Australia's New Migration Bill Strengthens Anti-Immigrant Measures

This week's passing into law of Australia’s Migration and Maritime Powers Legislation Amendment Act, which comes on the heels of a year of tightened border controls and refugee intake policy changes, could chill regional cooperation. Experts say it reflects global trends of treating migration as a security problem, and acknowledge that might be an important avenue for Southeast Asian regional policy development.

Since September 2013 Australia has run Operation Sovereign Borders (OSB), a military-led initiative the government describes as an effort to “to combat people-smuggling and protect Australia's borders”. Navy ships intercept boats carrying asylum seekers, who are then detained in off-shore processing centres, the conditions of which have been criticized repeatedly, including by the UN Refugee Agency (UNHCR). Only one boat has made it to shore in 2014, to resounding cheers of “success” by the government, and condemnation by the UN High Commissioner for Human Rights, who said OSB was “leading to a chain of human rights violations”.   

In November 2014 Australia reduced its resettlement quota from Indonesia from 600 to 450 and said no refugees registered (with UNHCR) after 1 July 2014 would be eligible for resettlement, sparking criticism from Indonesia, which cited the country’s own current refugee bottleneck (it is host to around 10,000 refugees, who experience notoriously long waits).  
Australia portrayed the move as an export of its domestic success, “designed to reduce the burden, created by people smugglers, of asylum seekers entering Indonesia”. But critics say it “puts into serious question the humanitarian rationale for Australia’s resettlement programme.”

Anne Hammerstad, a lecturer at the UK’s University of Kent said that while the regional dialogue may need to allow focus on migration as a security issue, that discussion alone won’t erode the global construal of migrants as a threat. For Hammerstad, that task is broader – and involves restoring public understanding that migration has been a human behavior throughout history.

“The question is how to get to a point where societies receiving migrants feel that the balance is OK,” she said. Calling the current global migration situation “a bit like a perfect storm”, she explained: “We have refugee receiving countries feeling like their economy is not very solid, coupled with large-scale humanitarian crises and record level migration.”

The current debate, she says, includes a “knee-jerk reaction that migration is unnatural and that the people who migrate are there to abuse your system and take advantage, rather than people who want to prosper in a different place than their home. It’s a lack of empathy in public discourse.”

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What did Australia's new migration law do?

The Migration and Maritime Powers Legislation Amendment Act changed the way Australia manages and processes asylum seekers by amending five domestic laws: the Maritime Powers Act of 2013, the Migration Act of 1958, the Migration Regulations of 1994, the Immigration (Guardianship of Children) Act 1946, and the Administrative Decisions (Judicial Review) Act of 1977. Much of the bill’s focus was on eliminating references to international law, a tactic Immigration Minister Scott Morrison touted when he introduced the legislation in parliament.

Expanding Australia’s reach, limiting its obligations For example, the Act removes from the Maritime Powers Act of 2013 the phrase “In accordance with international law, the exercise of powers is limited in places outside Australia,” and adds “Failure to consider international obligations etc. does not invalidate authorization” and “Failure to consider international obligations etc. does not invalidate exercise of powers.”  Putting on paper the Australian Navy’s practice of hauling intercepted boats back to their origin in, for example, Sri Lanka, the bill explains: “To avoid any doubt… a vessel, aircraft or person may be taken (or caused to be taken) to a destination under section… whether or not Australia has an agreement or arrangement with any other country relating to the vessel or aircraft (or the persons in it)… and irrespective of the international obligations or domestic law of any other country.”

Diluting checks on deportation The Act even foresaw objections, namely a separate piece of proposed legislation that would amend the Migration Act of 1958 to define Australia’s non-refoulement obligations in line with the International Covenant on Civil and Political Rights (which Australia ratified in 1980), and the Convention Against Torture (which Australia ratified in 1989). Pre-empting its impact, in a section entitled Amendments if this Act commences after the Migration Amendment (Protection and Other Measures) Act 2014, the MMPLAB read: “It is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen... [And] an officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 [of the Migration Act, which outlines removal procedures for unlawful citizens] arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.” As one Australian legal researcher explained: “This is saying that Australia is now entitled to return an asylum seeker to a country where they have been, or know they may be, tortured or persecuted.”