Migration Legislation Amendment (Regional Processing Cohort) Bill 2019

1. Introduction

1. The Commission makes this submission to the Senate Legal and Constitutional Affairs Legislation Committee (the Committee) in relation to the Migration Legislation Amendment (Regional Processing Cohort) Bill 2019 (Cth) (the Bill) introduced by the Australian Government.

2. The Commission welcomes the opportunity to make a submission in relation to this Bill.

2. Summary

3. This Bill would amend the Migration Act 1958 (Cth) to prevent asylum seekers who arrived in Australia by boat or are ‘transitory persons’[1] from ever making a valid application for any Australian visa if they were at least 18 years of age at the time of arrival and were taken to a regional processing country after 19 July 2013 (referred to as the ‘regional processing cohort’).[2] Papua New Guinea (PNG) and Nauru are currently designated as regional processing countries.

4. The Parliamentary Joint Committee on Human Rights observed that the Bill would have the effect of asylum seekers in the ‘regional processing cohort’ facing a ‘permanent lifetime ban from obtaining a visa to enter or remain in Australia’.[3]

5. The Minister would have a personal, discretionary and non-compellable power to determine, if the Minister thinks it is in the public interest, that the proposed statutory bar to making a valid application does not apply to an individual or class of persons.[4]

6. The Explanatory Memorandum accompanying the Bill states that the key objectives of the Bill are to maintain the integrity of Australia’s lawful migration programs and discourage hazardous boat journeys to Australia.[5]

7. The Commission considers that the Bill would significantly limit the enjoyment of human rights by people seeking asylum in Australia, specifically in relation to non-discrimination and family rights. In the Commission’s view, the Bill does not contain adequate safeguards to prevent breaches of human rights.

8. The Commission also considers that the Bill would limit human rights without an appropriate justification, as a permanent bar on visa applications does not appear to be a necessary, reasonable or proportionate means of achieving the Bill’s objectives.

9. The Bill would apply retrospectively in ways that impinge on a number of human rights. In particular, the Bill would have a punitive impact on people who have already been subject to regional processing, for the purpose of deterring other people from seeking to come to Australia by boat in the future. For those who have already been subject to regional processing, there is no way that they could change their behaviour or circumstances to avoid the application of this additional penalty. The Commission considers that this aspect of the Bill constitutes a limitation on human rights that is not necessary, reasonable or proportionate to achieve the Bill’s objectives.

10. As such, the Commission recommends that the Bill not be passed.

[1]    ‘Transitory person’ is defined in the Migration Act 1958 (Cth) s 5(1).

[2]    See proposed subsection 5(1) of the Migration Act 1958 (Cth) which defines members of the ‘regional processing cohort.’

[3]    Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, Report 9 of 2016, 22 November 2016, 19 [1.58]. At <https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2016/Report_9_of_2016>. While that Committee was scrutinising a previous version of the Bill, the observation would apply equally to the current Bill.

[4]    See for example proposed sections 46A(2AB)-(2AC) and 46B(2AB)-(2AC).

[5]    Explanatory Memorandum, Migration Legislation Amendment (Regional Processing Cohort) Bill 2019 (Cth), 22-23.