Govt’s rushed Migration Amendment Bill is unconscionable

24th Jun 2015

A last-minute Bill seeking to head off court action challenging the Federal government’s power to fund offshore detention facilities is unconscionable, the Australian Lawyers Alliance (ALA) said today.

The government’s Migration Amendment (Regional Processing Arrangements) Bill 2015, supported by Labor, seeks to close a ‘loophole’ in existing legislation and authorise payments made to establish and operate offshore detention centres on both a prospective and retrospective basis.

ALA spokesperson Greg Barns said that the retrospective nature of the new Bill was especially troubling, as it was attempting to paper over previous actions which may not have been authorised by law.

“To use retrospectivity to legitimise funding of a regional processing centre where it has been demonstrated that there is under-reporting of sexual abuse of children, is not only unconscionable, it is abominable,” Mr Barns said. “To use retrospectivity to attempt to legitimise the funding of a program is poor legislative and fiscal practice.”

“It is deeply disappointing that the Australian government would attempt to circumvent litigation in this manner – and not only on a prospective, but retrospective scale,” Mr Barns said. “Retrospectivity should only be applied where there has been a substantial miscarriage of justice.”

“To put this into perspective, retrospectivity has not yet been applied for survivors of institutional abuse, or for survivors of gang rape seeking victim’s compensation,” Mr Barns said.  

“Retrospectivity is usually antecedent to the making of good laws,” Mr Barns said. “This is an attempt to plug legislative holes where there may not have been adequate legal provision for the funding of regional processing centres.

“Retrospectivity of laws should be confined to those in which people have been deeply aggrieved and in which there will otherwise be a substantial miscarriage of justice,” Mr Barns said.  It should only be used in rare circumstances to assist individuals who have been grievously injured.”

“Further, the government states that its position is that the legislation does not relevantly engage with human rights and freedoms as ‘the Regional Processing Centres are managed and administered by the government of the countries in which they are located, under the law of those countries’.”

“What this statement fails to recognise, is that the Department of Immigration and Border Protection and the Department of Comcare, have both acknowledged that Australian work, health and safety legislation applies in these detention centres. These detention centres continue to operate under Australian law, and detention standards laid down by the Commonwealth,” Mr Barns said.

“These regional processing centres are not beyond the reach of Australian law or the Australian courts. And while this legislation has attempted to place them beyond the purveyance of the High Court of Australia on point of validity of funding – it is clear that the government cannot completely eliminate the relevance of Australian law to these centres while they remain overseen by Australia, staffed with Australian workers, paid for by Australia, and especially considering the special vulnerability of the people housed within them,” Mr Barns said.

“The degree of control exercised by the Australian government in regional processing centres may in fact indicate a non-delegable duty of care.”

“The Explanatory Memorandum to the Bill states that ‘The Government’s position is that Australia does not exercise the degree of control necessary in regional processing countries to enliven Australia’s international obligations.’ While the issue has not yet been resolved at a High Court level, a Senate inquiry is currently examining Australia’s duty of care obligations in Nauru following the Moss Review.

“The Australian Lawyers Alliance believes that the degree of control exercised by the Commonwealth is analogous to other relationships in which the Courts have characterised that a non-delegable duty of care exists,” Mr Barns said.

“We believe that it is a matter of time before the Courts will make their findings.”  

Tags: Human rights Migration law Asylum seekers and refugees