Solutions and Solutions: The Proposed Amendments to the Migration Act Explained

By John Alizzi | 28 Jun 12

On Wednesday night, 27 June 2012, a Private Member’s Bill to amend the Migration Act proposed by Independent Member of Parliament Rob Oakeshott passed the Lower House of Parliament after an extended and emotional debate. The drama in the House of Representative is the latest in an ongoing story, brought to a head by the news of a capsized boat carrying asylum seekers between Indonesia and Christmas Island, with one reported dead and around 20 missing, on top of around 90 people dying in a similar sinking last Thursday.

The Oakeshott proposal that passed the House essentially makes the Government’s Malaysia Solution lawful, providing for offshore processing of asylum seekers in Malaysia and elsewhere, including Nauru – the Opposition’s preferred location for offshore processing. The “Oakeshott Solution” therefore provides for offshore processing in a broad sense. More specifically, it allows for the transfer of asylum seekers to a country that is, as a first requirement, a party to the Bali Process on People Smuggling, Trafficking in Person and Related Transnational Crime (the “Bali Process”). The Bali Process members include more than 50 countries, as well as participating agencies including the International Organisation for Migration (IOM) and the United Nations High Commissioner for Refugees (UNHCR). The Bali Process was set up to provide a transnational framework for combating people smuggling.

While offshore processing was a pillar of the Howard Government’s “Pacific Solution”, dating back to 2001, the current debate is informed by more recent history, beginning with the landmark Malaysia Solution Case.

The Malaysia Solution Case

Plaintiff M70/2011 v Minister for Immigration and Citizenship, or the “Malaysia Declaration Case” or “Malaysia Solution Case” as it is more commonly known, was heard in August 2011. It arose following an Arrangement made between Australia and Malaysia in July 2011, providing that asylum seekers arriving in Australia by boat would be transferred to Malaysia and their claims for refugee protection carried out by the UNHCR. On the day of the agreement, the Minister for Immigration and Citizenship (“Minister”) declared under s 198A(3) of the Migration Act that Malaysia is a country to which asylum seekers can be sent.

However, the declaration was challenged at the High Court by two citizens of Afghanistan, an adult referred to as “M70” and an unaccompanied child referred to as “M106”. Both were being detained at Christmas Island by the Department of Immigration and Citizenship, and both were liable to being transported to Malaysia under the Arrangement.

Central to their challenge was the criteria that must be satisfied for the Minister to make a declaration of a country that an “offshore entry person” may be taken to.  The criteria are contained in section 198A of the Migration Act. Sub-section (3) provides that the Minister may declare that a country provides: (1) access to effective procedures for assessing refugee status, (2) protection in the mean time, (3) protection of those granted refugee status, and (4) that the country “meets relevant human rights standards in providing that protection”.

The key to understanding the Malaysia Solution case is contained in one paragraph – paragraph 106 – of the reasons of the joint majority judgement (made by Justices Gummow, Hayne, Crennan and Bell):

… Section 198A(3)(a) does not refer to the Minister being satisfied of the existence of those criteria … Rather, the Minister is given a discretion, and thus has power, to declare that a specified country has the relevant characteristics. On its face, it is not a power to declare that the Minister thinks or believes or is satisfied that the country has those characteristics.

In other words, the criteria – such as the requirement that a destination country “meets relevant human rights standards” – is not satisfied by the subjective opinion of the Minister, but on an objective assessment of the protections that a destination country provides. The criteria are questions of fact (technically called ‘jurisdictional facts’ as the jurisdiction or power of the Minister is not enlivened except where the facts exist). In other words, Malaysia did not (and does not) have the required protections in place. The Minister’s declaration of Malaysia as a destination country was therefore found to be invalid, being beyond the power of the Minister under the section 198A(3) of the Migration Act.

The Oakeshott Solution

The Oakeshott Solution – more specifically the Migration Legislation Amendment (The Bali Process) Bill 2012 – quite simply changes the criteria by which a destination country is lawfully designated. First, it completely repeals section 198A as it was. Secondly, it inserts a new set of sections (198AA-AH) under the heading “Subdivision B: Offshore assessment”. Section 198AA sets out five reasons for the new sections. These include the desire to address people smuggling and the loss of life at sea, to allow the Minister to decide which countries should be those in which offshore assessments can take place, and the removal of various criteria allowing such a decision.

Following on from these reasons, section 198AB makes clear the only criteria for declaring a country to be an “offshore assessment country”, beyond the fact that “the country is a party to the Bali Process”, is that the Minister “thinks” – a clearly subjective term – that the declaration is in the national interest.  In considering national interest, the Minister “must have regard to whether or not the country has given Australia any assurances” about its intended treatment and assessment of transferees. The use of the words “have regard to” effectively mean that as long as the Minister considers the existence or non-existence of any assurances, he or she may make any decision.

The Oakeshott amendments, then, remove any objective criteria associated with human rights.

In short, there is no “jurisdictional fact” related to human rights standards in the new section 198AB. That is so despite subsection (4), which requires the Minister, after making a declaration, to request a statement of views from the IOM and UNHCR on protection and assessment arrangements in the destination country. It is somewhat strange that this “request” is to occur after the declaration, and there is no requirement of the Minister to have regard to it, such as in considering revoking the declaration. Again, this is somewhat odd given that the UNHCR already has profiles on countries freely available online, such as its profile on Malaysia.

Section 198AC requires the Minister to provide to the Parliament documents related to his or her decision: reasons for thinking a declaration is in the national interest and details of IOM and UNHCR consultation.  The “sole purpose” of this is said to be “to inform the Parliament”, and that “nothing in the documents affects the validity of the designation”. Indeed, a failure to comply with this section altogether “does not affect the validity of a designation”.

In sum, any country that is a Bali Process member can be declared an offshore assessment country if the Minister personally thinks it in the national interest and even vaguely turns his or her mind to the existence or non-existence of assurances as to assessment procedures in that country. The Oakeshott amendments, then, remove any objective criteria associated with human rights – the fact of their recognition as a precondition to a declaration – replacing them with a subjective national interest consideration by the Minister. The new sections are carefully and repeatedly worded so as to resist any legal challenge; as the public interest standard is not to be judged objectively it is therefore not subject to review by Courts as happened in the Malaysia Solution case. The declaration cannot be beyond the power of the Minister under the Migration Act if there is no relevant human rights compliance “fact” that must first give rise to the power.

Finally, section 198AD deals with the removal of asylum seekers to declared countries. It gives power to an “officer” to forcibly take an “offshore entry person” to a declared country. In that respect, if there are two or more declared countries, the Minister must decide which country a particular person or class of persons is to be taken to. Again, this decision is to be based on what the Minister ‘”thinks … is in the public interest”.

The Opposition Solution & the Greens Solution

The Opposition Liberal Party opposed the Oakeshott Solution ostensibly on the basis that Malaysia is not an appropriate destination as it has not signed the United Nations Convention on Refugees (“Convention”) and the Protocol Relating to the Status of Refugees (“Protocol”), and can therefore be seen as lacking a human rights-compliant framework for processing asylum seekers. This same reason was behind its rejection of the Government’s wish to amend the Migration Act shortly after the Malaysia Solution case in September 2011.

In fact, not only would the Oakeshott amendments permit declaring Malaysia a destination country, including for minors such as “M106”, but it would permit the declaration of (Bali Process member) countries that many asylum seekers are fleeing for reason of persecution, including Afghanistan and Iran. Even Syria may be declared a destination country. It is inconceivable, of course, that such countries could, in their present states, be more than theoretical destinations.

Effectively, the Opposition wants a section 198A that is not so broad as to include Malaysia, and perhaps relevantly similar countries, but wide enough to include Nauru – its preferred offshore destination and one which was operational under the Howard-era “Pacific Solution”.

The Opposition’s own draft Bill achieves this by simply requiring, as a factual precondition to a declaration, that the destination country is “a party to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees”. Both the Convention and Protocol were signed by Nauru in July 2011. Malaysia remains a non-signatory to both.

An alternative “solution”, then, would be for Malaysia to sign both the Convention and Protocol, and for the Opposition’s amendments to be accepted.  The problem is this: behind both the Oakeshott and Opposition Solutions is the idea that Australia will be less attractive to asylum seekers if there is a policy of sending them to other countries. The Malaysia Solution makes it doubly unattractive, as the best one can say of likely treatment in Malaysia is that it is unpredictable. Indeed, the idea of repelling asylum seekers is the very rationale of the Malaysian Government in not signing the Convention and Protocol. And for that reason Malaysia still appears unwilling to sign.

The Greens, in contrast to the offshore push, advocate simply abiding by Australia’s international obligations: to process asylum seekers onshore in compliance with human rights standards. However, there is some chance of a comprise if a number of Greens amendments to the Oakeshott Bill are accepted. These include “immediate action” to increase Australia’s humanitarian intake to 20,000 per year and to establish a multi-party committee to develop a long-term regional solution based on the Convention and Protocol. If accepted by the Government, the amendment would be sent back to the House to be passed, and then again back to the Senate.

The Sunset Clause – Problems and Solutions

With the Oakeshott Bill passing the House of Representatives on Wednesday night, a move was made by independent MP Andrew Wilkie to add a “Sunset Clause”, meaning that it will be in effect for one year only if it does pass the Senate.  Presumably, this would numb the dissatisfaction with the Bill on offer by making it just another kick of the can down the road, but it could possibly allow enough time to develop what has proved to be an elusive “long-term” solution.

Whether or not the Bill passes the Senate, the story is set to continue. The platitude usually goes that you need to understand the problem before you can find a solution; understanding the “Solutions” in this case is the necessary starting-point.

Update …

By late afternoon, the Senate rejected the Greens amendments, leading the Greens to vote against the Bill with the Opposition. Reacting to the news, Prime Minister Gillard announced the appointment of an independent Expert Panel to make recommendations with “fresh eyes”.