In this post, Associate Professor Alexander Reilly explains the most recent report from the Legal and Constitutional Affairs Committee recommending the passing of the the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012 (UMA Bill). He argues that it confirms the Expert Panel Report on Asylum Seekers has usurped proper policy deliberation.

In late February, the Senate Legal and Constitutional Affairs Committee recommended that the Senate pass the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012 (UMA Bill). The Bill restricts the legal entitlement to apply for a protection visa of asylum seekers arriving by boat on the Australian mainland, thus putting these asylum seekers in the same position as asylum seekers arriving on excised off-shore places such as Christmas Island.  The Committee made its recommendation despite outlining the many objections to the Bill that had been canvassed with the committee in submissions and evidence. The objections included that the Bill breached many international treaty obligations, unfairly discriminated between asylum seekers based on their mode of arrival in Australia, placed an unsustainable burden on regional processing countries, unduly restricted access to the courts to asylum seekers.

The committee outlined these objections, but did not respond to them. It justified its support for the Bill on the basis that ‘any loss of life at sea by persons seeking asylum is simply not acceptable’. The rationale of saving lives at sea was accepted on its face, and the capacity of the Bill to contribute to the rationale was not questioned, despite submissions raising doubts on this point as well.

The rationale for the Bill to prevent loss of life is a key objective underpinning the recommendations of the Expert Panel on Asylum Seekers. The passing of the UMA Bill illustrates just how firmly entrenched the Expert Panel’s report is as the foundation for policy making on asylum seekers. The government used the report to break the deadlock between the government and the opposition on asylum seeker policy in August last year. It accepted all of the Expert Panel’s 22 recommendations and these recommendations have taken on an untouchable status.

Given the influence of the Expert Panel Report on subsequent policy making in this area, there needs to be greater scrutiny of the Expert Panel’s report, and the process of its creation. The three member Panel was commissioned in late June 2012 and was required to report to the Prime Minister before Parliament sat in August 2012, giving it 6 weeks to compile and table its report. In that time it consulted with 136 individuals, and received over 50 submissions from groups and organisations, and nearly 300 submissions from individuals. The task for the 3 member panel of reading, let alone properly considering these submissions, was monumental. It did not release a draft report for further public consideration.

To put the Expert Panel’s inquiry and report into some perspective, the government commissioned an inquiry into funding of schooling in July 2010. The 6 member panel chaired by David Gonski released an emerging issues paper early in the review process and received 1290 submissions in response to this paper. In August 2011, it released a Review of Funding for Schooling: Paper on Commissioned Research, which accompanied the public release of four research reports that it had commissioned on the issues for inquiry, and invited a final round of public submissions on this review of the research. The Panel presented its final report to the Minister, Review of Funding for Schooling: Final Report in December 2011. Although the Government has committed to implementing much of the Gonski report, it has already indicated that it does not accept all the recommendations. The report forms the basis for policy deliberation, but not a blueprint for policy formation.The role of the Gonski report is much more typical of the process by which government commissioned reports feed into the policy and law making process.

There is a clear contrast between the role of government reports on such areas as education and tax reform and the role of report of the Expert Panel on Asylum Seekers. The dogmatic adherence to the report of the expert panel by government and Parliament has replaced on-going policy deliberation in a highly complex area of policy. In relation to the UMA Bill, it relieved the Legal and Constitutional Affairs committee of drawing its own reasoned conclusions on the merits of proposed legislation.  Since the Expert Panel released its report, further developments on the ground have occurred that require a reconsideration of its recommendations, including:

• that boat arrivals have not slowed since regional processing commenced on Nauru and Manus Island, meaning that the government has only had the capacity to send approximately 1 in 18 boat arrivals for regional processing, the rest being detained on the mainland or released into the Australian community raising new policy considerations not canvassed by the expert panel;
• that conditions of detention on Nauru have been reported to be inhumane, and there have been consistent reports of detainees self-harming.

In the policy cycle, government commissioned reports should offer assistance to government in making policy. They should not replace independent government deliberation, or independent parliamentary scrutiny.

Alexander Reilly is an Associate Professor at the Adelaide Law School.