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Migration Legislation Amendment (Regional Processing Cohort) Bill 2016

The Law Council welcomes the opportunity to provide the following comments to the Senate Legal and Constitutional Affairs Committee (Senate Committee) in respect of its inquiry into the Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 [Provisions] (the Inquiry). 

2. The primary effect of the Bill would be to invalidate any visa applications by adults who were taken to a regional processing country after 19 July 2013. It would prevent onshore and offshore visa applications by people who arrived by boat who are currently detained on Nauru or Manus Island, as well as people living in Australia who have been transferred from Nauru or Manus Island back to Australia, for medical or other reasons. The validity bar applies to any temporary or permanent visa applications from asylum seekers and refugees. 

3. The Law Council has a number of concerns with the Bill. Those concerns include the: 

• violation of Article 31(1) of the 1951 Convention relating to the Status of Refugees (the Refugee Convention) with regards to the imposition of a penalty based on the mode of arrival; 

• Bill appears to be neither necessary nor proportionate to its intended objective; 

• violation of Articles 3(1) and 10(1) of the Convention on the Rights of the Child, (CRC), Article 10(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 21(1) of the International Covenant on Civil and Political Rights (ICCPR) with regards to the rights of the family and their children; 

• Bill will have the effect of splitting up families and preventing family reunions, in breach of Australia's international obligations and with severe impact upon settlement and mental health outcomes for refugees; 

• retrospective application of the Bill, insofar as it adversely affects people’s rights and legitimate expectations and operates to punish them for past actions of seeking safety; 

• power of the Minister to lift the bar on valid applications in the ‘public interest’ is broad and not subject to review; 

• Bill may detrimentally effect the mental health already vulnerable people; 

• failure of the Statement of Compatibility to address key human rights issues, including the Refugee Convention; and 

• limited timeframes for scrutiny by the Senate Committee and limited capacity for interested persons and organisations to make submissions. 

4. On the above grounds the Law Council recommends against passage of the Bill. 

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