A Human Rights Approach to Immigration Law
In recent times, Australia has suffered a crisis of credibility when it comes to human rights compliance. This is most evident in the area of immigration. Protection of borders has regularly predominated over the protection of fundamental rights of those within them. So too, has political expediency. There has been serious slippage in a number of areas, to the extent that it can be considered systemic. Notorious amongst these has been the acute and egregious retreat from fundamental human rights obligations in the area of Immigration law, particularly in relation to the treatment of asylum seekers and refugees in Australia. Australia’s recent approach to asylum seekers and refugees has been radical and degenerative in nature. The approach has created one of the toughest and most extensive anti-asylum seeker systems in the Western world. From a human rights perspective Australia’s approach represents, in many respects, the Western world’s worst practices and a potentially problematic precedent. Key features have included: mandatory, indefinite, non-reviewable detention; Temporary Protection Visas; the Pacific/Indian Ocean Solutions; naval repulsion of asylum seekers arriving by boat; and ‘excision’ of Australian territory to preclude people seeking asylum in Australia at all.
The evidence is in, and the case for systemic reform is compelling. While the recent post-Palmer report Petro Georgiou-led reform processes have diminished the daily suffering for many, reform has been limited and largely restricted to bureaucratic process and conduct, rather than policy.
With recent political regime change in Australia, the question of immigration reform now invites a quite different inquiry; here is a snapshot of some key priority themes and signposts for reform in the context of Immigration policies and laws.
Move to the Mainstream
Over the last decade, we have witnessed the construction of a legal architecture in the Immigration area which ‘excised’ decision-making and other government conduct from the ordinary, mainstream Australian legal system. In many areas, this has involved legislative developments which represent a radical departure from the well-established foundations of our legal system. Such principles include the application of the rule of law, access to legal advice, access to the Courts, habeas corpus, and anti-discrimination. There have been strenuous attempts by the Executive to expunge these principles from migration law.
Australia’s response has also involved a prolific range of regulatory amendments driven by an ever-increasing and obsessive trend of ‘hole-plugging’ – that is, fixing perceived loopholes – with scant regard for fundamental normative legal principles, and a resultant litany of dubious legal contortions. In turn, it has abrogated certain core international human rights principles and undermined Australia’s treaty obligations.
Reform should restore decision-making and other operations under Immigration policy to the mainstream of the Australian legal system to ensure that they function in conformity with Australia’s fundamental legal principles and international human rights principles and obligations.
Key Priority Areas
Pacific Solution and Indian Ocean Solution
One of the major Immigration policy reforms under the new Government has been dismantling the Pacific Solution. The Pacific Solution represented a radical departure from mainstream domestic and international human rights law principles, principally by: selectively ‘excising’ Australian territory to preclude those arriving in such territory from equal access to legal rights, such as the making of a protection visa by warehousing them in Nauru or PNG. The policy involved the assessment of refugee status under a fundamentally inferior processing regime outside the rule of law and completely failed to provide timely, durable solutions of resettlement for recognised refugees.
Given the centrality of this policy to Australia’s anti-asylum seeker system, and the serious harm it inflicted on many refugees, this reform was significant. However, too much celebration is premature. The new Labor Government has retained the excision laws, and a policy which condemns informal boat arrivals to remote detention on Christmas Island in circumstances which remain unclear and unsatisfactory. It is of profound concern that the Government appears to be replacing the Pacific Solution with an Indian Ocean Solution. Under the reformed policy there remains the real risk that the core elements of the Pacific Solution, except foreign warehousing, will continue to apply, albeit on ‘excised’ Australian soil.
To remedy the policy’s flaws, reform needs to ensure that asylum claims are assessed in a way which is compatible with mainstream Australian and international law- i.e., adjudication under the rule of law, the right of independent review, removal of obstacles to access full legal and other assistance and guaranteed, durable protection in Australia for recognised refugees.
Temporary Protection
Another key reform priority is the abolition of temporary protection for Convention refugees. The Labor Party promised reform in this area pre-election last year, though to date, there has been no tangible progress. It is quite clear that the current temporary protection system, introduced in 1999, is flawed and unprecedented internationally. It flagrantly violates a number of human rights principles and treaty obligations, including: non-discrimination and non-penalisation for reason of mode of arrival; the right to family reunion, the right to re-entry and Travel Documents; the right to social security and the right to protection. Further, it has caused substantial re-traumatisation to many recognised refugees, who have been left in limbo and endured forced family separation.
The key reform required is abolition of Temporary Protection Visas for onshore asylum seekers who are determined to be Convention refugees. Such persons should be granted permanent residence. This would require legislative amendment. In the interim, a process should be urgently established to convert the current status of hundreds of temporary protection and humanitarian visa holders to permanent Protection visas. This ‘conversion’ process could be completed under existing legislation, via the processes proposed by a coalition of NGOs, including the Refugee & Immigration Legal Centre. This would reduce the daily damage TPV holders and their families continue to face.
Mandatory Detention
Australia’s continued policy of mandatory, indefinite and non-reviewable detention of asylum seekers violates its obligations under various international treaties, including the ICCPR and the CROC. The arbitrary, non-reviewable nature of the policy has been condemned by a wide range of independent domestic and international human rights bodies. The acute psychological and physical harm and trauma inflicted on people, including children, subjected to such policies is also well-documented.
These policies are also clearly contrary to ordinary principles of detention under mainstream Australian law, in which deprivation of liberty by the State must be for reasons related to criminal activity, or administrative necessity for individual or public protection, and generally, for a finite or fixed period, with the possibility of challenging the legality of detention before a Court applying due process safeguards. Under the post-Palmer reform process, although there has been some substantial progress by way of routine release of children and families into the community and reduction of numbers of prolonged detention cases, recent reforms have left the ultimate power of community release entirely to the personal discretion of the Minister, with no other legislative, enforceable limits placed on the government.
In broad terms, detention reform must move the system from a discretion-based to a law-based approach, with enshrinement of the legally enforceable principle that detention of asylum seekers is inherently undesirable and should only be used as a last resort. Reform should also prioritise the re-establishment of an onshore processing system that focuses on community-based measures, and ensures that ‘administrative’ immigration detention is strictly time-limited, subject to periodic judicial review, and only used to effect reasonable, necessary and proportionate aims, such as initial entry health and security checks. The alternatives to detention that are currently being successfully developed and employed by the Department of Immigration, and the more efficient processing of claims, provide fertile ground for further progress.
In the meantime, asylum seekers should be released in accordance with the above principles and afforded work rights and access to established welfare programs. For those who pose appreciable character and/or security risks, transfer to appropriate community detention structures with necessary monitoring and reporting requirements should be effected.
Ministerial Discretion
The vast powers of Ministerial discretion are another area which requires fundamental reform. They involve an unprecedented legal architecture comprising over 20 sets of powers in which the Immigration Minister is the only person in the country able to decide the fate of literally thousands of people each year. Often the cases involve questions as grave as the rights to family unity and protection from persecution, but without the right of appeal, or to even compel the Minister to consider the case, let alone be provided with reasons for the decision. This process does not conform to basic public expectations of accountable, transparent and fair decision-making. Recent history under successive Ministers has shown how arbitrary, whimsical and unwieldy this system can be. There is also substantial evidence that the process by which Ministers receive advice is seriously flawed.
It is concerning that under these extensive powers, the Minister is left to be the sole gatekeeper on a whole range of international human rights treaty obligations under the Convention against Torture, the ICCPR and the CROC. While there are good reasons for a safety net for exceptional cases, the general principle must be that decisions on such complex and often grave situations be regulated not by political process but by the rule of law.
Minister Evans’ recent expression of concerns about the powers and his decision to review them are welcome. With clear legal and policy guidance, administrative decision-makers and Courts are best-equipped to decide the matters currently subject to Ministerial discretion. Reforms should bring this area into line with ordinary administrative decision-making under our legal system. For example, in relation to international human rights treaty obligations which fall outside the Refugees Convention, the Government should introduce a complementary protection system which operates under ordinary administrative law processes, such as exists in other comparable Western jurisdictions such as Canada.
Conclusion
The reform course should be partly chartered by moving the operation of Immigration law into line with ordinary principles under the mainstream legal system in Australia, and framed by a coherent set of principles and doctrines, which also are informed by international human rights obligations. Highest priority should be given to areas where the most egregious harm has been done. However, history tells that Immigration policy is particularly vulnerable to the cynical and unprincipled dictates of the political environment. Thus, reforms would ultimately be far more resilient if Immigration reform could operate in concert with the introduction of a federal Charter of Human Rights.
David Manne is Co-ordinator and Principal Solicitor of the Refugee & Immigration Legal Centre Inc (RILC). RILC plays a leading role in legal assistance, advocacy and law reform in relation to asylum seekers and refugees in Australia.