Immigration Minister Scott Morrison now has unchecked
power to decide the outcomes that will affect the lives of asylum
seekers and refugees coming to Australia. Previous immigration ministers
have had this power, but the passage of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 this week handed Morrison unprecedented, unchallengeable and secret powers to control the lives of asylum seekers.
So, what does this mean for Australia’s obligations under international law?
It means that Australia is now no longer obliged to adhere to the UN Refugee Convention
– a treaty Australia was instrumental in constructing and implementing
after the Second World War. Australia was, at that time, at the
forefront of human rights in terms of the status of refugees. It signed
the initial UN convention and the subsequent 1967 Protocol. This had previously set the framework for Australian immigration and refugee policy.
It also highlighted and placed Australia as a “good world citizen”
with an agenda to uphold human rights, and, in this case, treat people
seeking sanctuary with dignity, fairness and compassion.
Refugee law is built upon the fundamental principle of non-refoulement:
that is it is forbidden to return a person to a country where they may
still be persecuted or tortured. This is recognised by every country and
exists in the Refugee Convention.
Morrison’s bill, now Australian law, states that:
… it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
This is saying that Australia is now entitled to return an asylum
seeker to a country where they have been, or know they may be, tortured
Arrivals by boat will also no longer have access to the Refugee
Review Tribunal. They will have an appeal mechanism which is not a
hearing but only a paper review. This too is an alarming and worrying
Evolution of ministerial powers
Asylum seekers first entered the Australian psyche in the late 1970s
when Vietnamese “boat people”, as they became known, reached our
To the then-Fraser government’s credit, the Vietnamese asylum seekers
were well received. The government acknowledged Australia’s legal
obligations, recognising the interests of the asylum seekers but
complying with the UN declarations. Various waves of asylum seekers have
arrived from other countries since then, with differing and hardening
treatment of them.
Immigration ministers have extended powers compared to other
ministers. The refugee determination system is an administrative system
based on ministerial discretion. This means the immigration minister of
the day has powers to overrule any decisions made by tribunal
determination panels and to have individual decision-making in any
Ministerial discretion powers were inserted in to the Migration Act in a 1989 amendment
to provide an outlet to deal with difficult cases that did not fit
statutory visa criteria. Under the act, the minister may substitute a
more favourable decision than the one handed down by a tribunal:
… if the minister thinks it is in the public interest to do so.
Significantly, the discretionary powers are non-compellable,
non-reviewable and non-delegable within domestic law. This means that
the minister does not have a duty to exercise the discretionary powers;
the powers must be exercised personally by the minister and cannot be
This has led to inconsistencies in the refugee determination system
over the decades when ministers have changed. Some have used this power
extensively, for example Philip Ruddock in 2003. Others, such as Robert Ray in 1989, have relieved themselves of the discretionary powers.
The passage of Morrison’s bill gives a new interpretation to these
powers. Australia will now follow a new, independent and self-contained
statutory framework, and this will have the government’s own
interpretation of international law. Australia now regards itself as
free from the bonds of the Refugee Convention.
Any checks and balances that were previously in Australia’s refugee
system have been stripped away, removing basic protections for those who
arrive seeking asylum. No other minister – not the prime minister, the
foreign minister nor the attorney-general – has the same unchecked
control over the lives of other people.
Morrison now has unchecked power and control over asylum seekers' lives. His decisions cannot be challenged.