On 25 September 2014, the Minister for Immigration and Border
Protection introduced the Migration and Maritime Powers Legislation Amendment
(Resolving the Asylum Legacy Caseload) Bill 2014 (the Bill) into the House of
On the same day and on the recommendation of the Selection of Bills Committee,
the Senate referred the provisions of the Bill to the Legal and Constitutional
Affairs Legislation Committee (the committee) 'for inquiry and report by 27
The 'asylum legacy caseload'
As the Bills Digest explains, the 'asylum legacy caseload' refers to 'asylum
seekers who arrived unauthorised by boat between August 2012 and December 2013
and who have not been transferred to offshore processing centres on Nauru or
Manus Island in Papua New Guinea'.
The Bills Digest recalls that:
In response to a significant rise in the number of
unauthorised boat arrivals in 2012, an Expert Panel on Asylum Seekers was
tasked by the Gillard Government to report back on policy options available ‘to
prevent asylum seekers risking their lives on dangerous boat journeys to Australia’. After the Panel’s report was released in August
2012, the then Government announced that some, but not all, of a suite of
recommendations made by the Panel would be implemented, including the
reinstatement of offshore processing for selected asylum seekers and the
introduction of a ‘no advantage’ principle which would apply to all asylum
seekers who had arrived by boat. What the ‘no advantage’ principle meant in
practice was only ever explained in very general terms as a means to ensure
that ‘irregular migrants gain no benefit by choosing to circumvent regular
As more boats continued to arrive and the number of ‘no
advantage’ asylum seekers waiting for their claims to be processed began to
rise, pressure on the capacities of the onshore detention network and offshore
processing centres to absorb the new arrivals increased. On 21 November 2012,
the then Minister for Immigration and Citizenship, Chris Bowen, stated that
‘given the number of people who had arrived by boat since 13 August 2012, it
would not be possible to transfer them all to Nauru or Manus Island in the
immediate future’. Instead, under the ‘no advantage’ principle, many would be
released from detention into the community on bridging visas without work
rights (BVEs) while they waited an outcome on their asylum claims. Those found
to be refugees would not be issued with permanent protection visas ‘until such
time that they would have been resettled in Australia after being processed in
The 'asylum legacy caseload', therefore, consists of those asylum
seekers who arrived by boat after the then-Government adopted the 'no
advantage' principle in August 2012 but before December 2013,
since which time all asylum seekers who have arrived by boat have been 'turned
back' or sent to offshore processing under Operation Sovereign Borders.
The government estimates that there are currently 30,000 people in the 'asylum
legacy caseload', most of whom are not in detention.
Overview of the Bill
The Explanatory Memorandum explains that the Bill 'fundamentally changes
Australia's approach to managing asylum seekers', and summarises those
fundamental changes as including:
reinforcing the Government‘s powers and support for our officers
conducting maritime operations to stop people smuggling ventures at sea,
clarifying and strengthening Australia‘s maritime enforcement framework to
provide greater clarity to the ongoing conduct of border security and maritime
introducing temporary protection for those who engage Australia‘s
non-refoulement obligations and who arrived in Australia illegally;
introducing more rapid processing and streamlined review
arrangements, creating a different processing model for protection assessments
which acknowledges the diverse range of claims from asylum seekers, helping to
resolve protection applications more efficiently;
deterring the making of unmeritorious protection claims as a
means to delay an applicant‘s departure from Australia;
supporting a more timely removal from Australia of those who do
not engage Australia‘s protection obligations; and
codifying in the Migration Act Australia's interpretation of its
protection obligations under the 1951 Convention relating to the Status of
Refugees and its 1967 Protocol (the Refugees Convention).
In his second reading speech, the Minister for Immigration and Border
Protection explained that:
These measures are a necessary extension and consolidation of
the government's successful border protection policies and are part of a broad
package of measures which will tackle the management of the backlog of illegal
maritime arrivals...and bring important enhancements to the integrity of
Australia's protection regime.
The government is committed to Australia's national security
and economic prosperity in its efforts to combat the illegal and dangerous
practice of people-smuggling. These changes will further strengthen the
government's ability to manage illegal arrivals and strengthen public
confidence in Australia's protection and migration programs.
The Bill would—if passed—amend:
the Administrative Decisions (Judicial Review Act) 1977;
the Immigration (Guardianship of Children) Act 1946;
the Maritime Powers Act 2013;
the Migration Act 1958; and
the Migration Regulations 1994.
Each of the elements to the Bill will be explored in the next chapter.
The Explanatory Memorandum describes the financial impact of the Bill as
It further notes that '[a]ny costs will be met from within existing resources
of the Department of Immigration and Border Protection'.
Other parliamentary inquiries
The Senate Standing Committee for the Scrutiny of Bills examined the
Bill in Alert Digest No. 14 of 2014. It noted 27 concerns that fall
within its terms of reference.
The Parliamentary Joint Committee on Human Rights examined the Bill in
its Fourteenth Report of the 44th Parliament. It considered
that two elements of the Bill are not compatible with human rights and raised
concerns about eleven other elements.
Conduct of the inquiry
The committee advertised the inquiry on its website (www.aph.gov.au/senate_legcon) and
wrote to a number of stakeholders inviting submissions. The committee set a
deadline for submissions of 31 October 2014.
The committee received more than 5,500 submissions. Due to the volume of
submissions, the committee decided not to publish certain campaign letters. The
remaining submissions were published on the committee's website. A list of published
submissions is at Appendix 1.
A public hearing was held on 14 November 2014. A list of witnesses
who appeared is at Appendix 2. The Hansard transcript of the
committee's hearing can be accessed on the committee's website.
The committee acknowledges those who participated in the inquiry and
thanks them for their assistance. The committee is particularly grateful to
witnesses who appeared at the public hearing at relatively short notice.
Note on references
References in the report to the committee Hansard are to the
proof committee Hansard. Page numbers between the proof committee Hansard
and the official Hansard may differ.
Structure of the report
This report has been divided into three chapters. Chapter 2
summarises the key changes brought about by the Act and Chapter 3
canvasses the submissions received and contains the committee's recommendations.
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