Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012 passes Senate

The Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012 passed the Commonwealth Senate on 16 May 2013 and is currently awaiting assent. In the current debate about the refugee crisis, the bill introduces fairness into Australian law for refugees who have received an adverse security assessment.

The Purpose of the Bill

The Bill seeks primarily to amend the Migration Act 1958 (Cth)
to implement Recommendation 14 of the Report of the Expert Panel
on Asylum Seekers (Expert Panel's Report) which states:

The Panel recommends that the [Migration Act] be amended so that arrival anywhere on Australia by irregular maritime means will not provide individuals with a different lawful status than those who arrive in an excised offshore place.

The Bill also amends the Administrative Appeals Tribunal Act 1975 (Cth) so that non-citizens who are eligible for a protection visa (affected person) can seek merits review of their security assessment in the Administrative Appeals Tribunal (AAT), as Australian citizens already are able to under that Act.

This bill also ensures that, unless certified public interest or national security exceptions apply, non-citizens will be able to access a copy of the security assessment where there has been an adverse or qualified finding. Where the Attorney-General deems that there is a public interest reason to withhold part of or all of the security assessment, the affected person will still receive notification that a security assessment has been made so that a challenge in the AAT remains a possibility.

The History of the Bill

Under the existing migration framework, unauthorised arrivals in excised offshore places are prevented from making valid applications for visas in Australia and are liable to be taken to a designated country for regional processing under Section 198A of the Migration Act 1958. Unauthorised arrivals who arrive at the Australian mainland are not currently subject to these provisions.

Following an adverse decision in the High Court in Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32, in regards to Federal powers for offshore processing, a series of unsuccessful bills were introduced discussing the issue throughout 2011 and 2012, culminating in the Expert panel on asylum seekers on 13 August 2012.

The expert panel made 22 recommendations proposing an integrated regional approach to policy on asylum seeker and refugee issues, including that 'legislation to support the transfer of people to regional processing arrangements be introduced into the Australian Parliament as a matter of urgency'.

As stated by the then Minister in his second reading speech for the current Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012:

"[T]he recommendations in the report are an integrated set of proposals. To be effective in discouraging asylum seekers from risking their lives, the incentives and disincentives the panel recommended must be pursued in a comprehensive manner. The legislative amendments proposed in the [B]ill are part of this integrated approach."

It is an interesting criticism made in The Conversation that "Rather than question the deterrent-centred model we have towards asylum seekers, Australia has furthered its expensive model of out-sourcing regional processing for asylum-seekers to countries such as Nauru and Papua New Guinea."

The continuing effect of excluding the mainland from the migration zone is yet to be determined.

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