Title Migration Legislation Amendment (Regional Processing Cohort) Bill 2016
Database Bills Digests
Date 14-03-2017
Source Bills Digest Service
Parl No. 45
Author KARLSEN, Elibritt
Citation Id 5154599
Key item Yes
Major subject Immigration and Border Protection portfolio
Immigration detention centres
Ministerial discretion
Refugees
Regional processing
Visas
Minor subject Bills
Legislative amendments
Legislative instruments
Pages 18p., bibl.
Volume no. 072 (2016-17)
System Id legislation/billsdgs/5154599


Migration Legislation Amendment (Regional Processing Cohort) Bill 2016

ISSN 1328-8091

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BILLS DIGEST NO. 72, 2016–17 14 MARCH 2017

Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 Elibritt Karlsen Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 2

Background ......................................................................... 2

Why is this Bill necessary? ....................................................... 3

Offshore processing in Nauru and Papua New Guinea ........... 3

Regional settlement ................................................................ 5

US Refugee Transfer Agreement ............................................. 7

Committee consideration .................................................... 8

Senate Legal and Constitutional Affairs Legislation Committee ............................................................................... 8

Senate Standing Committee for the Scrutiny of Bills .............. 9

Policy position of non-government parties/independents ..... 9

Position of major interest groups ....................................... 11

Financial implications ........................................................ 12

Compatibility with International Human Rights .................. 12

Parliamentary Joint Committee on Human Rights ................ 14

Key issues and provisions................................................... 14

Statutory ‘bar’ for UMAs ....................................................... 14

Statutory ‘bar’ for ‘transitory persons’ .................................. 16

Exemption for regional processing cohort ............................ 16

Commencement .................................................................... 16

Date introduced: 8 November 2016

House: House of Representatives

Portfolio: Immigration and Border Protection

Commencement: The day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

March 2017.

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Purpose of the Bill The purpose of the Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 (the Bill) is to amend the Migration Act 1958 (the Act) and the Migration Regulations 1994 (the Migration Regulations) to:

• indefinitely preclude ‘unauthorised maritime arrivals’ (UMAs) including ‘transitory persons’ , who were at least 18 years of age upon transfer and were taken to a regional processing country after 19 July 2013 (to be known collectively in the Act as a ‘member of the designated regional processing cohort’) from making a valid application for any Australian visa

• insert a discretionary and non-compellable personal power for the Minister to permit a member of the cohort, or a class of persons within the cohort, to make a valid application for a visa if the Minister thinks it is in the public interest to do so and

• indefinitely preclude a member of the cohort from being deemed to have been granted a Special Purpose visa under section 33 of the Act, or being deemed to have applied for particular visas under the Migration Regulations (with an accompanying power for the Minister to waive such exemptions).

Background These proposed legislative amendments were first mentioned in the media in September 2016:

Back home, Mr Dutton has ordered his department to draw up options to toughen the law and ensure he can meet his commitment that asylum seekers who arrive by boat will never enter Australia.

“People on Manus and Nauru will never be settled in Australia,” he said. “Regardless of what third country people end up in, the Government will never allow those people to settle in Australia.”

…

All asylum seekers on Nauru and Manus Island will be added to a list of banned migrants so they are denied visas. They would trigger an alert if they arrived in Australia in the future, even if travelling on a passport from a new country. 1

On Sunday 30 October 2016 the Prime Minister, Malcom Turnbull, and the Minister for Immigration and Border Protection, Peter Dutton, held a joint press conference confirming the Government’s intention to introduce legislation to prevent UMAs who were taken to a regional processing country since 19 July 2013, from making a valid application for an Australian visa:

That is why today, I'm announcing that the Government will introduce legislation in the next parliamentary sitting week to amend the Migration Act to prevent irregular maritime arrivals taken to a regional processing country, from making a valid application for an Australian visa.

The Bill will apply to all taken to a regional processing country since the 19th July 2013. The reason for that date is that is the date when Labor Prime Minister Kevin Rudd declared and I quote, “As of today, asylum seekers who come here by boat without a visa will never be settled in Australia.” Now this Bill will reflect the Government's long standing position and as we understand it, the bipartisan position initially set out by Mr Rudd and since then confirmed by Mr Shorten. And that position is, and I repeat, that irregular maritime arrivals who have been sent to a regional processing country, that is Papua New Guinea and Nauru at the present time, will never be settled permanently in Australia.

This will send the strongest possible signal to the people smugglers. It will send the strongest possible signal to those who are seeking to persuade persons currently on Nauru and in Manus that the Australian Government will change its policy and allow them to settle here. It is critically important that we send the clearest message. We have

1. S Scott, ‘New law to slam door on refugees’, Courier Mail, 20 September 2016, p. 1.

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one of the most generous humanitarian programs in the world. But the only reason we can do it, the only reason it has the public acceptance that it does, is because we are in command of our borders. 2

The Bill was subsequently introduced into the House of Representatives on 8 November 2016.

Why is this Bill necessary? The Government has put forth a number of reasons why this Bill is needed. These include:

• to reinforce the Government’s policy that UMAs will never be permanently settled in Australia

• to send a strong message to people smugglers, advocates in Australia and UMAs in Nauru and PNG that UMAs will never be permanently settled in Australia

• to prevent future spouse visa applications being lodged by UMAs and their Australian citizen or permanent resident partner (of which there would undeniably be very few, if any)

• to prevent people who have been brought to Australia for medical assistance from claiming protection and engaging the legal process which may prevent them being returned in the future (though such persons are currently prevented from lodging a valid visa application under section 46B of the Act)

• to prevent UMAs arriving on a temporary visa from a country that does not accept involuntary returns (such as Iran) which would prevent the Government from returning such persons in the future (though the standard processing of such applications would necessarily involve such a risk assessment)

• to prevent non-citizens undermining the Australian Government’s return and reintegration assistance packages

• to further discourage persons from attempting hazardous boat journeys and encourage them to pursue regular migration pathways instead.3

There may be some merit to the argument that refugees transferred to other countries for settlement may subsequently try to circumvent Government policy by seeking to enter Australia. However, it is arguable that to do so through legitimate channels, like any other prospective migrants seeking to enter Australia (on a temporary or permanent basis) is distinguishable from the Government’s policy objective that persons found to be refugees in a regional processing country will not be transferred to (and settled in) Australia (as was the case under the so-called ‘Pacific Solution’).

In addition, it remains unclear how the Government is proposing to enforce the indefinite prohibition on applications, especially in circumstances where persons may subsequently change their names and identities.

Offshore processing in Nauru and Papua New Guinea Offshore processing of asylum seekers in Nauru and Papua New Guinea (PNG) was a feature of the Howard Government’s asylum policy (the ‘Pacific Solution’) which had begun in 2001 in response to rising numbers of asylum seekers arriving by boat. It ceased in mid-2008 under the Rudd Government which considered it to be a ‘cynical, costly and ultimately unsuccessful exercise’.4 A total of 1,637 people were detained in the Nauru and Manus facilities, of whom 1,153 (or 70 per cent) were ultimately taken from the processing centres to Australia or other countries (around 61 per cent (705 people) of the people settled, were settled in Australia).5

However, by July 2010, then Prime Minister Julia Gillard announced6 in her first major policy speech that the Government had begun having discussions with regional neighbours about the possibility of establishing a

2. M Turnbull (Prime Minister) and P Dutton (Minister for Immigration and Border Protection), Joint press conference with the Minister for Immigration and Border Protection: Sydney, transcript, 30 October 2016. 3. Ibid.; P Dutton, Press conference, Sydney, Migration Legislation Amendment (Regional Processing Cohort) Bill, transcript, 31 October 2016; P Dutton, ‘Second reading speech: Migration Legislation Amendment (Regional Processing Cohort) Bill 2016’, House of Representatives,

Debates, 8 November 2016, p. 3095; Statement of Compatibility with Human Rights in Explanatory Memorandum, Migration Legislation Amendment (Regional Processing Cohort) Bill 2016, pp. 21–22. 4. C Evans (Minister for Immigration and Citizenship), Last refugees leave Nauru, media release, 8 February 2008. 5. Ibid.

6. J Gillard (Prime Minister), Moving Australia forward: Lowy Institute, Sydney, transcript, 6 July 2010.

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regional processing centre for the purpose of receiving and processing irregular entrants to the region. Prime Minister Gillard identified a number of reasons why the processing of asylum seekers in other countries was again considered necessary:

• to remove the financial incentive for the people smugglers to send boats to Australia

• to ensure that those arriving by boat do not get an unfair advantage over others

• to secure Australia’s borders and ensure fair and orderly migration

• to prevent people embarking on a voyage across dangerous seas with the ever present risk of death

• to ensure that everyone is subject to a consistent, fair assessment process

• to improve the protection outcomes for refugees by establishing a framework for orderly migration within the region

• to prevent overcrowding in detention facilities in Australia

• to respond to increased numbers of unauthorised people movements in the region and around the world and

• to acknowledge that irregular migration is a global challenge that can only be tackled by nations working together.

However, it took another two years for Prime Minister Gillard’s Government to secure the statutory and practical arrangements for asylum seekers to be sent to third countries. The Expert Panel on Asylum Seekers was appointed by then Prime Minster Gillard in 2012, and tasked with recommending a way forward on asylum seeker policy following the inability of the Government to secure passage of legislation through Parliament to proceed with its planned Malaysian transfer arrangement.7 The Report of the Expert Panel recommended that capacity be established in Nauru and PNG to process the claims of irregular maritime arrivals and that the 2011 Malaysia Arrangement be built on further.8 These recommendations were part of a suite of recommendations designed to improve cooperation with regional neighbours on asylum seeker issues, and were made in the context of an acknowledgement that building a meaningful, long-term regional cooperation framework would take time. The establishment of processing centres in Nauru and PNG was considered by the Expert Panel to be a necessary short-term response to an immediate problem, designed to act as a ‘circuit-breaker’ while more long-term solutions were found.

On 29 August 2012 the Australian Government signed a Memorandum of Understanding (MOU) with the Government of Nauru and on 8 September 2012 the Government signed an updated MOU with the PNG Government.9 Under these arrangements, any asylum seeker who arrived in Australia by boat could be transferred to either Nauru or PNG for processing. The first transfer of asylum seekers to Nauru occurred on 14 September 2012 and to PNG on 21 November 2012.10

In June 2013 Kevin Rudd was reinstated as Prime Minister and on 19 July 2013, in the lead up to the 2013 federal election, he announced even tougher measures whereby all, not just some, asylum seekers who arrived by boat would be transferred to PNG for processing and, if found to be refugees, would be settled there or elsewhere in

7. Parliament of Australia, ‘Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012 homepage’, Australian Parliament website; J Gillard (Prime Minister), Joint statement with the Prime Minister of Malaysia, media release, 7 May 2011. 8. Expert Panel on Asylum Seekers (Australia), Report of the Expert Panel on Asylum Seekers, Department of Prime Minister and Cabinet, Canberra, August 2012, pp. 12–13. 9. C Bowen (Minister for Immigration and Citizenship) and J Gillard (Prime Minister), Australia signs memorandum of understanding with Nauru,

joint media release, 29 August 2012; and J Gillard (Prime Minister) and C Bowen (Minister for Immigration and Citizenship), Australia and Papua New Guinea sign updated memorandum of understanding, joint media release, 8 September 2012. 10. C Bowen (Minister for Immigration and Citizenship), First transfer to Papua New Guinea, media release, 21 November 2012; C Bowen (Minister for Immigration and Citizenship), Nauru designated for regional processing, media release, 10 September 2012; and C Bowen

(Minister for Immigration and Citizenship), Press conference, Sydney: Asylum seeker transfer to Nauru, Expert Panel recommendations, ‘no advantage’ principle, Tony Abbott, transcript, 14 September 2012.

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the region. The Prime Minister made it clear that they would ‘never’ be settled in Australia.11 A similar agreement was made with the Government of Nauru in August 2013.12

Though the Coalition’s 2013 election policy envisaged refugees processed offshore being settled in Australia but only as ‘a last resort’ on temporary protection visas,13 upon forming Government in 2013, the Coalition Government continued with the policy of regional processing of asylum seekers in Nauru and PNG, and remained committed to the former Government’s policy of not allowing any refugees processed in Nauru or PNG to settle in Australia. The Coalition argues that settling such refugees in Australia would act as a ‘pull factor’ to other asylum seekers in the region, fuel the people-smuggling trade, and risk the further loss of lives at sea.14

Responsibility for processing refugee claims in Nauru and PNG rests with the Governments of those countries, not Australia, though Australian Government officials have played an oversight role. The United Nations High Commissioner for Refugees (UNHCR) is also not participating in processing applications for refugee status, and has said that it does not consider there is any role for UNHCR to play in the arrangements.15

Since its recommencement, the offshore processing of asylum seekers in Nauru and PNG has proved contentious for a number of reasons, including:

• the financial cost

• ongoing concerns about the safety and security of asylum seekers and refugees in the Processing Centres and in the broader community

• ongoing concerns about the desirability and sustainability of involuntary settlement

• prolonged uncertainty and punitive living conditions which are said to be causing or exacerbating psychological harm and

• inadequate independent oversight and transparency.16

In May 2016 UNHCR issued a media release stating that arrangements in both countries were ‘completely untenable’ and called for refugees and asylum-seekers to be immediately moved to humane conditions with adequate support and services.17

Regional settlement When then Prime Minster Kevin Rudd announced the signing of the ‘Regional Resettlement Arrangement’ with PNG on 19 July 2013, he emphasised that the context for negotiating such an agreement was a commitment that no asylum seekers who arrived in Australia by boat would ever be settled in Australia. PNG and Nauru thus became sites not only of processing, but also of settlement. This is fundamentally different from the regional processing arrangements that were in place under the Howard Government—all those processed in PNG and Nauru during the Howard era, who were found to be refugees, were subsequently settled in other countries, the majority in Australia and New Zealand.18

The current agreements with PNG and Nauru include provision for people who are found to be refugees to be granted visas to reside in those countries, although the arrangements are slightly different in each country. PNG

11. K Rudd (Prime Minister), T Burke (Minister for Immigration) and M Dreyfus (Attorney-General), Australia and Papua New Guinea regional settlement arrangement, joint media release, 19 July 2013; and Department of Immigration and Citizenship (DIAC), ‘Regional resettlement arrangements’, DIAC website.

12. K Rudd (Prime Minister) and T Burke (Minister for Immigration), New arrangement with Nauru Government, joint media release, 3 August 2013. 13. Liberal Party of Australia and the Nationals, The Coalition’s Operation Sovereign Borders policy, Coalition policy document, Election 2013, July 2013, p 7. 14. See, for example: S Morrison (Minister for Immigration and Border Protection), Operation Sovereign Borders update, transcript,

30 September 2013; and M Turnbull (Prime Minister) and P Dutton (Minister for Immigration and Border Protection), Joint press conference with the Minister for Immigration and Border Protection: Sydney, op. cit. 15. A Kirk, ‘UN to play no part in Nauru, Manus Island centres’, ABC News, 24 August 2012. 16. E Karlsen, Australia’s offshore processing of asylum seekers in Nauru and PNG: a quick guide to statistics and resources, Research paper series 2015–16, Parliamentary Library, Canberra, 19 December 2016. 17. UNHCR, UNHCR calls for immediate movement of refugees and asylum-seekers to humane conditions, media release, 2 May 2016. 18. J Phillips, The “Pacific Solution” revisited: a statistical guide to the asylum seeker caseloads on Nauru and Manus Island, Background note, Parliamentary Library, Canberra, 4 September 2012.

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finalised its national refugee policy in June 2015.19 Those who are found to be refugees and offered settlement in PNG are moved from the Manus Island processing centre to a purpose-built transit centre in Lorengau township (though capacity is limited). They must undertake an ‘acculturation’ course, and are then offered case management services to assist them in finding work and housing. They are not settled in Manus Island, but are expected to move to large towns, such as the capital Port Moresby. Refugees are permitted to apply for citizenship after eight years, and may apply to bring their families to join them in PNG.20

Progress in settling refugees has been slow, and did not begin until late in 2015.21 The media has reported that many refugees are refusing to leave Manus Island and take up the offer of settlement in PNG.22 As at August 2016, less than twenty refugees had settled into PNG society according to Minister Dutton.23

The Prime Minister of PNG, Peter O’Neill, during a visit to Australia in early 2016, warned that PNG does not have the resources to settle all the people in the Manus Island Centre, and indicated that PNG would be reassessing the number of people it could settle under the current agreement.24 The agreement reached with PNG in 2013 stated that asylum seekers found to be refugees would be ‘… resettled in Papua New Guinea and any other participating regional, including Pacific Island, state’.25 In an address to the National Press Club, Prime Minister O’Neill stated that ‘Manus Island refugee centre is a problem that I inherited from the previous government … it has done a lot more damage for Papua New Guinea than anything else’.26

On 26 April 2016, the PNG Supreme Court unanimously found the detention of refugees and asylum seekers in the Australian-funded processing centre on Manus Island to be unconstitutional.27 The following day the media reported that Prime Minister O’Neill had announced that the Manus Island centre would close, and Australia must make new arrangements for the 850 asylum seeker and refugee men held there.28 The media subsequently began reporting that asylum seekers and refugees are no longer in detention on Manus Island, according to a Papua New Guinea immigration official who has said they have freedom to leave the centre.29

The 2013 MOU between Australia and Nauru provides for the settlement of people found to be refugees in Nauru. Under the terms of that MOU:

12. The Republic of Nauru undertakes to enable Transferees who it determines are in need of international protection to settle in Nauru, subject to agreement between Participants on arrangements and numbers. This agreement between Participants on arrangements and numbers will be subject to review on a 12 monthly basis through the Australia-Nauru Ministerial Forum.

13. The Commonwealth of Australia will assist the Republic of Nauru to settle in a third safe country all Transferees who the Republic of Nauru determines are in need of international protection, other than those who are permitted to settle in Nauru pursuant to Clause 12. 30

However, when Nauru began offering settlement to people who had been assessed as refugees in 2014, it emerged that such people would not be offered permanent settlement, but would instead be issued with a Temporary Settlement Visa, valid for five years.31 While it is clear that the Nauruan Government was expecting

19. Government of Papua New Guinea, National refugee policy, Government of Papua New Guinea, [Port Moresby], June 2015. 20. Ibid.

21. P Dutton (Minister for Immigration and Border Protection), PNG delivers on refugee settlement, media release, 22 October 2015. 22. B Doherty, ‘Hundreds of refugees are refusing to settle in PNG's "land of opportunities"’, The Guardian, 24 October 2015; M Gordon, ‘Refugee pleads to be sent “back to Manus” ’, The Sydney Morning Herald, 24 February 2016, p. 6. 23. M Brissenden, ‘Return home or settle in PNG the only options available to Manus detainees: Dutton’, ABC AM, transcript, Australian

Broadcasting Corporation (ABC), 18 August 2016. 24. P O’Neill (Prime Minister of PNG), Westpac address at the National Press Club, Canberra, transcript, 3 March 2016. 25. K Rudd and P O’Neill, Regional Resettlement Arrangement between Australia and Papua New Guinea, 20 July 2013. 26. O’Neill, Westpac address at the National Press Club, Canberra, op. cit. 27. Namah v Pato [2016] PGSC 13. 28. H Davidson and B Doherty, ‘Manus Island detention centre to close, Papua New Guinea prime minister says’, The Guardian, (online edition),

27 April 2016. 29. H Davidson, ‘Manus Island asylum seekers no longer in detention, says Papua New Guinea’, The Guardian, (online edition), 12 May 2016. 30. B Waqa and K Rudd, Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, related to the

transfer to and assessment of persons in Nauru, and related issues, 3 August 2013. 31. Republic of Nauru, Department of Justice and Border Control, ‘The leaked Nauru resettlement document—in full’, Guardian Australia website, 28 April 2014.

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that Australia would make arrangements for the permanent settlement of refugees in a third country, 32 there is now a ten-year visa arrangement and the Australian Government is in the process of negotiating a twenty-year visa for some of the people processed there.33 According to the Nauruan Government, refugees who are offered temporary settlement in Nauru are provided with settlement support, including a case worker to assist with accessing housing, health and welfare services, education, English language tuition, cultural orientation and employment.34 However, it has been reported that settled refugees have not received the assistance promised to them, and have struggled to integrate into Nauruan society.35 Nonetheless, the Minister has confirmed that there are currently over 300 people who are working in jobs, 30 of whom have started small businesses.36

When the arrangements were signed with PNG and Nauru in 2013, the Australian Government indicated that these arrangements represented the beginnings of a broader regional framework, and it would be seeking to negotiate further settlement arrangements with other countries in the region.37 In September 2014, Australia signed a settlement agreement with Cambodia.38 Under this arrangement, Cambodia agreed to accept for permanent voluntary settlement people who have been processed in Nauru, and been found to be refugees. The agreement provides that Cambodia decides on the number and timing of the settlement, and Australia bears the direct costs of settlement. On 4 June 2015, the first four refugees were voluntarily transferred from Nauru to Cambodia.39 However, by May 2016, the media reported that only one refugee remained in Cambodia.40

While the Government has confirmed that it continues to negotiate for other third country settlement options, it has reportedly declined to accept the offer made by the New Zealand Government to accept 150 refugees a year from PNG and Nauru, negotiated by the Gillard Government in 2013.41

US Refugee Transfer Agreement On Sunday 13 November 2016, two weeks after the Government announced that it was proposing to introduce the Bill, the Prime Minister and Minister Dutton announced that the Government had secured an agreement with the United States of America (US) for an unspecified number of refugees to be transferred and settled in the US. Priority would be given to the most vulnerable (namely women, children and families) and the Government’s policy remains that the arrangement ‘will not under any circumstance be available to any future illegal maritime arrivals (IMAs) to Australia’.42 The Government’s policy continues to be that ‘settlement in Australia will never be an option for those found to refugees in regional processing centres nor for anyone who attempts to travel to Australia illegally by boat in the future’.43

Under the agreement, US authorities will conduct their own refugee status assessments and ultimately determine who the US will accept (subject also to the successful completion of health and security checks). The Government anticipates that this process will be gradual.44 The Government also announced that it has reinforced its maritime assets in the waters to Australia’s north and increased its surveillance capabilities ‘to ensure that any boats that attempt to come to Australia will be detected and turned back’.45

32. Ibid.

33. Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 [Provisions], transcript, The Senate, Canberra, 15 November 2016. 34. Republic of Nauru, Department of Justice and Border Control, ‘The leaked Nauru resettlement document—in full’, op. cit. 35. B Doherty, ‘Resettled refugees forced "to live like animals in the jungle"’, The Sydney Morning Herald, 25 August 2014, p. 10. 36. Turnbull and Dutton, Joint press conference with the Minister for Immigration and Border Protection: Sydney, op. cit. 37. Rudd and Burke, New arrangement with Nauru Government, op. cit. 38. S Morrison (Minister for Immigration and Border Protection), Refugee settlement arrangement, joint press statement, media release,

26 September 2014. 39. Department of Immigration and Border Protection (DIBP), Operation Sovereign Borders monthly update: June 2015, media release, 10 July 2015. 40. L Murdoch, ‘Refugee leaves Cambodia after being deeply unhappy with move from Nauru', Sydney Morning Herald, 28 May 2016. 41. B Doherty and H Davidson, ‘New Zealand's offer to resettle 150 offshore refugees a year never taken up’, The Guardian, 11 January 2016;

H Davidson, ‘Turnbull urged to allow New Zealand to resettle refugees held on Nauru’, The Guardian, 19 January 2016. 42. M Turnbull (Prime Minister) and P Dutton (Minister for Immigration and Border Protection), Refugee resettlement from regional processing centres, joint media release, 13 November 2016. 43. Ibid.

44. Ibid.

45. Ibid.

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Minister Dutton has confirmed that the US Agreement is not contingent on the passage of this Bill through Parliament.46

On the same day as the Government announced the agreement, UNHCR issued a media release advising that while it was not a party to the agreement, it welcomed the announcement in light of the fact that the Government’s policy had ‘failed refugees and asylum seekers’ and ‘caused immense harm to vulnerable people’ since 2013:

The arrangement reflects a much-needed, long-term solution for some refugees who have been held in Nauru and Papua New Guinea for over three years and who remain in a precarious situation. It is on this basis that UNHCR will endorse referrals made from Australia to the United States, on a one-off, good offices, humanitarian basis, in light of the acute humanitarian situation. The full details of the agreement are not yet known, and UNHCR is not a party to it. UNHCR remains gravely concerned about the fate of all vulnerable individuals in Papua New Guinea and Nauru. Appropriate solutions must be found for all of them. UNHCR’s endorsement of these referrals under the humanitarian imperative does not alter Australia’s obligations under international law, including the right to seek asylum irrespective of the mode of arrival. Australia must be part of the solution for refugees and asylum seekers who have sought its protection, and particularly those who have family ties to Australia or special needs. The current policy has failed refugees and asylum seekers who need and deserve safety and care.

47

Committee consideration Senate Legal and Constitutional Affairs Legislation Committee On 10 November 2016 the Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 22 November 2016. Details of the inquiry are at the inquiry webpage.48 The Committee received 84 submissions, the majority of which opposed the Bill. The basis for such opposition included that it is neither necessary nor proportionate, it contravenes Australia’s international human rights obligations, it will adversely impact already vulnerable persons, the retrospective application of the Bill, and so forth. Submitters were also critical of the limited timeframe provided for Parliamentary scrutiny and the limited capacity for interested persons and organisations to make submissions.49 The transcript of the Committee hearing, held in Melbourne on 15 November is available.50 The Committee tabled its report on 22 November 2016.51 The Committee recommended that the Senate pass the Bill.52 The Committee formed the view that:

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 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.

53

The ALP and the Australian Greens made dissenting reports, recommending that the Senate reject the Bill.54

46. P Dutton (Minister for Immigration and Border Protection), Interview with Tom Tilley, Triple J Hack, US resettlement of refugees from Nauru and PNG, transcript, 14 November 2016. 47. UNHCR, UNHCR to endorse Australia-United States relocations as “offshore processing” arrangements fail refugees, media release, 13 November 2016. 48. Senate Legal and Constitutional Affairs Legislation Committee, ‘Migration Legislation Amendment (Regional Processing Cohort) Bill 2016

[Provisions]’, Inquiry homepage. 49. Submissions to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 [Provisions], 2016. 50. Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into Migration Legislation Amendment (Regional Processing Cohort) Bill

2016 [Provisions], transcript, The Senate, Canberra, 15 November 2016. 51. Senate Legal and Constitutional Affairs Legislation Committee, ‘Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 [Provisions]’, The Senate, Canberra, November 2016. 52. Ibid., p. vii. 53. Ibid., p. 13. 54. Labor Senators, Dissenting report, Senate Legal and Constitutional Affairs Legislation Committee, Migration Legislation Amendment (Regional

Processing Cohort) Bill 2016 [Provisions], The Senate, Canberra, 2016, p. 15; Australian Greens, Dissenting report, Senate Legal and Constitutional Affairs Legislation Committee, Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 [Provisions], The Senate, Canberra, 2016, p. 21.

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Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills sought further information from the Minister on the retrospective application of items 1, 4 and 13 of Schedule 1 to the Bill. The Committee noted that the amendments made by the Bill would apply to visa applications made after the commencement of the Bill, but considered that in defining the affected group (in part) by events that had occurred in the past (since 19 July 2013) the Bill would have a retrospective application to these people. The Committee stated:

In relation to adults who may be transferred to a regional processing centre after the Act commences, this Bill will put them on notice that if they seek to arrive in Australia in defined circumstances then they will be barred for life from making a valid application for an Australian visa.

However, for those who on commencement of the Act will, by definition, already be included in the regional processing cohort, the Bill does not place them on notice in a similar way. Rather, the Bill prevents people within the cohort who were taken to a regional processing country prior to the commencement of the Bill from making a valid visa application. Those people cannot avoid the adverse consequences that apply through the operation of the Bill and were not aware that this law was applicable at the time they sought to make the journey to Australia.

55

The Committee emphasised that, in keeping with the rule of law, ‘people should be able to guide their actions on the basis of fair notice about the legal rules and requirements that will apply to them’.56 The Committee noted that the Explanatory Memorandum to the Bill argues that people have been on notice since 19 July 2013, when Prime Minister Rudd announced that asylum seekers who arrived by boat would ‘never’ be settled in Australia. However, the Committee noted that the Bill goes further than this, by ensuring:

… not only will people within the relevant cohort be prevented from settling in Australia, they will also be prevented from applying for any type of Australian visa (including, for example, a visitor or business visa). 57

The Committee also considered that the Bill could have ‘a particularly adverse effect on young people who were children at the time the decision was made to travel to Australia’, but who had turned 18 years old by the time of their transfer to a regional processing centre (and thus would come within the defined cohort the subject of the Bill). Accordingly, the Committee sought the Minister’s advice as to whether consideration had been given to the consequences of the Bill for this group.58

The Minister responded to the Committee by letter dated 22 December 2016, advising that the Bill codified government policy announced on 19 July 2013 and stating that the Ministerial discretion provided by the Bill could be used in situations to allow visa applications in specific cases ‘and in consideration of the individual circumstances of the case, including the best interest of affected children and/or their age at the time a decision to travel illegally to Australia was made’.59

The Committee considered that the Minister’s response did not ‘provide additional information to that provided in the explanatory memorandum to address with specificity the committee's concerns’.60

Policy position of non-government parties/independents On the same day as the Government announced its intention to introduce the legislation, Leader of the Opposition, Bill Shorten posted the following entry on Facebook:

Whether Turnbull likes it or not, refugees like Frank Lowy, Gustav Nossal and Hieu Van Le have made a huge contribution to Australia. As an Australian, that’s something I’m very proud of.

It seems ridiculous to me that a genuine refugee who settles in the US or Canada and becomes a US or Canadian citizen is banned from visiting Australia as a tourist, businessman or businesswoman 40 years down track…

55. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 9, 2016, The Senate, Canberra, 23 November 2016, p. 6. 56. Ibid.

57. Ibid., p. 7. 58. Ibid., p. 8. 59. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 1, 2017, The Senate, Canberra, 8 February 2017, p. 87. 60. Ibid., p. 90.

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We’ll look closely at the legislation when the Government can be bothered releasing it.

Of course people who come via a people smuggler should not be allowed to settle here—we will never allow the people smugglers back in business.

No amount of distraction can distract from the Liberals’ total failure to secure any durable and credible third country resettlement. 61

A few days later the Shadow Minister for Immigration and Border Protection, Shayne Neumann confirmed that ‘Labor will consider the detail of the legislation when the Turnbull Government finally releases it next week and take this through our usual processes’.62 When the Bill came up for debate in the House of Representatives on 9 November 2016 (the day after it was introduced), Shayne Neumann stated that the Bill seemed ‘ridiculous’, ‘unnecessary’ and ‘nonsensical’:63

We took this Bill seriously. We considered the legislation in detail. We took it to shadow cabinet, to the relevant caucus committee, and our caucus voted unanimously to oppose this Bill… The Turnbull government has been incapable of articulating a consistent policy rationale for this legislation…

Let me be clear, we need to get the people off Manus and Nauru. These people are being held in indefinite detention for too long. But the government have provided no credible evidence that there are any agreements in place with third countries for resettlement or that they have any in the works. They have not told the opposition and nor have they told the Australian public. Even if there were, there is no evidence that this legislation is required to secure that resettlement to a third country or countries. In briefings on Monday, the department representatives confirmed that no country had asked Australia to adopt this legislation to facilitate a regional resettlement agreement. No-one has asked us to do so. So why is the government taking this drastic step with this legislation today? ...

The idea that somehow, in 10, 20, 30, 40 or 50 years time, someone assessed as a refugee who has become a citizen of another country would be prevented from coming here on a short-term visa, for work or for business opportunities—opportunities which might enhance Australia's economic or tourism development, bringing in more money to Australia—or indeed to visit their family, is ridiculous and absurd. It is not Labor's policy. There is no credible evidence why this legislation is needed in the circumstances.

64

While Bob Katter of Katter's Australian Party voted in support of the Bill, independent Members of Parliament, Andrew Wilkie and Cathy McGowan were not supportive of it, the latter noting:

I will not be supporting the Migration Legislation Amendment (Regional Processing Cohort) Bill 2016. Primarily, I will not be supporting this legislation as I believe it fails the principal test of good legislation: it fails the test of equality, the principle of treating everybody equally. It is poor legislation because it is discriminatory, and it seems to be hugely unfair. It is poor legislation because it is almost impossible to implement. It fails the test of being righteous legislation. It is legislation based on fear and punishment. Its focus is on creating a deterrent to and a punishment for third parties without a balance of reward, rehabilitation or any long-term humanitarian approach. Secondly, my reasons for not supporting this legislation—and they are no less of a priority—are that the overwhelming sentiment in my community and in my electorate is that I do this.

65

61. B Shorten (Bill Shorten MP), ‘Whether Turnbull likes it or not …’, Facebook update, 30 October 2016, https://www.facebook.com/BillShorten/posts/1121227557913804. 62. S Neumann (Shadow Minister for Immigration and Border Protection), Coalition confused on refugee laws, media release, 1 November 2016. 63. S Neumann, ‘Second reading speech: Migration Legislation Amendment (Regional Processing Cohort) Bill 2016’, House of Representatives,

Debates, 9 November 2016, p. 3310. 64. Ibid., pp. 30–35. 65. C McGowan, ‘Second reading speech: Migration Legislation Amendment (Regional Processing Cohort) Bill 2016’, House of Representatives,

Debates, 9 November 2016, p. 3398; Australia, House of Representatives, ‘Migration Legislation Amendment (Regional Processing Cohort) Bill 2016’, Votes and proceedings, HVP 19, 10 November 2016.

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The day after the Prime Minister’s announcement, Senator Nick McKim issued a press release indicating the Australian Greens would oppose the Bill and urged the Opposition to vote against the proposed changes, calling it ‘hateful legislation’.66

Senator Nick Xenophon has reportedly stated that he hasn’t reached a final position on the Bill and that his party might not vote as a bloc:

"It does go much further than current laws and it is a vexed moral issue," Senator Xenophon told AM. "It is a conscience issue for the team. I expect we will all have differing positions in relation to this, and I respect that." He said the numbers in the Senate were "very finely balanced" on this issue, but personally he would be more likely to support it if there was an increase to the humanitarian intake …

"I still haven't reached a final position and I don't believe it's fair to say that my colleagues have necessarily reached a final position," he said. "It depends what all the elements of the legislation are and whether the Government is prepared to move on some of those elements of the legislation.

"If there is some way that the humanitarian intake can be increased, that a third country can be found for those languishing on Nauru or Manus Island, that you don't compromise the strong position that we have on people smugglers, and to make sure that we don't see a revival of that trade and with it the drownings at sea and the gross exploitation of those asylum seekers, then maybe, just maybe, we can come up with a solution that is far from perfect but would be an improvement on what we have now."

67

In response, Minister Dutton has reportedly stated ‘I want to negotiate with Nick in good faith and he's publicly spoken about what he wants, but I'll have further discussions with him. But I've got to say I don't want to see that number increase’.68

Another crossbench senator, Liberal Democrat David Leyonhjelm, is reportedly sceptical about whether the Government could stop refugees who become citizens of a country like Canada or New Zealand from visiting Australia:

Suppose a refugee is banned from ever coming to Australia as a result of arriving here illegally, then goes to New Zealand and becomes a citizen of New Zealand and then wants to visit Australia …

Are they seriously going to prohibit that person from entering the country? How would we even know who that was? If they've got a New Zealand passport we just let them in automatically anyway. 69

Senator Pauline Hanson, leader of One Nation, is reportedly supportive of the proposed measures noting that ‘the government is now taking its cues from One Nation’.70

The media reported on 21 November 2016 that the Bill is ‘heading for defeat in the Senate’:

The Turnbull government's proposed lifetime ban on asylum seeker visas is heading for defeat in the Senate, with key crossbenchers including David Leyonhjelm and Derryn Hinch positioning to oppose the controversial Bill…Labor and the Greens have pledged to vote down the Bill. That makes the government reliant on an unpersuaded crossbench, and it is understood to have secured only five of the eight votes needed to reach 38: the four One Nation senators and Tasmania's Jacqui Lambie.

71

Position of major interest groups The UNHCR issued a media release stating that it was ‘profoundly concerned about the Bill’, noting:

66. N McKim (Australian Greens Immigration spokesperson), Time for Labor to find a spine and reject refugee cruelty, media release, 31 October 2016. 67. J Holman, ‘Senate looks for compromise on legislation to ban refugees from ever entering Australia’, ABC News, (online edition), 9 November 2016. 68. P Dutton (Minister for Immigration and Border Protection), ‘Interview with Ray Hadley, Radio 2GB/4BC’, transcript, Radio 2GB/4BC,

10 November 2016. 69. Holman, ‘Senate looks for compromise on legislation to ban refugees from ever entering Australia’, op. cit. 70. M Koziol and F Hunter, ‘Government wants life ban on asylum seekers entering Australia’, The Sydney Morning Herald, 31 October 2016, p. 1. 71. M Koziol, ‘Turnbull government's lifetime ban on refugee visas likely to be killed off by Senate’, The Canberra Times, 21 November 2016.

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Mr Thomas Albrecht, UNHCR’s Regional Representative in Canberra, Australia, stated “Seeking asylum is not ‘illegal’. Refugees need and deserve protection and respect. The basic human right of every person to seek asylum from persecution is not diminished by their mode of arrival. Those forced to flee persecution need and deserve conducive conditions of protection, and a sustainable long-term solution.”

Asylum-seekers should have their claims processed in the territory of the State from which asylum is sought or which otherwise has jurisdiction over them. Australia retains responsibility for refugees and asylum seekers, even where they are transferred to another State under bilateral arrangements. Where transfer arrangements are used, Australia retains the obligation to ensure their well-being and to find adequate long-term solutions for those found to be refugees.

72

The Refugee Council of Australia (RCOA), the national umbrella body for refugees and the organisations and individuals who support them, also issued a media release, stating:

… label[ling] the proposed draconian laws, aimed at banning people who arrived seeking asylum in Australia by boat from ever setting foot on Australian soil, as ill-targeted, perverse punishment for people who came to us seeking safety. 73

The RCOA is of the view that the proposed laws ‘will target vulnerable people on Manus and Nauru who have families, friends and connections in Australia’.74 According to acting CEO Tim O’Connor:

Perhaps the greatest tragedy of these proposed laws is they move Australia further away from engaging in sustainable solutions to manage the global challenge of displacement. The international community must work to tackle the root causes of displacement and Australia’s building of a virtual wall only deals with the symptoms and not ensuring people can flee persecution and live with dignity while they await the appropriate conditions to return home.

75

Financial implications The Explanatory Memorandum to the Bill notes that the financial impact of the Bill will be low.76

Compatibility with International Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible with the listed human rights instruments, relying predominantly on the Minister’s personal power to ‘lift the bar’77 and on the basis that any limitations ‘are reasonable, necessary, and proportionate to achieving the legitimate aim of maintaining the integrity of Australia’s lawful migration programs and discouraging hazardous boat journeys’.78 However, the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees (1951 Refugee Convention)79 is not listed as an international instrument for this purpose.80 Three of Australia’s most eminent international refugee law experts consider that the Bill is not compatible with Australia’s obligations under the Refugee Convention.

Article 31 of the 1951 Refugee Convention states as follows:

72. UNHCR, Refugees need and deserve protection and respect, media release, 31 October 2016. 73. Refugee Council of Australia (RCOA), Proposed perverse laws mete out more ad hoc punishment to vulnerable people seeking asylum, media release, 31 October 2016. 74. Ibid.

75. Ibid.

76. Explanatory Memorandum, Migration Legislation Amendment (Regional Processing Cohort) Bill 2016, p. 2. 77. The High Court of Australia has found that the distinct nature of similar personal public interest powers conferred on the Minister by the Act means that the exercise of such powers is not conditioned on the observance of the principles of procedural fairness: Plaintiff S10-2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 [2012] HCA 31.

78. The Statement of Compatibility with Human Rights can be found at page 21 of the Explanatory Memorandum to the Bill. 79. Convention Relating to the Status of Refugees (as amended by the 1967 Protocol relating to the Status of Refugees), opened for signature 28 July 1951, [1954] ATS 5 (entered into force for Australia 22 April 1954). The 1951 Refugee Convention has not been formally incorporated into domestic law through the Act.

80. Human Rights (Parliamentary Scrutiny) Act 2011.

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Refugees unlawfully in the country of refuge

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

81

Professor Ben Saul, Challis Chair of International Law at the University of Sydney, and Jane McAdam, Scientia Professor of Law and Director of the Andrew & Renata Kaldor Centre for International Refugee Law at the University of New South Wales (UNSW), ‘strongly disagree’ that the Bill is consistent with international law and are of the view that ‘based on the prevailing legal authorities, the Bill's proposed lifetime ban would violate’ Article 31 for the following reasons:

First, a "penalty" is not limited to criminal sanctions but includes any serious unfavourable treatment. The proposed ban on entering Australia is punitive in this sense, particularly given its severity—a permanent ban on entry, for any purpose, and irrespective of the personal circumstances of individual refugees.

Second, the ban would only apply to refugees who sought to enter Australia "illegally" under Australia's immigration law. It would not apply to refugees who entered "legally" on any visa, including under Australia's refugee resettlement program. As such, the penalty of a lifetime ban would be imposed "on account of" illegal entry. The provision prohibits punishing such refugees because even if entry is technically "illegal" under Australian law, everyone has the right to seek asylum under international law—with or without a visa.

Third, while the provision applies to refugees "coming directly" from persecution, this does not mean that refugees are only protected from punishment if they travel immediately to Australia from their home country. Rather, the protection still applies to refugees who transit through other countries on their way to Australia, where those other countries do not offer effective, safe legal and practical protection.

The reasons for this are obvious. Refugees cannot be expected to stay in a transit country which does not recognise refugee status or the Refugee Convention, and in which they are classed as "illegal" migrants and remain vulnerable to expulsion to persecution at any time. This includes, for example, transit countries such as Indonesia and Malaysia. A refugee cannot be expected to remain in a country that will not, or cannot, provide basic humanitarian needs such as adequate food, water, housing and health care. A refugee cannot be expected to remain in a country where their basic human rights are not protected, including safety from physical violence and basic rights to work and education …

Fourth, situations like those above count as "good reasons", under Article 31, for "illegal" entry to Australia. Only where a refugee already has effective protection in another country would Article 31 allow penalties to be imposed. Protection in Australia would then be unnecessary … 82

Michelle Foster, Professor and Director of the International Refugee Law Research Programme in the Institute for International Law and the Humanities at Melbourne Law School, University of Melbourne, is of the view that the Government’s assessment that the Bill is compatible with Australia’s international human rights obligations ‘doesn’t stand up to scrutiny’ and that ‘if passed would be in direct contravention of the Refugee Convention

81. Convention Relating to the Status of Refugees, op. cit. 82. J McAdam and B Saul, ‘Malcolm Turnbull is breaking international law with cruel lifetime refugee ban’, Sydney Morning Herald, (online edition), 9 November 2016. See also: A Carabine, ‘Proposed ban on refugees arriving by boat in breach of Australia's international obligations: expert’, Radio National Breakfast, ABC, 1 November 2016.

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and Australia’s other international obligations’.83 Professor Foster is also of the view that if this Bill comes into force, ‘it will be in direct contravention of Article 31 of the Refugee Convention’.84 She notes as follows:

Even if a refugee travels through or spends time in a transit country, they’re considered as having “come directly” so long as they weren’t granted protection in that intermediate country. This is the case for most asylum seekers who come to Australia by boat. Prime Minister Malcolm Turnbull and his Coalition colleagues have been unequivocal in saying the ban is designed to operate as a penalty for unlawful entry. In doing so, the government is trying to deter asylum seekers from exercising their right to seek asylum. There is no question the impact will be punitive. The Bill does not provide a sunset clause or any other expiration date, so the prohibition will be permanent. The government states that the ban will apply even after an asylum seeker is settled in, or is offered citizenship of, another country.

85

She is also of the view that Australia is arguably in violation of its international obligation not to transfer, deport or send an asylum seeker to a place where she or he will face torture or inhumane or degrading treatment. Further, she argues that the Government’s acknowledgement that this legislation could result in families being permanently separated, contravenes Australia’s obligations to respect the right to family life, and their acknowledgement that singling out a particular group for a permanent ban could violate their right to equal protection under international law and freedom from discrimination. Moreover, with respect to indefinite detention she observes:

There is no clarity about what will happen to the refugees already living in offshore detention or in Australia (for example, those receiving medical treatment in Australia) who can’t be sent to a third country because no resettlement option can be found. With no valid visa, indefinite immigration detention is a genuine possibility. The United Nations has found on numerous occasions that Australia’s system of indefinite detention violates the right to freedom from arbitrary detention. The Refugee Convention makes it clear that prolonged detention is illegal under international law.

86

Parliamentary Joint Committee on Human Rights On 22 November 2016, the Parliamentary Joint Committee on Human Rights tabled its report into the Bill.87 The Committee relevantly observed:

• ‘the Bill applies what is likely to be considered an unlawful penalty for seeking asylum, in contravention of article 31 of the Refugee Convention’

• ‘on the information available, the proposed ban does not appear to be compatible with the right to equality and non-discrimination’

• ‘[it is unclear] whether the measure is rationally connected to and a proportionate means of achieving its stated objective, so as to be compatible with the right to protection of the family and rights of the child’.88

The Committee sought further advice from the Minister, but at time of writing this information had not been received and/or been made publicly available.

Key issues and provisions Statutory ‘bar’ for UMAs The statutory bar on lodging a valid visa application contained in proposed subsection 46A(2AA), at item 4 of Schedule 1 to the Bill, applies indefinitely to all UMAs over the age of 18 years who have been taken to a regional processing country after 19 July 2013.

83. M Foster, ‘Turnbull’s asylum seeker ban violates Australia’s human rights obligations’, The Conversation, 14 November 2016. 84. Ibid.

85. Ibid.

86. Ibid.

87. Parliamentary Joint Committee on Human Rights, Report, 9, 2016, 22 November 2016. 88. Ibid., pp. 15–22.

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The term ‘unauthorised maritime arrival’ is defined in section 5AA of the Act. Relevantly, it includes a person who entered Australia by sea at either an excised offshore place or at any other place at any time on or after the commencement of this section, and the person became an unlawful non-citizen because of that entry.

Thus, the statutory bar will apply to persons in Nauru and PNG under regional processing arrangements, those who have voluntarily returned home or been involuntarily removed to their home country, and those who have been settled in a third country (such as Cambodia).

It will not include persons on vessels such as ‘take backs’ and ‘turn backs’ because these people have not been ‘taken to a regional processing country’, as required under proposed paragraph 46A(2AA)(b) and proposed paragraph 46B(2AA)(a).89

Proposed subsection 46A(2AB) gives the Minister the personal discretion to make a written determination to the effect that the statutory bar does not apply to an application by a UMA if the Minister thinks it is in the public interest to do so. Proposed subsection 46A(2AC) gives the Minister the personal discretion to make a determination (by way of legislative instrument) to the effect that the statutory bar does not apply to an application by a UMA included in a class of UMAs for a visa of a specified class if the Minister thinks it is in the public interest to do so. Under proposed subsection 46A(2D), at item 8 of Schedule 1 to the Bill, the Minister may (by way of legislative instrument) vary or revoke a determination made under subsection 46A(2AC) if the Minister thinks it is in the public interest to do so.

While a mechanism enabling the Minister to permit visa applications to be lodged is undeniably necessary to ensure that the Act operates as intended and to accommodate exceptional circumstances, including to enable adherence to Australia’s international human rights obligations (albeit on a purely discretionary and non-compellable basis), items 11 and 12, make it clear that the Minister does not have a duty (under any circumstances) to consider whether to exercise the powers contained in proposed subsections 46A(2AB), (2AC) or (2D) (discussed immediately above).

What is in the ‘public interest’ is not defined in the Act or the Migration Regulations and it is purely a matter for the Minister of the day to determine. To this end, it is perhaps relevant to recall that in 2014 former Immigration Minister, Scott Morrison used the equivalent ‘national interest’ ground to refuse UMAs in Australia permanent protection visas. The Department’s factsheet at the time noted that the reasons the Minister might consider that it is not in the ‘national interest’ to grant a permanent protection visa to UMAs included that it would provide a product for people smugglers to market, people who arrive illegally should not be rewarded, it would erode the community's confidence in the effective and orderly management of Australia's migration programme, and undermines the integrity of Australia's visa systems and its sovereign right to protect its borders. 90 When challenged, the High Court noted that ‘the Minister's decision record shows that he saw ‘the national interest’ as requiring refusal of a Protection (Class XA) visa to any and every unauthorised maritime arrival’. 91 The High Court found:

[the national interest criterion] does not permit the Minister to attach an additional consequence to being an unauthorised maritime arrival beyond those fixed by the Act. It does not authorise application of a general rule that a valid application by an unauthorised maritime arrival for a visa of the class specified in the Minister’s determination must be refused …

92

89. The terms boat ‘turnbacks’, ‘take-backs’, ‘turnarounds’ or ‘pushbacks’ are often used interchangeably. Operation Sovereign Borders (OSB), established by the Abbott Government in 2013, defines ‘turnbacks’ as ‘the safe removal of vessels from Australian waters, with passengers and crew returned to their countries of departure’; and ‘take-backs’ as a transfer (often at sea) of passengers from one sovereign authority to another ‘where Australia works with a country of departure in order to see the safe return of passengers and crew’. Sources: Senate Legal and Constitutional Affairs Legislation Committee, Official committee Hansard, 25 May 2015, pp. 107–10; and Senate Legal and Constitutional Affairs Legislation Committee, Official committee Hansard, 23 February 2015, p. 137.

90. DIBP, ‘Frequently asked questions: national interest consideration of permanent protection visa applications by illegal arrivals’, DIBP website, June 2014. See also: B Doherty, ‘Scott Morrison personally intervenes to block claims for permanent asylum’, The Guardian, (online edition), 22 October 2014.

91. Plaintiff S297-2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231, [2015] HCA 3 at [13] (emphasis added). The judgment also notes that ‘No party suggested, however, that anything turns upon any distinction between "the public interest" and "the national interest".’

92. Ibid.

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Statutory ‘bar’ for ‘transitory persons’ The statutory bar on lodging a valid visa application contained in proposed subsection 46B(2AA) applies indefinitely to all ‘transitory persons’ over the age of 18 years who have been taken to a regional processing country after 19 July 2013.

The term ‘transitory person’ is defined in section 5 of the Act. Relevantly, it includes a person (and any children) taken to a regional processing country (under section 198AD) or taken to a place outside Australia under paragraph 245F(9)(b), or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013.

The original statutory bar for ‘transitory persons’ (contained in existing section 46B of the Act) was inserted into the Act in 2002 to accommodate exceptional situations which required a person taken to another country for processing to be brought to Australia for a temporary purpose such as for medical treatment or to give evidence in the prosecution of people smugglers, or to transit Australia on their way back to their home country.93

Thus, the statutory bar will apply to ‘transitory persons’ over the age of 18 years who have been taken to a regional processing country after 19 July 2013.

The Human Rights Law Centre has stated that there are about 370 such persons currently in Australia including more than 100 children, of whom 40 are babies born in Australia.94

Exemption for regional processing cohort A new definition of ‘member of the designated regional processing cohort’ is being inserted into the Act by item 1 of the Bill. Put simply, it includes:

• all UMAs over the age of 18 years who have been taken to a regional processing country after 19 July 2013 and

• all ‘transitory persons’ over the age of 18 years who have been taken to a regional processing country after 19 July 2013.

This definition will apply to various provisions in the Act and the Migration Regulations 1994 to preclude such persons from being deemed to have validly applied for various visas under the Act such as Special Purpose Visas (as provided for in section 33 of the Act) and the Migration Regulations (such as the Subclass 600 (Visitor) visa in the Business Visitor stream, or an application for a Refugee and Humanitarian (Class XB) visa. However, the Minister has the ability to waive the operation of these exclusions.95

Commencement Item 36 provides for different commencement dates for the new statutory bars for UMAs and transitory persons (contained respectively in proposed subsections 46A(2AA) and 46B(2AA) of the Act) depending on whether the visa applicant is in Australia (onshore) or outside Australia (offshore).

Subitem 36(1) provides that the statutory bar for UMAs and transitory persons outside Australia applies if the visa application is made after commencement (the day after the Bill receives Royal Assent), or if the application was made after the Bill was introduced into Parliament (being 8 November 2016) and the application had not been finally determined before commencement. With respect to this proposed commencement schedule, the Explanatory Memorandum relevantly notes:

The Government’s intention is that from the time of introduction of the Bill, members of the designated regional processing cohort should not be permitted to make a valid application for a visa unless permitted to do so by the Minister. The retrospective application of these provisions is required to give effect to this policy, and is directed to preventing members of the designated regional processing cohort from attempting to circumvent the amendments by lodging an offshore visa application after introduction of the Bill and before the commencement of Schedule 1.

93. Migration Legislation Amendment (Transitional Movement) Act 2002. See also: Revised Explanatory Memorandum, Migration Legislation Amendment (Transitional Movement) Bill 2002. 94. Human Rights Law Centre, Government finally concedes Manus and Nauru unsustainable, but offers no clear path forward and foreshadows deportations, media release, 13 November 2016. 95. See proposed subsection 33(3B) at item 3, and items 26 and 27.

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From the time of introduction of the Bill, members of the designated regional processing cohort are considered to be on notice of the Government’s intention. 96

Subitem 36(2) provides that the statutory bar for UMAs and transitory persons in Australia applies if the application is made after commencement and no determination had been made by the Minister to ‘lift the bar’ under subsections 46A(2) and 46B(2) before commencement. The Explanatory Memorandum notes the following with respect to the application of the statutory bars to the various UMA cohorts currently in Australia:

This application provision reflects the intention that new subsections 46A(2AA) and 46B(2AA) will apply prospectively to onshore applications made by persons who are members of the designated regional processing cohort. If a member of the designated regional processing cohort is in Australia (for example, they were transferred to Australia for medical reasons) before commencement of Schedule 1, they will be prevented from making a valid visa application, by either current subsections 46A(1) or 46B(1), or both, unless permitted to do so by the Minister. It is therefore unnecessary for the new amendments to apply retrospectively to members of the cohort in Australia because they would not be permitted to make an application for a visa under the current bars unless permitted to do so by the Minister.

However, it is still necessary for new subsections 46A(2AA) and 46B(2AA) to apply prospectively to applications made by persons in Australia who are members of the designated regional processing cohort. This is because in the future, it is possible that the Minister may have permitted a member of that cohort to apply for or be granted a particular visa to travel to Australia, and when in Australia that person may not be prevented by current subsections 46A(1) or 46B(1) from lodging a further application for a visa. The prospective application of new subsections 46A(2AA) and 46B(2AA) will operate to prevent a further application for a visa to be made by a person from the cohort in this situation, unless the Minister permits them to do so.

This application provision also excludes the operation of new subsections 46A(2AA) and 46B(2AA) from applications made by persons in Australia who are members of the designated regional processing cohort if, before the commencement of Schedule 1, the Minister had already lifted the bar under subsections 46A(2) or 46B(2) to permit such a person to make a valid application for a visa. This is to ensure that the new provisions will not prevent an onshore member of the designated regional processing cohort in Australia from making a valid application for a visa if, before commencement of Schedule 1, the Minister had permitted them to make an application for a visa but the person had not, at the time of commencement, made that application. [Emphasis added].

97

96. Explanatory Memorandum, Migration Legislation Amendment (Regional Processing Cohort) Bill 2016, pp. 18–19. 97. Ibid., pp. 19–20.

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