Open letter from members of the legal profession on offshore detention

February 25, 2016
Daniel Webb, a Director of Legal Advocacy at the Human Rights Law Centre launched the letter.

Dear Prime Minister,

Following the High Court's recent decision in Plaintiff M68/2015 v Minister for Immigration and Border Protection, we, the undersigned law firms, community legal organisations, legal bodies and legal associations, jointly urge you to let the 267 individuals at risk of removal to offshore processing centres stay in Australia. We strongly advocate for the end of offshore detention and request you bring all asylum seekers and refugees in regional processing facilities back to mainland Australia.

In response to the High Court decision, the United Nations' Office of the High Commissioner for Human Rights has expressed concerns that “transferring these 267 individuals to Nauru ... would put Australia at risk of breaching its obligation not to return any person to cruel, inhuman or degrading treatment under the Convention against Torture.”

As a legal community, we have serious concerns about sending people to offshore processing centres. We are concerned that the current offshore detention regime undermines a core principle of the rule of law, that of access to justice. We remain concerned that those in offshore processing centres are being denied this fundamental right.

Community legal organisations, legal bodies and associations, including the under-signed, have raised concerns about these issues with the government over many years. For example, in 2013, the Law Council of Australia, in reference to the plight of asylum seekers held on Nauru, noted that the Australian government must “honour its international commitments to ensure access to justice and the right to a fair trial". Last year the Refugee Council of Australia led over 100 organisations (including many legal organisations) in calling for an immediate moratorium on offshore transfers, in part because of concerns of a lack of procedural fairness involved in the transfer process.

Despite our combined advocacy, it remains difficult for Australian lawyers to visit asylum seekers and refugees on Nauru or Manus Island to provide advice and representation as required. There continues to be a lack of local lawyers able to assist asylum seekers in legal matters. As a result, the Australian Government is deliberately transferring these vulnerable individuals to a place where it is difficult to obtain adequate legal advice.

We are particularly concerned at reports that many allegations of sexual assault made by asylum seekers and refugees on Nauru have not been properly investigated by the Nauruan authorities. We are gravely concerned about sending women and children to places where the Australian government cannot guarantee their protection under the law from physical violence.

This lack of access to justice for individuals sent to offshore processing centres is contrary to our international law obligations. Access to adequate legal advice is a fundamental pillar of the rule of law. International standards require that asylum seekers be provided adequate legal assistance to make their claims.

The United Nations also expressed concerns regarding the retrospective amendment to the Migration Act, passed by the Australian Parliament following the commencement of the M/68 case. The UN noted that this amendment, “significantly contravenes the letter and spirit of international human rights law”. We share the UN's concern regarding the retrospective insertion of section 198AHA of the Migration Act prior to the hearing.

The rule of law requires not only access to legal advice, but also that the law be readily known and available, certain and clear. Retrospective legislation by its nature offends these principles.

24 February 2016

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