Developments in Australian refugee law and policy (2012 to August 2013)

25 Sep 2014

Introduction: This Research paper provides a snap-shot of significant developments in refugee law and policy during the period 2012 to August 2013 when the 43rd Parliament was prorogued and the House of Representatives dissolved for a general election.

The commencement of 2012 saw the Government and Coalition remain at an impasse on offshore processing following the successful 2011 High Court challenge to the Government’s proposed Malaysia Arrangement. In the absence of bi-partisan support to implement statutory amendments to facilitate offshore processing, the Government began implementing a single visa processing framework for all asylum seekers which saw irregular maritime arrivals being processed in the same way as onshore protection visa applicants. That is, both began to be assessed under a statutory process with independent merits review by the Refugee Review Tribunal (RRT) and have equal access to judicial review of negative decisions.

However, by mid-2012, the report of the Expert Panel on Asylum Seekers had been released and without delay, the Government begun implementing key recommendations, including the introduction of legislation to support the transfer of asylum seekers to regional processing countries, and creating capacity in Nauru and Papua New Guinea (PNG) to process asylum claims. The Government had also increased its Humanitarian Program to 20,000 places per year (with a minimum of 12,000 places being allocated for refugees), and it had removed family reunion concessions for proposers who had arrived through irregular maritime voyages.

By the end of 2012, the Government had also begun implementing the Expert Panel’s ill-defined ‘no advantage’ principle to prevent boat arrivals benefitting from circumventing regular migration arrangements. It implemented this principle by selecting and transferring some boat arrivals to the regional processing centres in PNG and Nauru. The principle was also applied to an increasing number of asylum seekers released into the community on the mainland on bridging visas by denying them the opportunity to work and offering them only limited financial support. Significantly, these boat arrivals also remained ineligible for the grant of protection visas ‘until such time that they would have been resettled in Australia after being processed in our region’. However, the Government never clarified the number of years it envisaged these asylum seekers would wait for final resolution of their status, nor did it rule out the possibility of sending them offshore at a later date. The Government subsequently estimated that some 19,000 asylum seekers living in the community were subject to the ‘no advantage’ principle.

Two months before the 2013 federal election and in the wake of growing support for the Opposition’s tougher border protection policies, newly appointed Prime Minister, Kevin Rudd made a surprise announcement on 19 July 2013 that Australia had entered into a Regional Resettlement Arrangement with PNG. Under the Arrangement, all asylum seekers that henceforth arrive by boat would be liable for transfer to PNG for processing and resettlement in PNG and in any other participating regional State. He subsequently makes a similar Memorandum of Understanding (MOU) with Nauru. Notwithstanding the Government’s policy shift, the Australian Labor Party was unable to secure another term in office and on 7 September 2013, the Liberal and National parties were voted in to form a Coalition Government, led by Tony Abbott. This paper provides a brief chronology of these and other significant events during the reporting period. It also outlines key legal developments by examining significant Federal and High Court judgments and provides a brief overview of the Bills that were introduced. The paper also briefly examines key policy developments and provides an overview of significant reports and parliamentary inquiries finalised during the reporting period. In doing so, this paper builds upon previous Parliamentary Library publications, Developments in Australian refugee law and policy 2010—2011 and Developments in Australian refugee law and policy 2007–10: Labor’s first term in office.

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