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Examination of the Migration (Regional Processing) Package of Legislation

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Examination of the Migration (Regional Processing) Package of Legislation Examination of the Migration (Regional Processing) package of legislation AUSTRALIAN HUMAN RIGHTS COMMISSION SUBMISSION TO THE PARLIAMENTARY JOINT COMMITTEE ON HUMAN RIGHTS January 2013 ABN 47 996 232 602 Level 3, 175 Pitt Street, Sydney NSW 2000 GPO Box 5218, Sydney NSW 2001 General enquiries 1300 369 711 Complaints info line 1300 656 419 TTY 1800 620 241 Australian Human Rights Commission Submission to the Examination of the Migration (Regional Processing) package of legislation – January 2013 Table of Contents List of Abbreviations ................................................................................................ 4 Executive Statement ................................................................................................ 5 1 Recommendations ......................................................................................... 9 2 Introduction .................................................................................................... 9 3 Background .................................................................................................. 10 3.1 Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth)........................................................................................................ 11 3.2 Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012 ................................................................................................................. 12 3.3 Agreements reached with the Governments of Nauru and Papua New Guinea ................................................................................................................................ 13 3.4 Designation of Nauru and Papua New Guinea as ‘regional processing countries’............................................................................................................... 13 3.5 Transfer of asylum seekers to Nauru and Papua New Guinea ......................... 14 3.6 Asylum seekers who are subject to the ‘regional processing’ regime but who remain in Australia ............................................................................................... 15 4 The objectives of the Migration (Regional Processing and Other Measures) Act 2012 (Cth) ............................................................................ 16 5 The human rights obligations Australia owes to asylum seekers who are subject to the ‘regional processing’ regime .............................................. 17 5.1 Australia’s obligations to those who have been transferred outside of its territory .................................................................................................................. 17 (a) Question of effective control ............................................................................... 17 (b) Responsibility for extra-territorial violations flowing from Australia’s actions ...... 17 (c) Australia’s responsibility to implement treaty obligations in good faith ............... 18 5.2 Summary of the human rights obligations engaged by the ‘regional processing’ regime ............................................................................................... 18 5.3 The nature of Australia’s obligations under the Refugee Convention ............ 20 5.4 Australia’s obligations to provide effective remedies for breaches of human rights ...................................................................................................................... 22 6 The Australian Government’s approach to the human rights engaged by the Regional Processing Act ...................................................................... 23 7 The Australian Government’s approach to human rights in the instruments of designation ......................................................................... 24 7.1 The designations of Nauru and Papua New Guinea .......................................... 24 7.2 The Commission’s concerns regarding the designations of Nauru and Papua New Guinea ........................................................................................................... 26 8 Australia’s obligations in relation to non-refoulement ............................. 28 8.1 Non-refoulement obligations under the ICCPR, CAT and CRC ........................ 28 2 Australian Human Rights Commission Submission to the Examination of the Migration (Regional Processing) package of legislation – January 2013 8.2 Non-refoulement obligations under the Refugee Convention ......................... 29 9 Australia’s obligations in relation to equal protection of the law and non- discrimination .............................................................................................. 30 10 The detention of asylum seekers subject to the ‘regional processing’ regime ........................................................................................................... 32 11 Australia’s obligations to ensure protection from arbitrary detention ... 33 11.1 The mandatory detention in Australia of people who are subject to the ‘regional processing’ regime ............................................................................... 34 11.2 Duration of stay in a third country or in detention in Australia under the ‘no advantage’ principle ............................................................................................. 36 11.3 Ability to challenge the decision to detain in court ........................................... 36 (a) Article 9(4) of the ICCPR .................................................................................... 36 (b) Article 14 of the ICCPR ....................................................................................... 38 12 Australia’s obligations to ensure people deprived of their liberty are treated humanely and do not suffer cruel, inhuman or degrading treatment ...................................................................................................... 38 13 Australia’s obligations in relation to the rights of children and families 40 13.1 Specific rights of children engaged by the ‘regional processing’ regime ...... 40 (a) The best interests of the child as a primary consideration .................................. 41 (b) Detention of children ........................................................................................... 41 (c) Protection and guardianship of unaccompanied minors seeking asylum ........... 42 13.2 Australia’s obligations to refrain from unlawful or arbitrary interference with family ..................................................................................................................... 43 13.3 Australia’s obligations to protect and support families ................................... 44 (a) The effect of the Migration Amendment Regulation 2012 (No. 5) (Cth) ............. 44 (b) The right to protection of the family in article 23 of the ICCPR ........................... 45 (c) Articles 3(1), 10(1), 20 and 22 of the CRC ......................................................... 46 14 Australia’s obligations to ensure respect for the right to work and other related rights ................................................................................................ 47 14.1 The effect of the Migration Regulations 1994 – Specification under paragraphs 050.613A(1)(b) and 051.611A(1)(c) - Classes of Persons – November 2012 ..................................................................................................... 47 14.2 The right to work for asylum seekers ................................................................. 47 14.3 The right to work for declared refugees ............................................................. 49 15 Australia’s obligations to respect and protect the rights of people with disability ....................................................................................................... 49 16 Safeguarding the rights of people subject to the ‘regional processing’ regime ........................................................................................................... 50 16.1 Pre- and post-transfer risk and vulnerability assessment procedures ........... 51 16.2 Independent monitoring and oversight of ‘regional processing’ arrangements ................................................................................................................................ 52 3 Australian Human Rights Commission Submission to the Examination of the Migration (Regional Processing) package of legislation – January 2013 List of Abbreviations Committee Parliamentary Joint Committee on Human Rights the compatibility letter The letter written by the Minister for Immigration and Citizenship to the Committee on 15 November 2012, containing an assessment of the compatibility of the Regional Processing Act with Australia’s human rights obligations CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CRC Convention on the Rights of the Child CRPD Convention on the Rights of Persons with Disabilities DIAC Department of Immigration and Citizenship HRC United Nations Human Rights Committee ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights IGOC Act Immigration (Guardianship of Children) Act 1946 (Cth) IHMS International Health and Medical Services Migration Act Migration Act 1958 (Cth) the Minister The Minister for Immigration and Citizenship PNG Manus Island, Papua New Guinea Refugee Convention
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