‘[E]nables the establishment of a network of centres… where asylum seekers can go to be registered, have their immediate humanitarian needs met and lodge a preference for country of re-settlement… [It] does not allow mandatory detention’; applicants would have ample access to immigration assistance
The Refugee Protection Bill 2019 has been introduced and read a first time in the House of Representatives by independent MP Andrew Wilkie. According to SBS news, the Bill is backed by independent MP Kerryn Phelps.
Simplified outline
The Bill’s simplified outline reads as follows (emphasis added):
(1) This Act enables the establishment of a network of centres, located in and run by Asia Pacific countries including Australia, where asylum seekers can go to be registered, have their immediate humanitarian needs met and lodge a preference for country of re-settlement. If the asylum seeker selects Australia, and is within the specified quota, this Act establishes a process for assessing their claim in Australia with appropriate oversight, limited timeframes and judicial review.
(2) This Act does not allow mandatory detention and prioritises theapplicant’s immediate needs and refugee and international humanrights law.
The Migration Act 1958
The explanatory memorandum to the Bill includes the following passages (emphasis added):
As it is unconstitutional for a bill to direct the executive arm of government to enter into a regional agreement, this bill is enabling legislation only. It should be seen by the executive as a viable alternative toAustralia’s current asylum seeker policy as it has been developed in accordance with United Nations High Commissioner for Refugees (UNHCR) guidelines, the Refugees Convention and international human rights law.
This bill should be read as a primary bill as it requires the subsequent passage of consequential amendments. The interaction of this bill with the Migration Act is complex, as is the legal status and transitory arrangements for current asylum seekers and refugees if this bill is passed. The consequential amendments bill will address this, and any other inconsistencies with Commonwealth, state or territory law.
Immigration assistance & immigration legal assistance
The Bill includes the following provisions:
5 Definitions
(2): An expression used in this Act that is defined for the purposes of the Migration Act [1958] has the same meaning in this Act as it has in the Migration Act [1958].
25 Communication for the purpose of obtaining immigration assistance and immigration legal assistance
(2) An APASS [Asia Pacific Asylum Seeker Solution] applicant in immigration detention is entitled, at any time during business hours, to communicate and consult regarding immigration assistance or immigration legal assistance.
(3) All reasonable efforts are to be made to facilitate an APASS applicant to communicate or consult, outside business hours, regarding immigration assistance or immigration legal assistance if the need to communicate or consult is urgent.
(4) Adequate time and facilities are to be made available to an APASS applicant in detention for the purpose of receiving immigration assistance or immigration legal assistance.
(5) Without limiting subsection (4), an APASS applicant who is receiving immigration assistance or immigration legal assistance, or the APASS applicant’s legal counsel, may be required to be within sight, but must not be required to be within hearing, of others (including immigration detention staff).
Disclaimer: the above is a mere tentative analysis of a Bill. The views there expressed might not reflect the views of the Department, the AAT or the courts. The law or policies might have changed between the writing and reading of this article. The author of this article and Migration Law Updates disclaim any liability for any action (or omission) on their part based on any information provided (or not provided) in this article and are under no obligation to keep the general public nor practitioners informed about the matters discussed in this article or any other matters, or any future changes to any of those matters. It is the responsibility of each practitioner to obtain access to primary sources of law and policy by themselves and to carry out their own research and come to their own conclusions on legislation, case law, policies and more. This article is not intended for the general public.
Sergio Zanotti Stagliorio is a Registered Migration Agent (MARN 1461003). He is the owner of Target Migration in Sydney. He can be reached at sergio@targetmigration.com.au