The Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011

Last Friday (16 September), the Government released an exposure draft of the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 to “give effect to its commitment to restore power to the executive enabling the removal of irregular maritime arrivals for third country processing.”

The ‘purposes’ section of the Migration Act 1958, which this Bill would amend, says “[t]he object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.” The Bill would add a new subsection which would provide: “To advance its object, this Act provides for the taking of offshore entry persons from Australia to an offshore processing country.”

An ‘offshore entry person’ is already defined in the Act as someone who arrives at an ‘excised offshore place’ (see my earlier post on excision). An ‘offshore processing country’ is a new concept though. It will be defined as “a country designated by the Minister under subsection 198AB(1) as an offshore processing country.” Yes, that’s really the definition – an offshore processing country is any country the Minister likes.

The Bill gets more sinister as you read on. It proposes to amend sections which say Australia has protection obligations under the Refugees Convention to certain non‑citizens – ie refugees. The Bill would change this to “obligations in respect of” refugees. This may sound like a fine distinction, but to an international lawyer it reads like a slap in the face. No longer does the Australian Government accept it has obligations to those fleeing persecution; merely obligations which somehow vaguely relate to such people, which may or may not compel us to protect them in reality.

The Bill goes further to undermine protections built into the Migration Act (which are already relatively weak). Under the mandatory detention section as it currently stands, immigration officials must detain ‘unlawful non-citizens’ who are ‘seeking to enter the migration zone’ (broadly speaking, this means setting foot on the mainland). For the moment, officials can also detain those who arrive in excised places such as Christmas Island, but this is discretionary, which means they can choose not to detain families with children or anyone else who presents no risk to the community. The proposed amendments would make detention in excised places mandatory, just as it is on the mainland. This appears to be an incidental measure to facilitate deportation, and removes yet another layer of protection for those seeking refuge.

Section 198A, the section containing the human rights protections which prompted the High Court to say no to the Malaysia Arrangement in the recent M70 case, would be completely deleted if this Bill became law. In its place would be a new Subdivision headed “Offshore Processing.” The new subdivision would say that ‘offshore entry persons,’ including genuine refugees, “should be able to be taken to any country designated to be an offshore processing country” by the Immigration Minister, and the Minister’s decision “need not be determined by reference to the international obligations or domestic law of that country.” A more blatant rejection not only of the High Court’s ruling, but also of Australia’s international obligations to protect refugees, is hard to imagine. The Parliament, in the unlikely event it were to pass this Bill, would be giving the Executive carte blanche to (in Tony Abbott’s words) dump asylum seekers (regardless of whether they are genuine refugees) literally anywhere in the world – including countries which do not even have legal procedures for processing refugee claims, let alone comprehensive human rights guarantees.

At this stage, reeling from what I have been reading, I think perhaps the Bill can only improve from this point – but wait…there’s more! It goes on to provide that “[t]he only condition for the exercise of the power [to designate]…is that the Minister thinks that it is in the public interest to designate the country to be an offshore processing country…. The rules of natural justice do not apply to the exercise of [this] power….” Natural justice, for the uninitiated, essentially means the right to a fair hearing and the right to appeal a Government decision. Neither of those will apply to the Minister’s decisions under this proposed law. Does that sound outrageous to you? If so, you might be surprised to learn that natural justice is already denied by the Migration Act in respect of other kinds of Government decisions – for example cancellation of visas on character grounds or refusal of temporary safe haven. These are decisions with serious consequences, and one may well ask whether they are, in fact, the kind of decisions which should be subject to the highest standards of fairness and justice, rather than the lowest.

So are there any protections built into this new scheme? Well, the Minister would have to table in Parliament any agreement with the designated country in question, as well as any consultations with the UN High Commissioner for Refugees about any such arrangement. However, according to the Bill, “[t]he sole purpose of laying the [relevant] documents…before the Parliament is to inform the Parliament of the matters referred to in the documents and nothing in the documents affects the validity of the designation. Similarly, the fact that some or all of those documents do not exist does not affect the validity of the designation.” The final kicker? “A failure to comply with this section does not affect the validity of the designation.” This is the kind of ‘protection’ your Government thinks is appropriate.

The next little nugget from this Bill is an authorisation for officers (including members of the Australian Defence Force) to use force to “place the offshore place the offshore entry person on a vehicle or vessel…restrain the offshore entry person on a vehicle or vessel…remove the offshore entry person from… the place at which the person is detained; or a vehicle or vessel.” There is a requirement that the force be “necessary and reasonable,” but the victim of any unnecessary or unreasonable force is hardly likely to be in a strong position to take action against the authorities once the removal is effected.

What about those (such as unaccompanied minors or other particularly vulnerable people) who should not be removed? The Bill provides for a Ministerial discretion to exempt them from the new regime. However, it also provides that “[t]he Minister does not have a duty to consider whether to exercise the [relevant] power…in respect of any offshore entry person, whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.” Nor would the rules of natural justice apply to a decision not to exempt someone.

Not content with this wholesale re-working of the protection regime in the Migration Act, the Bill goes on to amend the Immigration (Guardianship of Children) Act 1946. This is the Act which was the other subject of the Government’s recent loss in the High Court. It provides that the Immigration Minister is the legal guardian of such minors, and has the same “rights, powers, duties, obligations and liabilities” as a parent until the child turns 18 or “leaves Australia permanently.” This provision would be amended to say that the meaning of “leaves Australia permanently” includes being removed under the Migration Act. For good measure, the Bill inserts a further provision to the effect that: “Nothing in this Act… affects the operation of the migration law; or affects the performance or exercise, or the purported performance or exercise, of any function, duty or power under the migration law….” In other words, the Act will no longer prevent the Government from shipping unaccompanied minors off to Malaysia (or any other designated country), by force if necessary.

This piece of draft legislation is breathtaking in its cynicism and its antipathy to our international obligations, matched perhaps only by the Howard Government’s excision of various northern territories from the Australian Migration Zone in 2001. The Government’s justification is that “people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed.” Yet the sole criterion for the designation of an ‘offshore processing country,’ as specified in the Bill, is the (Australian) public interest. The justification implies altruism; the Bill implies self‑interest.

Even the Coalition, which was responsible for the invention of offshore processing (albeit in a different form), have said this Bill fails to include sufficient human rights protections. The (current Labor) Attorney-General speaks of the right to life of ‘boat people,’ and implies that it should trump all other rights concerns. This is a familiar argument, employed often in defence of rights‑restrictive anti-terror laws over the years. As the Australian Human Rights Commission puts it, “nobody denies the need for laws and policies [to protect the right to life],” which is indeed “a fundamental human right.” However, “when we create those laws and policies we must make sure that we don’t sacrifice other fundamental human rights.” In the context of anti‑terror laws, these rights included equality before the law, the right to a fair trial and the right to be presumed innocent of a crime. In the present context, they also include the right to be protected from persecution and the right not to be sent to a country where there is a real risk of torture or other ill‑treatment.

Thankfully, Melissa Parke (a former UN lawyer), Doug Cameron and others within the Labor Party are voicing their concerns over this regrettable draft Bill. With the Greens and Coalition lining up against it, it is looking unlikely to be passed in its current form. This should give us cheer – even if the Government is willing to overlook its international obligations and rewrite the rules after the umpire’s decision, the majority of our Parliamentarians clearly find this disquieting, and rightly so. The Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 should not be introduced, much less passed. A return to onshore processing, despite the hyperbolic warnings of the Immigration Department, is the only acceptable course from here.

UPDATE: Apparently the Government has revised the Bill to make it more palatable to Tony Abbott, but details of the revisions are not yet clear.

FURTHER UPDATE: The details of the proposed revision are now public. It seems the provision which would allow the Minister to designate an “offshore processing country” has had a requirement inserted to consider assurances from the country in question in relation to non-refoulement. This is a welcome improvement, but it is undermined by the next subsection which reads “the assurances…need not be legally binding.” In any case, reports suggest it has not won the Coalition’s support.

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