Chapter 1
Introduction
Referral of the inquiry
1.1
On 31 October 2012, the Migration Amendment (Unauthorised Maritime
Arrivals and Other Measures) Bill 2012 (Bill) was introduced into the House of
Representatives by the then Minister for Immigration and Citizenship (Minister),
the Hon Chris Bowen MP.[1]
On 1 November 2012, the Senate referred the provisions of the Bill to the
Senate Legal and Constitutional Affairs Legislation Committee (committee) for
inquiry and report by 5 February 2013.[2]
This date was subsequently extended to 25 February 2013.[3]
Purpose of the Bill
1.2
The Bill seeks primarily to amend the Migration Act 1958 (Cth)
(Migration Act), to implement Recommendation 14 of the Report of the
Expert Panel on Asylum Seekers (Expert Panel's Report):
The Panel recommends that the [Migration Act] be amended so that arrival anywhere on
Australia by irregular maritime means will not provide individuals with a
different lawful status than those who arrive in an excised offshore place.[4]
Background to the Bill
1.3
On 27 September 2001, section 198A was inserted into the Migration Act.[5]
This provision allowed for offshore entry persons to be removed from Australia
to a country in respect of which a declaration under subsection 198A(3)
was in force (the offshore processing regime).[6]
Judicial review of section 198A of the
Migration Act
1.4
In August 2011, the High Court of Australia (High Court) reviewed section 198A
of the Migration Act in the case of Plaintiff M70/2011 v Minister for
Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration
and Citizenship.[7]
1.5
The case related to two matters, known as M70/2011 and M106 of 2011,
involving a 24-year-old male citizen of Afghanistan (Plaintiff M70/2011) and a
16‑year-old unaccompanied male citizen of Afghanistan (Plaintiff M106 of
2011). Both plaintiffs arrived at Christmas Island (an excised offshore place) in
August 2011 as part of a larger group of asylum seekers, and were identified as
liable to transfer to Malaysia pursuant to a declaration made on 25 July 2011
under subsection 198A(3) of the Migration Act (Malaysia declaration).[8]
1.6
The plaintiffs commenced proceedings in the High Court seeking orders,
which included a declaration of invalidity in respect of the Malaysia
declaration, and an order in the nature of prohibition to restrain the Minister
and the Commonwealth from taking any steps to remove them from Australia.
1.7
The main issues considered by the High Court were whether the Malaysia
declaration had been validly made, and whether the Minister had satisfied the
requirements of the Immigration (Guardianship of Children) Act 1946 (Cth)
(Guardianship Act) in relation to Plaintiff M106 of 2011.
1.8
In holding for the plaintiffs, a majority of the court (French CJ,
Gummow, Hayne, Kiefel, Crennan and Bell JJ; Heydon J dissenting) found that the
Minister's declaration of Malaysia as a declared country under subsection
198(3) was beyond power and therefore invalid.[9]
1.9
The reason for the decision was articulated in the joint majority
judgement: the jurisdictional matters set out in paragraph 198A(3)(a) were not,
and could not be, established.[10]
These matters required a country the subject of a declaration to:
- provide asylum seekers with access to effective procedures for
assessing their need for protection;
- provide asylum seekers with protection, pending determination of
their refugee status;
- provide refugees with protection, pending voluntary repatriation
to their country of origin or resettlement in another country; and
- meet relevant human rights standards in providing that
protection.
Migration Legislation Amendment
(Offshore Processing and Other Measures) Bill 2011
1.10
The Prime Minister, the Hon Julia Gillard MP described the High Court's
decision as 'deeply disappointing'[11]
and, in response, the Migration Legislation Amendment (Offshore Processing and
Other Measures) Bill 2011 (Regional Processing Bill) was introduced into the
House of Representatives by the then Minister on 21 September 2011.[12]
1.11
The Regional Processing Bill sought to amend the Migration Act and the Guardianship
Act to:
- replace the existing offshore processing regime; and
- clarify that provisions of the Guardianship Act do not affect the
operation of the Migration Act, particularly in relation to the making and
implementation of any decision to remove, deport or take a non-citizen child
from Australia.[13]
1.12
The Minister stated:
The purpose of this bill is clear: to restore to the
executive the power to set Australia's border protection policies, specifically
the power to transfer asylum seekers arriving at excised offshore places to a
range of designated third countries within the region, while ensuring
protection from refoulement, for the processing of their claims.
This is a power that was thought to exist until 31 August
this year, when the majority of the High Court decided that transfers under
section 198A of the Migration Act could only take place to countries legally
bound to provide protections equivalent to those offered by Australia.
Subsequent legal advice has made it clear that the High
Court's decision has thrown into significant doubt the ability of
governments—present or future—to effect transfers to a range of countries in
our region who are prepared to offer protection from refoulement, and
will allow processing of refugee claims to be made, including Papua New Guinea
and Nauru.[14]
1.13
Debate on the Regional Processing Bill commenced in the House of
Representatives on 22 September 2011, at which time the Federal Opposition
indicated that it would not be supporting the bill unless it were amended to
require regional processing to take place in countries which are signatories to
the 1951 Convention Relating to the Status of Refugees,[15]
as amended by the 1967 Protocol Relating to the Status of Refugees[16]
(collectively, the Refugee Convention).[17]
1.14
The Australian Government did not seek to amend the Regional Processing
Bill and debate on the bill was adjourned until August 2012.
Migration Legislation Amendment
(The Bali Process) Bill 2012
1.15
Mr Robert Oakeshott MP sought to resolve the political deadlock with the
introduction in February 2012 of a private member's bill, the Migration
Legislation Amendment (The Bali Process) Bill 2012 (Bali Process Bill).[18]
1.16
The provisions of the Bali Process Bill were similar to those of the
Regional Processing Bill; however, there was a key difference in the proposed
provision concerning the designation of a country for regional processing
purposes (proposed subsection 198AB(2)). Whereas both bills provided for the
Minister to make such a designation in the national interest, the Bali Process
Bill added the further condition that the country concerned must be a party to
the 'Bali Process', a process established at the Regional Ministerial
Conference on People Smuggling, Trafficking in Persons and Related
Transnational Crime held in Bali in February 2002.[19]
1.17
On 31 May 2012, the second reading debate for the Bali Process Bill
began in the House of Representatives. During debate the Leader of the
Opposition, the Hon Tony Abbott MP reiterated the Federal
Opposition's objection to proposed legislation which 'strips' protections from
asylum seekers in regional processing countries.[20]
The Shadow Minister for Immigration and Citizenship,
Mr Scott Morrison MP explained further the reasons why the Bali Process Bill
did not address the concerns of the Federal Opposition:
The only objective, legally binding protection that can be
used as a litmus test for this parliament to give instructions to the executive
as to which countries and which places they could send people is whether a
country is a signatory to the [R]efugee [C]onvention. There are 148 countries
who have signed that convention. That includes the Philippines, that includes
Nauru, that includes Papua New Guinea, and that includes many other countries.
These protections are important. You have to ask yourself the
question: why is it necessary to abolish the protections that exist in the
Migration Act...The Bali process...is a worthy process and one we initiated in
government but it does not provide legally binding international obligations on
its participants.[21]
1.18
Mr Morrison moved amendments to require a country designated for regional
processing purposes to be a party to the Refugee Convention.[22]
The proposed amendments were negatived in the House of Representatives,[23]
and the Bali Process Bill was passed in that house on 27 June 2012.[24]
1.19
On 28 June 2012, the Bali Process Bill was introduced into the Senate,
where it was defeated.[25]
Subsequently, the Prime Minister and the then Minister held a joint press
conference, where it was announced that the Australian Government had invited
Air Chief Marshal Angus Houston AC AFC (Ret'd), the former chief of
Australia's defence force, to lead an expert panel to provide a report on the
best way forward in dealing with asylum seeker issues.[26]
Expert panel on asylum seekers
1.20
On 13 August 2012, following a six week inquiry, the expert panel
reported to the Prime Minister and the then Minister.[27]
The expert panel indicated that, in formulating a solution to the political
impasse, its focus had been to find practical ways to progress effective
regional cooperation on asylum seeker issues:
[T]he only viable way forward is one that shifts the balance
of risk and incentive in favour of regular migration pathways and established
international protections and against high-risk maritime migration.[28]
1.21
The expert panel made 22 recommendations proposing an integrated
regional approach to policy on asylum seeker and refugee issues, including that
'legislation to support the transfer of people to regional processing
arrangements be introduced into the Australian Parliament as a matter of
urgency'.[29]
1.22
On 14 August 2012, debate resumed on the Regional Processing Bill, with
the Minister foreshadowing government amendments, as agreed with the Federal
Opposition, to ensure that the parliament must approve the designation of each
regional processing country under section 198AB of the Migration Act.[30]
On 15 August 2012, the bill was passed in the House of
Representatives[31]
and in the Senate on 16 August 2012.[32]
The bill received Royal Assent on 17 August 2012 and commenced the
following day.
Loss of life at sea
1.23
In its report, the expert panel referred to the loss of life at sea by
asylum seekers and refugees undertaking irregular maritime journeys to
Australia:
The loss of life on dangerous maritime voyages in search of
Australia's protection has been increasing. The number of irregular maritime
arrivals ...who have arrived in Australia in the first seven months of 2012
(7,120) has exceeded the number who arrived in total in 2011 (4,733) and 2010
(6,850). The likelihood that more people will lose their lives is high and unacceptable.
These realities have changed the circumstances that Australia now faces. They
are why new, comprehensive and integrated strategies for responding are needed.
Those strategies need to shift the balance of Australian policies and regional
arrangements to give greater hope and confidence to asylum seekers that
regional arrangements will work more effectively, and to discourage more
actively the use of irregular maritime voyages.[33]
1.24
As stated by the then Minister in his second reading speech for the
current Bill:
[T]he recommendations in the report are an integrated set of
proposals. To be effective in discouraging asylum seekers from risking their lives,
the incentives and disincentives the panel recommended must be pursued in a
comprehensive manner. The legislative amendments proposed in the [B]ill are part
of this integrated approach.[34]
Key provisions of the Bill
1.25
The Migration Legislation Amendment (Regional Processing and Other
Measures) Act 2012 (Cth) repealed section 198A of the Migration Act, and
replaced that provision with Subdivision B of Division 8 of Part 2 of the Act
(the regional processing framework).[35]
1.26
The regional processing framework provides for offshore entry persons to
be taken to another country for assessment of their refugee status under the
Refugee Convention. The Bill proposes to amend several of these provisions:
the key amendments are contained in Part 1 of Schedule 1 of the Bill and are summarised
below.
Unauthorised maritime arrivals
1.27
The defined term 'offshore entry persons' will be repealed (item 3 of
Schedule 1), and will be replaced by the new term 'unauthorised maritime
arrival' in proposed new section 5AA of the Migration Act (item 8 of Schedule
1). A person will be an unauthorised maritime arrival if:
(a) the person entered Australia by sea:
(i) at an excised offshore place
at any time after the excision time for that place; or
(ii) at any other place at any
time on or after the commencement of this section; and
(b) the person became an unlawful non-citizen because of that
entry; and
(c) the person is not an excluded maritime arrival.[36]
Visa applications and unauthorised
maritime arrivals
1.28
Section 46A of the Migration Act sets out provisions regarding visa
applications by offshore entry persons. Items 10 to 14 of Schedule 1 will amend
that provision, to reflect the use of the new term 'unauthorised maritime
arrival'. The effect of this amendment will be that persons who are
unauthorised maritime arrivals will not be able to make a valid visa application,
if they are in Australia and they are unlawful non-citizens, unless the Minister
exercises a personal discretion under subsection 46A(2) of the Act.
Detention of unlawful non-citizens
1.29
Section 189 of the Migration Act provides for the detention of unlawful
non‑citizens. An unauthorised maritime arrival will become an unlawful non-citizen
if the person entered Australia by sea – as set out in proposed new paragraph
5AA(1)(a) – and is not an excluded maritime arrival. Item 15 of Schedule 1 will
amend subsection 189(2) to replace the words 'must detain' with the words 'may
detain'. The effect of this amendment will be that an officer will have
discretion whether to detain certain persons seeking to enter the migration
zone (other than an excised offshore place) if they would, in the migration
zone, be unlawful non-citizens.
Unauthorised maritime arrivals and
transfer to a regional processing country
1.30
Section 198AD of the Migration Act sets out provisions in relation to
taking offshore entry persons to a regional processing country. Items 19 to 30
of Schedule 1 amend this provision, to reflect the use of the new term
'unauthorised maritime arrival'. The effect of these amendments will be that
persons who are unauthorised maritime arrivals, and who are detained under
section 189, must be removed from Australia to a regional processing country as
soon as reasonably practicable.[37]
Bar on certain legal proceedings
1.31
Items 51 to 58 of Schedule 1 make a number of 'consequential' amendments
to section 494AA of the Migration Act, which provides for a bar on certain
legal proceedings relating to offshore entry persons. The effect of the
proposed amendments is to prevent the institution or continuation of certain
legal proceedings against the Commonwealth by unauthorised maritime arrivals.
For example, proceedings relating to an unauthorised entry (item 52 of Schedule
1).
Reporting obligations
1.32
Item 47A of Schedule 1 of the Bill inserts proposed new section 198AI
into the Migration Act, to require the Minister to report annually to each
House of Parliament in respect of certain matters – such as the activities
conducted under the Bali Process during the year ending on 30 June.
Transitory persons
1.33
The defined term 'transitory person' will be amended (items 4 to 6 of
Schedule 1), with the effect that a person will continue to be a
transitory person if they have been assessed as a 'refugee' under article 1A of
the Refugee Convention.
Transitory persons and transfer to
a regional processing country
1.34
Section 198AH of the Migration Act provides for the application of section 198AD
to certain transitory persons. Items 43 to 46 of Schedule 1 amend section
198AH, to allow transitory persons to be removed from Australia to a regional
processing country, as soon as practicable, if the person is an unauthorised maritime
arrival detained under section 189, who was brought to Australia from a
regional processing country for a temporary purpose, and who no longer needs to
be in Australia for that purpose.
1.35
The Minister explained:
This amendment will allow the government to bring people
assessed as refugees—but who have not yet met the 'no advantage' principle—back
to Australia for a temporary purpose such as medical treatment, and then return
them to a designated regional processing country pending provision of a durable
outcome.[38]
1.36
The 'no advantage' principle was articulated in Recommendation 1 of the
Expert Panel's Report as one of six principles which the expert panel
considered should shape Australian policy-making on asylum seeker issues:
The application of a 'no advantage' principle to ensure that
no benefit is gained through circumventing regular migration arrangements.[39]
Assessment of refugee status
1.37
Section 198C of the Migration Act sets out provisions regarding the
entitlement of certain transitory persons to an assessment of refugee status.
Item 48 of Schedule 1 repeals this provision, to remove the entitlement of a
transitory person brought to Australia under section 198B of the Act to request
an assessment of refugee status if the person remains in Australia for a
continuous period of six months. According to the Explanatory Memorandum to the
Bill, the proposed amendment is consistent with the 'no advantage' principle.[40]
Application and savings provisions
1.38
Part 2 of Schedule 1 of the Bill contains application and savings
provisions. For example, the regional processing provisions contained in Subdivision
B of Division 8 of Part 2 of the Migration Act, as amended by the Bill, will
apply to all persons who entered Australia by sea on or after 13 August
2012 (item 60 of Schedule 1).
Conduct of the inquiry
1.39
The committee advertised the inquiry in The Australian on 7
November 2012. Details of the inquiry, including links to the Bill and
associated documents, were placed on the committee's website at www.aph.gov.au/senate_legalcon.
The committee also wrote to 135 organisations and individuals, inviting
submissions by 17 December 2012. Submissions continued to be accepted
after that date.
1.40
The committee received 36 submissions, which are listed at Appendix 1.
All submissions were published on the committee's website.
1.41
The committee held a public hearing on 31 January 2013 at Parliament
House in Canberra. A list of witnesses who appeared at the hearing is at
Appendix 2, and the Hansard transcript is available through the
committee's website.
Acknowledgement
1.42
The committee thanks those organisations and individuals who made submissions
and gave evidence at the public hearing.
Note on references
1.43
References to the committee Hansard are to the proof Hansard.
Page numbers may vary between the proof and the official Hansard
transcript.
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