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2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Migration Amendment (Ending the Nation's Shame) Bill 2014
EXPLANATORY MEMORANDUM
Circulated by authority of
Andrew Wilkie MP
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Ending the Nation's Shame) Bill 2014
This bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
This is a Bill to amend the Migration Act 1958 (`the Act') to afford specific rights to non-citizens
who travel or are brought to Australia which they are currently denied under existing legislation.
The rights to be instated include; an end to temporary protection visas; a cessation of all offshore
processing and mandatory detention; full access to Centrelink, Medicare and work rights for those
on Protection and Bridging class visas; and a bolstering of the right to review and appeal provisions
though all legal mechanisms available under the Act. It is not illegal to seek asylum under
international law, and this Bill ensures that all those who arrive in Australia's migration zone are
treated with compassion and allowed to access all the resources to ensure a fair processing of their
claim on an equal basis.
Human rights implications
This Bill engages with Australia's responsibility under the Convention and Protocol Relating to the
Status of Refugees (`the Refugee Convention'). Most importantly, the Refugee Convention
provides under Article 31 that no person seeking asylum shall be penalised for arriving in the
country of refuge illegally if they present themselves for processing on arrival. The current system
treats irregular maritime arrivals differently from those who arrive by air which is direct
contravention of their right to seek asylum. The Bill also honours the spirit of Articles 16 and 17,
which relate to access to a fair judicial system and wage-earning employment respectively.
The Bill also engages with numerous provisions of the Universal Declaration of Human Rights
(UDHR). Article 9 provides that no-one shall be subjected to arbitrary detention. Article 5 provides
freedom from cruel, inhuman or degrading treatment. Article 14 provides everyone with the right to
seek asylum. This Bill will correct the legislative provisions that are contrary to these fundamental
rights and thereby ensure that all future refugees are afforded fair and humane treatment.
This Bill would rectify the breaches of Australia's obligations under the United Nations Convention
on the Rights of the Child (UNCRC) which are occurring under the existing legislative framework.
Some examples include Article 9 stating that children should not be separated from their parents
unless it is in their interests and Article 22 stating that children who are refugees should not be
discriminated against on the basis of their refugee status.
Conclusion
This Bill is not only compatible with human rights but necessary to bring Australia in line with
international humanitarian law. Without this Bill, Australia will be operating contrary to and
incompatibly with its human rights obligations.
Mr Andrew Wilkie MP, Member for Denison
Migration Amendment (Ending the Nation's Shame) Bill 2014
DETAILED NOTES ON CLAUSES
Clause 1: Short Title
1. This clause is a formal provision and specifies the short title of the Bill, once
enacted, as the Migration Amendment (Ending the Nation's Shame) Act 2014.
Clause 2: Commencement
2. This clause provides for the commencement of all Sections of the Act the day the
Act receives the Royal Assent.
Clause 3: Schedule(s)
3. This clause provides the legislative mechanism by which the Migration Act 1958
can be amended to effect the changes outlined in this Bill.
Schedule 1 - Amendments
Migration Act 1958
Item 1: Section 4
1. Item 1 repeals subsection 4(5) to remove mention of regional processing from the
object of the Bill.
Items 2-7: Section 5
2. Items 2 through 7 inclusive are technical amendments that clarify definitions relating
to asylum seekers including, but not limited to, removing the entries for
`unauthorised maritime arrival', `regional processing country', and `transitory person'
from the definitions section 5(1) as the terms no longer appear in the Bill.
Item 8: Section 5AA
8. Item 8 repeals the section defining and outing the process for identifying
unauthorised maritime arrivals.
Item 9: Section 5A
9. Item 9 repeals the subsection 5A(3)(j) to remove reference to the opportunities that
may or may not have existed to avail themselves of protection prior to entering
Australia's migration zone.
Item 10: Section 36
10. Item 10 inserts the word `permanent' into the Protection visa class establishment
clause 36(1) to provide qualification and clarity that there will be no more temporary
protection visas.
Item 11: After section 41
11. Item 11 inserts a new section that provides; firstly, both Protection and Bridging
class visas issued under the Act must allow the visa holder access to work rights,
Centrelink benefits and Medicare benefits; and secondly, all these benefits must be
provided on an equal level with the eligible domestic recipient receiving an
equivalent benefit. The reference to work rights does not engage with mutual
degree recognition or allow work rights without qualification; it simply removes the
current restriction that those holding the abovementioned visa classes are unable to
engage in any employment.
Item 12: Section 46A
12. Item 12 repeals section 46A which, in its current form, prevents irregular maritime
arrivals from being able to apply for a visa on equal basis with other refugee
arrivals. This Item also removes reference to unauthorised maritime arrival.
Items 13-14: Section 73
13. Items 13 through 14 inclusive provide a requirement that the Minister will be
deemed satisfied of a non-citizen's eligibility if the proposed new subsection
189(4A) applies in relation to the issue of a Bridging visa.
Item 15: After subsection 189(4)
15. Item 15 inserts a qualifying section in relation to detention of unlawful non-citizens
limiting the amount of time an arrival can be held to fourteen days before the person
must be released; either through the Minister concluding the person's application or
issuing a Bridging visa in accordance with section 73.
Item 16: Section 196
16. Item 16 repeals paragraph (aa) in subsection 196(1) that voids the expiry of
detention duration if an authorised officer begins processing the person under the
provisions on unauthorised maritime arrivals, in effect allowing an indefinite
detention. It is also necessary to repeal this paragraph as the provision to which it
refers is to be repealed under Item 18.
Item 17: Section 198
17. Item 17 repeals section 198(11) to remove reference to unauthorised maritime
arrival and reference to section 198AD which is to be repealed as described in
Item 18.
Item 18: Subdivision B of Division 8 of Part 2
18. Item 18 repeals sections 198AA to 198AJ inclusive to remove the option of offshore
regional processing as a method of removing unlawful non-citizens as prescribed by
Division 8 of the Act.
Item 19: After section 198
19. Item 19 inserts a new section 198A relating to the Minister's reporting requirements
that provides; firstly, that the Minister shall table a report within three months of this
Bill receiving Royal Assent that outlines the number of refugee arrivals and the
number of protection visas granted; and secondly, that an update containing the
same information shall be provided every six months following that first report.
Item 20: Section 199
20. Item 20 repeals subsection 199(4) which allows removal for regional processing
and substitutes a new paragraph which specifies that a dependent child or children
must remain with at least one parent for all periods of detention and travel. The use
of `unlawful' is for linguistic consistency with the section of the Act and is not to be
taken to infer or suggest that seeking asylum is in any way illegal.
Items 21-23: Section 336F
21. Items 21 through 23 inclusive remove reference to unauthorised maritime arrivals in
relation to identifying information.
Item 24: Section 474
24. Item 24 removes reference to section 198AE which would be repealed under
Item 18.
Item 25: Section 494AA
25. Item 25 repeals the section that prevents unauthorised maritime arrivals from
accessing an adequate range of legal proceedings in relation to their arrival,
affording them equal rights as other asylum seekers.
Item 26: Section 494AB
26. Item 26 removes reference to `transitory persons' as the term relates to
Subdivision B of Division 8 of Part 2.
Item 27: After section 499
27. Item 27 inserts a new section 499A that clarifies the rights of all asylum seekers are
the same, regardless of the manner or method of their arrival into Australia's
migration zone.