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2010 - 2011 - 2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MIGRATION AMENDMENT (UNAUTHORISED MARITIME ARRIVALS AND OTHER MEASURES)
BILL 2012
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration and Citizenship,
the Hon. Chris Bowen MP)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF
REPRESENTATIVES TO THE BILL AS INTRODUCED
Migration Amendment (Unauthorised Maritime Arrivals and Other Measures)
Bill 2012
OUTLINE
The Migration Amendment (Unauthorised Maritime Arrivals and Other
Measures) Bill 2012
(the Bill) amends the Migration Act 1958 (the Act) to implement
recommendation 14 from the report by the Expert Panel on Asylum Seekers
(the Expert Panel) handed to the Prime Minister and the Minister for
Immigration and Citizenship on 13 August 2012, and to implement other
measures to strengthen the regional processing framework.
The Migration Legislation Amendment (Regional Processing and Other
Measures) Act 2012 (Regional Processing Act) amended the Act to give
effect to recommendation 7 of the
Expert Panel's report to allow offshore entry persons to be taken to
designated regional processing countries for the processing of any
asylum claims. The Regional Processing Act commenced on 18 August
2012.
Under the Regional Processing Act, regional processing arrangements only
apply to offshore entry persons who enter Australia at excised offshore
places. Regional processing arrangements do not currently apply to
individuals who enter Australia at the Australian mainland because they
are not classified as offshore entry persons. Consequently, under
current arrangements, there is an inherent risk that individuals may
seek to travel to the Australian mainland to avoid being sent to a
designated regional processing country.
The Expert Panel stated that all possible measures should be implemented
to avoid creating an incentive for people to take even greater risks
with their lives by seeking to bypass excised offshore places to reach
the Australian mainland. Further, the Expert Panel stated that such an
amendment will be important to ensure that the introduction of
processing outside Australia does not encourage asylum seekers to avoid
these arrangements by attempting to enter at the Australian mainland.
Such attempts would increase the existing dangers inherent in irregular
maritime travel.
For this reason, the Expert Panel recommended (in recommendation 14)
that the Act also be amended to ensure that arrival anywhere in
Australia by irregular maritime means will not provide individuals with
a different lawful status than those who arrive at an excised offshore
place.
The Bill therefore provides that all arrivals in Australia by irregular
maritime means will have the same legal status regardless of where they
arrive, unless they are an excluded class or otherwise exempted. This
means, all arrivals in Australia by irregular maritime means cannot make
a valid application for a visa unless the Minister personally thinks it
is in the public interest to do so. Those people are also subject to
mandatory immigration detention, are to be taken to a designated
regional processing country and cannot institute or continue certain
legal proceedings.
This Bill also provides for discretionary immigration detention of Papua
New Guinea (PNG) citizens who are unlawful non-citizens and are in a
protected area. The Regional Processing Act amended section 189 of the
Act to require mandatory immigration detention of unlawful
non-citizens in an excised offshore place (except for allowed
inhabitants of the Protected Zone in a protected area who are unlawful
non-citizens). Prior to the commencement of the Regional Processing
Act, the immigration detention of all unlawful non-citizens in an
excised offshore place was discretionary.
Specifically, the Bill amends the Act to:
. repeal the defined term offshore entry person;
. insert a new defined term unauthorised maritime arrival;
. provide that a person is an unauthorised maritime arrival if they
entered Australia by sea at an excised offshore place at any time
after the excision time for that place or at any other place at any
time on or after commencement, became an unlawful non-citizen because
of that entry and is not an excluded maritime arrival;
. replace references in the Act to offshore entry person with either the
word "person" or the new defined term unauthorised maritime arrival as
grammatically appropriate;
. amend the defined term transitory person so that a person does not
cease to be a
transitory person if a person has been assessed to be a refugee for
the purposes of the Refugees Convention as amended by the Refugees
Protocol;
. provide that a person will have entered Australia by sea if: (a) the
person entered the migration zone except on an aircraft that landed in
the migration zone; or (b) the person entered the migration zone as a
result of being found on a ship detained under section 245F and dealt
with under paragraph 245F(9)(a); or (c) if the person entered the
migration zone after being rescued at sea;
. provide that a person is an excluded maritime arrival and therefore
not an unauthorised maritime arrival if the person is a New Zealand
citizen who holds and produces a
New Zealand passport that is in force, or is a non-citizen who holds
and produces a passport that is in force and is endorsed with an
authority to reside indefinitely on Norfolk Island, or is included in
a prescribed class of persons;
. amend subsection 189(2) of the Act to provide for discretionary
immigration detention for some persons who are seeking to enter the
migration zone (other than at an excised offshore place);
. amend paragraph 189(3A)(a) of the Act to provide for discretionary
immigration detention of PNG citizens who are unlawful non-citizens
and are in a protected area;
. amend section 198AE of the Act to include an express power for the
Minister to revoke or vary a determination made under section 198AE if
the Minister thinks it is in the public interest to do so;
. amend section 198AH of the Act to confirm that a transitory person can
be taken to a regional processing country whether or not the
transitory person has been assessed to be covered by the definition of
refugee in Article 1A of the Refugees Convention as amended by the
Refugees Protocol;
. insert section 198AI to require the Minister to report to each House
of Parliament, as soon as practicable after 30 June in each year, on
activities conducted under the Bali Process, and the steps taken and
the progress made 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;
. repeal sections 198C and 198D of the Act so that a transitory person
cannot seek an assessment of their refugee status from the Refugee
Review Tribunal (RRT) and the subsequent lifting of the section 46B
bar on making a valid visa application where the RRT considers the
transitory person is covered by the definition of refugee in Article
1A of the Refugees Convention as amended by the Refugees Protocol;
. provide that an authorisation made under section 336D of the Act that
was in force immediately before commencement is taken to authorise
access to identifying information relating to unauthorised maritime
arrivals to the extent that, immediately before commencement, the
authorisation authorised access to identifying information relating to
offshore entry persons;
. provide that an authorisation made under section 336F of the Act that
was in force immediately before commencement is taken to authorise
disclosure of identifying information relating to unauthorised
maritime arrivals to the extent that, immediately before commencement,
the authorisation disclosure of identifying information relating to
offshore entry persons;
. provide that any reference in the access authorisation or disclosure
authorisation to an offshore entry person is taken, after
commencement, to be a reference to an
unauthorised maritime arrival;
. make necessary consequential amendments; and
. provide for contingent amendments to paragraph 5AA(2)(b) and
subsection 5AA(4) of the Act following the commencement of the
Maritime Powers Act 2012.
CONSULTATION
External consultations in relation to the Bill have taken place with
various Commonwealth agencies including the Attorney-General's Department,
the Department of the Prime Minister and Cabinet, the Australian Customs
and Border Protection Service, the Department of Defence, the Department of
Infrastructure and Transport and the Department of Agriculture, Fisheries
and Forestry.
financial impact statement
The financial impact of these amendments is low. Any costs will be met
from within existing resources of the Department of Immigration and
Citizenship.
REGULATION impact statement
The Office of Best Practice Regulation has been consulted and assessed that
a regulation impact statement is not required. The advice references are
14216 and 14264.
statement OF COMPATIBILITY with Human rights
A Statement of Compatibility with Human Rights has been completed in
relation to the amendments in this Bill and assesses that the amendments
are compatible with Australia's human rights obligations. A copy of the
Statement of Compatibility with Human Rights is at Attachment A.
Migration amendment (UNAUTHORISED MARITIME ARRIVALS AND OTHER MEASURES)
BILL 2012
notes on individual clauses
Clause 1 Short title
1. Clause 1 provides that the short title by which this Act may be cited
is the
Migration Amendment (Unauthorised Maritime Arrivals and Other Measures)
Act 2012.
Clause 2 Commencement
2. Subclause 2(1) provides that 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.
3. Table item 1 provides that sections 1 to 3 of this Act and anything in
this Act not elsewhere covered by the table will commence on the day on
which this Act receives the Royal Assent.
4. Table item 2 provides that items 1 to 14 of Schedule 1 will commence on
a single day to be fixed by Proclamation. It also provides that if the
provision(s) do not commence within the period of 6 months beginning on
the day this Act receives the Royal Assent, they commence on the day
after the end of that period.
5. Table item 3 provides that items 15 and 16 of Schedule 1 will commence
on the day after this Act receives the Royal Assent.
6. Table item 4 provides that items 17 to 62 of Schedule 1 will commence
at the same time as the provision(s) covered by table item 2.
7. Table item 5 provides that Schedule 2 will commence the later of:
. immediately after the commencement of the provision(s) covered
by table item 2; and
. immediately after the commencement of section 69 of the Maritime
Powers Act 2012.
It also provides that, the provision(s) do not commence at all if the
event mentioned in paragraph (b) of table item 5 does not occur. The
effect of this is that if section 69 of the Maritime Powers Act 2012
does not commence then Schedule 2 of this Act will not commence.
8. The note in subclause 2(1) makes it clear that the table relates only
to the provisions of this Act as originally enacted. The table will
not be amended to deal with any later amendments of this Act.
9. Subclause 2(2) provides that any information in column 3 of the table
is not part of this Act. It provides that information may be inserted
in column 3, or information in it may be edited, in any published
version of this Act.
Clause 3 Schedule(s)
10. This clause provides that 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 concerned.
In addition, any other item in a Schedule to this Act has effect
according to its terms.
SCHEDULE 1 - Main amendments
Part 1 - Amendments
Migration Act 1958
Item 1 Subsection 4(5)
11. This item omits the words "offshore entry persons" and substitutes the
words "unauthorised maritime arrivals" in subsection 4(5) of the
Migration Act 1958 ( "the Act").
12. Section 4 sets out the object of the Act. Relevantly, subsection 4(1)
provides that the object of the Act is to regulate, in the national
interest, the coming into, and presence in, Australia of non-citizens.
13. Current subsection 4(5) provides that, to advance its object, the Act
provides for the taking of offshore entry persons from Australia to a
regional processing country.
14. New subsection 4(5) provides that, to advance its object, the Act
provides for the taking of unauthorised maritime arrivals from
Australia to a regional processing country.
15. This is a consequential amendment as a result of the amendments in item
3 of Schedule 1 to the Bill which repeals the term offshore entry
person and item 7 of Schedule 1 to the Bill which inserts the term
unauthorised maritime arrival.
Item 2 Subsection 5(1) (note at the end of the definition of
excised offshore place)
16. This item repeals the note at the end of the definition of excised
offshore place in
subsection 5(1) of the Act.
17. Excised offshore place is defined in subsection 5(1) of the Act as any
of the following:
. the Territory of Christmas Island;
. the Territory of Ashmore and Cartier Islands;
. the Territory of Cocos (Keeling) Islands;
. any other external Territory that is prescribed by the
regulations for the purposes of this paragraph;
. any island that forms part of a State or Territory and is
prescribed for the purposes of this paragraph;
. an Australian sea installation;
. an Australian resources installation.
18. The current note to the definition of excised offshore place provides
that the effect of this definition is to excise the listed places and
installations from the migration zone for the purposes of limiting the
ability of offshore entry persons to make valid visa applications.
19. This note is repealed because the amendments made by item 8 of Schedule
1 to the Bill mean that entering Australia at an excised offshore place
is not the only entry to Australia whereby there will be a limit on the
ability of a person to make a valid visa application.
Item 3 Subsection 5(1) (definition of offshore entry person)
20. This item repeals the definition of offshore entry person in subsection
5(1) of the Act.
21. Current subsection 5(1) of the Act defines an offshore entry person to
mean a person who:
. has, at any time, entered Australia at an excised offshore place
after the excision time for that offshore place; and
. became an unlawful non-citizen because of that entry.
22. The definition of offshore entry person is repealed as the definition
of unauthorised maritime arrival, which is inserted by item 8 of
Schedule 1 to the Bill, maintains the effect of the definition of
offshore entry person so that a person who enters Australia by sea at
an excised offshore place at any time after the excision time for that
place, which may be prior to the commencement of this Act, and who
became an unlawful non-citizen because of that entry will continue to
have the same consequences under the Act as an offshore entry person.
23. However, while an offshore entry person included all persons who
entered Australia at an excised offshore place after the excision time
for that place regardless of their mode of entry, subparagraph
5AA(1)(a)(i) in item 8 of Schedule 1 to the Bill does not include a
person as an unauthorised maritime arrival if they had not entered
Australia by sea at an excised offshore place.
Item 4 Subsection 5(1) (paragraphs (a) and (aa) of the definition
of transitory person)
24. This item omits the words " an offshore entry person" and substitutes
the words "a person" in paragraphs 5(1)(a) and 5(1)(aa) of the
definition of transitory person in subsection 5(1) of the Act.
25. This is a consequential amendment as a result of the amendments in item
3 of Schedule 1 to the Bill which repeals the term offshore entry
person and item 7 of Schedule 1 to the Bill which inserts the term
unauthorised maritime arrival.
Item 5 Subsection 5(1) (subparagraph (c)(iii) of the definition
of transitory person)
26. This item omits "country;" and substitutes it with "country.".
27. This is a consequential amendment as a result of the amendment in item
6 of Schedule 1 to the Bill.
Item 6 Subsection 5(1) (definition of transitory person)
28. This item omits all the words after subparagraph (c)(iii) of the
definition of transitory person.
29. Currently, transitory person is defined in subsection 5(1) of the Act
to mean:
. an offshore entry person who was taken to another country under
repealed section 198A; or
. an offshore entry person who was taken to a regional processing
country under section 198AD; or
. a person who was taken to a place outside Australia under
paragraph 245F(9)(b); or
. a person who, while a non-citizen and during the period from
27 August 2001 to 6 October 2001:
- was transferred to the ship HMAS Manoora from the ship
Aceng or the ship MV Tampa; and
- was then taken by HMAS Manoora to another country; and
- disembarked in that other country;
but does not include a person who has been assessed to be a refugee for
the purposes of the Refugees Convention as amended by the Refugees
Protocol.
30. Following the amendments by item 4, item 5 and item 6 of Schedule 1 to
the Bill,
the definition of transitory person provides:
. a person who was taken to another country under repealed
section 198A; or
. a person who was taken to a regional processing country under
section 198AD; or
. a person who was taken to a place outside Australia under
paragraph 245F(9)(b); or
. a person who, while a non-citizen and during the period from
27 August 2001 to 6 October 2001:
- was transferred to the ship HMAS Manoora from the ship
Aceng or the ship MV Tampa; and
- was then taken by HMAS Manoora to another country; and
- disembarked in that other country.
31. The effect of the amendment in item 6 of Schedule 1 to the Bill is to
provide that a person will continue to be transitory person if they
have been assessed to be a refugee for the purposes of the Refugees
Convention as amended by the Refugees Protocol.
32. This amendment is consistent with the 'no advantage' principle as
outlined in
recommendation 1 of the report provided by the Expert Panel so that no
benefit is gained through circumventing regular migration arrangements.
This amendment will allow for a transitory person, who has been
assessed as a refugee but does not yet have a visa, to be transferred
between a regional processing country and Australia.
Item 7 Subsection 5(1)
33. This item inserts the term unauthorised maritime arrival in subsection
5(1) of the Act.
34. This item provides that the term unauthorised maritime arrival has the
meaning given by section 5AA of the Act.
Item 8 After section 5
35. This item inserts section 5AA into the Act.
36. Section 5AA of the Act provides the meaning of unauthorised maritime
arrival.
37. Subsection 5AA(1) of the Act provides that for the purposes of this
Act, a person is an unauthorised maritime arrival if:
. the person entered Australia by sea:
- at an excised offshore place at any time after the excision
time for that place; or
- at any other place at any time on or after the commencement
of this section; and
. the person became an unlawful non-citizen because of that entry;
and
. the person is not an excluded maritime arrival.
38. Subparagraph 5AA(1)(a)(i) provides that a person is an unauthorised
maritime arrival if the person entered Australia by sea at an excised
offshore place at any time after the excision time for that place.
39. The purpose of this amendment is to maintain the effect of the
definition of offshore entry person (which is being repealed) so that a
person who enters Australia by sea at an excised offshore place at any
time after the excision time for that place, which may be prior to the
commencement of this Act, and who became an unlawful non-citizen
because of that entry will continue to have the same consequences under
the Act as an offshore entry person.
40. However, while an offshore entry person included all persons who
entered Australia at an excised offshore place after the excision time
for that place regardless of their mode of entry, subparagraph
5AA(1)(a)(i) does not include a person as an unauthorised maritime
arrival if they had not entered Australia by sea at an excised offshore
place.
41. Subparagraph 5AA(1)(a)(ii) provides that a person will be an
unauthorised maritime arrival if the person entered Australia by sea at
any other place at any time on or after the commencement of this
section.
42. The purpose of this amendment is to give effect to recommendation 14 of
the report provided by the Expert Panel.
43. Paragraph 5AA(1)(b) provides that a person is an unauthorised maritime
arrival if the person became an unlawful non-citizen because of that
entry.
44. Subsection 14(1) of the Act provides that a non-citizen in the
migration zone who is not a lawful non-citizen is an unlawful non-
citizen. Subsection 13(1) of the Act provides that a non-citizen in the
migration zone who holds a visa that is in effect is a lawful non-
citizen.
45. Paragraph 5AA(1)(c) provides that a person is an unauthorised maritime
arrival if the person is not an excluded maritime arrival.
46. Taken as a whole, the effect of this amendment is that a person who
entered Australia by sea and became an unlawful non-citizen will be an
unauthorised maritime arrival, unless the person is an excluded
maritime arrival.
47. Subsection 5AA(2) provides that a person entered Australia by sea if:
. the person entered the migration zone except on an aircraft that
landed in the migration zone; or
. the person entered the migration zone as a result of being found
on a ship detained under section 245F and being dealt with under
paragraph 245F(9)(a); or
. the person entered the migration zone after being rescued at
sea.
48. Paragraph 5AA(2)(a) is intended to cover a person who arrived in
Australia by sea and entered the migration zone, other than by an
aircraft, whether on a ship or otherwise.
This is intended to cover people who make their way to Australia by sea
without being rescued or intercepted and who enter the migration zone.
49. A person cannot become an unauthorised maritime arrival unless they
also are an unlawful non-citizen because of their entry into the
migration zone. A person cannot be an unlawful non-citizen unless they
are in the migration zone and do not hold a visa that is in effect.
50. The migration zone is defined in subsection 5(1) of the Act. It
provides that the migration zone means the area consisting of the
States, the Territories, Australian resource installations and
Australian sea installations, and to avoid doubt, includes:
. land that is part of a State or Territory at mean low water; and
. sea within the limits of both a State or a Territory and a port;
and
. piers, or similar structures, any part of which is connected to
such land or to ground under such sea;
but does not include sea within the limits of a State or Territory but
not in a port.
51. A port is defined in subsection 5(1) of the Act to mean a proclaimed
port.
52. A proclaimed port is defined in subsection 5(1) of the Act to mean a
port appointed under section 15 of the Customs Act 1901 or a port
appointed by the Minister under
subsection 5(5) of the Act.
53. Paragraph 5AA(2)(a) is intended to cover all possible situations where
a person can enter Australia by sea apart from where they are being
dealt with under subsection 245F(9) of the Act or are rescued at sea.
54. It is not intended to allow the complexity of the interaction of the
definition of the migration zone and the variations of the geography of
the Australian coastline to provide a means of argument for a person to
be excluded from the operation of this definition.
The way in which it is to be determined that, as a matter of law, sea
is within the limits of a State or a Territory at any particular place
is a matter that can involve complex analysis of the law and also the
geography of that place.
55. For the sea to meet the definition of being in the migration zone,
paragraph (b) of the definition of the migration zone requires that the
sea be within the limits of both a State, or a Territory, and a port.
56. There are many places in the migration zone where a person will enter
the migration zone while they are still on the ship. That is because
the sea in which the ship is travelling is in the limits of a State or
a Territory and is within the limits of a port.
That is, the ship has entered the migration zone at the point prior to
its arrival at the pier or similar structure.
57. In many places on the Australian coastline, it is not possible for a
person to enter the migration zone while they are still on board a
ship. It will not be until the person steps onto a pier or a similar
structure, or steps onto land above the mean low water mark, in a State
or a Territory, that they will enter the migration zone. It is
intended that all such people will come within the definition of an
unauthorised maritime arrival if they are an unlawful non-citizen on
entering the migration zone.
58. To negate any argument that by stepping onto a pier or a similar
structure, or onto land above the mean low water mark, a person has not
entered Australia by sea anywhere in the migration zone, whether at an
excised offshore place or not, the only way that a person will not come
within that definition is to enter the migration zone on an aircraft
that landed in the migration zone.
59. Paragraph 5AA(2)(b) is intended to cover a person who was found on a
ship that was detained under section 245F of the Act and being dealt
with under paragraph 245F(9)(a) of the Act and the person entered the
migration zone as a result.
60. Paragraph 245F(9)(a) of the Act provides that if an officer detains a
ship or aircraft under section 245F the officer may detain any person
found on the ship or aircraft and bring the person, or cause the person
to be brought, to the migration zone.
61. Subsection 245F(9A) relevantly provides that for the purposes of moving
a person under subsection 245F(9), an officer may outside Australia:
. place the person on a ship or aircraft; or
. restrain the person on a ship or aircraft; or
. remove the person from a ship or aircraft.
62. It is intended that the definition in paragraph 5AA(2)(b) will cover
every situation in which a person is brought to the migration zone
while being dealt with under paragraph 245F(9)(a), whether by a ship or
an aircraft, and the person became an unlawful non-citizen because of
that entry into the migration zone.
63. Paragraph 5AA(2)(c) is intended to cover where a person is rescued at
sea and is brought to the migration zone and who becomes an unlawful
non-citizen on arrival in the migration zone as a result of that entry.
That is intended to cover every person who is rescued at sea wherever
that may be and however they are brought to the migration zone as a
result of that rescue whether or not they arrive in the migration zone:
. on a ship, whether or not the ship on which they are brought
entered the migration zone; or
. on an aircraft that landed in the migration zone.
64. Subsection 5AA(3) of the Act provides that a person is an excluded
maritime arrival if the person:
. is a New Zealand citizen who holds and produces a New Zealand
passport that is in force; or
. is a non-citizen who holds and produces a passport that is in force
and is endorsed with an authority to reside indefinitely on Norfolk
Island; or
. is included in a prescribed class of persons.
65. Paragraphs 5AA(3)(a) and 5AA(3)(b) exclude certain New Zealand citizens
and permanent residents of Norfolk Island from being unauthorised
maritime arrivals.
These are existing cohorts of non-citizens who are currently not
required to hold a visa to travel to Australia under section 42 of the
Act and who apply for specific visas in immigration clearance.
66. Paragraph 5AA(3)(c) inserts a regulation making power to prescribe
further classes of persons as excluded maritime arrivals in the
Migration Regulations 1994.
The purpose of this amendment is to provide the Minister with the
flexibility to allow the Governor-General, acting on the advice of the
Federal Executive Council, to prescribe further classes of persons to
be excluded without an Act amendment.
67. Subsection 5AA(4) provides the definition of aircraft and ship for the
purposes of section 5AA of the Act.
Item 9 Subparagraphs 5A(3)(j)(ii) and (iii)
68. This item omits the words "offshore entry person" and substitutes the
words
"unauthorised maritime arrival" in subparagraphs 5A(3)(j)(ii) and
5A(3)(j)(iii) relating to the meaning of personal identifier in the
Act.
69. This is a consequential amendment as a result of the amendments in item
3 of Schedule 1 to the Bill which repeals the term offshore entry
person and item 7 of Schedule 1 to the Bill which inserts the term
unauthorised maritime arrival.
Items 10 - 14 Section 46A
70. Items 10, 11, 13 and 14 omits the words "offshore entry person"
(wherever occurring) and substitutes the words "unauthorised maritime
arrival" in section 46A (heading), subsections 46A(1) and 46A(2),
paragraphs 46A(5)(a) and 46A(5)(b), and subsection 46A(7) of
Subdivision AA of Division 3 of Part 2 of the Act.
71. Item 12 omits the words "the person" and substitutes the words "the
unauthorised maritime arrival" in subsection 46A(2) of Subdivision AA
of Division 3 of Part 2 of the Act.
72. Section 46A of the Act deals with visa applications by offshore entry
persons.
73. Subsection 46A(1) of the Act provides that an application for a visa
is not a valid application if it is made by an offshore entry person
who:
. is in Australia; and
. is an unlawful non-citizen.
74. Subsection 46A(2) of the Act provides that if the Minister thinks it is
in the public interest to do so, the Minister may, by written notice
given to an offshore entry person, determine that subsection 46A(1)
does not apply to an application by the person for a visa of a class
specified in the determination.
75. These items amend references to offshore entry person which is repealed
by item 3 of Schedule 1 to the Bill to reflect term unauthorised
maritime arrival which is inserted by item 7 of Schedule 1 to the Bill.
76. The effect of these amendments is that persons who are unauthorised
maritime arrivals
(as defined in section 5AA inserted by item 8 of Schedule 1 to the
Bill) will be prevented from being able to make a valid application for
a visa in Australia if they are in Australia and they are unlawful non-
citizens. However, if the Minister thinks it is in the public interest
to do so, the Minister may, by written notice given to the unauthorised
maritime arrival, determine that the prohibition on making an
application does not apply to an application by the unauthorised
maritime arrival for a visa of a class specified in the determination.
Item 15 Subsection 189(2)
77. This item omits the words "must detain" and substitutes the words "may
detain" in
subsection 189(2) of Subdivision A of Division 7 of Part 2 of the Act.
78. Subsection 189(2) of the Act currently provides that if an officer
reasonably suspects that a person in Australia but outside the
migration zone is seeking to enter the migration zone (other than an
excised offshore place) and would, if in the migration zone, be an
unlawful non-citizen, the officer must detain the person.
79. Subsection 189(4) of the Act provides that if an officer reasonably
suspects that a person in Australia but outside the migration zone is
seeking to enter an excised offshore place and would, if in the
migration zone, be an unlawful non-citizen, the officer may detain the
person.
80. This amendment makes the immigration detention arrangements of certain
persons seeking to enter the migration zone (other than at an excised
offshore place) discretionary if they would, if in the migration zone,
be unlawful non-citizens. In effect, the amendment will provide
consistency in the immigration detention arrangements so that where an
officer reasonably suspects that a person in Australia but outside the
migration zone:
. is seeking to enter the migration zone (other than at an excised
offshore place); and
. would, if in the migration zone, be an unlawful non-citizen;
the officer may detain the person.
Item 16 Paragraph 189(3A)(a)
81. This item repeals and substitutes paragraph 189(3A)(a) in Subdivision A
of Division 7 of
Part 2 of the Act.
82. Subsection 189(3A) of the Act provides that if an officer knows or
reasonably suspects that a person in a protected area:
. is an allowed inhabitant of the Protected Zone; and
. is an unlawful non-citizen;
the officer may detain the person.
83. The protected area is defined in subsection 5(1) of the Act and means
an area that is part of the migration zone, and in, or in an area in
the vicinity of, the Protected Zone.
The Protected Zone is defined in subsection 5(1) of the Act and means
the zone established under Article 10 of the Torres Strait Treaty,
being the area bounded by the line described in Annex 9 to that treaty.
The areas defined as a protected area are parts of the migration zone
and are excised offshore places.
84. Subsection 189(3A) was inserted by the Migration Legislation Amendment
(Regional Processing and Other Measures) Act 2012 (the Regional
Processing Act), as a consequence of the change in immigration
detention arrangements for unlawful non-citizens in an excised offshore
place from discretionary to mandatory immigration detention except in
very limited circumstances. Prior to this, officers were given the
discretion to detain unlawful non-citizens in an excised offshore
place. Under subsection 189(3A), only allowed inhabitants of the
Protected Zone in a protected area, who are unlawful non-citizens are
subject to discretionary immigration detention.
85. The consequence is that citizens of Papua New Guinea (PNG) who are not
allowed inhabitants of the Protected Zone in a protected area, who are
unlawful non-citizens, are liable for mandatory immigration detention.
86. Due to the complex and unique operational environment and history of
the Torres Strait, and for practical and operational reasons, this
amendment extends the discretionary immigration detention power so that
it applies to all PNG citizens, who are unlawful non-citizens in a
protected area.
Items 17 - 30 Sections 198, 198AA, 198AD and 198AE
87. Items 17 to 30 omit references to "offshore entry person", "offshore
entry persons",
"the person" and "the person's" (wherever occurring) and substitutes
each of those references with "unauthorised maritime arrival",
"unauthorised maritime arrivals" and "unauthorised maritime arrival's"
as grammatically appropriate in sections 198, 198AA, 198AD and 198AE in
Subdivision B of Division 8 of Part 2 of the Act.
88. These are consequential amendments as a result of the amendments in
item 3 of Schedule 1 to the Bill which repeals the term offshore entry
person and item 7 of Schedule 1 to the Bill which inserts the term
unauthorised maritime arrival.
Item 31 After subsection 198AE(1)
89. This item inserts new subsection 198AE(1A) after subsection 198AE(1) in
Subdivision B of Division 8 of Part 2 of the Act.
90. Subsection 198AE(1) provides that if the Minister thinks that it is in
the public interest to do so, the Minister may, in writing, determine
that section 198AD does not apply to an offshore entry person. Section
198AD applies to an offshore entry person who is detained under section
189.
91. New subsection 198AE(1A) clarifies that the Minister may, in writing,
vary or revoke a determination made under subsection (1) if the
Minister thinks it is in the public interest to do so. While this power
is already presumed to exist, a new subsection has been added to make
this intention expressly clear.
92. Consistent with the making of a determination under subsection
198AE(1), the effect of this amendment is that the Minister may only
vary an existing determination, or revoke the determination, if the
Minister thinks it is in the public interest to do so.
Item 32 Subsection 198AE(2)
93. This item inserts "or (1A)" after "subsection (1)" in subsection
198AE(2) of Subdivision B of Division 8 of Part 2 of the Act.
94. Subsection 198AE(2) provides that the power under subsection 198AE(1)
to make a determination may only be exercised by the Minister
personally.
95. Consistent with the making of a determination under subsection
198AE(1), the effect of this amendment is that the power under new
subsection 198AE(1A) to vary or revoke a determination may only be
exercise by the Minister personally.
Item 33 At the end of subsection 198AE(3)
96. This item adds "or (1A)" at the end of subsection 198AE(3) in
Subdivision B of Division 8 of Part 2 of the Act.
97. Subsection 198AE(3) provides that the rules of natural justice do not
apply to an exercise of power under subsection 198AE(1).
98. Consistent with the making of a determination under subsection
198AE(1), the effect of this amendment is that the rules of natural
justice do not apply to an exercise of power under new subsection
198AE(1A) to vary or revoke a determination.
Items 34 - 36 Subsection 198AE(4)
99. Items 34 to 36 amend subsection 198AE(4) of Subdivision B of Division 8
of Part 2 of the Act to ensure subsection 198AE(4) applies to a
variation or a revocation of a determination made under new subsection
198AE(1A).
100. Item 34 inserts "or varies or revokes a determination under subsection
(1A)" after "subsection (1)" in subsection 198AE(4) of Subdivision B of
Division 8 of Part 2 of the Act.
101. Item 35 inserts ", the determination as varied or the instrument of
revocation" after the word "determination" in paragraph 198AE(4)(a) of
Subdivision B of Division 8 of Part 2 of the Act.
102. Item 36 inserts ", variation or revocation" after the word
"determination" in
paragraph 198AE(4)(b) of Subdivision B of Division 8 of Part 2 of the
Act.
103. Subsection 198AE(4) provides that if the Minister makes a
determination under subsection 198AE(1), the Minister must cause to be
laid before each House of the Parliament a statement that:
. sets out the determination; and
. sets out the reasons for the determination, referring in
particular to the Minister's reasons for thinking that the
Minister's actions are in the public interest.
104. Consistent with the making of a determination under subsection
198AE(1), the effect of these amendments are that if the Minister
varies or revokes a determination, the same tabling requirements for
making a determination apply to a variation or a revocation of a
determination.
Item 37 Paragraphs 198AE(5)(a) and (b)
105. This item omits the words "offshore entry person" and substitutes the
words "unauthorised maritime arrival" in paragraphs 198AE(5)(a) and
198AE(5)(b) of Subdivision B of Division 8 of Part 2 of the Act.
106. This is a consequential amendment as a result of the amendments in
item 3 of Schedule 1 to the Bill which repeals the term offshore entry
person and item 7 of Schedule 1 to the Bill which inserts the term
unauthorised maritime arrival.
Item 38 Paragraphs 198AE(6)(a) and (b)
107. This item inserts ",varied or revoked" after the word "made" in
paragraphs 198AE(6)(a) and 198AE(6)(b).
108. This is a consequential amendment as a result of the amendment in item
31 of Schedule 1 to the Bill which inserts the power for the Minister
to vary or revoke a determination.
Item 39 Subsection 198AE(7)
109. This item inserts "or (1A)" after "subsection (1)" in subsection
198AE(7) of Subdivision B of Division 8 of Part 2 of the Act.
110. Subsection 198AE(7) provides that the Minister does not have a duty to
consider whether to exercise the power under subsection 198AE(1) in
respect of any offshore entry person, whether the Minister is requested
to do so by the offshore entry person or by any other person, or in any
other circumstances.
111. Consistent with the making of a determination under subsection
198AE(1), the effect of this amendment is that the Minister does not
have a duty to consider whether to exercise the power under new
subsection 198AE(1A), whether or not the Minister is requested to do
so.
Item 40 Subsection 198AE(7)
112. This item omits the words "offshore entry person" (wherever occurring)
and substitutes the words "unauthorised maritime arrival" in subsection
198AE(7) of Subdivision B of Division 8 of Part 2 of the Act.
113. This is a consequential amendment as a result of the amendments in
item 3 of Schedule 1 to the Bill which repeals the term offshore entry
person and item 7 of Schedule 1 to the Bill which inserts the term
unauthorised maritime arrival.
Item 41 Subsection 198AE(8)
114. This item omits "A determination under subsection (1)" and substitutes
"An instrument under subsection (1) or (1A)" in subsection 198AE(8) of
Subdivision B of Division 8 of Part 2 of the Act.
115. Subsection 198AE(8) provides that a determination under subsection
198AE(1) is not a legislative instrument.
116. This amendment makes it clear that an instrument under subsection
198AE(1A) is not a legislative instrument. This provision is
declaratory and is not intended as an exemption to the Legislative
Instruments Act 2003 but is included to assist readers in the
interpretation of this provision.
Item 42 Sections 198AF and 198AG
117. This item omits references to "offshore entry person" (wherever
occurring) and substitutes those references with "unauthorised maritime
arrival" in sections 198AF and 198AG in Subdivision B of Division 8 of
Part 2 of the Act.
118. These are consequential amendments as a result of the amendments in
item 3 of Schedule 1 to the Bill which repeals the term offshore entry
person and item 7 of Schedule 1 to the Bill which inserts the term
unauthorised maritime arrival.
Item 43 Section 198AH
119. This item inserts "(1)" before "Section 198AD" in section 198AH of
Subdivision B of Division 8 of Part 2 to the Act.
120. This amendment restructures section 198AH by creating a new subsection
198AH(1) for the current contents of section 198AH.
121. This is a consequential amendment as a result of item 47 of Schedule 1
to the Bill which inserts new subsection (2) at the end of section
198AH.
Item 44 Paragraph 198AH(a)
122. This item omits the words "offshore entry person" and substitutes
"unauthorised maritime arrival" in paragraph 198AH(a) of Subdivision B
of Division 8 of Part 2 of the Act.
123. This is a consequential amendment as a result of the amendments in
item 3 of Schedule 1 to the Bill which repeals the term offshore entry
person and item 7 of Schedule 1 to the Bill which inserts the term
unauthorised maritime arrival.
Item 45 Paragraph 198AH(c)
124. This item omits "achieved); and" and substitutes "achieved)." in
paragraph 198AH(c) in Subdivision B of Division 8 of Part 2 of the Act.
125. This is a consequential amendment as a result of the repeal of
paragraphs 198AH(d) and 198AH(e) made by item 46 of Schedule 1 to the
Bill.
Item 46 Paragraphs 198AH(d) and (e)
126. This item repeals paragraphs 198AH(d) and 198AH(e).
127. This is a consequential amendment as a result of the repeal of
sections 198C and 198D made by item 48 of Schedule 1 to the Bill.
Item 47 At the end of section 198AH
128. This item adds new subsection 198AH(2) at the end of section 198AH in
Subdivision B of Division 8 of Part 2 to the Act.
129. New subsection 198AH(2) provides that subsection 198AH(1) applies
whether or not the transitory person has been assessed to be covered by
the definition of refugee in Article 1A of the Refugees Convention as
amended by the Refugees Protocol.
130. This amendment is consistent with the 'no advantage' principle as
outlined in recommendation 1 of the report provided by the Expert Panel
so that no benefit is gained through circumventing regular migration
arrangements.
131. The effect of this amendment is that it will allow for a transitory
person, who has been assessed as a refugee, to be transferred between a
regional processing country and Australia. Those transitory persons
brought back to Australia would be unlawful non-citizens.
Item 47A At the end of Subdivision B of Division 8 of Part 2
132. This item inserts section 198AI at the end of Subdivision B of
Division 8 of Part 2 to the Act.
133. Section 198AI provides that 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:
. the activities conducted under the Bali Process during the year
ending on 30 June; and
. 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
. 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.
134. The Bali Process on People Smuggling, Trafficking in Persons and
Related Transnational Crime (the Bali Process) is co-chaired by the
Governments of Indonesia and Australia. It was established at the
Regional Ministerial Conference on People Smuggling, Trafficking in
Persons and Related Transnational Crime held in Bali in February 2002.
The Bali Process involves 46 members including the United Nations High
Commissioner for Refugees and the International Organization for
Migration.
135. The Regional Cooperation Framework refers to the framework agreed to
in the co-chairs' statement issued at the 4th Regional Ministerial
Conference on People Smuggling, Trafficking in Persons and Related
Transnational Crime held in Bali on 29 - 30 March 2011.
136. The effect of this amendment is that the Minister must report to each
House of Parliament, as soon as practicable after 30 June in each year,
on activities conducted under the Bali Process, and the steps taken and
the progress made 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.
Item 48 Sections 198C and 198D
137. This item repeals sections 198C and 198D of Subdivision C of Division
8 of Part 2 of the Act.
138. Section 198C provides that certain transitory persons are entitled to
an assessment of refugee status if the transitory person is brought to
Australia under section 198B and remains in Australia for a continuous
period of 6 months. The person may make a request to the Refugee
Review Tribunal (RRT) for an assessment of refugee status.
However, an assessment by the RRT cannot commence, or continue, when a
certificate by the Secretary is in force under section 198D.
139. Section 198D provides if the Secretary is satisfied that a transitory
person has engaged in uncooperative conduct, either before or after the
person was brought to Australia, then the Secretary may issue a
certificate to that effect to the Tribunal.
140. The effect of this amendment is that transitory persons brought to the
Australia under section 198B will not be entitled to request an
assessment of refugee status if they remain in Australia for a
continuous period of 6 months.
141. This amendment is consistent with the 'no advantage' principle as
outlined in recommendation 1 of the report provided by the Expert Panel
so that no benefit is gained through circumventing regular migration
arrangements. Otherwise, a transitory person from a regional
processing country who remains in Australia for a continuous period of
6 months could access merits review and judicial review processes and
remain in Australia for a longer period of time. This would create an
advantage for such persons in having the ability to access these
processes, and, depending on the result, make an application for a
visa.
Item 49 Subparagraphs 336F(3)(a)(ii) and (iii) and (4)(a)(ii) and (iii)
142. This item omits the words "offshore entry person" and substitutes the
words
"unauthorised maritime arrival" in subparagraphs 336F(3)(a)(ii) and
336F(3)(a)(iii), and subparagraphs 336F(4)(a)(ii) and 336F(4)(a)(iii),
in Division 3 of Part 4A of the Act.
143. This is a consequential amendment as a result of the amendments in
item 3 of Schedule 1 to the Bill which repeals the term offshore entry
person and item 7 of Schedule 1 to the Bill which inserts the term
unauthorised maritime arrival.
Item 50 Paragraphs 336F(5)(c) to (cc)
144. This item omits the words "offshore entry person" and substitutes the
words
"unauthorised maritime arrival" in paragraphs 336F(5)(c) to 336F(5)(cc)
in Division 3 of Part 4A of the Act.
145. This is a consequential amendment as a result of the amendments in
item 3 of Schedule 1 to the Bill which repeals the term offshore entry
person and item 7 of Schedule 1 to the Bill which inserts the term
unauthorised maritime arrival.
Item 51 Section 494AA (heading)
146. This item repeals the heading of section 494AA in Part 9 of the Act
and substitutes a new heading - 494AA Bar on certain legal proceedings
relating to unauthorised maritime arrivals.
147. Section 494AA provides for a bar on certain legal proceedings relating
to offshore entry persons. Subsection 494AA(1) relevantly provides
that the following proceedings against the Commonwealth may not be
instituted or continued in any court:
. proceedings relating to an offshore entry by an offshore entry
person;
. proceedings relating to the status of an offshore entry person
as an unlawful non-citizen during any part of the
ineligibility period;
. proceedings relating to the lawfulness of the detention of an
offshore entry person during the ineligibility period, being a
detention based on the status of the person as an unlawful non-
citizen;
. proceedings relating to the exercise of powers under repealed
section 198A;
. proceedings relating to the performance or exercise of a
function, duty or power under Subdivision B of Division 8 of
Part 2 of the Act in relation to an offshore entry person.
148. This is a consequential amendment as a result of the amendments in
item 3 of Schedule 1 to the Bill which repeals the term offshore entry
person and item 7 of Schedule 1 to the Bill which inserts the term
unauthorised maritime arrival.
Item 52 Paragraph 494AA(1)(a)
149. This item omits the words "offshore entry by an offshore entry person"
and substitutes the words "unauthorised entry by an unauthorised
maritime arrival" in paragraph 494AA(1)(a) of Part 9 of the Act.
150. This is a consequential amendment as a result of the amendments in
item 3 of Schedule 1 to the Bill which repeals the term offshore entry
person, item 7 of Schedule 1 to the Bill which inserts the term
unauthorised maritime arrival and item 58 of Schedule 1 to the Bill
which inserts a definition of unauthorised entry.
Items 53 - 55 Paragraphs 494AA(1)(b), (c) and (e)
151. Items 53 to 55 omit references to "offshore entry person" and "the
person" and substitute each of those references with "unauthorised
maritime arrival" or "the unauthorised maritime arrival" as
grammatically appropriate in paragraphs 494AA(1)(b), 494AA(1)(c) and
494AA(1)(e) of Part 9 of the Act.
152. These are consequential amendments as a result of the amendments in
item 3 of Schedule 1 to the Bill which repeals the term offshore entry
person and item 7 of Schedule 1 to the Bill which inserts the term
unauthorised maritime arrival.
Item 56 Subsection 494AA(4) (definition of ineligibility period)
153. This item omits the word "offshore" and substitutes the word
"unauthorised" in the definition of ineligibility period in subsection
494AA(4) of Part 9 of the Act.
154. This is a consequential amendment as a result of the amendments in
items 57 and 58 of Schedule 1 to the Bill.
Item 57 Subsection 494AA(4) (definition of offshore entry)
155. This item repeals the definition offshore entry in subsection 494AA(4)
of Part 9 of the Act.
156. This item is a consequential amendment as a result of the amendments
in item 3 of
Schedule 1 to the Bill which repeals the term offshore entry person and
item 7 of Schedule 1 to the Bill which inserts the term unauthorised
maritime arrival.
Item 58 Subsection 494AA(4)
157. This item inserts a new definition unauthorised entry in subsection
494AA(4) of Part 9 of the Act.
158. Unauthorised entry means an entry into Australia that occurs:
. at an excised offshore place after the excision time for that
place; or
. at any other place on or after the commencement of section 5AA.
159. This is a consequential amendment as a result of the amendments in
item 3 of Schedule 1 to the Bill which repeals the term offshore entry
person and item 7 of Schedule 1 to the Bill which inserts the term
unauthorised maritime arrival.
Part 2 - Application and saving provisions
Item 59 Definitions
160. This item provides definitions for Part 2 of Schedule 1 to the Bill.
It provides that in Part 2:
. commencement means the commencement of item 59; and
. Migration Act means the Migration Act 1958.
Item 60 Application provision-subparagraph 5AA(1)(a)(i) of the
Migration Act
161. Subitem 60(1) provides that this item applies to an unauthorised
maritime arrival, who entered Australia by sea, as mentioned in
subparagraph 5AA(1)(a)(i) of the Act, as inserted by this Schedule.
162. Subitem 60(2) makes provision for the amendments made by items 18 to
47 of this Schedule, which relate to regional processing in Subdivision
B of Division 8 of Part 2 of the Act, to apply in relation to the
unauthorised maritime arrival, only if he or she entered Australia by
sea as mentioned in subparagraph 5AA(1)(a)(i) of the Act, on or after
13 August 2012.
163. Subparagraph 5AA(1)(a)(i) provides that a person is an unauthorised
maritime arrival if the person entered Australia by sea at an excised
offshore place at any time after the excision time for that place.
164. The purpose of this item is to ensure that the provisions relating to
regional processing in Subdivision B of Division 8 of Part 2 of the Act
as amended by this Act apply to persons who entered Australia by sea at
an excised offshore place on or after 13 August 2012.
Item 61 Application provision-subsection 198AE(1A) of the Migration Act
165. This item provides that subsection 198AE(1A) of the Act, as inserted
by this Schedule, applies in relation to a determination under
subsection 198AE(1) of the Act that is made before or after
commencement.
166. The purpose of this item is to make clear that subsection 198AE(1A) of
the Act, which enables the Minister to vary or revoke a determination
made under subsection 198AE(1) of the Act if the Minister thinks it is
in the public interest to do so, applies to any determination made
under subsection 198AE(1), whether that determination was made before
or after the commencement of this Act.
Item 62 Saving provision
167. The item is consequential to the amendments made by items 9, 49 and 50
of this Schedule. Those items substitute references to offshore entry
person in subparagraphs 5A(3)(j)(ii) and 5A(3)(j)(iii), subparagraphs
336F(3)(a)(ii) and 336F(3)(a)(iii), subparagraphs 336F(4)(a)(ii) and
336F(4)(a)(iii), and paragraphs 336F(5)(c) to 336F(5)(cc) with
references to unauthorised maritime arrival.
168. Item 62 applies to an instrument of authorisation made under section
336D
(access authorisation) or section 336F (disclosure authorisation) that
was in force immediately before commencement. It also provides that
such an instrument is taken, after commencement, to authorise access
to, and disclosure of, identifying information relating to unauthorised
maritime arrivals to the extent that, immediately before commencement,
the authorisation authorised access to, or disclosure of, identifying
information in relation to offshore entry persons.
169. This item also provides that any reference in the access authorisation
or disclosure authorisation to an offshore entry person is taken, after
commencement, to be a reference to an unauthorised maritime arrival.
170. The purpose of this amendment is to ensure that such instruments of
authorisation will continue to have effect as intended, on and after
commencement of the Act.
SCHEDULE 2 - Contingent Amendments
Migration Act 1958
171. This Schedule contains consequential amendments to the Act that will
come into effect on the later of immediately after the commencement of
the provisions covered by table item 2 of clause 2 to this Act and the
commencement of section 69 of the Maritime Powers Act 2012 (Maritime
Powers Act).
Item 1 Paragraph 5AA(2)(b)
172. This item inserts "(as in force before the commencement of section 69
of the Maritime Powers Act 2012)" after "section 245F"
in paragraph 5AA(2)(b) of the Act.
173. This amendment puts beyond doubt that a person entered Australia by
sea as a result of section 245F of the Act as in force immediately
prior to commencement of section 69 of the Maritime Powers Act.
Item 2 Paragraph 5AA(2)(b)
174. This item inserts "(as in force before that commencement)" after
"paragraph 245F(9)(a)" in paragraph 5AA(2)(b) of the Act.
175. This amendment puts beyond doubt that a person entered Australia by
sea as a result of being dealt with under paragraph 245F(9)(a) of the
Act as in force immediately prior to the commencement of section 69 of
the Maritime Powers Act.
Item 3 After paragraph 5AA(2)(b)
176. This item inserts new paragraph 5AA(2)(ba) after paragraph 5AA(2)(b)
of the Act.
177. New paragraph 5AA(2)(ba) provides for when a person will have entered
Australia by sea for the purposes of the definition of "unauthorised
maritime arrival" in section 5AA of the Act - that is, the person
entered the migration zone as a result of being on a vessel detained
under section 69 of the Maritime Powers Act 2012 and being dealt with
under paragraph 72(4)(a) of that Act.
178. This is a consequential amendment as a result of the commencement of
the Maritime Powers Act. The effect of this amendment is that a person
who entered the migration zone as a result of being on a vessel
detained under section 69 of the Maritime Powers Act 2012 and being
dealt with under paragraph 72(4)(a) of that Act, will be a person who
entered Australia by sea.
179. The purpose of this amendment is to maintain the policy intention of
paragraph 5AA(2)(b) of the Act after the commencement of the Maritime
Powers Act.
Item 4 Subsection 5AA(4) ( at the end of the definition of ship)
180. This item adds "(as in force before the commencement of section 69 of
the Maritime Powers Act 2012)" at the end of the definition of ship in
subsection 5AA(4) of the Act.
181. This is a consequential amendment as a result of the commencement of
the Maritime Powers Act.
Item 5 Subsection 5AA(4)
182. This item inserts a new definition of vessel in subsection 5AA(4) of
the Act, which provides that vessel has the same meaning as the
Maritime Powers Act 2012.
183. This is a consequential amendment as a result of the commencement of
the Maritime Powers Act.
Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011
Migration Amendment (Unauthorised Maritime Arrivals and Other Measures)
Bill 2012
This Bill is compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human
Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Migration Amendment (Unauthorised Maritime Arrivals and Other
Measures) Bill 2012 (the Bill) amends the Migration Act 1958 (the
Act) to implement recommendation 14 from the report provided by the
Expert Panel on Asylum Seekers (the Expert Panel) and to implement other
measures to strengthen the regional processing framework.
Recommendation 14 recommended that the Act be amended so that arrival
anywhere in Australia by irregular maritime means will not provide
individuals with a different lawful status than those who arrive at an
excised offshore place. The purpose of this recommendation was to
ensure that the introduction of processing outside Australia did not
encourage asylum seekers to avoid these arrangements by attempting to
unlawfully enter at the Australian mainland and consequently expose them
to danger.
By way of background, on 18 August 2012 the Migration Legislation
Amendment
(Regional Processing and Other Measures) Act 2012 (Regional Processing
Act) commenced.
It amended the Act to give effect to recommendation 7 of the Expert
Panel's report
(which permitted an offshore entry person to be taken to a regional
processing country).
However, the Regional Processing Act does not apply to a person who
unlawfully enters Australia directly at the Australian mainland.
The Bill will expand the scope of persons that will fall within the
provisions introduced by the Regional Processing Act to provide that all
arrivals in Australia by irregular maritime means will have the same
legal status regardless of where they arrive, unless they are an
excluded class or otherwise exempted. This means that all arrivals in
Australia by irregular maritime means cannot make a valid application
for a visa unless the Minister personally thinks it is in the public
interest to do so. Further, those people are to be taken to a regional
processing country and cannot institute or continue certain legal
proceedings.
The Bill also makes amendments to ensure that a person who is not
eligible to apply for a visa in Australia continues to be unable to
apply for a visa if assessed to be a refugee under regional processing
arrangements. In particular, the defined term transitory person is
amended so that a person does not cease to be a transitory person if
they have been assessed to be a refugee.
This Bill will also provide for discretionary immigration detention of
Papua New Guinea (PNG) citizens who are unlawful non-citizens and are in
a protected area. The Regional Processing Act amended section 189 of
the Act to require mandatory immigration detention of unlawful
non-citizens in an excised offshore place (except for allowed
inhabitants of the Protected Zone in a protected area who are unlawful
non-citizens). Prior to the commencement of the
Regional Processing Act, the immigration detention of all unlawful non-
citizens in an excised offshore place was discretionary.
The Bill introduces a new provision, section 198AI of the Act, which
provides that 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:
. the activities conducted under the Bali Process during the year ending
on 30 June; and
. 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
. 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.
Human rights implications
Right to freedom of movement
The Bill provides that the measures in the Bill are relevant to Article 12
(1) and Article 12(4) of the International Covenant on Civil and Political
Rights 1966 (ICCPR). Article 12(1) provides that:
'Everyone lawfully in the territory of a State shall, within that
territory, have the right to liberty of movement and freedom to choose
his residence'. (emphasis added)
Further, Article 12(4) of the ICCPR provides that:
'No one shall be arbitrarily deprived of the right to enter his own
country'. (emphasis added)
As outlined above, the definition of 'unauthorised maritime arrival'
envisages that certain persons who have entered Australia by sea will
become an unlawful non-citizens, that is, persons who did not have a lawful
right to travel to, enter into, or remain, in Australia.
In accordance with Article 12(1), an unauthorised maritime arrival will
not, upon entering Australian territory, be in Australia lawfully, so
Article 12(1) is not engaged.
Similarly, in an assessment under Article 12(4), an unauthorised maritime
arrival has neither the right to enter into Australia (as it cannot be
considered his or her own country as properly understood at international
law).
Expulsion of Aliens
The Bill is relevant to Article 13 of the ICCPR. Article 13 provides:
'An alien lawfully in the territory of a State Party to the present
Covenant may be expelled therefrom only in pursuance of a decision
reached in accordance with law and shall, except where compelling
reasons of national security otherwise require, be allowed to submit
the reasons against his expulsion and to have his case reviewed by,
and be represented for the purpose before, the competent authority or
a person or persons especially designated by the competent authority'.
(emphasis added)
For the same reasoning as the assessment of Article 12(1) above, in order
to engage Article 13, a person must be lawfully in the territory. Whereas
an unauthorised maritime arrival may arrive on Australian territory, they
will not, by virtue of the operation of the Bill, be in Australian
territory lawfully. For that reason, Article 13 will not be engaged for
that cohort and will be liable to be expelled from Australian territory,
provided that this does not breach other human rights obligations (outlined
below).
Right not to be arbitrarily detained
The Bill introduces amendments to provide for discretionary detention for
some persons who are seeking to enter the migration zone (other than at an
excised offshore place). The Bill also amends paragraph 189(3A)(a) of the
Act to provide for discretionary immigration detention of PNG citizens who
are unlawful non-citizens and are in a protected area.
Article 9(1) of the ICCPR provides:
'Everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance with
such procedure as are established by law'.
The purpose of amending 'must detain' to 'may detain' in subsection 189(2)
of the Act is for the purpose of introducing discretion and flexibility to
the assessment of whether persons that are not the subject of the Bill are
liable to be detained (for example, persons who are not claiming asylum but
have nonetheless entered Australian territory unlawfully), where detention
may not be appropriate. The purpose of this is to reduce the incidence of
detention to certain cohorts, and where detention is necessary, provide a
clear, lawful and reasonable basis for it.
This amendment does not engage Article 9(1) of the ICCPR.
The introduction of paragraph 189(3A)(a) reflects the current treaty-based
arrangements between Papua New Guinea (PNG) and Australia under the Torres
Strait Treaty (the Treaty)).
The Treaty facilitates the 'traditional activities' of 'traditional
inhabitants' (as defined in the Treaty). Paragraph 189((3A)(a) extends the
discretion to detain all PNG citizens who are unlawful non-citizens in a
protected area (not just those who are allowed inhabitants of the Protected
Zone who are unlawful non-citizens) to ensure that the discretion to detain
exists in the widest possible sense.
The purpose of this amendment is to provide for the discretion ('may'
rather than 'must') to detain unlawful PNG citizens who are in a protected
area but who are not allowed inhabitants of the Protected Zone. Due to
long standing cultural connections and way of life of the communities in
and adjacent to the Protected Zone, such PNG citizens may be in a protected
area to seek medical treatment, shelter or to undertake non-traditional
activities such as shopping or family events, before departing for their
home villages. In general, these PNG citizens do not seek to enter and
remain in Australia for other than a short period of time. This amendment
will provide officers with a discretion in circumstances where it may not
be appropriate to detain that person.
Where detention is necessary, this provides a clear, lawful and reasonable
basis for it.
The introduction of paragraph 189(3A)(a) does not engage Article 9(1) of
the ICCPR.
Australia's non-refoulement obligations
Apart from Australia's non-refoulement (non-return) obligations under the
Refugees Convention (which is not one of the treaties specified in the
definition of 'human rights' in the Human Rights (Parliamentary Scrutiny)
Act 2011), Australia also has an obligation to not send a person to a
country where they are at a real risk of the death penalty, arbitrary
deprivation of life, torture, or cruel, inhuman or degrading treatment or
punishment (Articles 6 and 7 of the ICCPR, Article 3 of the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT)) or to a country which would send the person to another
country where they would face such a risk.
However, the Bill does not contain or amend any existing provisions which
relate to removal that already exist with the Act (as amended by the
Regional Processing Act). To that extent, the provisions in the Bill only
contemplate increasing the scheme to those people who arrive directly at
the Australian mainland. They do not affect the substantive current
operation of the Act in relation to removal or regional processing
arrangements nor impact on the protections against
non-refoulement which already exist in legislation, policies and
procedures.
Rights relating to families and children
Australia also has an obligation to treat the best interests of the child
as a primary consideration in all actions concerning children (Article 3 of
the Convention on the Rights of the Child (CROC)).
In addition, Australia must not unlawfully or arbitrarily interfere with
the family (Articles 17 and 23 of the ICCPR). However, for the reasons
provided above, provisions relating to removal already exist within the Act
and this Bill does not propose to make any amendments to the regional
processing scheme or the legislative, policy and procedural protections
which already exist.
Conclusion
The Bill is compatible with human rights because it does not engage any
obligations under relevant human rights treaties.
The Hon. Chris Bowen MP, Minister for Immigration and Citizenship
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