The Migration Legislation Amendment (Regional Processing Cohort) Bill
2016 (the bill) was introduced into the House of Representatives on 8 November
2016 by the Minister for Immigration and Border Protection, the Hon Peter
On 10 November 2016, the Senate referred the bill to the Senate Legal and
Constitutional Affairs Legislation Committee for inquiry and report by 22
The Senate Selection of Bills Committee recommended that the bill be
referred to examine the '[i]mpact on families and children [and] compliance
with Australia's International Human Rights obligations'.
Conduct of inquiry
In accordance with usual practice, the committee advertised the inquiry
on its website and wrote to organisations inviting written submissions by 14
November 2016. The committee received 84 submissions, listed at Appendix 1. The
committee held a public hearing in Melbourne on 15 November 2016. Details of
the public hearing are provided at Appendix 2. Questions on notice and other
material received by the committee are listed at Appendix 3. The committee
thanks the Department of Immigration and Border Protection and the other
organisations and individuals that assisted with the inquiry.
Overview of the bill
The bill, if passed, would amend the Migration Act 1958
(Migration Act) and the Migration Regulations 1994 (Migration Regulations) to
indefinitely preclude 'unauthorised maritime arrivals' (UMAs) from making a
valid application for any Australian visa. Item 1 of the bill inserts a proposed
new definition in subsection 5(1) of the Migration Act. This classifies
specific persons as part of a 'regional processing cohort'. This includes
individuals who were at least 18 years old and are transferred to a regional
processing country after 19 July 2013, including those who:
are currently in a regional processing country;
have left a regional processing country and are in another
are in Australia awaiting transfer back to a regional processing
country and who are taken to a regional processing country in the future;
people temporarily transferred from regional processing countries
to Australia for medical treatment and those who have since settled in another
country or returned home and applies to both temporary and permanent visas.
The bill confers a power on the Minister to permit a member of the
designated regional processing cohort, or a class of persons within the
designated regional processing cohort, to make a valid application for a visa
if the Minister considers it is in the public interest to do so.
The bill also includes measures to prevent a member of the designated
regional processing cohort from being deemed to have been granted a special purpose
visa under section 33 of the Migration Act, or being deemed to have applied for
particular visas under the Migration Regulations.
The Explanatory Memorandum describes the bill as introducing a
'statutory bar' preventing certain non-citizens who were taken to a regional
processing country from making a valid application for a visa to come to or
remain in Australia. The Minister's power to permit a member of a regional
processing cohort to make a valid visa application where it is in the public
interest is referred to as 'lifting the bar' in the Explanatory Memorandum.
Purpose and background
The stated purpose of the bill is:
...to prevent unauthorised maritime arrivals (UMAs) who were at
least 18 years of age and were taken to a regional processing country after
19 July 2013 from making a valid application for an Australian visa.
The Minister for Immigration and Border Protection, the Hon Peter Dutton
MP, described the policy background to the bill in the second reading speech:
The government's reform of our border protection policies has
sent the message to people smugglers that they cannot offer a path to
Australia. Life in Australia is not an illicit commodity to be sold to the
desperate and vulnerable at a great profit.
The Minister has stated that the purpose of the bill is to 'reinforce
the government's longstanding policy that people who travel here illegally by
boat will never be settled in this country'.
The measures in the bill were first announced on 19 July 2013. The
Department of Immigration and Border Protection confirmed in evidence to the
Mr Rudd said, that after that date, 19 July 2013—it being
significant insofar as it was the date that he and Mr O'Neill, the Prime
Minister of Papua New Guinea, signed an agreement pertaining to Manus—persons
who were transferred to Manus or Nauru would 'never settle' in Australia.
The committee notes the short timeframe for reporting on the bill, and
appreciates the assistance of submitters and witnesses who provided evidence
and made themselves available at the public hearing.
Structure of this report
There are two chapters in this report.
Chapter 1 outlines the context and background to the inquiry.
Chapter 2 discusses the key issues raised in submissions and at the
public hearing, and provides the committee's recommendation.
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