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2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (REPAIRING MEDICAL TRANSFERS) BILL 2019
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Home Affairs, the Hon. Peter Dutton MP)
MIGRATION AMENDMENT (REPAIRING MEDICAL TRANSFERS) BILL 2019
OUTLINE
The Migration Amendment (Repairing Medical Transfers) Bill 2019 (the Bill) amends the
Migration Act 1958 (the Migration Act) to repeal the provisions inserted by Schedule 6 to the
Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (the medical
transfer provisions).
As the medical transfer provisions do not provide for any return or removal mechanism, the
Bill also amends the Migration Act to extend existing powers in relation to persons
transferred to Australia under the medical transfer provisions to allow for their removal from
Australia or return to a regional processing country once they no longer need to be in
Australia for the temporary purpose for which they were brought.
FINANCIAL IMPACT STATEMENT
These amendments will have a low financial impact. There are expected to be savings
associated with this Bill due to fewer medical transfers to Australia from regional processing
countries and removal of oversight arrangements.
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.
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MIGRATION AMENDMENT (REPAIRING MEDICAL TRANSFERS) BILL 2019
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short Title
1. Clause 1 provides that the short title of the Bill, once enacted, will be the Migration
Amendment (Repairing Medical Transfers) Act 2019.
Clause 2 Commencement
2. Clause 2 of the Bill sets out the times at which the various provisions of the Act
commence.
3. Subclause 2(1) of the Bill provides that each provision of the 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.
4. Table item 1 provides that sections 1 to 3 and anything in the Act not elsewhere covered
by the table will commence on the day the Act receives the Royal Assent.
5. Table item 2 provides that Schedule 1 will commence on the day after the Act receives
the Royal Assent.
6. The note in subclause 2(1) makes it clear that the table relates only to the provisions of
the Act as originally enacted. The table will not be amended to deal with any later
amendments to the Act.
7. Subclause 2(2) of the Bill provides that any information in column 3 of the table is not
part of the Act. Information may be inserted in this column, or information in it may be
edited, in any published version of the Act. There is currently no information in column 3 of
the table.
Clause 3 Schedules
8. This clause provides that legislation 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.
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SCHEDULE 1 - Repairing medical transfers
Part 1 - Amendments
BACKGROUND
The provisions inserted into the Migration Act 1958 (the Migration Act) by Schedule 6 to the
Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (the Miscellaneous
Measures Act) (the medical transfer provisions) create a framework for the transfer of
transitory persons (and their family members, and other persons recommended to accompany
the transitory person) from regional processing countries to Australia for the purposes of
medical or psychiatric assessment or treatment. The provisions also provide for the transfer of
transitory persons who are minors to Australia, irrespective of any medical or psychiatric
condition.
There are a number of issues regarding the effect of these provisions, most notably that there
is no provision for transitory persons who are brought to Australia under the medical transfer
provisions to be removed from Australia or returned to a regional processing country once
they no longer need to be in Australia for the temporary purpose for which they were
transferred. Other significant issues are:
the medical transfer provisions undermine the Australian Government's regional
processing arrangements;
the medical transfer provisions have a very broad application with very limited scope
for refusing transfers on security or character grounds;
the timeframes to make decisions do not allow a sufficient amount of time to gather
and consider all the relevant information;
the medical transfer provisions impinge on the sovereignty of Papua New Guinea and
Nauru, the Governments of which are responsible for the management of regional
processing arrangements in their respective countries and people residing under those
arrangements; and
the medical transfer provisions provide that a person is not entitled to remuneration in
relation to their position as a member of the Independent Health Advice Panel
(IHAP).
Furthermore, standard medical processes already exist which provide for the transfer of
transitory persons for temporary medical purposes from regional processing countries,
including transfer to Australia under the Migration Act.
To address the shortcomings of the medical transfer provisions and noting the existing
medical transfer processes, including processes under the Migration Act, the Bill repeals the
medical transfer provisions. The Bill will also provide for the removal from Australia, or
return to a regional processing country, of transitory persons who are brought to Australia
under the medical transfer provisions, once the temporary purpose for which they were
brought to Australia is complete.
Item 1 Subsection 5(1)
9. This item repeals the following definitions in subsection 5(1) of the Migration Act:
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definition of legacy minor;
definition of relevant transitory person;
definition of treating doctor.
10. These definitions are being repealed because the sections in which these defined terms
appear, sections 198C and 198D, are repealed by Item 10 of this Schedule.
Item 2 Paragraph 42(2A)(ca)
11. This item omits "or 198C" from paragraph 42(2A)(ca). The reference is no longer
required because section 198C is repealed by Item 10 of this Schedule.
Item 3 Subsection 198(1A)
12. This item inserts "or repealed section 198C" in subsection 198(1A) after "section 198B".
This amendment makes it clear that, in the case of an unlawful non-citizen who has been
brought to Australia under the repealed section 198C for a temporary purpose, an officer
must remove the person as soon as reasonably practicable after the person no longer needs to
be in Australia for that purpose (whether or not the purpose has been achieved).
13. Currently, subsection 198(1A) does not provide for the removal of transitory persons
brought to Australia for a temporary purpose under section 198C. This amendment extends
the existing removal power to allow for the removal of those transferred to Australia under
section 198C, closing the loop hole left open as a result of the amendments to the Migration
Act made by Schedule 6 of the Miscellaneous Measures Act.
Item 4 Subsection 198(1A) (note)
14. This item omits "Note:" and substitutes "Note 1:" in the note at the end of current
subsection 198(1A). This is consequential to Item 5, which inserts new Note 2.
Item 5 At the end of subsection 198(1A)
15. This item inserts Note 2 to highlight that section 198C is being repealed by this Act (see
Item 10). The Note also highlights the purpose of section 198C, that it provided for certain
transitory persons to be brought to Australia for a temporary purpose (including the
temporary purpose of medical or psychiatric assessment or treatment).
16. The effect of amended subsection 198(1A) is that a transitory person brought to Australia
under repealed section 198C for a temporary purpose must be removed from Australia as
soon as reasonably practicable after the person no longer needs to be in Australia for that
purpose (whether or not the purpose has been achieved) (see Item 3).
Item 6 Paragraph 198(1B)(a)
17. This item inserts "or repealed section 198C" in paragraph 198(1B)(a) after "section
198B". This amendment makes it clear that subsection 198(1C) applies if an unlawful non-
citizen who is not an unauthorised maritime arrival has been brought to Australia under the
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repealed section 198C for a temporary purpose, and the conditions in paragraphs 198(1B)(b)
and (c) are met.
Item 7 Paragraph 198AH(1A)(a)
18. This item inserts "or repealed section 198C" in paragraph 198AH(1A)(a) after "section
198B". This amendment makes it clear that a transitory person is covered by subsection
198AH(1A) if the person is an unauthorised maritime arrival who is brought to Australia
from a regional processing country under repealed section 198C for a temporary purpose and
the conditions in paragraphs 198AH(1A)(b) and (c) are met.
19. The effect of a person being covered by subsection 198AH(1A) is that section 198AD
will apply to that person. Section 198AD provides that an officer must, as soon as reasonably
practicable, take an unauthorised maritime arrival to whom this section applies from
Australia to a regional processing country.
20. Currently, there is no reference to section 198C in sections 198AD and 198AH. This
means that there is no power for the Minister to return a person who was transferred to
Australia under section 198C to a regional processing country. This loop hole was created as
a result of the amendments to the Migration Act made by Schedule 6 of the Miscellaneous
Measures Act.
21. This amendment extends the existing return power to allow for the return to a regional
processing country of those transferred to Australia under section 198C, closing the loop
hole.
Item 8 At the end of subsection 198AH(1A)
22. This item inserts a new note to highlight that section 198C is being repealed by this Act
(see Item 10). The Note also highlights the purpose of section 198C, that it provided for
certain transitory persons to be brought to Australia for a temporary purpose (including the
temporary purpose of medical or psychiatric assessment or treatment).
23. The effect of amended subsection 198AH(1A) is that a transitory person brought to
Australia under repealed section 198C for a temporary purpose must be taken to a regional
processing country as soon as reasonably practicable if they no longer need to be in Australia
for that temporary purpose (whether or not that purpose has been achieved).
Item 9 Subsection 198B(4)
24. This item repeals subsection 198B(4). This subsection related to the nature of the
temporary purpose for which a transitory person could be brought to Australia under section
198C.
Item 10 Sections 198C to 198J
25. This item repeals sections 198C to 198J. These sections related to the process under
which certain transitory persons could be transferred from a regional processing country to
Australia for a temporary purpose, and to concomitant tabling of information in Parliament.
Item 11 Subdivision D of Division 8 of Part 2
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26. This item repeals Subdivision D of Division 8 of Part 2. This Subdivision sets out
provisions relating to the IHAP, including its establishment, functions and powers.
Item 12 Subsection 474(4) (table items 1A to 1D)
27. This item repeals subsection 474(4) (table items 1A to 1D). These table items provided
that the relevant decisions were not privative clause decisions.
28. The effect of this amendment is that any decisions made under the provisions listed in the
repealed table items prior to the repeal of those provisions will become privative clause
decisions in accordance with subsection 474(2) of the Migration Act. Privative clause
decisions, where affected by error, are subject to judicial review in accordance with Part 8 of
the Migration Act.
Item 13 Subsection 499(1)
29. This item omits "(other than the panel established under section 199A)" from subsection
499(1). This reference is no longer required because section 199A is repealed by Item 11 of
this Schedule.
Part 2 - Application provisions etc.
Item 14 Application of amendments relating to removal etc.
30. Subitem 14(1) provides that the amendments of subsection 198(1A) [Items 3 to 5] and
paragraph 198(1B)(a) [Item 6] made by this Schedule apply in relation to an unlawful non-
citizen brought to Australia under repealed section 198C before, on or after the
commencement of Item 14.
31. Subitem 14(2) provides that the amendment of paragraph 198AH(1A)(a) [Item 7] made
by this Schedule applies in relation to a transitory person brought to Australia under repealed
section 198C before, on or after the commencement of Item 14.
32. The effect of this item is that any person transferred to Australia before, on or after
commencement of this item will be subject to return and removal.
Item 15 Effect of repeal of medical transfer provisions
33. Subitem 15(1) provides that subsection 7(2) of the Acts Interpretation Act 1901 (the Acts
Interpretation Act) does not apply in relation to the repeal by this Schedule of a medical
transfer provision. Subsection 7(2) of the Acts Interpretation Act would, if applicable,
preserve, amongst other things, any right, privilege, obligation or liability acquired, accrued
or incurred under the medical transfer provisions.
34. For the avoidance of doubt, the exclusion of subsection 7(2) of the Acts Interpretation Act
is intended to exclude the operation of both subsection 7(2), as well as the common law
principles to which it seeks to give effect.
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35. Subitem 15(2) provides that, despite subitem 15(1), the repeal by this Schedule of a
medical transfer provision does not affect rights or liabilities arising between parties to
proceedings in which judgment is reserved by a court or has been delivered by a court as at
the commencement of this item, and the judgment sets aside, or declares invalid, a decision
made under a medical transfer provision.
36. The purpose of this subitem is to confirm that the repeal of a medical transfer provision
will not affect cases where judgment has been reserved or delivered by a court before the
commencement of this item.
37. The effect of this is to preserve any such decision (or pending decision) of a court prior to
the commencement of this item where that decision sets aside, or declares invalid, a decision
made under the medical transfer provisions.
38. For the avoidance of doubt, nothing in this item is intended to affect the original
jurisdiction of the High Court under section 75 of the Constitution.
39. Subitem 15(3) provides for the definition of medical transfer provision. The provisions of
the Migration Act that are included are:
subsection 198B(4);
sections 198C to 198J;
Subdivision D of Division 8 of Part 2;
subsection 474(4) (table items 1A to 1D).
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Attachment A
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Repairing Medical Transfers) Bill 2019
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.
The Migration Amendment (Repairing Medical Transfers) Bill 2019 (the Bill) amends the
Migration Act 1958 (the Migration Act) to repeal the provisions inserted by Schedule 6 to the
Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (the Miscellaneous
Measures Act) (the medical transfer provisions).
As the medical transfer provisions do not provide for any return or removal mechanism, the
Bill also amends the Migration Act to extend existing powers in relation to persons
transferred to Australia under the medical transfer provisions to allow for their removal from
Australia or return to a regional processing country once they no longer need to be in
Australia for the temporary purpose for which they were brought.
These amendments reflect the Government's intention that the integrity and efficacy of the
regional processing framework not be undermined and that the decision making power is
returned to Government.
Human rights implications
The amendments made by this Bill remove the legislative provisions inserted by Schedule 6
of the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019. The
Parliamentary Joint Committee on Human Rights examined the human rights implications of
the re-establishment of regional processing in its ninth report of 2013 in the 43rd parliament
and again in the 25th report of the 44th Parliament.
The Australian Government's long-standing view is that Australia's human rights obligations
are essentially territorial. Persons in regional processing countries are outside Australia's
territory. Australia has accepted that there may be exceptional circumstances in which the
rights and freedoms set out under the International Covenant on Civil and Political Rights
(ICCPR) and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (CAT) may apply to persons beyond the territory of a State party, and the
extent of the obligations that a State may owe under international human rights law where it
is operating extra-territorially will be informed by the degree of control exercised by the
State. In general, the Government's position is that Australia does not exercise the degree of
control necessary in regional processing countries to enliven Australia's international
obligations.
Since the Regional Processing Framework was re-established in 2012, it has been the policy
intention that the Minister and the Commonwealth have the power to return persons to a
10
regional processing country that have been brought to Australia for a temporary purpose. This
Bill repeals the legislated obligation (section 198C) introduced by the Home Affairs
Legislation Amendment (Miscellaneous Measures) Act 2019 which came into force on 2
March 2019 to bring relevant transitory persons and family members, relevant transferees and
legacy minors to Australia for the temporary purpose of medical or psychiatric assessment or
treatment. The Schedule 6 amendments did not provide a return or remove mechanism for
individuals transferred under section 198C of the Act, and the Bill will empower the
Government to return persons to a regional processing country or remove persons from
Australia who have been brought to Australia for a temporary purpose.
Noting the above, this Bill engages the following rights:
Non-refoulement
Respect for family and children
Right to Health.
Non-refoulement
Australia has obligations under the ICCPR and the CAT not to return a person to a country in
certain circumstances.
Article 3 of the CAT states:
No State party shall expel, return ("refouler") or extradite a person to another State
where there are substantial grounds for believing that he would be in danger of being
subjected to torture.
Non- refoulement obligations also arise, by implication, in relation to Articles 6 and 7 of the
ICCPR.
Article 6(1) of the ICCPR states:
Every human being has the inherent right to life. This right shall be protected by law.
No one shall be arbitrarily deprived of his life.
Article 7 of the ICCPR states:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. In particular, no one shall be subjected without his free consent to
medical or scientific experimentation.
These are in addition to the obligations under the 1951 Convention relating to the Status of
Refugees (Refugees Convention) which is not one of the treaties that this Statement is
required to address.
Section 198AD creates a duty for an officer to take an unauthorised maritime arrival to a
regional processing country as soon as reasonably practicable, unless one of the specified
exemptions applies. Section 198AH provides that section 198AD applies, subject to certain
exceptions, to a transitory person who is covered by subsection 198AH(1A) or 198AH(1B).
The Bill introduces provisions to ensure the Commonwealth can return a person transferred
under 198C to a regional processing country or remove such person from Australia as soon as
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practicable after the Minister is satisfied that the person no longer needs to be in Australia for
that temporary purpose. This power exists for individuals brought to Australia for a
temporary purpose under section 198B, however was not included in the non-government
amendments that introduced section 198C.
These amendments do not alter the longstanding policy intention that the Minister and the
Commonwealth have the power to return persons to a regional processing country that have
been brought to Australia for a temporary purpose, regardless of their refugee status in the
regional processing country. These amendments do however ensure consistency with other
provisions relating to transitory persons. The Government takes Australia's non-refoulement
obligations seriously, and will ensure administrative arrangements are in place to support
Australia to meet its non-refoulement obligations to those individuals transferred under
section 198C as it has done and continues to do for persons transferred under198B. The
amendments do not impact on the protections against refoulement, which already exist in
Australia's legislation, policies and procedures. In making the amendments, the Government
is not creating any new obligations or seeking to avoid obligations.
Australia will continue to meet its non-refoulement obligations through other mechanisms
under the Migration Act, policies and procedures.
Respect for the family and children
Rights relating to respect for the family and children are contained in Articles 17(1), 23(1),
and 24 of the ICCPR.
Article 17 ICCPR
1. No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation.
Article 23 ICCPR
1. The family is the natural and fundamental group unit of society and is entitled to
protection by society and the State.
Article 24 ICCPR
1. Every child shall have, without any discrimination as to race, colour, sex,
language, religion, national or social origin, property or birth, the right to such
measures of protection as are required by his status as a minor, on the part of his
family, society and the State.
In addition, Article 3 of the Convention on the Rights of the Child (CRC) provides:
1. In all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative bodies, the
best interests of the child shall be a primary consideration.
Further, Article 9 and 10 of the CRC provides:
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Article 9
1. States Parties shall ensure that a child shall not be separated from his or her
parents against their will, except when competent authorities subject to judicial
review determine, in accordance with applicable law and procedures, that such
separation is necessary for the best interests of the child. Such determination may
be necessary in a particular case such as one involving abuse or neglect of the
child by the parents, or one where the parents are living separately and a decision
must be made as to the child's place of residence.
2. In any proceedings pursuant to paragraph 1 of the present article, all interested
parties shall be given an opportunity to participate in the proceedings and make
their views known.
3. States Parties shall respect the right of the child who is separated from one or
both parents to maintain personal relations and direct contact with both parents
on a regular basis, except if it is contrary to the child's best interests.
4. Where such separation results from any action initiated by a State Party, such as
the detention, imprisonment, exile, deportation or death (including death arising
from any cause while the person is in the custody of the State) of one or both
parents or of the child, that State Party shall, upon request, provide the parents,
the child or, if appropriate, another member of the family with the essential
information concerning the whereabouts of the absent member(s) of the family
unless the provision of the information would be detrimental to the well-being of
the child. States Parties shall further ensure that the submission of such a request
shall of itself entail no adverse consequences for the person(s) concerned.
Article 10
In accordance with the obligation of States Parties under article 9, paragraph 1,
applications by a child or his or her parents to enter or leave a State Party for the
purpose of family reunification shall be dealt with by States Parties in a positive,
humane and expeditious manner. States Parties shall further ensure that the
submission of such a request shall entail no adverse consequences for the applicants
and for the members of their family.
No children have been transferred to Australia under section 198C.
The Bill supports family unity as all persons transferred under section 198B and 198C were
only intended to come for a temporary purpose. The introduction of return and removal
measures to support the return or removal from Australia of persons brought to Australia
under section 198C is respecting families by not splitting families when returning some
(those transferred under section 198B), but not all to a regional processing country or
otherwise removing them from Australia. It will ensure that those transferred consistent with
'spilt family' provisions (section 198G) can be managed in the same way as the rest of the
family unit subject to any reason consistent with the above obligations to depart from the
practice.
The scope of the right to respect for the family and the right to freedom from interference
with the family requires countries to adopt legislative, administrative and other measures to
protect families, and to refrain from arbitrary interference in families. The obligations under
13
the CRC include the obligation to treat the best interests of the child as a primary
consideration and to treat applications for family reunification of children with their parents
to be treated in a positive, humane and expeditious manner.
The Ministerial discretions contained within the Act for persons in Australia will not be
affected and will consider the individual circumstances of the case including any international
obligations, such as the best interest of affected children, where applicable.
On transfer to Australia under section 198C, individuals are informed their stay in Australia
is for temporary purposes only. The return amendments correct deficiencies in the drafting of
Schedule 6 of the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019.
Right to Health
To the extent that the provisions in the Bill relate to a transitory person in Australia, these
provisions may engage the Right to Health under Article 12 of the International Covenant on
Economic, Social and Cultural Rights (ICESCR), which states:
The States Parties to the present Covenant recognize the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health.
Transitory persons in Australia for a temporary purpose will continue to receive medical care
in Australian medical facilities. The government is of the view that such an arrangement is
consistent with Article 12 of the ICESCR.
The Bill will not affect the existing provisions for the temporary transfer of transitory persons
for medical treatment in a third country. Section 198B provides a standing authority for
individuals in need of medical care not available in the regional processing country to be
brought to a third county, including Australia, for medical treatment.
Conclusion
The measures proposed in this Bill are compatible with human rights.
The Hon. Peter Dutton MP, Minister for Home Affairs