Lawyers call for legislative amendment to Migration Act

18th Jun 2014

The High Court’s decision in Plaintiff S156-2013 v Minister for Immigration and Border Protection highlights the lack of adequate protections in Australia’s migration law, the Australian Lawyers Alliance said today.

The case, which was handed down at 10.15am, held that the designation of Papua New Guinea as a ‘regional processing country’ under s198AB of the Migration Act 1958 (Cth) was valid under the Australian Constitution.

“The net effect of this decision is that the Minister has the power to ship legitimate refugees to any country on earth that is designated as a regional processing country, where he considers it is in the national interest to do so,” said Geraldine Collins, National President of the Australian Lawyers Alliance.

“At present, the overarching consideration for the Minister must be the ‘national interest’, the meaning of which, the High Court held, is ‘a political question’,” said Ms Collins.

“In the absence of any other safeguards, the Australian Lawyers Alliance asserts that as a basic and fundamental safeguard, the capacity to provide detention which meets the Commonwealth’s own detention standards, should be an additional legislative criterion for the Minister to consider in section 198AB(2).”

“We call on the Parliament of Australia to appropriately consider such an amendment to the Migration Act,” said Ms Collins.

“Avoiding Commonwealth liability for negligence is an issue that presumably, the Minister would consider in the ‘national interest’.”

“Last week, the Australian Lawyers Alliance provided evidence to the Senate inquiry into the incident at Manus Island, asserting that the Commonwealth may retain a non-delegable duty of care to people detained, regardless of whether they are on Australian soil.”
“Australian case law is clear in that where people are detained, the detainer has a duty to take reasonable care to ensure that people do not suffer injury,” said Ms Collins.

“A legislative amendment referring to the Commonwealth’s own detention standards would act as an increased safeguard against potential injury, and thus potential liability of the Commonwealth.”

In making a decision under s198AB, the Minister must consider whether or not a country has made any ‘assurances’ about not expelling or returning a person to another country where they may be in danger, and the making of refugee assessments.

“However, these assurances do not need to be legally binding, and there is no need for evidence or even basic inquiry into the truth of such assertions,” said Ms Collins.

“Countries do not need to be able to demonstrate capacity to process refugees, or capacity to safeguard their rights or safety. Instead, they have the option to make non-binding assurances, which Australia may rely on to wash their hands of responsibility.”

“There is no provision in s198AB that provides that there must be consideration of human rights in any regard. In fact, s198AB(7) specifically states that ‘principles of natural justice do not apply’.”

The legislative provisions that were tested before the Court today were introduced into the Parliament of Australia less than a month after the High Court’s decision overturning the ‘Malaysia solution’, in the form of the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 (Cth).

“At the time of their introduction, these provisions were not tabled alongside a statement of compatibility with human rights.”

“Many Australians may be disappointed by the Court’s findings today,” said Ms Collins.

“However, it must be remembered that the role of the courts is to interpret Australian laws, not to create them.”

“Any disillusionment that the Australian public feels following the decision today must focus on the Parliament of Australia, who has the power to make laws, not the judiciary, who is bound to appropriately interpret them.”

“Australia is isolated in the common law world in its lack of vital protections on citizens’ and non-citizens’ human rights. Nowhere is this more evident, than in Australia’s migration law, which is subject to legislative amendment on a frequent basis.”

In the case today, the Court held [at 40] that ‘there is no mandatory condition for the exercise of the power of the power of designation under s198AB apart from the formation by the Minister of an opinion that it is in the national interest to do so… The only matter to which the Minister is obliged to have regard, in considering the national interest, is whether or not the country to be designated has given Australia any assurance as set out in s198AB(3)(a). There is no issue in this case that such assurance were in fact given.’


The full judgment of the case can be accessed on Austlii here:

The original Bill that was introduced into the Parliament of Australia following the High Court’s Malaysia decision, was the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 (Cth). It was subsequently renamed the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012 (Cth). The Bill, Explanatory Memorandums and second reading speeches can be accessed here:

An overview of the Australian Lawyers Alliance’s evidence to the Senate Inquiry into the incident at Manus Island, can be accessed here.

The full transcript can be accessed on the APH website.

Tags: Human rights Migration law Asylum seekers and refugees