Migration (Validation of Port Appointment) Bill 2018

1 Introduction

1. The Commission makes this submission to the Senate Legal and Constitutional Affairs Legislation Committee in relation to the Migration (Validation of Port Appointment) Bill 2018 (Cth) (the Bill) introduced by the Australian Government.

2 Summary

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

3. The Bill seeks to retrospectively validate a legislative instrument issued by the then Minister for Immigration in 2002.  The instrument was declared invalid on 11 July 2018 in two proceedings heard by Smith J in the Federal Circuit Court.  A declaration in the same terms has since been made by the Full Court of the Federal Court in a separate proceeding.  One effect of the invalidity of the instrument is that asylum seekers who arrived in Australia at Ashmore Reef between 23 January 2002 and 31 May 2013 were not ‘unauthorised maritime arrivals’.  However, since their arrival they have been treated as though they were unauthorised maritime arrivals. 

4. The Bill aims to change the status quo and validate past acts by the Commonwealth that were taken based on the then understanding that this cohort of people were unauthorised maritime arrivals.  This would impact on the rights of the people in this cohort in a number of ways, in particular:

• whether the people were entitled to apply for a visa in Australia (including a protection visa)
• whether they were liable to be taken to a regional processing country
• if they were permitted to apply for a visa in Australia, whether they would have access only to limited merits review of any decision to refuse them a visa
• if they were ultimately granted a permanent visa, the priority that would be given to any later application for a visa by a family member to permit family reunion.

5. Two Parliamentary Committees have sought information from the Minister for Home Affairs about who will be affected by the Bill and how they will be affected.  The Commission agrees that this information is vital if an informed decision is to be made about whether the Bill should be passed.  The response given by the Minister for Home Affairs did not sufficiently answer these questions.

6. In addition, the Bill would limit certain human rights protected at international law.  In order to determine whether this limitation meets the requirements of international human rights law, the Commission considers that more information is needed about the purpose of the Bill and the degree of the limitation on human rights.  This information is crucial in assessing whether the limitation is necessary and proportionate to the achievement of the Bill’s purpose.

7. The recommendations of the Commission are aimed at putting the Committee in the position to make this assessment.

3 Recommendations

8. The Commission makes the following recommendations.

Recommendation 1: The Commission recommends that the Committee ask the Minister for Immigration and Border Protection to provide:

(a) the number of non-citizens who entered the relevant waters of the Territory of Ashmore and Cartier Islands between 23 January 2002 and 31 May 2013 without a valid visa

(b) the number of non-citizens who entered the relevant waters of the Territory of Ashmore and Cartier Islands between 13 August 2012 and 31 May 2013 without a valid visa

(c) in particular, how many of the people in each of the groups described in (a) and (b), if any:

   (i) are in Australia and have not yet made an application for a protection visa

   (ii) have made an application for a protection visa that is yet to be finally determined

   (iii) have been granted a protection visa

   (iv) have had their application for a protection visa refused and finally determined but are still in Australia

   (v) have been taken to a regional processing country

   (vi) have been taken to a regional processing country and are still in that country

(d) how the persons in each of the categories above would have been treated if the 2002 appointment had not been made, and the extent of any detriment such persons may suffer if the 2002 appointment is retrospectively validated.

Recommendation 2: The Commission recommends that the Committee ask the Minister for Immigration and Border Protection to provide more detailed information regarding the purpose of the Bill and the reasons why the retrospective impact of the Bill on human rights is necessary and proportionate for the achievement of that purpose.

Recommendation 3: The Commission recommends that any recommendation by this Committee about whether the Bill should be passed include a detailed evaluation of the impact of the Bill on human rights and an assessment of whether this impact is necessary and proportionate to the achievement of a legitimate object.