Offshore processing — legal framework
Overview
Australia's offshore processing framework allows the Government to transfer unauthorised maritime arrivals (UMAs) to designated regional processing countries — Papua New Guinea (PNG) and Nauru — where their refugee and protection claims are assessed by those countries' authorities. The framework is authorised by Part 2, Division 8, Subdivision B of the Migration Act 1958 (Cth). The High Court upheld the constitutional validity of offshore processing in Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42.
Offshore processing was first introduced in the "Pacific Solution" from 2001–2007, then re-introduced in 2012 following a significant increase in irregular maritime arrivals. The current framework, introduced by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012, grants broad executive power to transfer UMAs to regional processing countries regardless of the circumstances of any individual case.
Legal basis
- Section 198AB — the Minister may, by legislative instrument, designate a country as a "regional processing country" if it is in the national interest
- Section 198AD — an officer must take a UMA to a regional processing country as soon as reasonably practicable
- Section 198AF — the Minister may, by written instrument, specify regional processing arrangements
- Section 198AHA — protections from certain litigation for officers participating in offshore processing activities
- Section 46A — the UMA visa bar (the lock preventing access to the Australian protection visa system)
- Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 — constitutional validity upheld
- Plaintiff S195/2016 v Minister for Immigration and Border Protection (2017) 261 CLR 622 — limits on arrangements, particularly concerning medical evacuation
How it works
Designation of regional processing countries
Under s 198AB, the Minister for Home Affairs may designate a country as a regional processing country by legislative instrument. The designation requires the Minister to be satisfied that it is in the national interest to do so. Papua New Guinea was first designated in 2013; Nauru was designated shortly thereafter. Designations may be reviewed by the Senate.
The transfer obligation
Once a UMA arrives in Australia (or at an Australian territory), an officer has an obligation under s 198AD to take the person to a regional processing country. The obligation applies "as soon as reasonably practicable" — there is no discretion to leave the person in Australia, even while their health or legal situation is being assessed.
Assessment in regional processing countries
Refugee and protection claims are assessed by the authorities of the regional processing country, not by Australian officials. PNG and Nauru have their own domestic processes. Australia provides funding and resources to support these processes but does not control the individual outcomes.
Persons found to be refugees
Persons found to be refugees in regional processing countries are offered resettlement in those countries or in third countries. Australia has provided limited resettlement places for persons found to be refugees in PNG and Nauru. Various regional resettlement arrangements have been made, including with the United States (following the 2016 agreement).
Constitutional basis
The High Court in Plaintiff M68 held (by majority) that Commonwealth officers could participate in the detention of persons on Nauru because the Migration Act authorised those activities. The constitutional basis is the external affairs power (s 51(xxix)) and the power to make laws with respect to naturalisation and aliens (s 51(xix)).
Medevac and medical transfers
The Migration Amendment (Urgent Medical Treatment) Act 2019 (the "Medevac" legislation) temporarily allowed medical transfers from offshore processing countries to Australia for treatment. The legislation was repealed in 2019. Following the 2022 election, the Australian Government took steps to settle the legacy caseload through various mechanisms.