The Australian Government has decided to make a number of changes to the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (the Bill). The Bill eliminates the distinction between unauthorised boat arrivals at an excised offshore place and those who reach the mainland.
The proposed changes do not alter the thrust of the Bill or the fundamental principles of the Government's offshore processing system. The Government remains committed to strengthening Australia's border protection measures and believes the Bill is important to achieving that goal.
The changes received strong majority support from members of the Government party room at a meeting held earlier this evening.
The changes extend the essential principles adopted by the Government last year in relation to the processing of people in immigration detention in Australia. With these changes, the passage of the Bill offers improved conditions for people in Offshore Processing Centres (OPCs).
The proposed changes reflect the Government's intention that women, children and families in OPCs, following primary processing, would be housed in residential-style accommodation in a community setting.
With passage of the Bill the Migration Act will be amended to make it clear that the principle that children should only be detained "as a measure of last resort" will also apply to offshore processing.
The Act will also be amended to clarify the Minister's power to direct that the staff of the Department of Immigration and Multicultural Affairs (DIMA) work with host governments to seek to put in place appropriate accommodation arrangements to ensure that families, in particular women and children, are placed in residential accommodation.
In Nauru the Government intends to establish residential-style accommodation for women, children and families in a community setting. Families would be free to come and go consistent with their Nauruan visa requirements.
The Government will amend the Act to provide the Minister with a non-compellable and non-reviewable power to issue a visa to people taken to OPCs where the Minister is satisfied that it is in the public interest to do so. This effectively extends the Minister's current power, which was introduced as a result of last year's changes.
The Government will put in place administrative mechanisms to ensure making a decision on a person's request for refugee status is made where possible within three months. Arrangements will also be put in place to ensure reviews are completed within three months where possible.
To reflect the reports provided in relation to the processing of onshore Protection Visa applications, the Act will be amended to include reporting on the achievement of this target time for processing and review, including the instances where timeframes are not met and the reasons why. All reporting will be de-identified to comply with privacy and protection requirements.
The Government will amend the Bill to make clear on the face of the Act that the Ombudsman has powers to investigate the actions of DIMA officers overseas, including in relation to refugee assessment processes in OPCs, while enhancing those powers through the provision for mandatory tabling of statements of all reports received from the Ombudsman.
The Government will also amend the Bill to specify that the Minister can refer matters to the Ombudsman for investigation, which will include requesting that the Ombudsman review the cases of people in the OPCs who have been resident there for more than two years. The Ombudsman may make any recommendations he sees fit. No recommendation of the Ombudsman will in any way bind the Minister.
Those amendments to the Bill will be circulated tomorrow and will be moved by the Government during debate on the Bill in the House when the Parliament resumes for the Spring Sitting.
The changes follow detailed discussion between Government members and the Minister for Immigration and Multicultural Affairs. They also reflect the Government's response to the Senate Committee's report on the Bill.
Details of the proposed changes are attached.
ATTACHMENT
PROPOSED GOVERNMENT CHANGES TO THE PROVISIONS OF THE MIGRATION AMENDMENT (DESIGNATED UNAUTHORISED ARRIVALS) BILL 2006 AND THE PROCESSES TO APPLY TO DESIGNATED UNAUTHORISED ARRIVALS
The Government remains committed to strengthening Australia's border protection measures, consistent with Australia's international obligations, and believes this legislation is important to achieving that goal. The legislation eliminates the distinction between unauthorised boat arrivals at an excised offshore place and those who reach the mainland. The changes will apply to all unauthorised boat arrivals regardless of their nationality. The policy reflects the Government's strong commitment to effective border control while ensuring we continue to meet our international obligations.
Some changes have been suggested to aspects of the Bill. The Government has considered these issues and where possible has sought to accommodate these concerns where this would not effect the fundamental operation of the Bill or the offshore processing system.
Consistency with the Australian refugee determination The Government proposes a number of changes to ensure greater consistency between arrangements under the Bill and processes applying in Australia. These are achieved either through amendment to the Bill or the implementation of appropriate administrative arrangements.
Time limits: The Government notes that asylum seekers in Offshore Processing Centres (OPCs) are not applicants for Australian Protection Visas and that residence in the centres is not detention under Australian law. While it is not appropriate to address time limits for a non-statutory process through the Bill, the Government commits to making a decision on a person's request for refugee status within three months, where possible. To reflect the reports provided in relation to the processing of onshore Protection Visa applications, Part 8 D of the Bill will be amended to include reporting on the achievement of this target time for processing, including the instances where timeframes are not met and the reasons why. All reporting will be de-identified to comply with privacy and protection requirements. This will make arrangements for processing consistent with those that now apply in Australia following changes made last year.
Resettlement in Australia: The Government stands by its position that it will continue to comply with its obligations under the UN Refugees Convention. Individuals who wish to make a claim for asylum will be able to do so, their claims will be properly considered, and if their claim is upheld and protection is required, protection will be offered at an appropriate place. The first preference of the Government is that people found to be refugees will remain offshore until resettlement to a third country is arranged, as has occurred in the past. However, consideration for resettlement in Australia will continue to be given to those for whom resettlement opportunities in other countries are not available or appropriate (for example, people who have particular family links to Australia). The Government will maintain its commitment to ensuring that refugees are resettled as soon as possible while continuing to take into account considerations such as security assessments and any other relevant factors. Under the arrangements already in place with Nauru, Australia is effectively the place of last resort for resettlement, as the Government has undertaken to ensure that no asylum seeker will be left on Nauru indefinitely.
The Government understands that persons assessed to be genuine refugees should not be left indefinitely in an OPC. The Government is not prepared to set limits on the time allowed for resettlement as this may have the effect of entitling a person to enter Australia and unjustifiably undermine our territorial sovereignty and would encourage people not to cooperate with efforts to process and resettle them. However, the Government recognises that there is a point at which other options have been reasonably exhausted. In such circumstances the Government would exercise its discretion, as it has in the past, to bring genuine refugees to Australia. The Government will continue to apply this policy consistent with security assessments and any other relevant factors.
Children in detention: Accommodation at an OPC is not detention under Australian law. The Government remains committed to the principle in the Migration Act 1958 that children should only be detained "as a measure of last resort". The Government will amend the Bill to reflect that it will work with host countries to seek to uphold the principle where possible in relation to children taken to OPCs. It should be noted that host countries are sovereign nations and none of these arrangements would prevent host countries from making restrictions on movement of individuals. For example, an initial period of restriction for health checking and other processing may be required. However, this is consistent with the process which applies to those processed in Australia.
Independent legal advice: The Government provides publicly funded migration agent assistance to Protection Visa applicants in detention in Australia through a panel of private sector and 'not for profit' service providers. These arrangements will be expanded to include provision of similar levels of publicly funded support for people being processed in OPCs. This would typically involve deployment of teams of migration agents to prepare statements in support of refugee claims and then sit in on the refugee interviews conducted by the decision-maker. This arrangement would include funding for face-to-face contact between the adviser and client, such as through the initial and any review interviews, and also for other contact via telephone, fax or the internet. The Government will meet the reasonable costs associated with the extension of this migration agent assistance to designated unauthorised arrivals.
Discretionary power to issue a visa: The Government will amend the Bill to provide the Minister with a non-compellable and non-reviewable power to issue a visa to people taken to OPCs where the Minister is satisfied that it is in the public interest to do so, equivalent to the Minister's discretion in respect of onshore applicants. As applies in relation to onshore applicants, the Minister will have considerable flexibility to grant a visa that is appropriate to that individual's circumstances, including a Removal Pending Bridging Visa. When deciding whether or not to exercise this discretion, the Minister will take into account health and security issues. This will extend the Minister's power, which was introduced as part of changes made last year, to cover offshore processing.
Merits review: The Government will establish a pool of non-DIMA decision makers for the independent review of failed requests for refugee status. These review decision makers will primarily be drawn from those with experience on the Refugee Review Tribunal (either current members in an off-line capacity or former members). Arrangements to assign cases to individual members of the pool would be independent from DIMA, using random assignments of cases on the basis of availability to conduct reviews within the review timeframe. The Government commits to reviews being completed within three months, where possible and will amend the Bill to provide that reports on the arrangements for review of offshore refugee assessments, including details and qualifications of those appointed to the pool of review decision-makers and achievement of the target time for completing reviews, will be included in the current reporting requirements proposed in Part 8D of the Bill.
Review decision makers would report to the Minister for Immigration and Multicultural Affairs on the outcome of their assessments. To date reasons for decisions in the offshore processing centres have been provided orally. Under proposed new arrangements, reasons for decisions at primary and review stages would be provided in writing to the asylum seekers concerned.
Special measures for families and children The special health, welfare and educational needs of children remain foremost in the Government's and IOM's considerations. The Government has reviewed the arrangements for the accommodation of women, children and families and the Government intends to establish appropriate residential-style accommodation for these groups.
People in OPCs are not detained under Australian law. As a result, the Minister has no power to make a residence determination in respect of a person in an OPC and such a power cannot be created in Australian legislation. However, in Nauru, suitable accommodation is being sought in consultation with the Nauruan Government which will provide residential-style accommodation for women, children and families in a community setting. A suitable site has been identified with suitable housing structures which could be upgraded to an appropriate standard for use by families.
Security around such a village-style complex would be non-intrusive and designed to ensure the safety and protection of the women, children and families living there. It would be fenced, but residents would be able to enter and exit during the day on their own recognisance. The Nauruan Government will at least initially place a visa requirement on residents to be back in the village at night for their safety. It may be possible to have this requirement revisited after the village has been open for an initial period.
There would be no "locked gate" security, but night time access would be monitored and controlled by IOM-engaged private security personnel for safety reasons. Families would be able to secure their own premises and security staff would only be able to enter accommodation facilities at the request of or with the agreement of residents. Families would be free to come and go consistent with their Nauruan visa requirements.
The Government intends that women, children and families in OPCs would be housed in residential-style accommodation in a community setting, following primary processing.
The Bill will be amended to clarify the Minister's power to direct that DIMA staff work with the host governments to seek to put in place appropriate accommodation arrangements in individual cases to ensure that families, in particular women and children, are placed in residential accommodation in designated countries.
The Government will also ensure that IOM officers are trained in child protection issues and that the education needs of children are appropriately addressed, including through their attendance at local schools (in-principle agreement has been obtained from Nauru to this effect); through IOM employing staff with suitable child education skills; or through the provision of school aged education within the OPC in both English and the children's native language.
These changes will make arrangements for managing the needs of families and children consistent with those that now apply in Australia following changes made last year.
Ombudsman oversight
The Government will amend the Bill to make clear on the face of the Migration Act that the Ombudsman has powers over the actions of DIMA officers overseas, including in relation to refugee assessment processes in OPCs, while enhancing those powers through the provision for mandatory tabling of statements of all reports received from the Ombudsman. The Government will also amend the legislation to specify that the Minister can refer matters to the Ombudsman for investigation.
Paragraph 5(1)(b) of the Ombudsman Act 1976 allows the Ombudsman to investigate, of his own motion, any action, being action that relates to a matter of administration, taken by a Department. By subsection 3(5), for the purposes of the Ombudsman Act, action that is taken by an officer of a Department is deemed to be taken by the Department. Section 3C of the Ombudsman Act provides that the Act applies both within and outside Australia. Accordingly, the Ombudsman has jurisdiction to initiate own motion investigations in relation to actions taken by DIMA officers and other Australian officials at OPCs in relation to designated unauthorised arrivals.
The Government notes that legislating access for the Ombudsman is not possible given sovereignty issues relating to declared countries. However, the Government will commit to negotiate appropriate access arrangements with host countries to allow the Ombudsman to fulfil his role.
As noted above, persons in OPCs are not detained under Australian law. Accordingly the Government does not consider it appropriate to provide for mandatory statutory reporting on persons in OPCs. The Ombudsman's oversight over the actions of DIMA officials overseas, together with the provision under the Bill for the Minister to report to Parliament, will address any issues in this regard.
Costs of system
The Government will continue to manage the costs of the OPCs in the usual way, noting that there will be a difference between the expected costs of implementing these arrangements and DIMA's existing resourcing, which is based on maintaining capacity for 100 unauthorised arrivals per annum. If additional resources are required by the Ombudsman for expanded activities in relation to OPCs, additional resources will be provided.
Sunset Clauses and Review
The Government will amend the Bill to include provisions that commence five years after the legislation, which repeal the provisions which extend the operation of the offshore processing arrangements to all arrivals by sea to Australia. This would have the effect of returning the coverage of the legislation to its current position - that is, its application to persons who enter unlawfully at excised offshore places after the excision time for those places. Those who entered prior to this repeal would remain under the provisions of the Bill ensuring that the system operates seamlessly and that the sunset clause does not provide any incentive for asylum seekers to frustrate the process of resolving their claims in the context of an approaching sunset date.
The Government will also amend the Bill to require that it commission an independent review two years after the commencement of the legislation, with the report to be tabled by the Minister.