High Court gets another chance to have the final word on regional processing

Parliament house flag post
Australian flag

High Court gets another chance to have the final word on regional processing

Posted 18/06/2014 by karlsene

On 18 June 2014, the High Court unanimously ruled that the statutory scheme under which Papua New Guinea (PNG) was designated as a regional processing country is constitutionally valid. This FlagPost examines the events that led up to the Court’s decision.  

In May 2011, in the context of increasing numbers of unauthorised maritime arrivals (UMAs), former Prime Minister, Julia Gillard announced that Australia would enter into an agreement with Malaysia that would see 800 UMAs transferred to Malaysia for refugee status determination; while Australia would resettle 4000 recognised refugees already in Malaysia. The Government also abandoned its previous plan to build a regional processing centre in East Timor and announced that it was instead investigating alternative options, including PNG. Two months later, an Arrangement between the Governments of Australia and Malaysia was signed and by 19 August 2011, an MOU had been signed with the Government of PNG for the establishment of an assessment centre on Manus Island.

However, on 31 August 2011 the High Court declared the Minister’s Malaysia Declaration, made pursuant to section 198A of the Migration Act 1958, invalid. In brief, the Court found that under section 198A, the Minister could not validly declare a country (as a country to which asylum seekers could be taken for processing) unless that country satisfied three criteria. Namely, the country had to be legally bound by international law or its own domestic law to: provide access for asylum seekers to effective procedures for assessing their need for protection; provide protection for asylum seekers pending determination of their refugee status; and provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country. In addition to these criteria, the Migration Act required that the country meet certain human rights standards in providing that protection. The Court held that Malaysia was not legally bound to provide the access and protections the Migration Act required for a valid declaration and thus Australia was precluded from transferring UMAs there.

Less than a fortnight after the High Court delivered its ruling the Prime Minister announced that the Government would introduce legislation to enable the transfer of UMAs to third countries for the processing of their asylum claims. On 21 September 2011, the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 was introduced which made ‘national interest’ the only expressed pre-condition for the exercise of the Minister’s power to designate a regional processing country. A day later, then Opposition Leader, Tony Abbott confirmed that although the Opposition supported offshore processing, it would only support the Bill if the Government agreed to its proposed amendment requiring the offshore processing country to be a signatory to the 1951 Refugee Convention. This led to an impasse between the two major political parties because if the Government agreed to such an amendment it would not be able to proceed with its Malaysia Arrangement (as Malaysia was not a signatory to the Convention). The Bill did not proceed to the Senate.

On 13 February 2012, former Independent MP, Rob Oakeshott tried to resolve the impasse by introducing the Migration Legislation Amendment (The Bali Process) Bill 2012. Under this Bill the Government would only be able to designate countries that were party to the Bali Process. This would incorporate Malaysia, Nauru, and PNG. Though the Bill passed successfully through the House of Representatives it was subsequently voted down in the Senate. In an attempt to resolve the impasse, the Government then announced that it had invited the former chief of Australia’s Defence Force to lead an Expert Panel to advise on options to prevent asylum seekers risking their lives on dangerous boat journeys to Australia.

Six weeks later, on 13 August 2012, the Report of the Expert Panel was released, containing 22 recommendations, including the introduction of legislation to support the transfer of people to regional processing arrangements. It was the Panel’s view that the legislation should require that any future designation of a country as an appropriate place for processing be achieved through a legislative instrument that was open to disallowance by the Australian Parliament.

The very next day, debate resumed on the Government’s 2011 Bill—now known as the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012.  The Act as passed did not expressly require a designation country to be a signatory to the Refugee Convention. Arguably the most significant amendment to the Bill was the insertion of subsection 198AB(1B) which meant that each House of Parliament could veto any designation before it came into effect. The Bill secured passage in both houses of Parliament within three days after debate resumed.

Prime Minister Gillard subsequently announced that Australia and PNG had entered into a new MOU in relation to processing on Manus Island. When, on 9 October 2012 then Minister Bowen tabled for Parliament’s approval the instrument of designation of PNG as a regional processing country, only the Australian Greens and Independent MP, Andrew Wilkie opposed it. Both major political parties thus endorsed the designation of PNG as a regional processing country and by mid-November some asylum seekers began to be transferred from Christmas Island.

It was not until 19 July 2013, in the lead up to the last Federal election, that former Prime Minister, Kevin Rudd announced a Regional Resettlement Arrangement between Australia and PNG that would see all UMAs sent to PNG for refugee status determination and, if necessary, resettlement, thereby removing any prospect of them being settled in Australia.  Proceedings were again commenced in the High Court challenging the validity of the new statutory scheme. The Court ruled that the scheme is constitutionally valid (under the aliens power). It also decided that Minister Bowen’s designation of PNG as a regional processing country and his direction that people such as the plaintiff were to be removed there, were valid.  


Thank you for your comment. If it does not require moderation, it will appear shortly.

Add your comment

[Click to expand]




Facebook LinkedIn Twitter Add | Email Print

FlagPost

Flagpost is a blog on current issues of interest to members of the Australian Parliament


Parliamentary Library Logo showing Information Analysis & Advice

Archive

Syndication

Tagcloud

Refugees asylum immigration Australian foreign policy Parliament climate change elections women social security Australian Bureau of Statistics Employment indigenous Australians Sport illicit drugs gambling people trafficking taxation Medicare welfare reform Australian Defence Force higher education welfare policy United Nations health financing Asia Middle East criminal law disability Australian Sports Anti-Doping Agency World Anti-Doping Agency United States federal budget school education forced labour aid statistics Australian Electoral Commission WADA income management Industrial Relations emissions trading dental health Australia in the Asian Century steroids detention 43rd Parliament Private health insurance OECD ASADA labour force transport Law Enforcement Australian Federal Police people smuggling poker machines National Disability Insurance Scheme Australian Crime Commission slavery Papua New Guinea Australian Public Service constitution International Women's Day corruption Afghanistan Fair Work Act child protection Aviation debt federal election 2013 parliamentary procedure ALP New Zealand Newstart Parenting Payment Census politics High Court skilled migration election results voting mental health Federal Court terrorist groups Higher Education Loan Program HECS governance youth paid parental leave environment foreign debt gross debt net debt defence capability customs Senate doping health crime health risks multiculturalism aged care Gonski Review of Funding for Schooling sex slavery sea farers Special Rapporteur Electoral reform political parties banking firearms public policy Population violence against women domestic violence China ADRV terrorism science research and development social media pensions welfare ASIO intelligence community Australian Security Intelligence Organisation accountability public service reform Carbon Pricing Mechanism carbon tax mining military history employer employee fishing by-election European Union same sex relationships international relations coal seam gas family assistance planning Senators and Members United Nations Security Council Australian economy food vocational education and training Drugs health reform Indonesia children codes of conduct terrorist financing health system money laundering early childhood education Canada Financial sector UK Parliament national security fuel disability employment Tasmania integrity transparency Australian Secret Intelligence Service sexual abuse federal state relations World Trade Organization Australia housing affordability bulk billing water renewable energy children's health health policy Governor-General US economy export liquefied natural gas foreign bribery question time speaker superannuation expertise climate Intergovernmental Panel on Climate Change leadership Department of Agriculture Fisheries and Forestry food labelling Pacific Islands reserved seats new psychoactive substances synthetic drugs UNODC carbon markets Indigenous constitutional recognition of local government local government consumer laws PISA royal commission US politics language education baby bonus Leaders of the Opposition Parliamentary remuneration Australia Greens federal election 2010 servitude Trafficking Protocol energy forced marriage rural and regional Northern Territory Emergency Response ministries Hung Parliament social citizenship human rights emissions reduction fund; climate change child care funding refugees immigration asylum procurement Indigenous health e-voting internet voting nsw state elections 44th Parliament 2015 ABS Age Pension Death penalty capital punishment execution Bali nine Bali bombings Trade EU China soft power education Fiji India Disability Support Pension Antarctica Diplomacy by-elections state and territories workers Bills anti-corruption fraud bribery corporate ownership whistleblower G20 economic reform innovation standards NATO Members of Parliament Scottish referendum Middle East; national security; terrorism social services Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 online grooming sexual assault of minors ACT Assembly public health smoking plain packaging tobacco cigarettes Asia; Japan; international relations Work Health and Safety Migration; asylum seekers; regional processing China; United States; international relations fiscal policy Racial Discrimination Act; social policy; human rights; indigenous Australians Foreign policy Southeast Asia Israel Palestine regional unemployment asylum refugees immigration political finance donations foreign aid Economics efficiency productivity human rights; Racial Discrimination Act employment law bullying asylum seekers Animal law; food copyright Australian Law Reform Commission industry peace keeping contracts workplace policies trade unions same-sex marriage disorderly conduct retirement Parliament House standing orders public housing prime ministers election timetable sitting days First speech defence budget submarines Somalia United Kingdom GDP forestry world heritage political engagement leave loading Trade; tariffs; safeguards; Anti-dumping public interest disclosure whistleblowing Productivity Commission regulation limitation period universities Ireland cancer gene patents genetic testing suspension of standing and sessional orders animal health live exports welfare systems infant mortality middle class welfare honorary citizen railways disciplinary tribunals standard of proof World Health Organisation arts international students skilled graduate visas temporary employment visas apologies roads Italy national heritage NHMRC nutrition anti-dumping Constitutional reform referendum Rent Assistance competition policy pharmaceutical benefits scheme obesity evidence law sacrament of confession US presidential election international days DFAT UN General Assembly deregulation Regulation Impact Statements administrative law small business Breaker Morant homelessness regional engagement social determinants of health abortion Youth Allowance Members suspension citizen engagement policymaking workplace health and safety Trafficking in Persons Report marine reserves hearing TAFE Victoria astronomy resources sector YMCA youth parliament alcohol Korea rebate Australian Greens presidential nomination Racial Discrimination Act entitlements political parties preselection solar hot water Financial Action Taskforce Horn of Africa peacekeeping piracy Great Barrier Reef Stronger futures political financing political education social inclusion Social Inclusion Board maritime early childhood National Quality Framework for Early Childhood Education and Care Murray-Darling Basin Iran sanctions Norway hospitals republic President Barack Obama Presidential visits ANZUS qantas counselling

Show all
Show less
Back to top