By Maria O’Sullivan

This piece is featured in the 2015 Castan Centre Human Rights Report. We will be featuring the articles on the blog throughout the month of May. 

Refugee law in Australia is the subject of political controversy and rapid change. This was illustrated in the last hours of the final sitting of the Senate on 5 December 2014, when a very important piece of legislation was passed through Parliament: the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act .

The legislation makes a raft of significant changes to Australian migration legislation, but two amendments in particular are likely to change the future practice of refugee protection. Firstly, the Act re-introduces the controversial Temporary Protection Visas (TPV) and creates a new category: Safe Haven Enterprise Visa (SHEV). The TPVs are a further aspect of the government’s policy that boat arrival refugees will never be settled permanently in Australia. The SHEVs are the class of visas introduced at the behest of the Palmer United Party and are designed to allow certain refugees (those who have been on a TPV without seeking social security) to apply for a permanent visa ‘pathway’ in Australia.

Mental health problems associated with TPVs are well documented. Less is known about the extent to which the new SHEVs will be a pathway to permanent residency. While there is a long list of visas for which TPV holders can apply, the criteria for these are stringent and will not necessarily apply to many refugees. For instance, refugees can apply for one of the Aged Parent visas but this requires the child to be an Australian citizen or permanent resident — and it has a 30 year waiting time. Similarly, refugees can apply for a Schools Sector visa but they must be enrolled in school. The Distinguished Talent Visa requires an ‘internationally recognised record of exceptional and outstanding achievement’. Given the limited educational and work opportunities available to most refugees, it is highly unlikely that this class of visa will be open to them.

Secondly, the Act grants the Minister of Immigration wide and largely unfettered powers to detain people on the seas and to transfer them to any country (or a vessel of another country) that the Minister chooses. Due to the way the legislation is worded, this will not allow proper scrutiny by Parliament and offers limited possibilities for judicial review by the courts.

The only constraint on the Minister’s power is that he or she considers it is in the ‘national interest’. Of particular concern is that the Act states that any failure to consider Australia’s international obligations will not affect the validity of an interdiction and detention decision.

The use of enforced turn backs is a central part of the Coalition’s policy dubbed Operation Sovereign Borders. Indeed, in the Parliamentary debates on the new legislation then Minister for Immigration Scott Morrison emphasised that the Act would further the government’s ‘key election commitments to stop the boats’.

This ignores the fact that the interception and transfer of asylum seekers on the high seas is a serious measure. Australia does not have jurisdiction outside its own maritime territory and so any operations must be properly constrained by statute.

The return of asylum seeker boats — whether to their country of origin or to another place — is a dangerous practice which risks the breach of several rules of international law. A major problem with the new legislation is that there does not have to be any agreement in place for transfer of the asylum seekers before they are intercepted and detained. That is, the Act permits asylum seekers to be detained on the high seas while the Minister is making a decisions on the transfers. This approach is in line with the decision of the majority of the High Court in CPCF v Minister for Immigration, which addressed by Tania Penovic’s piece in this report.

The net effect of these changes is that they will permit Australian officials to detain asylum seekers on boats on the high seas for an indefinite period and, in all likelihood, in conditions which may be inhumane. Its open-ended nature puts it clearly at odds with the international legal prohibition on arbitrary detention.

Although other countries (such as the US and some in Europe) engage in push backs of asylum seeker boats, none has legislation in place which permits the breadth of action given to the Minister for Immigration in Australia to intercept and detain asylum seekers at sea. It is for this reason that the public and media must be vigilant in maintaining oversight over these practices, despite the efforts of the government to keep their actions hidden from view.