12 Batman Street West Melbourne VIC 3003 T: 03 9326 6066 F: 03 9326 5199 ABN: 64 118 965 815 Incorporation #: A0042918H www.asrc.org.au ASYLUM SEEKER RESOURCE CENTRE SUBMISSION TO THE NATIONAL HUMAN RIGHTS CONSULTATION MANDATORY DETENTION • Which human rights and responsibilities should be protected and promoted? Human rights are universal. Regardless of a person’s country of origin and means of arrival to Australia, it is Australia’s responsibility, as a developed Western country, to protect their human rights while they are lawfully on Australian soil or in Australian waters. Australian immigration law requires the mandatory and non-reviewable detention of all persons (including asylum seekers) who arrive in Australia without a visa. Section 189 of the Migration Act states that persons may only be released from immigration detention if they are either granted a visa or removed from Australia. Australia’s policy of mandatory detention is in breach of section 9(1) of the International Covenant on Civil and Political Rights and the UNHCR Guidelines on the Detention of Asylum Seekers. In the 1997 case of Applicant A v Australia, the UN Human Rights Committee held that the mandatory and non-reviewable detention of the complainant was arbitrary as the Australian government had not advanced any grounds particular to the complainant’s case which would justify his continued detention. Eight years after the decision in Applicant A, Australia’s detention policies continue to breach international standards. While the Rudd Government has recently softened the policy of mandatory detention, partly as a result of the Palmer Report, these changes are not enshrined in law and are subject to the whim of those in power. An example of this is the Howard government’s commitment to not detain children and minors made while the constructionof the Christmas Island Detention Centre continued, with a ‘children wing’ comprising nursery, creche, playground and classrooms. While the Labor government has committed to not using these facilities for children and families, they are detained in the construction camp on Christmas Island. Are human rights sufficiently protected and promoted? 12 Batman Street West Melbourne VIC 3003 T: 03 9326 6066 F: 03 9326 5199 ABN: 64 118 965 815 Incorporation #: A0042918H www.asrc.org.au Under the current policy of mandatory and indefinite immigration detention, those who come to Australia to seek asylum from persecution see their right to freedom of movement violated. While the Department for Immigration and Citizenship has pledged to make the time spent in detention as short as possible, this is not enshrined in law and is subject to individual decisions made by DIAC officers and to the political inclination of the day. Under the Migration Act, a person can still be held in immigration detention indefinitely (as shown by the High Court decision in the case of stateless man Ahmed al-Kateb). The improvements to the system of mandatory detention made since the Cornelia Rau and Vivian Solon affairs, the subsequent release of the Palmer report, and the Federal Government’s policy that detention should only be used as a last resort, could be reversed any day should the Federal Government wish to use asylum seekers as a scapegoat for electoral purposes. There is still no time limit on the period of detention. The recent changes put no time limit on how long a person can be detained. Potentially a person could be detained for months or longer, for example if there are difficulties in ascertaining identity. We need an end to mandatory detention. We see no justification for detaining people while health checks are done, we don't detain anyone else in our community on this basis. We believe we could accommodate asylum seekers in a community based reception centre model until health, character and security checks are done. They could then either be accommodated in the community or the hostel while their cases are being processed. • How could Australia better protect and promote human rights? Australia has human rights obligations under international human rights law and conventions to which it is signatory. Based on the Australian fundamental right to freedom of movement, Australian law should enshrine in the Migration Act that detention is only to be used in specific circumstances and must be reviewable by law. 12 Batman Street West Melbourne VIC 3003 T: 03 9326 6066 F: 03 9326 5199 ABN: 64 118 965 815 Incorporation #: A0042918H www.asrc.org.au ASYLUM SEEKER RESOURCE CENTRE SUBMISSION TO THE NATIONAL HUMAN RIGHTS CONSULTATION HOUSING AND HOMELESSNESS OF ASYLUM SEEKERS • Which human rights and responsibilities should be protected and promoted? The 1948 Universal Declaration of Human Rights, Article 25 (1) states: “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control” Australia is a signatory to the Universal Declaration of Human Rights which clearly states that everyone has the right to adequate housing. Asylum seekers who have applied for protection can live for years in the community without stable accommodation and without access to any mainstream Housing Services. In 2007/08, 97.3% of the 4750 asylum seeker applications submitted in Australia came from people who arrived by plane and now live in the Australian community (UNHCR, 2009). For these people, housing is one of the greatest challenges. Upon arrival, an individual or family seeking asylum will move an average of eight times (ASRC Casework data) in an attempt to source appropriate, sustainable accommodation. Gaining access to Housing Services is a continuing struggle throughout the refugee determination process. • Are human rights sufficiently protected and promoted? The right to housing needs to be reaffirmed. Asylum seekers are allowed to access Emergency and Transitional Housing Services but are regularly denied services when in a housing crisis. While these services invoke lack of resources as a reason for this, they often wrongly believe that asylum seekers are not entitled to their assistance. Education and training needs to be provided to Housing Services around the issue of asylum seekers’ right to housing. This denial of assistance occurs when asylum seekers are virtually excluded from the private rental market and do not have access to Public Housing. 12 Batman Street West Melbourne VIC 3003 T: 03 9326 6066 F: 03 9326 5199 ABN: 64 118 965 815 Incorporation #: A0042918H www.asrc.org.au Emergency and Transitional Housing Services are therefore their only recourse when in a housing crisis. The Federal Government has shown its willingness to tackle the housing crisis in Australia with the launch of the White Paper ‘The Road Home’ (2008) promising to halve homelessness and to provide supported accommodation for all in need by 2020. Sadly, in its current form, this appears to be a truly ‘white’ paper. There is no mention of asylum seekers, despite their well- documented housing challenges and regular presentation at Housing Services. • How could Australia better protect and promote human rights? Patricia Faulkner AO, chairperson of the Social Inclusion Board, states that a strong legislative framework is vital for the implementation of the White Paper’s goal of halving homelessness by 2020. In addition to directives at the State and Territory level, Federal legislation ensuring that asylum seekers receive a service when they approach an Emergency or Transitional Housing Service would be a positive step towards recognising asylum seekers as ‘real people’ with legitimate housing and homelessness needs. Another possible way to encourage services to provide emergency accommodation assistance to asylum seekers is for each State Government Housing Minister to mandate services to do so. The right to housing is a right for all in a country as wealthy as Australia, and people who come to our shores to seek protection should not be penalized for it by enduring months of homelessness. Asylum seeker children’s testimony in visual form to the Human Rights Commission in answer to the following questions • Which human rights (including corresponding responsibilities) should be protected and promoted? • Are these human rights currently sufficiently protected and promoted? • How could Australia better protect and promote human rights? This drawing by a child in Woomera depicts crying children (in foreground), spiders and insects on the ground, water cannon, fire, a man falling into the razor wire and guard armed with a baton This drawing by a child in Woomera is of a protest where detainees are calling for freedom and visas with ACM guards in riot gear, in the foreground, striking a man with a baton This drawing by a young child in Woomera shows asylum seeker children in the detention centre with children standing on the other side of the razor wire, carrying a welcome sign This scene depicts children crying in Woomera with a water cannon and fire in the background. The guards are carrying batons and shields. The picture is signed with a number. All children in Woomera were numbered instead of named This drawing shows children and their mothers crying, surrounded by guards and water cannon. A frequent complaint from detainees was that when they sought medical attention, they were told to drink water and take Panadol. A very young child’s view of life in Woomera. Sad people, water cannon, razor wire and bars. A mother crying, an injured asylum seeker bleeding, spiders on the ground, guards and batons, water cannon and fire: Life in Woomera through the eyes of a child. Some families were separated because they arrived at different times.