By Tania Penovic

The Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012 was rushed through Parliament this week following the release of the Expert Panel on Asylum Seekers’ report on Monday. The panel’s report recommended that the ‘Australian Parliament should agree, as a matter of urgency, to legislation that would allow for the processing of irregular maritime arrivals in locations outside Australia’. The Expert Panel’s recommendations, which have beenoutlined by my colleague Adam Fletcher on this blog, have been accepted in principle by the Gillard Government.  The legislation passed by the Senate last night will amend the Migration Act to facilitate the re-commencement of processing of asylum seekers in Nauru and Papua New Guinea (Manus Island), which may occur within a month.

The Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 is aimed solely at the implementation of the panel’s recommendations with respect to offshore processing.  It doesn’t address other recommendations, such as the need to increase our humanitarian intake immediately from 13,750 to 20,000 places. Yet those recommendations are vital in the scheme of the expert panel report, which acknowledges the need for greater safe pathways for asylum seekers. After all, asylum seekers only undertake the dangerous boat journeys because of the dearth of opportunities for fair and effective processing in our region.

The offshore processing recommendations have given rise to great concern because of the experience of processing in the same countries under the Howard government’s Pacific Strategy, which saw people arbitrarily detained for often lengthy periods of time. The mental health impacts of mandatory detention on asylum seekers detained in Christmas Island and Australia’s mainland immigration detention centres were also experienced under the Pacific Strategy. These effects were further exacerbated by isolation and scarce essential services in Nauru and PNG, including general and mental health services. In October 2005, 25 of the 27 detainees then held on Nauru were transferred to Australia on medical advice due to mental health concerns.

Fears about a return to the harms exacted under the Pacific Strategy have been heightened by the expert panel’s recommendation that asylum seekers who seek to enter Australia by boat should obtain ‘no advantage…through circumventing regular migration arrangements.’ Accordingly, asylum seekers will remain in Nauru or PNG for the same period of time they would have waited for resettlement from overseas. Quite apart from the confusion and uncertainty around the application of the principle, it is likely to lead to lengthy periods of time being spent in Nauru and PNG.

The new legislation repeals section 198A of the Migration Act which was introduced into the Migration Act in 2001 by the Howard Government to facilitate offshore processing in Nauru and PNG. Section 198A(3) allowed the Immigration Minister to declare a country for offshore processing if the specified country provided access to effective procedures for assessing protection needs, provided protection for asylum seekers and refugees pending their status determination, repatriation or resettlement and met relevant human rights standards in providing that protection. In its M70/M106 judgment concerning Australia’s arrangements for offshore processing in Malaysia, the High Court found that the criteria set out in section 198A(3) were jurisdictional facts which the Minister had misconstrued. Minister Chris Bowen’s declaration with respect to Malaysia was affected by jurisdictional error and was therefore invalid. The High Court found that the legislative intention behind section 198A was to facilitate Australia’s compliance with the Refugee Convention.

The new legislation will strip the Migration Act of the protections enshrined in section 198A(3). It empowers the Minister to designate a country as a ‘regional processing country’ by legislative instrument.  The criteria in section 198A have been replaced with the sole condition that the Minister thinks that it is in the national interest to designate the country. In considering the national interest, the Minister must have regard to whether certain assurances have been provided by the country in question.  These assurances would be to the effect that the country would respect the principle of non-refoulement and would make refugee status assessments in accordance with article 1A(2) of the Refugee Convention or allow such assessments to be made. Nevertheless, such assurances are not legally binding and a Ministerial designation can be made in the absence of any assurances. Human rights protections have thus been relegated to the status of relevant considerations.

Amendments proposed by Greens Senator Sarah Hanson-Young which would have introduced protections which accord with Australia’s human rights obligations were rejected by the government and coalition. These proposed amendments included a 12 month limit on time spent in a regional processing country and an additional condition for Ministerial designation, namely that appropriate protection and welfare arrangements are in place which accord with Australia’s  obligations under international law.

The implementation of the Pacific Strategy saw the Howard Government treat its human rights obligations as discretionary and amenable to outsourcing, notwithstanding the protections in section 198A(3). Offshore processing under the Gillard Government will be underpinned by legislation which has sidelined these protections. The Expert Panel’s recommendations that offshore processing be recommenced are subject to a number of safeguards, including ‘protection and welfare arrangements consistent with Australian and Nauruan responsibilities under international law, including the Refugees Convention.’ Experience has shown us that the implementation of such safeguards should not be assumed.