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
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