Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014

The majority disagreed that the government can and should process the 30,000 unprocessed asylum seeker claims immediately and also immediately release all children from immigration detention. This motion was proposed by Greens Senator Rachel Siewert on behalf of Greens Senator Sarah Hanson-Young.

Background to the motion

Immigration Minister Scott Morrison told cross-benchers such as Motoring Enthusiast Party Senator Ricky Muir that "if this bill does not pass, the 30,000 people currently awaiting processing will continue to be left in limbo ... [and] the 1,550 people who arrived between 19 July 2013 and the election would be sent to Nauru" (see Senator Muir's contribution). Senator Muir said that, in light of the Minister's comments, he was left with "one of the hardest decisions I have had to face—a choice between a bad option and a worse option" (see his contribution). In the end, he said he would support the bill (that is, take the bad option) (see ABC News for more information).

Greens Senator Sarah Hanson-Young said there are currently 559 children in Australian-based detention centres and 167 children detained on Nauru. She condemned Minister Morrison for "using the suffering of these children in detention as a disgusting bargaining chip" to pressure cross-benchers like Senator Muir into passing the bill (see her whole contribution). With this motion, the Greens were trying to get the Senate to acknowledge that the Immigration Minister could release these children and process the remaining applications immediately (that is, without waiting for this bill to be passed) and to urge him to do so.

Bill's main idea

The bill's main idea is to speed up the management of asylum seekers' claims and support the Government's policies that stop asylum seekers from coming to Australia by boat (for example, by intercepting the boats and turning them around). It also re-introduces temporary protection visas "because the Government is of the view that those who arrive by boat without a valid visa should not be rewarded with permanent protection" (see the bills digest)

Human rights issues

Some of the changes made by the bill may go against Australia's international law obligations. Particularly Australia's non-refoulement obligations, which stop Australia from sending people to places where their lives or freedoms are threatened. Australia has these obligations because it signed up to the Convention relating to the Status of Refugees, the International Covenant on Civil and Political Rights and the United Nations Convention against Torture.

For example, the bill will insert a provision into the Migration Act 1958 that says that Australia’s non-refoulement obligations are not relevant to removing people who are not citizens and don't have a visa. The bills digest explains that this change would mean courts won't be able to stop the Government from removing people just because it is against Australia’s non-refoulement obligations. In other words, the Government wants to decide how to apply those obligations by itself, without any potential judicial oversight.

For more about which changes may go against these obligations and how, see the bills digest.

Background to the bill

The title of the bill says it is about "resolving the asylum legacy caseload". This refers to the asylum claims made by asylum seekers who arrived by boat without a visa between August 2012 and December 2013 and who have not been sent to be processed on Nauru or Manus Island. The Coalition Government says this caseload of asylum claims is the result of the previous Labor Government's policies.

During the 2013 election campaign, the Coalition said it would address this caseload and the changes made in this bill are part of their effort to do this.

More information on the background to the bill is in the bills digest.