A number of key issues were raised about the Migration Legislation
Amendment (Regional Processing Cohort) Bill 2016 (the bill) during the inquiry.
These ranged from the need to augment Australia's suite of border protection measures,
concerns regarding the impact of the bill on people and families, and the
interaction of the bill’s provisions with Australia’s human rights obligations.
This chapter will outline issues raised by submitters and witnesses, and provide
the committee's views on the bill.
During the committee's inquiry, the Government announced that agreement
had been reached with the United States of America (United States) (in addition
to earlier agreements with Papua New Guinea and Cambodia), for the resettlement
of refugees currently in regional processing centres:
This further agreement is with the United States and it will
not under any circumstances be available to any future illegal maritime
arrivals (IMAs) to Australia. The priority under this arrangement will be for
resettlement of those who are most vulnerable, namely women, children and
families. US authorities will conduct their own assessment of refugees and
decide which people are resettled in the US. Refugees will need to satisfy
standard requirements for admission into the US, including passing health and
The committee was advised that the bill is part of a comprehensive set
of measures designed to form a 'strengthened protective shield' to deter
unauthorised boat arrivals from coming to Australia.
In addition to the resettlement agreement and the bill, other measures include:
A surge in intelligence and disruption operations, including with
The largest civil maritime operation in Australia's history; and
The maintenance of ongoing and enduring regional processing on
Nauru, accompanied by a 20-year visa that the Government of Nauru has decided
According to the Department of Immigration and Border Protection (the
Department), 857 people in the proposed cohort have registered their interest
in being settled in the United States.
The committee notes that it does not consider that the passage of the bill is
dependent on the resettlement deal proceeding.
Purpose of the bill
The committee heard evidence from several witnesses at their public
hearing that the objective of the bill had not been sufficiently explained. Mr
David Manne from Refugee Legal stated that currently:
There is no evidence that has been presented by the government,
that this is necessary in order to deter people. In fact, we have been told for
a long time that everything is under control, that the boats have been stopped
and that the measures in place have deterred people. Putting aside the question
of whether I agree with those laws and think they meet our obligations that is
what we have been told. So the onus, I would submit, is on the government to
demonstrate why all of a sudden, out of the blue, these laws were not presented
some time ago if they are so necessary.
A significant number of submissions made to the inquiry argued that the
bill is unnecessary.
The Refugee Council of Australia (RCA) noted that the Government’s main
justification for the bill 'appears to be that these people might be able to
enter Australia illegitimately, through (for example) faking marriages with
However, RCA explained that the Migration Act already contains extensive
powers and safeguards to regulate these matters, and visas are refused or
cancelled on a regular basis when evidence is available.
Concerns were raised that the Explanatory Memorandum (EM) does not
sufficiently explain the purpose of the bill, and that the bill 'prevents entry
even if a person would otherwise meet all the criteria for a visa, simply
because this person has been on Nauru or Manus Island'. Ms Fiona
McLeod SC advised the committee that more detail of the Government's objectives
in the EM 'would certainly be useful to lawyers scrutinising the bill'.
The Department has, however, indicated that it believes the scope of the EM is
The Immigration Advice and Rights Centre (IARC) argue that there is
nothing in the bill or the EM to support a conclusion that the measures are 'necessary,
reasonable or proportionate', concluding that 'the proposed changes are
Mr Julian Burnside QC stated that '[b]y our increasingly harsh policies, which
are explicitly intended to deter boat people, we are contradicting the central
purpose of the Refugees Convention'.
The Department provided further information to the committee to explain
why the bill was introduced:
It is a measure that the Australian
government has independently determined to be in the national interest, insofar
as the measure, should it be passed into law, will form a crucial and, indeed,
imperative component of the suite of measures that will form a strengthened
protective shield to deter potential illegal immigrants from coming by boat to
Many submitters offered their view that the bill contravenes Australia's
international human rights and other obligations, including the Refugee
Convention and the Convention on the Rights of the Child.
Potential human rights issues in the bill are addressed in Attachment A
of the EM which describes how these issues are mitigated. Where a
non-citizen has family members who have been granted a visa to enter or remain
in Australia, and this results in separation, or the continued separation of a
family unit, the EM explains that the bill:
...includes flexibility for the Minister for Immigration and
Border Protection to ‘lift’ the bar where the Minister thinks it is in the
public interest to do so. This consideration could occur in circumstances
involving Australia’s human rights obligations towards families and children...
A further potential human rights issue noted in the EM is the right to
equal protection of the law without discrimination.
Attachment A of the EM explains that any differential treatment proposed by the
bill is for a 'legitimate purpose and based on relevant objective criteria and
that is reasonable and proportionate in the circumstances'. These
circumstances include that it is a proportionate response to prevent a 'cohort
of non-citizens who have previously sought to circumvent Australia’s managed
migration program by entering or attempting to enter Australia...from applying
for a visa...' and that the bill seeks to discourage people from attempting
hazardous boat journeys with the assistance of people smugglers, instead
encouraging them to pursue regular migration pathways.
As discussed in Chapter 1, the Government has stated that a key
objective of the bill is to discourage refugees from attempting to reach
Australia by boat
and discourage the people smugglers who have facilitated Illegal
Maritime Arrivals. In response to this, witnesses argued that Australia already
has a robust visa application process:
...the Australian migration system has very robust processes
for determining whether or not someone is granted, for example, a partner visa
or for that matter any other kind of visa. There are already robust processes
to determine whether people can get a visa to enter Australia. I should note
that even if you are granted a visitor visa, for example, to come to Australia
it is not the case then that you can just stay in Australia forever. These
people are then expected to leave after the duration of their visas. People are
subjected to quite rigorous character assessments for visas as well. In that
sense, we think those kinds of arguments about sham marriages do not really
stack up when you look at the current migration system and how it operates.
The Secretary of the Department confirmed for the committee that the
proposed measures in the bill, if passed, would discourage refugees from attempting
to reach Australia illegally by boat and discourage the people smugglers who
have facilitated Illegal Maritime Arrivals:
Yes, indeed. Anything that we do that has the effect of
ratcheting up the difficulties involved in getting to Australia, or ever
getting to Australia if they get to regional processing, always have a
dampening effect on the interest in travelling to Australia—always.
The Secretary of the Department also confirmed for the committee that
the proposed measures in the bill, if passed, would provide a further deterrent
to persons seeking to illegally enter, or illegally facilitate entry into, the
Australian migration zone.
Finally, the Secretary explained:
It goes fundamentally to the point I made in my opening
statement; that is, that this is part of a suite of further strengthening our
'shield', as I described it. The Prime Minister did not mince his words on the
weekend and nor will I. Whatever resettlement arrangement you come to, if it is
sufficiently conducive with carrots in it to get people to take up the
option—because there is only consensual resettlement to deal with this
diabolically difficult problem that has been inherited by every official at this
table, I can assure you—you need sticks, and this is a stick.
Interpretation of the lifetime ban
The LCA considered that the bill’s proposed lifetime ban is inconsistent
with international human rights obligations because it discriminates on the
basis of arrival method. That is, the ban only applies to boat arrivals that
have been taken to a regional processing country (Nauru and Papua New Guinea),
and that this constitutes a penalty. Further, the Castan
Centre for Human Rights Law (Castan Centre) states that:
Banning refugees from coming to Australia would comprise an
unlawful penalty which places Australia in breach of Article 31. It is widely
accepted that the term ‘penalty’ does not need to be a criminal punishment.
Therefore administrative sanctions and a restriction on freedom of movement
would constitute a penalty for the purpose of Article 31. 
The RCA submitted that the bill 'targets the very people that Australia
has already punished the most...who have been languishing in Nauru or Manus Island
for over three years in indefinite detention in awful conditions'.
Save the Children is critical of a lack of detail concerning how the Government
intends to implement the ban, and considers that insufficient evidence has been
provided to support the claim that the bill will deter potential unauthorised
maritime arrivals in the future. They emphasise that:
The decisions made by refugees about the direction in which
they flee persecution involve a complex array of issues and may be influenced
by a variety of push-factors as well as pull factors and individual
circumstances. In our experience, most refugees who have sought to come to
Australia by boat in recent years have done so with a view to simply finding a
safe place to rebuild their lives.
However, the Department clearly stated in evidence to the committee that
the measures in the bill are likely to have an important deterrent effect on
the people smuggling trade:
The deterrent effect of this legislation has to play out in
the future, but our assessment based on hard experience, based on toughening up
or ratcheting up certain measures, is that, whenever you announce a measure of
this character—either regional processing in Manus or Nauru; changes to visa
conditions; the introduction of temporary visas; the introduction of more
stringent checking; the escalation of maritime security patrols—we know that,
literally sometimes within minutes, if not hours or days—and that has certainly
happened since Sunday—there is a dampening effect in terms of the interest,
particularly for people who are currently poised in Indonesia.
Potential impact on families
The Castan Centre claimed that the bill may cause children residing in
Australia to be separated from their parents, and further claimed that the 'ministerial
power to lift the bar in order to facilitate family reunification is not
expeditious and lacks transparency and certainty'.
A number of submissions, including those received from Save the
Children, the LCA, Amnesty International, and UNICEF raised concerns regarding
whether Ministerial discretion could satisfy Australia’s human rights
For example, the LCA stated:
...if the intention is that the public interest test would
provide the capacity to interpret matters on a case by case basis with
reference to Australia’s international human rights obligations with respect to
the rights of families and children, it should be explicitly stated.
UNICEF Australia argue that exclusions for some individuals should be
incorporated into the bill, such as whether:
...the individual concerned has family members in Australia
(particularly children) and/or it is otherwise in the best interests of a child
(wherever residing) for a person to be granted an Australian visa.
The Department advised that situations such as this can be avoided by offering
people the opportunity to express an interest in going to a specific third
country, and working with them and the other government to find a suitable
approach on an individual basis:
The bottom line is that those transitory people—parents with
children in Australia—can now express an interest in going to the United States
from Australia, and then once we understand whether they are interested, we can
work through the logistics of that on a case-by-case basis from a compassionate
perspective with those other governments that I mentioned.
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 that it is in the public interest to do so.
The Department advised the committee that Ministerial decisions on
whether to lift the bar would be subject to review, stating that '[t]he
personal, non-compellable power of the minister to lift the bar...once engaged,
is the subject of judicial review'. However, they also
advised that the Minister cannot be compelled to exercise their power to
consider a particular individual's visa. If the Minister does not exercise
their authority to consider an application, it cannot be pursued further by an
applicant, and 'there is no review of a decision not to make a
Concerns were raised during the inquiry that the bill, if passed,
contains measures that have retrospective application, as they would apply from
19 July 2013. There is an argument that this may be unfair because it imposes
consequences on the basis of past conduct (coming to Australia by boat) when an
individual affected could not have been aware of the bill. According to the LCA,
this is discriminatory to those who arrived by boat and were taken to a
regional processing country, as opposed to those who arrived via another form
The Castan Centre also argue that this approach is 'inconsistent with
well-established common law principles and undermines the rule of law'.
Ms Fiona McLeod SC explained that in her view, '...retrospective laws are bad in all
circumstances. The primary reason for that is that we should be governed by
laws that are known and knowable at all times'.
The Department advised the committee that the bill relies on a statement
made by the then Prime Minister on 19 July 2013, that no one coming to
Australia by boat would be settled in Australia. This is included in the second
reading speech by the Minister for Immigration and Border Protection when the
bill was introduced in the House of Representatives:
This legislation importantly is consistent with the
announcement by former Prime Minister Kevin Rudd who when announcing the
signing of the Regional Resettlement Arrangement with Papua New Guinea on 19
July 2013 declared and I quote: 'from now on any asylum seeker who arrives in Australia
by boat will have no chance of being settled in Australia as refugees.
Some witnesses emphasised that this statement by the former Prime
Minister has no legal effect and should not be used by the Government as a
basis for claiming that the bill is not retrospective. Mr David Manne from
Refugee Legal stated that '...warnings are not laws...were the warning to have been
legislated before, this bill would not be before parliament'. However, the
committee notes that similar procedures are often used where legislation
follows an earlier announcement.
Although there is scope for the Minister to lift the bar on valid applications
in the public interest, submitters expressed concern that wide discretion is
granted to the Minister to vary, revoke or change any decision. Points that
have been made include a lack of procedural fairness, no reasons being provided
for an adverse decision, and the administrative burden of the Minister being
involved in all visa decisions, potentially resulting in lengthy delays in processing.
It was noted that while reference is made to human rights obligations, the EM
does not outline the public interest grounds for the potential exercise of the
Ministerial discretion to lift the bar.
The Secretary of the Department explained at the hearing:
As to the reach back to 19 July 2013, as the minister made
clear in his speech, as I think the EM makes abundantly clear and as the Prime
Minister and others have stated, that is to capture, by definition, the 'group'
that falls within the ambit of this legislation. That is the date which the
then Labor government agreed with a change or tightening of its policy about
regional processing. 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. So it
has become the policy position that was carried forward by Mr Abbott and then
Mr Turnbull. What this legislation seeks to do is to say that...class of people
who are defined by that date fall within the ambit of the legislation. So it is
retrospective in that sense. It codifies in statute what has been our policy
position for 3½ years.
The committee notes the concerns that have been expressed about aspects
of this bill by submitters and witnesses in the course of the inquiry. However,
it has formed the view that the bill is part of a comprehensive suite of related
measures that together act as a deterrent to people risking their lives by
illegally coming to Australia by boat, and to those who would ply the illegal
people smuggling trade into Australia.
The committee notes the concerns expressed by some witnesses and agrees that
it would be beneficial if the explanatory memorandum clarified in more detail
why further measures are necessary beyond those that are already in place to
deter unauthorised maritime arrivals; as well as the factors that the Minister should
consider in determining whether it is in the public interest to 'lift the bar'
on a case-by-case basis.
The committee is satisfied that the proposed measures are necessary and
that there are sufficient safeguards incorporated within the bill to deal with the
issues that have been raised.
The committee notes that, per capita, Australia has one of the most
generous refugee resettlement programs in the world. This program provides
resettlement services and support for those persons already identified as refugees
who are resident in camps around the world.
The committee recommends that the Senate pass the bill.
Senator the Hon Ian
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