13 March 2012

Suite 1/75-77 Clarence Street (PO Box 1112) PORT MACQUARIE NSW 2444 Tel: 02 6584 2911 Fax: 02 6584 2922 Email:

Shop 6 Manning Arcade 20-24 Manning Street (PO Box 330) TAREE NSW 2430 Tel: 1300 301 836

PO Box 6022 House of Representatives Parliament House CANBERRA ACT 2600 www.roboakeshott.com

robert.oakeshott.mp@aph.gov.au

Web:

Dear Colleague, Re: Migration Legislation Amendment (The Bali Process) Biil 2012 I write to provide a copy of my private members bill titled Migration Legislation Amendment (The Bali Process) Bill 2012 (the Bill) which is expected to be debated in the House over the coming fortnight, with a vote possible on Thursday week. One of the political criticisms of this Bill is that it is a "carbon copy" of a Government Bill titled Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011. This is not correct. The Bill is a combination of three sources: 1. The Bali Process - codifying in domestic law the good bipartisan work started by the former Howard Government in 2002, which provides a border protection and humanitarian framework on people smuggling, people trafficking and related transnational crime. This process is co-chaired by Australia and Indonesia and involves nearly 50 countries, the United Nations High Commissioner for Refugees (UNHCR), the International Organization for Migration (IOM), and the Red Cross and Red Crescent; 2. The Government Bill, in response to the recent decision of the High Court, known as Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011; 3. The Liberal National Coalition amendment to the above Bill, that attempts to only allow participating countries to the United Nations 1951 Refugee Convention (the Convention) to participate in bi-lateral agreements on offshore assessment. On the third point, I refer you directly to the following sections of the Bill that accommodate the Liberal National Coalition amendment representing a substantial shift from previous Bills before the House: Section 198AB Offshore assessmentcountry-in particular subsections (4) and (5) where direct reference is made to the core principles on non-refoulement and orderly assessment procedures of the Convention. This makes sure the amendment as proposed by the Liberal National Coalition is included in the Bill. subsection (2) so that all relevant decisions, agreements, and responses to any bilateral agreements (including from UNHCR and IOM) are documents to be put before the Parliament.

Section 198AC Documents to be laid before Parliament- in particular

Schedule 1 subsection 5(1) - The Insertion of the Bali Process itself. Any bilateral agreement reached within Bali countries is encouraged within the principles on both border protection and humanitarianism as agreed by 50 countries (predominantly Asia-Pacific region countries), and has direct input from the guardian of the Convention - the UNHCR, as well as input from the IOM and Red Cross and Red Crescent. This process has been supported in regional forums since 2002 by both the Liberal National Coalition and the Labor Party. (I attach the most recent Regional Co-operation Framework principles to assist your considerations).

This private members bill establishes a higher standard of protection of human rights than has been sought from either the Labor Party or the Liberal National Coalition on any previous Bill or amendment in response to the High Court ruling on the Malaysia agreement. Through discussions, I understand the Minister for Immigration will be recommending to the Labor Party Caucus that they support the Bill with some amendments. At this stage, through discussions, it appears the Liberal National Coalition continue to want only UN Refugee Convention signatory countries to be able to enter into bi-iaterai agreements on people smuggling and people trafficking. I attach a list of those countries for your consideration. As you can see, from the list, being a signatory country to the Convention does not automatically guarantee legal protection for any refugee. Our geographic challenge is that the Asia-Pacific region has a very low number of signatory countries, meaning the long-term opportunity for bilateral or multi-lateral agreements on people smuggling and people trafficking would be very limited. Therefore it is logical that Australia, as a signatory to the Convention, is a country that will uphold its obligations on non-refoulement and orderly assessment with any country it enters into a contract with. To strengthen this, these two principles of non-refoulement and orderly assessment underpinning the Convention are now codified in this new private members bill as a higher humanitarian standard than any Australia has ever agreed to before. And to further strengthen humanitarian principles, this Bill also codifies the very good international principles of the bipartisan Bali Process into Australian domestic law. In my view, this private members bill strikes a sensible balance between the complex issues relating to people smuggling and people trafficking, and the equally complex issues in relation to asylum seekers and refugees. If you agree with this, I welcome your support for this Bill. I am happy to talk through the issues involved, and certainly welcome any amendments that value-add to policy in the national interest.

ROBERT OAKESHOTT MP MEMBER FOR LYNE w w w . roboa keshott.com rosjt

2010=2011-2012 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES

Presented and read a first time

Migration Legislation AmendmeEt (The Bali Process) Bill 2012 No. , 2012

(Mr Oakeshott)

A BUI for an Act to amend the law relating to migration, and for other purposes

Contents
1 2 3 Short title Commencement Schedule(s) 1 1 1

Schedule 1Offshore assessment

Migration Act 1958

3
3

Schedule 2Other amendments

Immigration (Guardianship of Children) Act 1946

H
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4 5 6 7 8 9 10 11 1 2

A Bill for an Act to amend the law relating to migration, and for other purposes The Parliament of Australia enacts:
1 Short title This Act may be cited as the Migration Legislation Amendment (The Bali Process) Act 2012. 2 Commencement This Act commences on the day after this Act receives the Royal Assent. 3 Seheduie(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule

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1 2
3

concerned, and any other item in a Schedule to this Act has effect according to its terms.

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Schedule 1Offshore assessment

3 4
s 6 7

Migration Act 1958 1 At the end of section 4

Add: (5) To advance its object, this Act provides for the taking of offshore entry persons from Australia to an offshore assessment country.

g
9 IO ]! 12 13

2 Subsection 5(1)
Insert: Bali Process m e a n s the process, known as the Bali Process, established at t h e Regional Ministerial Conference o n People Smuggling, Trafficking in Persons and Related Transnational Crime held in Bali in February 2002.

1 4 is
16 17 18

3 Subsection 5(1) (note 1 at the end of the definition of immigration detention)

Repeal the note, substitute: Note 1; Subsection 198AD(9) provides that being dealt with under subsection 198AD(3) does not amount to immigration detention.

1 9 20
21

4 Subsection 5(1) (paragraph (a) of the definition of offshore entry person)

Before "entered", insert "has, at an)' time,".

22
23 24 25 26

5 Subsection 5(1)
Insert: offshore assessment country means a country designated by the Minister u n d e r subsection 198AB(1) as an offshore assessment country.

27
28 29 30

6 Subsection 5(1)
Insert: Regional Cooperation Framework m e a n s the framework agreed to in the c o - c h a i r s ' statement issued at the 4 t h Regional Ministerial

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Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime held in Bali on 30 March 2011.

3 4
5

7 Subsection 5(1) (paragraph (a) of the definition of transitory person)

Before "section", insert "repealed".

e 7
8 9 IO

8 Subsection 5(1) (after paragraph (a) of the definition of transitory person)

Insert: (aa) an offshore entry person w h o w a s taken to an offshore assessment country under section 198AD; or

n
12

9 Paragraph 36(2)(a)
Omit "to whom", substitute "in respect of whom".

1 3
14

10 Subsection 36(3)
Omit "obligations to", substitute "obligations in respect o f .

is 1 6
17

11 Subsection 48A(2) (paragraph (aa) of the definition of application for a protection visa)
Omit "to whom", substitute "in respect of whom".

1 8 1 9
20

12 Subsection 48A(2) (subparagraph (ab)(i) of the definition of application for a protection visa)
Omit "to w h o m " , substitute "in respect of w h o m " .

2 1
22 23

13 Subsection 189(3)
After " a person", insert "(other than a person referred to in subsection (3A))".

24
25

14 Subsection 189(3)
Omit "may detain", substitute "must detain".

26
27 28 29

15 After subsection 189(3)

Insert: (3 A ) If an officer k n o w s or reasonably suspects that a person in a protected area:

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(a) is an allowed inhabitant of the Protected Zone; and (b) is an unlawful non-citizen; the officer may detain the person.

4
5

16 Subsection 189(5)
After "subsections (3)", insert ", (3 A)".

6
7

17 Paragraph 193(1)(c)
Before "or (4)", insert ", (3A)".

s
9

18 Subsection 196(1)
Omit "he or she is".

10
1 1

19 Paragraph 196(1 )(a)

Before "removed", insert "he or she is".

1 2
13 14 15

20 After paragraph 196(1 )(a)

Insert: (aa) an officer begins to deal with the non-citizen under subsection 198AD(3); or

1 6
17

21 Paragraph 196(1 )(b)

Before "deported", insert "he or she is".

is
19

22 Paragraph 196(1)(c)
Before "granted", insert "he or she is".

20
21 22

23 Subsection 196(3)
O m i t "for removal or deportation", substitute "as referred to in p a r a g r a p h (l)(a), (aa) or (b)".

23
24
25

24 .Division 8 of Part 2 (heading)

R e p e a l t h e heading, substitute:

Division 8Removal of unlawful non-citizens etc.

25 Before section 198
Insert:

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Subdivision ARemoval 26 At the end of section 198

Add: (11) This section does not apply to an offshore entry person to whom section 198AD applies.

6
7

27 Section 198A
Repeal the section, substitute:

8 9
10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30

Subdivision BOffshore assessment 198AA Reason for Subdivision

This Subdivision is enacted because the Parliament considers that: (a) people smuggling, and its undesirable consequences including t h e resulting loss of life at sea, are major regional problems that need to b e addressed; and (b) Australia's c o m m i t m e n t to engagement through the Bali Process, including the implementation of the Regional Cooperation F r a m e w o r k , informs Australia's response to people smuggling, trafficking in persons and related transnational crime; and (c) offshore entry persons, including offshore entry p e r s o n s in respect of w h o m Australia has or m a y have protection obligations under the Refugees Convention as a m e n d e d by the Refugees Protocol, should be able to be taken to any country designated to b e an offshore assessment country; and (d) it is a matter for the Minister to decide which countries should b e designated as offshore assessment countries; and (e) the designation of a country to be an offshore assessment country n e e d be determined only by reference to the fact that the country is a party to the Regional Cooperation Framework. 1 9 8 A B Offshore assessment country

31
32

(1) The Minister may, by legislative instrument, designate that a

country is an offshore assessment country.

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(2) The only conditions for the exercise of the power under subsection (1) are that the Minister thinks that it is in the national interest to designate the country to be an offshore assessment country, and that the country is a party to t h e Bali Process. (3) T o avoid doubt, except as stipulated in this section the international obligations or domestic law of the country d o not invalidate an exercise of the power under subsection (1). (4) Within 14 days of designating a country under subsection (1), the Minister must, in writing, m a k e a request to each of: (a) the Office of the United Nations High Commissioner for Refugees; and (b) the International Organization for Migration for a formal statement of the views of each of those organisations in relation to any arrangements that are in place, or are to be put in place, in the country for the treatment of persons taken to the country. (5) In considering the national interest for the purposes of subsection (2), the Minister: (a) must have regard to whether or not the country has given Australia any assurances to the effect that: (i) the country will n o t expel or return a person taken to the country under section 198 A D to another country where his or her life or freedom would b e threatened on account of his or h e r race, religion, nationality, membership of a particular social group or political opinion; and (ii) the country will m a k e an assessment, or permit an assessment to be m a d e , of whether or not a person taken to the country under that section is covered b y the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol; and (b) m a y have regard to any other matter which, in the opinion of the Minister, relates to t h e national interest. (6) The assurances referred to in paragraph (5)(a) need not b e legally binding. (7) The power under subsection (1) may only be exercised by the Minister personally.

'

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1 2 3 4 s 6 7 8 9 10 11 12 13 14 15 16 n 18 19 20 21 22 23 24 25 26 27 28 29 30 31
32

(8) If the Minister designates a country under subsection (1), the Minister may, in writing, revoke the designation. (9) Transfer of offshore entry persons to an offshore assessment country may not proceed in the absence of a written agreement between Australia and the country for the taking of persons to the country. (10) In this section, country includes: (a) a colony, overseas territory or protectorate of a foreign country; and (b) an overseas territory for the international relations of which a foreign country is responsible. 198AC Documents to be laid before P a r l i a m e n t (1) This section applies if the Minister designates a country to be an offshore assessment country under subsection 198AB(1). (2) The Minister must cause to be laid before each House of the Parliament: (a) a copy of the designation; and (b) a statement of the Minister's reasons for thinking it is in the national interest to designate the country to be an offshore assessment country, referring in particular to any assurances of a kind referred to in paragraph 198AB(5)(a) that have been given b y the country; a n d (c) a c o p y of the written a g r e e m e n t referred to in subsection 198AB(9);and (d) a statement about the Minister's consultations with the Office of the United Nations High Commissioner for Refugees and the International Organization for Migration in relation to the designation, including the nature of those consultations; and (e) any formal statement received pursuant to subsection 198AB(4);and (f) confirmation that the country is a party to the Regional
Cooperation Framework.

33
34 35 36

(3) T h e Minister must comply with subsection (2) within 2 sitting days
of each H o u s e of the Parliament after the d a y on which the designation is made. H o w e v e r , if either of the written agreement referred to at paragraph (2)(c) or a formal statement pursuant to

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paragraph (2)(e) is n o t available within that timeframe, the agreement or statement m a y b e laid before each House of the Parliament subsequently, b u t n o t later than within 2 sitting days of each H o u s e of the P a r l i a m e n t after the day of: (a) signing o f the a g r e e m e n t by both countries, in the case of the written a g r e e m e n t referred to at paragraph (2)(c); or (b) receipt o f the statement, in the case o f a formal statement pursuant to paragraph (2)(e). (4) T h e sole purpose o f laying t h e d o c u m e n t s referred to in subsection (2) before the P a r l i a m e n t is to inform the Parliament of the matters referred t o in t h e d o c u m e n t s a n d nothing in the documents affects t h e validity of the designation. Similarly, the fact that s o m e or all of those d o c u m e n t s d o n o t exist does n o t affect the validity of the designation. (5) A failure t o c o m p l y with this section does n o t affect the validity o f the designation. (6) In this section, agreement understanding: includes an agreement, arrangement or

(a) whether or n o t it is legally binding; and (b) whether it is m a d e before, on or after the c o m m e n c e m e n t o f this section. 198AD Taking offshore entry persons to an offshore assessment country (1) Subject to sections 198AE a n d 198AF, this section applies to an offshore entry p e r s o n w h o is detained u n d e r section 189. Note: For when this section applies to a transitory person, see section 198AG.

(2) A n officer must, as soon as r e a s o n a b l y practicable, take an offshore entry person to w h o m this section applies from Australia to an offshore a s s e s s m e n t country, Powers of an officer

(3) F o r the p u r p o s e s o f subsection (2) and without limiting that subsection, an officer m a y d o any or all o f the following things within or outside Australia: (a) place the offshore entry person on a vehicle or vessel;

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(b) restrain the offshore entry person on a vehicle or vessel; (c) r e m o v e the offshore entry person from: (i) the place at which the person is detained; or (ii) a vehicle or vessel; (d) use such force as is necessary and reasonable. (4) If, in the course of taking an offshore entry person to an offshore assessment country, an officer considers that it is necessary to return the person to Australia: (a) subsection (3) applies until the person is returned to Australia; and (b) section 42 does not apply in relation to the p e r s o n ' s return to Australia. Ministerial direction

(5) If there are 2 or m o r e offshore assessment countries, the Minister must, by legislative instrument, direct an officer to take an offshore entry person, or a class of offshore entry persons, under subsection (2) to the offshore assessment country specified by the Minister in the direction. (6) If the Minister gives an officer a direction under subsection (5), the officer m u s t c o m p l y with the direction. (7) T h e duty under subsection (5) m a y only be performed by the Minister personally. (8) T h e only condition for the performance o f the duty under subsection (5) is that t h e Minister thinks that it is in the public interest to direct the officer to take an offshore entry person, or a class of offshore entry persons, under subsection (2) to the offshore assessment country specified b y the Minister in the direction. Not in immigration detention

(9) A n offshore entry person w h o is being dealt with under subsection (3) is taken not to be in immigration detention defined in subsection 5(1)).

(as

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12

Meaning of officer (10) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force. 198AE No offshore assessment country Section 198 AD does not apply to an offshore entry person if there is no offshore assessment country. 198AF Non-acceptance by offshore assessment country Section 198AD does not apply to an offshore entry person if the offshore assessment country, or each offshore assessment country (if there is more than one such country), has advised an officer, in writing, that the country will not accept the offshore entry person.
Note: For specification by class, see the Acts Interpretation Act 1901.

1 3
14 15 16 17 18 19 20 21 22

198AG Application of section 198AD to certain transitory persons

Section 198AD applies, subject to sections 198AE and 198AF, to a transitory person if, and only if: (a) the person is an offshore entry person w h o is brought to Australia from an offshore assessment country under section 198B for a temporary purpose; and (b) the person is detained under section 189; and (c) t h e person no longer needs to b e in Australia for the temporary purpose (whether or not the purpose has been achieved); and

23 24
25 26

(d) in t h e case where the person has not m a d e a request under section 198Can assessment of whether or not the person is
c o v e r e d by the definition of refugee in Article 1A of the Refugees Convention as amended b y the Refugees Protocol

27 28 29 30 31

w a s n o t completed while the person w a s in t h e offshore assessment country; and (e) in the case where the person has m a d e such a r e q u e s t a certificate is in force under section 198D in relation to the person.

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Schedule I Offshore assessment

1
2 3 4 5 6 7 8 9 10 11 12 13

198AH Ministerial report

The Minister must, as soon as practicable after 30 June in each year, cause to be laid before each House of Parliament a report setting out: (a) the activities conducted under the Bali Process during the year ending on 30 June; and (b) the steps taken in relation to people smuggling, trafficking in persons and related transnational crime to support the Regional Cooperation Framework during the year ending on 30 June; and (c) the progress made in relation to people smuggling, trafficking in persons and related transnational crime under the Regional Cooperation Framework during the year ending on 30 June.

1 4
is 1 6
17 18 19 20 21

Subdivision CTransitory persons etc.

28 Subsection 198D(3) (paragraph (c) of the definition of uncooperative conduct)
Repeal the paragraph, substitute: (c) t h e detention of the person under section 189; (d) the taking o f the person to an offshore assessment country under section 198AD; (e) t h e detention o f the person in an offshore assessment country.

22
23 24

29 At the end of section 199

Add: (4) In p a r a g r a p h s ( l ) ( a ) , (2)(a) a n d (3)(a), a reference to remove

25

includes a reference to take to an offshore assessment country.

26
27

30 Subparagraph 336E(2)(a)(vi)
After " r e m o v e d " , insert ", taken".

28
29 30

31 Subparagraph 336F(5)(c)(ii)
O m i t " t o w h o m Australia owes", substitute " i n respect of w h o m Australia has protection".

3 1
32

32 Subsection 486B(1)
After "deportation,", insert "taking,".

12

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2

33 Paragraph 486C(1)(a)
After "deportation,", insert "taking,".

3
4

34 Paragraph 494AA(1)(d)
Before "section", insert "repealed".

5
6 7 8 9

35 At the-end of subsection 494AA(1)

Add: ; (e) proceedings relating to the performance or exercise of a function, duty or power under Subdivision B of Division 8 of Part 2 in relation to an offshore entry person.

10
11 12 13 14 is 16 17 18
19

36 After paragraph 494AB(1)(c)

Insert: (ca) proceedings relating to the performance or exercise of a function, duty or power under Subdivision B of Division 8 of Part 2 in relation to a transitory person; 37 A p p f i c a t i o n s e c t i o n 198AD o f the Migration Act 1958

Section 198 AD of the Migration Act 1958, as inserted by this Schedule, applies in relation to an offshore entry person who enters Australia on or after the commencement of this item.

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Schedule 2 Other amendments

Schedule 2Other amendments

3
4
5 6 7 8 9 10 11 12 13

Immigration (Guardianship of Children) Act 1946

1 Section 4
Insert: migration law means any of the following: (a) the Migration Act 1958; (b) regulations made under that Act; (c) any instrument made under that Act or those regulations. 2 Section 4 Insert: offshore assessment country has the same meaning as in the Migration Act 1958.

1 4
is

3 Section 6
Before "The Minister", insert "(1)".

i6
n 18 19 20 21
22 23 24

4 At the end of section 6

Add: (2) Without limiting the meaning of the expression leaves Australia permanently in subsection (1), a non-citizen child leaves Australia permanently if: (a) the child is removed from Australia under section 198 or 199
o f the Migration Act 1958; or (b) t h e child is taken from Australia to an offshore assessment country under section 198 A D o f that Act; or

25 26 27

(c) t h e child is deported under section 2 0 0 of that Act; or (d) t h e child is taken to a place outside Australia under paragraph 245F(9)(b)ofthatAct.

28
29

5 Subsection 6A(4)
Repeal the subsection.

30

6 Section 8 (heading)

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Repeal the heading, substitute: 8 Operation of other laws 7 Section 8 Before "Except as", insert "(1)".

5
6 7 8 9 10 11 12 13 14 is 16 n 18 19 20 21 22 23 24 25

8 At the end of section 8

Add: (2) Nothing in this Act: (a) affects the operation of the migration law; or (b) affects the performance or exercise, or the purported performance or exercise, of any function, duty or p o w e r under the migration law; or (c) imposes any obligation on the Minister to exercise, or to consider exercising, any p o w e r conferred on the Minister by or under the migration law. (3) Without limiting subsection (2), nothing in this Act affects the performance or exercise, or the purported performance or exercise. of any function, duty or p o w e r relating to: (a) the removal of a non-citizen child from Australia under section 198 or 199 of the Migration Act 1958; or (b) the taking of a non-citizen child from Australia to an offshore assessment country under section 198 A D of that Act; or (c) the deportation of a non-citizen child under section 200 of that Act; or (d) the taking of a non-citizen child to a place outside Australia under paragraph 245F(9)(b) of that Act.

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FOURTH BALI REGIONAL MINISTERIAL CONFERENCE ON PEOPLE SMUGGLING, TRAFFICKING IN PERSONS AND RELATED TRANSNATIONAL CRIME BALI, INDONESIA, 29-30 MARCH 2011 CO-CHAIRS' STATEMENT I. General Principles 1. We, the Foreign Ministers of indoilgsiajmd^^ to Co-Chair the Fourth Bali Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime in Bali, Indonesia on 29-30 March 2011, attended by Afghanistan, Australia, Bangladesh, Bhutan, Brunei Darussalam, Cambodia, China, Fiji, Indonesia, Iran, Iraq, Lao PDR, Malaysia, Maldives, Mongolia, Myanmar, Nauru, Nepal, New Zealand, Palau, Papua New Guinea, Philippines, Republic of Korea, SamoaT^Slngapore, Solomon Islands, Sri Lanka, Syria, Thailand, Timor-Leste, Vanuatu, and Viet Nam, as well as the Office of the United NarijojisJ^ghjCjo^nnTussioner for Refugees and the Director General of the International Organization for Migration. 2. Canada, Italy, The Netherlands, Russian Federation, Spain, United States of America, ASEAN Secretariat, ILO, International Federation of Red Cross and Red Crescent Societies (IFRC) and UNODC attended as observers. 3. Ministers recalled the Third Bali Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime, held in Bali on 14-15 April 2009, and took note with appreciation of the ongoing activities and achievements of the Bali Process since that date. Ministers reaffirmed the general principles on combating people smuggling, trafficking in persons and related transnational crime, as outlined in the Co-Chairs' Statement from the Third Bali Process Ministerial Conference. 4. Ministers acknowledged that 2012 marks the ten-year commemoration of the First Bali Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime held in Bali on 26-28 February 2002. In this context, Ministers highlighted the important achievements reached through cooperation by States within the context of Bali Process mechanisms and reaffirmed their strong and ongoing commitment to combating people smuggling and trafficking in persons. Ministers affirmed that people smuggling and trafficking in persons are related but distinct crimes, and that each requires a targeted response. 5. Ministers underlined the importance of all States increasing efforts to combat people smuggling and trafficking in persons, and agreed on the need for enhancing and implementing strong national legislation to criminalise these activities and confiscate the proceeds of crime derived from the criminal activity; renewing efforts towards building greater consistency in legal regimes; strengthening law enforcement mechanisms; and intensifying cooperation in the prosecution of these activities in accordance with domestic law and international human rights principles. 6. Ministers noted the large number of irregular migrants moving through the region and expressed concern about the risks to the lives and human rights of those being smuggled and trafficked. Ministers noted with concern the large number of lives lost due to the actions of smugglers and traffickers. 7. Ministers agreed that while border control and law enforcement initiatives are important and effective measures to combat people smuggling and trafficking in persons, these measures

II

alone are not sufficient and that practical cooperative solutions that also address humanitarian and protection needs are required."""" ~ ~ . 8. Ministers acknowledged that the root causes of movements within the region were numerous and multi-dimensional, involving economic, social and political aspects. Ministers also acknowledged that poverty, economic disparities, labour market opportunities, conflict, and insecurity were major causes contributing to the continuing prevalence of people smuggling and human trafficking both globally and regionally. In addition, Ministers noted that differences in treatment and access to permanent outcomes for asylum seekers contributed to onwards movement. 9. Ministers recognised the need for development support in countries of origin to help strengthen governance, enhance sustainable development, and address some of the underlying factors which made individuals more vulnerable to irregular migration. 10. Ministers highlighted that trafficking in persons in particular was an issue of ongoing concern to many countries in the region. Ministers supported efforts to strengthen, in appropriate cases and to the extent possible under domestic laws and policy, domestic measures to prevent trafficking in persons and to investigate and punish perpetrators. Ministers acknowledged that trafficked persons are victims and encouraged States to enhance efforts to provide appropriate protection and assistance to victims of trafficking, including through rehabilitation, reintegration and victim support. Noting the particular vulnerability of victims of trafficking, especially women and children, Ministers agreed on the importance of promoting a victim-centred approach to law enforcement, in relation to trafficking in persons for identified victims of trafficking, in order to enhance prosecution and prevent re-victimisation. 11. Ministers agreed that cooperation should be based on an acknowledgement that each State had a sovereign right and legitimate interest to develop and implement its own laws to address people smuggling and trafficking in persons, reflecting the non-binding nature of the Co-Chairs' Statement. 12. Ministers noted with appreciation that since they previously met several regional countries had signed and/or ratified the United Nations Convention against Transnational Organised Crime and the Protocols thereto. Ministers encouraged those countries that had not yet done so also to consider the benefits of signing and ratifying the Convention and its Protocols. II. Review of Progress since the Third Bali Regional Ministerial Conference

13. Ministers welcomed the Progress Report of the Co-Chairing Ministers on activities of the Bali Process, including of the Ad Hoc Group, since the Third Ministerial Conference. Ministers recalled the decision at the Third Bali Regional Ministerial Conference to re-task the Ad Hoc Group mechanism to develop regional responses to current challenges. Ministers endorsed the Co-Chairs' statements from the Ad Hoc Group Senior Officials' Meeting and the Bali Process Senior Officials' Meeting held on 9 and 10 March 2011 respectively, and welcomed the Ad Hoc Group Co-Chairs' Report. 14. Ministers commended the valuable and constructive work of the Ad Hoc Group, including the outcomes of the workshop on Protection, Resettlement and Repatriation held in Bali in June 2010 and the workshop on Regional Cooperation on Refugees and Irregular Movements held in Manila in November 2010.

III.

Decisions and Recommendations on Future Activities

15. Ministers underlined the collective responsibility of source, transit and destination countries in responding to complex migratory movements, noting that a cooperative framework approach would offer an opportunity to accommodate the interests of all States involved, consistent with applicable international standards. 16. Ministers agreed that an inclusive but non-binding regional cooperation framework would provide a more effective way for interested parties to cooperate to reduce irregular movement through the region. Ministers agreed to a regional cooperation framework underpinned by the following core principles: i. Irregular movement facilitated by people smuggling syndicates should be eliminated and States should promote and support opportunities for orderly migration. ii. Where appropriate and possible, asylum seekers should have access to consistent assessment processes, whether through a set of harmonised arrangements or through the possible establishment of regional assessment arrangements, which might include a centre or centres, taking into account any existing sub-regional arrangements. iii. Persons found to be refugees under those assessment processes should be provided with a durable solution, including voluntary repatriation, resettlement within and outside the region and, where appropriate, possible "in country" solutions. iv. Persons found not to be in need of protection should be returned, preferably on a voluntary basis, to their countries of origin, in safety and dignity. Returns should be sustainable and States should look to maximise opportunities for greater cooperation. v. People smuggling enterprises should be targeted through border security arrangements, law enforcement activities and disincentives for human trafficking and smuggling. 17. Ministers further agreed that the regional cooperation framework could be operationalised through interested States entering into practical bilateral or other sub-regional t y| arrangements to enhance the region's response to irregular movement, consistent with the A principles at paragraph 16 and guided by the considerations at paragraph 19. States could opt ]/ into any such arrangements on a voluntary basis. 18. Ministers also agreed that due to the large scale of irregular movement in the region, a regional framework could address initially a selected caseload or caseloads, and that participating States should seek to enter into arrangements which would ensure that persons in that caseload are dealt with in accordance with the processes established under the framework. 19. Ministers agreed that in developing and implementing practical arrangements participating States should be guided by the following considerations: i. Arrangements should promote human life and dignity. ii. Arrangements should seek to build capacity in the region to process mixed flows and where appropriate utilise available resources, such as those provided by international organisations. iii. Arrangements should reflect the principles of burden-sharing and collective responsibility, while respecting sovereignty and the national security of concerned States. iv. Arrangements should seek to address root causes of irregular movement and promote population stabilisation wherever possible.

v. Arrangements should promote orderly, legal migration and provide appropriate opportunities for regular migration. vi. Any arrangements should avoid creating pull factors to, or within, the region. vii. Arrangements should seek to undermine the people smuggling model and create disincentives for irregular movement and may include, in appropriate circumstances, transfer and readmission. viii. Arrangements should support and promote increased information exchange, while respecting confidentiality and upholding the privacy of affected persons. Future Activities 20. Ministers agreed to reinvigorate cooperation on practical measures and activities aimed at increasing the capacity of States to address trafficking in persons, including giving consideration to issues of victim assistance and protection. In this regard, Ministers welcomed further Bali Process initiatives being planned to augment cooperation on countering trafficking in persons, including consideration by regional technical experts of practical measures to protect and assist victims, prosecute perpetrators of the crime, and prevent trafficking in persons. 21. Ministers agreed on the importance of border integrity and law enforcement cooperative measures as a core component of Bali Process work and welcomed planned initiatives, including on mutual legal assistance, immigration aspects of airport security, document examination and maritime safety in the context of irregular maritime ventures. 22. Ministers agreed to strengthen engagement on information and intelligence sharing underscoring the high value and utility that would derive from enhanced information sharing. In this regard, Ministers welcomed assistance from UNODC in establishing a voluntary reporting system on migrant smuggling and related conduct in support of the Bali Process, and welcomed the broadening of the Regional Immigration Liaison Officer Network (RILON) concept to include other Bali Process member countries, to establish other new regional RILON teams, and to invite other like-minded non-Bali Process countries to participate on a case by case basis, as determined by the Steering Group. 23. Ministers tasked officials from Ad Hoc Group countries and other interested countries to operationalise the regional cooperation framework in conjunction with UNHCR and IOM as appropriate through bilateral and multilateral arrangements. In this regard, the UNHCR paper on a regional cooperative approach to address refugees, asylum seekers and irregular movement, presented at the Workshop on Regional Cooperation and Irregular Migration in Manila on 22 to 23 November 2010, was seen as a useful foundation for operationalising the framework, particularly the three regional support functions. 24. Ministers agreed that the Ad Hoc Group be retained as an effective mechanism through which to develop and pursue concrete recommendations to inform future regional cooperation on people smuggling, trafficking in persons and irregular movements generally for consideration and deliberation at future Bali Regional Ministerial Conference and Senior Officials' Meeting. Pursuant to Ministers' original direction to the Steering Group to draw participation for the Ad Hoc Group from the 'most affected countries', Ministers agreed that the Ad Hoc Group be expanded, as determined by the Steering Group, to other interested Bali Process members and participants. 25. Ministers requested the Co-Chairs of the Steering Group make available the Ad Hoc Group as a forum for participating States to share their experiences and knowledge flowing from arrangements implemented under the regional cooperation framework. Ministers also

asked the Ad Hoc Group to focus on ways to harmonise processes for dealing with irregular flows in the region, including through measures to enhance the collection of information necessary to establish a claim for protection; improved information sharing between States on irregular migration; the identification of persons and their referral to appropriate channels for processing; and processes and procedures for the return of persons to their countries of origin where they are found not to be in need of international protection, including the support provided to those persons to assist with reintegration. 26. Ministers welcomed the Ad Hoc Group-initiated research project establishing an information base on regional approaches to protection, resettlement and repatriation, and the proposed workshop to deliver the results of the research and to consider how this research might be used to inform regional framework activities. 27. Ministers agreed that the Co-Chairs of the Steering Group will report to Ministers on the operation of any arrangements implemented by participating States under the regional cooperation framework, including providing advice on further opportunities for cooperation. 28. Ministers tasked the Co-Chairs, with the assistance of the Steering Group, to continue to develop and implement proposals for targeted activities and initiatives of cooperation under the Bali Process consistent with this statement and subject to available resources. 29. Ministers highlighted the cooperation available from IOM, UNHCR, and UNODC consistent with their respective mandates, to assist in the implementation of initiatives arising from the Bali Process. 30. Ministers reaffirmed the high value they placed on the work of IOM and UNHCR and other relevant international organisations and fora, such as those represented in an observer capacity at this Conference. 31. Finally, Ministers acknowledged with gratitude the host Government of Indonesia for the excellent arrangements that were made for the Conference and the people of Bali for their generous hospitality.

2. CONVENTION RELATING TO THE STATUS O F REFUGEES

Geneva, 28 July 1951 ENTRY INTO FORCE: 22 April 1954, in accordance with article 43. REGISTRATION: 22 April 1954, No. 2545. STATUS: Signatories: 19. Parties: 145. TEXT: United Nations, Treaty Series , vol. 189, p. 137. Note: The Convention was adopted by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, held at Geneva from 2 to 25 July 1951. The Conference was convened pursuant to resolution 429 (V)1, adopted by the General Assembly of the United Nations on 14 December 1950.

Participant Afghanistan Albania Algeria Angola Antigua and Barbuda .... Argentina Armenia ^Australia Austria Azerbaijan Bahamas Belarus Belgium Belize Benin Bolivia (Plurinational State of) Bosnia and Herzegovina2 Botswana Brazil Bulgaria Burkina Faso Burundi ^Cambodia Cameroon Canada Central African Republic Chad Chile , 4t China3 Colombia Congo

Signature

Accesswn(a), Succession(d), Ratification 30 Aug 18 Aug 21 Feb 23 Jun 7 Sep 15 Nov 6 Jul 22 Jan 1 Nov 12 Feb 15 Sep 23 Aug 22 Jul 27 Jun 4 Apr 9 Feb 1 Sep 2005 a 1992 a 1963 d 1981 a 1995 a 1961 a 1993 a 1954 a 1954 1993 a 1993 a 2001 a 1953 1990 a 1962 d 1982 a 1993 d 1969 a 1960 1993 a 1980 a 1963 a 1992 a 1961 d 1969 a 1962 d 1981 a 1972 a 1982 a 1961 1962.d

Participant Costa Rica Cote d'lvoire Croatia2 Cyprus Czech Republic4 Democratic Republic of the Congo Denmark Djibouti Dominica Dominican Republic Ecuador Egypt El Salvador Equatorial Guinea Estonia Ethiopia -Fiji Finland France Gabon Gambia Georgia Germany5'6 Ghana Greece Guatemala Guinea Guinea-Bissau Haiti Holy See Honduras Hungary Iceland
V 2.

Signature

Accession(a), Succession(d), Ratification 28 Mar 8 Dec 12 Oct 16 May 11 May 1978 a 1961 d 1992 d 1963 d 1993 d

28 Jul

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28 Jul

1951

28 Jul

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15 Jul

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6 Jan 16 Nov 12 May 18 Jun 19 Jul 15 Oct 23 Oct 4 Jun 4 Sep 19 Aug 28 Jan 24 Sep 10 Oct 15 Oct

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1965 a 19 Jul 4 Dec 1952 9 Aug 1977 d 17 Feb 1994 a 4 Jan 1978 a 17 Aug 1955 a 22 May 1981 a 28 Apr 1983 a 7 Feb 1986 a 10 Apr 1997 a 10 Nov 1969 a 12 Jun 1972 d 10 Oct 1968 a 23 Jun 1954 27 Apr 7 Sep 9 Aug 1 Dec 18 Mar 5 Apr 22 Sep 28 Dec 11 Feb 25 Sep 15 Mar 23 Mar 14 Mar 30 N o v 1964 a 1966 d 1999 a 1953 1963 a 1960 1983 a 1965 d 1976 a 1984 a 1956 1992 a 1989 a 1955 a

19 Nov 10 Apr

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REFUGEES AND STATELESS PERSONS

Participant Iran (Islamic Republic of) Ireland Israel Italy Jamaica Japan Kazakhstan Kenya Kyrgyzstan Latvia Lesotho Liberia Liechtenstein Lithuania Luxembourg Madagascar Malawi Mali Malta Mauritania Mexico Monaco Montenegro Morocco Mozambique Namibia Nauru Netherlands *New Zealand Nicaragua Niger Nigeria

Signature

Accession(a), Succession(d), Ratification

Participant Russian Federation Rwanda 4 Samoa Sao Tome and Principe. Senegal Serbia2 Seychelles Sierra Leone Slovakia'1 Slovenia2 ^ Solomon Islands Somalia South Africa Spain St. Kitts and Nevis St. Vincent and the Grenadines Sudan Suriname7 Swaziland Sweden Switzerland Tajikistan The former Yugoslav Republic of Macedonia2 * Timor-Leste Togo Trinidad and Tobago Tunisia Turkey Turkmenistan "^Tuvalu8 Uganda Ukraine9 United Kingdom of Great Britain and Northern Ireland United Republic of Tanzania Uruguay Yemen10 Zambia Zimbabwe

Signature

Accession(a), Succession(d), Ratification 2 Feb 3 Jan 21 Sep 1 Feb 2 May 12 Mar 23 Apr 22 May 4 Feb 6 Jul 28 Feb 10 Oct 12 Jan 14 Aug 1 Feb 3 Nov 22 Feb

1 Aug 23 Jul

1951 1952

28 Jul 28 Jul

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Norway 28 Jul Panama ^Papua New Guinea Paraguay Peru ^-Philippines Poland Portugal3 Republic of Korea Republic of Moldova.... Romania

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28 J l u 29 Nov 1 Oct 15 Nov u 30 J l 3 Oct a 15 J n 16 May 8 Oct 31 J l u 14 May 15 Oct 8 Mar 28 Apr 23 J l u 18 Dec 10 Dec 2 Feb 17 Jun 5 May 7Jun 18 May T Oct O 7 Nov 16 Dec 17 Feb 28 Jun 3 May 30 Jun 28 Mar 25 Aug 23 Oct 23 Mar 2 Aug 17 J l u 1Apr 21 Dec 22 J l u 27 Sep 22 Dec 3 Dec 31 Jan 7 Aug

1976 a i 1956 a 1954 1954 1964 d 1981 a 1999 a 1966 a 1996 a 1997 a 1981 a 1964 a 1957 1997 a 1953 1967 a 1987 a 1973 d 1971 a 1987 a 2000 a 1954 a 2006 d 1956 d 1983 a 1995 a 2011 a 1956 1960 a 1980 a 1961 d 1967 a 1953 1978 a 1986 a 1970 a 1964 a 1981 a 1991 a 1960 a 1992 a 2002 a 1991 a

1993 a 1980 a 1988 a 1978 a 1963 d

2001 d 1980 a 1981 a 1993 d 1992 d 1995 a 1978 a 1996 a 1978 a 2002 a

28 Jul 28 Jul

1951 1951

1993 a 1974 a 29 Nov 1978 d 14 Feb 2000 a 26 Oct 1954 21 Jan 1955 7 Dec 1993 a

24 Aug

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18 Jan 7 May 27 Feb 10 Nov 24 Oct 30 Mar

1994 d 2003 a 1962 d 2000 a 1957 d 1962 2 Mar 1998 a 7 Mar 1986 d 27 Sep 1976 a 10 Jun 2002 a

28 Jul

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Mar

1954

12 May 1964 a 22 Sep 1970 a 18 Jan 1980 a 24 Sep 1969 d 25 Aug 1981 a

V 2.

REFUGEES AND STATELESS PERSONS