Federal government introduces changes to Migration Act

By Rebecca Devitt | 22 Sep 11

22 September 2011

Yesterday 21 September, the Australian government introduced into federal parliament amendments to the Migration Act 1958, which it says are needed to ensure that the Malaysia deal is beyond any High Court challenge.  The Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 amends the Migration Act 1958 and the Immigration (Guardianship of Children) Act 1946.

The amendments proposed under the bill will mean that the government can send asylum seekers to countries for processing regardless of whether they are legally bound to provide protection for asylum seekers under domestic law or the Refugee Convention.

Amongst the proposed changes section 198A of the Migration Act 1958 would be repealed and replaced with a new subsection under the title of Offshore Processing. Section 198A provides human rights protections for refugees and was a key part of the High Court’s decision to halt the Malaysia solution.

The new subsection states that offshore entry persons including asylum seekers should “be able to be taken to any country designated to be an offshore country” and it is at the discretion of the Minister to decide which countries will be designated as offshore countries and this shall not be determined by “international obligations or domestic law of that country.

Adam Fletcher from the Castan Centre for Human Rights Law says that this is a blatant rejection of the High Court’s ruling and would give the government of the day the ability to send asylum seekers to countries “which do not even have legal procedures for processing refugee claims, let alone comprehensive human rights guarantees.”

The Bill fails to reference Australia’s international human rights obligations and under the proposed Offshore Processing section excludes the right to natural justice. Referring to the Immigration Minister’s designation that a country is an offshore processing country section 198AB of the proposed amendments states that the “rules of natural justice do not apply.” This means that asylum seekers will be denied the right to a fair trial and will be unable to appeal any government decision.

Whilst the bill looks unlikely to pass in the House of Representatives, it has been met with criticism from within the Labor government including by Fremantle MP Melissa Parkes who has major concerns about the lack of references to Australia’s human rights obligations. “Given that the bill will take away rights of natural justice, would take away any review by Parliament or by the courts, it is a question as to how that makes government more open, transparent and accountable,” Ms Parkes said.

The Opposition and the Greens have opposed the bill, which includes changes to the Immigration (Guardianship of Children) Act 1946. This Act provides that the Immigration Minister is the legal guardian of an unaccompanied minor until they turn 18 or “leaves Australia permanently.” This section would be amended to say that the meaning of “leaves Australia permanently” includes being removed under the Migration Act. This effectively means that the Act will no longer prevent the Immigration Minister from sending unaccompanied minors to Malaysia or any other designated countries.

Whilst the amendments include a requirement to consider assurances from countries relating to the issue of non- refoulement there remain serious concerns over the bill’s lack of reference to Australia’s human rights obligations. The proposed changes have been condemned by human rights groups and rights advocates including former Prime Minister Malcolm Fraser who has accused both the government and opposition of putting politics before human rights and the rights of vulnerable people. The bill was debated in Federal Parliament today and a vote on the amendments has been delayed until mid-October.

The proposed amendments can be accessed here.