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senate vote 2014-12-04#15

Edited by mackay

on 2014-12-11 18:57:56

Title

Description

  • The majority agreed that schedule 4 should remain as it is (in parliamentary jargon, they voted that "schedule 4 stand as printed"). This question was put to the Senate after Greens Senator [Sarah Hanson-Young](https://theyvoteforyou.org.au/people/senate/sa/sarah_hanson-young) [introduced a motion](http://www.openaustralia.org.au/senate/?gid=2014-12-04.213.1) to oppose the schedule.
  • ### What is Schedule 4?
  • The schedule creates a new fast track form of merits review for certain decisions to refuse to give a protection visa. 'Merits review' is a review of a decision by another body that is based on the merits of the applicant's claim. Effectively, the other body re-makes the decision. This new review process only applies to particular visa applicants, including people who arrived in Australia by boat on or after 13 August 2012 (see 'fast track applicant' in [item 1](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=LEGISLATION;id=legislation%2Fbills%2Fr5346_aspassed%2F0005;query=Id%3A%22legislation%2Fbills%2Fr5346_aspassed%2F0001%22;rec=0)), and will be conducted by the newly created Immigration Assessment Authority (IAA).
  • The schedule creates a new fast track form of merits review for certain decisions to refuse to give a protection visa. 'Merits review' is a review of a decision by another body that is based on the merits of the applicant's claim. Effectively, the other body decides whether the decision was good or bad in the circumstances and whether they want to confirm or re-make the decision. This new review process only applies to particular visa applicants, including people who arrived in Australia by boat on or after 13 August 2012 (see 'fast track applicant' in [item 1](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=LEGISLATION;id=legislation%2Fbills%2Fr5346_aspassed%2F0005;query=Id%3A%22legislation%2Fbills%2Fr5346_aspassed%2F0001%22;rec=0)), and will be conducted by the newly created Immigration Assessment Authority (IAA).
  • The schedule also excludes certain [asylum seekers](http://en.wikipedia.org/wiki/Refugee#Asylum_seekers) from having access to merits review altogether (see 'excluded fast track review applicant' in [item 1](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=LEGISLATION;id=legislation%2Fbills%2Fr5346_aspassed%2F0005;query=Id%3A%22legislation%2Fbills%2Fr5346_aspassed%2F0001%22;rec=0)).
  • Senator Hanson-Young [said that](http://www.openaustralia.org.au/senate/?gid=2014-12-04.213.1) the schedule "was the most fundamental concern of refugee advocates and lawyers who submitted to the Senate's inquiry into this piece of legislation ... [because] [i]t is stripping away people's ability to ensure that they get a fair hearing".
  • Read more about the issues raised by the changes in schedule 4 in the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd040).
  • ### Bill's main idea
  • The bill's main idea is to speed up the management of [asylum seekers](http://en.wikipedia.org/wiki/Refugee#Asylum_seekers)' claims and support the Government's policies that stop asylum seekers from coming to Australia by boat (for example, by intercepting the boats and turning them around). It also re-introduces [temporary protection visas](http://en.wikipedia.org/wiki/Temporary_protection_visa) "because the Government is of the view that those who arrive by boat without a valid visa should not be rewarded with permanent protection" (see the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd040))
  • ### Human rights issues
  • Some of the changes made by the bill may go against Australia's [international law](http://en.wikipedia.org/wiki/International_law) obligations. Particularly Australia's [non-refoulement](http://en.wikipedia.org/wiki/Non-refoulement) obligations, which stop Australia from sending people to places where their lives or freedoms are threatened. Australia has these obligations because it signed up to the [Convention relating to the Status of Refugees](http://en.wikipedia.org/wiki/Convention_relating_to_the_Status_of_Refugees), the [International Covenant on Civil and Political Rights](http://en.wikipedia.org/wiki/International_Covenant_on_Civil_and_Political_Rights) and the [United Nations Convention against Torture](http://en.wikipedia.org/wiki/United_Nations_Convention_against_Torture).
  • For example, the bill will insert a provision into the *[Migration Act 1958](http://en.wikipedia.org/wiki/Migration_Act_1958)* that says that Australia’s non-refoulement obligations are not relevant to removing people who are not citizens and don't have a visa. The [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd040#_Toc401816905) explains that this change would mean courts won't be able to stop the Government from removing people just because it is against Australia’s non-refoulement obligations. In other words, the Government wants to decide how to apply those obligations by itself, without any potential judicial oversight.
  • For more about which changes may go against these obligations and how, see the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd040).
  • ### Background to the bill
  • The title of the bill says it is about "resolving the asylum legacy caseload". This refers to the asylum claims made by [asylum seekers](http://en.wikipedia.org/wiki/Refugee#Asylum_seekers) who arrived by boat without a visa between August 2012 and December 2013 and who have not been sent to be processed on [Nauru](http://en.wikipedia.org/wiki/Nauru_detention_centre) or [Manus Island](http://en.wikipedia.org/wiki/Manus_Island_Regional_Processing_Centre). The Coalition Government says this caseload of asylum claims is the result of the previous Labor Government's policies.
  • During the 2013 election campaign, the Coalition said it would address this caseload and the changes made in this bill are part of their effort to do this.
  • More information on the background to the bill is in the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd040#_Toc401816905).
senate vote 2014-12-04#15

Edited by mackay

on 2014-12-11 16:29:31

Title

  • Bills — Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014; in Committee
  • Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 - in Committee - Keep schedule 4 as it is

Description

  • <p class="speaker">Gavin Marshall</p>
  • <p>The question is that items 29 to 31, 37, 40, 41, 43 and 45 to 50 and division 2 of schedule 2 stand as printed.</p>
  • <p>Question agreed to.</p>
  • The majority agreed that schedule 4 should remain as it is (in parliamentary jargon, they voted that "schedule 4 stand as printed"). This question was put to the Senate after Greens Senator [Sarah Hanson-Young](https://theyvoteforyou.org.au/people/senate/sa/sarah_hanson-young) [introduced a motion](http://www.openaustralia.org.au/senate/?gid=2014-12-04.213.1) to oppose the schedule.
  • ### What is Schedule 4?
  • The schedule creates a new fast track form of merits review for certain decisions to refuse to give a protection visa. 'Merits review' is a review of a decision by another body that is based on the merits of the applicant's claim. Effectively, the other body re-makes the decision. This new review process only applies to particular visa applicants, including people who arrived in Australia by boat on or after 13 August 2012 (see 'fast track applicant' in [item 1](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=LEGISLATION;id=legislation%2Fbills%2Fr5346_aspassed%2F0005;query=Id%3A%22legislation%2Fbills%2Fr5346_aspassed%2F0001%22;rec=0)), and will be conducted by the newly created Immigration Assessment Authority (IAA).
  • The schedule also excludes certain [asylum seekers](http://en.wikipedia.org/wiki/Refugee#Asylum_seekers) from having access to merits review altogether (see 'excluded fast track review applicant' in [item 1](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=LEGISLATION;id=legislation%2Fbills%2Fr5346_aspassed%2F0005;query=Id%3A%22legislation%2Fbills%2Fr5346_aspassed%2F0001%22;rec=0)).
  • Senator Hanson-Young [said that](http://www.openaustralia.org.au/senate/?gid=2014-12-04.213.1) the schedule "was the most fundamental concern of refugee advocates and lawyers who submitted to the Senate's inquiry into this piece of legislation ... [because] [i]t is stripping away people's ability to ensure that they get a fair hearing".
  • Read more about the issues raised by the changes in schedule 4 in the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd040).
  • ### Bill's main idea
  • The bill's main idea is to speed up the management of [asylum seekers](http://en.wikipedia.org/wiki/Refugee#Asylum_seekers)' claims and support the Government's policies that stop asylum seekers from coming to Australia by boat (for example, by intercepting the boats and turning them around). It also re-introduces [temporary protection visas](http://en.wikipedia.org/wiki/Temporary_protection_visa) "because the Government is of the view that those who arrive by boat without a valid visa should not be rewarded with permanent protection" (see the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd040))
  • ### Human rights issues
  • Some of the changes made by the bill may go against Australia's [international law](http://en.wikipedia.org/wiki/International_law) obligations. Particularly Australia's [non-refoulement](http://en.wikipedia.org/wiki/Non-refoulement) obligations, which stop Australia from sending people to places where their lives or freedoms are threatened. Australia has these obligations because it signed up to the [Convention relating to the Status of Refugees](http://en.wikipedia.org/wiki/Convention_relating_to_the_Status_of_Refugees), the [International Covenant on Civil and Political Rights](http://en.wikipedia.org/wiki/International_Covenant_on_Civil_and_Political_Rights) and the [United Nations Convention against Torture](http://en.wikipedia.org/wiki/United_Nations_Convention_against_Torture).
  • For example, the bill will insert a provision into the *[Migration Act 1958](http://en.wikipedia.org/wiki/Migration_Act_1958)* that says that Australia’s non-refoulement obligations are not relevant to removing people who are not citizens and don't have a visa. The [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd040#_Toc401816905) explains that this change would mean courts won't be able to stop the Government from removing people just because it is against Australia’s non-refoulement obligations. In other words, the Government wants to decide how to apply those obligations by itself, without any potential judicial oversight.
  • For more about which changes may go against these obligations and how, see the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd040).
  • ### Background to the bill
  • The title of the bill says it is about "resolving the asylum legacy caseload". This refers to the asylum claims made by [asylum seekers](http://en.wikipedia.org/wiki/Refugee#Asylum_seekers) who arrived by boat without a visa between August 2012 and December 2013 and who have not been sent to be processed on [Nauru](http://en.wikipedia.org/wiki/Nauru_detention_centre) or [Manus Island](http://en.wikipedia.org/wiki/Manus_Island_Regional_Processing_Centre). The Coalition Government says this caseload of asylum claims is the result of the previous Labor Government's policies.
  • During the 2013 election campaign, the Coalition said it would address this caseload and the changes made in this bill are part of their effort to do this.
  • More information on the background to the bill is in the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd040#_Toc401816905).
  • <p>The CHAIRMAN: Senator Hanson-Young, we might move to your amendments on sheet 7641.</p>
  • <p class="speaker">Sarah Hanson-Young</p>
  • <p>I am not proceeding with amendments (2) to (7), (9) to (12) and (19) to (25) on sheet 7641, amendment (1) on sheet 7649 and amendment (8) on sheet 7641. The Greens oppose schedule 4 in the following terms:</p>
  • <p>(4) Schedule 4, page 57 (line 1) to page 89 (line 22), to be opposed.</p>
  • <p>This amendment deletes schedule 4 of the bill. Schedule 4 of the bill is what has been dubbed the fast-track legislation. This is the schedule that fundamentally changes the way people will have their refugee assessment made. The minister has argued that it creates a rapid process for asylum seekers who will be assessed under this caseload of 30,000. In reality, what this will do is strip away people's ability to appeal decisions and to ensure that the correct information about their cases is what is being used to make their assessments. It strips their ability to have their cases reviewed by the Refugee Review Tribunal. These amendments are all about the government trying to make it as hard as possible for somebody to be found to be a genuine refugee.</p>
  • <p>This schedule was the most fundamental concern of refugee advocates and lawyers who submitted to the Senate's inquiry into this piece of legislation. It is stripping away people's ability to ensure that they get a fair hearing, that after all these years of being locked in detention and then dumped in the community with nothing, people are being asked to be fast-tracked, shunted through a system where they do not have appeal rights, where they do not have the ability to make sure that the information they put forward is correct, and the minister himself is allowed to have such ultimate power that he can put big crosses next to these people's names and no-one is going to be able to have that reviewed or to know that those crosses that the minister has put next to their refugee assessment will be reviewed.</p>
  • <p>It is important to note that those who are found under this process to not be owed protection will become unlawful citizens&#8212;no right of appeal, no ability to check that the minister has made the right assessment. And they become unlawful citizens. And what happens then? Those people will go back into immigration detention, awaiting deportation. This whole argument that this is about getting people out of detention is actually a furphy, and this schedule exposes that. We know that over 60 per cent of cases are overturned because the first decision made was the wrong one. That means that over 60 per cent of the 30,000 people are going to not be found to be owed protection if this schedule passes. That does not mean that they are not refugees; it just means that the minister does not have to admit that a mistake was made. It makes it easier for him to stick them back into detention or on a plane back to Kabul, or to Quetta, or to whatever other place from which they have fled persecution.</p>
  • <p>The reason this is so fundamental is that it is about life and death. This is about how you assess somebody to be a refugee. We have spent most of the night in this place debating what happens once somebody is found to be a refugee&#8212;whether they get a temporary visa, whether it is a pathway to permanency&#8212;when in actual fact this is the crux of it: the minister wants the power to give fewer visas to people, full stop. He wants to be able to put more people on a plane and deport them back to danger. The schedule is fundamentally flawed. It is abhorrent to the rule of law, and it must not proceed.</p>
  • <p class="speaker">Kim Carr</p>
  • <p>The opposition was intending to move amendments in similar terms for the removal of schedule 4. Schedule 4 as it is currently presented&#8212;and if the Senate agrees&#8212;would have the effect of removing access to the Refugee Review Tribunal for certain asylum seekers to whom the government has given fast-track applications&#8212;a somewhat Orwellian concept. Now, in lieu of the Refugee Review Tribunal, the government is proposing that asylum seekers who have had their application for protection denied will be directed to a new body called the Immigration Assessment Authority. And one of the fundamental principles of administrative arrangements in this country is the access that people have to review of decisions that are taken by officers, providing&#8212;I think appropriately&#8212;a provision for natural justice and the opportunity to have decisions actually reviewed. And because of the very high percentage of cases that are actually overturned by the review mechanism, it is quite clear that such a body is necessary.</p>
  • <p>The new body the government is proposing&#8212;and if you support the measures in this bill you will be supporting this new body&#8212;will conduct only limited merit review of decisions, and it would deny the application for protection of applicants on the basis of a paper review. It will be on the papers; it will not necessarily be through any proper judicial standard of review. Unsuccessful asylum claimants will not have an opportunity to appear before such a body to actually argue their case. The review will be conducted by bureaucrats in a closed office. Asylum seekers will not have the opportunity to even make written submissions. Asylum seekers will not have the opportunity to be notified of adverse findings about them or respond to those findings. They will be denied the right of legal representation.</p>
  • <p>Now, I ask you to think about the implications of that. In any proper judicial process in this country you would have an expectation of legal representation. You would have an expectation that you would be told about the proceedings. You would have an expectation that you would actually be able to present your case. But under this measure none of those basic provisions or legal protections in this country are allowed. There are no prescribed grounds for a review to be conducted by such a body. It is a process that is entirely at the discretion of the reviewer. This strikes me as being fundamentally at odds with the judicial principles that we would have expected in this country.</p>
  • <p>Furthermore, the immigration assessment authority lacks institutional independence from the executive of government, which I would put to you is one of the touchstones of judicial review. But you do not have the minister ring up and put the fix in, and that is what these proposals would allow. You must have a legal process that stands up to scrutiny. And the IAA reviewers will not be employed by an independent statutory authority&#8212;which of course is the case with the Refugee Review Tribunal, or the Administrative Appeals Tribunal. Rather, these reviewers will be regular public servants employed under the Public Service Act. In performing their reviews, they will be required to comply with the practice directions and guidelines imposed by their superiors.</p>
  • <p>So, this is a proposition that provides no confidence of independent judicial review. What this measure suggests to me is a somewhat pale imitation of current practices with the Refugee Review Tribunal and falls dramatically short of the basic principles of fairness. I ask this chamber to consider the implications of endorsing such a process for people who have a genuine need to have their decisions reviewed by a proper, fair process. Simply put, if this proposition is upheld, asylum seekers will not be afforded natural justice. The basic principles of reasonable administrative decision making that we have all come to expect will be abandoned.</p>
  • <p>I think we would all defend an open and transparent review process, which of course the Refugee Review Tribunal upholds. That is to be scrapped and replaced with a team of bureaucrats, sitting in closed offices, subject to the direction of government and lacking the institutional independence of the Refugee Review Tribunal. That would mean that the government would take control of the review processes, when administrative decisions&#8212;as we all know, because of the representations we all have to take&#8212;have so often been demonstrated to be incorrect. The proposition that you have been asked to endorse is a 'trust me, trust the government' approach to justice. That is fundamentally contrary to the principles of the way in which our legal system is operated in this country. Rights and obligations of asylum seekers should not be at the mercy of executive government. Asylum seekers are entitled to a fair and independent, a transparent and credible, forum to have their claims assessed properly. That is why Labor senators will be opposing schedule 4 of this bill.</p>
  • <p class="speaker">Michaelia Cash</p>
  • <p>The government will not be supporting the amendment moved by the Australian Greens. Despite the statements made by Senator Hanson-Young and reiterated by Senator Carr, I can confirm to the Senate that the bill does not make any change to the judicial review rights. The bill contains the necessary procedural safeguards to ensure a fair process. Natural justice requirements will be observed as the IWA will be supported with a code of procedure in relation to the reviews that it conducts. So I confirm that there is no change to the judicial review rights.</p>
  • <p>The CHAIRMAN: The question is that schedule 4 stand as printed.</p>
  • <p></p>