Australia in breach of migrant obligations and needs human rights act:

18th Nov 2016

The UN Special Rapporteur on the human rights of migrants has called on Australia to implement binding migrant protections in the face of wide-ranging human rights infringements, the Australian Lawyers Alliance (ALA) said today.

ALA spokesperson and barrister Greg Barns said the human rights of migrants, including refugees and asylum seekers, are routinely flouted in Australia and it is time for legislative human rights protection.

“The Australian government regularly breaches fundamental migrant human rights,” Mr Barns said.

”Australia has made a commitment to the international prohibition on torture and cruel, inhuman or degrading treatment. As a result we cannot send anyone to a place where they might be tortured, and we must also allow migrants to ask us for protection as a refugee.

“Screening processes for asylum seekers on boats that are being turned back are not good enough. The Special Rapporteur agrees with the ALA that asylum-seeker boat turn-backs do not meet these commitments,” Mr Barns said.

The Special Rapporteur noted that it is a “fundamental principle of human rights law that one person cannot be punished only for the reason of deterring another”, referring to the fact that offshore processing is designed to deter others from seeking asylum in Australia by boat.

The Special Rapporteur also highlighted the damage that administrative detention can cause.


“Immigration administrative decisions can have consequences which are worse than criminal law decisions: an erroneous immigration decision can send someone to arbitrary detention, torture or even death, all outcomes which have been banned from Australian criminal law. To avoid such outcomes, criminal law has evolved guarantees of fair trial and of the rights of the defence. Administrative law must provide similar guarantees when the consequences of the decision can be similar or worse.”

“Administrative detention, which is what offshore processing amounts to, must conform to human rights standards,” Mr Barns said

“To that end, we support the Special Rapporteur’s call that a statutory time limit on immigration detention and meaningful access to judicial review are essential developments. Ultimately, mandatory detention is an inappropriate response to asylum seekers who ask us for help.”

“There are so many people in immigration detention today who should not be there. Some are stateless, with no other country that they can go to. Others may have committed minor offences and be barred from applying for visas on ‘character’ grounds,” Mr Barns said

“Children should never be administratively detained, including being kept in ‘open centre arrangements’ on Nauru.

“Under the guise of administrative detention, people are suffering punishments that are much more severe than anything available under the criminal law. Australia should treat these people humanely and grant them visas,” Mr Barns said.

Mr Barns said the Special Rapporteur also noted the importance of protection from hate speech for migrants who are in Australia.

“The debate around section 18C of the Racial Discrimination Act is incredibly dangerous,” Mr Barns said

“The ALA supports the Special Rapporteur’s position that 18C facilitates a climate of respect and inclusiveness in Australia, a climate that benefits all of us.

As noted by the Special Rapporteur, half of Australian citizens were either born overseas or has a parent who was born overseas. One in five of us have experienced hate speech. These are not abstract rights. They affect many of us, and protecting them is essential to the strength of the Australian democracy,” Mr Barns said.

“For these reasons, we join the Special Rapporteur in his call for Constitutional or legislative protection for human rights. Judicial oversight of these fundamental protections is appropriate, especially in view of the clear disregard that members of parliament have shown to protecting our most vulnerable,” Mr Barns said.

Note: The full end of mission statement of the Special Rapporteur on the human rights of migrants can be found here.