New Legal Controversies Over Asylum Seekers: Standards of Evidence and PNG Court Battle Funding

Friday 6 June 2014 @ 11.11 a.m. | Crime | Immigration

Australia’s immigration policy has continued to draw criticism as a fresh legal controversy has erupted this week over the evidence used in cases of alleged people smugglers. The Sydney Morning Herald has reported that “[d]ozens of criminal convictions against asylum seekers may be in doubt”, after the Commonwealth Director of Public Prosecutions was forced to withdraw a charge of people smuggling after identity parade evidence was found to be inadmissible under s 138 of the Evidence Act 1995 (Cth).

Evidence for People Smuggling

In R v Mohammad Hadi Parivash [2014] NSWDC 62, the State sought to admit evidence from a “photo board identification process”, where the accused’s photograph was selected from others by a witness identifying him as a people smuggler. The accused objected on the basis that the Australian Federal Police had refused to comply with the provisions of s 3ZO of the Crimes Act 1914 (Cth), which prevents photographs being used to establish identity if a suspect is in custody, subject to a number of exceptions. The officer in charge gave evidence that he believed there was an AFP policy that because Department of Immigration records for asylum seekers were “often out of date and wrong”, “it would be impossible to organise a potential witness and a suspect in the same city” [at 18]. Justice Topman called this “both disappointing and concerning” and stated:

It was an institutional error in relation to evidence gathering in circumstances where the AFP officer acknowledged the importance of an identification parade, and thus where it would appear that a lesser standard was being applied, on an institutional basis, when gathering evidence in relation to offences potentially committed under the Migration Act in relation to asylum seekers, than in relation to suspects for other offences.

That itself is a matter of even greater concern because all people in immigration detention, whether they are suspected people smugglers or those seeking asylum, have very limited rights compared to others in the community. They have no control over the place to which they may be moved. Their access to others is limited and controlled by the Immigration Department. They are, to that extent, in a more vulnerable position than those in the Australian community generally and with limited opportunities.

As such, laws designed to protect the rights of a person who is suspected of an offence and likely to be charged with a criminal offence, ought be complied with strictly when dealing with people in that vulnerable position. [at 35].

Human Rights of Asylum Seekers

The Director of Legal Advocacy at the Human Rights Law Centre, Daniel Webb, told The Sydney Morning Herald that: “[t]his is part of a broader and deeply concerning trend of treating the basic rights of asylum seekers as dispensable.” Criminal defence barrister Greg Barns similarly commented that asylum seekers were sometimes placed in immigration detention after being charged with an offence even when they had been granted bail, saying:

“So even if the court determines that they are entitled to conditional liberty in accordance with the presumption of innocence, Immigration will take that liberty away.”

The Minister for Immigration, Mr Scott Morrison, cut all funding for asylum seeker legal services in March this year. He told The Sydney Morning Herald that the complaints were

“more hype from refugee advocates and lawyers who have a clear objective in seeking to undermine the government’s strong border protection policies that are stopping the boats, saving lives, and saving taxpayers $2.5 billion in the budget.”

Report into Manus Island

A Federal Government report into the Manus Island riots in February that was released last week could also spark further legal proceedings, with ABC News reporting that a Salvation Army worker “is expected to be charged” with leading the attack that killed Iranian asylum seeker Reza Berati. However, PNG’s Deputy Police Commissioner has publicly criticised the report, denying that police played any role in violence, and alleging that injured asylum seekers had been “secretly flown to Port Moresby” for medical treatment in a “major cover-up”. Mr Morrison has said that the decision on whether or not to lay any charges is “a matter for PNG authorities” but that Australia was committed to providing any help that was requested.

Although the relationship between the two countries seems publicly stormy, during a Senate Estimates hearing in May, it was revealed that the Australian Government has partially funded the PNG Government’s legal costs against a constitutional challenge organised by opponents of the offshore detention centre. Between $350,000 and $370,000 has been spent on the Manus case, with “a little in Nauru”, which the Government says is in line with the original Memorandum of Understanding signed with each country.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.