Abolition of the 45 day rule
Harriet Spinks
The Budget provides $5.4 million over four years to abolish the
‘45 day rule’. Under current arrangements, applicants
for a protection visa who do not lodge their claim within 45 days
of arriving in Australia are not permitted to work or access
Medicare while their claim is being processed. This rule will be
abolished so that protection visa applicants who hold a substantive
visa at the time of lodging their claim will be permitted to work
and access Medicare.[1] Applicants who do not hold a substantive visa will be
permitted to work and access Medicare provided they ‘engage
with the Department of Immigration and Citizenship and can
demonstrate there is an acceptable reason for the delay in applying
for protection’.[2] The funding for this measure comprises $5.2 million over
four years to the Department of Health and Ageing and $0.1 million
over four years to Medicare Australia. The administrative costs to
the Department of Immigration and Citizenship will be fully offset
by savings.
This represents a significant change in policy regarding the
right of asylum seekers to work and access Medicare. The 45 day
rule came into effect on 1 July 1997 in order to discourage people
from making unfounded protection claims when other attempts to stay
in Australia had been unsuccessful, or using the protection system
to obtain work rights or access to healthcare.[3]
The 45 day rule has frequently been criticised by refugee and
human rights advocates, as well as several academics, journalists
and community organisations. Critics have argued that there are
several legitimate reasons an asylum seeker might not lodge a
protection claim within 45 days of arrival in Australia. These
include being given the wrong information by family and friends,
limited English language skills, and a lack of understanding of
Australia’s immigration rules and processes. They have also
argued that the 45 day rule leaves asylum seekers destitute, sick,
and dependent on charities for their basic survival. [4]
The abolition of the 45 day rule fulfils a commitment made by
the Labor Party, prior to winning the 2007 election:
Labor recognises that the arbitrary 45-day-rule
results in legitimate asylum seekers on bridging visas being
unnecessarily denied the right to work while their claim is being
processed … Labor will work to develop guidelines based on
merit so that frivolous or vexatious visa applications will be
denied those rights, instead of applying an arbitrary 45-day-time
limit.[5]
While the Opposition has not announced a policy position on the
45 day rule, it has been a vocal critic in the last 12 months of
what it calls the Government’s ‘softening’ of
immigration laws and policy which it claims has led directly to the
increase in unauthorised boat arrivals since September 2008. Such
measures include the closure of offshore processing centres on
Manus Island and Nauru, abolition of Temporary Protection Visas,
and a move away from mandatory detention for unauthorised
arrivals.[6] It is
possible that the abolition of the 45 day rule might be similarly
criticised by the Coalition as yet a further softening of
Australia’s policy towards asylum seekers.
[1].
A substantive visa is any visa other than a bridging visa, a
criminal justice visa or an enforcement visa. This category of
applicants will therefore cover any person who has entered
Australia on a valid visa and that visa (or another substantive
visa if they have changed visa categories after arrival) remains in
effect.
[2].
Australian Government, Budget measures: budget paper no. 2:
2009–10, Commonwealth of Australia, 2009, p. 341.
[3].
For more background on the introduction of the 45 day rule see A
Millbank, Asylum seekers on Bridging Visa E, Research
brief, no. 13, 2006–07, Parliamentary Library, Canberra,
2007, pp. 9–10, viewed 15 May 2009, http://www.aph.gov.au/library/pubs/rb/2006-07/07rb13.pdf
[4].
For example, see Australian Catholic Social Justice Council,
Background paper on asylum seekers in Australia, online
only, 1 August 1999, viewed 14 May 2009,
http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22library%2Fjrnart%2FHUE16%22
and B Saul, ‘A visa that denies fundamental human
rights’, The age, 26 May 2006, viewed 12 May 2009,
http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2F2CRJ6%22
[5].
Australian Labor Party, ‘Respecting human rights and a fair
go for all’, 2007 National Platform and
Constitution, April 2007, pp. 222–3, viewed 14 May
2009,
http://www.alp.org.au/download/now/2007_platform_chapter13.pdf
[6].
For example see S Stone (Shadow Minister for Immigration and
Citizenship), 14th boat and still no response from
Rudd, media release, Canberra, 22 April 2009, viewed 15 May
2009 ,
http://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/0CCT6/upload_binary
/0cct60.pdf;fileType=application/pdf#search=%22sharman%20stone%20boat%22