The Minister for Home Affairs, the Hon Peter Dutton MP, claims that this bill is an important part of the 'government's people-smuggling deterrence message' by making it clear that 'from now on, any asylum seeker who arrives in Australia by boat will have no chance of being settled in Australia as refugees'.
The Minister's claim was reiterated in the Department's evidence to the committee. But it is inherently implausible. It is already the case that people who arrive in Australia by boat without lawful entry documents have their claims processed offshore and are denied permanent resettlement in Australia. This bill imposes a further ban on them ever being granted an entry visa of any kind, even if they have long been resettled in a third country. No evidence has been produced, however, to demonstrate that a punitive provision of this kind is necessary to deter people smuggling. As the Australian Human Rights Commission submitted:
The Commission questions whether there is a rational connection between deterring hazardous journeys in the current context, and preventing a person from entering Australia, for any purpose or length of time, potentially decades from now. It is unclear, for example, how preventing a former refugee from visiting Australia as a tourist 20 years in the future would act to discourage people currently fleeing persecution from attempting a hazardous journey to Australia.
The effects of the bill
This bill is designed to permanently exclude any person who travelled to Australia by means other than the normal channels for immigration, and by boat, from ever entering Australia. This would include individuals travelling to visit family, for tourism, and for business or study.
Labor senators agree with the Law Council of Australia (Law Council) who stated that the bill is neither necessary nor proportionate to its intended objective:
The Migration Act already contains provisions that exclude many unauthorised maritime arrivals from making valid visa applications in Australia and extensive powers and discretions to consider applications on their merits. We have a strict and rigorous migration system already. This bill is unnecessary. We already have character provisions that protect the Australian community from the risk of those who may be seen as 'of risk'. Again, this bill is unnecessary.
The other purpose of the bill stated by the minister is to send the strong message to people smugglers and those considering travelling to Australia by boat that our borders are strong. But the thing is we already have so many ways in which we have a deterrent already. In particular, there's the use of boat interceptions, turnbacks, public messaging campaigns and the fact that people who came here on boats and have been on Manus Island or Nauru for a long time have had a pretty rough time already. So this bill, in the Law Council's view, is not only disproportionate but also unjust in that it imposes a very significant penalty on one group of people for the purpose of influencing the behaviour of third parties.
The effects of the bill would extend far beyond the stated aim of enacting into law the previous Labor government and current Coalition Government's policy that asylum seekers who arrive by boat will not be settled in Australia. The bill would prohibit a member of the regional processing cohort from coming to Australia, under any circumstance and on any visa.
Other possible scenarios could include:
politicians undertaking visits and attending conferences;
athletes hoping to compete in Australian sport events;
adverse impacts to any future Australian Olympic bids, noting that there is now a recognised Refugee Olympic Team;
former refugees who are now citizens of another country visiting family members in Australia;
tourist visits by former refugees who are now citizens of another country;
business owners or employees visiting in Australia to discuss the expansion of companies and businesses into the Australia market;
scientists and other researchers attending academic conferences or visiting universities in Australia, and thereby contributing to the international exchange of knowledge.
Labor senators are particularly concerned that the effects of this bill would be felt many years into the future. Individuals who have been resettled in a third country would never be allowed to come to Australia under any circumstance.
The discretionary ministerial power to allow a valid visa application when deemed in the public interest is completely insufficient to address the concerns of Labor senators.
Individuals in Australia on medical transfer
The Department of Home Affairs advised that 1084 individuals from the cohort are currently in Australia on medical transfer (or accompanying a family member on medical transfer). Labor senators note evidence provided to the inquiry expressing concerns that these 1084 individuals would effectively be in 'limbo' as a result of this bill.
International legal obligations
As many submitters and witnesses emphasised in their submissions, this bill is inconsistent with Australia's international legal obligations. In particular, the bill would be in breach of article 31 of the Refugee Convention, the Convention on the Rights of the Child, the International Covenant on Economic Social and Cultural Rights, and the International Covenant on Civil and Political Rights (ICCPR).
The Law Council drew attention to article 26 of the ICCPR which states that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law'. Labor senators note the concerns of the Law Council that the 'bill serves to define a specific group of people –the cohort who are thereby barred access to Australian visas' and that such action 'amounts to discrimination'.
Other evidence argued that the bill 'unlawfully discriminates against people, based on the time and mode of their arrival to Australia, in breach of article 31 of the Refugee Convention'.
Labor senators share the serious concerns raised during the inquiry about how this bill could permanently separate members of the same family, in breach of Australia's international legal obligations. The Law Council illustrated some real life examples of how this bill would affect families:
…imagine a refugee family that was separated when fleeing from their place of persecution. Dad might have travelled separately to mum and the kids. It might be that they arrived at different times and so some members of the family are caught by this bill and others, who came earlier, are not. That would mean that this bill would have the effect that the family could never live here in Australia permanently, even though some of them are here already.
At the public hearing, witnesses repeatedly emphasised the importance of Australia meeting its international legal obligations. For example, Dr Carolyn Graydon, Principal Solicitor and Manager, Human Rights Law Program, Asylum Seeker Resource Centre stated:
[I]nternational law is what prevents us as nations of the world from reaching a point of chaos. Australia relies upon international law on a daily basis in its relations with other countries. We need to respect international law, because we depend upon it and we depend upon it in many different fields of life, not only in relation to human rights. International law is absolutely fundamental to our participation as a nation in the world, and the human rights obligations that Australia has ratified—Australia has voluntarily decided that it wants to participate in a community of nations to uphold minimum standards on fundamental questions facing humanity.
The Law Council also highlighted the importance of Australia meeting its international law obligations:
…Australia should look at what our international law obligations are and adhere to them. It's the right thing to do. We're one of many wonderful liberal democracies. In my subjective opinion, Australia is really a wonderful, wonderful country. We rely on other states to comply with international law in a variety of ways. Australia takes some moral leadership, for example, in relation to international whaling conventions, in respect of Japan. We need some bottom-line rules with which to run our world. We rely on other countries to adhere to international maritime law, to adhere to the laws of war, to adhere to refugee conventions themselves. Why should we just do what we want, when we're part of the world and we've signed up to meet certain obligations? Australia should adhere to international law obligations.
Ministerial discretion
The ministerial discretion is non-compellable and the public interest is undefined, meaning that the Minister has no obligation to consider applications for a visa from this cohort. The bill would give the Minister the personal power to decline to make a decision about an application to allow a person otherwise ineligible for a visa to be allowed to apply, or to make the decision to decline or allow such an application. As the bill states, the Minister could permit a member of the 'regional processing cohort' to make a valid visa application if the Minister considers it to be in the public interest to do so, however 'public interest' remains undefined. The effect of this would be to shift exclusive control over access to Australia by former asylum seekers to the Minister.
Labor senators share concerns raised in evidence that the ministerial discretion is too broad and that the 'public interest' is not defined in the legislation. The Law Council argued that the lack of clarity about 'public interest' means 'its content is therefore susceptible to different interpretation by different ministers on opaque grounds'. The broad nature of the ministerial power was also questioned by Liberty Victoria, which noted that there are no statutory constraints on how the minister may wish to apply the power.
Labor senators also note the reviewability of decisions made would be limited, and would necessarily require the applicant to bear the administrative (and quite possibly the financial) burden of making an application for review. It is also of concern that a decision not to make a decision, is not reviewable.
The establishment of a broad and vaguely defined ministerial discretion under legislation creates a risk of unfair and inconsistent decisions, and is not in keeping with the rule of law. The establishment of the ministerial discretion contemplated by this bill would be highly inappropriate.
Retrospectivity
If this bill was passed, it would mean that individuals, who have sought asylum in Australia since 19 July 2013, could be subject to its operation, despite the law not being introduced until many years later. This retrospective application is not appropriate. As the Law Council noted in its submission:
The Bill is contrary to the rule of law, which requires that the law must be readily known and available, certain and clear. These principles are central to the fairness and integrity of Australian law and underpin community confidence in its administration.
The retrospective imposition of what is effectively a civil penalty conflicts with the requirement that, as a matter of fairness, people should be able to know in advance the implications of their actions.
Mr Edward Santow, Human Rights Commissioner also highlighted concerns about retrospectivity:
This bill would apply to the conduct of a group of people that has already happened. In other words, that group of people cannot change the fact that they have already got on a boat and come to Australia to seek asylum, but what the bill would do is further disadvantage those people because of that conduct that they've already done. That is a quintessential example in legal textbooks of retrospective legislation that is contrary to the rule of law. The rule of law—as you would know, Senator, of course—is a very old principle. It's existed for centuries in our legal tradition. It's a very important principle and we are concerned that this bill would be inconsistent with that principle.
Concluding remarks
The stated aim of the bill – that it is necessary for the continued deterrence of boat arrivals and the continued effectiveness of Operation Sovereign Borders – has not been demonstrated by any evidence produced by the Government. The bill’s real purpose seems to be a political declaration of the Government’s resolve to deter boat arrivals, even though that aim has largely been achieved by the existing policy of offshore processing and denial of permanent resettlement in Australia. By overreaching to make that declaration, the Government is only likely to permanently divide families; to put many asylum seekers who have been brought to Australia for medical or other reasons into a legal limbo and at risk of refoulement;, and to deny significant future visits by resettled refugees that could provide significant cultural and intellectual benefit to this country.
Recommendation
Labor senators recommend that the Senate reject the bill.
Senator the Hon Kim CarrSenator Anthony Chisholm
Deputy ChairLabor Senator for Queensland