Senate Human Rights Committee Highly Critical Of The Government’s Migration Bill
Monday 3 November 2014 @ 12.35 p.m. | Immigration
The Federal Government’s planned changes to migration law are continuing to cause controversy. The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) has now reached its most crucial stage, the Senate. If not supported by Labor, the Government will need the Palmer United Party, plus three more votes on the crossbench, to get the bill through. The PUP had previously made a deal that would allow the reintroduction of temporary protection visas (TPVs) and a new “safe haven enterprise visa”. However, Clive Palmer told Guardian Australia that he was very concerned about a number of issues raised by the bipartisan Parliamentary Joint Committee on Human Rights, who strongly criticised a number of the aspects of the new bill. According to the Guardian Australia:
“Palmer said he was worried that the government’s legislation went “way beyond” the original deal to redefine what it meant to be a refugee.”
The Joint Committee, made up of five Coalition, four Labor and one Greens member, raised a number of concerns about the proposals in the bill. The report says that:
“The bill removes the relevant international human rights norms from a role in defining the legal framework and standards within which Australia meets its international human rights obligations.
The committee acknowledges that Australia has sovereignty to change its domestic laws. However, in the committee's view, this severing of the connection between Australia's international obligations and its domestic law engages, and is likely to significantly limit, a number of human rights protected by international law.”
Non-refoulement
The committee was particularly concerned about the impact the changes could have on Australia’s non-refoulement obligations (that Australia must not return any person to a place where there is a real risk of serious forms of harm or cruel, inhuman or degrading treatment). The report says that:
“[t]he provision of ‘independent, effective and impartial’ review of non-refoulement decisions including merits review is integral to complying with non-refoulement obligations.
The committee highlighted concerns that by intercepting people at sea, and explicitly excluding court challenges to government actions, the government would not be complying with international law, regardless of the government’s stated intention to do so. They also rejected the government’s argument that “administrative arrangements” such as the minister’s discretionary powers to grant a visa, would be sufficient to cover these non-refoulement obligations.
New statutory framework
The report was also critical of Schedule 5 of the bill, which would remove most of the references to the Refugee Convention and would set out the convention-related concepts in the Government’s “intended interpretation”, particularly where “judicial interpretation of specific provisions has not been consistent with the Government’s intended interpretations”. One of the changes would redefine “refugee” but without reference to the Refugee Convention. The committee says:
“the unilateral interpretation of Australia's international obligations as proposed by the amendments is not in accordance with accepted standards of international human rights law.”
Temporary protection visas and safe-haven enterprise visas
The report found that there were not enough details about the proposed safe-haven enterprise visas to be able to assess their human rights compatibility. The committee also noted that the introduction of TPVs could lead to Australia’s non-refoulement obligations being breached. They also highlighted “significant adverse consequences for the health of TPV holders” due to the requirement to continually prove their claims for protection.
Fast track assessment
Again, the committee was concerned about how the assessment process would interact with non-refoulement obligations, particularly as refugees would also not be able to access the Refugee Review Tribunal. Instead, a new statutory body, the Immigration Assessment Authority would review these ‘fast-track’ decisions on the papers only.
The report also mentioned concerns about the cap on protection visas and the legal status of the children of unauthorised maritime arrivals.
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