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Migration (Validation of Port Appointment) Bill 2018

The Law Council has provided written submissions to the Senate Legal and Constitutional Affairs Legislation Committee in relation to the Migration (Validation of Port Appointment) Bill, and appeared before the Committee at a hearing on 3 September 2018. The Law Council opposed the Bill in its present form, noting particular concern with the attempt to retrospectively validate a 2002 instrument appointing a proclaimed ‘port’ in the Territory of Ashmore and Cartier Islands.

The Law Council drew the Committee’s attention to earlier comments by the Standing Committee for the Scrutiny of Bills when considering the proposed measures, in particular the Committee’s suggestion that retrospective validation of the 2002 appointment would substantially limit affected persons' ability to challenge their classification as an ‘unauthorised maritime arrival’.

This classification is of significance to how an asylum seeker’s rights and obligations are to be determined, and how their applications are processed. Consequently, the Scrutiny Committee concluded that to retrospectively alter the 2002 appointment, even if only to reflect its original policy intent, has the potential to undermine the rule of law and, as outlined above, may cause detriment to a number of affected persons.

A key objective of the Law Council is to maintain and promote the rule of law, and a key principle of the rule of law is that laws, especially those with punitive elements should not be retrospective. In its submissions, the Law Council noted that the interests of individuals affected by the 2002 Instrument have been significantly affected, in that but for that Instrument, this cohort would have been able to seek permanent protection from Australia and, if that application were refused, have access to full merits review under Part 7A of the Migration Act.

Instead, these individuals have been diverted through the Immigration Assessment Authority - a truncated form of review that purposefully provides limited procedural fairness and highly restricted opportunities in which applicants are able to present their claims.

In this regard, the Law Council drew the Committee’s attention to comments of the Parliamentary Joint Committee on Human Rights, who, when examining the Bill raised serious concerns about the ‘fast track’ assessment process, stating that as it does not provide for full merits review, it is likely to be incompatible with Australia's international obligations to ensure independent, effective and impartial review, including merits review, of non-refoulement decisions.

The Law Council submitted that there has been insufficient justification for such retrospectivity when consideration is given to the considerable legal and procedural effects of the proposed measures on the lives of those that have been affected by the 2002 Instrument.

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