Summary

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The majority agreed that schedule 3 should remain as it is (in parliamentary jargon, they voted that "schedule 3 stand as printed"). This question was put to the Senate after Greens Senator Sarah Hanson-Young introduced a motion to oppose the schedule.

What is Schedule 3?

The bills digest highlights aspects of the schedule that are particularly significant. On the one hand, the schedule states that regulations can (but don't have to) set out criteria for certain visa types (including permanent and temporary protection visas). On the other, it makes an application for one of those visa types invalid if there aren't any regulations setting out relevant criteria.

So, it's not necessary to set out criteria for these visas in regulations. But, if the Immigration Minister doesn't, then it's not possible for people to make a valid application for those visas.

Senator Hanson-Young was particularly concerned with how this schedule may threaten Parliamentary scrutiny of regulations. If the Minister introduces a regulation that Parliament disagrees with, normally Parliament will vote to disallow that regulation. But under this schedule, disallowing a regulation would make any visa applications relying on it invalid. This puts pressure on Parliament to leave regulations as they are even if it disagrees with them.

Bill's main idea

The bill's main idea is to speed up the management of 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 "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)

Human rights issues

Some of the changes made by the bill may go against Australia's international law obligations. Particularly Australia's 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, the International Covenant on Civil and Political Rights and the United Nations Convention against Torture.

For example, the bill will insert a provision into the 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 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.

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 who arrived by boat without a visa between August 2012 and December 2013 and who have not been sent to be processed on Nauru or Manus Island. 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.

Votes Passed by a modest majority

Nobody rebelled against their party.

Party Votes
Australian Greens (90% turnout) 0 Yes 9 No
Sarah Hanson-Young SA No
Scott Ludlam WA No
Christine Milne Tasmania No
Lee Rhiannon NSW No
Janet Rice Victoria No
Rachel Siewert WA No
Larissa Waters Queensland No
Peter Whish-Wilson Tasmania No
Penny Wright SA No
Richard Di Natale Victoria Absent
Australian Labor Party (75% turnout) 18 Yes 0 No
Catryna Bilyk Tasmania Yes
Joe Bullock WA Yes
Doug Cameron NSW Yes
Kim Carr Victoria Yes
Jacinta Collins Victoria Yes
Stephen Conroy Victoria Yes
John Faulkner NSW Yes
Alex Gallacher SA Yes
Chris Ketter Queensland Yes
Sue Lines WA Yes
Joe Ludwig Queensland Yes
Anne McEwen SA Yes
Jan McLucas Queensland Yes
Claire Moore Queensland Yes
Deborah O'Neill NSW Yes
Nova Peris NT Yes
Lisa Singh Tasmania Yes
Glenn Sterle WA Yes
Carol Brown Tasmania Absent
Sam Dastyari NSW Absent
Kate Lundy ACT Absent
Helen Polley Tasmania Absent
Anne Urquhart Tasmania Absent
Penny Wong SA Absent
Ricky Muir Victoria Australian Motoring Enthusiast Party Yes
Nigel Scullion NT Country Liberal Party Yes
Gavin Marshall Victoria Deputy President Yes
Bob Day SA Family First Party Yes
Nick Xenophon SA Independent Yes
Jacqui Lambie Tasmania Independent No
John Madigan Victoria Independent Absent
David Leyonhjelm NSW Liberal Democratic Party Yes
Liberal National Party (100% turnout) 2 Yes 0 No
Matthew Canavan Queensland Yes
James McGrath Queensland Yes
Liberal Party (68% turnout) 17 Yes 0 No
Eric Abetz Tasmania Yes
Christopher Back WA Yes
Cory Bernardi SA Yes
David Bushby Tasmania Yes
Michaelia Cash WA Yes
Richard Colbeck Tasmania Yes
David Fawcett SA Yes
Concetta Fierravanti-Wells NSW Yes
Mitch Fifield Victoria Yes
Bill Heffernan NSW Yes
Marise Payne NSW Yes
Linda Reynolds WA Yes
Michael Ronaldson Victoria Yes
Anne Ruston SA Yes
Scott Ryan Victoria Yes
Arthur Sinodinos NSW Yes
Dean Smith WA Yes
Simon Birmingham SA Absent
George Brandis Queensland Absent
Mathias Cormann WA Absent
Sean Edwards SA Absent
David Johnston WA Absent
Ian Macdonald Queensland Absent
Brett Mason Queensland Absent
Zed Seselja ACT Absent
National Party (75% turnout) 3 Yes 0 No
Bridget McKenzie Victoria Yes
Fiona Nash NSW Yes
Barry O'Sullivan Queensland Yes
John Williams NSW Absent
Palmer United Party (100% turnout) 2 Yes 0 No
Glenn Lazarus Queensland Yes
Dio Wang WA Yes
Stephen Parry Tasmania President Absent
Totals (76% turnout) 48 Yes – 10 No