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2002
THE
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MIGRATION LEGISLATION AMENDMENT
(TRANSITIONAL MOVEMENT) BILL 2002
REVISED EXPLANATORY
MEMORANDUM
(Circulated by
authority of the
Minister for Immigration and Multicultural and Indigenous
Affairs,
The Hon. Philip Ruddock MP)
MIGRATION LEGISLATION AMENDMENT (TRANSITIONAL MOVEMENT) BILL
2002
OUTLINE
1. In September 2001, the Parliament
passed amendments to the Migration Act 1958 (“the Act”) to
discourage non-citizens from seeking to enter Australia unlawfully, and to
provide clear legislative authority for the Government to take action to stop
unlawful entry to Australia.
2. These amendments were contained in the
Migration Amendment (Excision from Migration Zone) Act 2001, the
Migration Amendment (Excision from Migration Zone) (Consequential Provisions)
Act 2001 and the Border Protection (Validation and Enforcement Powers)
Act 2001.
3. These changes included:
• a bar on persons
arriving at an “excised offshore place” being able to apply for a
visa whilst in Australia;
• powers to take persons arriving at these
places to a declared country; and
• powers for officers to board
vessels seeking to take people to Australia unlawfully and take those vessels to
a place outside Australia.
4. Since September 2001 persons attempting to
enter Australia unlawfully by boat have been taken to Nauru or Papua New Guinea,
where any claims for protection are being assessed.
5. There are a small
number of exceptional situations where it may be necessary to bring one of these
people removed to another country (“transitory persons”) to
Australia. These situations include:
• medical treatment for a
condition which can not be adequately treated in the place where the person has
been taken;
• trials at which the person is to provide evidence in the
prosecution of people smugglers; or
• transit through Australia, either
to return to their country of origin or to a third country.
6. In order
to maintain the integrity of Australia’s border controls it is necessary
to ensure that the transitory person’s presence in Australia is as short
as possible and that action cannot be taken to delay that person’s removal
from Australia.
7. The amendments to the Act proposed by this Bill
will:
• allow a “transitory person” to be brought to
Australia without a visa for a temporary purpose;
• bar a
“transitory person” from making a valid application for any visa
whilst in Australia, unless the Minister believes it is in the public interest
to allow the person to apply for a visa;
• stop legal proceedings being
taken in relation to the “transitory person’s” presence in
Australia; and
• provide clear statutory authority to remove the person
from Australia.
8. The Bill makes clear that a person who has been
assessed to be a refugee for the purposes of the Refugees Convention, as amended
by the Refugees Protocol, cannot be brought to Australia for a temporary purpose
under the Bill.
FINANCIAL IMPACT STATEMENT
9. These
amendments will have no direct financial impact.
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short
Title
1. The short title by which this Act may be cited is the
Migration Legislation Amendment (Transitional Movement) Act
2002.
Clause 2 Commencement
2. Subclause 2(1) contains
a table setting out the commencement information for the Act. The subclause
also provides that each provision of the Act specified in column 1 of the table
commences, or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
3. The effect of item 1 of the table is that
sections 1, 2 and 3 of the Act commence on the day on which the Act receives the
Royal Assent.
4. The effect of item 2 of the table is that Schedule 1 to
the Act commences on a single day to be fixed by Proclamation.
5. The
note in subclause 2(1) makes it clear that the table only relates to the
provisions of the Act as originally passed by the Parliament and assented to.
The table will not be expanded to deal with provisions inserted into the Act
after it receives the Royal Assent.
6. Subclause 2(2) provides that
column 3 of the table in subclause 2(1) is for additional information that may
be included in any published version of the Act but which is not part of the
Act.
7. Subclause 2(3) provides that if a provision covered by item 2 of
the table does not commence within 6 months of this Act receiving the Royal
Assent, then it will commence on the first day after the end of that
period.
Clause 3 Schedule(s)
8. This clause provides that
each Act 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.
Item 1 Subsection 5(1)
9. This item inserts a definition
of “transitory person” into subsection 5(1) of the
Act.
10. “Transitory person” is defined to mean any of the
following persons:
• an offshore entry person who was taken to
another country under section 198A; 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;
11. However, the definition makes clear that “transitory
person” does not include a person who has been assessed to be a refugee
under the Refugees Convention as amended by the Refugees
Protocol.
12. This means that a person who has been assessed to be a
refugee for the purposes of the Refugees Convention, as amended by the Refugees
Protocol, cannot be brought to Australia for a temporary purpose under proposed
new section 198B, as contained in item 5 of Schedule 1 to the
Bill.
Item 2 After paragraph 42(2A)(c)
13. This item
inserts new paragraph 42(2A)(ca) into the Act.
14. Subsection 42(1)
provides that, as a general rule, a non-citizen must not travel to Australia
without a visa that is in effect. Subsection 42(2A) sets out certain exceptions
to this general rule.
15. New paragraph 42(2A)(ca) allows a non-citizen
to travel to Australia without a visa that is in effect if the non-citizen is
brought to Australia under new section 198B of the Act, which is inserted into
the Act by item 5 of this Schedule.
Item 3 After section
46A
16. This item inserts new section 46B into the Act. New section
46B deals with the validity of a visa application made by a “transitory
person.”
Section 46B Visa application by transitory
persons
17. The effect of new subsection 46B(1) is that a
“transitory person”, who is in Australia and who is an unlawful
non-citizen, cannot make a valid visa application.
18. However, under new
subsection 46B(2), the Minister may, if it is in the public interest, determine
that new subsection 46B(1) does not apply to a visa application made by a
“transitory person”. This power may be used in situations of
emergency, hardship or overwhelming humanitarian need.
19. The
“transitory person” must be given written notice of the
Minister’s determination and the determination must specify the class of
visa for which such a person may apply.
20. Under new subsection 46B(3),
the power in subsection 46B(2) may only be exercised by the Minister
personally.
21. In addition, under new subsection 46B(7), the
Minister’s power under new subsection 46B(2) is not compellable. That is,
the Minister does not have a duty to consider whether to exercise the power in
respect of any “transitory person”. This is the case whether the
Minister is requested to do so by the “transitory person” or by any
other person, or in any other circumstances.
22. New subsection 46B(4) to
46B(6) relate to the statement that the Minister must cause to be laid before
each House of Parliament if the Minister makes a determination under new
subsection 46B(2).
23. New subsection 46B(4) provides that such a
statement must set out the determination and the reasons for the determination.
These reasons must refer, in particular, to the Minister’s reasons for
thinking that the Minister’s actions are in the public
interest.
24. Under new subsection 46B(5), a statement under new
subsection 46B(4) must not include any of the following
information:
• the name of the “transitory
person”;
• any information that may identify the
“transitory person”;
• if the Minister thinks that it would
not be in the public interest to publish the name of another person connected in
any way with the matter concerned – the name of that other person or any
information that may identify that other person.
25. New subsection
46B(6) requires a statement made under subsection 46B(4) to be laid before each
House of Parliament within 15 sitting days of that House
after:
• if the determination is made between 1 January and 30 June
(inclusive) in a year – 1 July in that year; or
• if the
determination is made between 1 July and 31 December (inclusive) in a year
– 1 January in the following year.
Item 4 After subsection
198(1)
26. This item inserts new subsection 198(1A) after subsection
198(1) of the Act.
27. Section 198 of the Act deals with the removal of
unlawful non-citizens from Australia.
28. New subsection 198(1A)
specifically provides for the removal of an unlawful non-citizen who has been
brought to Australia for a temporary purpose under new section 198B, as inserted
by item 5 of this Schedule.
29. Under new subsection 198(1A), an
officer must remove the “transitory 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).
Item 5 After
section 198A
30. This item inserts new section 198B into the Act.
New section 198B introduces a power to bring a “transitory person”
to Australia from a country or place outside Australia for “temporary
purposes”. It also provides statutory authority for the exercise of the
powers necessary to affect the transitional movement of such
persons.
Section 198B Power to bring transitory persons to
Australia
31. New subsection 198B(1) allows an officer to bring a
“transitory person” to Australia for temporary purposes from a
country or place outside Australia. The temporary purposes for which this power
may be exercised are, for example, to allow a “transitory person” to
receive medical treatment or to give evidence in legal
proceedings.
32. New subsection 198B(2) provides that the power in new
subsection 198B(1) includes the power to do any of the following things within
or outside Australia:
• place the person on a vehicle or
vessel;
• restrain the person on a vehicle or vessel;
• remove
the person from a vehicle or vessel;
• use such force as is necessary
and reasonable.
33. New subsection 198B(3) provides a definition of
“officer” for the purposes of new section 198B. In new section
198B, an “officer” means an officer within the meaning of section 5,
and includes a member of the Australian Defence Force.
Item 6 After
section 494AA
34. This item inserts new section 494AB into the Act.
New section 494AB bars certain legal proceedings relating to “transitory
persons”.
Section 494AB Bar on certain legal proceedings
relating to transitory persons
35. Under new subsection 494AB(1),
three types of proceedings may not be instituted or continued against the
Commonwealth in any court.
36. “Commonwealth” is defined in
new subsection 494AB(4) to include an officer of the Commonwealth and any other
person acting on behalf of the Commonwealth.
37. Paragraph 494AB(1)(a)
prohibits proceedings relating to the exercise of powers under new section 198B,
as inserted by item 20 of this Schedule.
38. Paragraph 494AB(1)(b)
prohibits proceedings relating to the status of a “transitory
person” as an unlawful non-citizen during any part of the ineligibility
period.
39. “Ineligibility period” is also defined in new
subsection 494AB(4) and means the period from the time when the
“transitory person” was brought to Australia under new section 198B
until the time when the person next ceases to be an unlawful
non-citizen.
40. Paragraph 494AB(1)(c) prohibits proceedings relating to
the detention of a “transitory person” who is brought to Australia
under new section 198B, being a detention based on the status of the person as
an unlawful non-citizen.
41. Paragraph 494AB(1)(d) prohibits proceedings
relating to the removal of a “transitory person” from Australia
under the Act.
42. New subsection 494AB(2) makes it clear that new
section 494AB has effect despite anything else in the Act or any other
law.
43. New subsection 494AB(3) provides that nothing in new section
494AB is intended to affect the jurisdiction of the High Court under section 75
of the Constitution.