Migration (Validation of Port Appointment) Bill 2018

September 27, 2018

Australian lawyers for Human Rights has made a submission to the Senate Legal and Constitutional Affairs Legislation Committee regarding our serious concerns with the Migration (Validation of Port Appointment) Bill 2018. On 3 September 2018, ALHR President, Kerry West appeared before the Senate Legal and Constitutional Affairs Committee to give evidence about ALHR’s submission.

ALHR believes that the Bill not be passed and that much more detailed information about the current circumstances of those who would be affected by the Bill should be provided by the Government.

The effect of the Bill is to retrospectively apply the status of unauthorised maritime arrival under Australian law to a category of people to whom it does not currently apply. Whether or not a person is classified as an unauthorised maritime arrival (or UMA) has serious consequences for that person. Legislation that seeks to apply this category to a person retrospectively raises serious concerns in relation to human rights and the rule of law and should not be supported.

The group of people affected by the Bill is finite in number, and comprised of non- citizens who entered Australia by boat via the relevant territory prior to June 2013. It is not possible for this group to grow. Opportunities for this closed with the commencement of the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013. The Bill is therefore concerned with the historical and ongoing legal rights of a limited number of people.

The practical consequences of classification as a UMA for a person who arrived in 2012 or 2013 varied according to timing and fortune. The range of consequences variously included:

  • a statutory bar on visa applications and associated periods of open-ended detention in Australia;
  • transfer to a regional processing country (Nauru or Papua New Guinea);
  • ineligibility for a permanent protection visa; and
  • for protection visa applicants, the status of fast track applicant, resulting in
  • limitations on merits review rights.

The practical impact of the Bill depends significantly on the current status and circumstances of those affected, as well as the consequences of their mistaken historical classification as UMAs. This information will be subject to detailed analysis by the Department of Home Affairs, and ALHR considers that this analysis should be sought in full and adequately considered by the Committee prior to reporting.

The Bill would both have both retrospective and forward-looking impacts. It would interfere with rights that have accrued in the past, authorise treatment that was otherwise unlawful and impose the adverse consequences of UMA status upon those in Australia whose refugee status remains unresolved.

Read ALHR’s submission here