Senate Scuttles Coalition Government's Regulations Reintroducing Temporary Protection Visas

Tuesday 3 December 2013 @ 12.44 p.m. | Immigration

On Monday night (2 December 2013) the Senate and in particular Labor and Greens senators voted to disallow the Migration Amendment (Temporary Protection Visas) Regulation 2013 (SLI No 234 of 2013) by 36 to 26 votes. The vote has the result of thwarting the coalition government's attempt to reintroduce "temporary protection visas" via the regulation which it made in October 2013 and which as the press reports today was a . "key plank of its hard line Operation Sovereign Borders policy aimed at discouraging asylum-seeker boat journeys".

What the disallowed Regulations were about

In the Explanatory Statement for the Regulations the Immigration Minister stated that the purpose of the Migration Amendment (Temporary Protection Visas) Regulation 2013  was to amend the Migration Regulations 1994 (the Principal Regulations) to establish new arrangements for dealing with people who have arrived in Australia without visas and claimed protection.

In particular the Regulation was to reintroduce Temporary Protection (Subclass 785 (Temporary Protection)) visas as the only protection visa (a visa that may be provided to people within Australia in respect of whom Australia owes protection obligations) available to people who:

  • are unauthorised maritime arrivals as described in the Act; or
  • otherwise arrived in Australia without a visa; or
  • were not immigration cleared on their last arrival in Australia; or
  • are the member of the same family unit as a person mentioned above; and
  • that person has been granted a Subclass 785 (Temporary Protection) visa.

The reintroduction of  temporary protection visas was said by the Immigration Minister to be a key element of the Government's border protection strategy to combat people smuggling and to discourage people from making dangerous voyages to Australia.

What is the result of disallowance

The Senates ability to disallow the regulations comes from the powers provided for under the Legislative Instruments Act 2003 (Cth) (LIA) by way of Part 5 which provides for "parliamentary scrutiny of legislative instruments". The effect of the disallowance is that the Government must now wait for six months before it is able to reintroduce a regulation that "is the same in substance as the first-mentioned instrument or provision..."(see s 48(1) of the LIA).

Reasons for disallowance in the Senate 

The Australian Greens senator Sarah Hanson-Young is reported as telling the Senate chamber:

". . . the government's cruelty should not harm the hearts of people who have suffered so much already . . . No longer will these refugees have to live in limbo, . . . These visas never worked as a deterrent, they only punished the most vulnerable."

Labor Senator Kim Carr is reported as telling the chamber that:

"Labor supported the motion because the visas could result in further tragedies . . . TPVs act as a magnate for women and children . . . such is the desperation of people seeking to be reunited with their loved ones, . . ."

Predictably, the Immigration Minister  has slammed the outcome of the Senate vote and as the press report  today he "vows to press on with the coalition's commitments to fight people smuggling" being quoted as saying:

''The vote to abolish TPVs (temporary protection visas) is a vote to deliver on the promise of people smugglers to more than 33,000 people who turned up illegally on boats." 

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