Biometrics and Offshore Processing of Asylum Seekers

Biometrics and Offshore Processing of Asylum Seekers Department of Immigration and Citizenship 18 November 2010 GPO Box 1989, Canberra ACT 2601, DX 5719 Canberra 19 Torrens St Braddon ACT 2612 Telephone +61 2 6246 3788 Facsimile +61 2 6248 0639 Law Council of Australia Limited ABN 85 005 260 622 www.lawcouncil.asn.au

Table of Contents Introduction...3 Biometrics Rollout...3 Background...3 General Concerns with Use of Biometrics in Visa Applications...4 Feedback on Information Package...6 Regional Processing Centre for Asylum Seekers...8 Background...8 The Proposed Regional Protection Framework and Regional Processing Centre...9 Preliminary Views on Optimum Guidelines for Humanitarian and International Obligations...12 Attachment A: Profile of the Law Council of Australia...16 DIAC Response re Biometrics and Regional Processing 181110 Page 2

Introduction 1. The Law Council is grateful for the opportunity to provide the following feedback to the Department of Immigration and Citizenship ( DIAC ) relating to the use of biometric identification and the proposed regional processing centre for asylum seekers. 2. The Law Council values the positive working relationship that has developed between the Council and the Department, and in particular is grateful for the opportunity to meet with Departmental officers on a regular basis through the DIAC and Law Council /Immigration Lawyers Association of Australia (ILAA) liaison meetings ( the liaison meetings ). 3. The following feedback is provided in response to two Action Items arising from the last liaison meeting, held on 30 July 2010. 4. This feedback was prepared in consultation with the Law Institute of Victoria and the ILAA. 5. The Law Institute of Victoria (LIV) is a constituent body of the Law Council and has a particular interest in immigration law, including refugee law. The LIV has a number of committees comprising of experts in this area who regularly contribute to the LIV s advocacy in this area. The Law Council has been fortunate to draw upon this advocacy, including correspondence between the LIV and the Minister for Immigration and Citizenship, in the preparation of this feedback. Biometrics Rollout Action Item 4.2: LCA to provide feedback on the information package (including the Biometrics in offshore visa processing Fact Sheet, FAQs and exemption categories) to Ms Haughton Background Use of Biometrics for Onshore Protection Visa Applications 6. From December 2009, applicants applying for a protection (class XA) visa onshore became part of a biometrics pilot program and were asked to agree to an authorised departmental officer obtaining biometric material from them when making their application, namely by taking a digital photograph of the applicant s face, and scanning the applicant s fingerprints. 7. From 1 November 2010, all onshore Protection Visa applicants will be required to provide their biometrics when they lodge their application. Use of Biometrics for Offshore Visa Lodgements in Certain Countries 8. As of October 2010, biometrics will also be incorporated into the process of lodging offshore visa applications in certain countries. 9. In a media release dated 23 February 2010, as part of the Australian Government s release of the Counter Terrorism White Paper, the Minister for Immigration and Citizenship announced that the Commonwealth Government will invest $69 million DIAC Response re Biometrics and Regional Processing 181110 Page 3

over the next four years to facilitate the first stage of a comprehensive rollout of biometrics for visa applications being processed offshore in 10 countries. 10. Under the new system, all people applying for a visa to Australia in any of the designated countries will be required to lodge their visa application and submit fingerprints and facial images at a visa application centre. 11. The data will be recorded and cross-checked to information that can be used to confirm the identity of visa applicants. The Australian Government will be able to match the data to information about terrorists, criminals and other people of concern held in biometric databases by Australia and our international partners. 12. The program is being undertaken in collaboration with the UK Government, which has a similar scheme already in operation. 13. The 10 locations for the pilot scheme were selected on the basis of: national security and fraud risks locations where the Government can use British biometric collection centres, and broad geographic coverage of the scheme. 14. The rollout commenced in October 2010 and introduced new visa lodgement and biometric collection and checking processes for visa applications processed by ten Australian Missions in the selected countries. 15. To facilitate the rollout, DIAC worked in partnership with the UK Border Agency and utilised the agency s existing network of Visa Application Centres. 16. To support the rollout, the Migration Regulations 1994 were amended from 1 July 2010 1 to enable the biometric collection (fingerprints and a photograph) from offshore visa applicants by a service delivery partner on behalf of DIAC. General Concerns with Use of Biometrics in Visa Applications 17. One of the Law Council s constituent bodies, the Law Institute of Victoria (LIV), has expertise and interest in immigration law and in particular, the use of biometrics in visa applications. 18. The LIV has written to the Attorney General 2 and the Minister for Immigration and Citizenship 3 on a number of occasions seeking further information about the details of the onshore biometrics for Protection Visa applicants pilot and rollout and raising its concerns with the scheme. 19. While a number of these concerns relate specifically to draft Protection Visa fact 4 sheets previously prepared by DIAC and provided to the LIV for comment, a 1 See the Notice of Legislation Change for the Offshore Collection of Biometric Personal Identifiers http://www.immi.gov.au/legislation/amendments/ 2 Letter from LIV to Attorney General re Department of Immigration and Citizenship biometric acquisition pilot Protection visa applicants (27 January 2010) 3 L:etter from LIV to Minister for Immigration and Citizenship re Department of Immigration and Citizenship biometric acquisition pilot Protection visa applicants (27 January 2010) 4 On 27 January 2010 the LIV provided feedback on a draft Biometrics information for Protection visa applicants information sheet, released for comment on 5 December 2009. Some of the feedback provided by the LIV was subsequently included in the final Biometrics information for Protection visa applicants- General DIAC Response re Biometrics and Regional Processing 181110 Page 4

number of general concerns remain pertinent to the more general fact sheets referred to in Action Item 4.2. 20. These concerns, drawn from previous correspondence between the Minister and the LIV, relate primarily to the use of biometric Information for administrative purposes 21. The use of biometric information, such as fingerprints, has traditionally been used in the criminal jurisdiction. Although there are global trends towards the greater use of biometrics in administrative jurisdictions, including migration, the extension of the use of biometric information to these settings remains problematic for the following reasons: Administrative law does not provide the same safeguards to protect biometric information as the criminal law. For example, the collection and use of biometric information in the administrative context is not subject to regular judicial scrutiny, nor does its use come with the other safeguards associated with the criminal justice system, such as the need to demonstrate admissibility if the material is used in evidence against the person. There is also a risk that the number of administrators who may collect biometric information in an administrative context has the potential to considerably exceed the number of police officers who currently have access to such material in Australia. It appears from the information provided that only authorised officers can engage in the collection of biometric information from visa applicants. 5 While this has the potential to limit the number of people who may collect this information, it could also lead to a large number of administrators having access to such material, as the authorisation of such officers remains at the discretion of the Minister or the Secretary of DIAC. The relevance of biometric information to administrative decision-making is unclear. Biometric information for the purposes of identification works best where there are multiple sources of the information, such that the information collected from one individual may be matched to another source of the information, (for example, biometric passports). In the administrative context, the only way that biometric information can be matched to another sample of the information is if the information has previously been collected by an agency, whether from the individual, another agency or another government. This raises the prospect of databases of biometric information being created and shared between agencies and, potentially, governments. The privacy protections required for such databases are significant. In addition, it remains unclear whether biometric databases are required to identify individuals in an administrative context. Without evidence that current methods of identification are inadequate, it is arguable that the large scale collection and use of biometric information is disproportionate to the claimed need. 22. The Law Council notes that the LIV has previously submitted that, in order to address some of its pressing concerns with the biometric scheme, DIAC should Information sheet now available on the DIAC Website. However, a number of other particular concerns raised by the LIV relating to the use of biometrics for protection visa applicants remain outstanding, despite the finalised information sheet. 5 Authorised officer is defined in the Migration Act 1958 (Cth) s 5 as an officer authorised in writing by the Minister or the Secretary for the purposes of that provision. In the context of conducting identification checks, this definition is also affected by s5d, which provides that ( 1) The Minister or Secretary may, in an instrument authorising an officer as an authorised officer for the purposes of carrying out identification tests under this Act, specify the types of identification tests that the authorised officer may carry out. (2) Such an authorised officer is not an authorised officer in relation to carrying out an identification test that is not of a type so specified. DIAC Response re Biometrics and Regional Processing 181110 Page 5

conduct a Privacy Impact Assessment (PIA) of the pilot. It was submitted that a PIA would be able to identify the effect of the pilot on the privacy of Protection visa applicants, and to identify and recommend options for managing, minimising or eradicating impacts. Further, a PIA will assist in addressing not only the pilot s compliance with privacy legislation, but also broader community expectations about privacy. 23. The Law Council understands that a PIA on the pilot program has now been conducted, and that a PIA report has been drafted. 24. The Law Council Secretariat has been advised that DIAC is not in position to publish the PIA as it contains details relevant to DIAC s physical and information technology security procedures. 25. The Law Council was disappointed to learn that the PIA - which may highlight particular areas in need of further consideration or at risk of unduly infringing on privacy rights - will not be made public. 26. While the Council appreciates the need to protect the integrity of DIAC physical and information technology security procedures, it notes that other agencies with similarly pressing security concerns, such as the National E-Health Transition Authority, have been able to publish PIAs prepared on privacy sensitive initiatives such as the proposed National E-Health program. 6 The Law Council further notes that the publication of PIA s by Commonwealth Government departments has also been encouraged by the Australian Law Reform Commission (ALRC) following its review of privacy laws, and a similar sentiment is expressed in the updated PIA Guide on the Privacy Commissioner s website, which encourages publication of PIAs or communication with stakeholders. 7 27. If, following consideration of these matters, DIAC remains of the view that the full PIA cannot be published, the Law Council suggests that a summary of the key findings could be prepared that could be made publicly available without jeopardising DIAC s physical and IT security procedures. 28. At a minimum, the Law Council strongly supports the sharing of the complete PIA with the Officer of the Privacy Commissioner. Feedback on Information Package 29. In addition to the general concerns described above, the Law Council would like to offer the following feedback on the two fact sheets provided for comment. 30. The provision of information to external audiences, stakeholders and agents about the use of biometrics in offshore visa processing is supported. The practical focus of the Frequently Asked Questions is particularly welcome as it is likely to assist agents and clients to understand how the introduction of biometrics will change the practicalities of visa applications and processing. 31. However, the Law Council is concerned that neither fact sheet provides adequate or appropriately detailed information about: the reason for the collection of biometric data; who will have access to such data and for what purposes; and how this may impact on an individual s privacy rights. For example, the Fact sheet for external 6 The relevant PIAs are available at http://www.nehta.gov.au/connecting-australia/privacy/pias. 7 See http://www.privacy.gov.au/ DIAC Response re Biometrics and Regional Processing 181110 Page 6

audiences and stakeholders 8 contains no mention of the Privacy Impact Assessment, or of an applicant s privacy rights or how to complain if an applicant believes his or her privacy rights have been infringed. 32. Similarly, the Frequently Asked Questions for Agents Fact sheet contains very limited informational about an applicant s privacy rights, or when and how biometric information may be shared and used. Although the fact sheets include questions such as: What happens to a client s biometric data? and Who has access to biometric records?, the information provided in the answers is very broad and general in nature. It does not, for example, give examples or details of the particular domestic or international agencies that may have access to this data. Nor does it include information about the application of the Privacy Act, the role of the Commonwealth Privacy Commissioner, or how to make a complaint about misuse of information. 33. In addition to concerns about the lack of adequate information about an applicant s privacy rights, the Law Council is concerned that neither fact sheet fully addresses a range of general matters raised by the LIV in the context of the Protection Visas Fact Sheets which remain pertinent to the present two fact sheets. In particular, the Law Council is concerned that: It may be difficult for an applicant to obtain information about how information received from agencies in other countries will be used in the processing of their application, and about how to access information that might be held about them by participating countries. To this end the Law Council notes that DIAC is in the process of updating information on the Privacy Act in its form Your personal identifying information 1243i, and suggests that there should be cross reference to this form in the Fact Sheet and the FAQs document. ; There is a need for comprehensive information about which overseas databases are being accessed, the type of information DIAC is looking to discover once a match has been found, and how this will affect an application for a particular visa. The timing of the acquisition of biometrics, namely prior to the interview of a visa applicant, has the potential to be very confronting for applicants, particularly those seeking protection visas. The LIV has previously suggested that if biometrics acquisition is to continue, that it should be undertaken when the health examination is being carried out. The Law Council notes the advice recently received from DIAC that health examiners do not have authorisation to collect biometrics and that after consideration of the pilot DIAC has determined that the best time is on lodgement in person or a specified period after lodgement. The Law Council would be grateful for further information about what this specified period is and whether it would be possible for an authorised officer to collect the biometric material at the same time as the health examiner conducts the health exam. 9 8 Biometrics in offshore visa processing Fact sheet (external audiences and stakeholders) 9 Biometrics in Offshore Visa Processing Frequently Asked Questions for Agents DIAC Response re Biometrics and Regional Processing 181110 Page 7

Regional Processing Centre for Asylum Seekers Action Item 5.1: LCA to provide their optimum guidelines for humanitarian and international obligations viewpoints to the secretariat Background 34. The Law Council has a history of advocacy in relation to Australia s immigration detention policy and its compliance with international human rights standards. Often this advocacy has been enhanced by the assistance of the LIV. 35. The Law Council s primary concerns relate to the mandatory, automatic and indiscriminate nature of the detention of irregular arrivals authorised by the Migration Act, 10 This detention is affected by the operation of law and not by an order of a court or administrative authority. The decision to detain is mandatory prior to an assessment of the particular circumstances of each individual. The policy is based on the assumption that each unlawful non-citizen represents a danger to the community and must be detained. 36. These concerns are heightened in the context of offshore processing of asylum seekers, where persons detained have been excluded from accessing Australia Courts or tribunals. The recent decision in the High Court case of Plaintiff M61 v Commonwealth; Plaintiff M69 v Commonwealth may result in changes to this exclusion from tribunal and courts.. 37. These and other aspects of Australia s immigration detention policy have received wide-spread international and domestic criticism, including from the UN Human Rights Committee 11 and the UN Committee on the Rights of the Child. 12 38. In July 2008 the Rudd Government released its New Directions in Detention Policy. Among the seven key values included in this Policy are: children, and, where possible, their families, should not be detained in an immigration detention centre; detention should only to be used as a last resort and for the shortest practicable time; and conditions of detention will ensure the inherent dignity of the person. 13 10 The Migration Act 1958 (Cth) currently provides that all non-citizens who are unlawfully in Australia must be detained. Unless they are given permission to remain in Australia, unlawful non-citizens must be removed as soon as practicable. Currently, section 189(1) of the Migration Act requires a Department of Immigration officer or a police officer to detain any person they know or reasonably suspect to be an unlawful non citizen. Section 196(1) provides that an unlawful non citizen detained under section 189(1) must be kept in immigration detention until removed from Australia, deported or granted a visa. 11 UN Human Rights Committee, Concluding Observations of the Human Rights Committee: Australia (March 2009), UN Doc CCPR/C/AUS/CO/5. See also, Working Group on Arbitrary Detention, Report of the Working Group on Arbitrary Detention: Visit to Australia (24 October 2002) UN Doc. E/CN.4/2003/8/Add.2, [14]. For examples of Communications to this Committee see C v Australia (2002) UN Doc CCPR/C/76/D/900/1999; Madafferi v Australia (2004) UN Doc CCPR/C/81/D/1011/2001; Danyal Shafiq v Australia, CCPR/C/88/D/1324/2004 (13 November 2006). 12 UN Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child: Australia, UN Doc CRC/C/15/Add.79, 10 Oct 1997, para 20. 13 See New Directions in Detention Policy at http://www.chrisevans.alp.org.au/news/0708/immispeeches29-01.php?mode=text. DIAC Response re Biometrics and Regional Processing 181110 Page 8

39. In June 2009, the Government introduced the Migration Amendment (Immigration Detention Reform) Bill 2009 (the Bill), which seeks to give legislative effect to some of values in the New Directions Policy. The Law Council and the LIV generally supported the passage of this Bill, although made a number of recommendations for reform when it was considered by a Senate Inquiry. The Bill lapsed before passing through both Houses with the calling of the 2010 Federal Election. 40. In September 2009 the Migration Amendment (Complementary Protection) Bill 2009 was introduced and referred to the Senate Legal and Constitutional Affairs Committee for inquiry. The Law Council and the LIV made submissions, which welcomed the Bill as a positive step towards greater legislative implementation of Australia s international human rights obligations relating to non-refoulement (or non-return) of persons under a number of conventions such as the Convention Against Torture. On 19 October 2009, the Committee delivered its report, which recommended that the Bill be passed subject to a small number of amendments. However, this Bill also lapsed without being passed. It is understood that the Minister now intends to re-introduce this Bill. 41. On 9 April 2010 the Immigration Minister issued a media release announcing changes to Australia s immigration processing system. Effective immediately, the Australian Government introduced a suspension on the processing of new asylum applications from Sri Lankan and Afghan nationals ( the suspensions ). The suspensions were to continue for a period of three months for Sri Lankans and six months for Afghans. The Government said it was awaiting further information from the UN High Commission on Refugees (UNHCR) in relation to conditions in both countries. 42. The legality of the suspensions was questioned by a number of commentators and advocacy groups. 14 Of particular concern to the Law Council and the LIV was the confirmation of advice from DIAC that during the suspension Afghan applicants were being denied access to the Immigration Advice and Application Assistance Scheme. 43. On 6 July 2010 the suspension in relation to applicants from Sri Lanka was lifted. This was followed by the lifting of the suspension in relation to applicants from Afghanistan on 30 September 2010. The lifting of these suspensions was welcomed by the Law Council and LIV, however we continue to hold concerns as to the impact of the suspension on the length of time such applicants may spend in immigration detention and the conditions of that detention. The Proposed Regional Protection Framework and Regional Processing Centre 44. During the 2010 Federal Election campaign Prime Minister Julia Gillard announced that, if elected, her Government would implement: a regional approach to the processing of asylum seekers, with the involvement of the UNHCR, which effectively eliminates the on shore processing of unauthorised arrivals and ensures that anyone seeking asylum is subject to a consistent process of assessment in the same place. 15 14 A legal opinion on the legality of the suspension was sought from the Melbourne Bar by the Human Rights Law Resource Centre Ltd (HRLRC). Barristers, Debbie Mortimer SC, Chris Horan and Kathleen Foley, provided an opinion on 19 May 2010. The opinion became publicly available on the HRLRC websiteon 22 May 2010. 15 The Prime Minister of Australia, the Hon Julia Gillard MP, Address to the Lowy Institute Moving Australia Forward (6 July 2010) text available at http://www.lowyinstitute.org/publication.asp?pid=1328. ( Gillard Address to the Lowy Institute Moving Australia Forward (6 July 2010) ) DIAC Response re Biometrics and Regional Processing 181110 Page 9

45. This regional approach would be developed in cooperation with countries in the region, such as East Timor and New Zealand. 46. The Prime Minister explained that the key rationale for this approach is to remove the incentive once and for all for the people smugglers to send boats to Australia. 16 The Prime Minister also expressed the view that a sustainable regional protection framework is the most effective way to address irregular migration, including to Australia and is necessary to ensure that everyone is subject to consistent, fair, assessment processes. 17 Keen to distinguish this approach from that pursued by the Howard Government, the Prime Minister said that:... my Government is not interested in pursuing a new Pacific Solution instead Australia was committed to the development of a sustainable, effective regional 18 protection framework, in cooperation with the UNHCR. 47. This view was re-iterated at the DIAC liaison meeting, where DIAC officers referred to the Regional Protection Framework implementing the UN 10 point plan of action 19 and reflecting the regional interest in population stabilisation, limiting secondary movement and ensuring people having access to appropriate opportunities to have their asylum claims heard. 48. As an Action Item following the liaison meeting, the Law Council was invited to provide its views as to its Optimum Guidelines for Humanitarian and International Obligations in the context of the proposed Regional Protection Framework and processing centre. 49. The Law Council is grateful for the opportunity to provide its views on these proposals, but requires more detailed information about the proposed Regional Protection Framework and processing centre before it is able to provide considered comments as to the Optimum Guidelines for Humanitarian and International Obligations. 50. Both the operational details and the key policy rationale behind the proposals remain unclear and subject to speculation. For example, important details relating to the offshore processing centre remains unknown, giving rise to questions such as: what processing regime will apply; will decisions about refugee status be reviewable; will asylum seekers be held in detention; and will adequate resettlement options be available quickly? It also remains unclear as to how these new announcements will be reconciled with the New Directions in Immigration Policy released by Senator Evans in July 2008. 51. The following table, developed by the LIV, provides an example of the type of questions the Law Council considers should be addressed in order to fully understand and evaluate the key features of the proposed Regional Protection Framework. 16 Gillard Address to the Lowy Institute Moving Australia Forward (6 July 2010). 17 Gillard Address to the Lowy Institute Moving Australia Forward (6 July 2010).. 18 Gillard Address to the Lowy Institute Moving Australia Forward (6 July 2010).. 19 UN High Commissioner for Refugees, Refugee Protection and Mixed Migration: A 10 point plan of action (1 January 2007). DIAC Response re Biometrics and Regional Processing 181110 Page 10

Question 1. Who will process asylum seekers claims? Sub-Questions a) Will the UNHCR be involved? b) Will the Australian Department of Immigration and Citizenship (DIAC) be involved? c) Will the Immigration Departments (or equivalent) of countries participating in the regional program be involved? 2. What criteria will be used to process asylum seekers claims? a) What involvement or role will the UNHCR have in developing and applying these criteria? b) Will the criteria for a subclass 866 protection visa be used? c) Will the criteria for off-shore protection visas be used? d) Will the criteria of protection visas granted by other countries participating in the regional program be used? d) Will the same criteria apply to asylum seekers, irrespective of which partner country processes the claims and/or accepts the asylum seeker for settlement? e) Will health and medical criteria be applied? If so, what will those criteria be? f) Will decisions be subject to merits and judicial review? 3) Where will asylum seekers be processed and settled? a) Will asylum seekers be detained? Will there be a maximum period of detention? How will conditions of detention be monitored? Will they have adequate access to services, including mental health services and education for children b) Will asylum seekers have access to legal assistance to make their claims? DIAC Response re Biometrics and Regional Processing 181110 Page 11

Question Sub-Questions c) Where will asylum seekers be resettled? d) How will removal be managed and who will be responsible if an applicant is found not be a refugee? Preliminary Views on Optimum Guidelines for Humanitarian and International Obligations 52. As noted above, the Law Council requires further details about the proposed Regional Protection Framework and the regional processing centre before it can usefully assess its compliance with Australia s international law obligations or determine whether it addresses some of the key international and domestic criticisms of previous and existing policies. 53. However, in the absence of these details, the Law Council wishes to take the opportunity to outline some preliminary views as to the key features of a regional protection framework and a regional processing centre that it considers necessary to ensure compliance with humanitarian and international obligations. Regional Protection Framework 54. There appear to be two inter-connected components to the Gillard Government s proposal: the establishment of a regional protection framework, and the establishment of a regional processing centre for refugees. 55. Like many other non-government organisations, 20 the Law Council supports the adoption of a regional protection framework, provided it: is developed in cooperation with countries in the region and the UNHCR. This is likely to involve: - engagement with other governments for both design and implementation, with regard to these partner government s particular national interests and constraints. - consulting broadly with other relevant stakeholders such as countries within the region affected by significant flows of asylum seekers, current 20 See for example, the Joint Statement by Australian NGOs, 1 August 2010, available at http://www.refugeecouncil.org.au/docs/releases/2010/100801_regional_protection_framework.pdf Endorsed by: Act for Peace National Council of Churches in Australia; Amnesty International Australia; Asylum Seekers Centre of NSW; Asylum Seekers Resource Centre; Australian Council for International Development; Australian Council of Social Service (ACOSS); Balmain for Refugees [BFR]; Bridge for Asylum Seekers Foundation [BASF]; Brotherhood of St Laurence; Caritas Australia; Coalition for Asylum Seekers, Refugees and Detainees; Coalition for the Protection of Asylum Seekers [COPAS]; Edmund Rice Centre; Federation of Ethnic Community Councils of Australia; Foundation House The Victorian Foundation for Survivors of Torture; GetUp! Action for Australia; Hotham Mission Asylum Seeker Project International Detention Coalition; Jesuit Refugee Service Australia; Oxfam Australia; Refugee Council of Australia; Refugee and Immigration Legal Centre; Refugee and Immigration Legal Service; Settlement Council of Australia; Uniting Church in Australia; World Vision Australia DIAC Response re Biometrics and Regional Processing 181110 Page 12

and potential countries of resettlement, the UNHCR and civil society organisations. complies with all international human rights standards - these include obligations under the Refugees Convention, the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture and the Convention on the Rights of the Child. - the UNHCR should have a central operational or supervisory role in the development of the framework, its implementation and ongoing monitoring of its operation. promotes and protects the principle of equality - there must be no discrimination or difference in treatment based on the country of origin or manner of arrival; includes a range of approaches, flexible enough to respond to changing international conditions; includes a focus on and commitment to adequate accommodation and service provision for any persons detained under the framework, including the provision of free, timely legal advice; and includes strategies for timely resettlement programs. Regional Processing Centre 56. The Law Council, is however, more cautious in its support for a regional processing centre. This could, depending on its aims and features, implement and complement the aims and features of the regional protection framework - in which case, it would be welcomed as an important component of that framework. 57. If, however, its aims and features closely resemble that of previous attempts by the Australian Government to process asylum seekers off-shore, it is likely to attract the same criticisms described above and be in breach of Australia s humanitarian and international obligations. 58. The Law Council submits that the features of a regional processing centre that may avoid such criticisms and better comply with international human rights standards include: an application and processing approach that recognises the inherent dignity of the human person and acknowledges the particular rights and protections afforded to refugees and others seeking protection from human rights abuses; a commitment to detention as a measure of last resort and adherence to the following principles when authorising detention of asylum applicants: - no child should be detained in an immigration detention facility - any deprivation of liberty must be proportionate to the aims pursued. Immigration detention should only occur when necessary, only for a minimal period and only when it constitutes a reasonable and proportionate means of achieving at least one of the aims outlined in DIAC Response re Biometrics and Regional Processing 181110 Page 13

international law. In other words, detention should only be authorised if it can be demonstrated that other, less intrusive, measures could not have achieved the same end. 21 - the detention of any person should be subject to some form of judicial oversight. This is in line with Australia s obligations under article 9(4) of the ICCPR and the Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees. - detention should not be indefinite and must be subject to clear time frames and regular review, based on clear, objective criteria to determine the length of detention and time of release. For example, there should be an established time frame for conducting health checks (such as five days) and published criteria for what constitutes a public health risk. If no risk is identified, the person should be promptly released. a commitment to alternatives to detention, including reception centre style accommodation and community release; any detention facilities should be designed in consultation with UNHCR and in compliance with all international human rights standards, paying particular attention to the criticism and recommendations made in relation to existing detention facilities in Australia and Christmas Island, such as the relevant observations of the Australian Human Rights Commission 22 and the Joint Parliamentary Committee on Migration; 23 a commitment to transparency and visibility of immigration detention centres and processes by ensuring clear standards of treatment and operation are codified and enforced and allowing full access to UN agencies and Special Rappetuers as well as the NGO community; the provision of prompt, adequate legal and other services to all applicants, including health and educational services and translation and other support services; and be accompanied by appropriate resettlement programs and processes, as well as appropriate returns processes that include mechanisms to help ensure the safety of the person returned - this should include a commitment by Australia to continue to expand its resettlement intake. 21 D & E v Australia Communication No 1050/2002 (11 July 2006). 22 Australian Human Rights Commission, Immigration detention on Christmas Island 2010 available at http://www.hreoc.gov.au/human_rights/immigration/idc2010_christmas_island.html. See also report of December 2008 the Commission which contains a summary of observations by the Australian Human Rights Commissioner, Graeme Innes AM, and staff following visits to Australia s immigration detention facilities and to people in community detention, between June and September 2008. The report follows the Commission s 2006 and 2007 reports on annual inspection of mainland immigration facilities. These reports can be found at http://www.hreoc.gov.au/human_rights/immigration/index.html. 23 In December 2008 the Commission released a report containing a summary of observations by the Australian Human Rights Commissioner, Graeme Innes AM, and staff following visits to Australia s immigration detention facilities and to people in community detention, between June and September 2008. The report follows the Commission s 2006 and 2007 reports on annual inspection of mainland immigration facilities. DIAC Response re Biometrics and Regional Processing 181110 Page 14

59. Further, in order to ensure compliance with its humanitarian and international law obligations, both the proposed Regional Protection Framework and processing centre should be accompanied by the adoption and implementation of the following policies in Australia: a commitment to ending the policy of excision and closing the detention facilities on Christmas Island. 24 This should extend to a commitment to ensuring that protection visa applicants who arrive in Australia are processed in Australia and are not repatriated to a regional processing centre; the re-introduction and enactment of the Migration Amendment (Complementary Protection) Bill 2009 to provide complementary protection to asylum seekers in accordance with Australia s refugee and human rights law obligations; the re-introduction and enactment the Migration Amendment (Immigration Detention Reform) Bill 2009, which would give legislative effect to some of the key values in the 2008 New Directions in Detention Policy; the full implementation of 2008 New Directions in Detention Policy and the extension of the values contained therein to the proposed regional processing centre; and immediate ratification and implementation of the Optional Protocol to the Convention Against Torture and expediting the establishment of mechanisms to ensure independent monitoring of all places of detention, including immigration detention centres. 24 The Law Council notes the views of organisations such as the Immigration Advice and Rights Centre and the Refugee Advice and Casework Service that the remote location, limited access, restricted facilities and lack of resources on Christmas Island mean that it is very difficult for asylum seekers, advocates and the Immigration Department to deal with asylum seekers immigration matters in a manner which makes principles such as detention as a last resort and for the shortest practicable time meaningful. See the submission of the Immigration Advice and Rights Centre and the Refugee Advice and Casework Service to the Senate Legal and Constitutional Affairs Committee on the Migration Amendment (Immigration Detention) Reform Bill 2009 at http://www.aph.gov.au/senate/committee/legcon_ctte/migration_2009/submissions.htm. DIAC Response re Biometrics and Regional Processing 181110 Page 15

Attachment A: Profile of the Law Council of Australia The Law Council of Australia is the peak national representative body of the Australian legal profession. The Law Council was established in 1933. It is the federal organisation representing approximately 50,000 Australian lawyers, through their representative bar associations and law societies (the constituent bodies of the Law Council). The constituent bodies of the Law Council are, in alphabetical order: Australian Capital Territory Bar Association Bar Association of Queensland Inc Law Institute of Victoria Law Society of New South Wales Law Society of South Australia Law Society of Tasmania Law Society of the Australian Capital Territory Law Society of the Northern Territory Law Society of Western Australia New South Wales Bar Association Northern Territory Bar Association Queensland Law Society South Australian Bar Association Tasmanian Bar Association The Victorian Bar Inc Western Australian Bar Association LLFG Limited (a corporation with large law firm members) The Law Council speaks for the Australian legal profession on the legal aspects of national and international issues, on federal law and on the operation of federal courts and tribunals. It works for the improvement of the law and of the administration of justice. The Law Council is the most inclusive, on both geographical and professional bases, of all Australian legal professional organisations. DIAC Response re Biometrics and Regional Processing 181110 Page 16