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Asylum seekers

Inquiry into the Migration (Complementary Protection) Bill 2009

In September 2009 PILCH made a submission to the Standing Committee on Legal and Constitutional Affairs into the Migration (Complementary Protection) Bill 2009. PILCH’s submission dealt with the Bill in relation to Australia's treaty obligations pursuant to the Convention against Torture and the International Covenant on Civil and Political Rights.
 
The draft legislation undertakes to amend the Migration Act 1958 to better adhere to Australia’s obligations under international human rights laws, in particular to seek to prevent persons seeking asylum from being returned (refoule) to states where they would be at risk of torture. PILCH welcomed this proposal to better adhere to Australia's obligations under international human rights law.
 
However, PILCH was concerned that the Bill did not go far enough to meet these obligations. In particular PILCH submitted to the committee that:

• The construction of the Bill’s test to qualify for a protection visa, and the inclusion of a provision classifying ineligible persons means that the Bill does not fully adhere to these obligations.
• The Bill does not apply an absolute prohibition on non-refoulement which in PILCH’s view is necessary to ensure compliance with its obligations; and
• The Bill does not prevent non-citizens seeking asylum from being sent to other States where they may be placed at risk of torture.   

PILCH would like to thank the Human Rights Group at Mallesons Stephen Jaques for its enormous contribution to this submission.

Review of the Migration Amendment (Immigration Detention Reform) Bill 2009

 On 31 July 2009, PILCH made a submission to the Senate Standing Committee on Legal and Constitutional Affairs into the Migration Amendment (Immigration Detention Reform) Bill 2009 (Cth). PILCH commended the Bill's aim of implementing a more humane detention policy which will fulfil Australia’s obligations to a greater extent under international conventions. 

However, PILCH highlighted certain gap areas within the Bill in light of this aim and made further recommendations, including the following:

• the abolition of mandatory detention in favour of community-based initiatives
• the prohibition of children being placed in detention
• the introduction of clear and certain time limits for detention
• legislated guidelines to reduce discretionary decision-making
• periodic judicial review occurring automatically to prevent indefinite detention
• the abolition of bonds/sureties for release
• the return of all excised territories to the migration zone.

The Committee released its report on 20 August.

Joint Standing Committee on Migration Inquiry into Immigration Detention in Australia

On 29 May 2024 the Commonwealth Joint Standing Committee on Migration initiated an inquiry into immigration detention in Australia. The terms of reference for the inquiry included criteria for determining how long a person should be held in immigration and detention and for their release, transparency of immigration detention centres, options for improving services within immigration detentions centres and the use of community-based services as an alternative to immigration detention. Whilst PILCH supported the Australian Government on its proposed reforms to Australia’s immigration detention regime as outlined in the speech of Senator Chris Evans, Minister for Immigration and Citizenship, on 29 July 2024 it believed that these proposed reforms do not go far enough. 

PILCH's submission emphasised the need for Australia’s immigration regime to comply international human rights law by way of:

• Making immigration detention subject to judicial review and not subject to Ministerial discretion;
• Enshrining this process of review in legislation; and
• Making such judicial review readily accessible and affordable for those seeking it and be able to be completed in a timely and expeditious fashion.

This submission draws together the recommendations and findings of numerous government, independent and academic reports with PILCH’s experience of working with Asylum seekers and key stakeholders in this area, such as the Asylum Seekers Resource Centre.

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Mental health

Review of the Mental Health Act 1986

In February 2009, PILCH made a submission to the Community Consultation Panel’s review of the Mental Health Act 1986 (Vic). The review examined whether the Act provides an effective legislative framework for the treatment and care of people with a serious mental illness in Victoria.  It also aimed to ensure that the Act effectively protects and promotes the human rights of people with a mental illness in accordance with the Charter of Human Rights and Responsibilities Act 2006 (Vic). In its submission, PILCH highlighted some of the weaknesses of the mental health system, including in relation to:

• external review of involuntary treatment orders and proceedings before the Mental Health Review Board; and
• monitoring of, and complaints about, consumer care and treatment.  

In doing this, PILCH’s submission demonstrated how those weaknesses lead to violations of the human rights and fundamental freedoms of consumers of mental health services.The Community Consultation Panel is due to release its report this year.

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Climate Change Justice

Response to the Interim Report to the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)

On 3 August 2009, PILCH provided a response to the Interim Report to the independent review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the Act). The response provides further commentary and recommendations to those which were provided in PILCH’s original submission to the review in May 2009. 

In its response, PILCH clarifies and reinforces the human rights imperative and logic for the introduction of a climate change trigger, which was not addressed in the Interim Report. The PILCH response also describes how human rights considerations can assist and be utilised in making a climate change assessment under the Act. The PILCH response also emphasises the importance of appropriate mechanisms to facilitate public participation in environmental management, by commenting upon aspects of the Interim Report which relate to that part of our original submission. 

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Counter-terrorism laws or police powers

Counter-Terrorism and Human Rights: Submission on National Security Legislation Monitor Bill

On 27 July 2009, PILCH and the Human Rights Law Resource Centre made a Joint Submission to the Senate Standing Committee on Finance and Public Administration in relation to the National Security Legislation Monitor Bill 2009. The Bill establishes the National Security Legislation Monitor to review the operation, effectiveness and implications of counter-terrorism and national security legislation and report his or her findings and recommendations annually.In September 2008, PILCH and the HRLRC independently made submissions to the Senate Legal and Constitutional Affairs Committee Inquiry into the Independent Reviewer of Terrorism Laws Bill 2008 (No 2). A number of positive changes have been made to the Bill since the report of the Senate Standing Legal and Constitutional Affairs Committee in October 2008. While the Joint Submission strongly supports the establishment of the Monitor, it proposed number of recommendations to ensure a transparent, independent and holistic framework of review of terror laws, compliant with international human rights obligations. Examples of recommendations proposed in the submission include:

• Clarifying the definition of ‘counter-terrorism and national security legislation’ to ensure that any legislation which might impact upon the prevention, detection or prosecution of a terrorist act is covered, including new legislation
• Amending the Bill to expressly require the Monitor, in conducting a review, to consider the human rights impacts of Australia’s counter-terrorism and national security legislation and the compatibility of such legislation with international human rights standards and obligations
• Requiring the Monitor to have regard to a non-exhaustive list of relevant considerations when determining review priorities, including but not limited to: Australia’s human rights obligations; the extent to which the laws under review alter fundamental legal principles; whether the relevant laws are effective and workable, both within their own terms, and in combination with other legislation; and whether there are any less-restrictive means by which the objectives of the relevant legislation could be achieved.

Review of the Environmental Protection and Biodiversity Conservation Act 1999

In May 2009, PILCH made a submission to the independent review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). PILCH also met with the Consultation Panel undertaking the review to present its submission. The Act operates to protect the environment, especially where matters of national environmental significance are impacted by proposed development projects and resource use.  

The Act adopts a cooperative approach to the conservation of biodiversity and heritage.  Further, the Act incorporates Australia’s obligations under international environmental law into domestic law. PILCH submitted that the purposes of the Act should be advanced through recognition of the human rights implications arising from environmental climate change, in accordance with international law.  The human rights implications of climate change are an emerging consideration, which PILCH submitted should give rise to a new ground for environment protection.PILCH further submitted that the Act should operate in a manner that is consistent with access to justice principles and supportive of public interest litigation opportunities.  

PILCH’s submission addressed:

• the need for climate change to be identified as matter of national environmental significance under the Act;
• the importance of enhancing standing provisions and rights of interested parties to refer matters for review under the Act, and to introduce merits review from decisions under the Act;
• the importance of reinstating the prohibition on ordering an undertaking as to damages for an interim injunction; and,
• the need for new provisions in the Act that would allow protective cost orders to be made in public interest litigation under the Act.

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Independent Reviewer of Terrorism Laws Bill

On 4 September 2008, the Australian Senate Standing Committee on Legal and Constitutional Affairs invited PILCH to make a submission in relation to the Independent Reviewer of Terrorism Laws Bill 2008.The Bill proposes to establish an Independent Reviewer of Terrorism Laws to ensure ongoing and integrated review of the operation, effectiveness and implications of laws in Australia relating to terrorism. In its submission, PILCH supports the establishment of an independent reviewer of terrorism laws but recommends a number of amendments to improve the Bill, including that the Independent Reviewer be:

• appointed in a transparent and accountable manner;
• required to have regard to relevant international human rights law standards;
• granted the power to review any legislation which impacts upon the prevention, detection or prosecution of a terrorist act; and
• required to have regard to a non-exhaustive list of relevant considerations when determining review priorities.

Despite a tight deadline, the submission was lodged on 12 September 2024 due to the invaluable assistance provided by Mallesons Human Rights Law Group, in particular Sharyn Broomhead, Peter Henley, Robert Kovacs, James McCarthy and Jayani Nadaraj.

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General

Review of the Charter of Human Rights and Responsibilities Act 2006

On 10 June 2011, PILCH made a submission to the Scrutiny of Acts and Regulations Committee (SARC) as part of the Inquiry into the Charter of Human Rights and Responsibilities Act 2006.  Submissions were also made by the Human Rights Law Centre and the PILCH Homeless Persons’ Legal Clinic.

The PILCH submission addressed aspects of the Charter’s operation that PILCH has observed in its role as a clearing house for public interest pro bono work. The submission used four case studies of clients referred to member firms and counsel since 2007. The case studies were in the area of discrimination against same sex couples, children with a disability, people subject to guardianship orders and homosexual youth. In this respect, they engaged specifically with the right to recognition and equality before the law contained in s 8 of the Charter.

PILCH used the case studies to demonstrate the way in which the Charter has been used to bring about just, fair, efficient and commonsense outcomes for clients, whether by negotiation, advocacy or litigation.  PILCH argued that the case studies illustrate the effectiveness of the Charter in establishing a dialogue about human rights in the community, amongst public authorities and in the parliamentary scrutiny process.

The submission also noted that the Charter would be more effective in protecting and upholding peoples’ rights if:

• there were provision for an independent cause of action under the Charter;
• the Victorian Equal Opportunity and Human Rights Commission could be empowered to conciliate human rights complaints; and
• inconsistent laws (other than those expressly enacted) are deemed invalid to the extent of their inconsistency with the Charter. 

Universal Periodic Review Process

In April 2010, PILCH made a submission to the Attorney-General on the Universal Periodic Review process.  The submission outlined eight of the major human rights issues that, in PILCH’s view, should be addressed in the Australian Government’s report to the United Nations Human Rights Council.  These issues included the National Human Rights Consultation, access to justice and human rights education.  

Concluding Observations of the Human Rights Committee

In November 2009, PILCH made a submission to the Attorney-General in relation to the UN Human Rights Committee’s recent Concluding Observations on Australia. The submission makes concrete suggestions on how the Australian Government might implement the Concluding Observations, with a view to ensuring full compliance with its obligations under the International Covenant on Civil and Political Rights.  The submission focuses on such issues as the rights of Indigenous Australians, homelessness, inequality, the death penalty, terrorism and immigration.   

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