Item 5a: Prevention of Discrimination (Australia)
Palais des Nations
By Pax Christi International, Franciscans International and Caritas Internationalis, in conjunction with Dominicans for Justice and Peace
We, the above-mentioned NGOs, are concerned for people seeking asylum or refugee status in Australia. We believe that Australia’s policy of detaining most arrivals in the country who do not carry valid travel documents, violates provisions of the Convention relating to the Status of Refugees 1951, as well as the Universal Declaration of Human Rights. Australia is a party to both these International Instruments. Some asylum seekers have been intercepted before reaching Australia, and there are indications that this will increasingly be the practice with the aim of keeping them off Australia’s mainland.
We welcome the visit of the UN Working Group on Arbitrary Detention to Australia this year to study immigration legislation and visit Detention Centres in the country. We echo some of the concerns expressed by His Honour, Justice Louis Joinet, at a Press Conference during the visit of the Working Group.
We wish to draw attention to some of these and other issues that arise:
The Practice of holding all asylum seekers and refugees, and specifically children, babies, unaccompanied minors, including persons with disabilities, pregnant women, elderly people in Detention Centres, which are not open to public scrutiny is a violation of all Humanitarian Law and specifically the International Covenant of Civil and Political Rights and the Convention on the Rights of the Child. Detention Centres have failed to provide adequate health, mental health, education and recreation facilities leading to and compounding high levels of stress and mental and, most significantly depression sometimes leading to attempted suicide and other forms of self-harm, among detainees.
- Contrary to the intent of International Community in article 9 of the International Covenant on Civil and Political Rights and article 39 of the Convention on the Rights of the Child, Australia has banned asylum seekers from accessing its courts to challenge the legality of their detention. The constraints placed upon the judiciary at all stages of the refugee assessment process are of deep concern. Successive legislation has severely curtailed the Court’s power of review and executive decisions have limited individuals’ access to legal advice and representation. The situation is especially dramatic for detainees to whom refugee status is denied, who generally face deportation. When such detainees come from countries that have no diplomatic ties with Australia, they can remain in the limbo of detention for years without any recourse to proceedings to challenge their prolonged detention.
- The legal basis of the management of the detention centres by a commercial entity must also be questioned. A major problem in having private companies run the detention centres is the limiting of information on the grounds of commercial confidentiality. As a commercial entity financial gain is the ultimate objective and the welfare of the detainees is of very little consequence, as evidenced by considerable lack of basic facilities in detention centres and the existence of a contractual stipulation according to which the Company can be penalised for the escape of any refugee and be rewarded for re-capturing the person. Moreover, all detainees have been given financial accounts when they leave detention, which sometimes run into thousands of dollars. The government may choose not to enforce the accounts but they are never waived, and the maintenance of the debt operates as a bar to all subsequent applications
- The Introduction of the Temporary Protection Visa (TPV) in 1999 has removed the right of family reunion and reduced entitlement to community assistance and also puts undue restrictions on information sharing. This has resulted in the division of families. Cases have been reported of men living in Melbourne and Sydney on TPVs who have had their refugee status recognised, unaware that their wives and children who have travelled to Australia, often by boat and in perilous conditions  , are being held in remote detention centres. We point out that the introduction of TPVs and the attendant consequences of such procedure are clear violations of Article 23 of the International Covenant on Civil and Political Rights, Article 10 of the International Covenant on Economic, Social and Cultural Rights and Article 18 of the Convention on the Rights of the Child and Article 22 of the Convention on the Rights of the Child and the International Covenant relating to the Status of Refugees.
We call upon the Sub-Commission to consider adopting a resolution denouncing policies that promote violations of the rights of people seeking asylum and calling upon the Australian government to abolish mandatory detention and institute a system of community release for asylum seekers and refugees.
 We refer to the specific instance of the sinking of an overloaded Indonesian fishing vessel in October 2001. 350 of the 420 passengers on board drowned, mainly women and children.