Temporary Protection by hook or by crook

Parliament house flag post

Temporary Protection by hook or by crook

Posted 5/03/2014 by Elibritt Karlsen


The Coalition has consistently argued for the reintroduction of Temporary Protection Visas (or TPVs as they are more commonly known) because it considers them to be an essential component of its border protection arsenal to deter asylum seekers from trying to enter Australia by boat. When in Opposition in early 2013, the Coalition unsuccessfully introduced legislation to try to reintroduce TPVs. When they formed Government six months later, the domestic landscape had changed significantly. Some 33,000 boat arrivals were already living in the community on Bridging Visas and following former Prime Minister Rudd’s announcement in July 2013, all future asylum seekers arriving in Australia by boat would be transferred to a third country for processing with no prospect of resettlement to Australia. Arguably, this abrupt policy shift made the basis for the Coalition’s TPV policy redundant. Nonetheless, the Coalition has remained committed to the policy.

Only a month after forming Government, the Coalition registered the Migration Amendment (Temporary Protection Visas) Regulation 2013. The primary purpose of this instrument was to reintroduce TPVs for asylum seekers who have travelled to Australia by boat or those who have otherwise arrived in Australia without a valid visa.  However, on 2 December 2013, Labor and the Australian Greens united to pass a resolution in the Senate disallowing the regulation. In direct response, and on the same day as the disallowance, Minister Morrison, acting under section 85 of the Migration Act 1958, determined that the maximum number of permanent protection visas that could be granted in the financial year 2013—2014 was to be 1,650. This was the number already issued prior to the swearing in of the Abbott Government. Thus effectively, the Minister was declaring that no more permanent protection visas would be granted until the next financial year.

At the same time, Minister Morrison announced that he would also be exercising his powers under section 46A of the Migration Act to prevent people who had arrived by boat making applications for permanent protection visas. This bar would remain in effect until TPVs were reinstated. Section 46A of the Migration Act prohibits asylum seekers who have arrived by boat from applying for a visa unless the Minister thinks that it is in the public interest to permit them to do so.

On 9 December 2013, Senator Hanson-Young of the Australian Greens introduced the Migration Amendment (Visa Maximum Numbers Determinations) Bill 2013. The primary purpose of this Bill was to make instruments made under section 85 of the Migration Act subject to disallowance by Parliament. However, Labor did not support this Bill in the Senate when it came up for debate at the end of last year on the basis that all instruments made under section 85, including those that enabled the Government to manage the migration intake under the family and skill streams, would also become subject to disallowance.

On 14 December 2013, the Government’s Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 came into effect. The primary purpose of this instrument was to introduce a new visa criterion so that asylum seekers who have arrived in Australia by boat would effectively not be eligible for grant of a permanent protection visa. Two days after the Regulation came into effect, legal action was commenced in the High Court to challenge its validity on the basis that it was the same in substance to the previously disallowed TPV regulation. Section 48 of the Legislative Instruments Act 2003 prohibits the making of a legislative instrument that is the ‘same in substance’ as a previously disallowed instrument within six months of the disallowance. The plaintiffs argue that both instruments are the ‘same in substance’ because both deny permanent protection to boat arrivals. The plaintiffs are also questioning the Regulation’s compatibility with other sections of the Migration Act.

Only a few weeks after it imposed the cap on the number of protection visas that could be granted, the Government revoked the cap, arguing that it was no longer necessary because the Unauthorised Maritime Arrival Regulation had come into effect. However, commentators have linked the revocation to High Court challenges. In January 2014, the Immigration Department reportedly began advising agencies that it would be inviting applications for Temporary (Humanitarian Concern) Visas from asylum seekers who had arrived by boat. Commentators have likened this visa to the TPV as both achieve the same end—denial of permanent residency and the imposition of restrictions, such as family reunification.

On 5 March 2014, Senator Hanson-Young will move a motion that the Unauthorised Maritime Arrival Regulation be disallowed. It is not known whether Labor will again support the Greens but irrespective of parliamentary proceedings, at the end of this week the full bench of the High Court will begin considering the validity of the Unauthorised Maritime Arrival Regulation.

 

 


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

Add your comment

[Click to expand]

We welcome your comments, or additional information which is relevant to a post. These can be added by clicking on the ‘Add your comment’ option above. Please note that the Parliamentary Library will moderate comments, and reserves the right not to publish comments that are inconsistent with the objectives of FlagPost. This includes spam, profanity and personal abuse, as well as comments that are factually incorrect or politically partisan. We will close comments after three months.




Captcha
Generate a new image
Type characters from the image:

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 climate change immigration Australian foreign policy parliament social security welfare policy elections welfare reform school education health financing higher education Australian Defence Force emissions trading indigenous Australians women private health insurance people trafficking illicit drugs gambling health reform federal election 2010 United Nations Employment Asia disability income management Middle East Medicare Australian Bureau of Statistics statistics sport health forced labour federal budget Afghanistan Industrial Relations Carbon Pricing Mechanism politics dental health United States aid child protection environment poker machines Australia in the Asian Century Australian Sports Anti-Doping Agency steroids World Anti-Doping Agency National Disability Insurance Scheme detention aged care 43rd Parliament slavery health system Law Enforcement Australian Federal Police Criminal Law Fair Work Act Australian Public Service governance labour force people smuggling transport debt taxation international relations constitution New Zealand food WADA Australian Crime Commission pharmaceutical benefits scheme pensions public service reform children's health Aviation foreign debt gross debt net debt defence capability parliamentary procedure Senate Senators and Members ALP ASADA Newstart Parenting Payment multiculturalism Youth Allowance sea farers Higher Education Loan Program HECS federal state relations accountability Papua New Guinea youth paid parental leave same sex relationships corruption coal seam gas customs planning federal election 2013 Australian Electoral Commission doping OECD crime health risks International Women's Day Gonski Review of Funding for Schooling sex slavery Special Rapporteur Northern Territory Emergency Response social policy welfare ASIO intelligence community terrorist groups Australian Security Intelligence Organisation carbon tax mining High Court military history electoral reform employer employee renewable energy regional unemployment fishing European Union Federal Court family assistance skilled migration banking United Nations Security Council Australian economy forestry food labelling vocational education and training Drugs UK Parliament welfare systems Indonesia social media children Constitutional reform local government codes of conduct terrorist financing homelessness Parliamentary remuneration money laundering Trafficking in Persons Report energy science social inclusion human rights paternalism Australian Secret Intelligence Service sexual abuse terrorism World Trade Organization Australia public health China housing affordability bulk billing political parties water productivity health policy Governor-General US economy trade unions domestic violence export liquefied natural gas foreign bribery firearms question time speaker superannuation public housing election results by-election expertise public policy climate Intergovernmental Panel on Climate Change leadership voting Department of Agriculture Fisheries and Forestry regulation Pacific Islands reserved seats research and development new psychoactive substances synthetic drugs UNODC carbon markets animal health middle class welfare ADRV Census Indigenous constitutional recognition of local government referendum consumer laws PISA competition policy royal commission US politics violence against women language education baby bonus Leaders of the Opposition citizen engagement policymaking Australia Greens servitude Trafficking Protocol forced marriage Population rural and regional mental health alcohol entitlements ministries Hung Parliament social citizenship maritime Iran transparency ANZUS regional students school chaplains federal budget 2011-12 salary Medicare Locals primary care Building the Education Revolution early childhood education 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 national security 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 asylum refugees immigration political finance donations foreign aid disability employment Economics efficiency human rights; Racial Discrimination Act employment law bullying asylum seekers Animal law; food copyright Australian Law Reform Commission industry peace keeping contracts workplace policies same-sex marriage disorderly conduct integrity retirement Parliament House standing orders prime ministers election timetable sitting days First speech defence budget submarines workers financial sector Canada Somalia United Kingdom GDP Tasmania world heritage political engagement leave loading Trade; tariffs; safeguards; Anti-dumping public interest disclosure whistleblowing Productivity Commission limitation period universities Ireland cancer gene patents genetic testing suspension of standing and sessional orders live exports infant mortality 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 Rent Assistance 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 regional engagement social determinants of health abortion Members suspension workplace health and safety marine reserves hearing TAFE Victoria astronomy resources sector YMCA youth parliament Korea fuel rebate Australian Greens presidential nomination Racial Discrimination Act 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 Board early childhood National Quality Framework for Early Childhood Education and Care Murray-Darling Basin sanctions Norway hospitals republic President Barack Obama Presidential visits qantas counselling Korean peninsula Work Choices biosecurity hendra environmental law federalism federation preselection therapeutic goods Therapeutic Goods Administration plebiscites computer games pests suicide nuclear COAG Ministerial Councils floods ADHD stimulant medication advertising electricity extradition standards conscience votes poverty preventative health rural health coastal erosion Parliamentary Budget Office NATO work-life balance

Show all
Show less