them under the additional and unnecessary pressure of
    detention in a high-security facility. In the Commission’s view, if people
    awaiting transfer must be detained, they should be held in the least restrictive
    form of detention appropriate to their circumstances.
  2. Until recently, people awaiting transfer to a third country were held in
    secure immigration detention facilities on Christmas
    Island.[19] Restrictive detention of
    people waiting transfer may be arbitrary in breach of Australia’s
    obligations under article 9 of the International Covenant on Civil and
    Political Rights
    (ICCPR) and article 37(b) of the Convention on the
    Rights of the Child
    (CRC).[20] Further, this detention appears inconsistent with the Australian
    Government’s New Directions in Detention policy, which requires
    that people be detained in the least restrictive environment appropriate to
    their circumstances.[21] In
    addition, the CRC requires and the Migration Act affirms that children should be
    detained only as a measure of last resort and for the shortest appropriate
    period of time.[22]
  3. Families with children and unaccompanied minors were, until recently,
    detained in the secure Bravo compound at the Phosphate Hill immigration
    detention facility rather than in the Construction Camp, a less restrictive
    facility which at the time was empty. Unaccompanied minors were also detained in
    the Lilac compound at North-West Point Immigration Detention
    Centre.[23]
  4. In the Commission’s view, the classification of the Bravo and Lilac
    compounds as Alternative Places of Detention is misleading and inappropriate.
    Both look and feel like Immigration Detention Centres, and in practice have been
    operated as such for the past year or two. The Commission believes the detention
    of families and unaccompanied minors in these environments undermines the
    Australian Government’s commitment that children and their family members
    will not be detained in Immigration Detention
    Centres.[24]
  5. The Commission is also concerned that people in detention who are subject to
    transfer under the arrangement may have very limited access to communication
    facilities and news of the outside world. Under international human rights
    standards, people in detention should be able to maintain contact with family,
    friends and community members; and they should be provided with facilities to
    consult in private with legal
    representatives.[25] However, the
    Commission understands that people who were until recently awaiting transfer to
    a third country were not permitted to use the internet or to watch television.
    Moreover, apart from the facilitation of an ‘alive’ call on arrival,
    they were only provided with access to a telephone if they request to speak to a
    specific legal representative or with Legal
    Aid.[26] In the Commission’s
    view, these opportunities to communicate with people outside detention were
    inadequate.
  6. The lack of independent oversight of the detention of people awaiting
    transfer under the arrangement is a further source of concern. Independent
    monitoring of immigration detention facilities is essential in order to increase
    accountability and transparency, and to ensure compliance with internationally
    accepted human rights standards. However, the Commission has been informed by
    DIAC that people awaiting transfer were not provided with contact details for
    independent oversight bodies such as the Commission or the Commonwealth
    Ombudsman.[27] All people subject to
    transfer to a third country should be provided with contact details for
    independent oversight bodies and should be able to communicate with those bodies
    freely and confidently should they wish to do so.

6 Transfer to Malaysia

  1. Transferring asylum seekers to Malaysia under the arrangement risks
    breaching a range of Australia’s international obligations. The
    Commission’s main concerns relate to the principle of non-refoulement, the right to family unity and the principle of equality.

6.1 Refoulement

  1. The arrangement creates an increased and ongoing risk of breaches of
    Australia’s international non-refoulement obligations.[28]
  2. Australia is prohibited under article 33(1) of the Refugee Convention from
    expelling or returning refugees to territories where their lives or freedom
    would be threatened on the basis of their race, religion, nationality,
    membership of a particular social group or political
    opinion.[29] Australia has further
    and broader non-refoulement obligations under the ICCPR, CRC and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
    Punishment
    (CAT),[30] which
    prevent the removal of anyone from Australia to a country where they are in
    danger of death, torture or other mistreatment including arbitrary
    detention.[31]
  3. Transferring asylum seekers to Malaysia increases the risk that they will be
    returned to persecution or danger in their countries of origin, in breach of
    these non-refoulement obligations. The transfer arrangement creates a
    situation in which Australia’s non-refoulement obligations are
    ‘passed on’ to Malaysia. In other words, Australia places itself in
    a position in which it relies on Malaysia to comply with the non-refoulement obligations that are in fact owed to asylum seekers by
    Australia. The Commission is not convinced that there are adequate safeguards to
    ensure that these obligations will be respected in Malaysia. Malaysia is not a
    signatory to the Refugee Convention, ICCPR or CAT, and consequently is not bound
    by the principle of non-refoulement under these treaties. Although the
    Government of Malaysia has agreed to respect the principle of non-refoulement in the arrangement, the arrangement is merely ‘a
    record of the Participants’ intentions and political commitments’
    and is not legally binding.[32]
  4. The Commission is particularly concerned about the potential refoulement of transferees who are found not to satisfy the criteria in
    the Refugee Convention, but who nevertheless are in need of protection. The
    arrangement provides that people who are found not to be refugees in Malaysia
    are to be returned to their countries of origin, by force if
    necessary.[33] Before such a return
    takes place, the arrangement provides an opportunity for the Australian
    Government to ‘consider the broader claims of any Transferee to protection
    under other human rights conventions’ and ‘make suitable alternative
    arrangements for the removal of [a] Transferee from
    Malaysia’.[34] However, it is
    not clear how these arrangements will operate in practice and whether they will
    be sufficient to safeguard the rights of non-refugees in need of protection. For
    example, the arrangement merely provides an opportunity for the
    Australian Government to consider people’s claims to protection under
    international law, it does not prescribe the circumstances in which such
    consideration must or should take place. Nor does the arrangement contain any
    detail in relation to the assessment procedure to be used; who will conduct the
    assessment; whether the assessment will take place in Australia or Malaysia;
    what the outcome of a positive assessment will be; or whether a person who
    receives a negative assessment will have any avenues of appeal.
  5. Moreover, transferring asylum seekers to Malaysia could of itself amount to
    a breach of Australia’s non-refoulement obligations. As noted
    above, Australia is bound by the principle of non-refoulement under the
    ICCPR, CRC and CAT, in addition to the Refugee
    Convention.[35] The United Nations
    Human Rights Committee has held that a state will contravene its obligations under the ICCPR if it removes a person to another country in
    circumstances where there is a real risk that their rights under the ICCPR
    – including those relating to arbitrary detention – will be
    violated.[36] Malaysian domestic law
    does not recognise the status of refugees or asylum seekers. Further,
    Malaysia’s record regarding the treatment of asylum seekers has been the
    subject of extensive documentation by reputable non-government organisations,
    including Amnesty International, which has reported that asylum seekers and
    refugees in Malaysia are routinely subject to arrest, detention in poor
    conditions, exploitation and corporal
    punishment.[37] In light of this
    record, the Commission is concerned about the possibility of mistreatment of
    asylum seekers transferred from Australia to Malaysia.
  6. The arrangement and operational guidelines contain some ostensible
    safeguards against mistreatment. For example, the arrangement provides that
    Malaysia will ‘facilitate Transferees’ lawful presence’ in
    Malaysia while their claims for asylum are being processed and that transferees
    will be ‘treated with dignity and respect and in accordance with human
    rights standards’.[38] The
    operational guidelines further state that people transferred under the
    arrangement will be ‘permitted to remain in Malaysia and will not be
    liable to being detained and arrested due to their ongoing presence in Malaysia
    under [the] Arrangement’ and that detailed guidance will be provided to
    law enforcement officials in Malaysia as to the operation of the
    arrangement.[39] However, in the
    Commission’s view, these are not adequate assurances of the safety of
    people transferred to Malaysia. Neither the arrangement nor the operational
    guidelines are legally
    binding.[40]
  7. In addition, the Commission is not satisfied that the safeguards provided in
    the Immigration (Exemption) (Asylum Seekers) Order 2011 (Malaysia) (the
    Order) will adequately protect asylum seekers from mistreatment. Section 4 of
    the Order provides that persons transferred pursuant to the agreement can enter
    and stay in Peninsular Malaysia and are exempt from s 6 of the Immigration Act 1959 (Malaysia) (Malaysian Immigration Act), titled
    ‘Control of entry into Malaysia’. However, s 4 of the Order
    also provides that the exemption will be void immediately if any of five
    circumstances arise, including that the person was found to be involved in any
    activity contrary to Malaysian law or has been listed as a prohibited immigrant.
    Moreover, the burden of proof that a person is subject to the exemption order
    lies on that person. There is no special provision for assistance to minors.
    Section 6 of the Malaysian Immigration Act imposes penalties, including
    whipping, for breaches of that section.

6.2 Family
separation

  1. The arrangement undermines Australia’s international obligations to
    respect the right of everyone to family unity.
  2. The ICCPR and CRC both provide that everyone has the right to freedom from
    interference with their family.[41] Article 10(1) of the CRC specifically states that ‘applications by a child
    or his or her parents to enter or leave a State Party for the purpose of family
    reunification shall be dealt with ... in a positive, humane and expeditious
    manner’.
  3. If asylum seekers who are transferred to Malaysia already have family
    members in Australia, they may face potentially indefinite separation from their
    family members and Australia could breach its obligation to protect the right to
    family unity.

6.3 Discrimination

  1. Subjecting asylum seekers who arrive in Australia by boat to transfer under
    the arrangement may amount to discrimination, in breach of Australia’s
    international human rights obligations.
  2. Article 31 of the Refugee Convention prohibits state parties from penalising
    asylum seekers on account of their unlawful
    entry.[42] Further, Australia is
    bound to respect the right of everyone to equality and non-discrimination under
    article 26 of the ICCPR.[43] The
    arrangement creates a system under which asylum seekers who arrive by plane in
    non-excised places have access to Australian refugee status determination
    processes and procedural safeguards, such as the independent assistance of a
    migration agent and review of decisions by tribunals and courts, whereas asylum
    seekers who arrive by boat will be unable to make a valid visa application in
    Australia and will be subject to transfer to
    Malaysia.[44] This two-tiered system
    arguably penalises asylum seekers on the basis of their mode of arrival, in
    breach of Australia’s obligations under the Refugee Convention and the
    ICCPR.
  3. Moreover, subjecting children who arrive in Australia by boat to the
    prospect of transfer to Malaysia undermines children’s right to equality.
    Article 22 of the CRC affirms the right of child asylum seekers and refugees to
    receive appropriate protection and
    assistance.[45] The principle of
    non-discrimination in article 2 of the CRC means that all children seeking
    asylum are entitled to the same level of assistance and protection of their
    rights, regardless of how or where they
    arrive.[46] The two-tiered asylum
    system created by the arrangement arguably also breaches Australia’s
    obligations with regard to children’s
    equality.[47]

7 Pre-transfer
assessments

  1. The Commission is concerned that neither the arrangement nor the operational
    guidelines provide adequate detail about pre-transfer assessment procedures or
    about what specific steps will be taken to protect the rights of particularly
    vulnerable individuals.
  2. In the Commission’s view, pre-transfer assessment procedures should
    include a thorough assessment of the non-refoulement obligations owed by
    Australia to each individual under the Refugee Convention, ICCPR, CAT and CRC.
    The assessment procedures should also include an evaluation to identify
    vulnerable individuals, including unaccompanied minors, families with children,
    pregnant women, people with serious health or mental health issues, and
    survivors of torture and trauma. In addition, assessments should consider
    whether a person has immediate family in Australia from whom they would be
    separated in the event of transfer. Transfer should not proceed if a
    pre-transfer assessment identifies an unacceptable risk that a person’s
    human rights would be breached in Malaysia; if people have a particular
    vulnerability; or if transfer would lead to separation from immediate family.
  3. Under the arrangement, Australia has stated that it will ‘put in place
    an appropriate pre-screening assessment mechanism in accordance with
    international standards before a transfer is
    effected’.[48] DIAC has
    informed the Commission that guidelines have been developed for assessing people
    prior to their transfer, to ensure both fitness to travel and compliance with
    Australia’s international
    obligations.[49] However, these
    guidelines have not been made public, nor have they been provided to the
    Commission.
  4. Furthermore, it remains unclear what the outcome of any ‘pre-screening
    assessment’ under the arrangement would be: neither the arrangement nor
    the operational guidelines contain any detail in this regard. The Commission
    remains concerned that the pre-transfer assessment processes may not adequately
    protect the rights of particularly vulnerable individuals.
  5. In addition, the Commission has concerns about the 72-hour timeframe in
    which Australia and Malaysia aim to achieve the transfer of people under the
    arrangement.[50] Comprehensive,
    effective assessments may not possible in such a short period. This is
    particularly problematic given the significance of the potential consequences of
    an incorrect assessment.

8 Conditions in Malaysia

  1. The Commission has concerns about the conditions in which people transferred
    to Malaysia under the arrangement will
    live.[51] The arrangement states
    that ‘Transferees will enjoy standards of treatment consistent with those
    set out in the operational guidelines’ while in Malaysia, and the
    operational guidelines prescribe an ‘adequate standard of treatment’
    for people transferred to
    Malaysia.[52] However, neither the
    arrangement nor the operational guidelines are legally
    enforceable.[53] Furthermore, the
    operational guidelines contain insufficient detail to satisfy the Commission
    that satisfactory provision will be made for people transferred to Malaysia with
    respect to accommodation and income, or that such people will receive
    appropriate services and support.

8.1 Detention

  1. People who are transferred face the possibility of detention in
    Malaysia.[54] While it is expected
    that ‘[g]enerally Transferees will be allowed to reside in the
    community’, the operational guidelines acknowledge that people transferred
    to Malaysia may be detained upon arrival for the purposes of identity
    confirmation or to undertake security or other
    checks.[55] According to the
    operational guidelines, people may be held in transit centres or unspecified
    alternative locations.[56] The
    operational guidelines provide that ‘Malaysian authorities authorise
    departure of individual Transferees from Transit centre[s] generally within
    forty-five (45) days (other than in exceptional circumstances)’. However,
    the guidelines do not place a time limit on detention in Malaysia nor do they
    provide for it to be reviewed by a court or other independent authority.
  2. Malaysian domestic law does not contain any protections for asylum seekers
    and refugees, and as noted above, Malaysian law has a poor record with respect
    to the treatment of these
    people.[57] The Malaysian
    Immigration Act was amended in 1997 and 2002, leading to the establishment of
    harsh penalties for immigration violations.
  3. Some offences under the Malaysian Immigration Act are punishable by terms of
    imprisonment. Section 6(1)(c), for example, provides the following punishment
    for entering and staying in Malaysia without a permit: ‘Fine not exceeding
    RM10,000 or ... imprisonment for a term not exceeding 5 years or ... both, and
    shall also be liable to whipping of not more than 6 strokes.’ Other crimes
    subject to whipping under the Act include employing a person without a valid
    permit, forging identity documents, and harbouring a person who has violated the
    Immigration Act. Section 15(4) provides that remaining in Malaysia after the
    expiration of an entry permit also carry the punishment of a ‘[f]ine not
    exceeding RM10,000 or ... imprisonment for a term not exceeding 5 years or ...
    both’.[58]
  4. The Commission is concerned that the proposed arrangement may not provide
    adequate protections to prevent the imprisonment of people transferred to
    Malaysia.[59]

8.2 Cruel, inhuman
and degrading treatment

  1. International law prohibits cruel, inhuman and degrading treatment and
    punishment. For example, the ICCPR states that ‘[n]o one shall be
    subjected to torture or to cruel, inhuman or degrading treatment or
    punishment’[60] and that
    ‘persons deprived of their liberty shall be treated with humanity and with
    respect for the inherent dignity of the human
    person’.[61] The CAT prohibits
    torture and other acts of cruel, inhuman or degrading treatment or punishment
    which do not amount to
    torture.[62]
  2. As noted above, some offences under the Malaysian Immigration Act are
    punishable by whipping.[63] The
    Commission is concerned that the safeguards in the arrangement may not provide
    adequate protections to prevent the corporal punishment of people transferred to
    Malaysia.[64]

8.3 Services and
support for asylum seekers transferred to Malaysia

  1. International human rights standards provide that everyone is entitled to an
    adequate standard of living for themselves and their families, including
    adequate food, clothing and
    housing.[65] It is not clear whether
    appropriate provision will be made in this regard for people transferred to
    Malaysia. The operational guidelines state that people who are transferred will
    be provided with basic accommodation and a subsistence allowance for one month,
    after which time they are expected to become self-sufficient through employment
    and move into private
    accommodation.[66] While the
    guidelines provide for some assistance to be provided to needy asylum seekers by
    the International Organization for Migration (IOM) and the United Nations High
    Commissioner for Refugees (UNHCR) after this initial period, there is a lack of
    clarity about the circumstances in which such assistance will be provided and
    the form that it will take.[67] As
    noted above, it also appears that asylum seekers transferred to Malaysia may not
    receive formal work permits which would ensure their legal right to
    employment.[68] In these
    circumstances, it is unlikely that people transferred to Malaysia would have any
    industrial safeguards or avenues or recourse, for example, in the event that
    their employer refuses to pay them.
  2. Asylum seekers, especially those in detention, should be provided with
    independent legal advice and other appropriate support, for example from a
    competent migration agent.[69] Under
    the CRC, all children in detention have the right to prompt access to legal and
    other appropriate assistance.[70] Further, international standards provide that asylum seekers in detention are
    entitled to legal counsel, which should be free where possible, and
    access to refugee advocate
    bodies.[71] In the
    Commission’s view, access to competent, independent legal assistance
    – even for those who are not in detention – is necessary to ensure
    the integrity of the asylum process. However, the arrangement and operational
    guidelines make no provision for even basic assistance in accessing legal advice
    or advocacy.
  3. International human rights standards provide that all people have a right to
    the highest attainable standard of physical and mental
    health.[72] Despite this, the
    operational guidelines state simply that ‘Transferees will have access to
    basic medical care under arrangements UNHCR has for asylum seekers and refugees
    with some private clinics’ and that ‘existing IOM arrangements with
    a private hospital’ will be used when emergency medical assistance is
    required.[73] Neither the
    arrangement nor the guidelines make mention of timeframes for the provision of
    health services; provision of specialist medical care; access to dental care;
    access to mental health care; or access to torture and trauma counselling. In
    any case, it has been suggested that no special health care arrangements have
    been made for people transferred to Malaysia over and above those currently
    provided by UNHCR and IOM to refugees and asylum seekers living in
    Malaysia.[74]
  4. Finally, it is not clear that adequate support will be provided to
    vulnerable people who are transferred to Malaysia under the arrangement,
    including unaccompanied minors, families with children, pregnant women, people
    with disabilities and survivors of torture and
    trauma.[75] The arrangement states
    that ‘special procedures will be developed and agreed to by the
    Participants to deal with the special needs of vulnerable cases’, but does
    not elaborate on these.[76] The
    operational guidelines provide some further detail, stating that vulnerable
    people will be identified through IOM’s initial health assessment process;
    that they will have access to existing UNHCR arrangements including a welfare
    ‘hotline’; and that a backup ‘safety net’ will be
    provided to vulnerable people by IOM. Nevertheless, it remains unclear whether
    these arrangements will sufficiently protect all people who require additional
    support for various reasons while in Malaysia.

9 Oversight and
monitoring

  1. The Commission is concerned about the adequacy of arrangements for the
    oversight and monitoring of arrangements in
    Malaysia.[77]
  2. The arrangement provides for the establishment of a Joint Committee, to be
    charged, among other things, with overseeing the welfare of transferees and
    developing special procedures for vulnerable transferees. The arrangement also
    provides for the creation of an Advisory Committee to provide advice to the
    Australian and Malaysian Governments on the implementation of the
    arrangement.[78] As both of these
    Committees comprise Australian and Malaysian Government representatives, the
    Commission is concerned about the potential for real and perceived partiality in
    their operation. The arrangement provides for no further mechanisms for fully
    independent oversight of arrangements in Malaysia.
  3. DIAC has suggested that non-government organisations (NGOs) may play a role
    in overseeing the management of the
    arrangement.[79] However, a range of
    practical difficulties make the prospect of effective monitoring by NGOs
    unlikely. The efforts of Australian NGOs may be hampered by geographical
    factors, as transnational travel requires the dedication of significant time and
    funds which may not be available to NGOs, limiting their capacity to have a
    permanent or regular presence in Malaysia. Malaysian-based NGOs would need to be
    adequately resourced to play an effective monitoring role.
  4. The Commission is particularly concerned that the arrangement and
    operational guidelines make no provision for the monitoring of transit centres
    or other places where people may be held in detention under the arrangement. Nor
    do the arrangement or guidelines provide for any specific mechanism through
    which people who are being mistreated in Malaysia in breach of the arrangement
    can complain and apply for redress.
  5. With no assurance of independent, impartial scrutiny, Australia may not be
    able to adequately monitor whether Malaysia complies with its undertakings under
    the arrangement, including not to refoule, to arrest or detain
    transferees due to their ongoing presence in Malaysia, and to treat transferees
    with dignity and respect and in accordance with human rights
    standards.[80]

10 Implications
for children

  1. The Commission has serious concerns in relation to children who are subject
    to the arrangement. In the Commission’s view, children who seek protection
    in Australia should not be transferred to Malaysia under the arrangement.

10.1 Children subject
to transfer under the arrangement

  1. Article 3 of the CRC provides that a child’s best interests must be a
    primary consideration in all actions concerning
    them.[81] There are real questions
    as to whether transferring children seeking asylum to Malaysia could be in their
    best interests.
  2. Children who are transferred to Malaysia under the arrangement face
    potential breaches of a range of their fundamental rights, even with the
    implementation of additional safeguards. As with all people subject to the
    arrangement, there is the potential for children transferred to Malaysia to be refouled or to be separated from their families, in contravention of
    Australia’s international
    obligations.[82] The prospect of
    detention in Malaysia, inaccessible healthcare and inadequate arrangements for
    subsistence and accommodation also apply equally to children subject to the
    arrangement.[83]
  3. Further, the educational opportunities to be provided to children who are
    transferred to Malaysia may be unsatisfactory. Under international human rights
    standards, all children have a right to
    education.[84] Primary education
    must be available free to all and secondary education should be available and
    accessible.[85] Under the
    operational guidelines, however, private education will be provided only where
    it is available and affordable, and in other circumstances, children will have
    access only to ‘informal education arrangements organised by
    IOM’.[86] Reference to the
    affordability of private education suggests that people transferred under the
    arrangement may be required to bear the costs associated with their
    children’s primary education themselves. Moreover, there is no provision
    made for education in the event that educational arrangements under the IOM are,
    for whatever reason, unavailable or inaccessible.
  4. DIAC has informed the Commission that it intends to undertake a
    consideration of the best interests of any child prior to their being
    transferred under the
    arrangement.[87] However, the
    Commission is concerned that no guidelines as to the kind of assessment which
    will take place in relation to children have been made public or provided to the
    Commission. The Commission is also concerned that no indication has been made as
    to what the outcome of any such assessment might be: whether children identified
    under the assessment would not be transferred, or whether transfer might still
    be affected with implementation of special arrangements upon a child’s
    arrival in Malaysia. Without further detail of this nature, the impact of a
    pre-transfer best-interests assessment in safeguarding the rights of children
    subject to the arrangement remains unclear.
  5. The UNHCR also has concerns about transferring children to Malaysia under
    the arrangement. The UNHCR’s assessment of the arrangement as
    ‘workable’ was conditional ‘upon proper protection and
    vulnerability safeguards determining the pre-transfer/pre-removal assessment
    process in Australia, prior to the taking of any decision on who will be
    transferred under the Arrangement and when’. In particular, the UNHCR
    stressed that ‘the pre-transfer process must ... be particularly sensitive
    to the best interests of the
    child’.[88]

10.2 Unaccompanied
minors subject to transfer under the arrangement

  1. The Commission has particular concerns about the implications of the
    arrangement for unaccompanied minors. Unaccompanied minors are affected by the
    same vulnerabilities as any other child asylum seeker subject to the
    arrangement, but they also lack the protection and support associated with being
    accompanied by immediate family
    members.[89]
  2. The Commission recently intervened in the matter Plaintiff M106/2011 v
    Minister for Immigration and Citizenship
    in the High Court of Australia,
    which challenged the operation of the arrangement specifically in relation to
    unaccompanied minors.[90]
  3. The Commission submitted to the High Court that domestic law requires an
    unaccompanied child’s best interests to be taken into consideration in the
    decision as to whether to transfer the child under the arrangement. Under
    s 6 of the IGOC Act, the Minister for Immigration and Citizenship is the
    legal guardian of ‘non-citizen children’ in
    Australia,[91] including
    unaccompanied minors subject to transfer under the
    arrangement.[92] As the guardian of
    unaccompanied minors under the IGOC Act, the Minister is charged with all the
    usual incidents of guardianship – a set of rights and responsibilities
    analogous to those of a parent.[93] Importantly, the best interests of the child are an overriding limit on the
    exercise of the powers of a guardian, including those of the Minister as
    guardian of unaccompanied minors seeking asylum in
    Australia.[94]
  4. Under the IGOC Act, no non-citizen child shall leave Australia except with
    the written consent of the
    Minister.[95] In deciding whether to
    provide such consent, the IGOC Act requires the Minister to consider whether
    doing so would be ‘prejudicial to the interests’ of the
    minor.[96] The Commission submitted
    to the High Court that the Minister’s power to remove unaccompanied
    children under s 198A of the Migration Act must be read conformably with
    his duties as guardian under the IGOC Act. The Commission also submitted that,
    in deciding whether to remove a child to a third country, the Minister must be
    guided by Australia’s international obligation under the CRC to consider a
    child’s best interests as of primary importance when making any decision
    regarding them.[97]
  5. The High Court decided that the Minister may not transfer an unaccompanied
    child to Malaysia under the Migration Act unless he gives his consent in writing
    under the IGOC Act for the child to be removed. The IGOC Act provides that the
    Minister shall not refuse the granting of consent unless he or she is satisfied
    that the granting of the consent would be prejudicial to the interests of the
    non-citizen child.[98] The
    Minister’s decision as to whether to grant consent is judicially
    reviewable.
  6. In the Commission’s view, even if transfer of unaccompanied minors
    seeking asylum to a third country were lawful under Australian law, it would
    likely breach Australia’s international human rights obligations. Owing to
    the particular vulnerabilities of unaccompanied children, the CRC recognises
    that they are entitled to special protection and assistance provided by the
    State.[99] Additionally, as noted
    above, the CRC requires a child’s best interests to be a primary
    consideration in any decision involving
    them.[100] For a range of reasons,
    it is difficult to see how, in the vast majority of cases, transferring
    unaccompanied children to Malaysia under the arrangement could be in their best
    interests.
  7. Unaccompanied minors transferred under the arrangement may experience a
    breach of their fundamental rights, including those relating to non-refoulement, liberty, healthcare and
    education.[101] Moreover, the
    operational guidelines indicate that people transferred under the arrangement
    will be allowed to live in the community and will be encouraged to become
    self-sufficient.[102] It is
    unclear how such provisions would be applied to an unaccompanied minor.
  8. Additionally, arrangements for the care and custody of children transferred
    under the arrangement are unclear. The operational guidelines anticipate that
    people transferred under the arrangement will be ‘handed over’ to
    Malaysian authorities upon arrival in
    Malaysia.[103] From that point,
    unaccompanied minors will be beyond the care and custody of the Minister for
    Immigration and Citizenship, who is their guardian under Australian
    law.[104] In contrast to
    Australian law, Malaysian law permits, but does not require, the appointment of
    a guardian in respect of persons seeking asylum who are unaccompanied
    minors.[105] It is unclear what
    arrangements have been made for the appointment of a guardian for any children
    transferred under the
    arrangement.[106]
  9. In short, unaccompanied minors transferred under the arrangement would be
    sent to a country with a poor record for the treatment of asylum seekers and
    refugees,[107] in the absence of
    clear, mandated arrangements for their guardianship, care and custody. The
    Commission is gravely concerned about the fate of any unaccompanied child placed
    into these circumstances.
  10. The UNHCR also has concerns about the operation of the arrangement in
    respect of unaccompanied minors. The UNHCR recognised the particular
    vulnerabilities of unaccompanied minors seeking asylum and made its assessment
    of the arrangement as ‘workable’ subject to the provision of
    adequate pre-transfer assessment processes, ‘particularly when it comes to
    the circumstances of unaccompanied
    minors’.[108]

11 Alternatives to the
arrangement with Malaysia

  1. The Commission acknowledges that it is currently Australian Government
    policy to pursue a regional cooperation framework for managing people seeking
    asylum in the Asia-Pacific.[109] The Commission recognises that regional cooperation on the protection of asylum
    seekers and refugees could entail many advantages, including:

    • enhancing understanding of, respect for and compliance with international
      human rights standards across the Asia-Pacific, especially those relating to
      refugees and asylum seekers
    • ensuring the safety and wellbeing of refugees and asylum seekers across the
      region, thereby preventing often dangerous secondary migration
    • achieving a more equitable distribution of the benefits and burdens
      associated with assisting asylum seekers and protecting refugees across the
      region
    • facilitating collaborative efforts to address the primary causes of forced
      displacement and create opportunities for safe voluntary
      return.[110]
  2. A regional protection framework able to deliver these advantages could be a
    genuine, sustainable arrangement based on international human rights standards.
    Such a framework should involve addressing the causes of primary migration by
    refugees and asylum seekers at their roots; encouraging greater understanding of
    protection issues throughout the region; modelling best practices in relation to
    asylum seekers and refugees in Australia; and an expansion of Australia’s
    offshore resettlement
    program.[111]
  3. The Commission is not satisfied that the arrangement with Malaysia
    represents part of a genuine, durable regional protection framework which will
    adequately protect refugees’ and asylum seekers’ fundamental human
    rights. The arrangement is time-limited and bilateral, rather than sustainable
    and region-wide. Further, the UNHCR is not a signatory to the
    arrangement.[112]
  4. Processing the claims of asylum seekers in third countries in the
    Asia-Pacific region, such as Nauru and Papua New Guinea, has been suggested as
    an alternative to the arrangement with
    Malaysia.[113] The Australian
    Government has recently entered into a Memorandum of Understanding (MOU) with
    the Government of Papua New Guinea in relation to processing the claims of
    asylum seekers on Manus Island, to supplement the arrangement with
    Malaysia.[114] The Commission
    opposes third-country processing of this kind, because it may lead to breaches
    of Australia’s international human rights obligations and may have
    devastating impacts on the health, mental health and wellbeing of the people
    subject to it. In the Commission’s view, processing asylum claims on Manus
    Island or Nauru is not a humane or viable alternative to the arrangement with
    Malaysia.

11.1 The
‘Pacific Solution’ and Temporary Protection Visas

  1. Between 2001 and 2007, the former Australian Government pursued a policy of
    third-country processing of asylum seekers’ claims, known as the
    ‘Pacific Solution’. Asylum seekers who arrived in Australia by boat
    were transferred to and detained on Manus Island in Papua New Guinea and Nauru.
    In addition, from 1999 to 2008 only temporary protection was afforded to asylum
    seekers who arrived in Australia by boat.
  2. The Commission criticised the use of Nauru and Manus Island as places to
    process the claims of asylum seekers under the former Australian
    Government’s ‘Pacific
    Solution’.[115] Third-country processing on Manus Island and Nauru at this time undermined
    Australia’s international human rights obligations, including those
    relating to:

    • Non-refoulement,[116] first because the system for processing asylum seekers’ claims in offshore
      places lacked many of the basic safeguards afforded to asylum seekers on the
      mainland, potentially increasing the risk of wrongful return as a result of
      incorrect decision-making;[117] and second, due to the scheme of ‘voluntary return’ to countries
      experiencing ongoing unrest in exchange for payments to asylum
      seekers.[118] There have been
      documented cases of people, including children, who were detained on Nauru being
      killed upon return to their countries of origin during this
      period.[119]
    • Arbitrary detention,[120] as
      people were mandatorily held in detention facilities on Nauru and Manus Island,
      sometimes for years, while their claims for protection were being processed and
      while they were waiting to be
      resettled.[121]
    • Conditions of detention.[122] For example, facilities for asylum seekers on Manus Island have been described
      as ‘hot, humid ... cramped’ and ‘not much more than really
      extended outhouses’.[123] People in detention on Nauru have been reported to have experienced
      ‘overcrowding, shortage of drinkable water, oppressive heat and mosquitoes
      [and] lack of contact with the world
      outside’.[124]
    • Access to health and mental health
      care,[125] given the inadequacy of
      the health facilities available on Nauru and Manus Island to accommodate large
      detainee populations.[126]
    • Access to judicial or other mechanisms for independent
      review,[127] as asylum seekers in
      detention on Nauru and Manus Island were not legally permitted to access
      Australian tribunals or courts.
    • Children,[128] given that
      mandatory detention on Nauru and Manus Island was inconsistent with
      children’s rights to be detained only as a measure of last resort and for
      the shorted appropriate time and to have their best interests considered as of
      primary importance in any decision-making affecting
      them.[129] Children detained on
      Nauru and Manus Island also experienced an increased risk of a breach of other
      fundamental rights, including those relating to refoulement and family
      unity.[130]
  3. The ‘Pacific Solution’ had devastating impacts on some of the
    people subject to the policy. Some people who were detained on Nauru and Manus
    Island under this policy were diagnosed with a range of mental illnesses,
    including depression, anxiety, post-traumatic stress disorder, adjustment
    disorder and acute stress
    reaction.[131] There were also
    high levels of actual and threatened self-harm among these
    people.[132] Further, there was
    heavy use of medication including anti-depressant, anti-anxiety, psychotropic
    and sleeping medication, among people in detention on Nauru and Manus
    Island.[133] There is also one
    serious hunger strike on record which involved over 100 admissions to hospital
    for intravenous rehydration.[134] An academic who had regular contact with people in detention on Nauru said, in
    2004:

    Depression, anxiety, restlessness, psychical and emotional
    pain and other serious mental illnesses are commonplace. Many spend their days
    and nights crying, families are falling apart, children are losing their youth
    coping with the despair of their parents as well as their own. Many cannot sleep
    because of recurring
    nightmares.[135]

  4. The Commission was critical of the use of Temporary Protection Visas (TPVs)
    to supplement third-country processing under the ‘Pacific
    Solution’.[136] Between 1999
    and 2008, the Migration Act provided for the grant of TPVs. The former
    Australian Government’s policy was that people found to be owed protection
    under Australia’s international obligations were granted these temporary
    visas, rather than permanent protection visas, in the first instance. TPVs
    lasted for a period of three years, after which they automatically expired and
    the people who held them were required to establish that they were still
    refugees and that it would not be safe for them to return to their country of
    origin. After 2001, TPVs entailed a number of conditions, including that their
    holders:

    • were not eligible for permanent residence in Australia, unless the Minister
      decided otherwise
    • were unable to bring any family to join them in Australia for the period of
      their TPV, unless the Minister decided otherwise
    • lost their visa if they travelled outside Australia, as TPVs were
      single-entry visas.
  5. The Commission had concerns about TPVs while they were in use and is opposed
    to their reintroduction for a range of reasons. First, TPV holders’ status
    as temporary residents created a deep uncertainty and anxiety about their
    future. This exacerbated existing mental health problems in some people from
    their time in detention and their past history of persecution. It also affected
    their capacity to fully participate in social, employment and educational
    opportunities offered in Australia. Second, the absence of the right to family
    reunion for the duration of a TPV, combined with the effective ban on overseas
    travel, meant that some people faced the possibility of separation from their
    family for a prolonged and potentially indefinite period of time. This had
    further serious impacts on some people’s mental health and wellbeing.
    Third, TPVs created impediments to people fully integrating into the Australian
    community. These included limited settlement services, such as initial housing
    assistance; stringent reporting requirements in order to receive a Special
    Benefit from Centrelink; limited employment assistance programs; and limited
    English language tuition. Commentators have argued that TPVs ‘created
    uncertainty, insecurity, isolation, confusion, powerlessness and health problems
    among the holders of these visas as well as an increased burden on community
    organisations, state governments and volunteers’ and that TPV-holders
    experience uncertainties and psychological suffering on a similar scale to those
    held in immigration
    detention.[137]
  6. The current Australian Government has expressed its own concerns about the
    ‘Pacific Solution’ and TPVs. In 2008, the then Minister for
    Immigration and Citizenship, Chris Evans, stated that the ‘Pacific
    Solution’ was inhumane, unfair, ineffective and wasteful, and that
    abolishing it was one of his ‘greatest pleasures in
    politics’.[138] Also in
    2008, Minister Evans called the ‘Pacific Solution’ a ‘shameful
    and wasteful chapter in Australia's immigration history’, an
    ‘egregious waste of taxpayers’ money’, ‘morally
    wrong’ and ‘outrageously
    expensive’.[139] Minister
    Evans has stated that TPVs were ‘one of the worst aspects of the Howard
    government’s punitive treatment of refugees, many of whom had suffered
    enormously before fleeing to
    Australia’.[140]

11.2 Potential
third-country processing in Papua New Guinea or Nauru

  1. The Commission acknowledges that Papua New Guinea is a signatory to the
    Refugee Convention and that Nauru is in the process of ratifying this
    treaty.[141] Further, the
    Commission notes that the MOU with Papua New Guinea states that people
    transferred to Manus Island would be ‘treated with dignity and
    respect’ in accordance with ‘relevant human rights
    standards’.[142] However, in
    the Commission’s view, these are not adequate safeguards against breaches
    of the human rights of asylum seekers transferred to these places.
  2. The MOU with Papua New Guinea contains no detail about what would happen to
    those sent to Manus Island, specifically in relation to how their refugee claims
    would be processed, how long they may be held in detention, and whether they
    would have access to timely resettlement if they are found to be refugees. Nor
    does the MOU indicate whether asylum seekers sent to Manus Island would have
    access to legal assistance or whether there would be any form of independent or
    judicial oversight of their detention. The Commission has particular concerns
    about vulnerable people transferred under the MOU, such as unaccompanied minors
    and people who have experienced torture or trauma. While the MOU states that
    ‘special arrangements’ will be developed for unaccompanied minors,
    no detail about these is included, and in any case, this and other ostensible
    safeguards in the MOU are non-binding.
  3. Moreover, Nauru has only recently acceded to the Refugee Convention and has
    not yet had an opportunity to demonstrate the extent to which it can comply with
    its international obligations under the
    treaty.[143]
  4. In the Commission’s view, the risk of mistreatment of asylum seekers
    transferred to Nauru or Manus Island, including breaches of their fundamental
    human rights, remains unacceptably high.

11.3 Mainland
processing and community-based alternatives

  1. The Commission believes that all people who make claims for asylum in
    Australia should have those claims assessed on the mainland through the refugee
    status determination system that applies under the Migration Act.
    Community-based alternatives to mandatory and indefinite immigration detention
    should be used while the processing of asylum claims takes place.
  2. Australia receives very small numbers of asylum seekers, both by national
    and international standards. In the 2009-10 financial year, asylum seekers who
    arrived in Australia by boat comprised less than 3% of the total migration
    intake.[144] Moreover, in 2010,
    Australia received just 2% of claims for asylum made in major industrialised
    countries.[145] Processing the
    claims of this relatively small number of people promptly on the mainland would
    help protect against breaches of Australia’s international human rights
    obligations and prevent the significant human cost to which policies of
    third-country processing can lead.
  3. There are viable alternatives to Australia’s system of mandatory and
    indefinite immigration detention. Such alternatives better align with
    international human rights standards and also with the Australian
    Government’s own New Directions in Detention policy, which dictates
    that people should be detained in the least restrictive environment appropriate
    to their individual circumstances and that there should be a presumption that
    people will be permitted to reside in the community unless they pose an
    unacceptable risk to the Australian
    community.[146]
  4. The Australian Government already uses some positive community-based
    alternatives, including bridging visas and community detention.
  5. Most asylum seekers who arrive by plane are not detained for prolonged
    periods, but receive bridging visas, if necessary with appropriate conditions
    attached. This alternative should also be used for asylum seekers who arrive by
    boat. While people who arrive by boat in excised offshore places such as
    Christmas Island are barred from applying for a bridging visa under the
    Migration Act, the Minister retains discretionary powers to either lift that
    bar, or to grant a bridging visa to a person in immigration
    detention.[147] The Commission
    urges the Australian Government to make the greatest possible use of bridging
    visas as a community-based alternative.
  6. The Commission has also consistently supported the use of community
    detention as an alternative to holding people in immigration detention
    facilities. Under the Migration Act, the Minister has the power to issue a
    residence determination permitting a person in immigration detention to live at
    a specified residence in the
    community.[148] People in
    community detention remain in immigration detention under law. However, they are
    generally not under supervision and can move about in the community subject to
    any conditions attached to their residence determination. Such conditions might
    include, for example, a curfew, the requirement to sleep at a specified
    residence every night, travel restrictions and requirements to report regularly
    to DIAC. Accordingly, the community detention system allows for people to be
    subjected to fewer restrictions on their liberty, while at the same time
    mitigating risks and promoting compliance with immigration processes. The
    Commission welcomes ongoing efforts by the Minister for Immigration and
    Citizenship to move children in immigration detention and their families into
    community detention and urges the continued expansion of the community detention
    program.[149]
  7. There are a host of benefits associated with community-based alternatives.
    They better align with Australia’s international obligations and are more
    humane than mandatory, indefinite detention and policies of third-country
    processing. Additionally, community-based alternatives can be considerably
    cheaper than facility-based detention in remote locations, especially the
    Australian model of prolonged and indefinite detention, and are likely to be far
    cheaper than the costs associated with affecting a policy of third-country
    transfer.[150] Community-based
    alternatives also allow for much readier transition to life in the Australian
    community for those asylum seekers who will be resettled here. Furthermore,
    there are high rates of compliance with immigration processes among asylum
    seekers living in the community and very low rates of absconding from
    community-based alternatives.[151] There is also an increased willingness to return among people found not to be
    owed protection when they have been living in the community, as opposed to
    detention facilities, while their claims are
    processed.[152]
  8. The Commission believes there is considerable scope for Australia to expand
    and develop its use of community-based alternatives. There is a wealth of
    international experience to draw
    from[153] as well as successful
    initiatives already in place in
    Australia.[154]
  9. Instead of pursuing legislative change in order to revive the arrangement to
    transfer asylum seekers to
    Malaysia,[155] the Australian
    Government should process asylum claims on the Australian mainland and make full
    use of community-based alternatives to prolonged and indefinite detention.
    Transferring asylum seekers to a third-country may lead to breaches the
    fundamental human rights of people subject to transfer, including those relating
    to non-refoulement; equality; family unity; liberty; freedom from cruel,
    inhuman and degrading treatment; an adequate standard of living; access to legal
    advice; access to health care; educational opportunities; children’s best
    interests; and the particular protection and assistance owed to unaccompanied
    minors. Conversely, onshore processing and community-based alternatives ensure
    better compliance with Australia’s international obligations; are more
    humane; may be cheaper; entail high compliance rates; and allow for readier
    transition to the Australian community or lead to an increased willingness to
    return to a person’s country of origin, depending on the outcome of their
    claim for asylum. In addition, these arrangements do not require amendment of
    the Migration Act or other Australian law.
  10. Regardless of how or where they arrive in Australia, all people are entitled
    to protection of their human rights. In the Commission’s view, all people
    who make claims for asylum in Australia should have those claims assessed on the
    mainland through the refugee status determination system that applies under the
    Migration Act. Community-based alternatives to mandatory and indefinite
    immigration detention should be used while asylum seekers’ claims are
    being processed.

[1] See Human Rights and Equal
Opportunity Commission, A last resort? (National Inquiry into Children in
Immigration Detention) (2004), at http://www.humanrights.gov.au/human_rights/children_detention_report/report/index.htm (viewed 9 September 2011); Human Rights and Equal Opportunity Commission, Those who’ve come across the seas: Detention of unauthorised
arrivals
(1998), at http://www.humanrights.gov.au/human_rights/immigration/seas.html (viewed 9 September 2011).
[2] The
Commission’s submissions on immigration issues are available at http://humanrights.gov.au/legal/submissions/indexsubject.html#refugees (viewed 23 August 2011).
[3] Reports are available at http://humanrights.gov.au/legal/HREOCA_reports/index.html (viewed 23 August 2011).
[4] See J
von Doussa, ‘Human rights and offshore processing’ (2007) 9 UTS Law
Review 41.
[5] See A last
resort?
, note 1, sections 6.4.4, 6.6.4, 6.7.8, 6.7.9, 7.8.1, 7.8.2, 7.8.3,
16.2.2, 17.4.9.
[6] See especially
Australian Human Rights Commission, Submission to the Inquiry of the Senate
Legal and Constitutional Legislation Committee on the Migration Amendment
(Designated Unauthorised Arrivals) Bill 2006
, at http://www.humanrights.gov.au/legal/submissions/migration20060522.html (viewed 23 August 2011).
[7] See,
for example, ‘Commission warns against revisiting aspects of
“Pacific Solution”’ (Media Release, 22 August 2011), at http://humanrights.gov.au/about/media/media_releases/2011/75_11.html;
‘Sending asylum seekers to Malaysia is not the answer to addressing people
smuggling’ (Media Release, 25 July 2011), at http://humanrights.gov.au/about/media/media_releases/2011/61_11.html;
‘More detail needed on new asylum seeker policy’ (Media Release, 6
July 2010), at http://humanrights.gov.au/about/media/media_releases/2010/71_10.html;
‘HREOC welcomes end of Pacific Solution’ (Media Release, 5 February
2008), at http://humanrights.gov.au/about/media/media_releases/2008/12_08.html;
‘Australia’s treatment of refugees still has a long way to go’
(Media Release, 17 June 2007), at http://humanrights.gov.au/about/media/media_releases/2007/41_07.html;
‘“Pacific Solution” still poses human rights risks’
(Media Release, 19 September 2006), at http://humanrights.gov.au/about/media/media_releases/2006/75_06.htm (all viewed 23 August 2011).
[8] Minister for Immigration and Citizenship, ‘Joint statements by the Prime
Ministers of Australia and Malaysia on a regional cooperation framework’
(Media Release, 7 May 2011), at http://www.minister.immi.gov.au/media/cb/2011/cb165099.htm (viewed 12 September 2011).
[9] See Arrangement between the Government of Australia and the Government of
Malaysia on Transfer and Resettlement
, at http://www.minister.immi.gov.au/media/media-releases/_pdf/20110725-arrangement-malaysia-aust.pdf (viewed 24 August 2011).
[10] See Arrangement between the Government of Australia and the Government of
Malaysia on Transfer and Resettlement, Annex A: Operational guidelines to
support transfers and resettlement
, at http://www.immi.gov.au/managing-australias-borders/border-security/_pdf/operational-guidelines-transfers-resettlement.pdf (viewed 30 August 2011).
[11] Section 198A(3)(a) of the Migration Act 1958 (Cth) provides:

(3) The Minister may:

(a) declare in writing that a specified country:

(i) provides access, for persons seeking asylum, to effective procedures for
assessing their need for protection; and

(ii) provides protection for persons seeking asylum, pending determination of
their refugee status; and

(iii) provides protection to persons who are given refugee status, pending
their voluntary repatriation to their country of origin or resettlement in
another country; and

(iv) meets relevant human rights standards in providing that protection.
[12]Plaintiff M70/2011 and
Plaintiff M106/2011 v Minister for Immigration and Citizenship
[2011] HCA 32
(31 August 2011), para 116 (Gummow, Hayne, Crennan and Bell
JJ).
[13] Above, para 118
(Gummow, Hayne, Crennan and Bell
JJ).
[14] The Court found that it
was not ‘necessary to examine any wider question about the content or
application of the Minister’s duties as guardian’. See above, para
147 (Gummow, Hayne, Crennan and Bell
JJ).
[15] Above, para 146
(Gummow, Hayne, Crennan and Bell
JJ).
[16] Prime Minister and
Minister for Immigration and Citizenship, ‘Legislation to restore
Migration Act powers’ (Media Release, 12 September 2011), at http://www.alp.org.au/federal-government/news/legislation-to-restore-migration-act-powers/ (viewed 12 September 2011).
[17] Above.
[18] See, for example, Arrangement between the Government of Australia and the Government of
Malaysia on Transfer and Resettlement
, note 9, clauses 8(1), 10(2)(a),
10(3)(a), 10(4)(a).
[19] Men
subject to the arrangement who were, until recently, awaiting transfer on
Christmas Island were detained in the Christmas Island Immigration Detention
Centre at North West Point. For further information about this facility, see
Australian Human Rights Commission, 2009 Immigration detention and offshore
processing on Christmas Island
, at http://www.humanrights.gov.au/human_rights/immigration/idc2009_xmas_island.html (viewed 24 August 2011) and Australian Human Rights Commission, 2010
Immigration detention on Christmas Island
, at http://www.humanrights.gov.au/human_rights/immigration/idc2010_christmas_island.html (viewed 24 August 2011).
[20]International Covenant on Civil and Political Rights, opened for
signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), at http://www2.ohchr.org/english/law/ccpr.htm (viewed 30 August 2011); Convention on the Rights of the Child, opened
for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September
1990), at http://www2.ohchr.org/english/law/crc.htm (viewed 30 August 2011).The prohibition on arbitrary detention includes
detention which, while it may be lawful, is unjust or unreasonable. The United
Nations Human Rights Committee has stated that to avoid being arbitrary,
detention must be a proportionate means to achieve a legitimate aim. In
determining whether detention is proportionate to a particular aim,
consideration must be had to the availably of alternative means for achieving
that end which are less restrictive of a person’s rights. See United
Nations Human Rights Committee, A v Australia, Communication No 560/1993,
UN Doc CCPR/C/59/D/560/1993 (1997), para 9.2, at http://www.unhcr.org/refworld/docid/3ae6b71a0.html (viewed 14 September 2011).
[21] See C Evans, New Directions in Detention – Restoring Integrity to
Australia’s Immigration System
(Speech delivered at the Centre for
International and Public Law Seminar, Australian National University, Canberra,
29 July 2008), at http://www.minister.immi.gov.au/media/speeches/2008/ce080729.htm (viewed 30 August 2011).
[22]Convention on the Rights of the Child, note 20, art 37(b); Migration
Act 1958
(Cth), s 4AA.
[23] For further information about these facilities, see 2009 Immigration
detention and offshore processing on Christmas Island
, note 19, and 2010
Immigration detention on Christmas Island
, note
19.
[24]New Directions in
Detention
, note 21, see key immigration detention value 3.
[25] See Human Rights and Equal
Opportunity Commission, Immigration Detention Guidelines (2000), section
4, at http://humanrights.gov.au/human_rights/immigration/idc_guidelines2000.html (viewed 14 September 2011).
[26] Information provided to the Commission by the Department of Immigration and
Citizenship, 16 August 2011.
[27] Above.
[28] See Term of
Reference (g) of this Inquiry, at http://www.aph.gov.au/senate/committee/legcon_ctte/malaysia_agreement/tor.htm (viewed 30 August 2011).
[29]Convention Relating to the Status of Refugees, opened for signature 28
July 1951, 189 UNTS 150, art 33(1) (entered into force 22 April 1954) and Protocol Relating to the Status of Refugees, 606 UNTS 267 (entered into
force 4 October 1967). Both at http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf (viewed 24 August 2011).
[30]International Covenant on Civil and Political Rights, note 20, arts 6 and
7; Convention on the Rights of the Child, note 20, arts 6 and 37; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment
, opened for signature 10 December 1984, 1465 UNTS 85, art 3
(entered into force 26 June 1987), at
http://www2.ohchr.org/english/law/cat.htm (viewed 24 August 2011).
[31] In
relation to the operation of the International Covenant on Civil and
Political Rights
in this regard, see United Nations Human Rights Committee, GT v Australia, Communication No 706/1996, UN Doc CCPR/C/61/D/706/1996,
at http://www.unhcr.org/refworld/country,,HRC,,AUS,,4ae9acbfd,0.html;
United Nations Human Rights Committee, C v Australia, Communication No 900/1999, UN Doc CCPR/C/76/D/900/1999, at http://www.unhcr.org/refworld/docid/3f588ef00.html;
United Nations Human Rights Committee, Kindler v Canada, Communication No
470/1991, UN Doc CCPR/C/48/D/470/1991, at http://www.unhcr.org/refworld/publisher,CAN_SC,,USA,3ae6b6ed0,0.html;
United Nations Human Rights Committee, Ng v Canada, Communication No
469/1991, UN Doc CCPR/C/49/D/469/1991, at http://www.unhcr.org/refworld/country,,HRC,,HKG,,4028b5002b,0.html;
United Nations Human Rights Committee, Cox v Canada, Communication No
539/1993, UN Doc CCPR/C/52/D/539/1993, at http://www.unhcr.org/refworld/publisher,HRC,,USA,4028ba144,0.html (all viewed 24 August 2011). In relation to the operation of the Convention
on the Rights of the Child
in this regard, see United Nations Committee on
the Rights of the Child, General Comment No 6: Treatment of unaccompanied and
separated children outside their country of origin
, UN Doc CRC/GC/2006/6, at http://daccess-ods.un.org/TMP/9334375.html (viewed 24 August 2011).
[32]Arrangement between the Government of Australia and the Government of
Malaysia on Transfer and Resettlement
, note 9, clauses 10(2)(a) and
16.
[33] Above, clause
11(1).
[34] Above, clause
11(2).
[35] See para 21 in this
submission.
[36] See note 32.
[37] See, for example, Amnesty
International, Brief: Australia’s refugee deal with Malaysia (2011), at www.asrc.org.au/media/documents/amnesty-brief-malaysia-swap.pdf (viewed 24 August 2011).
[38]Arrangement between the
Government of Australia and the Government of Malaysia on Transfer and
Resettlement
, note 9, clauses 10(3)(a) and
8(1).
[39]Operational
guidelines to support transfers and resettlement
, note 10, provisions
2.3.1(a) and 3.0.
[40]Arrangement between the Government of Australia and the Government of
Malaysia on Transfer and Resettlement
, note 9, clauses 10(4)(a) and
16.
[41]International
Covenant on Civil and Political Rights
, note 20, arts 17(1) and 23(1); Convention on the Rights of the Child, note 20, art 8(1).
[42] Where they are
coming directly from a territory where their life or freedom was threatened: Convention Relating to the Status of Refugees, note 29, art 31. Under United
Nations High Commissioner for Refugees guidelines, this provision covers
‘a person who enters the country in which asylum is sought directly from
the country of origin, or from another country where his protection, safety and
security could not be assured.’ It also covers ‘a person who
transits an intermediate country for a short period of time without having
applied for, or received, asylum there.’ United Nations High Commissioner
for Refugees, Revised Guidelines on Applicable Criteria and Standards
relating to the Detention of Asylum Seekers
(1999), para 4. At http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=3c2b3f844 (viewed 30 August 2011).
[43]International Covenant on Civil and Political Rights, note 20, art
26.
[44] See Migration Act
1958
(Cth), s 46A; Arrangement between the Government of Australia and
the Government of Malaysia on Transfer and Resettlement
, note 9, clause
4(1)(a).
[45]Convention on
the Rights of the Child
, note 20, art
22.
[46] Above, art 2.
[47] See further A last
resort?
, note 1, pp
272-274.
[48]Arrangement
between the Government of Australia and the Government of Malaysia on Transfer
and Resettlement
, note 9, clause 9(3).
[49] Information provided to the
Commission by the Department of Immigration and Citizenship, 27 July 2011.
[50]Operational guidelines
to support transfers and resettlement
, note 10, provision
1.3.
[51] See Term of Reference
(f) of this Inquiry, at http://www.aph.gov.au/senate/committee/legcon_ctte/malaysia_agreement/tor.htm (viewed 30 August 2011).
[52]Operational guidelines to support transfers and resettlement, note 10,
provision 3.0.
[53]Arrangement between the Government of Australia and the Government of
Malaysia on Transfer and Resettlement
, note 9, clauses 10(2)(a) and
16.
[54] The three types of
immigration-related detention are: internment; criminal imprisonment for
offences under the Immigration Act 1959 (Malaysia); and administrative
detention prior to
deportation.
[55]Operational
guidelines to support transfers and resettlement
, note 10, provisions 3.1(a)
and 3.0.
[56] Above, provision
2.1.1(b).
[57] See Plaintiff
M70/2011 v Minister for Immigration and Citizenship
[2011] HCA 32 (31 August
2011), para 30 (French CJ); para 24 in this submission.
[58]Immigration Act 1959 (Malaysia), see ss 6(3), 8(3)(d)(i), 15(4), 36, 55A(1), 55A(3), 55A(4),
55B(1), 55B(3), 55D, 55E, 56(1)(aa), 56(1)(bb), 57, 58(3).
[59] See also Plaintiff
M70/2011 v Minister for Immigration and Citizenship
[2011] HCA 32 (31 August
2011), para 33 (French CJ).
[60]International Covenant on Civil and Political Rights, note 20, art
7.
[61] Above, art
10(1).
[62]Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
, note
30, see arts 1, 2 and 16.
[63]Immigration Act 1959 (Malaysia), see ss 6(3), 36, 55A(1), 55A(3) and 55A(4), 55B(3), 55D,
56(1)(bb).
[64] See Plaintiff
M70/2011 v Minister for Immigration and Citizenship
[2011] HCA 32 (31 August
2011), para 33 (French CJ).
[65] See International Covenant on Economic, Social and Cultural Rights,
opened for signature 16 December 1966, 993 UNTS 3, art 11(1) (entered into force
3 January 1976), at http://www2.ohchr.org/english/law/cescr.htm (viewed 8 August 2011). See also Convention on the Rights of the Child,
note 20, art 27(1).
[66]Operational guidelines to support transfers and resettlement, note 10,
provisions 3.1 and 3.2.
[67] Above.
[68] ‘High Court
set to rule on asylum swap deal’, Lateline (30 August 2011), at http://www.abc.net.au/news/2011-08-30/high-court-set-to-rule-on-asylum-swap-deal/2863212 (viewed 31 August 2011).
[69] See Term of Reference (c)(iv) of this Inquiry, at http://www.aph.gov.au/senate/committee/legcon_ctte/malaysia_agreement/tor.htm (viewed 30 August 2011).
[70]Convention on the Rights of the Child, note 20, art
37(b).
[71] United Nations High
Commissioner for Refugees, UNHCR Revised Guidelines on Applicable Criteria
and Standards relating to the Detention of Asylum Seekers
(1999), guideline
5(ii) and (v), at www.unhcr.org.au/pdfs/detentionguidelines.pdf (viewed 31 August 2011).Similar
[72]International Covenant on Economic, Social and Cultural Rights, note 65,
art 12; Convention on the Rights of the Child, note 20, art
24.
[73]Operational
guidelines to support transfers and resettlement
, note 10, provisions 3.4(b)
and 3.4(c).
[74] ‘High
Court set to rule on asylum swap deal’, note
68.
[75] See section 10 in this
submission for further consideration of the implications of the arrangement for
children and unaccompanied minors.
[76]Arrangement between the
Government of Australia and the Government of Malaysia on Transfer and
Resettlement
, note 9, clause
8(2).
[77] See Term of Reference
(c)(i) of this Inquiry, at http://www.aph.gov.au/senate/committee/legcon_ctte/malaysia_agreement/tor.htm (viewed 30 August 2011).
[78]Arrangement between the Government of Australia and the Government of
Malaysia on Transfer and Resettlement
, note 9, clause 13; Operational
guidelines to support transfers and resettlement
, note 10, provisions 5.1
and 5.2.
[79] Information
provided to the Commission by the Department of Immigration and Citizenship, 27
July 2011.
[80]Arrangement
between the Government of Australia and the Government of Malaysia on Transfer
and Resettlement
, note 9, clauses 8(1), 10(2)(a) and 10(3)(a); Operational guidelines to support transfers and resettlement, note 10,
provision 2.3.1(a)
[81]Convention on the Rights of the Child, note 20, art
3(1).
[82] Above, arts 6, 8(1),
10(1) and 37(a), (b) and (c); Convention relating to the Status of
Refugees
, note 29, art
33(1).
[83] See section 8.3 in
this submission.
[84]Convention on the Rights of the Child, note 20, art 28(1); International Covenant on Economic, Social and Cultural Rights, note 65,
art 13(1).
[85]Convention on the Rights of the Child, above, art 28(1)(a) and (b); International Covenant on Economic, Social and Cultural Rights, above,
art 13(1)(a) and (b).
[86]Operational guidelines to support transfers and resettlement, note 10,
provisions 3.3(a) and (b).
[87] Information provided to the Commission by the Department of Immigration and
Citizenship, 27 July 2011.
[88] Agreed statement of facts of parties to Plaintiff M70/2011 and Plaintiff
M106/2011 v Minister for Immigration and Citizenship
, attachment 34,
attachment C.
[89] See Terms of
Reference (c)(v) and (c)(vi) of this Inquiry, at http://www.aph.gov.au/senate/committee/legcon_ctte/malaysia_agreement/tor.htm (viewed 30 August 2011).
[90] The
Commission’s submissions in the matter Plaintiff M106/2011 v Minister
for Immigration and Citizenship
[2011] HCA 32 (31 August 2011) are
available at http://www.hcourt.gov.au/assets/cases/m70-2011/M106-2011_HRC.pdf (viewed 30 August 2011).
[91]Immigration (Guardianship of Children) Act 1946 (Cth), s
6.
[92]Immigration
(Guardianship of Children) Act 1946
(Cth), s 4AAA; see also the
Commission’s submissions in the matter Plaintiff M106/2011 v Minister
for Immigration and Citizenship
, note 90, paras 18, 24,
25.
[93]Sadiqi v Commonwealth
of
Australia (No 2) [2009] FCA 1117, para
299.
[94]Secretary,
Department
of Health and Community Services v JWB and 5MB (Marion’s Case) (1992) 175 CLR 218, 240; Gillick v West Norfolk
and Wisbech Area Health Authority
[1986] AC 112, 184 (Lord Scarman), 200
(Lord Templeman).
[95]Immigration (Guardianship of Children) Act 1946 (Cth), s
6A(1).
[96]Immigration
(Guardianship of Children) Act 1946
(Cth), s
6A(2).
[97] See the
Commission’s submissions in the matter Plaintiff M106/2011 v Minister
for Immigration and Citizenship
, note 90, paras
24-55.
[98]Immigration
(Guardianship of Children) Act 1946
(Cth), s 6A(4).
[99]Convention on the Rights
of the Child
, note 20, art 20(1).
[100] See para 55 in this
submission.
[101] See sections
6.1, 8.1, 8.3, 10.1 in this
submission.
[102]Operational guidelines to support transfers and resettlement, note 10,
provisions 3.1 and 3.2.
[103] Above, provision 4.1.
[104]Immigration (Guardianship of Children) Act 1946 (Cth), s
6.
[105] Agreed statement of
facts of parties to Plaintiff M70/2011 and Plaintiff M106/2011 v Minister for
Immigration and Citizenship
, note 88, para
55.
[106] See, generally, Arrangement between the Government of Australia and the Government of
Malaysia on Transfer and Resettlement
, note 9; Operational guidelines to
support transfers and resettlement
, note
10.
[107] See para 24 in this
submission.
[108] Agreed
statement of facts of parties to Plaintiff M70/2011 and Plaintiff M106/2011 v
Minister for Immigration and Citizenship
, note 88, attachment 34, attachment
C.
[109] See, for example,
Prime Minister of Australia, Moving Australia Forward (Speech delivered
at the Lowy Institute, Sydney, 6 July 2010), at http://www.lowyinstitute.org/Publication.asp?pid=1328 (viewed 30 August 2011); Minister for Home Affairs, Minister for Foreign
Affairs and Minister for Immigration and Citizenship, Strengthening our
Borders through Regional Cooperation
(2011), at http://www.alp.org.au/federal-government/news/stregnthening-our-borders-through-regional-co-oper/ (viewed 30 August 2011).
[110] See further Refugee Council of Australia, Regional Protection, at http://www.refugeecouncil.org.au/global/regional.php (viewed 30 August 2011).
[111] Above.
[112] United Nations
High Commissioner for Refugees, Asylum Levels and Trends in Industrialized
Countries 2010
(2011), table 3, at http://www.unhcr.org/4e2d21c09.html (viewed 30 August 2011).
[113] ‘Malaysia deal “much worse” than Pacific Solution’,
ABC News
(26 may 2011), at http://www.abc.net.au/news/2011-05-26/malaysia-deal-much-worse-than-pacific-solution/2733000 (viewed 30 August 2011); ‘Malaysia solution worse than Pacific:
Brennan’, AM (10 August 2011), at http://www.abc.net.au/am/content/2011/s3289684.htm (viewed 30 August 2011); Commonwealth, Parliamentary Debates, House of
Representatives, 30 May 2011, pp 4951-4952 (the Hon Andrew Wilkie,
MP).
[114] See Memorandum of
understanding between the Government of the Independent State of Papua New
Guinea and the Government of Australia, relating to the transfer to and
assessment of persons in Papua New Guinea, and related issues
(2011), at http://www.minister.immi.gov.au/media/media-releases/_pdf/20110819-aust-png-mou.pdf (viewed 30 August 2011).
[115] See for example ‘HREOC welcomes end of Pacific Solution’, note 7;
‘Australia’s treatment of refugees still has a long way to
go’, note 7; ‘“Pacific Solution” still poses human
rights risks’, note 7; ‘Human rights and offshore processing’,
note 4; A last resort?, note
1.
[116]Convention relating
to the Status of Refugees
, note 29, art 33(1); International Covenant on
Civil and Political Rights
, note 20, arts 6 and 7; Convention on the
Rights of the Child
, note 20, arts 6 and 37; Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment
, note 30, art
3.
[117] See further
‘Human rights and offshore processing’, note 4, pp
47-48.
[118] See K Bem, N
Field, N Maclellan, S Meyer and T Morris, A price too high: the cost of
Australia’s approach to asylum seekers
(2007), section 3.4, at http://www.oxfam.org.au/resources/filestore/originals/OAus-PriceTooHighAsylumSeekers-0807.pdf (viewed 30 August 2011); Edmund Rice Centre for Justice and Community Education, Deported to Danger: A study of Australia’s treatment of 40 rejected
asylum seekers
(2004), at http://www.erc.org.au/index.php?module=documents&JAS_DocumentManager_op=downloadFile&JAS_File_id=208 (viewed 30 August 2011); Edmund Rice Centre for Justice and Community Education, Deported to Danger II: The continuing study of Australia’s treatment of
rejected asylum seekers
(2006), at http://www.erc.org.au/index.php?module=documents&JAS_DocumentManager_op=downloadFile&JAS_File_id=153 (viewed 30 August 2011).
[119] Above.
[120]International
Covenant on Civil and Political Rights
, note 20, art 9(1); Convention on the Rights of the Child, note 20, art
37(b).
[121]A price too
high
, note 118, section
3.5.
[122]International
Covenant on Civil and Political Rights
, note 20, arts 7 and 10; Convention on the Rights of the Child, note 20, art 37(c).
[123] J Hole, ‘Lawyer
recounts his visit to Manus Island detention facility’, PM (6 May
2011), at http://www.abc.net.au/pm/content/2011/s3210109.htm (viewed 9 September 2011).
[124] H Rubin, Submission
to the Senate Legal and Constitutional Affairs Committee’s Inquiry into
the provisions of the Migration Amendment (Designated Unauthorised Arrivals)
Bill 2006
(20 May 2006), at www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/2004-07/migration_unauthorised_arrivals/submissions/sub110.pdf (viewed 31 August 2011).
[125] See International Covenant on Economic, Social and Cultural Rights, note
65, art 12; Convention on the Rights of the Child, note 20, art
24.
[126]A price too
high
, note 118, section
3.2
[127]International
Covenant on Civil and Political Rights
, note 20, art 9(4); Convention on
the Rights of the Child
, note 20, art
37(d).
[128] See Convention
on the Rights of the Child
, above, arts 6, 8(1), 10(1) and 37(a) and (b); Convention relating to the Status of Refugees, note 29, art 33(1).
[129]Convention on the
Rights of the Child
, above, art
37(b).
[130] See further A
last resort?
, note 1, Recommendation 5 and part
17.4.9.
[131]A price too
high
, note 118, section
3.1.
[132] Above.
[133] Above.
[134] Above, section
3.3.
[135] Susan Metcalfe,
refugee advocate and then PhD candidate, quoted in above, part
3.1.
[136] See, for example, A last resort?, note 1, chapter 16; Human Rights and Equal Opportunity
Commission, Temporary Protection Visas: operation and impacts, at http://www.humanrights.gov.au/racial_discrimination/forum/Erace/tpvs/tpvs.html#3 (viewed 30 August 2011); Human Rights and Equal Opportunity Commission, Temporary Protection Visas
and race discrimination law, at http://www.humanrights.gov.au/racial_discrimination/forum/Erace/tpvs/legal.html (viewed 30 August 2011).
[137] See J Phillips, Parliamentary Library Research Note no 51 2003-04: Temporary Protection Visas, endnotes 9 and 10, at http://www.aph.gov.au/library/pubs/rn/2003-04/04rn51.htm (viewed 30 August 2011).
[138] Minister for Immigration and Citizenship, Refugee Policy Under The Rudd
Government – The First Year
(Speech delivered to the Refugee Council
of Australia, Sydney, 17 November 2008), at http://www.minister.immi.gov.au/media/speeches/2008/ce081117.htm (viewed 30 August 2011).
[139] Minister for Immigration and Citizenship, Address to the 2008 National
Members’ Conference of the Migration Review Tribunal and Refugee Review
Tribunal
(Speech delivered in Melbourne, 29 February 2008), at
http://www.minister.immi.gov.au/media/speeches/2008/ce08-29022008.htm (viewed 30 August 2011).
[140] Minister for Immigration and Citizenship, Budget 2008-09 – Rudd
Government scraps Temporary Protection visas
(Media release, 13 May 2008),
at http://www.minister.immi.gov.au/media/media-releases/2008/ce05-buget-08.htm (viewed 30 August 2011).
[141] See http://treaties.un.org/pages/ViewDetailsII.aspx?&src=TREATY&mtdsg_no=V~2&chapter=5&Temp=mtdsg2&lang=en (viewed 30 August 2011).
[142] See Memorandum of understanding between the Government of the Independent
State of Papua New Guinea and the Government of Australia, relating to the
transfer to and assessment of persons in Papua New Guinea, and related
issues
, note 114, clause
12.
[143] Nauru acceded to the
Refugee Convention on 28 June 2011. See http://treaties.un.org/pages/ViewDetailsII.aspx?&src=TREATY&mtdsg_no=V~2&chapter=5&Temp=mtdsg2&lang=en (viewed 30 August 2011).
[144] Commonwealth, Official Committee Hansard: Senate Legal and Constitutional
Affairs Legislation Committee – Estimates
(23 May 20110), p 16 (Andrew
Metcalfe, Secretary, Department of Immigration and Citizenship). At http://www.aph.gov.au/hansard/senate/commttee/s39.pdf (viewed 8 August 2011).
[145]Asylum levels and trends in industrialized countries 2010 (2011), note
112, table 3.
[146]New
Directions in Detention
, note
21.
[147]Migration Act
1958
(Cth), ss 46A(1), 46A(2), 195A(1),
195A(2).
[148]Migration
Act
1958 (Cth), s
197AB.
[149] As of 29 June
2011, 513, or 58%, of children in immigration detention had been moved out of
secure immigration detention facilities and into community detention. By 27 July
2011, 735 children had been moved in community detention. Minister for
Immigration and Citizenship, ‘Government meets commitment on Community
Detention’ (Media release, 29 June 2011), at http://www.minister.immi.gov.au/media/cb/2011/cb167699.htm (viewed 8 August 2011); Minister for Immigration and Citizenship, Doorstop
Interview (Darwin, 29 June 2011), at http://www.minister.immi.gov.au/media/cb/2011/cb167721.htm (viewed 8 August 2011); Department of Immigration and Citizenship's answers to
questions on notice, received by the Joint Select Committee on Australia’s
Immigration Detention Network 10 August 2011, question 42, at https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=87cfa861-917b-4c85-bbda-29013c9e73df (viewed 30 August 2011).
[150] See Term of Reference (d) of this Inquiry, at http://www.aph.gov.au/senate/committee/legcon_ctte/malaysia_agreement/tor.htm (viewed 30 August 2011); Arrangement between the Government of Australia and
the Government of Malaysia on Transfer and Resettlement
, note 9, clause
9(1). Note the comparatively low costs of community-based alternatives: in
Canada, providing for asylum seekers living in the community has been costed at
$10-12 per person per day, compared with $179 for detention. Costs calculated in
Canadian dollars. In Australia, the Community Assistance Support program, a
service for certain vulnerable asylum seekers living in the community, has been
costed at a minimum of $38 per day, as opposed to a minimum of $125 per day for
detention. See United Nations High Commissioner for Refugees, Back to Basics:
The Right to Liberty and Security of Person and ‘Alternatives to
Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other
Migrants
, p 60, at http://www.unhcr.org/refworld/docid/4dc935fd2.html (viewed 8 August 2011); International Detention Coalition and La Trobe Refugee
Research Centre, There are Alternatives: A handbook for preventing
unnecessary immigration detention
(2011), box 12, at http://idcoalition.org/cap/handbook/ (viewed 8 August 2011).
[151] Recent research indicates that less than 10% of asylum applicants abscond when
released to proper supervision and facilities, or, in other words, 90% of asylum
applicants comply with their conditions of release. See Back to Basics,
above, Executive Summary; There are alternatives, above, box
12.
[152] See There are
Alternatives
, above, pp 16-17,
51-52.
[153] See, generally,
above.
[154] For further
information on community-based alternatives, see paras 87-89 in this
submission.
[155] See para 7 in
this submission.