1.1
On 4 July 2019, the Senate referred the provisions of the Migration Legislation Amendment (Regional Processing Cohort) Bill 2019 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 13 September 2019.
1.2
This followed a recommendation of the Selection of Bills Committee which noted that the bill should be referred so the committee could consider the concerns of stakeholders as well as human rights law and obligations.
Conduct of the inquiry
1.3
In accordance with usual practice, the committee advertised the inquiry on its website and wrote to organisations inviting submissions by 7 August 2019. The committee received 30 submissions, listed at Appendix 1.
1.4
The committee held one public hearing on 22 August 2019 in Canberra. Details of the public hearing are provided at Appendix 2.
Acknowledgements
1.5
The committee thanks the organisations and individuals who participated in the public hearing as well as those who made written submissions.
Note on references
1.6
In this report, references to Committee Hansard are to proof transcripts. Page numbers may vary between proof and official transcripts.
Previous version of the bill and past committee inquiry
1.7
Another bill, called the Migration Legislation Amendment (Regional Processing Cohort) Bill 2016, was introduced in the House of Representatives on 10 November 2016. The Senate referred that bill to this committee for inquiry and report by 22 November 2016. The committee received 84 submissions to that inquiry, held one public hearing and tabled its report on 22 November 2016. The previous bill lapsed at prorogation of the 45th Parliament on 11 April 2019.
1.8
The bill currently before the committee is substantially the same, with only minor amendments.
Purpose of the bill
1.9
In his second reading speech, the Hon Peter Dutton MP, Minister for Home Affairs, explained the purpose of the bill:
The purpose of the Migration Legislation Amendment (Regional Processing Cohort) Bill 2019 is to reinforce the coalition's longstanding policy that people who travel here illegally by boat will never be settled in Australia.
The legislation will apply to people transferred to a regional processing country on or after 19 July 2013, including people who are currently in a regional processing country, have left a regional processing country and are in another country, are in Australia for a temporary purpose awaiting return to a regional processing country and who are taken to a regional processing country in the future.
1.10
In his speech, the minister emphasised that the bill is consistent with the announcement made on 19 July 2013 by the then Prime Minister, the Hon Kevin Rudd MP, when announcing the signing of the resettlement arrangement with Papua New Guinea. Mr Rudd stated that from 19 July 2013 'any asylum seeker who arrives in Australia by boat will have no chance of being settled in Australia as refugees'.
1.11
The Department of Home Affairs (the department) provided additional background to the bill:
Without this Bill, a person who is settled from Papua New Guinea or Nauru to a third country could apply for and be granted a visa which would allow them to settle in Australia. The Bill was developed in response to concerns that this 'back-door' to Australia could be marketed by people smugglers to encourage people to get on boats to Australia.
1.12
The department also advised that the bill forms part of the multilayered approach utilised by Operation Sovereign Borders which includes deterrence, disruption, detection, interception, return, regional processing and denial of a settlement pathway in Australia to successfully stem the flow of illegal maritime arrivals.
Key provisions of the bill
1.13
This section outlines the key provisions of the bill in general terms.
1.14
The bill would amend the Migration Act 1958 (the Migration Act) and the Migration Regulations 1994 to indefinitely preclude unauthorised maritime arrivals (UMAs) and transitory persons from making a valid application for any Australian visa. Item 1 of the bill inserts a new definition in subsection 5(1) of the Migration Act of a member of the designated regional processing cohort. This cohort includes two categories:
a person who is an unauthorised maritime arrival, was taken to a regional processing country after 19 July 2013 and was at least 18 years old when taken to a regional processing country; and
a transitory person who was taken to a regional processing country in accordance with relevant sections of the Maritime Powers Act 2013 after 19 July 2013 and was at least 18 years old when taken to a regional processing country.
1.15
The bill also includes measures which would prevent a member of the designated regional processing cohort from being deemed to have been granted a special purpose visa under section 33 of the Migration Act, or being deemed to have applied for particular visas under the Migration Regulations. This includes visas in the following categories: Subclass 600 (Visitor), Electronic Travel Authority, temporary protection, safe haven enterprise and Refugee and Humanitarian (Class XB).
Ministerial power
1.16
The bill confers a power on the minister to permit a member of the designated regional processing cohort, or a class of persons within the designated regional processing cohort, to make a valid application for a visa if the minister thinks it is in the public interest to do so.
Application provisions
1.17
The bill provides different commencement dates for the bar on visa applications depending on whether the visa applicant is outside or inside Australia. If the visa applicant is outside Australia, the bar would apply if the visa application is made (a) after commencement of the Act or (b) before commencement but after the bill was introduced in the House of Representatives (4 July 2019) and was not finally determined before commencement of the Act.
1.18
For individuals inside Australia, the statutory bar would apply where an application is made after commencement and no determination has been made by the minister to lift the bar.
Consideration by other parliamentary committees
1.19
The Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 was considered by both the Senate Standing Committee for the Scrutiny of Bills (the scrutiny committee) and the Parliamentary Joint Committee on Human Rights (PJCHR).
1.20
On 23 July 2019, the scrutiny committee reiterated the comments it had previously made on the 2016 bill. On 30 July 2019, the PJCHR also reiterated its views set out in its previous report. The following section summarises the comments made by the scrutiny committee and the PJCHR.
Senate Standing Committee for the Scrutiny of Bills
1.21
The scrutiny committee raised scrutiny concerns in relation to the 2016 bill. The scrutiny committee considered that the bill, in imposing a lifetime visa ban on adults who were transferred to a regional processing country after 19 July 2013, has a retrospective application. It also expressed concern that the bill, in applying to anyone aged 18 at the time of transfer to a regional processing country, may have particularly adverse consequences for those who were children at the time the decision was made to seek to travel to Australia but who turned 18 by the time of their transfer to a regional processing centre (and would therefore be captured within the definition of regional processing cohort). The scrutiny committee also highlighted the application provisions with particular reference to applicants outside Australia.
1.22
After considering the response from the minister, the committee drew its scrutiny concerns to the attention of senators.
Parliamentary Joint Committee on Human Rights
1.23
The PJCHR expressed concern about the permanent lifetime visa ban that would apply to the regional processing cohort. The committee noted that the imposition of a lifetime visa ban for asylum seekers in specified circumstances 'engages a number of human rights including the right to equality and
non–discrimination, the right to the protection of the family and the rights of the child'. It was reported that although the proposed lifetime visa ban does not apply to children under 18 years old at the time they were taken to a regional processing centre, the ban may still impact upon children by separating children (who are not subject to the visa ban) from parents (who are subject to the visa ban).
1.24
The committee also observed that the minister's discretionary power to intervene in cases where the minister deems it is in the public interest 'could potentially relieve some of the harshness of the visa ban in individual cases'. However:
…on its own, this discretionary safeguard is unlikely to be sufficient to ensure that the measure is a proportionate limit on the right to protection of the family in the context of a blanket visa ban.
1.25
Following a response from the minister in January 2017, the committee concluded its examination of the issues, noting that in light of its human rights concerns:
[T]he committee is unable to conclude that the measure is compatible with the right to equality and non-discrimination, the right to protection of the family and rights of the child. The objective identified in the minister's response, that is, seeking to impose a penalty on those who seek to enter Australia for the purpose of claiming asylum, cannot be a legitimate objective for the purpose of limiting human rights under international law.
1.26
The PJCHR drew these issues to the attention of the Parliament.
Focus of this report
1.27
Much of the evidence received for the current inquiry highlighted similar issues to those raised in the previous inquiry during 2016. While the focus of this report is on the issues raised in the current inquiry, the committee was also able to consider evidence given to its previous inquiry. Key issues raised in evidence are discussed in the next chapter.