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

The majority agreed that schedule 3 should remain as it is (in parliamentary jargon, they voted that "schedule 3 stand as printed"). This question was put to the Senate after Greens Senator Sarah Hanson-Young introduced a motion to oppose the schedule.

What is Schedule 3?

The bills digest highlights aspects of the schedule that are particularly significant. On the one hand, the schedule states that regulations can (but don't have to) set out criteria for certain visa types (including permanent and temporary protection visas). On the other, it makes an application for one of those visa types invalid if there aren't any regulations setting out relevant criteria.

So, it's not necessary to set out criteria for these visas in regulations. But, if the Immigration Minister doesn't, then it's not possible for people to make a valid application for those visas.

Senator Hanson-Young was particularly concerned with how this schedule may threaten Parliamentary scrutiny of regulations. If the Minister introduces a regulation that Parliament disagrees with, normally Parliament will vote to disallow that regulation. But under this schedule, disallowing a regulation would make any visa applications relying on it invalid. This puts pressure on Parliament to leave regulations as they are even if it disagrees with them.

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.