Migration Act stripped of human rights protections
President of the Australian Human Rights Commission, Professor Gillian Triggs, has welcomed the efforts of the Expert Panel on Asylum Seekers to respond to the tragic loss of life at sea.
Professor Triggs said the practical recommendations for a regional cooperation and protection framework, and significant increases in resettlement places in Australia for refugees, will contribute to reducing the risk of further maritime disasters and has urged the government to implement these recommendations as soon as possible.
“I am concerned however, that the amendments to the Migration Act, now passed by the House of Representatives and Senate, have stripped human rights protections from that Act,” Professor Triggs said.
“The High Court has been clear that regional processing must meet the international human rights standards previously set out in the Migration Act.
“In light of the amendments, there will be no opportunity for the High Court to review whether regional processing will be conducted in accordance with human rights standards,” she said.
“The repeal of human rights protections contained in the Migration Act violates one of the first recommendations of the Expert Panel Report, that adherence by Australia to its international obligations should be one of the guiding principles shaping Australian policy on asylum seeker issues.”
Professor Triggs said the Commission is alarmed that the amended Migration Act contains no requirement for Australia to ensure regional processing countries respect the human rights of asylum seekers.
She said that while Nauru had acceded to the Refugee Convention and its Protocol, significant work will need to be done to ensure that it is able to meet, in practice, the obligations which it has agreed to accept. Papua New Guinea also held multiple reservations to the Refugee Convention, indicating that it may not fulfil many of its legal obligations.
“Furthermore, the Commission is deeply concerned that the principle of ‘no advantage’ will mean, in practice, that asylum seekers who arrive by boat may be exposed to lengthy periods of time in regional processing countries, without a durable resettlement solution,” she said.
The Commission has repeatedly raised its concerns that the former “Pacific Solution” led to breaches of international human rights standards. People subject to this policy did not have access to an adequate system for the processing of their protection claims and experienced lengthy periods of detention in poor and isolated conditions, with inadequate access to health and mental health care.
“The Expert Panel report recognised and responded to some of these concerns and individual panel members have said that that the use of closed immigration detention is not envisaged under these third country processing arrangements,” she said.
Professor Triggs said the Commission is also concerned about the situation of unaccompanied children who may be transferred to a third country for processing.
“We are concerned that, under these amendments to the Migration Act, the Minister will not need to consider, on an individual basis, the best interests of unaccompanied children before sending them to a regional processing country,” she said.
“The Expert Panel has stated that, in order to fulfil its international obligations, Australia must take into account a person’s individual characteristics when deciding whether to transfer them, including the best interests of a child.
“Australia must also be satisfied that each person transferred will have access to an effective refugee status assessment procedure and won’t be returned to a country where their life or freedom is at risk. These are core obligations under international law and should be respected,” she said.