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This is a Bill, not an Act. For current law, see the Acts databases.
MIGRATION LEGISLATION AMENDMENT (REGIONAL PROCESSING AND OTHER MEASURES) BILL 2012
2010-2011
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Migration Legislation Amendment
(Offshore Processing and Other
Measures) Bill 2011
No. , 2011
(Immigration and Citizenship)
A Bill for an Act to amend the law relating to
migration, and for other purposes
i Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011
No. , 2011
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Offshore processing
3
Migration Act 1958
3
Schedule 2--Other amendments
14
Immigration (Guardianship of Children) Act 1946
14
Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 No.
, 2011 1
A Bill for an Act to amend the law relating to
1
migration, and for other purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Migration Legislation Amendment
5
(Offshore Processing and Other Measures) Act 2011.
6
2 Commencement
7
This Act commences on the day after this Act receives the Royal
8
Assent.
9
2 Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011
No. , 2011
3 Schedule(s)
1
Each Act that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
4
according to its terms.
5
6
Offshore processing Schedule 1
Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 No.
, 2011 3
Schedule 1--Offshore processing
1
2
Migration Act 1958
3
1 At the end of section 4
4
Add:
5
(5) To advance its object, this Act provides for the taking of offshore
6
entry persons from Australia to an offshore processing country.
7
2 Subsection 5(1) (note 1 at the end of the definition of
8
immigration detention)
9
Repeal the note, substitute:
10
Note 1:
Subsection 198AD(11) provides that being dealt with under
11
subsection 198AD(3) does not amount to immigration detention.
12
3 Subsection 5(1) (paragraph (a) of the definition of offshore
13
entry person)
14
Before "entered", insert "has, at any time,".
15
4 Subsection 5(1)
16
Insert:
17
offshore processing country means a country designated by the
18
Minister under subsection 198AB(1) as an offshore processing
19
country.
20
5 Subsection 5(1) (paragraph (a) of the definition of transitory
21
person)
22
Before "section", insert "repealed".
23
6 Subsection 5(1) (after paragraph (a) of the definition of
24
transitory person)
25
Insert:
26
(aa) an offshore entry person who was taken to an offshore
27
processing country under section 198AD; or
28
7 Paragraph 36(2)(a)
29
Schedule 1 Offshore processing
4 Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011
No. , 2011
Omit "to whom", substitute "in respect of whom".
1
8 Subsection 36(3)
2
Omit "obligations to", substitute "obligations in respect of".
3
9 Subsection 48A(2) (paragraph (aa) of the definition of
4
application for a protection visa)
5
Omit "to whom", substitute "in respect of whom".
6
10 Subsection 48A(2) (subparagraph (ab)(i) of the definition
7
of application for a protection visa)
8
Omit "to whom", substitute "in respect of whom".
9
11 Subsection 189(3)
10
After "a person", insert "(other than a person referred to in
11
subsection (3A))".
12
12 Subsection 189(3)
13
Omit "may detain", substitute "must detain".
14
13 After subsection 189(3)
15
Insert:
16
(3A) If an officer knows or reasonably suspects that a person in a
17
protected area:
18
(a) is an allowed inhabitant of the Protected Zone; and
19
(b) is an unlawful non-citizen;
20
the officer may detain the person.
21
14 Subsection 189(5)
22
After "subsections (3)", insert ", (3A)".
23
15 Paragraph 193(1)(c)
24
Before "or (4)", insert ", (3A)".
25
16 Subsection 196(1)
26
Omit "he or she is".
27
17 Paragraph 196(1)(a)
28
Offshore processing Schedule 1
Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 No.
, 2011 5
Before "removed", insert "he or she is".
1
18 After paragraph 196(1)(a)
2
Insert:
3
(aa) an officer begins to deal with the non-citizen under
4
subsection 198AD(3); or
5
19 Paragraph 196(1)(b)
6
Before "deported", insert "he or she is".
7
20 Paragraph 196(1)(c)
8
Before "granted", insert "he or she is".
9
21 Subsection 196(3)
10
Omit "for removal or deportation", substitute "as referred to in
11
paragraph (1)(a), (aa) or (b)".
12
22 Division 8 of Part 2 (heading)
13
Repeal the heading, substitute:
14
Division 8--Removal of unlawful non-citizens etc.
15
23 Before section 198
16
Insert:
17
Subdivision A--Removal
18
24 At the end of section 198
19
Add:
20
(11) This section does not apply to an offshore entry person to whom
21
section 198AD applies.
22
25 Section 198A
23
Repeal the section, substitute:
24
Schedule 1 Offshore processing
6 Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011
No. , 2011
Subdivision B--Offshore processing
1
198AA Reason for Subdivision
2
This Subdivision is enacted because the Parliament considers that:
3
(a) people smuggling, and its undesirable consequences
4
including the resulting loss of life at sea, are major regional
5
problems that need to be addressed; and
6
(b) offshore entry persons, including offshore entry persons in
7
respect of whom Australia has or may have protection
8
obligations under the Refugees Convention as amended by
9
the Refugees Protocol, should be able to be taken to any
10
country designated to be an offshore processing country; and
11
(c) it is a matter for the Minister to decide which countries
12
should be designated as offshore processing countries; and
13
(d) the designation of a country to be an offshore processing
14
country need not be determined by reference to the
15
international obligations or domestic law of that country.
16
198AB Offshore processing country
17
(1) The Minister may, in writing, designate that a country is an
18
offshore processing country.
19
(2) The only condition for the exercise of the power under
20
subsection (1) is that the Minister thinks that it is in the national
21
interest to designate the country to be an offshore processing
22
country.
23
(3) In considering the national interest for the purposes of
24
subsection (2), the Minister:
25
(a) must have regard to whether or not the country has given
26
Australia any assurances to the effect that:
27
(i) the country will not expel or return a person taken to the
28
country under section 198AD to another country where
29
his or her life or freedom would be threatened on
30
account of his or her race, religion, nationality,
31
membership of a particular social group or political
32
opinion; and
33
(ii) the country will make an assessment, or permit an
34
assessment to be made, of whether or not a person taken
35
Offshore processing Schedule 1
Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 No.
, 2011 7
to the country under that section is covered by the
1
definition of refugee in Article 1A of the Refugees
2
Convention as amended by the Refugees Protocol; and
3
(b) may have regard to any other matter which, in the opinion of
4
the Minister, relates to the national interest.
5
(4) The assurances referred to in paragraph (3)(a) need not be legally
6
binding.
7
(5) The power under subsection (1) may only be exercised by the
8
Minister personally.
9
(6) If the Minister designates a country under subsection (1), the
10
Minister may, in writing, revoke the designation.
11
(7) The rules of natural justice do not apply to the exercise of the
12
power under subsection (1) or (6).
13
(8) A designation under subsection (1), or a revocation under
14
subsection (6), is not a legislative instrument.
15
(9) In this section, country includes:
16
(a) a colony, overseas territory or protectorate of a foreign
17
country; and
18
(b) an overseas territory for the international relations of which a
19
foreign country is responsible.
20
198AC Documents to be laid before Parliament
21
(1) This section applies if the Minister designates a country to be an
22
offshore processing country under subsection 198AB(1).
23
(2) The Minister must cause to be laid before each House of the
24
Parliament:
25
(a) a copy of the designation; and
26
(b) a statement of the Minister's reasons for thinking it is in the
27
national interest to designate the country to be an offshore
28
processing country, referring in particular to any assurances
29
of a kind referred to in paragraph 198AB(3)(a) that have been
30
given by the country; and
31
(c) a copy of any written agreement between Australia and the
32
country relating to the taking of persons to the country; and
33
Schedule 1 Offshore processing
8 Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011
No. , 2011
(d) a statement about the Minister's consultations with the Office
1
of the United Nations High Commissioner for Refugees in
2
relation to the designation, including the nature of those
3
consultations; and
4
(e) a summary of any advice received from that Office in
5
relation to the designation; and
6
(f) a statement about any arrangements that are in place, or are
7
to be put in place, in the country for the treatment of persons
8
taken to the country.
9
(3) The Minister must comply with subsection (2) within 2 sitting days
10
of each House of the Parliament after the day on which the
11
designation is made.
12
(4) The sole purpose of laying the documents referred to in
13
subsection (2) before the Parliament is to inform the Parliament of
14
the matters referred to in the documents and nothing in the
15
documents affects the validity of the designation. Similarly, the
16
fact that some or all of those documents do not exist does not affect
17
the validity of the designation.
18
(5) A failure to comply with this section does not affect the validity of
19
the designation.
20
(6) In this section, agreement includes an agreement, arrangement or
21
understanding:
22
(a) whether or not it is legally binding; and
23
(b) whether it is made before, on or after the commencement of
24
this section.
25
198AD Taking offshore entry persons to an offshore processing
26
country
27
(1) Subject to sections 198AE, 198AF and 198AG, this section applies
28
to an offshore entry person who is detained under section 189.
29
Note:
For when this section applies to a transitory person, see
30
section 198AH.
31
(2) An officer must, as soon as reasonably practicable, take an offshore
32
entry person to whom this section applies from Australia to an
33
offshore processing country.
34
Offshore processing Schedule 1
Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 No.
, 2011 9
Powers of an officer
1
(3) For the purposes of subsection (2) and without limiting that
2
subsection, an officer may do any or all of the following things
3
within or outside Australia:
4
(a) place the offshore entry person on a vehicle or vessel;
5
(b) restrain the offshore entry person on a vehicle or vessel;
6
(c) remove the offshore entry person from:
7
(i) the place at which the person is detained; or
8
(ii) a vehicle or vessel;
9
(d) use such force as is necessary and reasonable.
10
(4) If, in the course of taking an offshore entry person to an offshore
11
processing country, an officer considers that it is necessary to
12
return the person to Australia:
13
(a) subsection (3) applies until the person is returned to
14
Australia; and
15
(b) section 42 does not apply in relation to the person's return to
16
Australia.
17
Ministerial direction
18
(5) If there are 2 or more offshore processing countries, the Minister
19
must, in writing, direct an officer to take an offshore entry person,
20
or a class of offshore entry persons, under subsection (2) to the
21
offshore processing country specified by the Minister in the
22
direction.
23
(6) If the Minister gives an officer a direction under subsection (5), the
24
officer must comply with the direction.
25
(7) The duty under subsection (5) may only be performed by the
26
Minister personally.
27
(8) The only condition for the performance of the duty under
28
subsection (5) is that the Minister thinks that it is in the public
29
interest to direct the officer to take an offshore entry person, or a
30
class of offshore entry persons, under subsection (2) to the offshore
31
processing country specified by the Minister in the direction.
32
(9) The rules of natural justice do not apply to the performance of the
33
duty under subsection (5).
34
Schedule 1 Offshore processing
10 Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011
No. , 2011
(10) A direction under subsection (5) is not a legislative instrument.
1
Not in immigration detention
2
(11) An offshore entry person who is being dealt with under
3
subsection (3) is taken not to be in immigration detention (as
4
defined in subsection 5(1)).
5
Meaning of officer
6
(12) In this section, officer means an officer within the meaning of
7
section 5, and includes a member of the Australian Defence Force.
8
198AE Ministerial determination that section 198AD does not apply
9
(1) If the Minister thinks that it is in the public interest to do so, the
10
Minister may, in writing, determine that section 198AD does not
11
apply to an offshore entry person.
12
Note:
For specification by class, see the Acts Interpretation Act 1901.
13
(2) The power under subsection (1) may only be exercised by the
14
Minister personally.
15
(3) The rules of natural justice do not apply to an exercise of the power
16
under subsection (1).
17
(4) If the Minister makes a determination under subsection (1), the
18
Minister must cause to be laid before each House of the Parliament
19
a statement that:
20
(a) sets out the determination; and
21
(b) sets out the reasons for the determination, referring in
22
particular to the Minister's reasons for thinking that the
23
Minister's actions are in the public interest.
24
(5) A statement under subsection (4) must not include:
25
(a) the name of the offshore entry person; or
26
(b) any information that may identify the offshore entry person;
27
or
28
(c) if the Minister thinks that it would not be in the public
29
interest to publish the name of another person connected in
30
any way with the matter concerned--the name of that other
31
person or any information that may identify that other person.
32
Offshore processing Schedule 1
Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 No.
, 2011 11
(6) A statement under subsection (4) must be laid before each House
1
of the Parliament within 15 sitting days of that House after:
2
(a) if the determination is made between 1 January and 30 June
3
(inclusive) in a year--1 July in that year; or
4
(b) if the determination is made between 1 July and
5
31 December (inclusive) in a year--1 January in the
6
following year.
7
(7) The Minister does not have a duty to consider whether to exercise
8
the power under subsection (1) in respect of any offshore entry
9
person, whether the Minister is requested to do so by the offshore
10
entry person or by any other person, or in any other circumstances.
11
(8) A determination under subsection (1) is not a legislative
12
instrument.
13
198AF No offshore processing country
14
Section 198AD does not apply to an offshore entry person if there
15
is no offshore processing country.
16
198AG Non-acceptance by offshore processing country
17
Section 198AD does not apply to an offshore entry person if the
18
offshore processing country, or each offshore processing country
19
(if there is more than one such country), has advised an officer, in
20
writing, that the country will not accept the offshore entry person.
21
Note:
For specification by class, see the Acts Interpretation Act 1901.
22
198AH Application of section 198AD to certain transitory persons
23
Section 198AD applies, subject to sections 198AE, 198AF and
24
198AG, to a transitory person if, and only if:
25
(a) the person is an offshore entry person who is brought to
26
Australia from an offshore processing country under
27
section 198B for a temporary purpose; and
28
(b) the person is detained under section 189; and
29
(c) the person no longer needs to be in Australia for the
30
temporary purpose (whether or not the purpose has been
31
achieved); and
32
Schedule 1 Offshore processing
12 Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011
No. , 2011
(d) in the case where the person has not made a request under
1
section 198C--an assessment of whether or not the person is
2
covered by the definition of refugee in Article 1A of the
3
Refugees Convention as amended by the Refugees Protocol
4
was not completed while the person was in the offshore
5
processing country; and
6
(e) in the case where the person has made such a request--a
7
certificate is in force under section 198D in relation to the
8
person.
9
Subdivision C--Transitory persons etc.
10
26 Subsection 198D(3) (paragraph (c) of the definition of
11
uncooperative conduct)
12
Repeal the paragraph, substitute:
13
(c) the detention of the person under section 189;
14
(d) the taking of the person to an offshore processing country
15
under section 198AD;
16
(e) the detention of the person in an offshore processing country.
17
27 At the end of section 199
18
Add:
19
(4) In paragraphs (1)(a), (2)(a) and (3)(a), a reference to remove
20
includes a reference to take to an offshore processing country.
21
28 Subparagraph 336E(2)(a)(vi)
22
After "removed", insert ", taken".
23
29 Subparagraph 336F(5)(c)(ii)
24
Omit "to whom Australia owes", substitute "in respect of whom
25
Australia has protection".
26
30 Paragraph 474(7)(a)
27
After "197AD,", insert "198AE,".
28
31 Subsection 486B(1)
29
After "deportation,", insert "taking,".
30
Offshore processing Schedule 1
Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 No.
, 2011 13
32 Paragraph 486C(1)(a)
1
After "deportation,", insert "taking,".
2
33 Paragraph 494AA(1)(d)
3
Before "section", insert "repealed".
4
34 At the end of subsection 494AA(1)
5
Add:
6
; (e) proceedings relating to the performance or exercise of a
7
function, duty or power under Subdivision B of Division 8 of
8
Part 2 in relation to an offshore entry person.
9
35 After paragraph 494AB(1)(c)
10
Insert:
11
(ca) proceedings relating to the performance or exercise of a
12
function, duty or power under Subdivision B of Division 8 of
13
Part 2 in relation to a transitory person;
14
36 Application--section 198AD of the Migration Act 1958
15
Section 198AD of the Migration Act 1958, as inserted by this Schedule,
16
applies in relation to an offshore entry person who enters Australia on
17
or after the commencement of this item.
18
19
Schedule 2 Other amendments
14 Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011
No. , 2011
Schedule 2--Other amendments
1
2
Immigration (Guardianship of Children) Act 1946
3
1 Section 4
4
Insert:
5
migration law means any of the following:
6
(a)
the
Migration Act 1958;
7
(b) regulations made under that Act;
8
(c) any instrument made under that Act or those regulations.
9
2 Section 4
10
Insert:
11
offshore processing country has the same meaning as in the
12
Migration Act 1958.
13
3 Section 6
14
Before "The Minister", insert "(1)".
15
4 At the end of section 6
16
Add:
17
(2) Without limiting the meaning of the expression leaves Australia
18
permanently in subsection (1), a non-citizen child leaves Australia
19
permanently if:
20
(a) the child is removed from Australia under section 198 or 199
21
of the Migration Act 1958; or
22
(b) the child is taken from Australia to an offshore processing
23
country under section 198AD of that Act; or
24
(c) the child is deported under section 200 of that Act; or
25
(d) the child is taken to a place outside Australia under paragraph
26
245F(9)(b) of that Act.
27
5 Subsection 6A(4)
28
Repeal the subsection.
29
Other amendments Schedule 2
Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 No.
, 2011 15
6 Section 8 (heading)
1
Repeal the heading, substitute:
2
8 Operation of other laws
3
7 Section 8
4
Before "Except as", insert "(1)".
5
8 At the end of section 8
6
Add:
7
(2) Nothing in this Act:
8
(a) affects the operation of the migration law; or
9
(b) affects the performance or exercise, or the purported
10
performance or exercise, of any function, duty or power
11
under the migration law; or
12
(c) imposes any obligation on the Minister to exercise, or to
13
consider exercising, any power conferred on the Minister by
14
or under the migration law.
15
(3) Without limiting subsection (2), nothing in this Act affects the
16
performance or exercise, or the purported performance or exercise,
17
of any function, duty or power relating to:
18
(a) the removal of a non-citizen child from Australia under
19
section 198 or 199 of the Migration Act 1958; or
20
(b) the taking of a non-citizen child from Australia to an offshore
21
processing country under section 198AD of that Act; or
22
(c) the deportation of a non-citizen child under section 200 of
23
that Act; or
24
(d) the taking of a non-citizen child to a place outside Australia
25
under paragraph 245F(9)(b) of that Act.
26