In August 2012, the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) (‘Migration Amendment Act 2012’) was passed by Parliament to enable the regional processing of the protection claims of offshore entry persons. A significant catalyst for these amendments was the High Court’s decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship, which removed the legal basis for the Malaysian Solution, the government’s former offshore processing arrangement that would have facilitated the transfer of irregular maritime arrivals to Malaysia for the determination of their claims.
This article analyses the implications of the Migration Amendment Act 2012 for offshore processing and considers possible challenges to this legislation. It also examines the decision of the High Court in Plaintiff M70 to explore why the amendments were considered necessary in order to enable the government to pursue its revised offshore processing regime.Constand notes that
Although the Migration Act 1958 (Cth) may now provide a legal framework for the implementation of the government’s revised offshore processing scheme, the feasibility of this regime from a practical as well as human rights perspective is questionable. It is estimated that, when fully operational, Nauru will have a capacity of 1500 people, with the combined capacity of the processing centres in both Nauru and Manus Island (PNG) most likely totalling 2100. However, at the time of writing, the number of irregular maritime arrivals that have sought asylum since mid-August 2012 and are currently awaiting transfer to a regional processing centre has already exceeded 4000, a figure that eclipses the combined capacity of Nauru and Manus Island’s asylum seeker processing facilities. This will inevitably lead to overcrowding and significant deterioration in living conditions, a decline in the quality of legal processes and a lack of adequate education and welfare support services. Currently, for example, only two counsellors are provided for in Nauru under the government’s contract with International Health and Medical Services, which is severely inadequate in light of the processing centre’s peak capacity of 1500 people. The United Nations High Commissioner for Refugees has criticised these temporary arrangements as failing to meet international standards for refugee protection.
The Australian Government, at the time of writing, is also in negotiations with Nauru to amend its legislation to enable a Nauruan Refugee Status Review Tribunal and the Nauruan Supreme Court to hear challenges to refugee status determinations. This would mean that both refugee processing as well as appeals procedures would occur within Nauru. Under the current arrangements, although unsuccessful challenges within the Nauruan legal system may be taken to the High Court of Australia, any claims would still be assessed according to Nauruan, rather than Australian law. These arrangements raise significant concerns due to the continued lack of adequate legal resources and expertise in Nauru to process appeal claims on the scale and complexity that is demanded by the Nauruan offshore processing agreement. It appears that these measures may have been implemented in further pursuit of the Australian government’s policy of actively deterring irregular maritime arrivals through the comprehensive extraterritorialisation of processing arrangements. Although an analysis of the implications of this newly introduced review process is beyond the scope of this article, it can almost certainly be expected that once further details regarding this new system of review are established, it will be subject to significant critical debate and further scrutiny.