Draft Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 released

Government releases draft migration legislation

The Federal Government last night released a draft version of the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011. The legislation's purpose is to give the minister more discretion over where he may order the transfer of boat arrivals to.    

The move is a response to the recent decision of the High Court in Plaintiff M70/2011, where it was ruled that Malaysia did not satisfy the minimum standard of conditions necessary for a declaration by the Minister under s 198A of the Migration Act 158.  

Summary of the draft legislation

s198A repealed

The proposed bill repeals s198A, which required minimum human rights conditions be observed in the country which the asylum seekers were deported to. 

The bill replaces that section with a range of other sections, including 198AA  which states that  the designation of a country for offshore processing need not be determined by reference to the international obligations or domestic law of that country.   

Public interest test introduced

s198AB states that the only condition of deportation is that it be in the public interest for a particular country to be chosen. Moreover, s198AB (5) states that the rules of natural justice will not apply to determinations made by the Minister.

Traditionally, in administrative law, public interest tests give broad discretion to Ministers and officials, with courts reluctant to determine what is in the public interest instead of elected representatives.   

Both the Greens and Liberals have signalled concern with the amendments which gives "unfettered discretion" to the Minister.

See the draft migration bill here.

TimeBase's Point in Time Migration Service is an essential research tool for legal professionals. Contact us today to trial our Migration service or to find out more about this product.

 

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