Debate Heats Up at the Migration Resolving the Asylum Legacy Caseload Senate Inquiry

Wednesday 19 November 2014 @ 12.42 p.m. | Judiciary, Legal Profession & Procedure | Immigration

On 26 September 2014, we reported on the Federal Government's Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (the Bill) (introduced into the House of Representatives on 25 September 2014). The Bill is said by the Government to be a part of the Government‘s key strategies for combating people smuggling and managing asylum seekers both onshore and offshore. The Bill was said by the Government to be a continuation of the Government‘s protection reform agenda:

". .  .  making it clear that there will not be permanent protection for those who travel to Australia illegally".

The Bill seeks to introduce measures that:

".  .  . will support a robust protection status determination process and enable a tailored approach to better prioritise and assess claims and support the removal of unsuccessful asylum seekers".

Heated Debate in Senate Inquiry

The Bill was referred to Senate Legal and Constitutional Affairs Legislation Committee  (the Senate Committee) on 25 September 2014 and the Senate Committee is due to report back to the Senate on 27 November 2014. The Guardian reports that at a meeting of the Senate Committee on Friday (14 November 2014) a "robust exchange" regarding the true purpose of the proposed legislation took place, with Liberal Senator Ian Macdonald being reported to have indicated that:

"Australia ‘doesn’t want to be beholden to the High Court who will pick every comma in the wrong place to allow someone in’, . . ."

A statement made in reply to a question from the Migration Institute of Australia inquiring as to why the government was introducing the legislation and whether it was related to Australia not wanting to feel like it is ".  .  . beholden to a 1951 convention [the United Nations High Commission for Refugees  Convention] any longer . . .”

Fears that Bill Seeks to Head Off Pending Actions

Given Senator Macdonald's response, there is, as The Guardian reports, strong concern especially among migration lawyers and legal experts that the proposed legislation has behind it the aim of heading off a number of recent and upcoming High Court decisions, including the looming decision regarding the detention of 157 Tamil asylum seekers at sea in July 2014.

Questioned about the Government's legal intentions regarding the Bill, the Immigration Minister Mr Morrison is reported as rejecting that it was seeking to head off adverse decisions from the courts, saying it was,

". . . simply seeking to further strengthen the existing powers that we have, . . .”.

The Minister's denial is challenged however, by those who say that attempting to codify Australia’s interpretation of its protection obligations under the UNHCR's  Convention, as the Bill proposes to do, will substantially limit the way the courts are able to consider treaties that Australia has signed up to, including the the 1951 refugee convention.

The Guardian quotes, Dr Michelle Foster, the director of the international refugee law research programme at Melbourne University, who is reported to have told the Senate Committee that:

“Where a piece of legislation references an international treaty . . . then the courts will give consideration to that international treaty, . . . Once you remove all the references to the refugee convention . . .  the hope is that they won’t refer to international jurisprudence or to the jurisprudence of our own court.”

The Guardian says: 

". . .the new legislation would substantially limit the way the courts could consider treaties that Australia had signed, including the refugee convention".

Adding Further to Suspicions About the Governments Real Aims

Further cause for concern about the Federal Government's intentions regarding the observance of international obligations is also coming from today's media reports that the Federal Government has:

". . . closed the door on accepting all refugees registered with a United Nations agency for resettlement in Australia".

It is reported that the Immigration Minister on Tuesday (18 November 2014) announced Australia will no longer accept asylum seekers who applied for resettlement after 1 July 2014 through the UNHCR office in Indonesia. This reaction is being seen in the media as response to UNHCR's criticism of the Cambodian refugee resettlement deal although the immigration Minister has told the ABC the governments actions were:

". . . taking the sugar off the table, . . .  trying to stop people thinking that it's okay to come into Indonesia and use that as a waiting ground to get to Australia. . . . I mean, Indonesia is not a refugee generating country. It's a transit country and it's used by smugglers. And we've had great success in stopping people coming to Australia by boat and for most of that time over the past year that has seen a significant reduction of people moving into Indonesia."

The Immigration minister's comments are indicative of the Governments approach which seems to be a creeping attempt to first stop physical arrival by alleged "illegal" asylum seekers and then remove even the hope of one day arriving by those prepared to wait in "transit countries" like Indonesia.

It is interesting, if not alarming, to see that the debate has moved from the alleged "illegality" of seeking asylum and accusations of "queue jumping" to justify the harsh treatment of some refugees to the actual removal of the queue and almost any prospect of seeking asylum legal or otherwise in Australia.

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