Submission of the New South Wales Council for Civil Liberties to the Legal and Constitutional
Affairs Committee 

NSWCCL thanks the Senate Committee for the opportunity to comment on this Bill.

Background

The Villawood Immigration Detention Centre is secured by a private company which provides public
services (Serco). In that regard, they have to follow the government rules and apply them to the
Centre. Similar arrangements apply at other Immigration Detention Facilities.

Asylum seekers who came by boat were prohibited from accessing mobile phones some time ago,
while those who came by plane had access until recently. The prohibition is the subject of a court
case brought by The National Justice Project in the Federal Court. In February this year the Court
issued a temporary injunction lifting this ban. An appeal concerning the competence of the court to
hear the case was overturned, and the case continues.

This Bill appears to be an attempt to pre-empt the Court’s finding,
The rules can be arbitrary, demeaning and unfair. Restrictions on what detainees may possess and
on what visitors may bring in with them have been the subject of abrupt changes recently.
A new requirement has been placed on visitors to have 100 points of identification a difficult task
for refugee families. Many former detainees and members of the families of detainees have only an
IMMI, which is worth only 70 points. They do not have drivers’ licences, nor other items to make up
the other 30 points. Since the identity cards are themselves issued by the Department of
Immigration and Border Protection (DIBP), these should be sufficient for entry.

The Minister for Immigration and Border Protection, Peter Dutton, recently set a deadline for asylum seekers living in Australia to make their applications for protection.  There about 7,500 people affected.  Each adult has to fill in a complex 41 page form, and to fill in a 25 page form for each of their children, babies and all.

Asylum seekers have only one chance to apply for protection, and mistakes on their forms will lead to some being sent back to the dangers from which they have fled.  Any inconsistencies, for example with what they said when they arrived in Australia, can be fatal. 

Mr. Dutton is not providing the legal assistance essential to ensure that the forms are completed appropriately, nor does the government provide the interpreter services that are required.  Volunteer organisations and lawyers acting pro bono do not have a hope of completing the work in time. 

We are asking you to write to your member of parliament, to a senator, and to the minister, asking them to remove this deadline, and request that legal and interpreter help is funded by the government.

Could you please let us know if you are in communication with any members of parliament on this issue.

Martin Bibby, Convenor, CCL Asylum Seekers Action Group

Not content with the Migration Act in its current form, the Government continues to put forward changes designed to increase the power of the Minister and further constrain avenues available to asylum seekers and refugees. Our Asylum Seeker and Refugee Action Group has considered these bills and asks you to contact your local members of Parliament to oppose the proposed changes to the Migration Act.  If you have a Coalition member of the Federal Parliament, you could urge them to rethink these Bills. If you have a local or nearby ALP member of the Federal Parliament, you could contact them, or one of the NSW ALP or Green Senators—to urge them to maintain their opposition to the following bills. Two of these Bills have been passed by the House of Representatives but, so far, been rejected or delayed by the Senate (the third of the Bills listed below has not yet passed the House of Representatives): 

 The Migration Amendment (Visa Revalidation and Other Measures) Bill 2016,

The Migration Legislation Amendment (Regional Processing Cohort) Bill 2016,

The Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016 Provisions. 

 These bills contain shameful features which would undermine the rights, not only of asylum seekers and of recognised refugees, but of permanent residents and temporary visa holders across the board.  They give unprecedented, non-compellable, non-reviewable powers to the Minister for Immigration and Border Security. 

 Full details of objections to these bills are made in submissions made by the Law Council of Australia or by the CCL and minority reports by ALP senators and by Green senators on the Legal and Constitutional Committee of the Senate (LEGCON).

The annual Palm Sunday March this year will be a protest against the treatment of asylum seekers and refugees by Australia, both in the offshore detention centres of Nauru and Manus Island and in those on the Australian mainland.  The CCL Committee is formally endorsing this protest and march, and urges you to join us. 

Conditions for the refugees and asylum seekers dumped on Manus Island and Nauru remain intolerable.  Manus has claimed the lives of Reza Barati, Hamid Khazaei, Kamil Hussain and Faysal Ishak Ahmed, while Omid Masoumali died on Nauru.  There will be more deaths, if we do not act effectively.

There are also around 30,000 refugees within Australia seeking asylum.  At present, most will at best receive temporary protection visas, leaving them in fear of forced return to danger, and unable to reunite with their families.  

The proceedings will begin in Hyde Park North, at 2.00 p.m., on Palm Sunday, April 9.  We look forward to seeing you there. Find out more about the rally on their Facebook event page. 

From the GetUp site:

Guardian Australia has released 2000 leaked documents detailing horrifying levels of abuse on Nauru. Once again, all eyes are on the government to see how they respond to this proof of large-scale abuse, including of children. 

These abuses should never have occured. Now, they must end. The government must bring those in its abusive detention camps to safety immediately. 

The entire policy is falling apart - the legal permissions, and the political and corporate support for the camps, are all disappearing. But the government is pretending everything is fine, and the camps are still open. Now the human cost is again laid bare.

Whether it's Nauru or Manus Island, it's clear the Australian Government's abusive detention regime is in a state of complete and utter chaos – and it's harming people.

The Australia Government has been treading water, avoiding facing the reality of its own policy's failure. Now, we must show them the way forward. 

#LetThemStay showed that more people than ever supported allowing people seeking asylum already in Australia to move into our communities. Now, we must prove definitively that our shared compassion extends to those on Manus Island and Nauru – and that the governrment must follow the public, and bring those in its abusive camps to safety in Australia. 

NSWCCL wholeheartedly supports the High Court challenge brought by Doctors for Refugees against the Commonwealth and the Minister for immigration and Border Protection in relation to the secrecy provisions of Border Force Act 2015.

 The Act contains provisions which allow for the imprisonment for up to 2 years of doctors, social workers and others who disclose ‘protected’ information regarding conditions in immigration detention centres.

 As a result these  people may be liable to imprisonment for complying with their professional standards and ethical obligation to report abuse, because such abuse occurs in an immigration detention centre. Reporting abuse outside immigration centres is required by legislation, but is criminalized in the context of immigration centres.

 There is no convincing justification for the introduction of such draconian provisions. We believe the only reason for these provisions is to silence those working in detention centres. This is contrary to the principles of transparency and open debate, which are fundamental in a democracy. How can people support government policy when they have no idea what is being done in their name?

 NSWCCL strongly opposed the introduction of the secrecy provisions of the Border Force Act, which were introduced with bipartisan support. These toxic and undemocratic provisions should be repealed immediately. 

The NSW Council for Civil Liberties is gravely concerned that doctors, teachers and social workers employed in Australia’s immigration detention network could face jail for speaking out about their experiences.

With the Border Force Act 2015 coming into effect, employees working in various capacities face a two year sentence for recording or disclosing “protected information” they come into contact with as a result of their work.

As the Australian Medical Association and the Royal Australasian College of Physicians have noted, this restriction on free speech will prevent doctors from following their professional and ethical obligations to advocate on behalf of their patients.

“This legislation is particularly troubling given the history of poor care in immigration detention,” says NSWCCL President Stephen Blanks.

“It is telling that doctors who have worked in these centres at the highest level have previously decided to go public with their concerns. Systemic failures have led to gross human rights violations.

“These public disclosures have put pressure on governments to improve conditions in the centres.”

A steady flow of leaks to the media about sexual assaults in the Nauru detention centre eventually forced the Department of Immigration to order an independent review in October 2014. It found credible evidence of sexual assaults, which the government has now been forced to acknowledge and act upon.

“While forcing government action is one important outcome of such disclosures, it must also be remembered that the public has a right to know what is done in their name,” says Blanks.

Detention centres have always been places lacking in public scrutiny where civil liberties are overlooked. Successive governments have made sure to keep the people detained out of public view, hiding the trauma and lasting damage indefinite detention inflicts.

While the CCL notes the assurances that the new Border Force Act will not cancel out existing safeguards in the Public Interest Disclosure Act, we are unconvinced this legislation is sufficient. It sets too high a bar for whistleblowers, and circumscribes too tightly the situations in which they may share information with the public.

Furthermore, the existence of this legislation is a danger even before any doctor, teacher, or humanitarian worker is dragged before a court. Its mere existence is a threat to would-be whistleblowers, an attempt to intimidate Australian workers who see something wrong into staying quiet about it.

We know that this government has a particularly ugly tendency to target those who try to bring abuses in detention centres to the public’s attention, as seen by the unrelenting attacks on Australian Human Rights Commission President Gillian Triggs.

“Australia’s immigration detention network has been made a dark place,” says Stephen Blanks.

“With this new act, the government is trying to blot out the small rays of sunlight still getting in.”

The NSW Council for Civil Liberties has joined with the Refugee Council of Australia and over 100 Australian organisations and community groups in urging the Australian Government for an immediate moratorium on offshore transfers to Nauru and Manus Island until all recommendations of the Moss Review and Cornall Report have been fully implemented, and the centres comply with minimum international standards.

The call follows the appalling case of a five year old girl who attempted suicide after prolonged detention on Nauru.

Conditions are similarly poor on Manus Island, where a majority of asylum seekers have still not had their applications processed after two years, and as on Nauru, limited health care is available.

Paul Power, CEO of the Refugee Council said: “No child should be sent there and certainly not sent to a situation while the environment remains so dangerous… [W]e call upon the Australian Government to immediately cease the transfer of vulnerable asylum seekers until all the recommendations of the Moss Review and the Cornall report are implemented.”

These reports highlighted sexual abuse, violence and the systematic failure to provide safety and security to detainees, particularly women and children. The Australian Government, by accepting all the recommendations of the Moss Review, has acknowledged that considerable changes are needed, yet continues to send asylum seekers into a fearful environment where their safety and security cannot be guaranteed. 

Read the full Press Release and Letter here or on the Refugee Council of Australia's website.

NSWCCL recently made a submission to the Legal and Constitutional Affairs Legislation Committee's inquiry into the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015. The submission condemns the Bill in its current form since the collection and retention of biometric data poses an unnecessary and disproportionate threat to the privacy of all non-citizens and Australian citizens.

While understanding the justification for the collection and use of biometric data, NSWCCL is concerned that the Bill does not contain essential safeguards to limit the collection and retention of additional biometric data such as fingerprints, handprints, measurement of height and weight, an audio or video recording and an iris scan.

Furthermore NSWCCL is concerned that the Bill in its current form may disproportionately affect minors, incapable persons and asylum seekers because it removes the requirement for consent and presence of a parent, guardian or independent person for and during the collection of such biometric data. 

Thus, NSWCCL urges Parliament to conduct a privacy impact assessment and relevant safeguards be implemented to ensure that the amendment does not allow for the mass collection and retention of biometric data.

Read the full submission here. 

The Castan Centre for Human Rights Law has released this video in the Have You Got That Right? video series to answer the question - does detention of asylum seekers breach human rights?

Asylum seekers are subjected to mandatory detention in a number of countries. A notable example is Australia. Asylum seekers who arrive (or who are intercepted while attempting to arrive) in Australia by boat are held in detention centres in Australian territory and in other countries under arrangements made and funded by Australia. These days, most such arrivals are detained in Nauru and in Manus Island in Papua New Guinea (PNG). Such detention occurs automatically, and normally lasts for the entire period in which an asylum claim is being determined, which can be a very long time. Both adults and children are detained.

There's more resources on their website.