Abolition of the 45 day rule

Budget Review 2009-10 Index

Budget 2009 10: Immigration

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,

[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 ,