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2013-2014-2015 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES MIGRATION AND MARITIME POWERS AMENDMENT BILL (NO. 1) 2015 EXPLANATORY MEMORANDUM (Circulated by authority of the Minister for Immigration and Border Protection, the Hon. Peter Dutton MP)MIGRATION AND MARITIME POWERS AMENDMENT BILL (NO. 1) 2015 OUTLINE The Migration and Maritime Powers Amendment Bill (No. 1) 2015 (the Bill) amends the Migration Act 1958 (Migration Act) to: ensure that when an unlawful non-citizen is in the process of being removed to another country under section 198 and the removal is aborted, or the removal is completed but the person does not enter the other country, and as a direct result the person is returned to Australia, then that person has a lawful basis to return to Australia without a visa; ensure that when such a person does return to Australia without a visa, the person will be taken to have been continuously in the migration zone for the purposes of sections 48 and 48A of the Migration Act which bar the person from making a valid application for certain visas; improve coherency and consistency in the character related provisions of the Migration Act, following the amendments made by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (the Character Act); provide that the events described in sections 82, 173 and 174 of the Migration Act that cause a visa that is in effect to cease will, as a general rule, cause a visa that is held, but not in effect, to be taken to cease. As an exception to this general rule, a visa to only remain in, but not re-enter, Australia that is not in effect will not be taken to cease as a result of the holder leaving Australia; ensure that the Administrative Appeals Tribunal can review certain character or security based decisions to refuse to grant a protection visa to a fast track applicant; and insert a reference to subsection 48A(1AA) in subsection 48A(1C), to clarify that a person who has previously been refused a protection visa application that was made on their behalf (e.g. because they were a minor at the time), cannot make a further protection visa application, irrespective of the ground on which the further protection visa application would be made or the criteria which the person would claim to satisfy, and irrespective of the grounds on which the previous protection visa application was made. The Bill also amends the Maritime Powers Act 2013 (the Maritime Powers Act) to confirm that powers under the Maritime Powers Act are able to be exercised in the course of passage through or above the waters of another country in a manner consistent with the 1982 United Nations Convention on the Law of the Sea (the Convention - as defined in section 8 of the Maritime Powers Act). Schedule 1 to the Bill amends the Migration Act to provide that an unlawful non-citizen whose removal under section 198 of the Migration Act cannot be completed, or whose removal is completed but who does not enter the country to which they are removed (the destination country), can lawfully return to Australia without a visa. The person will also
2 be taken to have remained in the migration zone for the purposes of section 48 and 48A of the Migration Act, which means that any bar on making a valid application under those sections will continue to apply. Currently, a person who is removed from Australia and then refused entry to their destination country may return to Australia without a visa, but a person whose removal is aborted, or otherwise needs to be returned to Australia before entering the destination country cannot lawfully return to Australia without a visa. The amendments made to subsection 42(2A) by Schedule 1 to the Bill address this inconsistency. Schedule 1 to the Bill further amends the Migration Act to provide that a person who is returned as a direct result of a cancelled or aborted removal will be taken to have been continuously in the migration zone for the purposes of sections 48 and 48A of the Migration Act. Sections 48 and 48A bar applicants from making a valid application in certain circumstances. Section 48 relevantly provides that a non-citizen in the migration zone who is refused a visa on certain grounds or whose visa is cancelled under certain cancellation powers may only apply for particular visas. Section 48A relevantly provides that a non-citizen who is in the migration zone whose application or applications for protection visas have been refused cannot make a further application for a protection visa. Where the Migration Act currently permits a person who was removed from Australia to return to Australia without a visa, sections 48 and 48A of the Migration Act require the person to be taken to be, for the purposes of those sections, as if they were continuously in the migration zone despite the removal. Amendments in Schedule 2 to the Bill extend this to the new cohorts who can return to Australia under subsection 42(2A) as amended by this Bill. Schedule 2 contains a number of character related amendments following from the Character Act. In particular, Schedule 2 to the Bill: amends the definition of character concern to be consistent with the character test in subsection 501(6) as amended by the Character Act. The effect of this amendment is that non-citizens who meet the amended, broader definition of being of character concern may have a personal identifier disclosed in accordance with the permitted disclosure provisions in the Migration Act; ensures that the Minister‟s power to cancel a visa in section 501BA of the Migration Act (inserted by the Character Act) does not limit or affect, and is not limited or affected by, other visa cancellation powers in the Migration Act; allows the detention of a person whose visa is reasonably suspected of being subject to cancellation under section 501BA, and requires the release of such a person if the officer is satisfied that their visa will not be cancelled under that provision; ensures that a person who had their visa cancelled by the Minister personally under section 501BA does not need to be informed of the timeframe within which they may apply for a further visa, and when their immigration detention will end.
3 This complements the amendment to section 501E which prevents such a person from making a further valid visa application while in Australia (other than for a protection visa or a visa specified in the regulations); ensures that a person whose visa was cancelled by the Minister personally under section 501BA has any outstanding visa applications refused and any other visas they hold cancelled by operation of law; ensures that a person whose visa is cancelled by the Minister personally under section 501BA is not entitled to be in Australia or enter Australia during the period determined by the regulations after the making of such a decision; ensures clear removal powers for a non-citizen whose visa has been mandatorily cancelled under subsection 501(3A) (mandatory cancellation of visas of certain non-citizens in prison, inserted by the Character Act) and who was invited to make representations about the cancellation but either did not do so within the timeframe, or did so and their visa cancellation was not revoked; ensures decisions made by the Minister personally under sections 501BA and 501CA are reviewable by the Federal Court rather than the Federal Circuit Court; ensures that a decision under section 501CA not to revoke a visa cancellation decision under subsection 501(3A) is subject to the same rules that govern review of other section 501 decisions by the Administrative Appeals Tribunal; and ensures confidential information given to the Department in the context of the exercise of a power under section 501CA or 501BA is protected from further disclosure (other than in certain specified circumstances) and may be protected by court order from disclosure to the applicant, their legal representative or any other member of the public. Schedule 3 to the Bill provides for a number of minor amendments to the Migration Act: Part 1 of Schedule 3 makes a small amendment to subsection 48A(1C) of the Migration Act. The amendment clarifies that a person who has previously been refused a protection visa application that was made on their behalf (e.g. because they were a minor at the time), cannot make a further protection visa application, irrespective of the ground on which the further protection visa application would be made or the criteria which the person would claim to satisfy, and irrespective of the grounds on which the previous protection visa application was made. This was always the policy intention; the amendment is necessary to address an oversight as contingent arrangements were not made between the Migration Legislation Amendment Act (No.1) 2014 (the MLA Act) which inserted subsection 48A(1AA) and the Migration Amendment Act 2014 (the MA Act), which inserted subsection 48A(1C). Items 3 and 9-11 of Part 2 of Schedule 3 amend the Migration Act to clarify and ensure that a fast track applicant who is refused a protection visa on certain character or security grounds is able to make an application for review of the decision to the Administrative Appeals Tribunal. Item 4 of Part 2 of Schedule 3 makes a small technical amendment to correct a referencing error in relation to maritime crew visas.
4 Items 5 - 8 of Part 2 of Schedule 3 provide that the events described in sections 82, 173 and 174 of the Migration Act which will cause a visa to cease to be in effect (ceasing events), will also cause a visa that is held but not in effect to be taken to have ceased to be in effect (subject to one exception). This amendment will ensure that a ceasing event (in sections 82, 173 and 174) will generally cause a visa to cease, in the sense of ceasing to exist, regardless of whether the visa was in effect at the time of the event. Schedule 4 to the Bill amends section 40 of the Maritime Powers Act to confirm that powers under that Act are able to be exercised in the course of passage through or above the waters of another country in a manner consistent with the Convention. Section 40 of the Maritime Powers Act allows for the exercise of powers in another country, including through or above waters that form part of that country, in defined circumstances. This section requires clarification to confirm the ability to exercise powers under the Maritime Powers Act in circumstances where vessels or aircraft are permitted or entitled under the Convention to exercise various rights through or above those waters. The amendments clarify the exercise of those powers in those circumstances. FINANCIAL IMPACT STATEMENT These amendments will have low financial impact. REGULATION IMPACT STATEMENT The Office of Best Practice Regulation has been consulted separately in regard to each measure in the Bill. The overall assessment is that a regulation impact statement is not required. 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.
5 MIGRATION AND MARITIME POWERS AMENDMENT BILL (NO.1) 2015 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 and Maritime Powers Amendment Act (No. 1) 2015. 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. 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 Schedules 1 and 2 to this Act commence the day after this Act receives the Royal Assent. 5. Table item 3 provides that Part 1 of Schedule 3 to this Act retrospectively commences on 25 September 2014. 6. This item has been given retrospective effect to avoid any suggestion that in the period between 25 September 2014 (when subsection 48(1AA) was inserted) and the commencement of this item, a person who was previously refused a protection visa that was made on their behalf and covered by subsection 48A(1AA) was not barred from making a valid protection visa application relying on a different ground or satisfaction of a different criterion, because subsection 48A(1C) did not apply to them. 7. If the amendment were made prospective in effect, there would be an implication that the amendment does not clarify section 48A, but instead alters the effect of section 48A. By making the amendment retrospective to the time when subsection 48A(1AA) was inserted, that implication is avoided and it is clear that a person who is otherwise covered by subsection 48A(1AA) could not have validly made a protection visa application relying on a different ground or criterion in between the commencement of subsection 48A(1AA) and the commencement of this amendment. 8. Table item 4 provides that Part 2 of Schedule 3 to this Act commences the day after this Act receives the Royal Assent. 9. Table item 5 provides that Schedule 4 to this Act commences the day after this Act receives the Royal Assent.
6 10. The note after subclause 2(1) states that this table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. 11. Subclause 2(2) provides that any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. Clause 3 Schedules 12. 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.
7 SCHEDULE 1--Amendments relating to removal Migration Act 1958 13. The purpose of Schedule 1 to the Bill is to provide that when a non-citizen is removed from Australia under section 198 to another country (the destination country), or an unsuccessful attempt is made to remove that non-citizen under section 198, that non-citizen can be returned to Australia without needing to hold a visa. Further, the amendments in this Schedule are intended to provide that when the non-citizen is returned to Australia, then despite their temporary absence from Australia, if the non-citizen was barred from making certain visa applications under section 48 or 48A prior to their departure, they will continue to be barred on their return. 14. Important to these amendments is the concept of when a removal under section 198 is completed. The removal is completed when the removee arrives in the destination country. Between the period when a removee arrives in the destination country and when they enter that country, it may be necessary to return them to Australia (for example, if the immigration officials of the destination country refuse the non-citizen entry). These amendments are intended to cover both the situation where a removal is attempted but not completed, and the situation where a removal is completed but the non-citizen does not enter the destination country. Item 1 Paragraph 42(2A)(ca) 15. This item inserts the word „if‟ before the words „the non-citizen‟ in paragraph 42(2A)(ca). 16. This item is a technical editorial amendment to correct the omission of the word „if‟ from paragraph 42(2A)(ca) and does not change the effect of section 42. 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. Paragraph 42(2A)(ca) is intended to be one of these exceptions, in particular when a non- citizen is brought to Australia under section 198B. Paragraph 42(2A)(ca) as inserted by the Migration Legislation Amendment (Transitional Movement) Bill 2002 did not follow the convention of each of the other paragraphs under subsection 42(2A) to begin with „if‟. Without this „if‟ the paragraph is grammatically incorrect, but due to the slip rule it should be read as if it were correct. This amendment corrects the inconsistency. Item 2 Paragraphs 42(2A)(d) and (da) 17. This item repeals paragraph 42(2A)(d) and substitutes new paragraphs 42(2A)(d) and (da). 18. Subsection 42(1) provides that subject to subsections 42(2), (2A) and (3) a non- citizen must not travel to Australia without a visa that is in effect. Current subsection 42(2A) provides for various exceptions to subsection 42(1) with existing paragraph 42(2A)(d) providing that subsection 42(1) does not apply to a non-citizen if:
8 the non-citizen has been removed under section 198 to another country but has been refused entry by that country; and the non-citizen travels to Australia as a direct result of that refusal; and the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen. 19. Current paragraph 42(2A)(d) is repealed and substituted by new paragraphs 42(2A)(d) and 42(2A)(da) as current paragraph 42(2A)(d) would be redundant to new paragraph 42(2A)(da). New paragraph 42(2A)(da) covers a broader range of situations than current paragraph 42(2A)(d), including any situation to which current paragraph 42(2A)(d) may have applied. 20. New paragraph 42(2A)(d) provides that subsection 42(1) does not apply to a non- citizen if: an attempt to remove the non-citizen under section 198 to another country was made but the removal was not completed; and the non-citizen travels to Australia as a direct result of the removal not being completed; and the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen. 21. This captures the situation where an unlawful non-citizen is being removed under section 198 to a destination country but, before reaching the destination country, the removal is aborted and the non-citizen must return to Australia as a result. 22. New paragraph 42(2A)(da) provides that subsection 42(1) does not apply to a non-citizen if: the non-citizen has been removed under section 198 to another country but the non-citizen does not enter the other country; and the non-citizen travels to Australia as a direct result of not entering the other country; and the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen. 23. This paragraph captures the situation where an unlawful non-citizen has been successfully removed from Australia, but has not yet entered their destination country. 24. The purpose of new paragraph 42(2A)(d) is to cover the situation where a removal is attempted but not completed, while new paragraph 42(2A)(da) is inserted to cover the
9 situation where a removal is completed but the non-citizen does not enter the destination country. 25. New paragraphs 42(2A)(d) and 42(2A)(da) are intended to work together to allow a non-citizen removed under section 198 of the Migration Act to return to Australia without holding a visa if it becomes necessary at any point after they leave Australia until they enter their destination country. New paragraph 42(2A)(d) applies to a non-citizen from the point they leave Australia until their removal is completed, while new paragraph 42(2A)(da) applies to a non-citizen from the point where their removal is completed until they have successfully entered the country to which they have been removed (the destination country). 26. A need to return to Australia a non-citizen who has been removed, or is in the process of being removed, could arise for a number of reasons. For example - the non- citizen could be refused entry to a transit country, an aircraft could be forced mid-flight to return to Australia, the Government could decide to cancel the removal in response to an Interim Measures Request from the United Nations, or despite being successfully removed from Australia the non-citizen could be refused entry into the destination country. 27. Paragraph 42(2A)(da) is similar to, but broader than, current paragraph 42(2A)(d). While current paragraph 42(2A)(d) applied to non-citizens who had been refused entry to the destination country, new paragraph 42(2A)(da) is broader as it applies to non-citizens who do not enter the destination country. In addition to the non-citizens to whom current paragraph 42(2A)(d) applied, new paragraph 42(2A)(da) will apply to people who did not enter the destination country for reasons other than being refused entry by the destination country. 28. Paragraph 42(2A)(da) is needed because new paragraph 42(2A)(d) only covers a non-citizen prior to the removal being completed. A removal is completed when the non- citizen arrives in the destination country, but the removed non-citizen does not enter the destination country until they are accepted into that country. Paragraph 42(2A)(da) covers a non-citizen in this in-between stage where the removal has been successfully completed, but they have not yet entered the destination country. 29. The broadened scope of paragraph 42(2A)(da) as compared to current paragraph 42(2A)(d) is intended to allow for greater flexibility in returning a removed non-citizen to Australia. Item 3 After subsection 48(1A) 30. This item will insert new subsection 48(1B) which provides that if: an attempt was made to remove a non-citizen from the migration zone under section 198 but the removal was not completed; and
10 the non-citizen is again in the migration zone as a result of travel to Australia that is covered by new paragraph 42(2A)(d); then, for the purposes of section 48 (which applies only in respect of applications made while a non-citizen is in the migration zone), the non-citizen is taken to have been continuously in the migration zone despite the attempted removal. 31. This item also inserts a note below the new subsection; this note is only intended to provide context to the subsection. The note states that paragraph 42(2A)(d) relates to the travel of a non-citizen to Australia after an attempt to remove the non-citizen has been made under section 198. 32. Section 48 contains two sets of circumstances in which a non-citizen in the migration zone can only apply for a prescribed list of visas. These circumstances are contained in subsections 48(1) and 48(1A) respectively. Common to these circumstances is that an event (which broadly speaking is either the cancellation or refusal of a visa) occurred since the non-citizen last entered Australia (this is provided for by the chapeau to paragraphs 48(1)(b) and 48(1A)(b) respectively). 33. This proviso exists because generally, the section 48 bar is not intended to apply to a non-citizen who has left Australia and returned since the cancellation or refusal of a visa occurred. The exception is that when a non-citizen has been removed, or the subject of an attempted removal, and returned because the removal was cancelled or they did not enter the destination country, it is intended that they should be in the same situation as if they were never removed, including that any relevant visa application bars should continue to apply. 34. Previously, travel covered by paragraph 42(2A)(d) was referenced in old paragraph 48(2)(b). However, paragraph 48(2)(b) applies to a non-citizen who has been removed, while item 2 of this Schedule changed the scope of 42(2A)(d) to cover a non-citizen where the removal has not been completed, i.e. they are in the process of removal rather than the removal having been completed. As such it was necessary to move the reference to 42(2A)(d) from subsection 48(2) into a separate subsection. This item creates the new subsection, while item 4 in this Schedule removes the reference to paragraph 42(2A)(d) from paragraph 48 (2)(b), replacing it with a reference to paragraph 42(2A)(da) which was inserted by item 2 of this Schedule. New paragraph 42(2A)(da) covers any situation that existing paragraph 42(2A)(d) would have covered. 35. The effect of this amendment is that when an attempt is made to remove a non-citizen under section 198, but the removal is cancelled before it is completed then the non-citizen is treated, for the purpose of section 48, as being continuously in the migration zone. 36. The purpose of this amendment, in conjunction with the amendments made by items 4 through 8 of this Schedule, is to ensure that if a non-citizen returns to Australia at any point from when they are removed from Australia under section 198 until they enter
11 the destination country, any applicable bar on making valid applications imposed by sections 48 and 48A continue to apply to that non-citizen. Item 4 Paragraph 48(2)(b) 37. This item omits from paragraph 48(2)(b) the reference to "paragraph 42(2A)(d)" and substitutes a reference to "paragraph 42(2A)(da)". This amendment is consequential to the amendments made by item 2 of this Schedule. 38. Item 2 of this Schedule substitutes a new paragraph 42(2A)(d) and the substance of the current paragraph 42(2A)(d) is subsumed by new paragraph 42(2A)(da). The effect of this item is to update the reference in paragraph 48(2)(b) accordingly. This amendment will ensure that a person returned as a result of travel that is covered by new paragraph 42(2A)(da) will be taken to have remained in the migration zone, which will ensure that if a person is returned to Australia for any reason after the removal is completed but before they enter the country then any applicable bar on making valid applications imposed by section 48 continues to apply to that non-citizen. 39. The purpose of this item is to, in conjunction with items 3 and 5 through 8 of this Schedule, ensure that any bar on making a valid visa application imposed by section 48 or 48A will continue to apply to the non-citizen if they return to Australia at any point from when they are removed from Australia under section 198 until they enter the destination country. Item 5 Subsection 48(2) (note) 40. This item repeals and substitutes the note to subsection 48(2). This amendment is consequential to the amendments made by item 2 of this Schedule, which relevantly subsumes the substance of paragraph 42(2A)(d) into new paragraph 42(2A)(da). New paragraph 42(2A)(da) is broader in scope than current paragraph 42(2A)(d), as the new paragraph covers any removed non-citizen who does not enter the destination country, not just those who were refused entry by the destination country. Item 6 After subsection 48A (1AA) 41. This item will insert new subsection 48A(1AB) which provides that if: an attempt was made to remove a non-citizen from the migration zone under section 198 but the removal was not completed; and the non-citizen is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d); then, for the purposes of section 48A, the non-citizen is taken to have been continuously in the migration zone despite the attempted removal. 42. The intention of this amendment is that a non-citizen returned to Australia after an incomplete removal will be subject to the section 48A bar if they were subject to the bar
12 prior to their removal. The purpose of this new subsection is to ensure that where an attempt to remove a non-citizen has been made, but that removal was not completed, the non-citizen does not gain an advantage (i.e. the ability to apply for another protection visa) due to the attempted removal. In conjunction with items 7 and 8 of this Schedule, this ensures that any bar imposed by section 48A will continue to apply to the non-citizen if they return to Australia at any point from when they are removed from Australia under section 198 until they enter the destination country. 43. Similarly to item 3 of this Schedule, it was necessary to move the reference to paragraph 42(2A)(d) from existing subsection 48A(1A) into new subsection 48A(1AB) as existing subsection 48A(1A) only applies when a person has been removed from Australia, while new paragraph 42(2A)(d) applies to a person who is returned before the removal is completed. 44. This item additionally inserts a note below the new subsection; this note is only intended to provide context. The note states that paragraph 42(2A)(d) relates to the travel of a non-citizen to Australia after an attempt to remove the non-citizen has been made under section 198. Item 7 Paragraph 48A(1A)(b) 45. This item omits from paragraph 48A(1A)(b) the reference to "paragraph 42(2A)(d)" and substitutes a reference to "paragraph 42(2A)(da)". This amendment is consequential to the amendments made by item 2 of this Schedule. 46. Item 2 of this Schedule substitutes a new paragraph 42(2A)(d) and the substance of the current paragraph (d) is subsumed by new paragraph (da). 47. The amendment made by item 2 will ensure that a person returned as a result of travel that is covered by new paragraph 42(2A)(da) will be taken to have remained in the migration zone, which will ensure that if a person is returned to Australia for any reason after the removal is completed but before they enter the country then any applicable bar on making valid applications imposed by section 48A continues to apply to that non-citizen. The effect of this item is to update the reference in paragraph 48A(1A)(b) accordingly. 48. The purpose of this item is to, in conjunction with items 3 through 6 and 8 of this Schedule, ensure that any bar on making a valid visa application imposed by section 48A will continue to apply to the non-citizen if they return to Australia at any point from when they are removed from Australia under section 198 until they enter the destination country Item 8 Subsection 48A(1A) (note) 49. This item repeals and substitutes the note to subsection 48A(1A). This amendment is consequential to the amendments made by item 2 of this Schedule, which relevantly subsumed the circumstances previously contained in paragraph 42(2A)(d) into
13 new paragraph 42(2A)(da). New paragraph 42(2A)(da) is broader in scope than current paragraph 42(2A)(d), as the new paragraph covers any removed non-citizen who does not enter the destination country, not just those who were refused entry by the destination country.
14 SCHEDULE 2--Amendments relating to the cancellation of visas on character grounds Migration Act 1958 Items 1 to 4 Paragraphs 5C(1)(b) and 5C(1)(d), at the end of subsection 5C(1) and at the end of subsection 5C(2) 50. Items 1 to 3 amend the definition of „character concern‟ at subsection 5C(1) in Part 1 of the Migration Act, to reflect the wording of the character test at subsection 501(6) of the Migration Act. Item 4 is a consequential amendment to reflect the wording at subsection 501(7) to clarify when, for the purposes of „character concern‟, a non- citizen has a substantial criminal record. The purpose of these amendments is to ensure consistency between the definition of character concern with the amendments made to the character test in subsection 501(6) by the Character Act. 51. Item 1 repeals current paragraph 5C(1)(b) and substitutes new paragraphs 5C(1)(b) to 5C(1)(bc) into the definition of character concern to reflect the wording of the character test at paragraphs 501(6)(aa) to 501(6)(ba). Item 2 omits the word „significant‟ in the definition of „character concern‟ to reflect the wording of the character test at paragraph 501(6)(d) where the word „significant‟ is not used. Item 3 adds new paragraphs 5C(1)(e) to 5C(1)(h) to the definition of „character concern‟ to reflect the wording of the character test at paragraphs 501(6)(e) to 501(6)(h). 52. These items expand the definition of „character concern‟ to include reference to non-citizens who have been convicted of, charged with, or indicted for, people smuggling, human trafficking, the crime of genocide (among other crimes of serious international concern) child sex offences, non-citizens subject to an Interpol notice or adverse security assessment, and non-citizens who have been found not fit to plead in relation to an offence but have been found to have committed the offence, and have been detained in a facility or institution. It also includes non-citizens who are reasonably suspected of association with criminal groups or persons involved in criminal conduct. The definition also includes a non-citizen convicted of an offence that was committed in immigration detention, during an escape from immigration detention or was convicted of the offence of escaping from immigration detention. This ensures that the definition of character concern is broad enough to identify those persons who may not pass the character test. 53. The definition of character concern is relevant to the disclosure of identifying information in section 336E of Part 4A of the Migration Act. Subsection 336E(1) provides that a person commits an offence if their conduct causes the disclosure of identifying information and the disclosure is not a permitted disclosure. 54. Permitted disclosures of identifying information are set out in subsection 336E(2) of the Migration Act. By way of example, paragraph 336E(2)(ce) provides that a
15 permitted disclosure is a disclosure that is for the purpose of identifying non-citizens who have a criminal history or who are of character concern. 55. The amendments proposed at items 1- 4 have the potential to increase the overall number of non-citizens who meet the definition of character concern and who may therefore have a personal identifier disclosed, where that disclosure is a permitted disclosure under the Migration Act. The policy intention is that the definition of character concern be consistent with the character test in subsection 501(6). 56. However, the amendments described at items 1-4 do not alter the framework or the existing safeguards which govern the collection, use and disclosure of identifying information. The robust privacy protection framework in Part 4A of the Migration Act, which creates a series of rules and offences that govern access to, disclosure of, modification of and destruction of identifying information (including personal identifiers) are not amended by this Bill. Item 5 Paragraph 118(f) 57. This item omits "or 501B" and substitutes ", 501B or 501BA" in paragraph 118(f) in Subdivision D of Division 3 of Part 2 of the Migration Act. 58. Section 118 of the Migration Act provides that the various cancellation provisions in the Migration Act, including section 501, 501A or 501B are not limited, or otherwise affected, by each other. 59. The intention of section 118 is that none of the cancellation powers should limit or affect one another, and it was never intended that the cancellation power under section 501BA should limit or affect, or be limited or affected by, other cancellation powers. Therefore, the effect of this amendment is to provide in section 118 that the cancellation power under section 501BA does not limit or is not affected by other cancellation powers in the Migration Act. Item 6 Paragraph 191(2)(d) 60. This item omits "or 501A" and substitutes ", 501A or 501BA" in paragraph 191(2)(d) of Subdivision A of Division 7 of Part 2 of the Migration Act. 61. The effect of this amendment is that a person detained because of subsection 190(2) of the Migration Act (where an officer suspects on reasonable grounds that a person in Australia is an unlawful non-citizen if they fail to provide a personal identifier in certain circumstances) must be released from immigration detention if the officer becomes aware that the non-citizen‟s visa is not one that may be cancelled under section 501BA. 62. The purpose of this amendment is to ensure consistency with current paragraph 191(2)(d), which provides that a person to whom subsection 190(2) applies must be
16 released from detention if an officer becomes aware that the non-citizen‟s visa cannot be cancelled under section 501 or 501A (among other provisions). Item 7 Subsections 192(1) and (4) 63. This item omits "or 501A" and substitutes ", 501A or 501BA" in subsections 192(1) and 192(4) of Subdivision A of Division 7 of Part 2 of the Migration Act. 64. The effect of this amendment in relation to subsection 192(1) of the Migration Act is that if an officer knows or reasonably suspects that a non-citizen holds a visa that may be cancelled under section 501BA, the officer may detain the non-citizen citizen (subject to subsection 192(2)). The purpose of this amendment is to ensure consistency with current subsection 192(1), which provides that an officer may detain a non-citizen if the officer knows or reasonably suspects that the non-citizen holds a visa that may be cancelled under section 501 or 501A (among other provisions). 65. The effect of this amendment in relation to subsection 192(4) of the Migration Act is that a non-citizen detained under subsection 192(1) must be released from questioning detention if the officer becomes aware that the non-citizen‟s visa is not one that may be cancelled under section 501BA. The purpose of this amendment is to ensure consistency with current subsection 192(4), which provides that a non-citizen detained under subsection 192(1) must be released from questioning detention if the officer becomes aware that that the non-citizen‟s visa is not one that may be cancelled under section 501 or 501A (among other provisions). Item 8 Subparagraph 193(1)(a)(iv) 66. This item omits "or 501B" from subparagraph 193(1)(a)(iv) in Subdivision A of Division 7 of Part 2 of the Migration Act, and substitutes ", 501B or 501BA". 67. Subparagraph 193(1)(a)(iv) of the Migration Act provides that sections 194 and 195 do not apply to a person detained under subsection 189(1) because of a decision the Minister has made personally under section 501, 501A or 501B to refuse to grant a visa to the person or to cancel a visa that has been granted to the person. 68. Broadly speaking, section 194 of the Migration Act requires an officer to inform a person who has been detained under section 189 of sections 195 and 196. Section 195 sets out the timeframe within which a detainee may apply for a visa and prevents the detainee from applying for a visa other than a bridging visa or a protection visa after that time. Section 196 provides that an unlawful non-citizen must be kept in immigration detention until, relevantly, they are removed from Australia or granted a visa. 69. This effect of this amendment is that a person who has had a visa cancelled by the Minister personally under section 501BA does not need to be informed that they may only apply for a visa within 2 working days after section 194 of the Migration Act was complied with in relation to his or her detention. Further, the person does not need to be
17 made aware of section 196. The policy position is that a person whose visa is cancelled personally by the Minister under section 501BA does not need to be informed of these matters. This is because a person will generally have previously had their visa cancelled by a delegate under subsection 501(3A), and so will have been detained under section 189 and informed of sections 195 and 196 at that point. 70. This item is consistent with the amendment to the Migration Act made by item 18, which amends section 501E to include a reference to decisions made by the Minister personally under section 501BA. This amendment would mean that a non-citizen who has had a visa cancelled by the Minister personally under section 501BA will be unable to apply for a further visa while they remain in the migration zone, except for a protection visa, or a visa specified in the regulations for the purposes of this section (currently a Bridging R (Class WR) visa is specified). Item 9 Subsection 196(4) 71. This item inserts ", 501A, 501B, 501BA or 501F" after "section 501" in subsection 196(4) of Subdivision A of Division 7 of Part 2 of the Migration Act. 72. Current subsection 196(4) of the Migration Act relevantly provides that if a person is detained as a result of the cancellation of their visa under section 501, the detention is to continue unless a court finally determines that the detention is unlawful or that the person is not an unlawful non-citizen. 73. Amended subsection 196(4) of the Migration Act now includes a reference to all the relevant provisions under which a visa can be cancelled on character grounds - that is, section 501A, 501B, 501BA or 501F. This gives effect to the policy intention that a person whose visa has been cancelled on character grounds (whether by a delegate of the Minister, or by the Minister personally under section 501A, 501B or 501BA) is to be kept in immigration detention unless a court finally determines that the detention is unlawful or that the person is not an unlawful non-citizen. Item 10 Paragraph 198(2A)(c) 74. This item inserts "or 501CA" after "section 501C" in paragraph 198(2A)(c) in Subdivision A of Division 8 of Part 2 of the Migration Act. 75. Subsection 198(2A) of the Migration Act sets out one of the situations in which an officer must remove as soon as reasonably practicable an unlawful non-citizen. Broadly speaking, subsection 198(2A) provides for the removal of an unlawful non- citizen who is covered by subparagraph 193(1)(a)(iv), has been invited under section 501C to make representations to the Minister about revocation of a visa cancellation decision under subsection 501(3) or 501A(3) and either did not do so within the timeframe, or did so and the Minister decided not to revoke the cancellation decision. 76. Subparagraph 193(1)(a)(iv) of the Migration Act currently provides that sections 194 and 195 do not apply to a person detained under subsection 189(1) because of a
18 personal decision of the Minister to refuse to grant or to cancel a visa under section 501, 501A or 501B. 77. The effect of this amendment is that subsection 198(2A) of the Migration Act will apply to a non-citizen whose visa has been mandatorily cancelled personally by the Minister under subsection 501(3A), and who is invited by the Minister personally, in accordance with section 501CA, to make representations to the Minister about revocation of a decision to cancel a visa under subsection 501(3A), and who has not made representations in accordance with the invitation and the period for making representations has ended, or who has made such representations and the Minister has decided not to revoke the original decision (where the other limbs of subsection 198(2A) have been met). This ensures a clear removal power for people whose visas are cancelled by the Minister personally under subsection 501(3A) and who are invited by the Minister personally to make representations about that visa cancellation decision under section 501CA. Item 11 After subsection 198(2A) 78. This item inserts new subsection 198(2B) after subsection 198(2A) in Subdivision A of Division 8 of Part 2 of the Migration Act. 79. New subsection 198(2B) of the Migration Act provides that an officer must remove as soon as reasonably practicable an unlawful non-citizen if: a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and since the delegate‟s decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and in a case where the non-citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate‟s decision - either: o the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or o the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate‟s decision. 80. Subsection 501(3A) of the Migration Act provides that the Minister must cancel a visa that has been granted to a person if: the Minister is satisfied that the person does not pass the character test because of the operation of: o paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or o paragraph (6)(e) (sexually based offences involving a child); and
19 the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. 81. New subsection 198(2B) of the Migration Act provides a clear basis for removal from Australia of a non-citizen whose visa has been cancelled by a delegate of the Minister (as opposed to by the Minister personally) under subsection 501(3A), and where the cancellation decision has not been revoked under section 501CA and the non-citizen has not applied for a substantive visa that could be granted while the non-citizen is in the migration zone. The note at the end of the amendment provides the type of visas for which the non-citizen may apply. Item 12 Paragraphs 476(2)(c) and 476A(1)(c) 82. This item omits "or 501C" and substitutes ", 501BA, 501C or 501CA" in paragraphs 476(2)(c) and 476A(1)(c) in Division 2 of Part 8 of the Migration Act. 83. Section 476 of the Migration Act concerns the jurisdiction of the Federal Circuit Court. Current paragraph 476(2)(c) relevantly provides that the Federal Circuit Court has no jurisdiction in relation to a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C. 84. Section 476A of the Migration Act concerns the jurisdiction of the Federal Court. Current paragraph 476A(1)(c) relevantly provides that the Federal Court has original jurisdiction in relation to a migration decision if and only if the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C. 85. This amendment ensures that a decision made personally by the Minister under section 501BA or 501CA is reviewable by the Federal Court rather than by the Federal Circuit Court. This is consistent with all other character decisions made personally by the Minister, which are reviewable by the Federal Court and not the Federal Circuit Court. Items 13 to 17 Subsections 500(6A), (6B), (6C) and (6D) and paragraphs 500(6F)(a), (6G)(a), (6H)(a), (6J)(a), (6K)(a) and (6L)(a) 86. These items insert a reference to a decision under subsection 501CA(4) of the Migration Act not to revoke a decision to cancel a visa into subsections 500(6A), 500(6B), 500(6C) and 500(6D) and paragraphs 500(6F)(a), 500(6G)(a), 500(6H)(a), 500(6J)(a), 500(6K)(a) and 500(6L)(a) in Division 2 of Part 9 of the Migration Act. 87. The provisions that these items amend set out procedural rules relating to the review of decisions under section 501 by the Administrative Appeals Tribunal. These amendments give effect to the policy intention that a decision under section 501CA not to revoke a visa cancellation under subsection 501(3A) should be subject to the same rules that govern review of other decisions under section 501 by the AAT. These include rules
20 that govern the lodgement of documents with the AAT, when the AAT can hold a hearing and when the AAT is taken to have affirmed the decision under review. Item 18 Paragraph 501E(1)(a) 88. This item omits "or 501B" and substitutes ", 501B or 501BA" in paragraph 501E(1)(a) in Division 2 of Part 9 of the Migration Act. 89. Subsection 501E(1) of the Migration Act prevents a person who has had a visa application refused or a visa cancelled under section 501, 501A or 501B from applying for another visa while the person remains in the migration zone, unless that decision was either set aside or revoked before the application time. 90. The effect of this amendment is that a person whose visa has been cancelled by the Minister personally under section 501BA is prevented from making a further visa application while they are in the migration zone. This gives effect to the policy intention that all persons who have had visa applications refused or visas cancelled under any of the character provisions in Part 9 of the Migration Act should be prevented from making a further valid visa application (other than for a protection visa or a visa specified in the regulations) while they remain in the migration zone. Currently a Bridging R (Class WR) visa is specified for the purposes of this provision. Item 19 Subsection 501F(1) 91. This item omits "or 501B" and substitutes ", 501B or 501BA" in subsection 501F(1) in Division 2 of Part 9 of the Migration Act. 92. Section 501F of the Migration Act currently applies if the Minister decides under section 501, 501A or 501B to refuse to grant a visa to a person or to cancel a visa that has been granted to the person. Subsection 501F(2) provides that if the person has made another visa application that has neither been granted nor refused and the visa applied for is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection, the Minister is taken to have decided to refuse that other application. 93. Further, subsection 501F(3) of the Migration Act provides that if the person holds another visa and that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection, the Minister is taken to have decided to cancel that other visa. 94. The effect of this amendment is that if a person‟s visa has been cancelled by the Minister personally under section 501BA of the Migration Act, any application that they have made for a visa (other than for a protection visa or a visa specified in the regulations for the purposes of subsection 501F(2)) is taken to have been refused. Further, any other visa that the person holds is taken to be cancelled, provided it is neither a protection visa nor a visa specified in the regulations for the purposes of subsection 501F(3).
21 95. This amendment gives effect to the policy intention that people who have had their visas cancelled by the Minister personally under section 501BA should be in the same position as other people who have had their visa applications refused or cancelled on character grounds, in relation to their ability to continue to hold a visa and be granted a further visa for which they have applied. Item 20 Paragraph 503(1)(b) 96. This item omits "or 501B" and substitutes ", 501B or 501BA" in paragraph 503(1)(b) in Division 2 of Part 9 of the Migration Act. 97. Paragraph 503(1)(b) of the Migration Act provides that a person in relation to whom a decision has been made under section 501, 501A or 501B is not entitled to enter Australia or be in Australia at any time during the period determined under the regulations. 98. The effect of this amendment is that a person whose visa has been cancelled by the Minister personally under section 501BA is not entitled to enter Australia or be in Australia at any time during the period determined under the regulations. 99. This amendment gives effect to the policy intention that people who have had their visas cancelled by the Minister personally under section 501BA should be in the same position as other people who have had their visa applications refused or visas cancelled under section 501, 501A or 501B, in that they should not be entitled to be in Australia or enter Australia during the period determined by the regulations after the making of such a decision. Item 21 Subsections 503A(1) and (2) and 503B(1) 100. This item omits "or 501C" (wherever occurring) and substitutes ", 501BA, 501C or 501CA" in subsections 503A(1), 503A(2) and 503B(1) in Division 2 of Part 9 of the Migration Act. 101. Broadly speaking, current section 503A of the Migration Act protects the disclosure of confidential information communicated to an authorised migration officer by a gazetted agency that is relevant to the exercise of a power under section 501, 501A, 501B or 501C (other than in certain limited circumstances). 102. This amendment gives effect to the policy intention that confidential information communicated to an authorised migration officer by a gazetted agency that is relevant to the exercise of a power under section 501CA or 501BA receives the same level of protection as the confidential information that is relevant to the exercise of a power under section 501, 501A, 501B or 501C. 103. Subsection 503B(1) of the Migration Act broadly provides that if confidential information is given to the department by a gazetted agency that is relevant to the exercise of a power under section 501, 501A, 501B or 501C, and the information is
22 relevant to proceedings before the Federal Court or the Federal Circuit Court, the Federal Court or the Federal Circuit Court can make orders to ensure that the information is not disclosed to the applicant, their legal representative or any other member of the public. 104. The amendment ensures that confidential information that is relevant to the exercise of a power under section 501CA or 501BA in the context of proceedings before the Federal Court or the Federal Circuit Court potentially receives the same level of protection from disclosure to the applicant in the proceedings, their legal representative or any other member of the public, as confidential information that is relevant to the exercise of a power under section 501, 501A, 501B or 501C. Item 22 Application of amendments 105. Subitem 22(1) provides that the amendments made by items 8, 18 and 19 of this Schedule apply in relation to a decision under section 501BA of the Migration Act made after the commencement of item 22. 106. This means that after the commencement of item 22, a person who has had their visa cancelled by the Minister personally under section 501BA does not need to be informed about sections 195 and 196 of the Migration Act. After the commencement of that item, such a person will also be prevented by section 501E of the Migration Act from making a valid application for a visa while they remain in the migration zone. Further, after the commencement of item 22, any visa held by such a person will be taken to be cancelled, and any visa application they make will be taken to be refused, in accordance with section 501F. 107. Subitem 22(2) provides that the amendment made by item 10 of this Schedule applies in relation to an invitation under section 501CA of the Migration Act given before or after the commencement of item 22. 108. The retrospective application of this item is necessary to put beyond doubt that there is a clear removal pathway for people who have been invited by the Minister personally under subsection 501CA(4) to seek revocation of their subsection 501(3A) cancellation decision before commencement, who made representations and the Minister decided not to revoke the cancellation decision or the person had not made representation in accordance with the invitation and the period for making the representations has ended. 109. Subitem 22(3) provides that new subsection 198(2B) of the Migration Act, as inserted by item 11 of this Schedule, applies in relation to a decision under subsection 501(3A) of that Act made before or after the commencement of item 22 and to an invitation under section 501CA of that Act given before or after that commencement. 110. The retrospective application of this item is necessary to put beyond doubt that there is a clear power to remove people who have been invited by a delegate of the Minister under subsection 501CA(4) of the Migration Act to seek revocation of their subsection 501(3A) cancellation decisions before commencement, who made
23 representations and whose visa cancellation decisions were not revoked or the person had not made representations in accordance with the invitation and the period for making the representations has ended. 111. Subitem 22(4) provides that the amendment made by item 12 of this Schedule applies in relation to a decision under section 501BA or 501CA of the Migration Act made before or after the commencement of item 22. 112. The retrospective application of the amendments to paragraphs 476(2)(c) and 476A(1)(c) will ensure that a decision made personally by the Minister under section 501CA or 501BA before commencement will be reviewable by the Federal Court, rather than by the Federal Circuit Court. This is consistent with the policy position that all people who are the subject of decisions to refuse to grant or to cancel a visa on character grounds that are made by the Minister personally may seek judicial review by the Federal Court rather than the Federal Circuit Court. 113. Subitem 22(5) provides that the amendments made by items 13 to 17 of this Schedule apply in relation to a decision or application made after the commencement of item 22. 114. This means that after commencement, decisions made under subsection 501CA(4) not to revoke a visa cancellation decision under subsection 501(3A) will be subject to the same rules that govern review of decisions by the AAT under other character provisions in Part 9 of the Migration Act. 115. Subitem 22(6) provides that the amendment made by item 20 of this Schedule applies in relation to a decision under section 501BA of the Migration Act made before or after the commencement of item 22. 116. The retrospective application of this item is necessary to ensure that a person whose visa is cancelled personally by the Minister under section 501BA of the Migration Act before commencement is excluded from Australia in the same way as a person whose visa is cancelled personally by the Minister under that provision after commencement. 117. Subitem 22(7) provides that the amendment made by item 21 of this Schedule applies in relation to information communicated before or after the commencement of item 22. 118. The retrospective application of this provision is necessary to ensure the protection of confidential information relevant to the exercise of a power under section 501CA or 501BA of the Migration Act that was given to the department before commencement.
24 SCHEDULE 3--Other amendments of the Migration Act 1958 Migration Act 1958 Part 1 Amendments commencing on 25 September 2014 Item 1 Subsection 48A(1C) 119. This item inserts ", (1AA)" in subsection 48A(1C) after "Subsections (1)" 120. Section 48A creates a bar on further protection visa applications by a person who has had an application for a protection visa (made by them, or on their behalf) refused, or has had a protection visa cancelled while in the migration zone. 121. In SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 (3 July 2013) the Full Federal Court concluded that section 48A, specifically subsection 48A(1), of the Migration Act did not prevent a non-citizen from making a further protection visa application based on a criterion which did not form the basis of a previous unsuccessful protection visa application. This outcome was contrary to the policy intention behind section 48A, and subsection 48A(1C) was inserted as a response to this judgment and was intended to clarify and restore the intended operation of the statutory bar in section 48A of the Migration Act. 122. The intended operation of section 48A, as reflected by the insertion of subsection 48A(1C), was to prevent a non-citizen who has been refused a protection visa, or held a protection visa that was cancelled, from applying for a subsequent protection visa while in the migration zone, irrespective of: the grounds or the criteria on which their application would be made; whether or not the grounds or criteria existed earlier; the grounds or the criteria on which their earlier protection visa application was refused; or the grounds on which the cancelled protection visa was granted or the criteria the non-citizen satisfied for the grant of that visa. 123. Subject to section 48B, subsection 48A(1) bars a person from making a valid application for a protection visa if that person has not left Australia since being refused a protection visa. 124. Subsection 48A(1B) bars a person from making a valid application for a protection visa if they are in Australia and held a protection that was cancelled. 125. Subsection 48A(1C) clarifies that the application bars in subsections 48A(1) and 48A(1B) apply regardless of the factors listed in subsection 48A(1C).
25 126. Currently, subsection 48A(1C) does not reference subsection 48(1AA), which refers to a non-citizen who has been refused a protection visa where the application was made on their behalf. It is clear from the Explanatory Memorandum for the MA Act that no exception was intended; that the intention was that section 48A would bar a further application for a protection visa in all cases where the person was refused a protection visa or had a protection visa cancelled. 127. This amendment ensures that this intention for section 48A is met, by making it explicitly clear that subsection 48A(1C) applies, and has always applied, to persons who are barred under subsection 48(1AA). 128. Subsection 48A(1C) was inserted by the MA Act effective from 28 May 2014, to clarify that the application bars in subsections 48A(1) and (1B) apply regardless of the ground on which the new protection visa application would be made or the criteria which the non-citizen would claim to satisfy, and regardless of the ground on which the earlier refused application was made or the grounds on which the cancelled protection visa was granted. 129. Subsection 48A(1AA) was inserted into the Migration Act by the MLA Act and commenced on 25 September 2014. Subsection 48A(1AA) was inserted to clarify that the application bar in section 48A of the Migration Act applies to all people who, while in the migration zone made a valid application for a protection visa that was refused, regardless of whether they made the application themselves or had the application made on their behalf, and regardless of whether or not they knew of, or understood the nature of, that application because they were a minor at the time it was made, or because they had a mental impairment. 130. Contingent arrangements were not made between the two Bills (that subsequently became the MA Act and the MLA Act), and the need to add a reference to subsection 48A(1AA) in subsection 48A(1C) was overlooked. The policy intention was always that subsection 48A(1C) would apply, in addition to persons covered by subsections 48A(1) and (1B), to persons also covered by subsection 48A(1AA). 131. This amendment inserts a reference to 48A(1AA) into 48A(1C). The effect of this insertion is to clarify that subsection 48A(1AA) applies, regardless of any of the factors listed in subsection 48A(1C). 132. The purpose of this amendment, in conjunction with item 2 of this Part is to ensure that the visa application bar in section 48A operates consistently regardless of whether the initial visa was refused as described in subsection 48A(1) or 48A(1AA) or cancelled as described in subsection 48A(1B).
26 Item 2 Application--amendment of subsection 48A(1C) of the Migration Act 1958 133. This item provides that for the purposes of the application of section 48A of the Migration Act after the commencement of this item, a non-citizen is prevented from making an application for a protection visa after that commencement, because of a refusal referred to in subsection 48(1AA) of that Act, whether the refusal happened before or after that commencement. 134. This application provision duplicates in substance the application provision in subsection 5(1) of Schedule 2 to the MA Act 2014, except that it applies to a refusal described by subsection 48A(1AA) rather than a refusal described by subsection 48A(1) or a cancellation described by subsection 48A(1B). 135. This application provision puts beyond doubt that the effect of the amendment made by item 1 of this Part is that if an application for a protection visa was made on a non-citizen‟s behalf, and the grant of the protection visa was refused while the non- citizen was in the migration zone, then whether or not any of the factors listed in paragraph 48A(1AA)(b) exist, the non-citizen may not make a further application for a protection visa, or have a further application for a protection visa made on their behalf while they are in the migration zone, regardless of when the original application was made. 136. Without this application provision it would be unclear whether subsection 48A(1C) modified the application of subsection 48A(1AA) where the initial refusal was made prior to 25 September 2014. 137. The application provision in subsection 6(2) of the MLA Act ensures that subsection 48A(1AA) applies in relation to: a decision to refuse to grant a protection visa to a non-citizen that is made before the day subsection 6(2) of the MLA Act commenced, if the further application for a protection visa mentioned in subsection 48A(1AA) of the Migration Act is made by or on behalf of the non-citizen on or after that day; and a decision to refuse to grant a protection visa to a non-citizen that is made on or after the day subsection 6(2) of the MLA Act commenced, regardless of when the application for the visa to which the decision relates was made. 138. However, without this provision it would be unclear if the clarification by subsection 48A(1C) of when subsection 48A(1AA) applies (i.e. that subsection 48A(1AA) applies regardless of any of the factors listed in the paragraphs to subsecton 48A(1C)) is in effect where the previous protection visa application was made and/or refused prior to 25 September 2014.
27 139. The purpose of this application provision in conjunction with the amendment made by item 1 of this Part, is to ensure that the visa application bar in section 48A operates consistently regardless of whether the initial visa was refused as described in subsection 48A(1) or 48A(1AA) or cancelled as described in subsection 48A(1B). Part 2--Amendments commencing on the day after Royal Assent Item 3 Subsection 5(1) (note at the end of the definition of fast track decision) 140. This item repeals the note at the end of the definition of fast track decision in subsection 5(1) in Part 1 of the Migration Act and substitutes a new note. The amendment is made in conjunction with the amendment at item 10 of this Schedule, which provides that there is access to review by the Administrative Appeals Tribunal (AAT) under section 500 for some decisions to refuse a protection visa to a fast track applicant. 141. The current note at the end of the definition of fast track decision provides that some decisions made in the circumstances mentioned in paragraph 5(1)(a) or subparagraph 5(1)(b)(i) or 5(1)(b)(iii) of the definition are reviewable by the AAT in accordance with section 500. 142. The new note provides that a fast track decision that is a fast track reviewable decision is reviewable by the Immigration Assessment Authority (IAA). The note also provides that some of the decisions in paragraph 5(1)(a) or 5(1)(b) of the definition of a fast track decision are reviewable by the AAT and refers readers to section 500 of the Migration Act. Section 500 provides for the character and security grounds on which decisions can be reviewed by the AAT. 143. The current note at the end of the definition of fast track decision provides no guidance that under Part 7AA of the Migration Act a fast track decision that is also a fast track reviewable decision is reviewable by the IAA. The purpose of the first sentence of the new note is to clarify when review by the IAA is available. 144. A fast track reviewable decision is defined in section 473BB of Division 1 of Part 7AA of the Migration Act as a fast track decision in relation to a fast track review applicant or a fast track decision determined under section 473BC but does not include a fast track decision in relation to which the Minister has issued a conclusive certificate under section 473BD. 145. As reflected by the first sentence of the new note, section 473CA of Division 2 of Part 7AA of the Migration Act provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. 146. The current note at the end of the definition of fast track decision makes reference to decisions in paragraphs 5(1)(a) and 5(1)(b) of that definition that may be reviewed by the AAT under section 500. The decisions under paragraphs 5(1)(a) and
28 5(1)(b), based on character and security grounds, are excluded from being a fast track decision and so are not reviewable by the IAA. 147. The current note was inserted as the intention of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Legacy Act), as discussed below at item 10, was that decisions in paragraphs 5(1)(a) and 5(1)(b) that meet the requirements of section 500 would be able to make an application for review by the AAT under subsection 500(1). 148. One of the decisions where it was intended that an application for review may be possible under section 500 is a decision to refuse to grant a protection visa to a fast track applicant relying on subsection 36(1C) (relating to danger to Australia‟s security and, following conviction of a particularly serious crime, danger to the Australian community). The current note at the end of the definition of fast track decision which this item repeals does not capture a decision relying on subsection 36(1C). 149. The second sentence of the new note ensures that subsection 36(1C) decisions are captured by the reference to some excluded decisions in paragraph 5(1)(a) or 5(1)(b) of the definition of a fast track decision being reviewable by the AAT under section 500 of the Migration Act. Item 4 Subsection 38B(5) 150. This item omits "subsection (4)" wherever occurring in subsection 38B(5) and substitutes "subsection (3)" This is a small technical amendment to correct a referencing error in subsection 38B(5). 151. Current subsection 38B(5) refers to a declaration made under subsection 38B(4). The note to subsection 38B(5) also refers to a declaration made under subsection 38B(4). Subsection 38B(4) does not provide a power for a declaration to be made but does reference a declaration made under subsection 38B(3). Subsection 38B(3) does relevantly provide that the Minister may make a written declaration. 152. This amendment will correct both the reference to a declaration in subsection 38B(5) and the note to that subsection. As it is clear on the face of the current legislation what is meant by the erroneous reference, the slip rule will have applied to correct this error since its enactment, meaning the text of the law will be taken to have been correct, despite the error. The purpose of this amendment is solely to ensure that the text of the legislation accords with how it would be interpreted. It does not change the substantive content of the law. Item 5 Subsection 68(4) 153. This item omits the words "effect again" from subsection 68(4) and substitutes "effect for the first time or a subsequent time".
29 154. This item is consequential to the amendment made by item 6 of this Schedule. As a result of that amendment, it will be possible for a bridging visa to be taken to cease to be in effect under subsection 82(3) (as a result of a substantive visa coming into effect), whether or not that bridging visa is in effect. It is intended that a bridging visa that has ceased to be in effect or has been taken to cease to be in effect as a result of subsection 82(3) will come into effect as a result of subsection 68(4) whether or not it has previously been in effect. 155. This amendment clarifies that even a bridging visa that has never been in effect can come into effect as a result of subsection 68(4). Most bridging visas are intended to „bridge‟ the period of time before a person is granted a substantive visa, so that the person does not become unlawful only because they are waiting for a decision on an application to be made. This amendment preserves that intention for bridging visas that are not yet in effect. 156. As an example, a non-citizen holds a Subclass 573 (Higher Education Sector) visa and simultaneously applies for both a Subclass 485 (Temporary Graduate) visa, and a Subclass 820 (Partner) visa. They are granted two dormant Subclass 010 (Bridging A) visas, one for each application. Neither bridging visa comes into effect on grant due to the applicant holding a substantive visa, i.e. the Subclass 573 (Higher Education Sector) visa. 157. A decision is made to grant the applicant the Subclass 485 (Temporary Graduate) visa, but no decision is made on the Subclass 820 (Partner) visa application. As a result of the Subclass 485 visa grant, the Subclass 573 (Higher Education Sector) visa will cease due to a subsection 82(2) ceasing event. 158. Due to new section 82A, inserted by item 6 of this Schedule, both dormant bridging visas will be taken to cease, but for different reasons. The bridging visa granted in association with the Subclass 485 (Temporary Graduate) visa application will cease because a „specified event‟ (that is, the grant of the associated Subclass 485 (Temporary Graduate) visa) referred to in subsection 82(7A) has occurred. The bridging visa granted in association with the Subclass 820 (Partner) visa application will cease due to another substantive visa coming into effect (a subsection 82(3) ceasing event). 159. Later, the Subclass 485 (Temporary Graduate) visa expires and as a result, ceases. At this point the bridging visa that was granted in association with the Subclass 820 (Partner) visa will, as a result of amended subsection 68(4), come into effect despite never having been in effect previously and despite having been „ceased‟ previously by the grant of the Subclass 485 (Temporary Graduate) visa. Item 6 Section 82A 160. This item inserts new section 82A into the Migration Act. New section 82A provides that if: a non-citizen holds a visa at a particular time; and
30 the visa is not in effect at that time; and if the visa were in effect at that time, the visa would cease to be in effect under section 82 (other than subsection 82(8)), 173 or 174; then the visa is taken to have ceased to be in effect under that section at that time. 161. This amendment relates to when a visa is and is not in effect, and the effect of ceasing events on visas that are and are not in effect. When a visa is in effect 162. Most visas come into effect as soon as they are granted under subsection 68(1) of the Migration Act and will remain in effect until a ceasing event occurs. Usually that ceasing event will be one of the scenarios provided for under section 82, but there are other sections of the Migration Act which contain ceasing events, including sections 173 and 174. The usual effect of a visa ceasing to be in effect due to a ceasing event is that the visa will no longer be held by the person (i.e. the visa period of the visa will cease). 163. There is an exception for bridging visas that cease due to the ceasing event provided by subsection 82(3). That is, while these visas will no longer be in effect under subsection 82(3), their visa period does not cease, and they are still held by the person, and can be reactivated. When a visa is dormant 164. There are certain circumstances where a visa may be held but may not be in effect (dormant). 165. For example, under subsection 68(2) some visas can be granted so that they do not come into effect when they are granted, but instead come into effect on a later day specified in the visa or when a specified event happens. At the time of drafting, a visa of this type will usually either be a bridging visa or a Subclass 601 (Electronic Travel Authority) visa, but it is also possible for Subclass 600 (Visitor) and Subclass 773 (Border) visas to be granted but not come into effect immediately. 166. Further, a bridging visa that is in effect will become dormant if it ceases under subsection 82(3). Subsection 82(3) provides that a bridging visa held by a non-citizen ceases to be in effect if another visa (other than a special purpose visa or a maritime crew visa) comes into effect. This is due to subsection 68(4) of the Migration Act, which allows a bridging visa that has ceased to be in effect under subsection 82(3) to come into effect again. Normally when a visa ceases to be in effect the visa period of that visa ends so the visa is no longer held by the person. However paragraph (b) of the definition of visa period in subsection 5(1) of the Migration Act contains an exception for a bridging visa that ceases to be in effect under subsection 82(3), so the bridging visa will become dormant instead.
31 The effect of a ceasing event 167. When a visa is „in effect‟, a ceasing event (other than the ceasing event in subsection 82(3)) will cause it to cease to be „in effect‟, which effectively ends the visa period and means that visa is no longer held by the person. However, because of the language „ceases to be in effect‟, the Administrative Appeals Tribunal has interpreted the ceasing event in subsection 82(8) to not apply to a visa which is held but not „in effect‟ (dormant) as the visa could not „cease to be in effect‟ if the visa were not „in effect‟. 168. The purpose of new section 82A is to clarify that a ceasing event other than the event provided for by subsection 82(8), as applied to a visa, will have the effect of ending the visa period of that visa, meaning that the person will no longer hold that visa, even if that visa is not in effect (dormant) when the ceasing event occurs. 169. Additionally, this item inserts a note after new section 82A that explains that the visa period for a visa begins when the visa is granted and a non-citizen holds the visa until the visa period ends. However, some visas (such as bridging visas) do not come into effect at the time of grant (see section 68). If new section 82A applies, then the visa period for a visa that is held by a non-citizen, but that is not in effect, ends (except if the visa is taken to have ceased to be in effect under subsection 82(3)). 170. The intention of this amendment is to clarify that all but one of the listed ceasing events (section 82(8)) will cause a dormant visa to be taken to have ceased to be in effect, despite the visa not being in effect when the ceasing event happens. As a result (except in the case of the subsection 82(3) ceasing event) of the cessation, the visa period of the dormant visa will end, and the visa will never come into effect. 171. While there are other ceasing events in the Migration Act only the ceasing events in sections 82, 173 and 174 could apply to dormant visas. For example, a maritime crew visa can never be dormant, so subsection 38B(4), which provides ceasing events only applicable to a maritime crew visa, could not apply to a dormant visa. 172. For example: A non-citizen holds a Subclass 573 (Higher Education Sector) visa (the first visa). Interested in extending their stay in Australia beyond the end of their studies, the non-citizen applies for a Subclass 485 (Temporary Graduate) visa. As a result of that application the non-citizen is granted a Subclass 010 (Bridging A) visa. The bridging visa is dormant, but under subparagraph 010.511(a)(ii) of Schedule 2 to the Migration Regulations 1994 (the Migration Regulations) it will come into effect when the Subclass 573 (Higher Education Sector) visa ceases. 173. The non-citizen is then notified that a decision has been made to refuse to grant them a Subclass 485 (Temporary Graduate) visa, they do not apply for merits review of that decision. Twenty eight days later the dormant Subclass 010 (Bridging A) visa will be taken to cease as a result of subsection 82(7A) (the relevant specified event being in subparagraph 010.511(b)(ii) of Schedule 2 to the Migration Regulations - the refusal of the associated substantive visa) despite being dormant at the time of the ceasing event.
32 The Subclass 573 (Higher Education Sector) visa will not cease as the ceasing event provided for in subsection 82(7A) only applies to a bridging visa. 174. As another example, the same non-citizen in the scenario above makes the application for the Subclass 485 (Temporary Graduate) visa. They then take an overseas holiday and return to Australia. On their return to Australia, they refuse to provide any evidence of their identity while in immigration clearance (i.e. they do not comply with section 166). In this case, both the dormant Subclass 010 (Bridging A) Visa and the „in effect‟ Subclass 573 (Higher Education Sector) visa will cease, as the relevant ceasing event provided by section 174 of the Migration Act applies to all visas. Subsection 82(8) exception 175. As an exception to the general rule, the ceasing event described in subsection 82(8) will not affect a dormant visa to remain in, but not re-enter, Australia. This effectively means that a person who travels out of Australia holding an in-effect visa that allows them to return to Australia will not lose any dormant visas to only remain in Australia that they may hold (such as a bridging visa that has been granted to them in association with an undecided application for another substantive visa). This is because if a person legitimately travels out of Australia on a visa that allows them to leave and re- enter Australia and returns, there is no utility in their dormant visas ceasing. Rather, the policy intention is that the dormant visa should remain held by the person, so that if a decision is not made on the undecided application when the person‟s substantive visa ceases following their return to Australia, the dormant visa will come into effect to maintain the person‟s lawful status until a decision is made on the outstanding application. 176. The creation of this exception allowing a dormant visa to remain in, but not re- enter, Australia to still be held despite the holder‟s departure (and subsequent return) on another substantive visa is of considerable advantage to the person and significantly reduces the administrative burden that might otherwise be created in resolving the person‟s immigration status if a decision on any outstanding application is not made in a timely manner. 177. For example, a person holds a Subclass 573 (Higher Education Sector) visa and has applied for a Subclass 485 (Temporary Graduate) visa. As a result of that application they have been granted a dormant Subclass 010 (Bridging A) visa. During the semester break, the person returns home to see family and then returns to Australia to complete their study. At the end of the year, the Subclass 573 (Higher Education Sector) visa ceases, but a decision has not yet been made on the Subclass 485 (Temporary Graduate) visa. If the exception to section 82A for a section 82(8) ceasing event did not exist, the person would find themselves unlawfully in Australia, solely because they had taken a holiday out of Australia months before. They may not be aware of their unlawful status, and could find themselves disadvantaged in future visa or citizenship applications.
33 178. While it would be possible to instead grant another visa (e.g. another visa to remain in but not re-enter Australia) to such a person, it is simpler for the person, and simpler administratively, if a dormant visa to remain in but not re-enter Australia does not cease due to an applicant leaving Australia. 179. As a result of this exception, there will be less impact on an affected non-citizen, as there will be no risk of them becoming unintentionally unlawful this way, and no need for them to submit repeat visa applications after returning to Australia. 180. On the other hand, this amendment is not intended to alter the effect of the current law that provides that if a non-citizen travels out of Australia, and as a result of that travel or otherwise, their substantive visa ceases and they no longer hold a visa that allows them to travel to and enter Australia, then any dormant visa that permits the person to remain in, but not re-enter, Australia would come into effect and then immediately cease under section 82(8). This is because being a visa to remain in, but not re-enter, Australia, the visa can no longer operate if it comes into effect outside Australia. It is only when a person maintains the capacity to re-enter Australia due to a different visa coming into effect (e.g. if they also held a dormant Subclass 020 (Bridging B) visa which is a visa to remain in, travel to and enter Australia), that their dormant visa to remain in but not re- enter Australia would not cease. 181. Therefore, if the Subclass 573 (Higher Education Sector) visa holder in the above example has had their return to Australia delayed, and the Subclass 573 (Higher Education Sector) visa ceases while they are outside Australia, any dormant visa to remain in, but not re-enter, Australia that they held would also come into effect and then immediately cease after the Subclass 573 (Higher Education Sector) visa ceases. Items 7 and 8 At the end of subsection 173(1), at the end of section 174 182. These two items each add a note at the relevant place; the notes state that for visas that are not in effect, see section 82A. 183. Subsection 173(1) and section 174 each provide a circumstance in which a visa will cease to be in effect. Broadly speaking, these are situations where a visa holder enters Australia in a way not permitted, or if a visa holder does not comply with immigration clearance requirements. Section 82A relevantly provides that a visa that is held and that is not in effect, but had the visa been in effect it would cease to be in effect under 173 or 174, then the visa is taken to have ceased to be in effect under that section at that time. 184. In other words, section 82A will mean that the ceasing events contained in subsection 173(1) and section 174 will cause the visa period of a dormant visa to end. 185. These notes signpost that due to section 82A, subsections 173(1) or section 174 may be applicable despite the visa not being in effect. The notes are intended for
34 information only and are not intended to have any additional effect beyond referencing section 82A. Item 9 Subsection 500(1) (note) 186. This item repeals the note at the end of subsection 500(1) in Division 2 of Part 9 of the Migration Act. 187. The purpose of this amendment is to avoid confusion and remove duplication regarding when a decision to refuse to grant a protection visa to a fast track applicant may be reviewed under section 500 of the Migration Act. 188. The current note provides that decisions to refuse to grant a protection visa to fast track applicants are generally not reviewable by the AAT. However some decisions of that kind are reviewable by the AAT in the circumstances mentioned in paragraph 5(1)(a), subparagraph 5(1)(b)(i) or 5(1)(b)(iii) of the definition of fast track decision in Part 1 of the Migration Act. 189. The note is repealed as subsection 500(1), in conjunction with new subsection 500(3A) in item 10 of this Schedule, clearly provides when a decision to refuse to grant a protection visa to a fast track applicant is reviewable under section 500 of the Migration Act. Clarity is also provided by the new note at the end of the definition of a fast track decision inserted by item 3 of this Schedule. 190. The note is repealed to avoid confusion as to when the AAT may review a decision to refuse to grant a protection visa to a fast track applicant. The Tribunals Amalgamation Act 2015 (Amalgamation Act) amended subsection 473JA(1) of the Migration Act on 1 July 2015 to provide that the IAA is established within the Migration and Refugee Division of the AAT. 191. The IAA had previously been established as a separate office within the Refugee Review Tribunal (RRT), which was at the time separate to the AAT. The Amalgamation Act established the Migration and Refugee Division of the AAT, into which the RRT and the IAA were amalgamated (along with the Migration Review Tribunal). As such, it is no longer correct to state that decisions to refuse to grant a protection visa to fast track applicants are generally not reviewable by the AAT. Item 10 After subsection 500(3) 192. This item inserts subsection 500(3A) in Division 2 of Part 9 of the Migration Act. 193. New subsection 500(3A) specifies when subsection 500(3) does not apply to an application for review of a decision under subsection 500(1) to the AAT. Those decisions are: a decision of a delegate of the Minister under section 501 to refuse to grant a protection visa to a fast track applicant; or
35 a decision (other than a decision to which a certificate under section 502 applies) to refuse under section 65 to grant a protection visa to a fast track applicant relying on a provision mentioned in paragraph 500(1)(c). 194. Subsection 500(1) provides the circumstances for when an application may be made to the AAT for review of a decision that relates to character or security grounds. However, subsection 500(3) of the Migration Act provides a further criterion for when a person may make an application for review under subsection 500(1). 195. The effect of subsection 500(3) for the refusal of a protection visa is that a person cannot make an application under subsection 500(1) for review on grounds under paragraph 500(1)(b) or 500(1)(c) unless they could seek review under Part 5 or Part 7 of the Migration Act if the decision to refuse the protection visa had been made on grounds other than those referred to in paragraph 500(1)(b) or 500(1)(c). 196. The Legacy Act amended the Migration Act to include the defined class of persons known as a fast track applicant in subsection 5(1) of Part 1 of the Migration Act. The intention was that a fast track applicant who had a protection visa application refused on certain character or security grounds included at paragraph 5(1)(a) and 5(1)(b) of the definition of fast track decision, would be able to access review by the AAT as permitted by section 500. 197. The effect of subsection 500(3), however, prevents a fast track applicant who had a protection visa application refused on certain character or security grounds from being able to access review of a decision referred to in paragraph 500(1)(b) or 500(1)(c). This is because if the decision to refuse the protection visa to a fast track applicant is made on grounds other than certain character or security grounds it will be a fast track decision. A fast track decision is unable to be reviewed under Part 5 or Part 7 of the Migration Act but can be reviewed by the IAA if it is also a fast track reviewable decision under Part 7AA of the Migration Act. 198. As a result, review under paragraph 500(1)(b) or 500(1)(c) of the Migration Act is not currently possible for a fast track applicant refused a protection visa as they will be unable to meet the requirements of subsection 500(3). 199. The effect of the amendment under this item is that subsection 500(3) does not prevent a fast track applicant refused a protection visa from making an application to the AAT to review a decision referred to in paragraph 500(1)(b) or (c). Item 11 Application--subsection 500(3A) of the Migration Act 1958 200. This item provides that subsection 500(3A) in Division 2 of Part 9 of the Migration Act applies to a decision made after the commencement of this item. 201. This means that after the commencement of this item, subsection 500(3) does not apply to an application made to the AAT under subsection 500(1) for review of:
36 a decision of a delegate of the Minister under section 501 to refuse to grant a protection visa to a fast track applicant; or a decision (other than a decision to which a certificate under section 502 applies) to refuse under section 65 to grant a protection visa to a fast track applicant relying on a provision mentioned in paragraph 500(1)(c).
37 SCHEDULE 4--Amendments relating to maritime powers Maritime Powers Act 2013 Item 1 Section 40 202. This item changes existing section 40 into new subsection 40(1) by inserting "(1)" at the beginning of the section. This is a technical amendment that is consequential to the addition of new subsections 40(2) and 40(3), below. Item 2 At the end of section 40 203. This item inserts new subsections 40(2) and 40(3) at the end of section 40. 204. Section 8 of the Maritime Powers Act defines a „country‟ to include the territorial sea and archipelagic waters of the country. Section 40 as currently drafted prevents the exercise of powers under the Maritime Powers Act at a place in another country except in defined circumstances. Section 40 could be interpreted as preventing the exercise of powers under the Maritime Powers Act in waters within another „country‟ in circumstances where, under the Convention, it would be permissible to exercise those powers, for example when a vessel is in the course of „transit passage‟ through an international strait. The amendments confirm that powers under the Maritime Powers Act can be exercised in those circumstances. 205. New subsection 40(2) provides that subsection 40(1) does not apply to an exercise of powers if the circumstances in paragraphs 40(2)(a) and (b) exist. These circumstances are that: the exercise of powers: o is part of a continuous exercise of powers that commenced in accordance with any applicable requirements of Part 2 (disregarding new subsection (2)); and o occurs in the course of passage of a vessel or aircraft through or above waters that are part of a country; and a relevant maritime officer, or the Minister, considers that the passage is in accordance with the Convention. 206. The intention behind section 40 is to ensure that powers are exercised under the Maritime Powers Act in a manner consistent with the principle of territorial sovereignty at international law. Thus the use of enforcement powers within another country normally would require some form of agreement by that country. However, the section did not explicitly allow for the exercise of powers in the course of passage through and over waters within another country already permitted under international law, as reflected in the Convention. Examples of such passage include a vessel in the course of innocent passage, transit passage or archipelagic sea lanes passage. In those circumstances, under international law, no further agreement or approval by the coastal state is required
38 207. The purpose of the amendment is to confirm the operation of the Maritime Powers Act in circumstances where vessels and aircraft are considered to be exercising passage rights consistent with the Convention. 208. As outlined above, there are two limbs to new subsection 40(2). 209. The first limb, in paragraph 40(2)(a), has two requirements, namely, that the exercise of powers: is part of a continuous exercise of powers that commenced in accordance with any applicable requirements of Part 2 (disregarding new subsection (2)); and occurs in the course of passage of a vessel or aircraft through or above waters that are part of a country. 210. The second limb to new subsection 40(2) is in new paragraph 40(2)(b). This limb requires that a relevant maritime officer, or the Minister, considers that the passage is in accordance with the Convention. 211. Under the Maritime Powers Act, a continuous exercise of powers is generally contingent on an authorisation by an authorising officer, and a subsequent exercise of powers by a maritime officer within the appropriate geographical area. An authorisation is spent when the continuous exercise of powers under the authorisation ends. A continuous exercise of powers does not end only because there is a period of time between the exercise of one or more of those powers. 212. The „continuous exercise of powers‟ referred to in the first limb of new subsection 40(2), is explained in section 11 of the Maritime Powers Act. 213. Under the second limb of new subsection 40(2), in paragraph (b), either a relevant maritime officer or the Minister must consider that the passage is in accordance with the Convention. 214. A "relevant" maritime officer would not be confined to just the commander of the vessel, but could also apply in relation to more senior maritime officers who have knowledge, involvement in, or command over the operations. 215. In order to exercise powers in the course of passage through or above the waters of another country the relevant maritime officer must consider that passage to be in accordance with the Convention, 216. On some occasions, the Minister may provide a direction or guidance in relation to the exercise of powers. In these instances, it may be appropriate that the Minister considers consistency with the Convention. The Minister may reduce this consideration to writing by way of directions issued under section 75F, or through other mechanisms. This is highlighted by Note 2 to subsection 40(2).
39 217. Two notes are included at the end of subsection 40(2). 218. Note 1 refers to the definition of country in section 8 and highlights that the territorial sea and archipelagic waters of a country form part of that country. 219. Note 2 refers to the fact that the Minister‟s consideration of the passage of a particular vessel or aircraft through or above waters that are part of a country is in accordance with the Convention may be apparent from the terms of a direction given under section 75F. Section 75F provides for the Minister to give directions about the exercise of powers in sections 69, 69A, 71, 72 and 72A of the Maritime Powers Act. 220. New subsection 40(3) provides that an exercise of powers in reliance (or purported reliance) on subsection (2) is not invalid by reason of a defective consideration of the Convention. 221. Where the operation of subsection 40(2) is dependent on the opinion of a relevant maritime officer by virtue of paragraph 40(2)(b), there is recognition that this opinion will be the bona fide view of the maritime officer that the passage is in accordance with the Convention. Subsection 40(3) reflects a possibility that, on occasion, an officer though giving due consideration to the matter, comes to an incorrect conclusion. 222. Subsection 40(3) therefore preserves the lawfulness of the activity under domestic law in the case where there is a defective consideration of the Convention. Item 3 Application-amendments of the Maritime Powers Act 2013 223. This item provides that the amendments made by this Schedule apply in relation to the exercise of powers under the Maritime Powers Act after commencement of the Schedule, even if: the authorisation for the exercise of the powers was given under Division 2 of Part 2 of that Act before that commencement; or the powers are exercised in the course of a continuous exercise of powers that started before that commencement; or the powers are exercised in relation to a person, vessel or aircraft who or that started to be detained, or otherwise held, under Division 7 or 8 of Part 3 of the Maritime Powers Act before that commencement; or the powers are exercised in any other situation in relation to which powers were (or could have been) exercised under that Act before that commencement. 224. The amendments of the Maritime Powers Act made by this Schedule do not, by implication, affect the interpretation of that Act, as in force before the commencement of this Schedule, in relation to the exercise of powers under that Act before that commencement.
Attachment A STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 Migration and Maritime Powers Amendment Bill (No.1) 2015 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 and Maritime Powers Amendment Bill (No.1) 2015 (the Bill) amends the Migration Act 1958 (the Migration Act) to: ensure that when an unlawful non-citizen is in the process of being removed to another country under section 198 and the removal is aborted, or the removal is completed but the person does not enter the other country, and as a direct result the person is returned to Australia, then that person has a lawful basis to return to Australia without a visa; ensure that when such a person does return to Australia without a visa, the person will be taken to have been continuously in the migration zone for the purposes of sections 48 and 48A of the Migration Act which bar the person from making a valid application for certain visas; clarify and ensure that a fast track applicant who is refused a protection visa on certain character or security related grounds is able to make an application for review of the decision at the Administrative Appeals Tribunal; improve coherency and consistency in the character related provision of the Migration Act, following the amendments made by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (the Character Act); provide that the events described in sections 82, 173 and 174 of the Migration Act that cause a visa that is in effect to cease will, as a general rule, cause a visa that is held, but not in effect, to be taken to cease. As an exception to this general rule, a visa that is not in effect will not be taken to cease as a result of the holder leaving Australia; and insert a reference to subsection 48A(1AA) in subsection 48A(1C), to clarify that a person who has previously been refused a protection visa application that was made on their behalf (e.g. because they were a minor at the time), cannot make a further protection visa application, irrespective of the ground on which the further protection visa application would be made or the criteria which the person would claim to satisfy, and irrespective of the grounds on which the previous protection visa application was made. The Bill also amends the Maritime Powers Act 2013 (the Maritime Powers Act) to confirm that powers under the Maritime Powers Act are able to be exercised in the course of passage through or above the waters of another country in a manner consistent with the 1982 United Nations Convention on the Law of the Sea. Due to the mostly unconnected nature of these measures, for the purposes of this statement of compatibility the first two measures are taken together and each of the other measures is assessed individually and set out below.
SCHEDULE 1--Amendments relating to removal Overview of the Schedule Due to the limitations of current provisions under section 42, 48 and 48A of the Migration Act 1958 (the Migration Act), complications can arise during removal operations where the removal of an unlawful non-citizen from Australia cannot be completed, or is completed but the removed person does not enter the destination country. Currently, if an attempt to remove an unlawful non-citizen from Australia under section 198 of the Migration Act is made, and the unlawful non-citizen is returned to Australia for reasons other than being refused entry by the destination country (as per current paragraph 42(2A)(d)) - for example, a decision is made to cancel the removal during transit, on return to Australia, because the non-citizen will have left the migration zone, any bar on the applicant applying for further certain visas under sections 48 and 48A of the Migration Act will no longer apply to that non-citizen. Section 42 of the Migration Act broadly sets out detail regarding the circumstances in which a non- citizen is required to hold a visa for travel to Australia. Subsection 42(1) of the Migration Act specifies that, subject to subsections 42(2), (2A) and (3), a non-citizen must not travel to Australia without a visa that is in effect. Relevantly, current paragraph 42(2A)(d) states that subsection 42(1) does not apply to a non-citizen in relation to travel to Australia if the non-citizen has been removed under section 198 to another country but has been refused entry by the country, and the non-citizen travels to Australia as a direct result of that refusal, and the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen. New paragraphs 42(2A)(d) and (da) will ensure that subsection 42(1) does not apply to certain non- citizens whose removal from Australia under section 198 of the Migration Act has been aborted, which means that the non-citizen is able to return to Australia without a visa if there is a need to cancel a removal at any stage between the non-citizen leaving the migration zone and the non- citizen entering the destination country. Section 48 of the Migration Act broadly sets out detail regarding the visas for which non-citizens in the migration zone who have been refused a visa or whose visa has been cancelled, may apply. Current subsection 48(2) states that for the purposes of the section, which only applies in respect of applications made while a non-citizen is in the migration zone, a non-citizen who has been removed from the migration zone under section 198 of the Migration Act and is again in the migration zone as a result of travel to Australia that is covered by paragraphs 42(2A)(d) or (e), is taken to have been continuously in the migration zone despite the attempted removal. Currently there is no reference at paragraph 42(2A)(d) to non-citizens whose removal has been aborted in transit to the destination country, meaning that, for the purposes of section 48 and 48A of the Migration Act, the non-citizen is not taken to have been continuously in the migration zone. The result is that the non-citizen is taken to have left the migration zone and is therefore not restricted by section 48 and 48A in the visa(s) for which they may apply. New subsection 48(1B) and amended paragraph 48(2)(b) will, respectively, apply to a non-citizen who is again in the migration zone as a result of travel to Australia that is covered by new paragraphs 42(2A)(d) and 42(2A)(da), so that a person who returns to Australia as a result of travel covered by either of those paragraphs will be taken to have been continuously in the migration zone. Similarly, current paragraph 48A(1A)(b) cross-references paragraph 42(2A)(d) to the same effect. Amended paragraph 48A(1A)(b) and new subsection 48A(1AB) will ensure that the bar on visa applications at section 48A applies to non-citizens who return to Australia between the time they leave Australia and the time they enter the destination country in the same way as it currently applies to non-citizens whose entry has been refused by the country of destination. Amended
paragraph 48A(1A)(b) and new subsection 48A(1AB) will, respectively, apply to a non-citizen who is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or paragraph 42(2A)(da) and so a non-citizen who returns to Australia as a result of travel covered by either of those paragraphs will be taken to have been continuously in the migration zone for the purpose of section 48A despite the removal. This amendment will correct the unintended operation of law that leads to non-citizens removed from Australia under section 198 of the Migration Act being treated differently under law depending on the reason that they returned to Australia. The intention of the amendment to subsection 42(2A) of the Migration Act is to ensure that non-citizens in relation to whom removal under section 198 of the Migration Act is intended, but who return to Australia before entering the destination country, can return to Australia without a visa, and if they do, ensure that the bars against further visa applications in sections 48 and 48A remain applicable despite the removal. Human Rights Implications Freedom from arbitrary detention Article 9 of the International Covenant on Civil and Political Rights (ICCPR) relevantly provides that no-one shall be subjected to arbitrary or unlawful detention. The proposed amendments engage this right by requiring the detention (under section 189 of the Migration Act) of unlawful non- citizens who are returned to Australia following an attempted removal under section 198 of the Migration Act. Australia takes its obligations to non-citizens in immigration detention very seriously. The Australian Government‟s position is that the detention of individuals is neither unlawful nor arbitrary per se under international law. Continuing detention may become arbitrary after a certain period of time without proper justification. The determining factor, however, is not the length of detention, but whether the grounds for the detention are justifiable. In the context of Article 9, detention that is not „arbitrary‟ must have a legitimate purpose within the framework of the ICCPR in its entirety. Detention must be predictable in the sense of the rule of law (it must not be capricious) and it must be reasonable (or proportional) in relation to the purpose to be achieved. While this Bill widens the scope of non-citizens who will be ineligible to apply for a visa and subsequently liable for detention under the Migration Act, they present a reasonable response to achieving a legitimate purpose under the ICCPR, being the safety of the Australian community and integrity of the migration programme. Further, the re-detention of unlawful non-citizens who are brought back to the migration zone will also be for the legitimate purpose of completing their removal from Australia under section 198 of the Migration Act. Removal of unlawful non-citizens from Australia Australia has obligations under the ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) not to return a person to a certain country in certain circumstances. Due to the proposed amendments to section 48A of the Migration Act, this Bill may lead to an unlawful non-citizen being ineligible to make a further application for a protection visa, however, Australia‟s implementation of the below obligations are complemented by the ability of the Minister of Immigration and Border Protection (the Minister) to exercise his or her non-compellable powers under the Migration Act to grant a visa. Article 3(1) 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.
Articles 6 and 7 of the ICCPR also impose on Australia an implied non refoulement obligation. Article 6 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. My department recognises that these non-refoulement obligations are absolute and does not seek to resile from or limit Australia‟s obligations. However, the form of administrative arrangements in place to support Australia meeting its non-refoulement obligations is a matter for the Government. The amendments outlined in this Bill do not engage Australia‟s non-refoulement obligations because the obligations - if applicable - will have been assessed prior to the non-citizen‟s attempted removal from Australia. Conclusion This Schedule is compatible with the applicable rights or freedoms identified above.
SCHEDULE 2--Amendments relating to the cancellation of visas on character grounds Overview of the Schedule The amendments proposed in this Bill are technical and consequential amendments arising out of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (the Character Act). The amendments made to the Migration Act 1958 (the Migration Act) by the Character Act commenced on 11 December 2014. Among other things, the Character Act introduced subsection 501(3A) into the Migration Act, which provides for the mandatory cancellation of visas held by non-citizens in prison who do not pass certain limbs of the character test (specifically, because they have a substantial criminal record on the basis of being sentenced to death, sentenced to imprisonment for life or sentenced to a term of imprisonment of 12 months or more, or they have been convicted of, found guilty of, or found a charge proved against them for, a sexually-based offence involving a child). As soon as practicable after making that cancellation decision, the Minister or the Minister‟s delegate must relevantly give the former visa holder a written notice setting out the decision and invite the person to make representations about revocation of the decision (501CA(3)). Following the cancellation of a visa under subsection 501(3A) of the Migration Act, if the former visa holder makes representations in accordance with the invitation under section 501CA, the Minister or the Minister‟s delegate can revoke the cancellation decision if satisfied that the non- citizen passes the character test or there is another reason why the original cancellation decision should be revoked. A decision by a delegate under section 501CA not to revoke the cancellation decision is reviewable by the Administrative Appeals Tribunal (the AAT). Section 501BA of the Migration Act was inserted by the Character Act to allow the Minister to personally set aside, in the national interest, a decision made by a delegate or the AAT under section 501CA to revoke a decision to cancel a visa under subsection 501(3A). This provision was inserted into the Migration Act to ensure consistency with the Minister‟s other personal powers across the character provisions. The consequential amendments set out in this Bill give full effect to the substantive amendments made to the Migration Act by the Character Act by: amending the meaning of character concern at section 5(C)(1) and (2) of the Migration Act to reflect the character test as set out in subsection 501(6) of the Migration Act; including a reference to section 501BA in subparagraph 118(f) of the Migration Act, ensuring that this power is not limited by any other general or character cancellation powers; including a reference to section 501BA of the Migration Act in subparagraphs 191(2)(d), 192(1) and 192(4). This will ensure that detention powers and end of detention provisions for non-citizens who have their visa cancelled under section 501BA of the Migration Act, are consistent with those for non-citizens whose visas are cancelled under section 501 or 501A; including a reference to a decision made by the Minister under section 501BA of the Migration Act in subparagraph 193(1)(a)(iv). This will ensure that a non-citizen detained under subsection 189(1) because of a decision made personally by the Minister under section 501BA to cancel a visa does not need to be informed that they may only apply for a visa within two working days after section 194 of the Migration Act was complied with in relation to his or her detention. This is consistent with the arrangement when a non-citizen is detained following the Minister‟s personal decision under sections 501 and 501A;
inserting a reference to sections 501A, 501B, 501BA and 501F in subparagraph 196(4) to ensure that a non-citizen cancelled under these powers will remain in held immigration detention unless a court finally determines that the detention is unlawful, or that the non- citizen is not unlawfully in Australia; inserting a reference to section 501CA in subparagraph 198(2A)(c) to include a non-citizen who has been invited to make representations to the Minister about revocation of a cancellation decision made under subsection 501(3A); inserting a specific removal power at new subsection 198(2B) of the Migration Act in relation to a non-citizen who has had a visa cancelled by a delegate under subsection 501(3A). This will put beyond doubt that non-citizens who do not seek revocation of a cancellation decision made under subsection 501(3A) in accordance with section 501CA of the Migration Act within the legal timeframes, or whose request for revocation is refused, are required to be removed as soon as reasonably practicable; including a reference to a decision made by the Minister personally under section 501BA or 501CA of the Migration Act in section 476 and 476A of the Migration Act, ensuring that a decision made by the Minister personally under section 501BA or 501CA is reviewable by the Federal Court rather than the Federal Circuit Court; including a reference to a decision under subsection 501CA(4) of the Migration Act in subsections 500 (6A), (6B), (6C), (6D) and paragraphs 500 (6F)(a) and (6G)(a), (6H)(a), (6J)(a), (6K)(a) and (6L)(a) of the Migration Act. These amendments ensure that these provisions, which currently apply to review by the AAT of decisions made under section 501 of the Migration Act, will also apply to decisions made under section 501CA(4) not to revoke a decision to cancel a visa; including a reference to a decision made by the Minister personally under section 501BA of the Migration Act in section 503. This will ensure that a non-citizen whose visa is cancelled by the Minister personally under section 501BA can be subject to a period of exclusion from Australia, as is the case for the other cancellation grounds; including a reference to sections 501BA and 501CA in sections 503A and 503B of the Migration Act. These amendments will ensure the protection of confidential information provided by a gazetted agency that is relevant to the exercise of power under sections 501BA, 501C and 501CA, and allow the Federal Court and the Federal Circuit Court to make orders protecting this information from the applicant in court proceedings, the legal representative of the applicant, or any other member of the public; and including a reference to a decision made by the Minister under the new section 501BA of the Migration Act in sections 501E and 501F of the Migration Act. This will ensure that a non-citizen whose visa has been cancelled personally by the Minister under section 501BA of the Migration Act is prevented from making another visa application in Australia and is taken to have any other visas they hold cancelled and any outstanding visa applications refused. Human Rights implications These amendments do not change the framework within which the character cancellation powers function. The practical effect of these amendments will be to make the powers under section 501CA and 501BA consistent in their application with other section 501 cancellation powers. The amendments will ensure that the relevant exclusion periods for non-citizens whose visas are cancelled under one of the various character visa cancellation powers can be uniformly applied, that judicial jurisdiction in respect to these powers are consistent, and that protected information remains non-disclosable. The Bill also includes an amendment to section 198 of the Migration Act to ensure that there is a clear removal power for non-citizens whose visas are cancelled under section
501(3A) and do not make a valid request for revocation of that cancellation decision, or whose revocation request is unsuccessful. Where a non-citizen‟s visa is cancelled or refused under section 501 of the Migration Act, they will be ineligible to make further visa applications (with limited exceptions) and will thus be liable for detention under section 189 of the Migration Act. They may also be removed from Australia, and may be separated from the family unit. This Statement of Compatibility addresses the potential human rights implications that may result from these practical effects along with other possible implications that may arise from this Bill. Some human rights contain express limitation clauses which set out the specific parameters within which these rights may be limited. These clauses include prescribed purposes that may justify the limitation of the right, such as national security, public order, public health, public safety, public morals, and the protection of the rights and freedoms of others. Each amendment in this Bill is aimed at ensuring consistency with the powers in the rest of the Migration Act in the interest of national security and maintaining public order and safety, by strengthening my department‟s ability to reduce any risk to the Australian community that a non-citizen may present. Right to security of the person and freedom from arbitrary detention The right to security of the person and freedom from arbitrary detention is contained in Article 9 of the International Covenant on Civil and Political Rights (ICCPR). Article 9 1. 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. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest Australia takes its obligations to non-citizens in immigration detention very seriously. The Australian Government‟s position is that the detention of individuals requesting protection is neither unlawful nor arbitrary per se under international law. Continuing detention may become arbitrary after a certain period of time without proper justification. The determining factor, however, is not the length of detention, but whether the grounds for the detention are justifiable. In the context of Article 9, detention that is not „arbitrary‟ must have a legitimate purpose within the framework of the ICCPR in its entirety. Detention must be predictable in the sense of the rule of law (it must not be capricious) and it must be reasonable (or proportional) in relation to the purpose to be achieved. The object of the Migration Act is to „regulate, in the national interest, the coming into, and presence in, Australia of non-citizens‟. The UN Human Rights Committee has recognised that "The [ICCPR] does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory [ ... ] Consent for entry may be given subject to conditions relating, for example, to movement, residence and employment" (Human Rights Committee General Comment 15, 11 April 1986, paras 5-6). This Bill does not limit a non-citizen‟s right to security of the person and freedom from arbitrary detention. Australia‟s migration framework states that unlawful non-citizens in Australia (i.e. non- citizens who do not hold a visa that is in effect) will be subject to mandatory detention. Legislative amendments that extend the grounds upon which a non-citizen‟s visa may be cancelled or refused,
the result of which may be subsequent detention, add to a number of existing laws that are well- established, generally applicable and predictable. This will be the case also for these amendments. While this Bill widens the scope of non-citizens who will be ineligible to apply for a visa and subsequently liable for detention under the Migration Act, these amendments present a reasonable response to achieving a legitimate purpose under the ICCPR - the safety of the Australian community and integrity of the migration programme. Any questions of proportionality are resolved by way of comprehensive policy guidelines on matters to be taken into account when exercising the discretion to cancel a non-citizen‟s visa, or whether to revoke a mandatory cancellation decision. Where a non-citizen‟s visa is cancelled or refused on character grounds the non-citizen will be ineligible to apply for any other substantive or bridging visa, apart from a protection visa. These non-citizens will be liable for immigration detention as they have been found to pose an unacceptable risk to the Australian community. However, it is anticipated that as the mandatory cancellation and revocation processes become business as usual, the majority of non-citizens will go through these processes while they are still in prison serving their custodial sentence. The detention of a non-citizen under these circumstances is considered neither unlawful nor arbitrary under international law. The Government has processes in place to mitigate any risk of a non-citizen‟s detention becoming indefinite or arbitrary through: internal administrative review processes; Commonwealth Ombudsman enquiry processes, reporting and Parliamentary tabling; and, ultimately the use of the Minister‟s personal intervention powers to grant a visa or residence determination where it is considered in the public interest. The United Nations Human Rights Committee has expressed a view that Article 9(2) of the ICCPR requires all persons deprived of their liberty to be informed of the reasons for their detention. This Bill proposes provisions to the effect that a non-citizen who has had a visa cancelled by the Minister personally under section 501BA does not need to be informed of sections 195 and 196 of the Migration Act, which provide that they may only apply for a visa within 2 working days and their detention will continue until they are removed, deported, or granted a visa. However, a non-citizen who has their visa cancelled under section 501BA will have previously had their visa cancelled under section 501, and so will have been detained under section 189 and informed of sections 195 and 196 at that point. Further, the Department complies with Article 9(2) through the Very Important Notice (Form 1423) that is given to all non-citizens on their detention under section 189 of the Migration Act. This form provides comprehensive information to detainees about their detention, visas they may apply for, their personal property and where to find more information. Australia takes its obligations to non-citizens in immigration detention very seriously. The Australian Government‟s position is that the detention of individuals requesting protection is neither unlawful nor arbitrary per se under international law. Continuing detention may become arbitrary after a certain period of time without proper justification. The determining factor, however, is not the length of detention, but whether the grounds for the detention are justifiable. In the context of Article 9, detention that is not „arbitrary‟ must have a legitimate purpose within the framework of the ICCPR in its entirety. Detention must be predictable in the sense of the rule of law (it must not be capricious) and it must be reasonable (or proportional) in relation to the purpose to be achieved. The object of the Migration Act is to „regulate, in the national interest, the coming into, and presence in, Australia of non-citizens‟. The UN Human Rights Committee has recognised that "The [ICCPR] does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory [ ... ] Consent for entry may be given subject to conditions relating, for example, to movement, residence and employment" (Human Rights Committee General Comment 15, 11 April 1986, paras 5-6).
This Bill does not limit a non-citizen‟s right to security of the person and freedom from arbitrary detention. Australia‟s migration framework states that unlawful non-citizens in Australia (i.e. non- citizens who do not hold a visa that is in effect) will be subject to mandatory detention. Legislative amendments that extend the grounds upon which a non-citizen‟s visa may be cancelled or refused, the result of which may be subsequent detention, add to a number of existing laws that are well-established, generally applicable and predictable. This will be the case also for these amendments. While this Bill widens the scope of non-citizens who will be ineligible to apply for a visa and subsequently liable for detention under the Migration Act, these amendments present a reasonable response to achieving a legitimate purpose under the ICCPR - the safety of the Australian community and integrity of the migration programme. Any questions of proportionality are resolved by way of comprehensive policy guidelines on matters to be taken into account when exercising the discretion to cancel a non-citizen‟s visa, or whether to revoke a mandatory cancellation decision. Where a non-citizen‟s visa is cancelled or refused on character grounds the non-citizen will be ineligible to apply for any other substantive or bridging visa, apart from a protection visa. These non-citizens will be liable for immigration detention as they have been found to pose an unacceptable risk to the Australian community. However, it is anticipated that as the mandatory cancellation and revocation processes become business as usual, the majority of non-citizens will go through these processes while they are still in prison serving their custodial sentence. The detention of a non-citizen under these circumstances is considered neither unlawful nor arbitrary under international law. The Government has processes in place to mitigate any risk of a non-citizen‟s detention becoming indefinite or arbitrary through: internal administrative review processes; Commonwealth Ombudsman enquiry processes, reporting and Parliamentary tabling; and, ultimately the use of the Minister‟s personal intervention powers to grant a visa or residence determination where it is considered in the public interest. The United Nations Human Rights Committee has expressed a view that Article 9(2) of the ICCPR requires all persons deprived of their liberty to be informed of the reasons for their detention. This Bill proposes provisions to the effect that a non-citizen who has had a visa cancelled by the Minister personally under section 501BA does not need to be informed of sections 195 and 196 of the Migration Act, which provide that they may only apply for a visa within 2 working days and their detention will continue until they are removed, deported, or granted a visa. However, a non-citizen who has their visa cancelled under section 501BA will have previously had their visa cancelled under section 501, and so will have been detained under section 189 and informed of sections 195 and 196 at that point. Further, the Department complies with Article 9(2) through the Very Important Notice (Form 1423) that is given to all non-citizens on their detention under section 189 of the Migration Act. This form provides comprehensive information to detainees about their detention, visas they may apply for, their personal property and where to find more information. Removal of unlawful non-citizens from Australia A decision to cancel a non-citizen‟s visa renders them an unlawful non-citizen and liable for detention. A cancellation or refusal decision is separate to any action by a removals officer to consider whether criteria set out in section 198 applies to removal and whether it is reasonably practical to remove a person from Australia. This Bill does not alter the removal framework already in place under section 198, but seeks to put beyond doubt that an unlawful non-citizen is available for removal from Australia in circumstances where the non-citizen has had a visa cancelled by a delegate under subsection 501(3A) of the Migration Act and was entitled to make representations about revocation of the cancellation decision but did not do so, or in circumstances where the non-citizen has had their request for
revocation refused. This amendment adds to a number of existing lawful grounds for removal of unlawful non-citizens that are predictable, reasonable and well-established. Australia‟s non-refoulement obligations Australia has obligations under the ICCPR and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) not to return a person to a country in certain circumstances. This Bill may lead to an unlawful non-citizen, to whom Australia owes protection obligations, being ineligible to apply for a visa to remain in Australia, however, Australia‟s implementation of the below obligations are complemented by the ability of the Minister of Immigration and Border Protection (the Minister) to exercise his or her non-compellable powers under the Migration Act to grant a visa. Article 3(1) 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. Articles 6 and 7 of the ICCPR also impose on Australia an implied non refoulement obligation. Article 6 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. My department recognises that these non-refoulement obligations are absolute and does not seek to resile from or limit Australia‟s obligations. Non-refoulement obligations are considered as part of a section 501 decision not to revoke cancellation of a visa under character grounds. Anyone who is found to engage Australia‟s non-refoulement obligations during the cancellation consideration will not be removed in breach of those obligations. There are a number of personal non-compellable powers available for the Minister to allow a visa application or grant a visa where this is in the public interest. The form of administrative arrangements in place to support Australia meeting its non-refoulement obligations is a matter for the Government. The amendments outlined in this Bill do not engage Australia‟s non-refoulement obligations. Respect for the family and children Respect for the family is contained in Article 3 of the Convention on the Rights of the Child (CRC) and Articles 17(1), 23 (1), and 24 of the ICCPR. Article 3 CRC 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. 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. Where a person‟s visa is cancelled or refused they will either be detained under section 189 of the Migration Act, or may remain in another form of detention depending on their situation, until such time as they are released from that other form of detention or removed under section 198 of the Migration Act. If they depart Australia they will be permanently excluded from applying for a visa to travel to and remain in Australia. This may result in the separation of the family unit. However, the rights relating to families and children will be taken into account as part of any request for visa revocation where the visa is mandatorily cancelled without notice, or where a decision to cancel or refuse a visa on character grounds is made. In both circumstances the best interests of any child or children affected by the decision is a primary consideration, which will be weighed against factors such as the risk the person presents to the Australian community. Delegates making a decision on character grounds are bound by a relevant Ministerial Direction which requires a balancing exercise of these countervailing considerations. While rights relating to family and children generally weigh heavily against cancellation, there will be circumstances where this will be outweighed by the risk to the Australian community due to the seriousness of the person‟s criminal record or past behaviour or associations. My department takes all matters concerning families and children seriously. The Government's position is that the application of migration laws which consider the individual circumstances of applicants and their relationships with family members is consistent with the above CRC and ICCPR provisions. Right to fair trial Items in this Bill that may be considered to engage human rights obligations are the amendments to section 476 and 476A of the Migration Act, which ensure that personal decisions made by the Minister to cancel a visa under sections 501CA or 501BA of the Migration Act are not reviewable by the Federal Circuit Court, but instead are reviewable by the Federal Court. The right to a fair trial is protected in Articles 14 and 16 of the ICCPR. Article 14 (1) All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Article 16
Everyone shall have the right to recognition everywhere as a person before the law. Decisions made personally by the Minister under section 501 of the Migration Act to cancel a visa are intended to not be reviewed by the AAT or the Federal Circuit Court. This Bill restores the intended position that decisions made by the Minister personally under section 501 of the Migration Act are not reviewable by the Federal Circuit Court. This in part, is in recognition that AAT review is not available for personal decisions of the Minister, and recognition that AAT members and Federal Circuit Court judges fulfil similar roles in Australia‟s judicial system. It is appropriate that judicial review of a decision by an elected Minister of Parliament is undertaken by a suitably senior member of the judiciary. As decisions made by the Minister personally under section 501 of the Migration Act remain reviewable by the Federal Court, this limitation is proportionate and does not exclude persons from the right to a fair trial. Right to freedom of movement The amendments in this Bill to sections 198(2B) and 503 of the Migration Act may be viewed as limiting a person‟s right to freedom of movement. Article 12 ICCPR 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country. However, the right to freedom of movement is a right of people who are lawfully within the country and which may be restricted in certain circumstances. The United Nations Human Rights Committee has made it clear that while prisoners, for example, enjoy all the rights in the ICCPR, they are subject to restrictions that are unavoidable in a closed environment (General Comment 21). This amendment will limit a non-citizen‟s freedom of movement where that non-citizen has been detained under section 189 of the Migration Act following becoming unlawful due to cancellation of their visa under section 501CA or 501BA of the Migration Act. The restrictions this amendment presents is a legitimate means of protecting the Australian community from the release of serious criminals into the community before they present a risk, as it provides for the revocation process to take place while the non-citizen remains in prison. The amendment to section 503 proposed by this Bill also permanently excludes a non-citizen from re-entering Australia following cancellation of their visa under section 501BA of the Migration Act. This is a proportionate response to reduce the risk of serious non-citizen criminals who have had a visa cancelled under section 501 of the Migration Act from entering Australia. Right to Privacy and Reputation The right to privacy and freedom from attacks on reputation are protected in Article 17 of the ICCPR. Article 17
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. 2. Everyone has the right to the protection of the law against such interference or attacks. The legislative amendments to section 5C (1) and (2) proposed by this Bill align the definition of „character concern‟ with the content of the „character test‟ in subsection 501(6). These amendments will facilitate the lawful disclosure of non-citizens‟ identifying information where non-citizens are of character concern, under subparagraph 336E(2)(a)(iii) of the Migration Act. That provision relevantly permits the disclosure of identifying information where the disclosure would be for the purpose of data-matching in order to identify non-citizens who have a criminal history or who are of character concern. The amendments do not expand the types of identifying information that can be collected from non- citizens, or the circumstances in which it may lawfully be disclosed, but ensure that the definition of „character concern‟ encompasses all elements of the current character test. As such, the Bill‟s amendment to the meaning of character concern at section 5C of the Migration Act amends the Migration Act only in relation to the disclosure of identifying information in relation to certain non- citizens; the Bill does not alter the current requirements relating to the disclosure of identifying information, thus maintaining adequate legal privacy protections for non-citizens. The robust framework in Part 4A of the Migration Act, which creates a series of rules and offences that govern the access, disclosure, modification and destruction of identifying information (including personal identifiers) are not amended by the Bill. Under section 336E of the Migration Act, a person commits an offence if their conduct causes the disclosure of identifying information and the disclosure is not a permitted disclosure. The permitted disclosures are set out in subsection 336E(2). The legislative amendments in this Bill at section 503A will limit disclosure by my Department, the Federal Court and the Federal Circuit Court, of confidential information which is protected by section 503A of the Migration Act. These amendments strengthen protection for criminal intelligence and related information that is critical to decision making under sections 501BA and 501CA of the Migration Act but do not expand the types of information for which disclosure is limited by section 503A of the Migration Act. While Article 17 of the ICCPR does not set out the reasons for which the guarantees in it may be limited, the limitations contained in other articles suggest that the right may be lawfully restricted by legitimate objectives in appropriate circumstances. For example, those which are necessary in a democratic society in the interests of national security, public order, the protection of public health or the protection of the rights and freedoms of others. The Government‟s position is that the amendments in this Bill are reasonable and justified by national security and public safety considerations and thus do not constitute arbitrary or unlawful interferences with the matters protected by Article 17. Conclusion These amendments are for a legitimate purpose and are compatible with human rights. These amendments are designed to strengthen the existing character cancellation framework and are consistent with the original intent of the provisions to provide the Government with sufficient capability to address character and integrity concerns. To the extent that these amendments may limit human rights, the Government considers those limitations as reasonable, proportionate and necessary.
SCHEDULE 3--Other amendments of the Migration Act 1958 Part 1 Amendments commencing on 25 September 2014 Section 48A provides that a non-citizen who, while in the migration zone, has made an application for a protection visa that was refused, or who held a protection visa that was cancelled, may not make a further application for a protection visa. The purpose of section 48A is to ensure that a person with unmeritorious protection claims or who held a protection visa that was cancelled, cannot avoid or delay their departure or removal from Australia by making repeat protection visa applications. Section 48A was amended in 2014 by the Migration Amendment Act 2014 („the MA Act‟) and the Migration Legislation Amendment Act (No.1) 2014 („the MLA Act‟), respectively, in response to two different Federal Court decisions. The MA Act inserted subsection 48(1C) to put it beyond doubt that the prohibition on further protection visa application applies if a person has previously been refused a protection visa or held a protection visa that was cancelled, irrespective of the grounds on which the further protection visa application would be made or the criteria which the person would claim to satisfy, and irrespective of the grounds on which the previous (refused) protection visa application was made, or the grounds on which a cancelled protection visa was granted. Subsection 48A(1C) ensures, as an example, that a person who was previously refused a protection visa on the basis that they do not engage protection obligations either due to being a refugee or on the basis of complementary protection, could not make a further protection visa application by claiming to be a member of the same family unit of another protection visa applicant. Subsequent to this amendment, section 48A was amended again by the MLA Act which inserted subsection 48A(1AA). Subsection 48A(1AA) ensures that the prohibition on further protection visa applications in section 48A can be determined by reference to an objective assessment of whether a person has previously been refused a protection visa as a matter of fact, rather than whether the person knew about, or understood the nature of, the previous protection visa application that was made on their behalf by another person who was authorised to do so. The amendment therefore preserves the operation and integrity of section 48A by preventing a person who does not have meritorious protection claims from making repeat protection visa applications on the basis that (due to their minority at the time, or alternatively mental impairment), they did not know about, or understand the nature of, the previous protection visa application that was made on their behalf and refused. Due to an oversight at the time subsection 48A(1AA) was inserted by the MLA Act, subsection 48A(1C) was not amended to include a reference to subsection 48A(1AA). This Bill proposes to correct that oversight by inserting a reference to subsection 48A(1AA) into subsection 48A(1C). In addition, this amendment will commence retrospectively from 25 September 2014, the day that the MLA Act (which inserted subsection 48A(1AA) and which should have inserted the reference to subsection 48A(1AA) in subsection 48(1C) but for the oversight), came into effect. Human rights implications The MLA Act, which inserted subsection 48A(1AA) into the Migration Act, was passed by Parliament as being compatible with human rights. As the proposed amendment to insert reference to subsection 48A(1AA) into subsection 48A(1C) is a technical amendment to address a drafting oversight in the MLA Act, the amendment is also compatible with human rights. Nevertheless, for completeness the human rights implications of the proposed amendment are addressed below.
Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment („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. Articles 6 and 7 of the International Covenant on Civil and Political Rights („ICCPR‟) state, respectively: 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 6) 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. (Article 7) The above Articles provide Australia with express and implied non-refoulement obligations. The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 („the RALC Act‟), which came into effect on 16 December 2014, inserted section 197C into the Migration Act. Section 197C provides that an officer‟s duty to remove an unlawful non- citizen from Australia under section 198 of the Migration Act is not affected by any non- refoulement obligation that Australia might have in respect of the unlawful non-citizen, and irrespective of whether there has been an assessment of Australia‟s non-refoulement obligations according to law. Despite this „de-linking‟ of Australia‟s non-refoulement obligations with the duty to remove under section 198 of the Migration Act, the effect of section 197C is to clarify that neither the existence of non-refoulement obligations, nor the assessment of non-refoulement obligations, are of themselves impediments to removal under section 198. However, section 197C does not prevent the Department from undertaking a non-refoulement assessment in relation to an unlawful non-citizen prior to removal as a matter of policy and practice. Therefore, where a person who has previously had a protection visa application refused (including where the application was made by another authorised person on their behalf) now raises protection claims relying on a different ground to the one(s) on which the previous application was based, the Minister has personal power under section 48B of the Migration Act to intervene to allow a further protection visa application to be made in the public interest. For example, if a person was a minor at the time the previous protection visa application was made on their behalf (i.e. by being included in their parent‟s protection visa application as a member of the same family unit of the parent), and now as an adult the person has protection claims of their own, the Minister may exercise his or her personal power under section 48B to enable the person to make a new protection visa application so that their personal claims, which were not raised or assessed previously, can be assessed. In conclusion, while the proposed insertion of reference to subsection 48A(1AA) in subsection 48A(1C) engages rights under the CAT and the ICCPR, the amendment does not remove the opportunity of persons to make claims for protection as against these rights or to have those claims assessed. As such, the proposed amendment is compatible with human rights. Conclusion The amendments to the Migration Act proposed in Part 2 of Schedule 3 to this Bill are compatible with human rights.
Part 2 Amendments commencing on the day after Royal Assent Items 3 and 9 through 11 of Part 2 of Schedule 3 Items 3 and 9 through 11 of Part 2 of Schedule 3 amend the Migration Act 1958 (the Migration Act) to clarify that decisions to refuse protection visas on certain character or security grounds will continue to be reviewable by the Administrative Appeals Tribunal. These amendments are consequential to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Legacy Act), which implemented certain initiatives to increase efficiency and improve integrity across the protection status determination process. The inclusion of these provisions in the Bill gives effect to the policy intention set out in the Explanatory Memorandum to the Legacy Act that decisions to refuse protection visas to fast track applicants (including excluded fast track review applicants) on certain character or security related grounds will continue to be reviewable by the Administrative Appeals Tribunal under the existing provisions in subsection 500(1) of the Migration Act. However, due to an oversight, a technical operative provision that would enable this to occur was not amended. These amendments clarify that the Administrative Appeals Tribunal‟s existing jurisdiction to review refusal decisions based on certain character or security grounds remains unchanged. Human rights implications The amendments in Items 3 and 9 through 11 of Part 2 of Schedule 3 to this Bill redress an omission in Schedule 4 to the Legacy Act. The Statement of Compatibility with Human Rights at Attachment A of the Explanatory Memorandum to the Legacy Act addressed the human rights implications of Schedule 4 to the Legacy Act. The technical amendments at Items 3 and 9 through 11, which clarify that existing review rights for refusal decisions on certain character or security related grounds remain unchanged, do not engage any of the applicable rights or freedoms. Conclusion The amendments at Items 3 and 9 through 11 seek to redress an omission in Schedule 4 to the Legacy Act. The amendments are compatible with human rights as they do not raise any human rights issues. Item 2 of Schedule 3 This item corrects a technical referencing error in the Migration Act 1958. Current subsection 38B(5) and the note to subsection 38B(5) reference "a declaration made under subsection [38B(4)]". Subsection 38B(4) does not contain the power to make a declaration, however it does reference a declaration made under 38B(3). Subsection 38B(3) contains the power for the Minister to make a written declaration. It is clear from the context that the references in 38B(5) to a declaration made under 38B(4) should be references to 38B(3). This amendment will correct that error. Human rights implications As this measure is purely a technical correction it does not engage any of the applicable rights or freedoms. Conclusion This measure is compatible with human rights as it does not raise any human rights issues.
Items 5-8 of Schedule 3 Section 82 of the Migration Act provides the circumstances in which a visa ceases to be in effect. The longstanding position of the Department is that if a ceasing provision specified in section 82 of the Migration Act applies, the visa in question will cease to be in effect, in the sense of it being extinguished, regardless of whether the visa is in effect at that time. However, because visas are extinguished by "ceasing to be in effect", this has given rise to a possible argument that a visa which has been granted but not in effect (i.e. dormant), cannot cease to be in effect even if a relevant ceasing provision applies to it. To ensure that the visa ceasing provisions in section 82 of the Migration Act can operate as intended, the Bill proposes to amend the Migration Act to put it beyond doubt that a visa held by a person will cease to be in effect (i.e. will be extinguished) under section 82 at a particular time even if, at that time, the visa is not in effect. For example, if a person who is the holder of a substantive visa (visa X) has been refused the grant of a substantive visa (visa Y) for which they have applied, notification of the substantive visa Y refusal should operate to cease the bridging visa granted to and held by the person in association with the substantive visa Y application, even though the bridging visa is not in effect because the substantive visa X is still in effect. The exception to this would be where the person departs Australia as the holder of a visa to remain in, but not re-enter, Australia (subsection 82(8)). In this situation, the act of departing Australia would operate to cease or extinguish the visa only if the visa is in effect at the time of the person‟s departure. This exception is created because the Department accepts that in circumstances where a person departs Australia as the holder of a substantive visa that is in effect and a bridging visa that is not in effect, it might operate harshly to maintain that the bridging visa ceases to be in effect when the person departs Australia, when the person has otherwise complied with the conditions of their visa and is doing nothing more than legitimately travel on the substantive visa that they hold. The creation of this exception ensures that a person will not unwittingly become an unlawful non- citizen. Without this exception, the amendment would mean that a dormant bridging visa would cease under subsection 82(8) of the Migration Act when the person holding the dormant bridging visa departs Australia despite the bridging visa not being in effect at that time. As a result if the person subsequently returns to Australia on their substantive visa and the substantive visa ceases, they would become an unlawful non-citizen. With the exception, however, the bridging visa would be preserved despite the person‟s departure, so that if the person subsequently returns to Australia on the substantive visa and the substantive visa ceases prior to a decision being made on the visa application in association with which the bridging visa was granted to the person, the bridging visa will be „activated‟ and come into effect to keep the person lawful until a decision is made on the person‟s visa application. In addition, the creation of this exception has the advantage of removing the Department‟s administrative burden from having to process unnecessary bridging visa applications, in circumstances where a well-informed person who is aware of the operation of subsection 82(8) of the Migration Act makes an application for a „replacement‟ bridging visa following their return to Australia. Human rights implications Article 9(1) of the ICCPR provides that everyone has the right to liberty and security of person. No one shall be subject 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.
Section 189 of the Migration Act provides for the mandatory detention of a person in the migration zone whom an officer knows or reasonably suspects to be an unlawful non-citizen. Amending the Migration Act to clarify that a visa will cease to be in effect under section 82 (other than under subsection 82(8)) at a particular time even if the visa is not in effect, with the consequence that the person becomes an unlawful non-citizen who is subject to mandatory detention may, in certain circumstances, be perceived to be arbitrary. Notwithstanding the possibility of such a perception, as a matter of reality this is not an issue of serious concern. With the exception of bridging visas and Subclass 601 - Electronic Travel Authority („ETA‟), which could be granted but not come into effect immediately due to the person already holding a substantive visa in effect which operates to „suppress‟ the bridging visa or the ETA, all other visas come into effect as soon as they are granted. Therefore, the risk of a section 82 provision applying to cease a visa despite it not being in effect at the time is remote. The purpose of the amendment is really to ensure that, by clarifying the policy intention underpinning section 82, in circumstances where a provision other than subsection 82(8) of the Migration Act applies, the relevant ceasing event (such as notification of a decision to refuse a visa or a decision to cancel the visa) would operate to cease or extinguish the bridging visa or the ETA as intended, even if the bridging visa or the ETA is not in effect at the time the ceasing event in relation to it occurs. Importantly also, unlike subsection 82(8) of the Migration Act where the trigger for visa cessation is the person‟s departure from Australia which could not be pre-determined or otherwise known to the Department, the other visa ceasing provisions under section 82 are all capable of being pre- determined or known to the Department, e.g. visa ceasing on a particular date, or by cancellation, so that the Department could draw the visa cessation to the attention of the person, either at the time of notifying the visa grant (in the case of a visa granted until a specified date) or after the cessation event has occurred (in the case of a visa cancellation, about which the non-citizen must be notified). In other words, because the circumstances of the visa cessation (other than departure from Australia under section 82(8) which is exempt from the amendment) would be drawn to the attention of the person, this means that even if the visa was not actually in effect at the time it ceased under section 82 (which would be rare for the reason outlined earlier), any subsequent detention of the person on the basis that they are an unlawful non-citizen would not be arbitrary. Furthermore, this outcome would be lawful by virtue of the mandatory detention scheme in the Migration Act, and would be proportionate to the legitimate goal of maintaining the integrity of the migration system (noting that there are a range of tools available to deal with any circumstances where detention may not be appropriate or desirable). Therefore, the amendment to the Migration Act clarifying the circumstances in which a visa ceases is compatible with Article 9(1) of the ICCPR. Conclusion The amendments to the Migration Act proposed in items 5-8 of Schedule 3 to this Bill are compatible with human rights.
SCHEDULE 4 --Amendments relating to maritime powers Overview of the Schedule Maritime powers are consolidated in the Maritime Powers Act 2013 (the Maritime Powers Act). The enforcement of Australia‟s maritime laws relates to illegal foreign fishing, customs, migration, quarantine and drug trafficking, as well as international agreements and arrangements at sea. Under the Maritime Powers Act, maritime powers are available with respect to boarding vessels, installations and aircraft, interdiction, obtaining information, searching things and people, securing things, including weapons, moving and detaining persons, arresting persons and requiring persons to cease conduct that contravenes Australian law, for example. Section 40 of the Maritime Powers Act allows for the exercise of powers in another country, including through or above waters that form part of that country, in defined circumstances. A „country‟ is defined as including the territorial sea and archipelagic waters (see section 8 of the Maritime Powers Act). The intention of section 40 of the Maritime Powers Act is to ensure that maritime powers are exercised in a manner consistent with the principle of territorial sovereignty at international law. Thus the use of enforcement powers within another country normally would require some form of agreement by that country. However, section 40 does not explicitly allow for the exercise of powers under that Act in the course of passage through and over waters within another country consistent with the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Schedule 4 to the Bill amends section 40 to confirm the ability to exercise powers under the Maritime Powers Act in circumstances where vessels or aircraft are permitted or entitled under the UNCLOS to exercise rights of passage through or above those waters. It does so by inserting two subsections which provide that the exercise of powers can also occur when the circumstances in paragraphs 40(2)(a) and (b) of Item 2 exist. These circumstances are that: the exercise of powers: o is part of a „continuous exercise of powers‟ (defined in section 11 of the Maritime Powers Act) that commenced in accordance with any applicable requirements of Part 2 (which is the framework for exercising maritime powers under the Maritime Powers Act); and o occurs in the course of passage of a vessel or aircraft through or above waters that are part of a country (paragraph 40(2)(a)); and a relevant maritime officer (including a commander of a vessel as well more senior maritime officers who have knowledge, involvement in, or command over the operation) or the Minister, considers that the passage is in accordance with UNCLOS (paragraph 40(2)(b)). Human rights implications These amendments confirm that powers under the Maritime Powers Act are able to be exercised in the course of passage through or over the waters of another country in a manner consistent with UNCLOS, such as when a vessel is in the course of innocent passage, transit passage or archipelagic sea lanes passage. On this basis this Schedule does not engage any of the applicable rights or freedoms. Conclusion This Schedule is compatible with human rights as it does not raise any human rights issues. The Hon. Peter Dutton MP, Minister for Immigration and Border Protection