The Senate crossbench has supported the passing of broad new migration and maritime powers – but what exactly do they mean for the minister, asylum seekers and Australia’s obligations under international law?
Scott Morrison is now the most powerful person in the Australian government.
The passage of the migration and maritime powers legislation amendment (resolving the asylum legacy caseload) bill 2014 has given the immigration minister, while he holds that job, unprecedented, unchallengeable, and secret powers to control the lives of asylum seekers.
Previous immigration ministers have decried the burden and the caprice of “playing God” with asylum seekers’ lives, but the government has chosen, instead, to install even greater powers in the office of the minister.
With the Senate’s acquiescence, Scott Morrison has won untrammelled power.
No other minister, not the prime minister, not the foreign minister, not the attorney-general, has the same unchecked control over the lives of other people.
With the passage of the new law, the minister can push any asylum seeker boat back into the sea and leave it there.
The minister can block an asylum seeker from ever making a protection claim on the ill-defined grounds of “character” or “national interest”. His reasons can be secret.
He can detain people without charge, or deport them to any country he chooses even if it is known they’ll be tortured there.
Morrison’s decisions cannot be challenged.
Boat arrivals will have no access to the Refugee Review Tribunal.
Instead, they will be classed as “fast track applicants” whose only appeal is to a new agency, the Immigration Assessment Authority, but they will not get a hearing, only a paper review.
“Excluded fast track applicants” will only have access to an internal review by Morrison’s own department.
The bill is a seismic piece of legislation – one that destroys more than it creates.
The government argues the new law will remove the obstructions that exist to it fulfilling its mandate of “stopping the boats”.
asylum seeker boats Australian navy personnel transfer Afghanistan asylum-seekers to a Indonesian rescue boat near West Java. Due to the passing on the amendments, the government is now entitled to return an asylum seeker to a country where they have been, or it is known they will be, tortured. Photograph: AFP/AFP/Getty Images
Critics – and they are a formidable group, including the United Nations High Commissioner for Refugees, the UN’s Committee Against Torture and parliament’s own human rights committee – say the bill strips the checks and balances that have always existed in Australia’s immigration system, and removes basic protections for those who arrive seeking asylum.
Australia now regards itself as free from the bonds of the Refugees Convention – a treaty Australia helped write, and willingly signed up to, more than half a century ago. All references to it have been removed from Australian law.
Instead of adhering to the established, internationally-agreed framework for dealing with asylum seekers, Australia will follow a “new, independent and self-contained statutory framework”, that sets out the government’s own interpretation of international law.
That new interpretation is apparent in this bill. Refugee law is built upon the fundamental principle of non-refoulement, which forbids returning a person to their persecutors.
It is exists not only in the Refugees Convention, but in customary law. It is recognised by every country.
Australian law now says: “it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen”.
Stripped of the legalese, that paragraph says Australia is now entitled to return an asylum seeker to a country where they have been, or it is known they will be, tortured.
Overwhelmingly, the public focus of the legislation, and the sharp end of Senate negotiations, has been around temporary protection visas (TPVs), though they form only a small part of the bill.
TPVs have been trialled in Australia before and failed. Between 1999 and 2007 (when they were abandoned) Australia granted 11,206 TPVs. And 95% of those visa holders were ultimately granted permanent protection.
The number of boat arrivals to Australia increased after the introduction of TPVs, and more of those arrivals were women and children. (Because the TPVs forbade family reunion, entire families climbed onto boats, or women and children came to meet men already in the country.)
In the Senate horse-trading, significant concessions have been won.
Morrison has been forced to capitulate on his most fundamental commitment – the pathway to permanence – but it is a concession in principle, and name only.
In amendments to the legislation, the government has opened up the possibility – though it appears an exceedingly remote likelihood – of a temporary protection visa progressing to a permanent visa in Australia.
On November 25, Morrison said: “There’s no way I will lift the bar to give someone a permanent visa. We gave an absolute commitment on that and I’m not going to send a message … that permanent visas are on offer in Australia again for people who have arrived illegally by boat.”
This week he said, “at the end of a Special Humanitarian Enterprise Visa people can apply for visas which include permanent visas”.
The door has been opened, if only a sliver, to the possibility of a permanent visa to stay in Australia for someone who arrived by boat. But it is an unlikely reality for anyone, Morrison has said.
While anxious to keep the “sugar off the table” for asylum seekers, Morrison has offered the Senate crossbench a series of sweeteners in exchange for their votes this week.
He has promised to soften the cuts to Australia’s humanitarian refugee intake.
The government had planned to cut the number of offshore refugees resettled by Australia from 20,000 to 13,750. The new intake will be 18,750 over the next four years.
Asylum seekers will be moved off Christmas Island to the mainland of Australia while their claims are processed. Up to 468 children will be released from detention.
And about 25,000 people currently living in Australia on bridging visas will be given the right to work.
These are significant concessions, but they are decisions Morrison could have made at any time, and they are not – despite efforts to portray them as such – in any way related to the new law.
Manus Island and Nauru currently hold 2,151 refugees and asylum seekers. Detention centres there have been blighted by violence, sexual assault, and suicide attempts, but are unaffected by the new laws, or the government’s concessions.