Chapter 2
Key provisions of the Bill
2.1
This Chapter sets out—in summary form—the key amendments sought to be
brought about by the Bill.
Schedule 1: Maritime powers
2.2
Schedule 1 would—if passed—amend the Maritime Powers Act to:
(a) broaden maritime enforcement powers; and (b) limit the review and
challenge of the exercise of such powers.
2.3
First, Schedule 1 would broaden the maritime powers used to
intercept and return vessels carrying asylum seekers by:
-
allowing authorities to take a detained vessel and the people on
it to any place in the world[1]
and to provide that:
-
the destination does not need to be another country;
-
the destination may be 'just outside a country' and may be a
vessel;
-
the destination can change repeatedly during the period of
detention;
-
it is irrelevant 'whether or not Australia has an agreement or
arrangement with any other country relating to the vessel or aircraft (or the
persons on it)'; and
-
'the international obligations or domestic law of any other
country' are also irrelevant;[2]
-
extending the period of time for which a vessel and the people on
it may be detained;[3]
-
extending the powers that authorities have to detain, restrain or
move people on detained vessels;[4]
-
allowing the Minister to expand the scope of the Maritime
Powers Act by extending the powers that may be exercised over
foreign vessels on the high seas by way of determination that is exempt from
publication and that is not reviewable under the Administrative Decisions
(Judicial Review) Act;[5]
-
allowing the Minister to give written directions relating to the
exercise of certain maritime powers, including directions that require powers
to be exercised in specified circumstances in a specified way. Such directions
would likewise be exempt from publication and not reviewable under the Administrative
Decisions (Judicial Review) Act;[6]
and
-
providing that certain other maritime laws, including those aimed
at promoting the safety of life at sea, do not apply to vessels detained under
the Maritime Powers Act or to specified vessels that are being used
under the Maritime Powers Act to detain people.[7]
2.4
Secondly, Schedule 1 would limit the extent to which actions under
the Maritime Powers Act could be reviewed and challenged, including by preventing
the use of maritime powers in certain circumstances from being invalidated on
the grounds that they violate international law, the domestic law of another
country or the rules of natural justice.[8]
2.5
Schedule 1 would also:
-
amend the Immigration (Guardianship of Children) Act to
provide that the Minister does not have guardianship obligations to children
when they are taken to a place outside Australia under the Maritime Powers
Act, and to provide that the Minister's obligations as the guardian of
certain non-citizen children do not limit the Minister's exercise of powers
under the Maritime Powers Act;[9]
-
amend the Migration Act to provide that persons on vessels
that are taken to another country under the Maritime Powers Act may not
make valid visa applications or institute legal proceedings against the
Commonwealth;[10]
and
-
amend the Migration Act to classify persons brought to
Australia as a result of the exercise of maritime powers as 'unauthorised
maritime arrivals', thereby rendering them subject to offshore processing and
preventing them from making a valid visa application in Australia or from
instituting legal proceedings against the Commonwealth.[11]
2.6
In his second reading speech, the Minister explained these changes as
follows:
The amendments to the Maritime Powers Act strengthen Australia's
maritime enforcement framework and the ongoing conduct of border security and
maritime enforcement operations. Enforced turn backs are a critical component
of the governments [sic] suite of border protection measures that have been so
successful to date in stopping the boats. These measures affirm and strengthen
the government's ability to continue the success of our maritime operations.
This will help ensure that the tap stays off, that it will never return and
that we will never go back to the cost, chaos and tragedy that was present
under the previous government and was created under the arrangements put in
place by that government.
The amendments in schedule 1 of this bill reinforce the
government's powers and support for our officers conducting maritime operations
to stop people-smuggling ventures at sea. They provide additional clarity and
consistency in the powers to detain and move vessels and persons. They further
clarify the relationship between the Maritime Powers Act and other laws and
clearly state that ministers can give directions in respect of the exercise of
maritime powers. Finally, as was parliament's original intent, the amendments
support our Navy and Customs personnel to continue to do their difficult jobs
efficiently, effectively and safely on the water.[12]
Schedules 2 & 3: Visas
2.7
Schedule 2 would—if passed—amend the Migration Act and the
Migration Regulations to make provision for the reintroduction of temporary
protection visas, including by:
-
providing for three classes of protection visa, namely permanent
protection visas, temporary protection visas and safe haven enterprise visas;[13]
-
amending the criteria for permanent protection visas so that they
will no longer be available to, inter alia, unauthorised maritime
arrivals, people who did not hold a visa on their last entry into Australia and
people who have ever held another specified humanitarian visa;[14]
-
establishing temporary protection visas, which will last for up
to three years[15]
and the criteria for which will include that:
-
temporary protection visas will only be available to people in
Australia who have previously held a temporary protection visa or who are
unable to apply for a permanent protection visa because they are an
unauthorised maritime arrival, did not hold a visa on their last entry into
Australia or have previously held another specified humanitarian visa;[16]
-
the holder of a temporary protection visa will not be entitled to
be granted any visa other than specified temporary visas;[17]
-
allowing for the establishment of safe haven enterprise visas
(but not actually establishing them or detailing their key features);[18]
and
-
establishing a mechanism whereby persons who have already validly
applied for a permanent protection visa will be deemed to have applied for a
temporary protection visa.[19]
2.8
Schedule 3 would—if passed—amend the Migration Act and the
Migration Regulations to provide that:
-
although the regulations may prescribe criteria for a specified
class of visa, there is no requirement for them to do so;[20]
and
-
if the regulations do not prescribe criteria for a specified
class of visa, a valid application for that class of visa cannot be made.[21]
2.9
Because the Bill does not specify criteria for the safe haven enterprise
visa, the effect of Schedule 3 is that no valid application for such a
visa would be able to be made until the criteria for this class of visa are
inserted into the Migration Regulations.
2.10
In his second reading speech, the Minister explained these changes as
follows:
It has been a clear policy of this government to ensure that
those who flagrantly disregard our laws and arrive illegally in Australia are
not rewarded with a permanent protection visa. The reintroduction of temporary
protection visas...in schedule 2 of this bill is fundamental to the government's key
objectives to process the current backlog of [illegal maritime arrival]
protection claims. The government is not resiling from providing protection
but, rather, is providing temporary protection to those [illegal maritime
arrivals] who are found to engage Australia's protection obligations.
[Temporary protection visas] will be granted for a maximum of three years and
will provide access to Medicare, social security benefits and work rights, as
occurred under the Howard government. [Temporary protection visas] will provide
refugees with stability and a chance to get on with their lives while at the
same time guaranteeing that people smugglers do not have a 'permanent
protection visa product' to sell to those who are thinking of travelling
illegally to Australia.[22]
Schedule 4: Fast track assessments
2.11
Schedule 4 would—if passed—amend the Migration Act to create
a new 'fast track review process' for reviewing refused applications for
protection visas. The proposed régime has the following key features:
- fast track applicants would be unauthorised maritime
arrivals who: (a) entered Australia on or after 13 August 2012;
(b) have been given written permission by the Minister to apply for a
protection visa; and (c) have made a valid application for a protection
visa. The Minister would be able to specify further classes of 'fast track
applicant' by non-disallowable legislative instrument;[23]
-
a fast track decision would be a decision to refuse an
application for a protection visa made by a fast track applicant except on security
and character grounds.[24]
Fast track decisions would not be reviewable by the Migration Review Tribunal
or the Refugee Review Tribunal;[25]
- excluded fast track review applicants would be fast track
applicants who, in the opinion of the Minister:
-
make 'a manifestly unfounded claim for protection';[26]
-
present a 'bogus document' in support of their application
without reasonable explanation;[27]
-
is considered to have effective protection in a country other
than Australia; and
-
fall into such classes of person as are specified by the Minister
by non-disallowable legislative instrument;[28]
-
if an excluded fast track review applicant was refused a
protection visa, they would not have access to any form of merits review;
-
the fast track review process would apply to fast track decisions
to refuse a protection visa to a fast track applicant (except for excluded fast
track review applicants).[29]
Such decisions would not be able to be reviewed by the Migration Review
Tribunal or the Refugee Review Tribunal. Furthermore, the Minister would be
empowered to issue a conclusive certificate—which would exclude all forms of
review—on the grounds that that it would be contrary to the national interest
for the decision to be changed, or for the decision to be reviewed;[30]
-
the fast track review process would be conducted by the
Immigration Assessment Authority, which would be established within the Refugee
Review Tribunal and which would be mandated 'to pursue the objective of
providing a mechanism of limited review that is efficient and quick';[31]
and
-
the fact track review process would have the following key
features:
-
aside from the matters specifically provided for in the
legislative scheme, the review would not be subject to the rules of natural
justice;[32]
-
reviews would be conducted 'on the papers' by the Authority
considering the material provided to it by the Secretary of the Department of
Immigration.[33]
Except in 'exceptional circumstances', the Authority would not be able to
accept or request further information, nor would it be able to interview the
applicant;[34]
-
the Authority would be able to affirm the decision to refuse the
application, or to remit it for reconsideration, but would not be able to vary
the decision or set it aside and substitute a new decision;[35]
and
-
decisions that have been or might be subject to fast track review
are excluded from the jurisdiction of the Federal Circuit Court.[36]
2.12
The Minister explained these amendments as follows in his second reading
speech:
The government is of the view that a 'one size fits all'
approach to responding to the spectrum of asylum claims made under Australia's
protection framework is inconsistent with a robust protection system that
promotes efficiency and integrity. It limits the government's capacity to
address and remove those found to have unmeritorious claims quickly while
diverting resources away from those individuals with more complex claims. The
government has no truck with people who want to game the system. A new approach
is warranted in the Australian context. The fast-track assessment process
introduced by schedule 4 of this bill will efficiently and effectively respond
to unmeritorious claims for asylum and will replace access to the Refugee
Review Tribunal with access to a new model of review, the Immigration
Assessment Authority...These measures are specifically aimed at addressing the
backlog of [illegal maritime arrivals]—some 30,000—and will ensure their cases
progress towards timely immigration outcomes, either positive or negative.
...
This new approach to review will discourage asylum seekers
who attempt to exploit the current review process by presenting manufactured
claims or evidence to bolster their original unsuccessful claims only after
they learn why they were found not to be refugees by the department. This
behaviour has on numerous occasions led to considerable delay while new claims
are explored.
These measures will support a robust and timely process, better
prioritise and assess claims and afford a differentiated approach depending on
the characteristics of the claims.
Effective tools must be available to ensure that those who do
not engage our protection obligations can be removed from Australia. Prompt
removal of failed asylum seekers from Australia supports the integrity of our
protection program and reduces the likelihood of applicants frustrating and
delaying removal plans.[37]
Schedule 5: Australia's obligations under international law
2.13
'Non-refoulement' is a principle of public international law that
prohibits States from returning people to territories where they would face
persecution, torture or other serious human rights violations. The obligation
is contained in numerous human rights treaties, including the Refugees
Convention, the International Covenant on Civil and Political Rights and the
Convention against Torture. It is also a principle of customary international
law.[38]
2.14
Schedule 5 would—if passed—make two key amendments to the Migration
Act. First, it would explicitly provide that Australia's non-refoulement
obligations are irrelevant to the removal of unlawful non-citizens under
section 198.[39]
As the Minister explained in his second reading speech:
This change is in response to a series of court decisions
which have found that the Migration Act as a whole is designed to address
Australia's non-refoulement obligations, which has had the effect of limiting
the availability of the removal powers. Asylum seekers will not be removed in
breach of any non-refoulement obligations identified in any earlier processes.
The government is not seeking to avoid these obligations and will not avoid
these obligations, rather it seeks to be able to effect removals in a timely
manner once the assessment of the applicant's protection claims has been
concluded.[40]
2.15
Secondly, Schedule 5 would remove references to the Convention
relating to the Status of Refugees and the Protocol relating to the
Status of Refugees from the Migration Act and replace them with
references to a new statutory definition of 'refugee'.[41]
2.16
In his second reading speech, the Minister explained these amendments as
follows:
The new statutory framework will enable parliament to legislate
its understanding of these obligations within certain sections of the Migration
Act without referring directly to the refugees convention and therefore not
being subject to the interpretations of foreign courts or judicial bodies which
seek to expand the scope of the refugees convention well beyond what was ever
intended by this country or this parliament. This parliament should decide what
our obligations are under these conventions—not those who seek to direct us
otherwise from places outside this country. The new framework clearly sets out
the criteria to be satisfied in order to meet the new statutory definition of a
'refugee' and the circumstances required for a person to be found to have a
'well-founded fear of persecution', including where they could take reasonable
steps to modify their behaviour to avoid the persecution.
Let me be clear, the government is not changing the risk threshold
required for assessing whether a person has a well-founded fear of persecution.
Under the new framework, refugee claims will continue to be assessed against
the 'real chance' test, which has been the test adopted by successive
governments, in line with the High Court's decision in Chan Yee Kin v Minister
for Immigration and Ethnic Affairs [1989] HCA 62.
The bill also clarifies the interpretation of various protection
related concepts such as:
-
the
standard of effective state and non-state protection;
-
the
test for assessing whether a person can relocate to another area of the
receiving country; and
-
the
definition of 'membership of a particular social group'.
The new framework will also clarify those grounds which exclude a
person from meeting the definition of a refugee or which, upon a person
satisfying the definition of a refugee, render them ineligible for the grant of
a protection visa.[42]
Schedule 6: Newborn babies
2.17
At present, a child born in Australia's migration zone who is not an
Australian citizen (or an excluded maritime arrival) and who does not have a
current visa is deemed to be an 'unauthorised maritime arrival', despite the
fact that he or she did not arrive in Australia by boat and regardless of
whether his or her parents arrived by boat.[43]
He or she is unable to apply for a visa and must be taken 'as soon as
reasonably practicable' to a regional processing country.
2.18
Schedule 6 would—if passed—amend the Migration Act to seek
to ensure that unlawful non-citizen children have the same status and are
subject to the same removal power as their parents. Non-citizen children of
'transitory persons' are to be transitory persons themselves; non-citizen
children of 'unauthorised maritime arrivals' are to be likewise classified.
2.19
These changes were explained as follows by the Minister in his second
reading speech:
The amendments contained in schedule 6 reinforce the
government's view that the children of [illegal maritime arrivals] who are born
in Australia are included within the existing definition of 'unauthorised
maritime arrival'...in the Migration Act. This will ensure that, consistent with
their parents, these children are subject to offshore processing and are unable
to apply for a visa while they remain in Australia, unless I have personally
intervened to allow a visa application.
The government will also extend the definition of a [unauthorised
maritime arrival] to the children of [illegal maritime arrivals] born in a
regional processing country. This amendment supports the government's intention
that [illegal maritime arrival] families in regional processing countries
should be treated consistently and that children born to an [illegal maritime
arrival] ought not be treated separately from their family in the protection
assessment process.
Amendments will also be made to the Migration Act to ensure
provisions relating to 'transitory persons' operate consistently.[44]
Schedule 7: Caseload management
2.20
Schedule 7 would—if passed—amend the Migration Act to:
-
remove the 90-day period within which decisions on protection
visa applications must be made by the Minister and the Refugee Review Tribunal;[45]
-
empower the Minister to impose suspensions and caps on visa
processing (including protection visa processing) by non-disallowable
legislative instrument;[46]
and
-
remove provisions that require the Minister to report specified
information about applications for protection visas and decisions made
concerning such applications to Parliament on a regular basis.[47]
2.21
The Minister explained in his second reading speech that:
From time to time, successive governments have found it
necessary to cap certain classes of either the migration or the humanitarian
visa programs in order to ensure that government annual targets are not
exceeded. This is a vital program management tool, particularly when exceeding
targets may resolve [sic] in budget overspends. As a result of a recent High
Court judgement regarding my use of the cap for the onshore component of the humanitarian
program, it has been necessary to make minor amendments to the Migration Act.
The amendments in schedule 7 of the bill will put it beyond doubt that I may
cap classes of the migration or humanitarian program when necessary.
Schedule 7 will also repeal the 90-day limit for deciding
protection visa applications at both the primary and review stages of
processing. The associated reporting requirements will also be repealed, as
they consume time and resources without adding value to the overall government
objectives.[48]
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