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

The majority agreed that schedule 5 should remain as it is (in parliamentary jargon, they voted that "schedule 5 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 5?

This schedule makes changes that may go against some of Australia's international law obligations, particularly in respect to non-refoulement and the definition of a refugee.

Non-refoulement

The non-refoulement obligation stops Australia from sending people to places where their lives or freedoms are threatened. Australia has this obligation 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.

Schedule 5 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.

Refugee definition

Under the Convention relating to the Status of Refugees, a refugee is any person who:

'owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.'

Schedule 5 inserts new definitions for some of these requirements, including new definitions of ‘well-founded fear’ and ‘membership of a particular social group other than family’. It also removes several references to the Refugee Convention from the Migration Act.

The bills digest suggests that these changes have been made "at the very least to limit Australia’s obligations under the [Refugee] Convention and curtail the way in which such obligations are interpreted by the judiciary".

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)

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.