Leslie Massey
Australia's refugee legislation is primarily a federal matter, with migration issues falling under the federal powers outlined in the Constitution. The Migration Act 1958 (Cth) forms the legislative basis for all migration and visa applications, including humanitarian assistance. This Act outlines the criteria for a 'protection visa' and mandates the detention of asylum seekers who arrive on the mainland without a valid visa. Amendments to the Migration Act in 2012 designated Nauru and Papua New Guinea as 'regional processing countries', allowing the government to transfer asylum seekers to third countries for claim processing. Australia's refugee policies are also influenced by international treaties, such as the United Nations 1951 Refugee Convention, which Australia is legally obliged to uphold in its law and policy development.
| Characteristics | Values |
|---|---|
| Legislative basis for migration and visa applications | Migration Act 1958 (Cth) |
| Department administering the Migration Act and the immigration program | Department of Home Affairs |
| Australia's legal obligation | Develop law and policy in the spirit of The Refugee Convention, in both federal and state jurisdictions |
| Treaties incorporated into Australian law | Not automatically; must be incorporated into domestic legislation |
| Treaties not incorporated into domestic law | The Refugee Convention |
| Legislative instruments designating regional processing countries | Nauru and Papua New Guinea |
| Policy established by the Australian Government | Regional processing regime or the principle of 'no advantage' |
| Human rights obligations | International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, Convention against Torture, Convention on the Rights of the Child |
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What You'll Learn
The Migration Act 1958
In Australia, refugee law is primarily a federal matter as migration matters fall under the federal powers enumerated in the Constitution. The Migration Act 1958 (Cth) is the legislative basis for all forms of migration and visa applications in Australia, including humanitarian assistance. It is administered by the Department of Home Affairs, which also administers the immigration program.
Under the Migration Act 1958, asylum seekers who arrive on the mainland without a valid visa must be held in immigration or community detention, or transferred to an offshore processing facility. The Act also defines the criteria for a 'protection visa', making reference to the protection obligations under the Refugee Convention.
The Australian Government has a regional processing regime in place, which aims to implement the principle of 'no advantage'. This means that asylum seekers who come to Australia by boat will not benefit from doing so, compared to waiting elsewhere for their claims to be assessed. This has raised concerns about potential human rights violations, including the right to claim asylum and the prohibition on arbitrary detention.
The Act also addresses the role of the Australian Border Force Commissioner, who may give directions regarding the valuables of detained non-citizens and issue documents containing information about certain individuals. Overall, the Migration Act 1958 provides the legislative framework for managing migration, visa applications, and refugee protection in Australia.
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Refugee status determination
Australia's legislative basis for all migration and visa applications, including humanitarian assistance, is the Migration Act 1958 (Cth). The Migration Act 1958 (Cth) defines the criteria for a 'protection visa' under the Act, which refers to the protection obligations under the Refugee Convention. The Department of Home Affairs is the government department that administers the law and the immigration program.
The Migration Act 1958 (Cth) states that asylum seekers who arrive on the mainland without a valid visa must be held in immigration or community detention or transferred to an off-shore processing facility. The Australian Human Rights Commission has expressed its view that all people who make claims for asylum in Australia should have those claims assessed on the Australian mainland through the refugee status determination and complementary protection system that applies under the Migration Act. The Commission holds serious concerns that the regional processing regime creates a significant risk that Australia may breach its human rights obligations.
Since 1993, Australia's refugee status determination procedure has involved four main steps: the Department of Immigration (now Home Affairs) makes the first ('primary') decision on an application; this decision is reviewed by an independent tribunal that can look at the facts again; the courts can review whether these decisions were lawfully made (judicial review). There have been many changes to this procedure over time. Since 2001, the procedures for those who arrive by boat have differed from those who arrive by plane with a valid visa. Since December 2014, very different procedures have applied to those who arrived by boat on or after 13 August 2012.
In addition, while asylum seekers and refugees are in Australian territory (or otherwise engage Australia's jurisdiction), the Australian Government has obligations under various international treaties to ensure that their human rights are respected and protected. These treaties include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention against Torture, and the Convention on the Rights of the Child. These rights include the right not to be arbitrarily detained.
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International human rights treaties
Australia is a signatory to the United Nations 1951 Convention relating to the Status of Refugees (The Refugee Convention) and the subsequent 1967 Protocol. This means that Australia is legally bound to develop law and policy in the spirit of The Refugee Convention, in both federal and state jurisdictions.
While the Refugee Convention in its entirety has not been incorporated into domestic law, certain provisions of the treaty are reflected in domestic legislation. For instance, the Migration Act 1958 (Cth) makes reference to the protection obligations under the Refugee Convention in defining the criteria for a 'protection visa'. The Migration Act 1958 (Cth) forms the legislative basis for all forms of migration and visa applications in Australia, including humanitarian assistance.
In addition, while asylum seekers and refugees are in Australian territory (or otherwise engage Australia's jurisdiction), the Australian Government has obligations under various international human rights treaties to ensure that their human rights are respected and protected. These treaties include the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention against Torture (CAT), and the Convention on the Rights of the Child (CRC).
The obligations under the ICCPR and the CRC have been interpreted in a similar way. These obligations extend the principle of non-refoulement expressed in Article 33 of the Refugee Convention. Article 9 of the ICCPR provides for the right to liberty and security of the person, and prohibits arbitrary detention. Article 37 of the CRC provides that children should only be detained as a last resort. Article 10 of the ICCPR also provides that, if people are deprived of their liberty, they must be treated with humanity and dignity.
The CRC, in Article 22, requires that a child who is seeking refugee status or is recognised as a refugee be given special treatment, including assistance in reuniting with their family. Article 28 of the CRC also establishes the rights of children to education. Other rights established by the ICCPR include the right to due process for the expulsion of non-citizens lawfully in the country (Article 13), and the right to equality before the law and equal protection of the law (Article 26).
The regional processing regime has been established by the Australian Government with the aim of implementing the principle of 'no advantage'. That is, asylum seekers who come to Australia by boat will gain no benefit through doing so, as compared with if they waited elsewhere to have their claims assessed and a durable solution provided if they are found to be refugees. The Australian Government expects this waiting period to be around five years. The Australian Human Rights Commission holds serious concerns that the regional processing regime creates a significant risk that Australia may breach its human rights obligations. In particular, the regime risks violating core human rights principles, such as the prohibition on arbitrary detention, the right to claim asylum, and the rights of children and the family.
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Offshore processing
In Australia, statutory law dealing with refugees is primarily a federal matter as migration comes under the Federal powers enumerated in the Constitution. The Migration Act 1958 (Cth) is the legislative basis for all forms of migration and visa applications in Australia, including humanitarian assistance. Under the Migration Act, asylum seekers who arrive on the mainland without a valid visa must be held in immigration or community detention, or transferred to an offshore processing facility.
The Australian government's decision to resume offshore processing has been criticised by human rights organisations, which argue that it has caused immeasurable suffering for thousands of vulnerable asylum seekers. The policy has also been described as costly, with offshore processing costing the Australian government an estimated A$8.3 billion between 2014 and 2020.
The Australian Human Rights Commission has expressed serious concerns that the regional processing regime creates a significant risk of breaching its human rights obligations. It has also been argued that offshore processing was employed as a deterrent, with the government aiming to send the message that illegal boat arrivals are not welcome in Australia.
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Detention policies
Australia's detention policies require anyone who is not an Australian citizen and does not have a valid visa to be detained. This policy of 'mandatory detention' was introduced in 1992 in response to an influx of people from Cambodia, Vietnam, and China arriving by boat. The Migration Act 1958 (Cth) forms the legislative basis for all forms of migration and visa applications in Australia, including humanitarian assistance. Under this Act, asylum seekers who arrive on the mainland without a valid visa must be held in immigration or community detention, or transferred to an off-shore processing facility.
The Australian Government has designated Nauru and Papua New Guinea as 'regional processing countries'. Asylum seekers who arrive in an ''excised offshore place' by boat on or after 13 August 2012 are liable to be transferred to these third countries for processing of their protection claims. This policy of 'no advantage' means that asylum seekers who come to Australia by boat will gain no benefit in terms of waiting times compared to if they had waited elsewhere to have their claims assessed.
The Australian Human Rights Commission has raised concerns that the regional processing regime creates a significant risk of human rights violations, including the prohibition on arbitrary detention, the right to claim asylum, and the rights of children and families. The Commission has also noted that Australia's mandatory detention policy does not permit an assessment of what is in the best interests of children, as required by the CRC and other relevant UN standards.
The Refugee Council of Australia has expressed deep concern over the findings from the Commonwealth National Preventive Mechanism (NPM) regarding the 'soft room' at the Yongah Hill Immigration Detention Centre. The harm of offshore detention has been well-documented, with over 14 deaths, medical neglect, child abuse, and physical and sexual assault. Despite this, Australia continues to operate a policy of offshore processing.
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Frequently asked questions
The Australian Federal Government makes legislation about refugees. The Migration Act 1958 (Cth) is the legislative basis for all forms of migration and visa applications in Australia, including refugee visas.
The Migration Act 1958 (Cth) is the principal Federal Act that forms the legislative basis for all forms of migration and visa applications in Australia, including humanitarian assistance. It is administered by the Department of Home Affairs.
The Department of Home Affairs administers the Migration Act and the immigration program. The Immigration Program comprises three main components: offshore refugee visas, onshore refugee visas, and community detention.
The 'no-advantage' principle, established by the Australian Government, states that asylum seekers who come to Australia by boat will gain no benefit from doing so compared to waiting elsewhere for their claims to be assessed. This principle was introduced in 2012 as part of the 'offshore processing' policy.
Australia is a signatory to the United Nations 1951 Convention relating to the Status of Refugees (The Refugee Convention) and the 1967 Protocol. As such, Australia is legally obliged to develop law and policy in line with The Refugee Convention in both federal and state jurisdictions. Australia also has obligations under various international human rights treaties, such as the International Covenant on Civil and Political Rights, to ensure the protection of human rights for asylum seekers and refugees in its territory.
