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2010 - 2011 - 2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MIGRATION LEGISLATION AMENDMENT (REGIONAL PROCESSING AND OTHER MEASURES)
BILL 2012
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration and Citizenship,
the Hon. Chris Bowen MP)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF
REPRESENTATIVES TO THE BILL AS INTRODUCED
MIGRATION LEGISLATION AMENDMENT (REGIONAL PROCESSING AND OTHER MEASURES)
BILL 2012
OUTLINE
The Migration Legislation Amendment (Regional Processing and Other
Measures) Bill 2012 ('the Bill') amends the Migration Act 1958 ('the
Migration Act') and the Immigration (Guardianship of Children) Act 1946
('the IGOC Act') to:
. replace the existing framework in the Migration Act for taking offshore
entry persons to another country for assessment of their claims to be
refugees as defined by the 1951 Convention Relating to the Status of
Refugees ('Refugees Convention') as amended by the 1967 Protocol
Relating to the Status of Refugees ('Refugees Protocol'); and
. clarify that provisions of the IGOC Act do not affect the operation of
the Migration Act, particularly in relation to the making and
implementation of any decision to remove, deport or take a non-citizen
child from Australia.
This Bill implements key recommendations of the Report of the Expert Panel
on Asylum Seekers provided to the Prime Minister and the Minister for
Immigration and Citizenship on 13 August 2012. These recommendations
relate to arrangements to allow for regional processing of irregular
maritime arrivals (IMAs) to Australia. It is proposed that these regional
processing arrangements will apply in relation to an offshore entry person
who enters Australia on or after 13 August 2012.
On 31 August 2011, the High Court of Australia delivered judgment in
Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32
in which it held by majority that the sole source of power under the
Migration Act to take asylum seekers from Australia to another country for
determination of their refugee status is that conferred by section 198A of
the Migration Act and that the declaration that Malaysia is a specified
country for the purposes of section 198A was made without power.
The purpose of the amendments in this Bill is to address that High Court
decision in order to allow for regional processing of claims of offshore
entry persons to be refugees. The amendments will ensure that the
Government is able to implement the regional processing arrangements that
are now envisaged. The amendments will ensure that the government of the
day can determine the border protection policy that it believes is in the
national interest. It will also allow for the regional cooperation
framework envisaged in the Expert Panel's report to be implemented.
The term 'national interest' has a broad meaning and refers to matters
which relate to Australia's standing, security and interests. For example,
these matters may include governmental concerns related to such matters as
public safety, border protection, national security, defence, Australia's
economic interests, Australia's international obligations and its relations
with other countries. Measures for effective border management and
migration controls are in the national interest. Measures to develop an
effective functioning regional cooperation framework and associated
processing arrangements to better manage the flows of irregular migrants in
our region are also in Australia's national interest.
In line with the Expert Panel's report, the amendments will also ensure
appropriate Parliamentary scrutiny of arrangements that are in place to
support regional processing. The amendments will provide for a legislative
instrument to designate only one country and must not provide that the
designation ceases to have effect. The amendments will also provide for
when a legislative instrument to designate a country commences.
The amendments also provide additional accountability to Parliament by
requiring the Minister to lay before each House of the Parliament: a copy
of the designation; a statement about the Minister's reasons for thinking
it is in the national interest to designate the country to be a regional
processing country; a copy of any written agreement between Australia and
the country relating to the taking of persons to the country; a statement
about the Minister's consultations with the Office of the United Nations
High Commissioner for Refugees in relation to the designation, including
the nature of those consultations; a summary of any advice received from
that Office in relation to the designation; and a statement about any
arrangements that are in place, or are to be put in place, in the country
for the treatment of persons taken to the country.
In particular, the Bill amends the Migration Act to:
. insert a new statement that, to advance its object, this Act provides
for the taking of offshore entry persons from Australia to a regional
processing country;
. affirm that offshore entry persons, including offshore entry persons in
respect of whom Australia has or may have protection obligations under
the Refugees Convention as amended by the Refugees Protocol, should be
able to be taken to any country designated to be a regional processing
country, and the designation of a country to be a regional processing
country need not be limited by reference to the international
obligations or domestic law of that country;
. impose a duty on an officer to detain, subject to a limited exemption,
any offshore entry person who enters Australia;
. provide that the Minister may personally, through a legislative
instrument, designate that a country is a regional processing country;
. provide that a legislative instrument may designate only one country
and must not provide that the designation ceases to have effect;
. provide that a legislative instrument to designate a country commences
at the earlier of the following times:
o immediately after both Houses of the Parliament have passed a resolution
approving the designation;
o immediately after both of the following apply:
. a copy of the designation has been laid before each House of the
Parliament under section 198AC;
. 5 sitting days of each House have passed since the copy was laid before
that House without it passing a resolution disapproving the designation;
. provide that the only condition for the exercise of the power to
designate a country is that the Minister thinks that it is in the
national interest to designate the country to be a regional processing
country and to provide what the Minister must have regard to in
considering what is in the national interest;
. provide that if the Minister designates a country, he or she must cause
a copy of the designation and a statement of reasons relating to the
designation, a copy of any agreement with the designated country
relating to the taking of persons to the country, a statement regarding
the Minister's consultations with the UNHCR, a summary of any advice
received from the UNHCR and a statement about any arrangements in the
designated country for the treatment of persons taken to the country to
be laid before each House of Parliament;
. provide that, subject to certain limitations, an offshore entry person
detained under section 189 must, as soon as reasonably practicable, be
taken from Australia to a regional processing country;
. provide that where there is a choice of regional processing countries,
the Minister must direct to which country a person or class of persons
is to be taken;
. allow the Minister to personally determine, in writing, that an
offshore entry person is not to be taken to a regional processing
country, if the Minister thinks that it is in the public interest to do
so;
. provide that if an officer considers it necessary, an offshore entry
person who is in the course of being taken to a regional processing
country, can be returned to Australia without a visa that is in effect;
and
. provide that if an offshore entry person has been brought to Australia
from a regional processing country for a temporary purpose pursuant to
section 198B and they no longer need to be in Australia for that
purpose, they must as soon as reasonably practicable, subject to
certain limitations, be taken from Australia to a regional processing
country.
The Bill also amends the IGOC Act to:
. provide that, without limiting the meaning of the expression, a child
"leaves Australia permanently" if the child is removed from Australia,
or is taken from Australia to a regional processing country, or is
deported, or is taken to a place outside Australia, under the Migration
Act;
. provide that nothing in this Act affects the operation of the migration
law (defined in the Bill as the Migration Act 1958, regulations made
under that Act, and any instrument made under that Act or those
regulations); or affects the performance or exercise, or the purported
performance or exercise, of any function, duty or power under the
migration law as defined in the Bill; or imposes any obligation on the
Minister to exercise, or to consider exercising, any power conferred on
the Minister by or under the migration law; and
. clarify that nothing in this Act affects the performance or exercise,
or the purported performance or exercise, of any function, duty or
power relating to the removal of a non-citizen child from Australia,
the taking of a non-citizen child from Australia to a regional
processing country, the deportation of a non-citizen child, or the
taking of a non-citizen child to a place outside Australia, under the
Migration Act.
financial impact statement
The financial impact of the implementation of regional processing as a
result of these amendments to the legislation will be significant. The
Office of Best Practice Regulation has been consulted and has advised that
a regulatory impact statement is not required. The advice reference is
13057.
Migration LEGISLATION amendment (REGIONAL PROCESSING AND OTHER MEASURES)
BILL 2012
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 Legislation Amendment (Regional Processing and Other
Measures) Act 2012.
Clause 2 Commencement
2. Clause 2 provides that this Act commences on the day after this Act
receives the Royal Assent.
Clause 3 Schedule(s)
3. Clause 3 provides that each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has
effect according to its terms.
SCHEDULE 1 - Regional processing
Migration Act 1958
Item 1 At the end of section 4
4. This item amends section 4 of the Migration Act 1958 ('the Migration
Act').
5. Section 4 sets out the object of the Migration Act. Relevantly,
subsection 4(1) provides that the object of the Migration Act is to
regulate, in the national interest, the coming into, and presence in,
Australia of non-citizens.
6. This amendment inserts a new subsection (5) after subsection 4(4). New
subsection 4(5) provides that, to advance its object, the Migration Act
provides for the taking of offshore entry persons from Australia to a
regional processing country.
7. The purpose of this amendment is to affirm Parliament's intention that
one way to advance the object of the Migration Act is to provide for
offshore entry persons to be taken to a regional processing country.
Item 2 Subsection 5(1) (note 1 at the end of the definition of
immigration detention)
8. This item repeals note 1 at the end of the definition of immigration
detention in subsection 5(1) of the Migration Act and substitutes a new
note 1.
9. Immigration detention is defined in subsection 5(1) and means:
(a) being in the company of, and restrained by:
(i) an officer; or
(ii) in relation to a particular detainee-another person
directed by the Secretary to accompany and restrain the
detainee; or
(b) being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii) in a prison or remand centre of the Commonwealth, a State
or a Territory; or
(iii) in a police station or watch house; or
(iv) in relation to a non-citizen who is prevented, under
section 249, from leaving a vessel-on that vessel; or
(v) in another place approved by the Minister in writing;
but does not include being restrained as described in subsection
245F(8A), or being dealt with under paragraph 245F(9)(b).
Note 1: See also section 198A, which provides that being dealt
with under that section does not amount to immigration detention.
Note 2: This definition extends to persons covered by residence
determinations (see section 197AC).
10. This amendment repeals the content of Note 1 to the definition of
immigration detention and substitutes it with 'Subsection 198AD(11)
provides that being dealt with under subsection 198AD(3) does not
amount to immigration detention.
11. The purpose of this amendment is to update Note 1, relating to existing
section 198A which is repealed by item 25 of Schedule 1. Relevantly,
new subsection 198AD(3) sets out the actions that may be taken by an
officer for the purposes of taking an offshore entry person to a
regional processing country under new subsection 198AD(2). New
subsection 198AD(11) provides that an offshore entry person who is
being dealt with under new subsection 198AD(3) is taken not to be in
immigration detention (as defined in subsection 5(1)).
12. This item is a consequential amendment as a result of item 25 of
Schedule 1.
Item 3 Subsection 5(1) (paragraph (a) of the definition of offshore
entry person)
13. This item amends the definition of offshore entry person in subsection
5(1) of the Migration Act.
14. Offshore entry person is defined in subsection 5(1) to mean a person
who:
(a) entered Australia at an excised offshore place after the
excision time for that offshore place; and
(b) became an unlawful non-citizen because of that entry.
15. Excised offshore place is defined in subsection 5(1) of the Migration
Act as any of the following:
(a) the Territory of Christmas Island;
(b) the Territory of Ashmore and Cartier Islands;
(c) the Territory of Cocos (Keeling) Islands;
(d) any other external Territory that is prescribed by the
regulations for the purposes of this paragraph;
(e) any island that forms part of a State or Territory and is
prescribed for the purposes of this paragraph;
(f) an Australian sea installation;
(g) an Australian resources installation.
Note: The effect of this definition is to excise the listed places and
installations from the migration zone for the purposes of limiting
the ability of offshore entry persons to make valid visa
applications.
16. An unlawful non-citizen is defined in subsection 14(1) of the Migration
Act as a non-citizen in the migration zone who is not a lawful non-
citizen. Subsection 13(1) of the Migration Act provides that a lawful
non-citizen is a non-citizen in the migration zone who holds a visa
that is in effect.
17. Migration zone relevantly means the area consisting of the States, the
Territories, Australian resource installations and Australian sea
installations and, to avoid doubt, includes:
(a) land that is part of a State or Territory at mean low water; and
(b) sea within the limits of both a State or a Territory and a port;
and
(c) piers, or similar structures, any part of which is connected to
such land or to ground under such sea;
but does not include sea within the limits of a State or Territory but
not in a port.
18. This item inserts 'has, at any time,' before 'entered' in paragraph (a)
of the definition of offshore entry person.
19. The effect of this amendment is that a person is an offshore entry
person and will retain the status of an offshore entry person, if the
person has, at any time entered Australia at an excised offshore place
after the excision time for that excised offshore place and became an
unlawful non-citizen because of that entry.
20. This item ensures that an offshore entry person retains that status
whenever they are in Australia as an unlawful non-citizen. This
includes whether the offshore entry person is also a transitory person
or whether or not their most recent entry to Australia was at an
excised offshore place.
Item 4 Subsection 5(1)
21. This item amends subsection 5(1) of the Migration Act.
22. This amendment inserts a definition of regional processing country into
subsection 5(1). This new definition of regional processing country
means a country designated by the Minister under new subsection
198AB(1) as a regional processing country.
23. This item is a consequential amendment as a result of item 25 of
Schedule 1.
Item 5 Subsection 5(1) (paragraph (a) of the definition of transitory
person)
24. This item amends the definition of transitory person in subsection 5(1)
of the Migration Act.
25. This amendment inserts 'repealed' before 'section' in paragraph (a) of
the definition of transitory person.
26. Transitory person is defined in subsection 5(1) to mean:
(a) an offshore entry person who was taken to another country under
section 198A; or
(b) a person who was taken to a place outside Australia under
paragraph 245F(9)(b); or
(c) a person who, while a non-citizen and during the period from
27 August 2001 to 6 October 2001:
(i) was transferred to the ship HMAS Manoora from the ship
Aceng or the ship MV Tampa; and
(ii) was then taken by HMAS Manoora to another country; and
(iii) disembarked in that other country;
but does not include a person who has been assessed to be a refugee for
the purposes of the Refugees Convention as amended by the Refugees
Protocol.
27. Paragraph (a) of the definition of transitory person currently provides
that a transitory person means an offshore entry person who was taken
to another country under section 198A of the Migration Act.
28. Subsection 198A(1) provides that an officer may take an offshore entry
person from Australia to a country in respect of which a declaration is
in force under subsection (3).
29. The effect of this amendment is to ensure that an offshore entry person
who was taken to another country under existing section 198A, which is
repealed by item 25 of Schedule 1, continues to be covered by the
definition of transitory person.
30. This is a consequential amendment as a result of item 25 of Schedule 1.
Item 6 Subsection 5(1) (after paragraph (a) of the definition of
transitory person)
31. This item amends the definition of transitory person in subsection 5(1)
of the Migration Act.
32. This amendment inserts a new paragraph (aa) after paragraph (a) of the
definition of transitory person in subsection 5(1) to provide that 'an
offshore entry person who was taken to a regional processing country
under section 198AD' is a transitory person.
33. The purpose of this amendment is to provide that an offshore entry
person who was taken to a regional processing country under new section
198AD is a transitory person for the purposes of the Migration Act.
34. This is a consequential amendment as a result of item 25 of Schedule 1.
Item 7 Paragraphs 36(2)(a) and (aa)
35. This item amends paragraphs 36(2)(a) and (aa) in Division 3 of Part 2
of the Migration Act.
36. Section 36 deals with protection visas. Paragraph 36(2)(a) provides
that a criterion for a protection visa is that the applicant for the
visa is a non-citizen in Australia to whom the Minister is satisfied
Australia has protection obligations under the Refugees Convention as
amended by the Refugees Protocol. Paragraph 36(2)(aa) provides an
alternative criterion for a protection visa, which is that the
applicant for the visa is a non-citizen in Australia (other than a non-
citizen mentioned in existing paragraph 36(2)(a)) to whom the Minister
is satisfied Australia has protection obligations because the Minister
has substantial grounds for believing that, as a necessary and
foreseeable consequence of the non-citizen being removed from Australia
to a receiving country, there is a real risk that the non-citizen will
suffer significant harm.
37. This amendment omits 'to whom' and substitutes 'in respect of whom' in
paragraphs 36(2)(a) and (aa).
38. The purpose of the amendment to paragraph 36(2)(a) is to clarify that
Australia's obligations under the Refugees Convention as amended by the
Refugees Protocol are owed to Contracting States.
39. The purpose of the amendment to paragraph 36(2)(aa) is to clarify that
Australia's non-refoulement obligations contained or implied in the
International Covenant on Civil and Political Rights or the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment are owed to Contracting States.
Item 8 Subsection 36(3)
40. This item amends subsection 36(3) in Division 3 of Part 2 of the
Migration Act.
41. Subsection 36(3) currently provides that Australia is taken not to have
protection obligations to a non-citizen who has not taken all possible
steps to avail himself or herself of a right to enter and reside in,
whether temporarily or permanently and however that right arose or is
expressed, any country apart from Australia, including countries of
which the non-citizen is a national.
42. This amendment omits 'obligations to' and substitutes 'obligations in
respect of' in subsection 36(3).
43. The purpose of this amendment is to clarify that Australia's
obligations under the Refugees Convention as amended by the Refugees
Protocol are owed to Contracting States.
Item 11 Subsection 189(3)
44. This item amends subsection 189(3) in Division 7 of Part 2 of the
Migration Act.
45. This item inserts '(other than a person referred to in subsection
(3A))' after a 'person' in subsection 189(3).
46. Section 189 of the Migration Act deals with the detention of unlawful
non-citizens. Subsection 189(3) currently provides that if an officer
knows or reasonably suspects that a person in an excised offshore place
is an unlawful non-citizen, the officer may detain the person.
47. Subsection 14(1) of the Migration Act provides that a non-citizen in
the migration zone who is not a lawful non-citizen is an unlawful non-
citizen. Subsection 13(1) provides that a non-citizen in the migration
zone who holds a visa that is in effect is a lawful non-citizen.
48. Detain is defined in subsection 5(1) of the Migration Act to mean take
into immigration detention; or keep, or cause to be kept, in
immigration detention, and includes taking such action and using such
force as are reasonably necessary to do so. For the purposes of this
amendment, paragraph (b) of the definition of immigration detention in
subsection 5(1), provides that immigration detention means being held
by, or on behalf of, an officer:
(i) in a detention centre established under the Migration Act; or
(ii) in a prison or remand centre of the Commonwealth, a State or a
Territory; or
(iii) in a police station or watch house; or
(iv) in relation to a non-citizen who is prevented, under section
249, from leaving a vessel - on that vessel; or
(v) in another place approved by the Minister in writing.
49. Officer is defined in subsection 5(1) of the Migration Act to mean:
(a) an officer of the Department, other than an officer specified by
the Minister in writing for the purposes of this paragraph; or
(b) a person who is an officer for the purposes of the Customs Act
1901, other than such an officer specified by the Minister in
writing for the purposes of this paragraph; or
(c) a person who is a protective service officer for the purposes of
the Australian Federal Police Act 1979, other than such a person
specified by the Minister in writing for the purposes of this
paragraph; or
(d) a member of the Australian Federal Police or of the police force
of a State or an internal Territory; or
(e) a member of the police force of an external Territory; or
(f) a person who is authorised in writing by the Minister to be an
officer for the purposes of this Act; or
(g) any person who is included in a class of persons authorised in
writing by the Minister to be officers for the purposes of this
Act, including a person who becomes a member of the class after
the authorisation is given.
50. The purpose of this amendment is to provide an officer with a
discretion, as opposed to a mandatory duty, to detain a person if the
officer knows or reasonably suspects a person in a protected area
(defined in the Torres Strait Treaty) who is an allowed inhabitant of
the Protected Zone (in the Torres Strait) is an unlawful non-citizen.
51. This is a consequential amendment as a result of item 13 of Schedule 1.
Item 12 Subsection 189(3)
52. This item amends subsection 189(3) in Division 7 of Part 2 of the
Migration Act.
53. This amendment omits 'may detain' and substitutes it with 'must detain'
in subsection 189(3) of the Migration Act.
54. The effect of this amendment is that an officer must detain a person if
the officer knows or reasonably suspects that a person in an excised
offshore place is an unlawful non-citizen.
Item 13 After subsection 189(3)
55. This item amends section 189 in Division 7 of Part 2 of the Migration
Act.
56. This amendment inserts a new subsection 189(3A) after subsection
189(3). New subsection 189(3A) provides that, if an officer knows or
reasonably suspects that a person in a protected area is an allowed
inhabitant of the Protected Zone, and that the person is an unlawful
non-citizen, the officer may detain the person.
57. The protected area is defined in subsection 5(1) of the Migration Act
and means an area that is part of the migration zone, and in, or in an
area in the vicinity of, the Protected Zone.
58. The Protected Zone is defined in subsection 5(1) of the Migration Act
and means the zone established under Article 10 of the Torres Strait
Treaty, being the area bounded by the line described in Annex 9 to that
treaty.
59. The purpose of this amendment is to allow for discretionary immigration
detention of a person in a protected area (defined in the Torres Strait
Treaty), who is an allowed inhabitant of the Protected Zone (in the
Torres Strait), and who is an unlawful non-citizen.
60. This amendment recognises the unique operational environment and
history of the Torres Strait. It effectively preserves the position as
it exists currently under existing subsection 189(3) in relation to
such persons and ensures that the way such protected persons are dealt
with under the Migration Act at present will not be impacted by the
amendments made by item 11 of Schedule 1.
Item 14 Subsection 189(5)
61. This item amends subsection 189(5) in Division 7 of Part 2 of the
Migration Act.
62. This amendment inserts ',(3A)' after 'subsections (3)' in subsection
189(5).
63. The purpose of this item is to ensure that the term officer, for the
purposes of new subsection 189(3A) and any other provisions of the
Migration Act that relate to new subsection 189(3A), means an officer
within the meaning of section 5 of the Migration Act and includes a
member of the Australian Defence Force.
64. This is a consequential amendment as a result of item 13 of Schedule 1.
Item 15 Paragraph 193(1)(c)
65. This item amends paragraph 193(1)(c) in Division 7 of Part 2 of the
Migration Act.
66. Section 193 deals with the application of the law to certain non-
citizens while they remain in immigration detention. Relevantly,
paragraph 193(1)(c) provides that sections 194 and 195 do not apply to
a person detained under subsection 189(2), (3) or (4).
67. Sections 194 and 195 require that a detainee is to be told of the
consequences of detention and that they may apply for a visa.
68. This amendment inserts ',(3A)' before 'or (4)' so that sections 194 and
195 will not apply to persons detained under new subsection 189(3A).
69. This is a consequential amendment as a result of item 13 of Schedule 1.
Item 16 Subsection 196(1)
70. This item amends subsection 196(1) in Division 7 of Part 2 of the
Migration Act.
71. Section 196 deals with the duration of immigration detention.
Subsection 196(1) provides that an unlawful non-citizen detained under
section 189 must be kept in immigration detention until he or she is:
(a) removed from Australia under section 198 or 199; or
(b) deported under section 200; or
(c) granted a visa.
72. Subsection 14(1) of the Act provides that a non-citizen in the
migration zone who is not a lawful non-citizen is an unlawful non-
citizen. Subsection 13(1) provides that a non-citizen in the migration
zone who holds a visa that is in effect is a lawful non-citizen.
73. This amendment omits 'he or she is' in subsection 196(1).
74. This is a consequential amendment as a result of item 18 of Schedule 1.
Item 17 Paragraph 196(1)(a)
75. This item amends paragraph 196(1)(a) in Division 7 of Part 2 of the
Migration Act.
76. This amendment inserts 'he or she is' before 'removed' in paragraph
196(1)(a).
77. This is a consequential amendment as a result of items 16 and 18 of
Schedule 1.
Item 18 After paragraph 196(1)(a)
78. This item amends subsection 196(1) in Division 7 of Part 2 of the
Migration Act.
79. This amendment inserts a new paragraph 196(1)(aa) after paragraph
196(1)(a). New paragraph 196(1)(aa) refers to when an officer begins
to deal with the non-citizen under subsection 198AD(3). This means
that once an officer begins to deal with a person by taking any of the
actions under subsection 198AD(3), immigration detention comes to an
end.
80. New subsection 198AD(3) sets out the actions that may be taken by an
officer in respect of an offshore entry person to whom new subsection
198AD(2) applies, including placing the offshore entry person on a
vehicle or vessel, and restraining the offshore entry person on a
vehicle or vessel. Subsection 198AD(3) does not limit the actions that
might be taken under subsection 198AD(2).
81. New subsection 198AD(11) inserted by item 25 of Schedule 1 provides
that an offshore entry person who is being dealt with under subsection
198AD(3) is taken not to be in immigration detention (as defined in
subsection 5(1)).
Item 19 Paragraph 196(1)(b)
82. This item amends paragraph 196(1)(b) in Division 7 of Part 2 of the
Migration Act.
83. This amendment inserts 'he or she is' before 'deported' in paragraph
196(1)(b).
84. This is a consequential amendment as a result of items 18 and 20 of
Schedule 1.
Item 20 Paragraph 196(1)(c)
85. This item amends paragraph 196(1)(c) in Division 7 of Part 2 of the
Migration Act.
86. This amendment inserts 'he or she is' before 'granted' in paragraph
196(1)(c).
87. This is a consequential amendment as a result of items 16 and 18 of
Schedule 1.
Item 21 Subsection 196(3)
88. This item amends subsection 196(3) in Division 7 of Part 2 of the
Migration Act.
89. Subsection 196(3) relevantly provides that subsection 196(1) prevents
the release, even by a court, of an unlawful non-citizen from detention
(otherwise than for removal or deportation) unless the non-citizen has
been granted a visa.
90. This amendment omits 'for removal or deportation' and substitutes it
with 'as referred to in paragraph (1)(a), (aa) or (b)' in subsection
196(3).
91. This is a consequential amendment as a result of item 18 of Schedule 1.
Item 22 Division 8 of Part 2 (heading)
92. Division 8 of Part 2 to the Migration Act deals with the removal from
Australia of unlawful non-citizens from Australia.
93. This amendment repeals the heading of Division 8 and substitutes a new
heading 'Division 8 - Removal of unlawful non-citizens etc.'.
94. This is a consequential amendment as a result of item 25 of Schedule 1,
which inserts a new framework for "taking" offshore entry persons from
Australia to a regional processing country in Subdivision B of Division
8 of Part 2 of the Migration Act.
Item 23 Before section 198
95. Division 8 of Part 2 of the Migration Act deals with the removal from
Australia of unlawful non-citizens.
96. This amendment inserts a new heading and creates a new Subdivision
before section 198. The new Subdivision heading is 'Subdivision A -
Removal'.
97. This is a consequential amendment as a result of item 25 of Schedule 1,
which inserts a new framework for "taking" offshore entry persons from
Australia to a regional processing country in Subdivision B of Division
8 of Part 2 of the Migration Act.
Item 24 At the end of section 198
98. This item amends section 198 in Division 8 of Part 2 of the Migration
Act.
99. Section 198 of the Migration Act provides for the removal from
Australia of unlawful non-citizens.
100. This amendment adds new subsection 198(11). New subsection 198(11)
provides that this section does not apply to an offshore entry person
to whom section 198AD applies.
101. The purpose of this amendment is to clarify that the powers to remove
an unlawful non-citizen under section 198 of the Migration Act do not
apply to an offshore entry person to whom new section 198AD applies.
102. Where an offshore entry person is not a person to whom new section
198AD applies, because of new sections 198AE, 198AF or 198AG, the power
to remove under subsection 198(2) of the Migration Act will be
available in circumstances where the unlawful non-citizen:
. is relevantly covered by section 193;
. has not subsequently been immigration cleared; and
. who either:
o has not made a valid application for a substantive visa that
can be granted when the applicant is in the migration zone;
or
o has made a valid application for a substantive visa that can
be granted when the applicant is in the migration zone, that
has been finally determined.
103. Relevantly, subsection 198(3) provides that the fact that an unlawful
non-citizen is eligible to apply for a substantive visa that can be
granted when the applicant is in the migration zone but has not done
so, does not prevent the application of subsection 198(2) to him or
her.
104. This provision would allow for offshore entry persons such as crew who
are not making claims to be refugees to be removed from Australia. For
those offshore entry persons who are making claims to be refugees but
who are not subject to section 198AD, their claims will be considered
in Australia.
Item 25 Section 198A
105. This item amends Division 8 in Part 2 of the Migration Act.
106. The amendments in item 25 of Schedule 1 will largely replace the
current framework for taking offshore entry persons to another country
for assessment of their claims to be refugees.
107. The amendment repeals section 198A of the Migration Act (which
provides that an offshore entry person may be taken to a declared
country) and substitutes it with a new 'Subdivision B - Regional
processing'.
Section 198AA Reason for Subdivision
108. This amendment inserts section 198AA 'Reason for Subdivision' in new
Subdivision B.
109. New section 198AA provides that this Subdivision is enacted because
the Parliament considers that:
a) people smuggling, and its undesirable consequences including the
resulting loss of life at sea, are major regional problems that
need to be addressed; and
b) offshore entry persons, including offshore entry persons in
respect of whom Australia has or may have protection obligations
under the Refugees Convention as amended by the Refugees Protocol,
should be able to be taken to any country designated to be a
regional processing country; and
c) it is a matter for the Minister and Parliament to decide which
countries should be designated as regional processing countries;
and
d) the designation of a country to be a regional processing country
need not be determined by reference to the international
obligations or domestic law of that country.
110. The purpose of this amendment is to articulate clearly Parliament's
intention and reasons for enacting new Subdivision B of Division 8 of
Part 2 to the Migration Act.
Section 198AB Regional processing country
111. This amendment inserts a new section 198AB 'Regional processing
country' after new section 198AA in new Subdivision B.
112. New subsection 198AB(1) provides that the Minister may, by legislative
instrument, designate that a country is a regional processing country.
113. New subsection 198(1A) provides that a legislative instrument under
subsection (1) may designate only one country, and must not provide
that the designation ceases to have effect.
114. The purpose of new subsection 198(1A) is to clarify that the Minister
may, by legislative instrument, designate only one country as a
regional processing country under subsection 198AB(1), and that the
legislative instrument must not provide for the cessation of the
designation.
115. New subsection 198(1B) provides that despite subsection 12(1) of the
Legislative Instruments Act 2003, a legislative instrument under
subsection (1) of this section commences at the earlier of the
following times:
. immediately after both Houses of the Parliament have passed a
resolution approving the designation;
. immediately after both of the following apply:
o a copy of the designation has been laid before each House of
the Parliament under section 198AC;
o 5 sitting days of each House have passed since the copy was
laid before that House without it passing a resolution
disapproving the designation.
116. Subsection 12(1) of the Legislative Instruments Act 2003 provides that
subject to subsection (2), a legislative instrument that is made on or
after the commencing day, or a particular provision of such an
instrument, takes effect from:
. the day specified in the instrument for the purposes of the
commencement of the instrument or provision; or
. the day and time specified in the instrument for the purposes of
the commencement of the instrument or provision; or
. the day, or day and time, of the commencement of an Act, or of a
provision of an Act, or of the occurrence of an event, that is
specified in the instrument for the purposes of the commencement
of the instrument or provision; or
. in any other case - the first moment of the day next following
the day when it is registered.
117. The purpose of new subsection 198AB(1B) is to clarify that a
legislative instrument made under subsection 198AB(1) does not take
effect according to subsection 12(1) of the Legislative Instruments Act
2003 but rather, at the earlier of the times specified in paragraphs
198AB(1B)(a) and (b).
118. New subsection 198AB(2) provides that the only condition for the
exercise of power under subsection 198AB(1) is that the Minister thinks
that it is in the national interest to designate the country to be a
regional processing country.
119. New subsection 198AB(3) provides that in considering the national
interest for the purposes of subsection 198AB(2), the Minister:
. must have regard to whether or not the country has given Australia
any assurances to the effect that:
o the country will not expel or return a person taken to the
country under new section 198AD to another country where his
or her life or freedom would be threatened on account of his
or her race, religion, nationality, membership of a
particular social group or political opinion; and
o the country will make an assessment, or permit an assessment
to be made, of whether or not a person taken to the country
under that section is covered by the definition of refugee in
Article 1A of the Refugees Convention as amended by the
Refugees Protocol; and
. may have regard to any other matter which, in the opinion of the
Minister, relates to the national interest.
120. The term 'national interest' has a broad meaning and refers to matters
which relate to Australia's standing, security and interests. For
example, these matters may include governmental concerns related to
such matters as public safety, border protection, national security,
defence, Australia's economic interests, Australia's international
obligations and its relations with other countries. Measures for
effective border management and migration controls are in the national
interest. Measures to develop an effective functioning regional
cooperation framework and associated processing arrangements to better
manage the flows of irregular migrants in our region are also in
Australia's national interest.
121. The purpose of new subsection 198AB(3) is to set out what factors the
Minister must have regard to in considering whether it is in the
national interest to designate a particular country as a regional
processing country. Paragraph 198AB(3)(b) also makes it clear that the
Minister may have regard to other factors that he considers to be
relevant to the national interest but that he is not bound to do so.
122. The Minister must have regard to whether, given that the country does
not need to be a signatory to the Refugees Convention, it has given
assurances to the effect that:
. the country will not expel or return a person taken to the country
under new section 198AD to another country where his or her life or
freedom would be threatened on account of his or her race,
religion, nationality, membership of a particular social group or
political opinion; and
. the country will make an assessment, or permit an assessment to be
made, of whether or not a person taken to the country under that
section is covered by the definition of refugee in Article 1A of
the Refugees Convention as amended by the Refugees Protocol.
123. New subsection 198AB(4) clarifies that the assurances referred to in
paragraph 198AB(3)(a) need not be legally binding.
124. New subsection 198AB(5) provides that the power under subsection
198AB(1) may only be exercised by the Minister personally. The power
cannot be delegated.
125. New subsection 198AB(6) provides that if the Minister designates a
country under subsection 198AB(1), the Minister may, by legislative
instrument, revoke the designation.
126. New subsection 198AB(7) provides that the rules of natural justice do
not apply to the exercise of the power under subsections 198AB(1) or
198AB(6).
127. The purpose of this provision is to make clear that the Minister is
not required to give a right to be heard to individuals who may be
taken to a country, in relation to the designation of that country as a
regional processing country, or the revocation of such a designation.
128. Natural justice would involve seeking and taking into consideration
the comments of potentially affected individuals:
. before any country was designated to be an regional processing
country under new section 198AB); and
. before the Minister directed an officer to take a person to a
specified regional processing country (where there is more than one
country designated to be an regional processing country).
129. If natural justice were not excluded as a ground of review it would in
effect mean that the Minister could not designate a regional processing
country or direct an officer to take a person to a specified regional
processing country without seeking and taking into consideration
comments in relation to every individual offshore entry person affected
or likely to be affected. This would negate the policy objective to
arrange for persons to be taken quickly for processing offshore. An
explicit statement excluding natural justice is considered appropriate
to ensure that the Minister's decisions are able to be acted upon in a
timely and efficient manner.
130. New subsection 198AB(9) provides that in this section, country
includes a colony, overseas territory or protectorate of a foreign
country; and an overseas territory for the international relations of
which a foreign country is responsible.
Section 198AC Documents to be laid before Parliament
131. This amendment inserts a new section 198AC 'Documents to be laid
before Parliament' after new section 198AB in new Subdivision B.
132. New subsection 198AC(1) provides that section 198AC applies if the
Minister designates a country to be a regional processing country under
subsection 198AB(1).
133. New subsection 198AC(2) provides that the Minister must cause to be
laid before each House of the Parliament:
a) a copy of the designation; and
b) a statement of the Minister's reasons for thinking it is in the
national interest to designate the country to be a regional
processing country, referring in particular to any assurances of a
kind referred to in paragraph 198AB(3)(a) that have been given by
the country; and
c) a copy of any written agreement between Australia and the country
relating to the taking of persons to the country; and
d) a statement about the Minister's consultations with the Office of
the United Nations High Commissioner for Refugees in relation to
the designation, including the nature of those consultations; and
e) a summary of any advice received from that Office in relation to
the designation; and
f) a statement about any arrangements that are in place, or are to be
put in place, in the country for the treatment of persons taken to
the country.
134. New subsection 198AC(3) provides that the Minister must comply with
subsection 198AC(2) within 2 sitting days of each House of the
Parliament after the day on which the designation is made.
135. New subsection 198AC(4) provides that the sole purpose of laying the
documents referred to in subsection 198AC(2) before the Parliament is
to inform the Parliament of the matters referred to in the documents
and nothing in the documents affects the validity of the designation.
Similarly, the fact that some or all of those documents do not exist
does not affect the validity of the designation.
136. New subsection 198AC(5) provides that a failure to comply with this
section does not affect the validity of the designation.
137. New subsection 198AC(6) provides that in this section, agreement
includes an agreement, arrangement or understanding whether or not it
is legally binding, and whether it is made before, on or after the
commencement of this section.
138. The purpose of the amendments made by section 198AC is to provide a
mechanism for the Minister to ensure information relevant to the
designation of a country is before the Parliament. The Parliament will
then have the opportunity to examine the appropriateness of the
designation and the arrangements in place for the treatment of persons
taken to the country in the context of its capacity to pass a
resolution to disapprove the designation of the country as a regional
processing country.
Section 198AD Taking offshore entry persons to a regional processing
country
139. This amendment inserts a new section 198AD 'Taking offshore entry
persons to a regional processing country' after new section 198AC in
new Subdivision B.
140. New subsection 198AD(1) provides that subject to sections 198AE, 198AF
and 198AG, this section applies to an offshore entry person who is
detained under section 189. New sections 198AE, 198AF and 198AG
provide for when new section 198AD does not apply to an offshore entry
person.
141. New subsection 198AD(1) has a note that provides that, for when this
section applies to a transitory person, see section 198AH. New section
198AH provides for the application of new section 198AD to certain
transitory persons.
142. New subsection 198AD(2) provides that an officer must, as soon as
reasonably practicable, take an offshore entry person to whom this
section applies from Australia to a regional processing country.
143. If it is not appropriate to take an offshore entry person to a
regional processing country, having regard to their personal
circumstances, the person's case would be referred to the Minister for
consideration of the exercise of his or her personal power under
section 198AE.
Powers of an officer
144. New subsection 198AD(3) provides that for the purposes of subsection
198AD(2) and without limiting that subsection, an officer may do any or
all of the following things within or outside Australia:
(a) place the offshore entry person on a vehicle or vessel;
(b) restrain the offshore entry person on a vehicle or vessel;
(c) remove the offshore entry person from the place at which the
person is detained, or a vehicle or vessel;
(d) use such force as is necessary and reasonable.
145. The purpose of subsection 198AD(3) is to provide officers, when acting
under subsection 198AD(2), whether within or outside Australia, with
power to take actions in respect of an offshore entry person to whom
section 198AD applies and use such force as is necessary and
reasonable, for the purposes of taking the offshore entry person to a
regional processing country. Subsection 198AD(3) does not limit the
actions that may be taken under subsection 198AD(2).
146. New subsection 198AD(4) provides that if, in the course of taking an
offshore entry person to a regional processing country, an officer
considers that it is necessary to return the person to Australia,
subsection 198AD(3) applies until the person is returned to Australia,
and section 42 of the Migration Act does not apply in relation to the
person's return to Australia. Section 42 of the Act provides that a
non-citizen must not travel to Australia without a visa that is in
effect, subject to certain exceptions.
147. The purpose of new subsection 198AD(4) is to ensure that an officer
continues to have the powers set out in new subsection 198AD(3) while
returning the person to Australia, where the officer considers this to
be necessary. This may arise in situations, for example, where a plane
taking a person to a regional processing country has to turn around and
return to Australia for emergency reasons. Further, this amendment
also makes it clear that section 42 does not apply so that the person
does not require a visa to travel to Australia.
Ministerial direction
148. New subsection 198AD(5) provides that if there are 2 or more regional
processing countries, the Minister must, in writing, direct an officer
to take an offshore entry person, or a class of offshore entry persons,
under subsection 198AD(2) to the regional processing country specified
by the Minister in the direction.
149. The effect of subsection 198AD(5) is that the Minister has a duty,
where there are 2 or more regional processing countries designated
under new subsection 198AB(1), to direct officers as to which regional
processing country an offshore entry person, or a class of offshore
entry persons, is to be taken under new subsection 198AD(2). This will
allow the Minister to manage a number of circumstances such as where it
may not be appropriate to take a person, or a class of persons, to a
particular regional processing country, or to manage regional
processing arrangements in a strategic manner.
150. New subsection 198AD(6) provides that if the Minister gives an officer
a direction under subsection 198AD(5), the officer must comply with the
direction.
151. New subsection 198AD(7) provides that the duty under subsection
198AD(5) may only be performed by the Minister personally. The duty
cannot be delegated.
152. New subsection 198AD(8) provides that the only condition for the
performance of the duty under subsection 198AD(5) is that the Minister
thinks that it is in the public interest to direct the officer to take
an offshore entry person, or a class of offshore entry persons, under
subsection 198AD(2) to the regional processing country specified by the
Minister in the direction.
153. The effect of new subsection 198AD(8) is that the only consideration
for the Minister in making a direction under new subsection 198AD(5) is
that the Minister thinks it is in the public interest to do so.
154. New subsection 198AD(9) provides that the rules of natural justice do
not apply to the performance of the duty under subsection 198AD(5).
155. The purpose of subsection 198AD(9) is to make clear that the Minister
is not required to give an offshore entry person a right to be heard to
individuals who may be taken to one or more regional processing
countries in relation to the particular regional processing country he
or she is to be taken.
156. Natural justice would involve seeking and taking into consideration
the comments of potentially affected individuals:
. before any country was designated to be an regional processing
country (under new section 198AB); and
. before the Minister directed an officer to take a person to a
specified regional processing country (where there is more than one
country designated to be a regional processing country).
157. If natural justice were not excluded as a ground of review it would in
effect mean that the Minister could not designate a regional processing
country or direct an officer to take a person to a specified regional
processing country without seeking and taking into consideration
comments in relation to every individual offshore entry person affected
or likely to be affected. This would negate the policy objective to
arrange for persons to be taken quickly for processing offshore. An
explicit statement excluding natural justice is considered appropriate
to ensure that the Minister's decisions are able to be acted upon in a
timely and efficient manner.
158. New subsection 198AD(10) provides that a direction under subsection
198AD(5) is not a legislative instrument.
159. New subsection 198AD(10) is inserted to assist readers by clarifying
that a direction made under subsection 198AD(5) is not a legislative
instrument within the meaning of section 5 of the Legislative
Instruments Act (2003).
Not in immigration detention
160. New subsection 198AD(11) provides that an offshore entry person who is
being dealt with under subsection 198AD(3) is taken not to be in
immigration detention (as defined in subsection 5(1) of the Migration
Act). New subsection 198AD(3) provides officers, when acting under
subsection 198AD(2), whether within or outside Australia, with power to
take certain actions in respect of an offshore entry person to whom
section 198AD applies and use such force as necessary and reasonable,
for the purposes of taking the offshore entry person to a regional
processing country.
161. The purpose of subsection 198AD(11) is to clarify that an offshore
entry person to whom section 198AD applies is taken not to be
immigration detention (as defined in subsection 5(1)) when the offshore
entry person is being dealt with under subsection 198AD(3). An officer
will begin dealing with a person under new subsection 198AD(3) when the
officer commences any of the actions referred to in that subsection for
the purpose of taking the person from Australia, either using necessary
and reasonable force or with the person's cooperation.
Meaning of officer
162. New subsection 198AD(12) provides that in this section, officer means
an officer within the meaning of section 5 of the Migration Act, and
includes a member of the Australian Defence Force.
Section 198AE Ministerial determination that section 198AD does not
apply
163. This amendment inserts a new section 198AE 'Ministerial determination
that section 198AD does not apply' after new section 198AD in new
Subdivision B.
164. New subsection 198AE(1) provides that if the Minister thinks that it
is in the public interest to do so, the Minister may, in writing,
determine that section 198AD does not apply to an offshore entry
person.
165. The note following new subsection 198AE(1) directs the reader to the
Acts Interpretation Act 1901 for specification by class.
166. The purpose of new subsection 198AE(1) is to allow the Minister, if he
or she thinks it is in the public interest, to determine in writing
that section 198AD does not apply to an offshore entry person thereby
removing the obligation for the person to be taken to a regional
processing country as soon as reasonably practicable. The reference to
the Acts Interpretation Act 1901 in the note to new subsection 198AE(1)
clarifies that a determination may relate to a class of offshore entry
persons.
167. This is the mechanism whereby the Minister can exempt offshore entry
persons from the requirement to be taken to a regional processing
country where the Minister considers that it would be in the public
interest to do so. For example, the offshore entry person may have
vulnerabilities that cannot be accommodated in the regional processing
country, or have claims to be refugees against the regional processing
country (in addition to those they claim to have against their country
of origin or habitual residence).
168. The claims of an offshore entry person to be a refugee, to whom
section 198AD does not apply because of new section 198AE, would be
assessed in Australia. If, after having their claims considered, the
person is found not to be in need of protection, the appropriate power
for their removal from Australia would be section 198.
169. New subsection 198AE(2) provides that the power under subsection
198AE(1) may only be exercised by the Minister personally. The power
cannot be delegated.
170. New subsection 198AE(3) provides that the rules of natural justice do
not apply to an exercise of the power under subsection 198AE(1).
171. The purpose of new subsection 198AE(3) is to make clear that the
Minister is not required to give a right to be heard to affected
individuals in relation to the exercise of the Minister's non-
compellable power under subsection 198AD(1) to determine that section
198AD does not apply to an offshore entry person.
172. Natural justice would involve seeking and taking into consideration
the comments of potentially affected individuals:
. before any country was designated to be a regional processing
country (under new section 198AB); and
. before the Minister directed an officer to take a person to a
specified regional processing country (where there is more than one
country designated to be a regional processing country).
173. If natural justice were not excluded as a ground of review it would in
effect mean that the Minister could not designate a regional processing
country or direct an officer to take a person to a specified regional
processing country without seeking and taking into consideration
comments in relation to every individual offshore entry person affected
or likely to be affected. This would negate the policy objective to
arrange for persons to be taken quickly for processing offshore. An
explicit statement excluding natural justice is considered appropriate
to ensure that the Minister's decisions are able to be acted upon in a
timely and efficient manner.
174. New subsection 198AE(4) provides that if the Minister makes a
determination under subsection 198AE(1), the Minister must cause to be
laid before each House of the Parliament a statement that sets out the
determination, and sets out the reasons for the determination,
referring in particular to the Minister's reasons for thinking that the
Minister's actions are in the public interest.
175. New subsection 198AE(5) provides that a statement under subsection
198AE(4) must not include:
(a) the name of the offshore entry person; or
(b) any information that may identify the offshore entry person; or
(c) if the Minister thinks that it would not be in the public
interest to publish the name of another person connected in any
way with the matter concerned - the name of that other person or
any information that may identify that other person.
176. New subsection 198AE(6) provides that a statement under subsection
198AE(4) must be laid before each House of the Parliament within 15
sitting days of that House after:
(a) if the determination is made between 1 January and 30 June
(inclusive) in a year-1 July in that year; or
(b) if the determination is made between 1 July and 31 December
(inclusive) in a year-1 January in the following year.
177. The purpose of new subsections 198AE(4), (5) and (6) is to provide a
mechanism for the Minister to ensure public and political
accountability to the Parliament should the Minister determine that new
section 198AD should not apply to an offshore entry person. Further,
new subsection 198AE(5) ensures that the identity of an offshore entry
person the subject of a ministerial determination made under new
section 198AE is protected.
178. New subsection 198AE(7) provides that the Minister does not have a
duty to consider whether to exercise the power under subsection
198AE(1) in respect of any offshore entry person, whether the Minister
is requested to do so by the offshore entry person or by any other
person, or in any other circumstances.
179. The purpose of subsection 198AE(7) is to put beyond doubt that the
Minister does not have a duty to consider whether to exercise the power
to make a determination that section 198AD does not apply to an
offshore entry person, whether the Minister is requested to do so by
the offshore entry person or by any person, or in any other
circumstances. There may be circumstances where the Minister is
requested to a make determination, but the Minister is not under any
duty or obligation to take into account such requests when choosing
whether or not to exercise the power in new subsection 198AE(1).
Similarly, the Minister will not be required to consult any person,
including a person covered by a determination, prior to the making of a
determination or a decision not to make a determination.
180. New subsection 198AE(8) provides that a determination under subsection
198AE(1) is not a legislative instrument.
181. New subsection 198AE(8) is inserted to assist readers by clarifying
that a direction made under subsection 198AE(1) is not a legislative
instrument within the meaning of section 5 of the Legislative
Instruments Act (2003).
Section 198AF No regional processing country
182. This amendment inserts a new section 198AF 'No regional processing
country' after new section 198AE in new Subdivision B.
183. New section 198AF provides that section 198AD does not apply to an
offshore entry person if there is no regional processing country.
184. The effect of this amendment is that if there is no regional
processing country that has been designated by the Minister under new
subsection 198AB(1), the obligation to take an offshore entry person to
a regional processing country under new subsection 198AD(2) does not
arise.
185. The claims of an offshore entry person to be a refugee, to whom
section 198AD does not apply because of new section 198AF, would be
assessed in Australia. If, after having their claims considered, the
person is found not to be in need of protection, the appropriate power
for their removal from Australia would be section 198.
Section 198AG Non-acceptance by regional processing country
186. This amendment inserts a new section 198AG 'Non-acceptance by regional
processing country' after new section 198AF in new Subdivision B.
187. The note following new section 198AG directs the reader to the Acts
Interpretation Act 1901 for specification by class.
188. New section 198AG provides that section 198AD does not apply to an
offshore entry person if the regional processing country, or each
regional processing country (if there is more than one such country),
has advised an officer, in writing, that the country will not accept
the offshore entry person.
189. The effect of this amendment is that if the regional processing
country, or each regional processing country (if there is more than
one) has advised an officer in writing that the country will not accept
the offshore entry person, an officer would not be obliged to take that
offshore entry person to a regional processing country under new
subsection 198AD(2).
190. For example, a country may be designated as a regional processing
country under subsection 198AB(1) but the arrangement with that country
allows it to refuse to accept a particular offshore entry person, for
example, for security reasons. New section 198AG may also apply where
a country is designated as a regional processing country but does not
have the capacity to accept any additional offshore entry persons for
the processing of their claims to be a refugee.
191. The claims of an offshore entry person to whom section 198AD does not
apply because of new section 198AG, would be assessed in Australia.
If, after having their claims considered, the person is found not to be
in need of protection, the appropriate power for their removal from
Australia would be section 198.
Section 198AH Application of section 198AD to certain transitory persons
192. This amendment inserts a new section 198AH 'Application of section
198AD to certain transitory persons' after new section 198AG in new
Subdivision B.
193. New section 198AH provides that section 198AD applies, subject to
sections 198AE, 198AF and 198AG, to a transitory person if, and only
if:
(a) the person is an offshore entry person who is brought to
Australia from a regional processing country under section 198B
for a temporary purpose; and
(b) the person is detained under section 189; and
(c) the person no longer needs to be in Australia for the temporary
purpose (whether or not the purpose has been achieved); and
(d) in the case where the person has not made a request under
section 198C - an assessment of whether or not the person is
covered by the definition of refugee in Article 1A of the Refugees
Convention as amended by the Refugees Protocol was not completed
while the person was in the regional processing country; and
(e) in the case where the person has made such a request - a
certificate is in force under section 198D in relation to the
person.
194. The purpose of this amendment is to ensure that section 198AD applies
to certain transitory persons who are in immigration detention under
section 189 of the Migration Act, when the person no longer needs to be
in Australia for the temporary purpose (whether or not the purpose has
been achieved). That is, the offshore entry person must be taken back
to a regional processing country in order for the assessment of their
claims to be completed, unless there is:
. a Ministerial determination that new section 198AD does not apply
to the offshore entry person (new section 198AE);
. there is no regional processing country (new section 198AF); or
. the regional processing country, or each regional processing
country, has advised an officer that the country will not accept
the offshore entry person (new section 198AG).
195. The provision only applies to offshore entry persons who have been
taken to a regional processing country who are then brought back to
Australia pursuant to section 198B. This means that a person who is
purely a transitory person and not also an offshore entry person, (for
example, a person taken directly to a regional processing country
pursuant to subsection 245F(9)) will not be covered by this provision.
Those transitory persons will be liable to removal under subsection
198(1A) as soon as reasonably practicable after the person no longer
needs to be in Australia for the temporary purpose (whether or not the
purpose has been achieved) for which they were brought to Australia
under section 198B.
196. The intention is that if the person has not had their claims to be a
refugee determined in the regional processing country before being
returned to Australia temporarily, they will be taken back to that
regional processing country or another regional processing country for
the processing of their claims. If the person had been determined not
to be a refugee in the regional processing country prior to being
brought back to Australia, they would need to be removed from Australia
under section 198.
197. If the person has not made a request under section 198C for a
determination by the Refugee Review Tribunal for an assessment of
whether they are covered by the definition of refugee in Article 1A of
the Refugees Convention as amended by the Refugees Protocol, and that
assessment was not completed while the person was in the regional
processing country, the person must be taken back to the regional
processing country under subsection 198AD(2).
198. However, if the person has made a request under section 198C for a
determination by the Refugee Review Tribunal for an assessment of
whether they are covered by the definition of refugee in Article 1A of
the Refugees Convention as amended by the Refugees Protocol, and the
Secretary has issued a certificate of non-cooperation to the Tribunal
in respect of the person under section 198AD, the person must be taken
back to the regional processing country under subsection 198AD(2).
Subdivision C Transitory persons etc.
199. This amendment inserts a new heading 'Subdivision C - Transitory
Persons etc.' in Division 8 of Part 2 of the Migration Act.
200. The purpose of this amendment is to clarify that new Subdivision C of
Division 8 of Part 2 of the Migration Act deals with transitory
persons.
201. This is a consequential amendment as a result of item 25 of Schedule
1, which inserts a new framework for regional processing in Subdivision
B of Division 8 of Part 2 of the Migration Act.
Item 26 Subsection 198D(3) (paragraph (c) of the definition of
uncooperative conduct)
202. This item repeals paragraph (c) and substitutes new paragraph (c) and
inserts new paragraphs (d) and (e) into the definition of
uncooperative conduct in subsection 198D(3) in Division 8 of Part 2 of
the Migration Act.
203. Section 198D deals with a certificate of non-cooperation, and provides
that if the Secretary is satisfied that a transitory person has engaged
in uncooperative conduct, either before or after the person was brought
to Australia, then the Secretary may issue a certificate to that effect
to the Refugee Review Tribunal.
204. Uncooperative conduct is defined in subsection 198D(3) to mean
refusing or failing to cooperate with relevant authorities in
connection with any of the following:
(a) attempts to return the person to a country where the person
formerly resided;
(b) attempts to facilitate the entry or stay of the person in
another country;
(c) the detention of the person in a country in respect of which a
declaration is in force under subsection 198A(3).
205. This amendment repeals paragraph (c) of the definition of
uncooperative conduct in subsection 198D(3) and substitutes it with a
new paragraph (c) which provides 'the detention of the person under
section 189;'.
206. This amendment also inserts new paragraphs (d) and (e) into the
definition of uncooperative conduct in subsection 198D(3). New
paragraph (d) provides 'the taking of the person to a regional
processing country under section 198AD'. New paragraph (e) provides
'the detention of the person in a regional processing country'.
207. The purpose of this amendment is to extend the meaning of
uncooperative conduct in section 198D to include refusing or failing to
cooperate with relevant authorities in connection with the detention of
the person under section 189; the taking of the person to a regional
processing country under new section 198AD and the detention of the
person in a regional processing country.
Item 27 At the end of section 199
208. This item amends section 199 in Division 8 of Part 2 of the Migration
Act.
209. Section 199 deals with spouses and de facto partners and dependant
children of unlawful non-citizens who are about to be removed from
Australia.
210. Subsection 199(1) of the Migration Act provides that if an officer
removes, or is about to remove, an unlawful non-citizen, and the spouse
or de facto partner of that non-citizen requests an officer to also be
removed from Australia, an officer may remove the spouse or de facto
partner as soon as reasonably practicable.
211. Subsection 199(2) of the Migration Act provides that if an officer
removes, or is about to remove, an unlawful non-citizen, the spouse or
de facto partner of that non-citizen requests an officer to also be
removed from Australia with a dependent child or children of that non-
citizen, an officer may remove the spouse or de facto partner and
dependant child or children as soon as reasonably practicable.
212. Subsection 199(3) provides that if an officer removes, or is about to
remove, an unlawful non-citizen, and that non-citizen requests an
officer to remove a dependant child or children of the non-citizen from
Australia, an officer may remove the dependant child or children as
soon as reasonably practicable.
213. This amendment will add a new subsection (4) after subsection 199(3).
New subsection (4) provides that 'in paragraphs 199(1)(a), 199(2)(a)
and 199(3)(a), a reference to remove includes a reference to take to a
regional processing country'.
214. The purpose of this amendment is to ensure that officers have the
power to remove from Australia, as soon as reasonably practicable,
spouses, de facto partners and dependant children of offshore entry
persons who are to be taken or are about to be taken to a regional
processing country where subsection 199(1), (2) or (3) applies.
215. The discretion for an officer to decide to remove a spouse, de facto
partner or dependant child of the unlawful non-citizen who is being
taken, or who is about to be taken, to a regional processing country
would need to be exercised with regard to whether the particular
designated regional processing country has agreed to accept them.
Item 28 Subparagraph 336E(2)(a)(vi)
216. This item amends subparagraph 336E(2)(a)(vi) in Division 3 of Part 4A
of the Migration Act.
217. Section 336E of the Migration Act deals with the disclosure of
identifying information. Subsection 336E(1) of the Act provides that a
person commits an offence if the person's conduct causes the disclosure
of identifying information, and the disclosure is not a permitted
disclosure.
218. Relevantly, subparagraph 336E(2)(a)(vi) of the Migration Act provides
that a permitted disclosure of identifying information is a disclosure
that is for the purpose of data-matching in order to inform the
governments of foreign countries of the identity of non-citizens who
are, or are to be, removed or deported from Australia.
219. This amendment inserts ', taken' after 'removed' in subparagraph
336E(2)(a)(vi).
220. The purpose of this amendment is to allow the disclosure of
identifying information for the purposes of data-matching in order to
inform the governments of foreign countries of the identity of non-
citizens who are, or are to be, taken from Australia under new
subsection 198AD(2).
221. It is intended that the governments of the foreign countries to whom
identifying information will be disclosed under subparagraph
336E(2)(a)(vi) would only be the governments of regional processing
countries designated by the Minister under new subsection 198AB(1).
Item 29 Subparagraph 336F(5)(c)(ii)
222. This item amends subparagraph 336F(5)(c)(ii) in Division 3 of Part 4A
of the Migration Act.
223. Section 336F of the Migration Act provides for authorising the
disclosure of identifying information to, for example, one or more
specified foreign countries.
224. This amendment will omit 'to whom Australia owes' and substitute it
with 'in respect of whom Australia has protection' in subparagraph
336F(5)(c)(ii).
225. The purpose of this amendment is to clarify that Australia's
obligations under the Refugees Convention as amended by the Refugees
Protocol are owed to Contracting States.
Item 30 Paragraph 474(7)(a)
226. This item amends paragraph 474(7)(a) in Division 1 of Part 8 of the
Migration Act.
227. Subsection 474(1) of the Migration Act provides that certain decisions
under the Migration Act are final and conclusive, and must not be
challenged, appealed against, reviewed, quashed or called in question
in any court, and is not subject to prohibition, mandamus, injunction,
declaration or certiorari in any court on any account.
228. Paragraph 474(7)(a) of the Migration Act provides that a decision of
the Minister not to exercise, or not to consider the exercise, of the
Minister's power under subsection 37A(2) or (3), section 48B, paragraph
72(1)(c), section 91F, 91L, 91Q, 195A, 197AB, 197AD, 351, 391, 417,
454, or subsection 503A(3) are privative clause decisions.
229. This amendment inserts '198AE' after '197AD,' in paragraph 474(7)(a).
230. The purpose of this amendment is to ensure that a decision of the
Minister to exercise or not to consider the exercise of the non-
compellable power under new section 198AE is a privative clause
decision.
231. This amendment will promote consistency with other provisions of
section 474 of the Act, which provide that decisions made by the
Minister personally under other powers (such as sections 351 and 417 of
the Migration Act) are privative clause decisions.
Item 31 Subsection 486B(1)
232. This item amends subsection 486B(1) in Part 8A of the Migration Act.
233. Part 8A of the Migration Act deals with restrictions on court
proceedings, and section 486B deals with multiple parties in migration
litigation. Subsection 486B(1) relevantly provides that this section
applies to all migration proceedings in the High Court, the Federal
Court or the Federal Magistrates Court that raise an issue in
connection with visas (including if a visa is not granted or has been
cancelled), deportation or removal of unlawful non-citizens.
234. This amendment inserts 'taking,' after 'deportation,' in subsection
486B(1).
235. The purpose of this amendment is to allow a court to consolidate
migration proceedings in the High Court, the Federal Court or the
Federal Magistrates Court that raise an issue in connection with the
taking of unlawful non-citizens under new Subdivision B of Division 8
of Part 2 of the Migration Act.
Item 32 Paragraph 486C(1)(a)
236. This item amends paragraph 486C(1)(a) in Part 8A of the Migration Act.
Section 486C deals with persons who may commence or continue
proceedings in the Federal Magistrates Court or the Federal Court.
Paragraph 486C(1)(a) relevantly provides that only a person mentioned
in this section may commence or continue a proceeding in the Federal
Magistrates Court or the Federal Court that raises an issue in
connection with visas (including if a visa is not granted or has been
cancelled), deportation, or removal of unlawful non-citizens.
237. This item inserts 'taking,' after 'deportation,' in paragraph
486C(1)(a).
238. This is a consequential amendment as a result of item 25 of Schedule
1. This amendment does not give an offshore entry person an
independent right to seek judicial review in the Federal Court or
Federal Magistrates Court.
239. It should be noted that the amendment made by item 34 of Schedule 1
prohibits proceedings against the Commonwealth relating to the
performance or exercise of a function, duty or power under new
Subdivision B of Division 8 of Part 2 of the Migration Act in relation
to an offshore entry person from being instituted or continued in any
court.
240. To avoid doubt, subsection 486C(4) provides that nothing in section
486C allows a person to commence or continue a proceeding that the
person could not otherwise commence or continue.
Item 33 Paragraph 494AA(1)(d)
241. This item amends paragraph 494AA(1)(d) in Part 9 of the Migration Act.
242. Section 494AA provides for a bar on certain legal proceedings relating
to offshore entry persons. Subsection 494AA(1) relevantly provides
that the following proceedings against the Commonwealth may not be
instituted or continued in any court:
a) proceedings in relation to an offshore entry by an offshore
entry person;
b) proceedings relating to the status of an offshore entry person
as an unlawful non-citizen during any part of the ineligibility
period;
c) proceedings relating to the lawfulness of the detention of an
offshore entry person during the ineligibility period, being a
detention based on the status of the person as an unlawful non-
citizen;
d) proceedings relating to the exercise of powers under section
198A.
243. This amendment inserts 'repealed' before 'section' in paragraph
494AA(1)(d).
244. The purpose of this amendment is to ensure that proceedings relating
to the exercise of powers under section 198A as in force prior to the
commencement of this amending Act continue to be prohibited under
section 494AA of the Migration Act following the commencement of this
Act.
245. This is a consequential amendment as a result of item 25 of Schedule
1.
Item 34 At the end of subsection 494AA(1)
246. This item amends subsection 494AA(1) in Part 9 of the Migration Act.
247. This amendment inserts a new paragraph (e) after paragraph
494AA(1)(d). New paragraph 494AA(1)(e) refers to 'proceedings relating
to the performance or exercise of a function, duty or power under
Subdivision B of Division 8 of Part 2 in relation to an offshore entry
person.'
248. Under section 494AA, certain legal proceedings against the
Commonwealth relating to offshore entry persons may not be instituted
or continued in any court.
249. Subsection 494AA(4) defines Commonwealth to include an officer of the
Commonwealth and any other person acting on behalf of the Commonwealth.
250. New paragraph 494AA(1)(e) prohibits proceedings against the
Commonwealth relating to the performance or exercise of a function,
duty or power under new Subdivision B of Division 8 of Part 2 of the
Migration Act in relation to an offshore entry person.
251. The effect of this amendment is that proceedings against the
Commonwealth relating to any performance or exercise of a function,
duty or power under new Subdivision B of Division 8 of Part 2 of the
Migration Act in relation to an offshore entry person cannot be
instituted or continued in any court. However, this amendment does not
affect the jurisdiction of the High Court under section 75 of the
Constitution.
Item 35 After paragraph 494AB(1)(c)
252. This item amends subsection 494AB(1) in Part 9 of the Migration Act.
253. This amendment inserts a new paragraph (ca) after paragraph
494AB(1)(c).
254. New paragraph 494AB(1)(ca) refers to 'proceedings relating to the
performance or exercise of a function, duty or power under Subdivision
B of Division 8 of Part 2 in relation to a transitory person;'.
255. Under section 494AB certain legal proceedings against the Commonwealth
relating to transitory persons may not be instituted or continued in
any court.
256. New paragraph 494AB(1)(ca) prohibits proceedings against the
Commonwealth relating to the performance or exercise of a function,
duty or power under new Subdivision B of Division 8 of Part 2 in
relation to a transitory person.
257. The effect of this amendment is that legal proceedings against the
Commonwealth relating to any performance or exercise of a function,
duty or power under new Subdivision B of Division 8 of Part 2 of the
Migration Act in relation to a transitory person cannot be instituted
or continued in any court. However, this amendment does not affect the
jurisdiction of the High Court under section 75 of the Constitution.
Item 36 Application - section 198AD of the Migration Act 1958
258. This item provides that section 198AD of the Migration Act, as
inserted by this Schedule, applies in relation to an offshore entry
person who enters Australia on or after 13 August 2012.
259. The effect of this amendment is that regional processing arrangements
will apply in relation to offshore entry persons who enter Australia on
or after 13 August 2012. This date aligns with the date on
which the Expert Panel on Asylum Seekers reported its recommendations
to the Government. The Government endorsed in-principle the Expert
Panel's recommendations on the same date.
SCHEDULE 2 - Other amendments
Immigration (Guardianship of Children) Act 1946
Item 1 Section 4
260. This item amends section 4 of the Immigration (Guardianship of
Children) Act 1946 ('the IGOC Act').
261. Section 4 of the IGOC Act deals with definitions.
262. This amendment inserts a new definition, migration law, which means
the Migration Act 1958, the regulations made under that Act, or any
instrument made under that Act or those regulations.
263. The term migration law is used in the new provisions inserted by item
8 of Schedule 2. The insertion of this definition is a result of
amendments made by that item.
264. This amendment aims to assist readers by avoiding the need to
individually specify the Act, Regulations and legislative instruments
where all three are applicable.
Item 2 Section 4
265. This item amends section 4 of the IGOC Act.
266. This amendment inserts a new definition, regional processing country,
which has the same meaning as it has in the Migration Act 1958.
267. Regional processing country is defined at subsection 5(1) of the
Migration Act (as amended by item 4 of Schedule 1) to mean a country
designated by the Minister under new subsection 198AB(1) as a regional
processing country. New section 198AB is inserted into the Migration
Act by item 25 of Schedule 1.
268. The term regional processing country is used in new provisions
inserted by item 4 and item 8 of Schedule 2. The insertion of this
definition is a result of amendments made by those items.
Item 3 Section 6
269. This item amends section 6 of the IGOC Act.
270. Section 6 of the IGOC act deals with the guardianship of non-citizen
children. Section 6 relevantly provides that:
The Minister shall be the guardian of the person, and of the estate in
Australia, of every non-citizen child who arrives in Australia after
the commencement of this Act to the exclusion of the parents and every
other guardian of the child, and shall have, as guardian, the same
rights, powers, duties, obligations and liabilities as a natural
guardian of the child would have, until the child reaches the age of 18
years or leaves Australia permanently, or until the provisions of this
Act cease to apply to and in relation to the child, whichever first
happens.
271. This amendment inserts '(1)' before 'The Minister' in section 6. The
effect of this amendment is that the current content of section 6
becomes subsection 6(1).
272. This is a consequential amendment as a result of item 4 of Schedule 2.
Item 4 At the end of section 6
273. This item amends section 6 of the IGOC Act.
274. This amendment adds a new subsection 6(2) after new subsection 6(1)
(as amended by item 3 of Schedule 2) of the IGOC Act.
275. New subsection 6(2) provides that without limiting the meaning of
leaves Australia permanently in subsection 6(1), a non-citizen child
leaves Australia permanently if:
a) the child is removed from Australia under section 198 or 199 of
the Migration Act; or
b) the child is taken from Australia to a regional processing country
under section 198AD of the Migration Act; or
c) the child is deported under section 200 of the Migration Act; or
d) the child is taken to a place outside Australia under paragraph
245F(9)(b) of the Migration Act.
276. The purpose of this amendment is to put beyond doubt that the
circumstances stated in the paragraphs of new subsection 6(2) are
circumstances in which a child is taken to have left Australia
permanently. The list is non-exhaustive, and as such the natural
meaning of the expression leaves Australia permanently is not limited
to the circumstances listed in the paragraphs of new subsection 6(2).
Item 5 Subsection 6A(4)
277. This item repeals subsection 6A(4) of the IGOC Act.
278. Section 6A of the IGOC Act deals with the giving of consent for a non-
citizen child to leave Australia.
279. Relevantly, subsection 6A(4) provides that section 6A shall not affect
the operation of any other law regulating the departure of persons from
Australia.
280. In Plaintiff M106 of 2011 by his litigation guardian, Plaintiff
M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 the
High Court of Australia held that laws providing for the compulsory
removal of certain persons from Australia or taking such persons to
another country are not laws "regulating the departure of persons from
Australia". In the absence of these amendments the effect of this
decision is that no unaccompanied minor who is subject to the IGOC Act
can be removed, taken or deported from Australia in the exercise of any
power under the Migration Act unless the Minister for Immigration and
Citizenship, in the exercise of a separate statutory power as guardian
of that minor, gives written consent to the removal or taking from
Australia of the minor, having regard to the minor's interests.
281. The High Court's decision does not align with the Government's policy
intention which is that the Minister's consent under section 6A of the
IGOC Act is not required for a non-citizen child to be removed, taken
or deported from Australia under the Migration Act. This intention is
given effect by item 8 of Schedule 2. As such, this amendment is a
consequential amendment as a result of item 8 of Schedule 2.
Subsection 6A(4) is effectively replaced by the amendments to section 8
made by item 8 of Schedule 2.
Item 6 Section 8 (heading)
282. This item amends section 8 of the IGOC Act.
283. Currently, the heading of section 8 of the IGOC Act provides 'Saving
of application of State laws' and the section provides that except as
prescribed, nothing in the IGOC Act shall affect the operation in
relation to non-citizen children of any provision of the laws of any
State or Territory relating to child welfare.
284. This amendment repeals the heading to section 8 'Saving of application
of State laws' and substitutes it with 'Operation of other laws'.
285. This is a consequential amendment as a result of item 8 of Schedule 2.
Item 7 Section 8
286. This item amends section 8 of the IGOC Act.
287. This amendment inserts '(1)' before 'Except as'. The effect of this
amendment is that section 8 becomes subsection 8(1).
288. This is a consequential amendment as a result of item 8 of Schedule 2.
Item 8 At the end of section 8
289. This item amends section 8 of the IGOC Act.
290. This amendment inserts new subsections 8(2) and 8(3) after subsection
8(1) of the IGOC Act.
291. New subsection 8(2) provides that nothing in the IGOC Act affects the
operation of the migration law, or the performance or exercise, or the
purported performance or exercise, of any function, duty or power under
the migration law, or imposes any obligation on the Minister to
exercise, or to consider exercising, any power conferred on the
Minister by or under the migration law.
292. Migration law for the purposes of new subsection 8(2) is a new defined
term inserted into section 4 by item 1 of Schedule 2.
293. New subsection 8(3) provides that without limiting subsection 8(2),
nothing in the IGOC Act affects the performance or exercise, or the
purported performance or exercise, of any function, duty or power
relating to:
a) the removal of a non-citizen child from Australia under section
198 or 199 of the Migration Act; or
b) the taking of a non-citizen child from Australia to a regional
processing country under section 198AD of the Migration Act; or
c) the deportation of a non-citizen child under section 200 of the
Migration Act; or
d) taking of a non-citizen child to a place outside Australia
under paragraph 245F(9)(b) of the Migration Act.
294. The purpose of this amendment is to restore the law to the position as
it was understood prior to the High Court of Australia's decision in
Plaintiff M106 of 2011 by his litigation guardian, Plaintiff M70/2011 v
Minister for Immigration and Citizenship [2011] HCA 32. That is, it
will clarify that the Migration Act is not subject to the IGOC Act.
For example, it is intended that the Minister's consent under section
6A of the IGOC Act will not be required before a non-citizen child may
be removed, taken or deported from Australia under the Migration Act.
295. The matters listed in the paragraphs to new subsection 8(3) are
intended to put it beyond doubt that the IGOC Act does not affect those
matters. It is not an exhaustive list of all circumstances that fall
within the meaning of new subsection 8(2).
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