The Bill amends the people smuggling offences in the Migration Act 1958.

Existing sections 233A and 233C of the Migration Act establish a primary people smuggling offence and an aggravated people smuggling offence. Both of these offences are established inter alia where another person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry to Australia, of another person that is a non-citizen, and that non-citizen had, or has, no lawful right to come to Australia.

The Bill retrospectively defines “no lawful right to come to Australia” contained in the people smuggling offences to mean no lawful right under domestic law to come to Australia. This is notwistanding that a person may have a clear and lawful right under international law to come to Australia.

The HRLC Submission to the Senate Legal and Constitutional Affairs Committee focuses on the human rights implications of the Bill.

In particular, the HRLC has identified the following concerns:

• the Bill contravenes the prohibition on retrospective criminal laws contained in article 15 of the International Covenant on Civil and Political and Political Rights, Australian common law and Government guidelines;
• the mandatory sentence of 5 years with a 3 year non-parole period that flows from the offence of aggravated people smuggling contravenes the prohibition on arbitrary detention (article 9 of the ICCPR) and the right to a fair trial (article 14 of the ICCPR); and
• the Bill violates Australia’s obligation to act in “good faith” by seeking to indirectly avoid its obligations under the Convention Relating to the Status of Refugees.

In essence and effect, the Bill toughens an already draconian regime which threatens to see hundreds of impoverished Indonesian fishermen and boys jailed for a minimum of 3 years. This regime violates human rights, threatens the rule of law, costs taxpayers tens of millions of dollars in legal fees and detention costs and is likely to have no impact on people smuggling. The HRLC recommends that the Committee call for the Bill to be rejected.

The submission to the Commonwealth Attorney-General’s Department considers each of 145 recommendations made to Australia by the international community during Australia’s Universal Periodic Review before the UN Human Rights Council.

The recommendations ranged from enacting a comprehensive national Human Rights Act, to recognising same-sex marriage, to enshrining Indigenous and racial equality rights in the Constitution, to abolishing mandatory immigration detention.

The Centre’s submission considers each of these recommendations in terms of Australia’s concrete obligations under international human rights law and identifies whether, on that basis, they must be accepted, should be accepted, or should be rejected.

According to a legal analysis of the recommendations conducted by the Human Rights Law Centre, the Australian Government must immediately implement at least 55 of the UPR recommendations in order for Australia to avoid continuing breaches of its legal obligations under international law.  The HRLRC’s media release is available in [PDF] and [word].

Australian NGO Coalition

The Centre has also been involved in the coordination of a major NGO Coalition submission to the Attorney-General’s Department regarding prioritisation and practical implementation of the 145 recommendations.

The Australian Government has committed to fully consider the recommendations “in the coming months” and to formally respond to them at the UN Human Rights Council in Geneva in June. Australia’s response presents both a test and an opportunity for the protection of human rights at home and the enhancement of our international standing and reputation abroad.

For further information about Australia’s Universal Periodic Review, see http://www.hrlrc.org.au/content/universal-periodic-review-ngo-delegation-updates/.

The Bill: requires civil litigants to take genuine steps to resolve disputes before legal proceedings are instituted in the Federal Court or the Federal Magistrates Court; sets out the powers of court in relation to the genuine steps requirements and awarding costs; and provides that certain categories of legal proceedings are excluded proceedings.

The HRLRC and HPLC consider that the Bill contains important measures for encouraging the focused identification of issues in dispute between parties and, in turn, the early resolution of disputes and potential avoidance of costly litigation.  However, while these are important purposes, they must be balanced against an individual’s access to justice and right to a fair hearing.

This submission highlights potential risks faced by individuals involved in legal disputes that may result from the operation the Bill. Specifically, the HPLC and HRLRC consider that the fundamental right to a fair hearing must guide the content and operation of the Bill.

The major recommendation of this submission is that the provisions contained in the Bill must ensure that right to a fair hearing is afforded to all individuals, including potential parties to a proceeding. The civil justice system must operate in a way that does not exclude individuals from being able to access justice on an equal basis with others. This includes ensuring that no individual is disadvantaged prior to instituting proceedings.

The joint submission:

• welcomes the President’s recognition of the importance of the right to a fair hearing and the role that the Tribunal plays in protecting the right;
• recommends that specific reference be made to the Charter of Human Rights and Responsibilities Act 2006 (Vic) and that the Practice Note should clarify the Charter’s application and operation;
• outlines the content of the right to a fair hearing;
• highlights the importance of particular aspects of the right, such as access legal advice and representation and rights of procedural fairness, for marginalised and disadvantaged individuals and groups; and
• encourages the inclusion of information that details the practical obligations encompassed by the right and how that relates to the effective and efficient operation of the Tribunal.

On 29 September 2010, VCAT published its Practice Note on the Fair Hearing Obligation, which incorporated important aspects of the joint HRLRC and PILCH submission, including:

• the general duty of the Tribunal to ensure a fair hearing pursuant to section 24 of the Victorian Charter; and
• the particular responsibility that Members have to self-represented litigants in order to ensure a fair hearing.

A copy of the VCAT Practice Note is available at http://www.vcat.vic.gov.au/CA256902000FE154/Lookup/VCAT_Practice_Notes/$file/practice_note_vcat%20_3.pdf.

A coalition of 68 NGOs - coordinated by the Human Rights Law Resource Centre, Kingsford Legal Centre and the National Association of Community Legal Centres - has submitted a 5 page Report to the UN Human Rights Council on Australia, setting out key human rights issues and concrete recommendations, including in relation to:

• the legal recognition and protection of human rights
• Australia’s cooperation with international human rights mechanisms
• equality and non-discrimination
• women’s rights
• children’s rights
• the rights of people with disability
• GLBTI rights
• Indigenous rights, including in respect of the Northern Territory Intervention, the criminal justice system, native title, the Stolen Generations, Stolen Wages, and access to adequate health care, housing and education
• the rights of migrants, refugees and asylum seekers
• prisoners’ rights and conditions of detention
• police use of force and oversight and complaint mechanisms
• the administration of justice
• homelessness
• mental health care
• human rights and counter-terrorism
• business and human rights
• international assistance and Australian foreign policy

The report was submitted to the UN Human Rights Council in Geneva on 12 July 2010.

Further information on Australia’s review under the UPR process is available at www.hrlrc.org.au/content/topics/international-human-rights-mechanisms/universal-periodic-review-of-australia-in-february-2011/.

The submisssion of the Australian Human Rights Commission for the UPR is at http://www.humanrights.gov.au/upr/index.html.

Amnesty International and the Aboriginal and Torres Strait Islander Legal Services of Australia have also made NGO submissions on Australia for the UPR.

The Australian Government report for the UPR is at www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_InternationalHumanRights_UniversalPeriodicReview. 

On 16 and 23 March, the Committee will be briefed by a coalition of leading Australian human rights organisations, including the Human Rights Law Resource Centre, the National Association of Community Legal Centres and Amnesty International.  On 23 and 24 March, the Committee will receive submissions from a high-level delegation from the Australian Government.  It will release its report on Australia on or around 3 April.

The Human Rights Law Resource Centre, together with the National Association of Community Legal Centres and Kingsford Legal Centre, has submitted the following materials to the Human Rights Committee regarding Australia:

• Freedom, Respect, Equality, Dignity: Action – NGO Submission to the Human Rights Committee (September 2008) [PDF] [Word].  This major report was compiled with the assistance of substantial contributions from over 50 NGOs across Australia.  It is endorsed, in whole or in part, by over 200 NGOs.  The Executive Summary of the report has also been translated into French and Spanish.
• Freedom, Respect, Equality, Dignity: Action – Addendum to NGO Submission to the Human Rights Committee (March 2009) [PDF] [Word].  This addendum updates the Committee on major human rights developments between September 2008 and March 2009.

In addition, the coalition has prepared Fact Sheets on Australia’s compliance with the International Covenant on Civil and Political Rights in the following areas:

• Legal Protection of Human Rights
• Counter-Terrorism Measures 
• People with Disability and Mental Illness 
• Homelessness 
• Immigration Law, Policy and Practice 
• Equality and Non-Discrimination 
• Policing Practices 
• Indigenous Australians 
• Women’s Rights 
• Treatment of Prisoners and Prison Conditions 
• Protection of Children 
• Access to Justice 
• Extra-territorial Application of the Covenant 
• Climate Change and the Environment

The reports and fact sheets provide a comprehensive overview of, and make targeted recommendations regarding, the realisation of civil and political human rights in Australia. 

The Centre, together with the Public Interest Law Clearing House, provided a Joint Submission to the Vexatious Litigants inquiry outlining that the current vexatious litigant laws under section 21 of the Supreme Court Act 1986 (Vic) strike the correct balance between the right to access the courts and the need to protect other parties and the justice system from vexatious litigation.

The submission also suggested that the underlying issue of the vexatious litigant debate stems from the increase of self-represented litigants due in part to restrictive legal aid guidelines based on insufficient funding in key areas of legal assistance.

PILCH and the HRLRC recommendations included the following:

• attempts to broaden these laws should be treated with caution and ensure that rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) are adequately protected, particularly the right to a fair hearing and equal access to the courts;
• the provision the of comprehensive and ongoing training to Judges and court staff in relation to dealing with self represented litigants, including those who have mental health issues, are difficult or vexatious; and
• an increase in government funding for legal aid assistance, particularly legal advice at the preliminary stage, as well as funding to increase legal resources made available to self-represented litigants at the various courts and tribunals.

General Comment No 32 will be an important source of guidance on the interpretation and application of s 24 of the Victorian Charter of Human Rights, which enshrines the right to a fair hearing, and s 25, which guarantees various rights in criminal proceedings.

The Centre is pleased and proud that the General Comment incorporates a number of recommendations made in the Centre’s submission on the draft General Comment in January 2007.

Specifically, consistently with the Centre’s recommendations, General Comment No 32 provides that:

• The right of access to courts and tribunals and equality before them is not limited to citizens of States parties, but must also be available to all individuals, regardless of nationality or statelessness, or whatever their status, whether asylum seekers, refugees, migrant workers, unaccompanied children or other persons, who may find themselves in the territory or subject to the jurisdiction of the State party. [GC para 9, HRLRC submission paras 11.1-11.4]
• The principle of equality between parties applies also to civil proceedings, and demands, inter alia, that each side be given the opportunity to contest all the arguments and evidence adduced by the other party. [GC para 13, HRLRC submission paras 5.1-5.2]
• In exceptional cases, equality between parties might require that the free assistance of an interpreter be provided where otherwise an indigent party could not participate in the proceedings on equal terms or witnesses produced by it be examined. [GC para 13, HRLRC submission paras 8.1-8.2]
• Where delays in legal proceedings are caused by a lack of resources and chronic under-funding, to the extent possible supplementary budgetary resources should be allocated for the administration of justice. [GC para 27, HRLRC submission para 6.3]