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Should Parliament ultimately decide whether asylum seekers may be sent to a foreign country?



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Parliament of Australia Departmentof Parliamentary Services

Contents

Introduction ............................................................................................................................................. 1

Background .............................................................................................................................................. 1

The Australian Green’s Bill ....................................................................................................................... 2

Existing statutory requirements .............................................................................................................. 3

Previous declarations ............................................................................................................................... 4

Background to the existing power ........................................................................................................... 5

The Malaysia Arrangement ...................................................................................................................... 6

Parliamentary scrutiny ............................................................................................................................. 9

Judicial review ........................................................................................................................................ 12

Concluding comments ........................................................................................................................... 13

Annex: s198A Migration Act 1958 ......................................................................................................... 14

BACKGROUND NOTE 19 August 2011

Should Parliament ultimately decide whether asylum seekers may be sent to a foreign country?

Elibritt Karlsen Law and Bills Digest Section

Should Parliament decide whether asylum seekers can be sent to a foreign country?

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Introduction

Extra-territorial processing of asylum claims is essentially the use of another country’s territory (with or without the assistance of an international organisation) in order to decide asylum claims.1 For ten years, the Migration Act 1958 (Migration Act) has contained a power to transfer asylum seekers who have arrived in Australia by boat, or ‘irregular maritime arrivals’ as they are now known, to foreign countries for processing. This power is only enlivened after the Minister for Immigration ‘declares’ that a specified foreign country is able to provide access to procedures for assessing asylum claims and that it provides certain protections until a durable solution is found. The Minister has only made such a declaration on three occasions—with respect to Nauru, Papua New Guinea and most recently, Malaysia. However, the use of this power raises complex legal, political, ethical, and judicial considerations which are all inexorably linked.

This paper will briefly examine some of these issues in the context of recent initiatives by the Australian Greens to open Ministerial declarations to scrutiny by Parliament as a whole. It also notes the recent High Court challenge directed at the heart of this issue.

Background

Following amendment of the Migration Act in September 2001, Australia began extra-territorial processing of asylum claims in Nauru and Papua New Guinea.2 Over the next seven years some 1637 asylum seekers were taken to these countries to have their claims processed. Seventy percent of those were subsequently resettled and around 705 people (or 61 per cent) were ultimately resettled to Australia.3 According to the then Coalition Government, the primary policy objective of what became known as the ‘Pacific Solution’ was to strengthen Australia’s border security, prohibit asylum seekers bypassing ‘normal entry procedures’, and to deter illegal people smuggling activity.

In April 2007, the former Coalition Government announced a new initiative—that it had signed an agreement with the United States of America that would enable the two countries to ‘swap refugees’.4 Under the agreement the United States would consider for resettlement people who had been taken to Nauru for processing and in turn, Australia would consider for resettlement asylum

1. See further: G Goodwin-Gill, ‘The extraterritorial processing of claims to asylum or protection: The legal responsibilities of States and international organizations’, Offshore processing of asylum seekers: The search for legitimate parameters, S Blay, J Burn and P Keyzer (eds), UTS Law Review, no. 9, Halstead Press, Sydney, 2007, p. 26.

2. Other regional processing initiatives prior to this date include the Comprehensive Plan of Action and an agreement secured with Indonesia in 2000. 3. 1153 (or 70 per cent) were resettled to Australia or other countries: C Evans, Last refugees leave Nauru, media release, 8 February 2008, viewed 1 August 2011, http://www.minister.immi.gov.au/media/media-

releases/2008/ce08014.htm 4. K Andrews (former Minister for Immigration and Citizenship), War Crimes MOU and Asylum Agreement Signed, media release, 17 April 2007, viewed 29 July 2011,

http://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/NRTM6/upload_binary/nrtm61.pdf;fileType=applicati on%2Fpdf#search=%222000s%202007%2004%2017%20minister%20for%20immigration%20and%20citizenship%22

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seekers intercepted by the United States and detained in Guantanamo Bay in Cuba.5 Though this ‘refugee swap’ or ‘Atlantic Solution’ as it has been termed never eventuated, it does nonetheless highlight a rather exceptional burden sharing initiative.

When the Australian Labor Party (ALP) won the 2007 federal election it announced that it would ‘end the so-called ‘Pacific Solution with its huge cost to Australian taxpayers’.6 On 8 February 2008 the former Minister for Immigration and Citizenship announced the arrival in Australia of the last refugees from Nauru and that Australia had initiated discussions with the Nauruan Government over the closure of the facilities there.7 The Government did not, however, seek to repeal the provision in the Migration Act which enabled the transfer of asylum seekers to any foreign country for processing. By mid 2010, in the context of increasing numbers of arrivals, Prime Minister Julia Gillard announced in her first major policy speech as Prime Minister that the Government had begun having discussions with regional neighbours about the possibility of establishing a regional processing centre for the purpose of receiving and processing irregular maritime arrivals.8

The Australian Green’s Bill

On 16 June 2011, Senator Hanson-Young of the Australian Greens introduced into the Senate the Migration Amendment (Declared Countries) Bill 2011.9 This Bill was not debated and was subsequently discharged from the notice paper due to a minor technical omission. On 5 July 2011, Senator Hanson-Young introduced into the Senate the Migration Amendment (Declared Countries) Bill (No. 2) 2011 (‘the Bill’).10 This Bill is identical to its predecessor in every respect except it now includes the words ‘and for related purposes’ on the front page of the Bill. This Bill is yet to be referred to a Senate Committee for inquiry.

As explained in the Bill’s accompanying material, the purpose of the Bill is to ‘require that any agreement to send asylum seekers to a third country is brought before both houses of Parliament as a disallowable instrument’.11 To achieve this end, the Bill proposes (amongst other things) to amend existing section 198A of the Migration Act and subsection 44(2) of the Legislative Instruments Act 2003 (LIA Act) to make a Ministerial declaration a disallowable legislative instrument. A Ministerial

5. A Dastyari, ‘Swapping refugees: The implications of the Atlantic Solution’, Offshore processing of asylum seekers: The search for legitimate parameters, S Blay, J Burn and P Keyzer (eds), UTS Law Review, no. 9, Halstead Press, Sydney, 2007, pp. 93-105.

6. C Evans, Last refugees leave Nauru, op. cit. 7. Ibid.

8. J Gillard, ‘Moving Australia forward’, Speech given at the Lowy Institute on 6 July 2010, viewed 8 September 2010, http://www.lowyinstitute.org/Publication.asp?pid=1328 9. The Migration Amendment (Declared Countries) Bill 2011, Parlinfo Search Bills homepage is available at: http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query%3DId%3A%22legislation%2Fbillhome%2Fs832

%22

10. Migration Amendment (Declared Countries) Bill (No. 2) 2011, Parlinfo Search Bills homepage is available at: http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fs840%2 2

11. Explanatory Memorandum, Migration Amendment (Declared Countries) Bill (No. 2) 2011, p. 1.

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declaration is a declaration in which the Minister ‘declares’ a country for the purpose of transferring asylum seekers. These two elements of the Bill are discussed in further detail below.

Existing statutory requirements

Existing section 198A of the Act (see annex) contains the statutory basis upon which an officer (including a member of the Australian Defence Forces) can take asylum seekers arriving by boat from Australia to another country. The section also clarifies that people ‘being dealt with’ under this section are deemed not to be in ‘immigration detention’, as the term is defined in the Migration Act.12 However, the power to transfer asylum seekers to a foreign country is dependent upon a declaration in respect of the country being in force under subsection 198A(3).

Existing paragraph 198A(3)(a) provides that the Minister may declare, in writing, that a specified country:

• provides access, for persons seeking asylum, to effective procedures for assessing their need for protection

• provides protection for persons seeking asylum, pending determination of their refugee status

• provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country, and

• meets relevant human rights standards in providing that protection.

Notably, one factor that is not required is that a country be a signatory to the 1951 Convention relating to the Status of Refugees (read in conjunction with the 1967 Protocol relating to the Status of Refugees) (together, the 1951 Refugee Convention).13

A declaration made under section 198A of the Act does not appear to be a disallowable legislative instrument, and thus open to scrutiny and disallowance by Parliament (discussed in further detail below).14 This issue is expected to be conclusively determined by the High Court in coming weeks, as further outlined below.

12. See section 5 of the Migration Act 1958. 13. The Convention relating to the Status of Refugees (adopted 28 July1951, entered into force 22 April 1954) 189 UNTS 137; The Protocol relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267.

14. The question of whether declarations are legislative instruments was discussed In the matter of a proposed application by Sayed-Navab Shah & Ors against the Minister for Immigration and Citizenship and the Commonwealth of Australia [2011] HCATrans 195 (7 August 2011) but the issue was not resolved. Subsection 5(1) of the Legislative Instruments Act 2003 defines a legislative instrument as an instrument in writing that is of a legislative character and made in the exercise of a power delegated by the Parliament. The Legislative Instruments Handbook notes that ‘if an instrument merely applies criteria to a set of facts, it is likely to be administrative in character, for example an instrument that declares a place for a purpose stated in the enabling legislation’: Attorney-General’s Department (AGD), ‘Legislative Instruments Handbook’, December 2004, AGD website, viewed 17 August 2011,

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Previous declarations

Declarations have previously been made by the former Coalition Government with respect to Nauru and Papua New Guinea. A declaration was made with respect to Nauru on 2 October 2001 by then Minister for Immigration and Multicultural Affairs under the Coalition Government, Philip Ruddock MP. It was headed ‘Instrument of Declaration’ and simply read:

I hereby declare the Republic of Nauru as a declared country under section 198A(3) of the Migration Act 1958. I am satisfied that Nauru meets the criteria set out in section 198A(3) of the Migration Act 1958.

This declaration will be in effect until 1 October 2002. 15

The Department of Immigration and Citizenship (DIAC) has previously advised that this declaration was renewed 25 November 2002 and that a declaration was also made with respect to Papua New Guinea on 12 October 2001.16

Though a declaration must be in force with respect to a country before asylum seekers can be transferred to a foreign country, asylum seekers began arriving in Nauru on 19 September 2001. However, the former Minister’s declaration was not made until 2 October 2001—some 13 days after the first arrival.17 It must be borne in mind that the Bill that introduced section 198A into the Act was only introduced into Parliament on 18 September 2001 and did not receive Royal Assent until 27 September 2001.

Though the declarations made with respect to Nauru and Papua New Guinea appear not to be publicly available, DIAC has advised that in making the declarations, Philip Ruddock MP relied on a number of sources including:

• publicly available material, such as the US State Department reports on human rights

• assessment of the Government of Nauru’s commitment through the signing of the Statement of Principles (which was signed by the President of Nauru and Australia’s Minister for Defence on 10 September 2001)

• protection provided under the PNG and Nauru Constitutions, and

http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(CFD7369FCAE9B8F32F341DBE097801FF)~11LI+Handbook_v3_ 1_1204.pdf/$file/11LI+Handbook_v3_1_1204.pdf. 15. Sadiqi v Commonwealth of Australia (No 3) [2010] FCA 596 (11 June 2010) at [61]. 16. DIAC, ‘Answers to Questions on Notice, Senate Legal and Constitutional Affairs Committee, Inquiry into the provisions of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, op. cit., question 12, viewed 4 August 2011, http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/2004-07/migration_unauthorised_arrivals/submissions/sub118a.pdf 17. Ibid., question 14.

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• consultations with a number of governments and organisations, including the United Nations High Commissioner for Refugees (UNHCR).18

A declaration will remain in force for the period specified in it (if any) or until it is revoked under paragraph 198A(3)(b). In 2006 DIAC advised that the declarations made by the former Coalition Government with respect to Nauru and Papua New Guinea were ongoing and at that time there were no plans to review them.19 It is not known whether these declarations have subsequently been revoked by the current Government or whether they remain legally operational. If they have not been revoked, passage of this Bill will not retrospectively open them up to Parliamentary scrutiny and possible disallowance.

Background to the existing power

The Bill which introduced the power to transfer asylum seekers to a foreign country was part of a suite of Bills hurriedly pushed through Parliament shortly after the arrival of the Norwegian freighter MV Tampa.20 They were expressly ‘designed to ensure that Australia has control over who crosses our maritime borders’.21 This Bill was not referred to a Senate Committee for inquiry, and the Senate Scrutiny of Bills Committee did not raise any concerns with respect to proposed section 198A of the Bill.22 When introducing the Bill, former Minister Philip Ruddock MP asserted that:

...it is clearly up to Australia to determine who can cross our borders, who can stay in Australia, and under what conditions such people can remain. This bill therefore provides strengthened powers to deal with people who arrive unlawfully at one of the territories beyond the migration zone. These include powers to move the person to another country where their claims, if any, for refugee status may be dealt with.

23

According to the Bill’s Explanatory Memorandum, the amendments contained in the Bills were ‘made in response to the increasing threats to Australia’s sovereign right to determine who will

18. Ibid., question 13. 19. Ibid., question 15. 20. See further: D Spooner and N Hancock, Migration Amendment (Excision from Migration Zone) Consequential Provisions) Bill 2001, Bills digest, no. 70, 2001—02, Parliamentary Library, Canberra, 2001, viewed 4 August 2011,

http://parlinfo.aph.gov.au/parlInfo/download/legislation/billsdgs/ZW056/upload_binary/zw05613.pdf;fileType=appli cation%2Fpdf#search=%22r1414%22 21. The Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Bill 2001, Parlinfo Search Bills homepage is available at:

http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query%3DId%3A%22legislation%2Fbillhome%2Fr141 4%22 . P Ruddock, ‘Second reading speech: Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Bill 2001’, House of Representatives, Debates, 18 September 2001, p. 30871, viewed 1 August 2011, http://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansardr/2001-09-18/0081/hansard_frag.pdf;fileType=application%2Fpdf 22. Senate Standing Committee for the Scrutiny of Bills, Alert Digest, no. 13 of 2001, 20 September 2001. 23. Ibid.

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enter and remain in Australia. These threats have resulted from the growth of organised criminal gangs of people smugglers who bypass normal entry procedures’.24

The Malaysia Arrangement

The Fourth Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime (also known as the Bali Process), co-chaired by Australia and Indonesia, was held in Indonesia in March 2011. At the conference, participating Ministers agreed that ‘an inclusive but non-binding regional cooperation framework would provide a more effective way for interested parties to cooperate to reduce irregular movement through the region’.25 They also agreed that ‘asylum seekers should have access to consistent assessment processes, whether through a set of harmonised arrangements or through the possible establishment of regional assessment arrangements’.26

On 7 May 2011 the Prime Ministers of Australia and Malaysia jointly announced that they had agreed to enter into a bilateral agreement fully funded by Australia that would include 800 ‘irregular maritime arrivals’ who arrive in Australia being transferred to Malaysia for refugee status determination; while over four years, Australia would resettle 4000 recognised refugees already residing in Malaysia.27 The Prime Minister simultaneously announced that the Government had abandoned its previous plan to build a regional processing centre in East Timor and was investigating alternative options including Papua New Guinea.28

Nearly two months later, an Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement was signed to take effect from 26 July 2011.29 Clause 16 clarifies that the Arrangement is not legally binding on Participants but rather simply represents a record of both country’s ‘intentions and political commitments’.30 With respect to the factors mentioned in existing subsection 198A(3) of the Act, clause 8 of the Arrangement states that asylum seekers transferred to Malaysia will be treated ‘in accordance with human rights standards’. The first clause also provides that the arrangement is subject to the respective country’s relevant

24. Explanatory Memorandum, Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Bill 2001, p. 2. 25. Fourth Bali Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime, Indonesia, 29-30 March 2011, Co Chairs' Statement, viewed 4 August 2011,

www.baliprocess.net/files/110330_FINAL_Ministerial_Co-chairs%20statement%20BRMC%20IV.doc 26. Ibid.

27. J Gillard, ‘Transcript of joint press conference’, 7 May 2011, Canberra, viewed 4 August 2011, http://www.pm.gov.au/press-office/transcript-joint-press-conference-canberra-4 28. Ibid.

29. Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement, signed on 25 July 2011, available at: http://www.minister.immi.gov.au/media/media-releases/_pdf/20110725-arrangement-malaysia-aust.pdf. For a brief overview of the Arrangement see: H Spinks, ‘Australia-Malaysia asylum seeker transfer agreement’, Parliamentary Library, FlagPost entry, 27 July 2011, viewed 3 August 2011, http://parliamentflagpost.blogspot.com/2011/07/australia-malaysia-asylum-seeker.html

30. See clause 16 of the Arrangement.

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international law obligations in accordance with the applicable international law instruments or treaties to which the country is a party. To this end, it must be noted that Malaysia is not a signatory to such international treaties as the 1951 Refugee Convention, the International Covenant on Civil and Political Rights (ICCPR), nor the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).31

Clause 9 of the intergovernmental Arrangement provides that Australia will conduct a pre-screening assessment in accordance with international standards before a person is transferred to Malaysia. Upon arrival in Malaysia, asylum seekers will have the opportunity to have their asylum claims assessed by the United Nations High Commissioner for Refugees (UNHCR). Broader claims for international protection arising under various other human rights treaties (also known as ‘complementary protection’) will be considered by the Government of Australia.32 The Arrangement also expressly provides that Malaysia will respect the principle of non-refoulement.33 The principle of non-refoulement is the cornerstone of international refugee protection and is expressed unequivocally in article 33(1) of the 1951 Refugee Convention which prohibits a State from expelling or returning a refugee in any manner whatsoever to territories where his/her life or freedom would be threatened for a Convention reason. It has also been widely described as a principle of customary international law, which means it is considered binding on all States irrespective of assent.

Clause 12 provides that operations under the Arrangement will be carried out in accordance with the domestic laws, rules, regulations and national policies in force in each country. To this end, it is relevant to note that it is a criminal offence for non-Malaysian citizens to enter and live in Malaysia without a valid pass or permit under section 6(3) of Malaysia’s Immigration Act 1959/63. Upon conviction, this offence is punishable with a fine of not more than RM10 000 or imprisonment not exceeding five years or both and a person shall also be liable to whipping of not more than six strokes.34 However, section 55 contains a power that enables the Malaysian Minister to exempt any person or class of persons, from all or any of the provisions of the Act. Under clause 10 of the Arrangement, the Government of Malaysia has expressly agreed to ‘facilitate’ the lawful presence of asylum seekers and refugees transferred under the Arrangement while their protection claims are assessed and they await resettlement to a third country.

31. Malaysia acceded to the 1989 Convention on the Rights of the Child on 17 February 1995. However, Malaysia has expressed reservations with respect to articles 2 (non-discrimination), 7 (nationality), 14 (religion), 28 paragraph 1(a) (primary education) and 37 (liberty), of the Convention and declared that ‘those provisions shall be applicable only if they are in conformity with the Constitution, national laws and national policies of the Government of Malaysia’: see United Nations Treaty Collection available at: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en

32. See clauses 10 and 11 of the Arrangement. 33. See subclause 10(2) of the Arrangement. 34. Malaysian Immigration Department, ‘You Do Not Have A Valid Pass Or Permit To Stay In Malaysia’, viewed 30 May 2011, http://www.imi.gov.my/index.php/en/enforcement/tiada-paspermit-yg-sah; Malaysian Immigration

Department, ‘Offences Frequently Committed by Foreigners’, viewed 30 May 2011, http://www.imi.gov.my/index.php/en/entry-requirements/frequently-offences

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The implementing guidelines set out the roles and functions of the International Organization for Migration (IOM) and UNHCR with respect to such things as education, employment opportunities and health care.35 To a large extent, it will be ‘business as usual’ for these international organisations.36 They are not signatories to the bilateral Arrangement, though they will receive additional funding for ‘managing’ those persons transferred to Malaysia.

A Ministerial declaration pursuant to section 198A of the Migration Act was made with respect to Malaysia on 25 July 2011.37 This declaration was said to have been made on the basis of the Arrangement signed with Malaysia and advice from the Department of Foreign Affairs and Trade (DFAT). The Minister also relied upon consultations with the UNHCR which had concluded that the Arrangement and operational guidelines were ‘workable’.38

Any Parliamentary scrutiny of Malaysia as an appropriate extra-territorial processing destination for Australia would undoubtedly focus on the ability of that country to provide ‘protection’ to those transferred under the Arrangement, especially those awaiting resettlement for a potentially indefinite period of time. In this respect, it is relevant to note that according to the US State Department, during 2010 the UNHCR listed nearly 92 000 asylum seekers and refugees in Malaysia, approximately 92 per cent of whom were Burmese citizens and of whom more than 18 000 were children. Approximately 12 500 refugees were referred by UNHCR to third countries for resettlement with only about 8000 being accepted and resettled during 2010.39 During the period 1 July 2009 to 30 June 2010, Australia accepted only 340 refugees from Malaysia— all of whom were from Burma. During the period 1 July 2010 to 28 February 2011, Australia accepted only 178

35. Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement, signed 25 July 2011, Annex A Operational Guidelines to Support Transfers and Resettlement, DIAC website, viewed 4 August 2011, http://www.immi.gov.au/managing-australias-borders/border-security/_pdf/operational-guidelines-transfers-resettlement.pdf

36. For further information on existing operations of these international organisations see: UNHCR, ‘2011 UNHCR country operations profile - Malaysia’, UNHCR website, viewed 4 August 2011, http://www.unhcr.org/pages/49e4884c6.html; International Organization for Migration (IOM), ‘Malaysia’, IOM website, viewed 4 August 2011, http://www.iom.int/jahia/Jahia/malaysia

37. In the matter of a proposed application by Sayed-Navab Shah & Ors against the Minister for Immigration and Citizenship and the Commonwealth of Australia [2011] HCATrans 195 (7 August 2011), viewed 9 August 2011, http://www.austlii.edu.au/au/other/HCATrans/2011/195.html

38. Shah & Ors v Minister for Immigration and Citizenship & Anor [2011] HCATrans 196 (8 August 2011), viewed 10 August 2011, http://www.austlii.edu.au/au/other/HCATrans/2011/196.html. An affidavit by Minister Bowen setting out the basis upon which his decision to make the declaration was made was subsequently filed in the High Court but a copy was not, at time of writing, publicly available. See further: Shah v Minister for Immigration and Citizenship & Anor; Plaintiff 72 of 2011 to Plaintiff M105 of 2011 v Minister for Immigration and Citizenship & Anor; Plaintiff M106 of 2011 by his Litigation Guardian, Plaintiff M70/2011 v Minister for Immigration and Citizenship & Anor [2011] HCATrans 219 (15 August 2011), viewed 18 August 2011, http://www.austlii.edu.au/au/other/HCATrans/2011/219.html

39. US Department of State, ‘2010 Human Rights Report: Malaysia’, 8 April 2011, US Department of State website, viewed 1 August 2011, http://www.state.gov/g/drl/rls/hrrpt/2010/eap/154391.htm

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refugees from Malaysia— again, all of whom were Burmese.40 As previously noted, under the bilateral Arrangement, Australia has now agreed to resettle 4000 refugees from Malaysia over four years.

The UNHCR’s 2011 country profile notes that resettlement to a third country is the only viable option for the majority of refugees in Malaysia:

The main refugee groups in Malaysia originate from Afghanistan, Iraq, Myanmar and Somalia, where current conditions are not conducive to return. A sizeable group of refugees from Sri Lanka also live in Malaysia. In their case, however, improving conditions in Sri Lanka could present the potential for safe return. Local integration is not considered a viable option by the Malaysian authorities for the majority of refugees. For them, given the lack of prospects for return or local integration, resettlement remains the only option.

41

On the same day as announcing the signing of the Malaysia Arrangement, the Prime Minister of Australia also announced that the 500 or so asylum seekers that had been intercepted in Australian waters during the period 7 May to 25 July 2011 would not be transferred to Malaysia or any other foreign country as previously indicated.42 Rather, they would have their protection claims assessed in Australia.43 In making this announcement, the Prime Minister confirmed that discussions with Papua New Guinea were still ongoing.44

Parliamentary scrutiny

The Australian Greens emphasise that the decision to send asylum seekers to a foreign country should no longer only be left to the Minister of the day—rather it should be a decision that is open to debate in Parliament:

40. Senate Legal and Constitutional Affairs Legislation Committee, Answers to Questions on Notice, Immigration and Citizenship Portfolio, Additional Estimates 2010-11, 21 February 2011, Question no. 113, viewed 4 August 2011, http://www.aph.gov.au/senate/committee/legcon_ctte/estimates/add_1011/diac/113.pdf

41. UNHCR, ‘2011 UNHCR country operations profile-Malaysia’, UNHCR website, viewed 1 August 2011, http://www.unhcr.org/pages/49e4884c6.html 42. See B O’Connor, Border Protection Command intercepts vessel, media release, 14 May 2011, viewed 4 August 2011, http://www.ministerhomeaffairs.gov.au/www/ministers/oconnor.nsf/Page/MediaReleases_2011_SecondQuarter_1

4May2011-BorderProtectionCommandinterceptsvessel 43. Clause 4 of the Arrangement states that the only irregular arrivals intercepted after the date of the signing of the Arrangement can be transferred to Malaysia. 44. J Gillard, Transcript of press conference, Canberra, 25 July 2011, viewed 4 August 2011,

http://www.pm.gov.au/press-office/transcript-press-conference-canberra-15. These discussions were largely delayed due to the uncertainty following the illness of then Prime Minister, Michael Somare. On 11 August 2011 the country’s new Prime Minister, Peter O'Neill reportedly stated that his newly formed Cabinet had approved a proposal put forth by Prime Minister Gillard last week for the reopening of processing facilities on Manus Island. See further: J Kerin, ‘Manus Island deal approved’, Australian Financial Review, 12 August 2011, viewed 12 August 2011, http://parlinfo.aph.gov.au/parlInfo/download/media/pressclp/993450/upload_binary/993450.pdf;fileType=applicati on%2Fpdf

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This amendment to the Migration Act should not be considered controversial, but rather an essential part of our parliamentary process. Signing an agreement with another country to export people who have reached our shores seeking our protection, deserves proper parliamentary scrutiny and transparency, not simply an assurance from the Minister of the day that the country in question ticks all the boxes laid out by the Australian Government.

45

Under the LIA Act the Government is required to arrange for a copy of legislative instruments to be tabled before each House of Parliament within six sitting days of that House after being registered.46 The Government registered the ‘Instrument of Declaration of Malaysia’ on the Federal Register of Legislative Instruments on 18 August 2011. This legislative instrument is exempt from disallowance pursuant to subsection 44(2) of the LIA Act (table item 26).47 If a legislative instrument is not tabled in both Houses of the Parliament within six sitting days after registration, it ceases to have effect.

The Attorney-General’s Department Legislative Instruments Handbook notes the following with respect to Parliamentary scrutiny of disallowable legislative instruments:

Legislative instruments that are not exempt from disallowance, once tabled in the Senate, stand referred to the Senate Standing Committee on Regulations and Ordinances for scrutiny and recommendation as to any further parliamentary action including disallowance. In this regard, Senate Standing Order 23(2) provides:

“All regulations, Ordinances and other instruments made under the authority of Acts of the Parliament, which are subject to disallowance or disapproval by the Senate and which are of a legislative character, shall stand referred to the Committee for consideration and, if necessary, report”.

The Committee scrutinises each instrument to ensure that:

- it is in accordance with the enabling legislation

- it does not trespass unduly on personal rights and liberties

- it does not unduly make the rights and liberties of citizens dependent upon administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal

- it does not contain matter more appropriate for primary legislation. 48

The LIA Act sets out the circumstances in which either House of the Parliament may disallow a non-exempt registered legislative instrument that has been tabled.49 If notice of a motion to

45. Explanatory Memorandum, Migration Amendment (Declared Countries) Bill (No. 2) 2011, p. 1. 46. Subsection 38(1) of the Legislative Instruments Act 2003. 47. ‘Instrument of Declaration of Malaysia as a Declared Country under Subsection 198A(3) of the Migration Act 1958’, registered on 18 August 2011, ComLaw website, viewed 19 August 2011,

http://www.comlaw.gov.au/Details/F2011L01685 48. Attorney-General’s Department (AGD), ‘Legislative Instruments Handbook’, op. cit., pp. 55-56.

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disallow is given within 15 sitting days of that House after a copy of the declaration is laid before that House, and within 15 sitting days after the giving of that notice the House passes a resolution in pursuance of the motion, then the declaration (or a provision thereof) ceases to have effect immediately.50

In advocating for change, the Australian Greens have been mindful to emphasise that ‘this Bill is not about preventing the Government from engaging in international affairs, or overriding any attempt to negotiate a genuine regional protection framework, but rather acknowledges that any proposal of this nature is given the attention and debate it deserves’.51

Following the signing of the Malaysia Arrangement concerning the transfer of asylum seekers and it’s public release, the Australian Greens called for the Government to table the Malaysia deal for debate in Parliament reportedly saying that ‘if they’re serious about standing by this claim that people will be protected...then put it to the Parliament and let’s scrutinise it in a transparent and public manner’.52

However, the Australian Financial Review recently reported that the Australian Greens would not move to block the Government’s asylum seeker deal with Malaysia, despite saying it fails to protect the vulnerable. It reported that Senator Hanson-Young said that ‘the Greens would not engage in ‘horse-trading’, even though they held the balance of power in the Senate’. She reportedly explained that ‘I don’t think that’s a responsible way of ensuring stability in Parliament or a responsible way of behaving as a parliamentarian’.53

Instead, as a result of a motion put forth by the Greens in the Senate on 17 August 2011, the Malaysia Arrangement has been referred to the Senate Legal and Constitutional Affairs Committee for inquiry and report by 22 September 2011.54 The Committee will inquire into (amongst other things) the consistency of the Arrangement with Australia’s international obligations, the extent to which it complies with Australian human rights standards, it’s practical implementation, the

49. See section 42 of the Legislative Instruments Act 2003. 50. Subsection 42(1) of the Legislative Instruments Act 2003. Section 45 provides that if a legislative instrument or provision of an instrument ceases to operate at a particular time because it has been disallowed, the effect is the same as if the instrument or provision had been repealed with effect from that time: Attorney-General’s Department

(AGD), ‘Legislative Instruments Handbook’, op. cit., p. 57. 51. Explanatory Memorandum, op. cit., p. 1. 52. C Johnson, ‘Put Malaysia deal on the table for debate, Greens urge Gillard’, Canberra Times, 27 July 2011, viewed 29

July 2011, http://parlinfo.aph.gov.au/parlInfo/download/media/pressclp/953367/upload_binary/953367.pdf;fileType=applicati on%2Fpdf 53. Australian Associated Press, ‘Greens won’t horse-trade on Malaysia agreement’, Australian Financial Review, 27 July 2011, viewed 29 July 2011, http://parlinfo.aph.gov.au/parlInfo/download/media/pressclp/953204/upload_binary/953204.pdf;fileType=applicati on%2Fpdf#search=%22Greens%20%20%20|%20EBSCO,AAP%22 54. S Hanson-Young, ‘Committees’, Senate, Debates, 17 August 2011, p. 59, viewed 18 August 2011, http://www.aph.gov.au/hansard/senate/dailys/ds170811.pdf;S Hanson-Young, Greens Push For Inquiry Into Malaysia Deal, media release, 29 July 2011.

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adequacy of services and support provided to transferees, and other policy alternatives. The Committee does not have the power to overturn the Minister’s declaration. Moreover, this process may be somewhat overshadowed by proceedings recently commenced in the High Court, as further outlined below.

Judicial review

A declaration can be reviewed by a court for jurisdictional error.55 Put simply, jurisdictional error is a fundamental error of law in the making of an administrative decision which renders the decision void or a complete nullity.56 Declarations made under subsection 198A(3) have previously been the subject of some judicial commentary. For instance, a single judge of the Federal Court has previously opined that the criteria in subparagraph 198A(3)(a), are iconically the province of the Executive:

... As with Eremin, the criteria contained in s198A(3) are not criteria which admit of answers by reference to indisputable fact... Debates even about what evidence may be relevant in order to prove the existence or absence of such criteria would be substantial. It is improbable that Parliament would have intended that Australian courts should without clear legislative imprimatur make judgements with public effect about whether other countries meet relevant human rights standards. The criteria in s 198A(3)(a), in my view, are iconically the province of the Executive...The broad ranging and subjective nature of the considerations involved in the criteria and the fact that opinions for and against could be so varied make it clear that the criteria do not set out straightforward objective standards...

57

However, section 198A has not until very recently been the subject of judicial review in the High Court. Proceedings were commenced in the High Court on Sunday 7 August 2011 to seek an interim injunction restraining the removal of the first cohort of asylum seekers scheduled to be flown to Malaysia from Christmas Island the following morning. All were male adults from Afghanistan and Pakistan and all were to be the first group of persons transferred to Malaysia under the bilateral Arrangement signed on 25 July 2011. Justice Hayne granted the plaintiffs interlocutory relief on the basis that there was a sufficiently serious question to be tried about the proper construction of section 198A. The full bench of the High Court is expected to convene in the week of 22 August 2011 to amongst other things, consider:

... whether, on its proper construction, section 198A(3) of the Migration Act permits declaration of a country only if the country in question is bound either as a matter of international obligation or as a matter of domestic law, or both as a matter of international obligation and as a matter of

55. DIAC, ‘Answers to Questions on notice, Senate Legal and Constitutional Affairs Committee, Inquiry into the provisions of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, 26 May 2006, question 16, viewed 1 August 2011, http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/2004-07/migration_unauthorised_arrivals/submissions/sub118a.pdf

56. The High Court has stated that ‘jurisdictional error may arise where a decision-maker fails to discharge ‘imperative duties’ or to observe ‘inviolable limitations or restraints’ found in the Act’: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12.

57. Sadiqi v Commonwealth of Australia (No 2) [2009] FCA 1117 (1 October 2009) as per McKerracher J at 223-225, viewed 8 August 2011, http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2009/1117.html

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domestic law, to provide the access and several protections referred to in section 198A(3)(a)(i) to (iv). [Emphasis added]. 58

The outcome of this case, which is expected to be concluded before the end of August, will (amongst other things) not only confirm the legality and status of declarations made under section 198A of the Migration Act, it will also clarify the legal parameters for any future declarations that may be made with respect to other countries.

Concluding comments

Though passage of the Greens’ Bill is dependent upon the Coalition, it is not known whether they will support it. On 11 May 2011 the Greens secured passage of a notice of motion in the Senate condemning ‘the Gillard Government’s deal with Malaysia that would see 800 asylum seekers intercepted in Australian waters and sent to Malaysia; and calls on the Government to immediately abandon this proposal’. The motion narrowly secured passage in the House of Representatives on 16 June 2011 with the support of the Coalition and two independent MPs— Bob Katter and Andrew Wilkie.

Though the Coalition is critical of the Government’s so called ‘Malaysia solution’, they have consistently urged the Government to reinstate the border protection policies of former Prime Minister John Howard, including extra-territorial processing on Nauru.59 Their support for this Bill may lead to the disallowance of the instrument which makes the transfer of asylum seekers to other regional neighbours possible. However, if the Coalition was to subsequently form Government, they too might find that Parliament may hinder the making of a future declaration with respect to Nauru (or elsewhere), provided of course the previous declaration has been revoked.

If the High Court upholds the legal basis upon which the Malaysia declaration was made, it will not be retrospectively open to Parliamentary scrutiny and possible disallowance following passage of this Bill. To this end, it appears the Greens may have inadvertently ‘missed the boat’ so to speak with respect to Malaysia. Similarly, passage of this Bill will not alter any future extra-territorial processing arrangement that may be established in any other existing ‘declared’ country. However, that is not to understate the significance of this Bill. If passed, it would not only facilitate parliamentary debate on the appropriateness of extra-territorial processing in a particular country, it would also enable Parliament as a whole to oppose the making of a declaration with respect to any future ‘undeclared’ country—a matter which non-government parties and independents alike would undoubtedly have an interest. However, this may have broader implications for Australia’s bilateral relations in the region.

58. Shah & Ors v Minister for Immigration and Citizenship & Anor [2011] HCATrans 196 (8 August 2011). 59. T Abbott, Joint doorstop interview, transcript, Rockhampton, 26 July 2011, viewed 4 August 2011, http://www.tonyabbott.com.au/LatestNews/InterviewTranscripts/tabid/85/articleType/ArticleView/articleId/8225/J oint-Doorstop-Interview-with-Mr-Ken-ODowd-MHR-and-Mr-Graeme-Acton-Rockhampton.aspx

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Annex: s198A Migration Act 1958

Offshore entry person may be taken to a declared country

(1) An officer may take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3).

(2) The power under subsection (1) includes the power to do any of the following things within or outside Australia:

(a) place the person on a vehicle or vessel;

(b) restrain the person on a vehicle or vessel;

(c) remove the person from a vehicle or vessel;

(d) use such force as is necessary and reasonable.

(3) The Minister may:

(a) declare in writing that a specified country:

(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and

(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and

(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and

(iv) meets relevant human rights standards in providing that protection; and

(b) in writing, revoke a declaration made under paragraph (a).

(4) An offshore entry person who is being dealt with under this section is taken not to be in immigration detention (as defined in subsection 5(1)).

(5) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.

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