A Bill for an Act to provide a legislative response to all people seeking asylum in Australia, and for related purposes
The Parliament of Australia enacts:
Part 1—Preliminary
1 Short title
This Act is the Refugee Protection Act 2018.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provisions | Commencement | Date/Details |
| 1. The whole of this Act | The day after this Act receives the Royal Assent. | |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Simplified outline and object of this Act
Simplified outline
(1) This Act enables the establishment of a network of centres, located in and run by Asia Pacific countries including Australia, where asylum seekers can go to be registered, have their immediate humanitarian needs met and lodge a preference for country of re‑settlement. If the asylum seeker selects Australia, and is within the specified quota, this Act establishes a process for assessing their claim in Australia with appropriate oversight, limited timeframes and judicial review.
(2) This Act does not allow mandatory detention and prioritises the applicant’s immediate needs and refugee and international human rights law.
Object of this Act
(3) The object of this Act is to provide a legislative response to people seeking asylum in Australia, through the Asia Pacific Region, that is sustainable, equitable and humane, and subject to appropriate oversight and review;
(4) To advance its object, this Act:
(a) enables a regional framework initiated by the Australian Government in partnership with one or more other countries within the Asia Pacific region; and
(b) upholds Australia’s obligations under international law, specifically the Refugees Convention and other international human rights law.
4 Act binds the Crown
This Act binds the Crown in each of its capacities.
5 Definitions
(1) In this Act:
adverse security assessment has the same meaning as in Part IV of the Australian Security Intelligence Organisation Act 1979.
APASS (short for Asia Pacific Asylum Seeker Solution) means the regional framework to manage movements of asylum seekers within the Asia Pacific region:
(a) that is consistent with the Refugees Convention, the Refugees Protocol, the New York Declaration and other international human rights law; and
(b) to which Australia and one or more other countries within the Asia Pacific region are parties.
APASS applicant: see subsection 11(1).
APASS applicant to Australia: see subsection 11(2).
APASS Australian quota for a year means the quota for the year determined under section 12.
APASS case officer means an APASS case officer appointed in accordance with APASS.
APASS centre: see section 10.
APASS processing conditions has the same meaning as in APASS.
Note: The APASS processing conditions under APASS include (but are not limited to) the following:
(a) the timeframes and details of a visa application (including the process of triage, security and health checks and required documentation);
(b) specific rights regarding freedom of movement;
(c) specific assistance needs (including but not limited to, housing, income, work rights and health);
(d) any specific protection concerns (such as women at risk, persons with disabilities, unaccompanied minors, victims of trafficking, victims of trauma and survivors of sexual violence, as well as older persons).
IGIS means the Inspector‑General of Intelligence and Security.
international human rights law means the international agreements referred to in section 6.
Migration Act means the Migration Act 1958.
New York Declaration means the New York Declaration for Refugees and Migrants, done at New York on 19 September 2016.
principle of family unity has a meaning affected by section 8.
principle of the rights and best interests of the child has a meaning affected by section 8A.
Secretary means the Secretary of the Department.
(2) An expression used in this Act that is defined for the purposes of the Migration Act has the same meaning in this Act as it has in the Migration Act.
6 Application—international agreements for the protection of rights
This Act does not apply to the extent (if any) to which it is inconsistent with any of the following international agreements:
(a) the Refugees Convention;
(b) the Refugees Protocol;
(c) the International Covenant on Civil and Political Rights, done at New York on 16 December 1966 ([1980] ATS 23);
(d) the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, done at New York on 10 December 1984 ([1989] ATS 21);
(e) the Convention on the Rights of the Child, done at New York on 20 November 1989 ([1991] ATS 4);
(f) the International Covenant on Economic, Social and Cultural Rights, done at New York on 16 December 1966 ([1976] ATS 5);
(g) the Convention on the Elimination of all Forms of Discrimination against Women, done at New York on 18 December 1979 ([1983] ATS 9);
(h) the Convention on the Rights of Persons with Disabilities, done at New York on 13 December 2006 ([2008] ATS 12).
Note: The text of an international agreement in the Australian Treaty Series (ATS) could in 2018 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
7 Severability
(1) Without limiting the effect of this Act apart from this section, this Act also has effect as provided by this section.
(2) To avoid doubt, no subsection of this section limits the operation of any other subsection of this section.
External affairs power
(3) This Act has the effect it would have if its operation were expressly confined to give effect to Australia’s rights and obligations under an agreement with one or more countries.
(4) This Act has the effect it would have if its operation were expressly confined to acts or omissions that occur beyond the limits of the States and Territories.
(5) This Act has the effect it would have if its operation were expressly confined to matters that are of international concern.
Aliens power
(6) This Act has the effect it would have if its operation were expressly confined to:
(a) exercising a power or performing a function that affects an alien (within the meaning of paragraph 51(xix) of the Constitution); or
(b) conferring a right or imposing an obligation on such an alien.
8 Principle of family unity
(1) The Parliament affirms that the principle of family unity should be adopted in conformity with the obligation to protect the family and respect family life, subject to the best interests of the child, as enshrined in many instruments of international law.
(2) The principle of family unity must be a paramount consideration in any decision or other action taken for the purposes of this Act.
(3) The principle of family unity includes the principles that:
(a) a country should refrain from taking actions that would disrupt members of a family unit of a person; and
(b) a country should take action to allow members of a family unit of a person that are dispersed to be reunited without returning them to a country where they would face danger.
Note: The expression member of the family unit of a person is defined for the purposes of the Migration Act.
8A Principle of the rights and best interests of the child
(1) The principle of the rights and best interests of the child must be a paramount consideration in any decision or other action:
(a) taken for the purposes of this Act; and
(b) that affects a child.
(2) The principle of the rights and best interests of the child includes:
(a) the principle of family unity; and
(b) the principle that a country should recognise and provide for every child’s inherent right to life and ensure to the maximum extent possible the survival and development of the child (including health and mental health services, counselling and trauma services, phone and internet, education, legal services and accommodation and financial assistance); and
(c) the principle that a country should ensure that throughout the APASS process children will be assured the right to express their views freely in all matters affecting them, their views being given due weight in accordance with the child’s age and level of maturity.
Part 2—Enabling of APASS
9 Intention that parties to APASS be legally bound
Parliament recognises that it is the intention of APASS that each party to APASS must be legally bound, either under international law or domestic law, to provide effective protection for asylum seekers and refugees.
10 APASS centres
An APASS centre is a centre established under APASS that satisfies the following conditions:
(a) the centre is developed in cooperation with, and funded by, the parties to APASS;
(b) the centre is developed in accordance with the Refugees Convention and the other international instruments referred to in section 6;
(c) the centre is located strategically to enable ease of access, making it a preferred alternative to seeking the service of people smugglers.
11 Meaning of APASS applicant and APASS applicant to Australia
(1) A person is an APASS applicant if:
(a) the person is an asylum seeker or refugee; and
(b) the person is registered as an asylum seeker at an APASS centre.
(2) An APASS applicant is an APASS applicant to Australia if:
(a) upon registration, the person selected Australia as a host country; and
(b) the person has been deemed, in accordance with APASS, to fit within the APASS Australian quota for the year during which the person was registered; and
(c) the person has been recommended, in accordance with APASS, to the Minister.
(3) If a person is an APASS applicant to Australia, the Minister is responsible for that person and must ensure that the provisions of this Act are fully applied to the APASS applicant, subject to APASS and associated in‑country agreements.
12 Australian quota of APASS applicants
(1) The Minister must, before the start of each year, declare by legislative instrument the quota of APASS applicants for that year that will be considered for permanent visas in Australia.
(2) The quota must be determined in accordance with APASS and with the principles of genuine responsibility and cost sharing between the parties to APASS.
13 Determination of transfer arrangements of APASS applicants to Australia
(1) Within 60 working days after the day a person becomes an APASS applicant to Australia, the Secretary must determine:
(a) that the APASS applicant will remain for processing at the APASS centre where the APASS applicant was registered as an asylum seeker; or
(b) that the APASS applicant may enter Australia while their visa claim is being processed.
(2) A determination under subsection (1):
(a) may relate to more than one APASS applicant; and
(b) must specify each APASS applicant covered by the determination by name, not by description of a class of persons.
(3) A determination under subsection (1) is a legislative instrument.
(4) The Secretary must, in making a determination under subsection (1), consider the following:
(a) Australia’s non‑refoulement obligations;
(b) the principle of family unity;
(c) whether the APASS centre where the APASS applicant was registered is at capacity;
(d) whether the APASS applicant is facing personal danger;
(e) whether the APASS applicant is an unaccompanied minor, and the principle of the rights and best interests of the child;
(f) whether the APASS applicant has any health needs that indicate the transfer to Australia is necessary;
(g) whether the transfer to Australia is necessary in regards to enhancing burden and responsibility‑sharing and regional cooperation, and not burden shifting.
(5) Subsection (4) does not limit the matters that the Secretary may consider in making a determination under subsection (1). However, Australia’s obligations under international human rights law are to be the Secretary’s paramount consideration.
(6) If the Secretary determines, under subsection (1), that an APASS applicant to Australia may enter Australia while their visa claim is being processed, the APASS applicant must be individually assessed as to the appropriateness of the conditions of transfer (subject to procedural safeguards) prior to transfer. The procedural safeguards include, but are not limited to, the following:
(a) that the APASS applicant will be legally admitted to Australia;
(b) that the APASS applicant is both mentally and physically fit for travel;
(c) any other safeguards prescribed by the regulations.
14 APASS case officers
(1) If it is determined under subsection 13(1) that an APASS applicant will remain for processing at the APASS centre where the APASS applicant was registered as an asylum seeker, an APASS case officer must be allocated to the APASS applicant within 7 days.
(2) As soon as reasonably practicable after the allocation, the APASS case officer must ensure that the APASS applicant is given:
(a) free and independent legal assistance and advice; and
(b) information regarding the APASS processing conditions.
(3) The APASS case officer must take all reasonable steps (including liaising with Australian authorities):
(a) to ensure that a decision can be made on the APASS applicant’s visa application; and
(b) to assist the decision being made within 180 days from the date of the application.
(4) The APASS case officer must ensure that the APASS applicant is regularly informed about the process and status of the visa application. The information must be given in a language and format that the APASS applicant understands.
Part 3—Immigration detention
15 Relationship with other laws
This Part applies in relation to all immigration detention in Australia, including detention in an APASS centre in Australia, despite any other law of the Commonwealth, a State or a Territory (whether written or unwritten).
16 Immigration detention
(1) The Parliament intends that immigration detention be:
(a) lawful, under both international law and domestic law; and
(b) necessary and proportionate; and
(c) for the shortest time possible; and
(d) in Australia.
(2) The Parliament also intends that alternatives to detention are the preferred option to immigration detention for APASS applicants.
17 Alternatives to immigration detention
(1) If there is no reason under section 21 for one or more APASS applicants to be taken into, or kept in, immigration detention, the Secretary must, by legislative instrument, determine alternatives to immigration detention that are to apply in relation to the APASS applicant or applicants covered by the determination.
(2) A determination under subsection (1) must permit the APASS applicant or applicants covered by the determination to live in the community in accordance with the restriction (if any) specified in the determination. The restriction may be any one of the following:
(a) a requirement to deposit or surrender documentation such as passports;
(b) reporting conditions, such as periodic reporting to an authority or organisation of a kind prescribed by the regulations (which may include, for example, an immigration authority or a non‑government organisation);
(c) a requirement that the APASS applicant must reside at a specific address or within a particular suburb or area;
(d) a requirement to provide a guarantor or surety who would be responsible for ensuring the APASS applicant’s attendance at official appointments and hearings and for ensuring that the APASS applicant otherwise reports as specified in any condition of release.
(3) If a determination under subsection (1) includes a requirement that an APASS applicant deposit or surrender identification documentation, the Secretary must ensure that the APASS applicant is issued with alternative forms of identification.
(4) A copy of a determination under subsection (1) must be given to the APASS applicant or applicants covered by the determination.
18 Access to assistance in alternatives to immigration detention
(1) If a determination under subsection 17(1) is in force that covers an APASS applicant:
(a) adequate material support, accommodation and access to means of self‑sufficiency (including any necessary financial support) must be provided to the APASS applicant; and
(b) the APASS applicant must have the right to work if the APASS applicant is aged 16 or over; and
(c) the APASS applicant must have access to each service prescribed for the purposes of subsection 24(1).
(2) Paragraphs (1)(b) and (c) have effect despite any other law of the Commonwealth, a State or a Territory (whether written or unwritten).
19 Timeframes for the determination of alternatives to immigration detention
A determination under subsection 17(1) remains in force for:
(a) 6 months; or
(b) if, on application, the Federal Circuit Court makes an order fixing a longer period—that period.
20 Revocation or variation of restrictions
If a determination under subsection 17(1) is in force that covers an APASS applicant, and the APASS applicant fails to comply with the restriction specified in the determination, the Secretary may:
(a) revoke the determination; or
(b) vary the restriction.
21 Reasons for immigration detention
(1) An APASS applicant may be taken into, or kept in, immigration detention only for one or more of the following reasons:
(a) to document the APASS applicant’s entry;
(b) to record the APASS applicant’s claims for asylum;
(c) to determine the APASS applicant’s identity;
(d) to await health clearance so as to protect public health;
(e) to await security clearance;
(f) to prevent the APASS applicant from absconding if there is evidence of a risk of the APASS applicant absconding;
(g) if there is risk that the APASS applicant might destroy evidence or influence witnesses;
(h) if an adverse security assessment has been made in respect of the APASS applicant.
(2) An APASS applicant must not be taken into, or kept in, immigration detention for any of the following reasons:
(a) the APASS applicant’s mode of arrival (for example by boat);
(b) irregular entry or stay, provided that the APASS applicant has presented themselves without delay to the authorities and shown good cause for their irregular entry or stay;
(c) executive order.
(3) An APASS applicant must not be held in prison, with prisoners or in prison‑like facilities unless the APASS applicant has been convicted of, or is being held in custody on remand in relation to, an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment.
(4) No APASS applicant may be subjected to arbitrary or mandatory detention.
22 Time frames for immigration detention
(1) An APASS applicant (other than an APASS applicant referred to in subsection 26(2)) must not be kept in immigration detention for more than 3 months.
Note: Subsection 26(2) is about the detention of children.
(2) On application, the Federal Circuit Court of Australia may extend, or further extend, that period by up to 6 months. The court may do so only if that period, or that period as last extended, has not yet ended.
(3) In determining whether to make an order under subsection (2), the Federal Circuit Court of Australia must take into account the following:
(a) that detention of APASS applicants should only occur as a measure of last resort and that there should be a general presumption against the detention;
(b) whether there are any non‑custodial measures available (for example the imposition of reporting obligations, sureties or other conditions);
(c) the balancing of the rights to liberty, security and freedom of movement of the APASS applicant with the public policy initiatives of detention.
(4) If the Federal Circuit Court of Australia makes an order under subsection (2), the court may also make any other order the court considers appropriate to facilitate the APASS applicant not being kept in immigration detention for longer than the extended, or further extended, period.
23 Information provided to detainees
Each APASS applicant that is taken into immigration detention must be immediately informed (orally and in writing, and in a language the APASS applicant understands) of the following:
(a) the reason for the APASS applicant’s detention;
(b) the APASS applicant’s legal rights in regards to the detention (including the process of judicial review and the contact information for legal aid and consular assistance);
(c) the proposed time frame for the APASS applicant’s detention.
24 Access to services in detention
(1) The regulations may prescribe any or all of the following services for APASS applicants in immigration detention:
(a) health and mental health services;
(b) counselling and trauma services;
(c) phone and internet;
(d) education;
(e) visiting services (including daily access to visitors, whether they are known to the APASS applicant or part of a broader community or non‑government service);
(f) government services (including immigration, housing and Centrelink services);
(g) free and independent legal services.
(2) An APASS applicant in immigration detention must have access to each service prescribed for the purposes of subsection (1).
25 Communication for the purpose of obtaining immigration assistance and immigration legal assistance
(1) In this section, immigration assistance and immigration legal assistance have the same meaning as in Part 3 of the Migration Act.
(2) An APASS applicant in immigration detention is entitled, at any time during business hours, to communicate and consult regarding immigration assistance or immigration legal assistance.
(3) All reasonable efforts are to be made to facilitate an APASS applicant to communicate or consult, outside business hours, regarding immigration assistance or immigration legal assistance if the need to communicate or consult is urgent.
(4) Adequate time and facilities are to be made available to an APASS applicant in detention for the purpose of receiving immigration assistance or immigration legal assistance.
(5) Without limiting subsection (4), an APASS applicant who is receiving immigration assistance or immigration legal assistance, or the APASS applicant’s legal counsel, may be required to be within sight, but must not be required to be within hearing, of others (including immigration detention staff).
26 Children in detention
(1) It is the intention of Parliament that APASS applicants who are children:
(a) should not be deprived of liberty, except as a measure of last resort; and
(b) should be deprived of liberty only for the shortest appropriate period of time, taking into account the extreme vulnerability and need for care of children (particularly of unaccompanied minors).
(2) Without limiting subsection (1) or section 8A, an APASS applicant who is 18 years old or less, or who is reasonably suspected to be 18 years old or less, must not be kept in immigration detention for more than 7 days.
Note: Section 8A requires the principle of the rights and best interests of the child to be a paramount consideration in any decision or other action:
(a) taken for the purposes of this Act; and
(b) that affects a child.
(3) On application, the Federal Circuit Court of Australia may extend, or further extend, that period by up to 3 months. The court may do so only if that period, or that period as last extended, has not yet ended.
(4) If the APASS applicant is an unaccompanied minor, the first order under subsection (3) in relation to the APASS applicant must be obtained within 24 hours of the APASS applicant being taken into immigration detention or as close as possible to that time.
(5) In determining whether to make an order under subsection (3), the Federal Circuit Court must take into account the following:
(a) the effect of subsection (1) and section 8A;
(b) that detention of APASS applicants should only occur as a measure of last resort and for the shortest possible time, and that there should be a general presumption against the detention;
(c) whether there are any non‑custodial measures available (for example the imposition of reporting obligations, sureties or other conditions);
(d) the balancing of the rights to liberty, security and freedom of movement of the APASS applicant with the public policy initiatives of detention.
(6) If the Federal Circuit Court of Australia makes an order under subsection (3), the court may also make any other order the court considers appropriate to facilitate the APASS applicant not being kept in immigration detention for longer than the extended, or further extended, period.
27 Independent monitoring
(1) Immigration detention facilities must be subject to external inspections every 6 months independent of the administration of the facility.
(2) An inspection under subsection (1) must be conducted by an independent organisation determined, by legislative instrument, by the President of the Australian Human Rights Commission.
(3) For the purposes of carrying out an inspection under subsection (1), an organisation determined under subsection (2) may:
(a) access all information on the numbers of detainees and locations of detention, as well as all information relevant to the treatment of detainees (including their records and conditions of detention); and
(b) freely choose which immigration detention facilities to visit (including by making unannounced visits at their own initiative, and which detainees to interview); and
(c) conduct private and fully confidential interviews with detainees and staff or contractors (including medical staff or contractors) working at the immigration detention facility in the course of their visits; and
(d) make recommendations to the immigration detention facilities administration and other competent authorities.
(4) This section does not limit any other right or power of an organisation or individual to access an immigration detention facility that exists apart from this section.
Part 4—Adverse security assessments
28 Adverse security assessments
(1) Despite paragraph 36(1)(b) of the Australian Security Intelligence Organisation Act 1979, Part IV of that Act applies to a security assessment in respect of an APASS applicant to Australia.
(2) The functions of the IGIS include inquiring, on the IGIS’s own initiative, into any adverse security assessments furnished in respect of an APASS applicant to Australia.
(3) The IGIS may, despite any other law, communicate directly with an APASS applicant to Australia for the purposes of an inquiry referred to in subsection (2) in relation to the APASS applicant.
(4) To avoid doubt, subsection (3) of this section does not limit the powers of the IGIS under subsection 17(2) of the Inspector‑General of Intelligence and Security Act 1986 in relation to an inquiry referred to in subsection (2) of this section.
(5) Alternatives to detention that are appropriate in light of the specific security risk posed must be identified and considered.
(6) Special consideration should be given to the wellbeing of the children or other dependents of any asylum seekers against whom an adverse security assessment is made.
Part 5—Review of decisions
29 Review of decisions
Applications may be made to the Administrative Appeals Tribunal for review of any of the following decisions:
(a) a decision of the Secretary under subsection 13(1) that an APASS applicant to Australia will remain for processing at the APASS centre where the APASS applicant was registered as an asylum seeker;
(b) a decision of the Secretary under section 20 to revoke a determination under subsection 17(1);
(c) a decision of the Secretary under section 20 to vary the restriction specified in a determination under subsection 17(1).
Part 6—Jurisdiction of courts
30 Jurisdiction of the Federal Circuit Court
Jurisdiction is conferred on the Federal Circuit Court in relation to any civil matter arising under this Act.
Part 7—Miscellaneous
31 Regulations
The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed by the regulations; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.