CHAPTER 1

Introduction

Referral of the inquiry

1.1        On 17 August 2011, the Senate referred Australia's agreement with Malaysia in relation to asylum seekers (Malaysian Arrangement or arrangement) to the Legal and Constitutional Affairs References Committee (committee) for inquiry and report by 22 September 2011, with particular reference to:

(a)        the consistency of the agreement to transfer asylum seekers to Malaysia with Australia's international obligations;

(b)        the extent to which the above agreement complies with Australian human rights standards, as defined by law;

(c)         the practical implementation of the agreement, including:

(i)        oversight and monitoring,

(ii)       pre-transfer arrangements, in particular, processes for assessing the vulnerability of asylum seekers,

(iii)      mechanisms for appeal of removal decisions,

(iv)      access to independent legal advice and advocacy,

(v)       implications for unaccompanied minors, in particular, whether there are any guarantees with respect to their treatment, and

(vi)      the obligations of the Minister for Immigration and Citizenship (Mr Bowen) as the legal guardian of any unaccompanied minors arriving in Australia, and his duty of care to protect their best interests;

(d)        the costs associated with the agreement;

(e)         the potential liability of parties with respect to breaches of terms of the agreement or future litigation;

(f)         the adequacy of services and support provided to asylum seekers transferred to Malaysia, particularly with respect to access to health and education, industrial protections, accommodation and support for special needs and vulnerable groups;

(g)        mechanisms to enable the consideration of claims for protection from Malaysia and compliance of these mechanisms with non-refoulement principles;

(h)        a comparison of this agreement with other policy alternatives for processing irregular maritime arrivals; and

(i)         any other related matters.

1.2        On 23 August 2011, the Senate agreed to extend the reporting date of the inquiry until 11 October 2011.

Conduct of the inquiry

1.3         The committee advertised the inquiry in The Australian newspaper on 31 August 2011, and initially invited submissions by 2 September 2011. More than 200 organisations and individuals were invited to make submissions. Details of the inquiry and associated documents were placed on the committee's website.

1.4        Following the decision by the High Court of Australia on 31 August 2011 that the Malaysian Arrangement is effectively invalid,[1] the committee decided that there was merit from a public policy perspective in continuing the inquiry as originally referred. A revised submissions closing date of 14 September 2011 was set, although the committee continued to accept submissions well after that date. The inquiry was advertised again in The Australian on 14 September 2011.

1.5        The committee received 37 submissions from various organisations and individuals. All public submissions and responses to questions on notice were published on the committee's website, and are listed at Appendix 1.

1.6        The committee held a public hearing in Canberra on 23 September 2011. Witnesses who appeared at the hearing are listed at Appendix 2 and the Hansard transcript is available on the committee's website.

Structure of the report

1.7         Chapter 2 provides background information on the Malaysian Arrangement – including an overview of the main clauses of the arrangement and its operational guidelines – and briefly summarises the High Court's decision, as well as subsequent proposed legislative amendments.

1.8        Chapter 3 considers some of the key concerns raised in submissions and evidence; and Chapter 4 sets out the committee view and recommendations.

Acknowledgement

1.9        The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

Note on references

1.10      Submissions referenced in this report are to individual submissions as received by the committee, not to a bound volume. References to the committee Hansard are to the proof Hansard. Page numbers may vary between the proof and official Hansard transcript.

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