Submission on Government’s amendments to Migration Act

In August 2012, the Government commissioned expert panel reported on the politically plagued question of how Australia ought to address the question of asylum seekers who arrive on our shore by boat. (The full report can be accessed here). One of the panel’s recommendations was that Australia adopt a ‘no advantage’ principle – that is, ensure that asylum seekers gain no benefit by choosing to seek asylum through mechanisms other than those formally established by Australia.

In response to this, the Government introduced a Bill to Parliament, the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012. While it has been much reported that the Bill will excise the mainland from the migration zone, this is not what the Bill does. Rather, the Bill retains the current distinction between excised offshore places and other areas of the Australian territory, but introduces a new definition of ‘unauthorised maritime arrival’ that applies to persons arriving by boat to an excised offshore place or elsewhere in Australia. The Bill then applies the regime that was applied to persons who arrived in the excised offshore places to all unauthorised maritime arrivals. Thus, under the Bill, unauthorised maritime arrivals are subject to a regime where they are unable to apply for a visa under the Migration Act 1958 (Cth) unless the Minister decides to lift this restriction, and are liable to be sent to another country – namely Nauru or Manus Island (Papua New Guinea).

The Bill is currently under consideration by the Senate Legal and Constitutional Affairs Committee.

Three Adelaide Law School academics, Gabrielle Appleby, Associate Professor Alexander Reilly, and Dr Matthew Stubbs, have made a submission on the Bill. Their full submission can be accessed here.

In summary, the submission made two points:

1. The Bill should remove the provisions in the Migration Act that were inserted in 2001 that created ‘excised offshore places’ because under the new regime imposed by the Bill, this definition no longer serves any purpose; and

2. The amendments to the Migration Act contained in the Bill, and particularly the different treatment of asylum seekers who reach Australia by boat as against those asylum seekers who reach Australia by air, are inconsistent with Australia’s international obligations.



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