MIGRATION AMENDMENT (UNAUTHORISED MARITIME ARRIVALS AND OTHER MEASURES) BILL 2012 Explanatory Memorandum

Commonwealth of Australia Explanatory Memoranda

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MIGRATION AMENDMENT (UNAUTHORISED MARITIME ARRIVALS AND OTHER MEASURES) BILL 2012

2010 - 2011 - 2012 - 2013 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA SENATE MIGRATION AMENDMENT (UNAUTHORISED MARITIME ARRIVALS AND OTHER MEASURES) BILL 2012 SUPPLEMENTARY EXPLANATORY MEMORANDUM Amendments to be Moved on Behalf of the Government (Circulated by authority of the Minister for Immigration and Citizenship, the Hon. Brendan O'Connor)

1 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 Bill was passed by the House of Representatives on 27 November 2012. The proposed Government amendments to the Bill respond to recommendation 1 of the Report of the Senate Legal and Constitutional Affairs Legislation Committee (the Committee) which was tabled in the Senate on 25 February 2013. The Committee recommended the Senate pass the Bill subject to the amendments outlined in recommendation 1 of the Report. The amendments will require the Minister for Immigration and Citizenship to cause to be laid before each House of the Parliament, within 15 sitting days of that House after the end of the financial year, a report on the following: arrangements made by regional processing countries during the financial year for unauthorised maritime arrivals who make claims for protection under the Refugees Convention as amended by the Refugees Protocol, including arrangements for: o assessing those claims in those countries; and o the accommodation, health care and education of those unauthorised maritime arrivals in those countries; the number of those claims assessed in those countries in the financial year; the number of unauthorised maritime arrivals determined in those countries in the financial year to be covered by the definition of refugee in Article 1A of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967. However, the reporting requirements recognise that a regional processing country is a sovereign country and that the Minister will be able to include information in the report as is provided by the regional processing country. The Government has always made clear that regional processing countries have sovereign responsibility for what takes place in their territories. In addition, the amendment will prevent that report from including the name of a person who is or was an unauthorised maritime arrival, or any information that may identify such a person, or the name of any other person connected in any way with any person who is or was an unauthorised maritime arrival or any information that may identify that other person. The first report to be tabled in each House of the Parliament will be for the period commencing 13 August 2012 and ending on the first 30 June after commencement of the Bill. This amendment is in addition to the current reporting requirements of the Minister in section 198AC of the Act which provides that the Minister must cause to be laid before each House of the Parliament a number of documents relating to regional processing when the Minister designates a country to be a regional processing country under subsection 198AB(1) of the Act. FINANCIAL IMPACT STATEMENT The financial impact of the drafting of these amendments is low. Any costs will be met from within existing resources of the Department of Immigration and Citizenship.

2 MIGRATION AMENDMENT (UNAUTHORISED MARITIME ARRIVALS AND OTHER MEASURES) BILL 2012 NOTES ON AMENDMENTS Amendment (1) - Schedule 1, item 47A, page 10, (after line 15) 1. This amendment inserts new section 198AJ in Subdivision B of Division 8 of Part 2 of the Act after section 198AI as inserted by Schedule 1 to the Bill. 2. New subsection 198AJ(1) provides that the Minister must cause to be laid before each House of the Parliament, within 15 sitting days of that House after the end of a financial year, a report on the following: arrangements made by regional processing countries during the financial year for unauthorised maritime arrivals who make claims for protection under the Refugees Convention as amended by the Refugees Protocol, including arrangements for: - assessing those claims in those countries; and - the accommodation, health care and education of those unauthorised maritime arrivals in those countries; the number of those claims assessed in those countries in the financial year; the number of unauthorised maritime arrivals determined in those countries in the financial year to be covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol. 3. The purpose of this amendment is to provide that the Minister must cause to be laid before each House of the Parliament, within 15 sitting days of that House after the end of a financial year, a report that deals with the matters in new subsection 198AJ(1). This may provide further transparency about arrangements that are in place for unauthorised maritime arrivals transferred to regional processing countries. 4. This amendment extends the current reporting requirements of the Minister in section 198AC of the Act which provides that the Minister must cause to be laid before each House of the Parliament a number of documents relating to regional processing when the Minister designates a country to be a regional processing country under subsection 198AB(1) of the Act. 5. This amendment will add to the current reporting requirements and may provide the Parliament with the opportunity to scrutinise the arrangements for unauthorised maritime arrivals transferred to regional processing countries.

3 6. This amendment requires the Minister to provide information to the Parliament on the exhaustive list of matters in accordance with new subsection 198AJ(1). Those matters are: arrangements made by regional processing countries during the financial year for unauthorised maritime arrivals who make claims for protection under the Refugees Convention as amended by the Refugees Protocol, including arrangements for: - assessing those claims in those countries; and - the accommodation, health care and education of those unauthorised maritime arrivals in those countries; the number of those claims assessed in those countries in the financial year; the number of unauthorised maritime arrivals determined in those countries in the financial year to be covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol. 7. New subsection 198AJ(2) provides a report under this section need deal with a particular regional processing country in accordance with subsection 198AJ(1) only so far as information provided by the country makes it reasonably practicable for the report to do so. 8. The purpose of this amendment is to put beyond doubt that the Minister's report to the Parliament on the matters in accordance with new subsection 198AJ(1) need only deal with information that is provided by that particular regional processing country. This amendment recognises that a regional processing country has sovereign responsibility for what takes place in its territory and controls the information around any particular regional processing arrangements. The effect of this amendment is to provide that the Minister's reporting requirements under new subsection 198AJ(1) can only reasonably practicably deal with information that is provided by a particular regional processing country on those matters. 9. New subsection 198AJ(3) provides that a report under this section must not include: the name of a person who is or was an unauthorised maritime arrival; or any information that may identity such a person; or the name of any other person connected in any way with any person covered by paragraph 198AJ(1)(a); or any information that may identity that other person. 10. The purpose of this amendment is to provide safeguards in relation to the new reporting requirements in new subsection 198AJ(1). This amendment aims to protect the privacy of those persons listed in new subsection 198AJ(3), which includes unauthorised maritime arrivals and those persons connected with unauthorised maritime arrivals. Amendment (2) - Schedule 1, heading to Part 2, page 12 (line 1) 11. This amendment inserts ", transitional" after "Application" in the heading to Part 2 in Schedule 1 of the Bill. 12. This amendment is a consequential amendment as a result of Amendment (3) below.

4 Amendment (3) - Schedule 1, page 12 (after line 19) 13. This amendment adds new item 61A after item 61 of Schedule 1 of the Bill. 14. New item 61A provides that section 198AJ of the Act applies to the period beginning on 13 August 2012 and ending on the first 30 June after commencement as if that period were a financial year. 15. The purpose of this amendment is to make clear that the Minister must cause to be tabled in each House of the Parliament, within 15 sitting days of that House, after the end of the first 30 June after commencement, a report in accordance with new section 198AJ inserted by Amendment (1) above. The first report is to include information from the period commencing 13 August 2012 to align with the application of section 198AD of the Migration Act as inserted by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012. 16. Section 198AD in Subdivision B of Division 8 of Part 2 of the Act provides for the taking of an offshore entry person to a regional processing country. In particular, subsection 198AD(2) requires that an officer must, as soon as reasonably practicable, take an offshore entry person to whom this section applies from Australia to a regional processing country. Items 20 to 30 of Schedule 1 of the Bill 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 section 198AD.

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