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Migration and Maritime Powers Amendment Bill (No. 1) 2015



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ISSN 1328-8091

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BILLS DIGEST NO. 30, 2015-16 13 OCTOBER 2015

Migration and Maritime Powers Amendment Bill (No. 1) 2015 Elibritt Karlsen Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 2

Committee consideration .................................................... 2

Legal and Constitutional Affairs Legislation Committee ......... 2

Senate Standing Committee for the Scrutiny of Bills .............. 2

Policy position of non-government parties ........................... 2

Position of major interest groups ......................................... 2

Financial implications .......................................................... 3

Statement of Compatibility with Human Rights .................... 3

Parliamentary Joint Committee on Human Rights .................. 3

Key issues and provisions..................................................... 3

Schedule 1 - Amendments relating to removal ...................... 3

Schedule 2 - Amendments relating to the cancellation of visas on character grounds ...................................................... 4

Expanded definition of ‘character concern’ .......................... 4

Visa cancellation under section 501BA ................................. 4

Removal from Australia of unlawful non-citizens ................. 6

Schedule 3 - Other amendments of the Migration Act .......... 7

Bar on further protection visa applications .......................... 7

Review of Fast-Track decisions .............................................. 7

Cessation of visas .................................................................. 8

Schedule 4 - Amendments relating to exercise of maritime powers ..................................................................... 8

Date introduced: 16 September 2015

House: House of Representatives

Portfolio: Immigration and Border Protection

Commencement: Sections 1 to 3 commence upon Royal Assent. Part 1 of Schedule 3 commences on 25 September 2014. All other provisions commence the day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

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Purpose of the Bill The purpose of the Migration and Maritime Powers Amendment Bill (No. 1) 2015 (the Bill) is to amend the Migration Act 1958 to:1

• ensure that when an unlawful non-citizen is in the process of being removed to another country and the removal is aborted, or the person does not enter the other country, and is thus returned to Australia, then that person has a lawful basis to return to Australia without a visa (items 1-2 of Schedule 1)

• ensure that when such a person returns to Australia they will be taken to have been continuously in the migration zone so that they will be precluded from making a valid application for certain visas (items 3-8 of Schedule 1)

• improve consistency in the character related provisions, following recent amendments to the Migration Act (Schedule 2)

• 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 (items 5-8 of Schedule 3)

• clarify that a person who has previously been refused a protection visa application that was made on their behalf cannot make a further protection visa application (items 1-2 of Schedule 3), and

• ensure that the Administrative Appeals Tribunal (AAT) can review certain character or security based decisions to refuse to grant a protection visa to a ‘fast track applicant’ (items 3 and 9-11 of Schedule 3).2

The Bill will also amend the Maritime Powers Act 2013 to:3

• 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 (Schedule 4).4

Committee consideration Legal and Constitutional Affairs Legislation Committee The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 10 November 2015. Details of the inquiry are at the inquiry webpage.5 At time of writing six submissions had been received by the Committee. Submitters generally reiterated their continued opposition to recent amendments to the Migration Act (discussed in greater detail below) which this Bill will reinforce. Additional views are canvassed below under the heading ‘Key issues and provisions’.

Senate Standing Committee for the Scrutiny of Bills At time of writing, the Committee had not considered the Bill.

Policy position of non-government parties/independents Neither non-government parties nor independents appear to have publicly expressed a position with respect to the Bill.

Position of major interest groups This Bill is unlikely to generate considerable controversy as it largely makes minor amendments to the existing legal framework.

1. Migration Act 1958, accessed 30 September 2015. 2. Explanatory Memorandum, Migration and Maritime Powers Amendment Bill (No. 1) 2015, p. 1, accessed 21 September 2015. 3. Maritime Powers Act 2013, accessed 30 September 2015. 4. United Nations Convention on the Law of the Sea, done in Montego Bay on 10 December 1982, [1994] ATS 31 (entered into force for Australia

and generally 16 November 1994), accessed 30 September 2015. 5. Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into Migration and Maritime Powers Amendment Bill (No. 1) 2015 [Provisions], The Senate, Canberra, 2015, accessed 6 October 2015.

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Financial implications The Explanatory Memorandum notes that the amendments will have a low financial impact.6

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.7

Parliamentary Joint Committee on Human Rights At time of writing, the Committee had not considered the Bill.

Key issues and provisions Schedule 1 - Amendments relating to removal The amendments contained in item 2 are designed to ‘ensure that when an unlawful non-citizen is in the process of being removed to another country and before they enter the other country, the person is returned to Australia, then that person has a lawful basis to return to Australia without a visa’.8

Item 2 amends existing section 42 of the Act which provides that subject to prescribed exceptions, a non-citizen must not travel to Australia without a visa that is in effect. Existing paragraph 42(2A)(d) provides the following exception:

• the non-citizen has been removed under section 198 to another country but has been refused entry by that country

• 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.

Item 2 will repeal existing paragraph 42(2A)(d) and substitute proposed paragraph 42(2A)(d) which will clarify that the exception is enlivened if the removal is attempted but not actually completed, for instance, if removal is aborted before the unlawful non-citizen reaches the destination country.

Similarly, the insertion of proposed paragraph 42(2A)(da) is designed to cover the situation where removal is completed but the non-citizen does not actually enter the destination country.

The Explanatory Memorandum notes that the need to return a non-citizen to Australia 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.

9

Items 3-8 make amendments to existing sections 48 and 48A of the Act which restrict the types of visas certain unlawful non-citizens can apply for (commonly known as the section 48 bar) which is enlivened upon refusal or cancellation of a visa since the non-citizen last entered Australia. The Explanatory Memorandum notes 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’.10 This means that if a non-citizen returns to Australia at any point after they are removed from Australia under section 198 until they enter the destination country, any applicable bar on making valid applications imposed by sections 48 and 48A would continue to apply to that non-citizen.

6. Explanatory Memorandum, Migration and Maritime Powers Amendment Bill (No. 1) 2015, op. cit., p. 4. 7. The Statement of Compatibility with Human Rights can be found at page 40 of the Explanatory Memorandum to the Bill. 8. P Dutton, ‘Second reading speech: Migration and Maritime Powers Amendment Bill (No. 1) 2015’, House of Representatives, Debates, (proof), 16 September 2015, p. 19, accessed 21 September 2015.

9. Explanatory Memorandum, Migration and Maritime Powers Amendment Bill (No. 1) 2015, op. cit., p. 9. 10. Ibid., p. 10.

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Schedule 2 - Amendments relating to the cancellation of visas on character grounds The amendments contained in schedule 2 are said to 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 2014.11 Further information about the amendments made by this Act is available in the Parliamentary Library’s Bills Digest.12

Expanded definition of ‘character concern’ Items 1—3 expand the definition of ‘character concern’ in existing subsection 5C(1) to reflect the expanded wording of the character test at existing subsection 501(6) of the Migration Act. The definition of character concern is relevant to the disclosure of identifying information in existing section 336E of the Migration Act which provides that a person commits an offence if their conduct causes the disclosure of identifying information and the disclosure is not a ‘permitted disclosure’. The term ‘permitted disclosure’ is defined in existing subsection 336E(2) of the Migration Act and paragraph 336E(2)(ec) relevantly provides that a 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’.

As acknowledged in the Explanatory Memorandum, these amendments ‘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’.13

Visa cancellation under section 501BA Items 5 — 8 insert a reference to existing section 501BA (cancellation of visa—setting aside and substitution of non-adverse decision under section 501CA) into various provisions in the Migration Act (discussed in further detail immediately below). Section 501BA applies where a decision has been made by the Minister’s delegate or the AAT to revoke a decision to cancel a person’s visa under subsection 501(3A). Subsection 501(3A) provides that the Minister must cancel a visa if the person is serving a full-time prison sentence and the Minister is satisfied that the person fails the character test because they have a substantial criminal record or have been convicted of a sexually based offence involving a child. Under section 501BA, the Minister is able to set aside the decision of the delegate or the AAT if he or she is satisfied that the cancellation of the visa is in the national interest.

Item 5 inserts a reference to section 501BA into existing paragraph 118(f) of the Migration Act (cancellation powers do not limit or affect each other). The effect of this amendment is to provide in section 118 that the cancellation power under section 501BA does not limit and is not affected by other cancellation powers in the Migration Act.

Item 6 inserts a reference to section 501BA in existing paragraph 191(2)(d) of the Migration Act (end of certain detention). 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. This amendment will ensure that section 501BA is treated in the same way as sections 501 and 501A, which are already referred to in current paragraph 191(2)(d).

Item 7 inserts a reference to section 501BA in existing subsections 192(1) and 192(4) of the Migration Act (detention of visa holders whose visas liable to cancellation). The effect of this amendment 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)). In addition, a non-citizen must be released from immigration detention if the officer becomes aware that the person’s visa is not one that may be

11. Explanatory Memorandum, Migration and Maritime Powers Amendment Bill (No. 1) 2015, op. cit., p. 1; Migration Amendment (Character and General Visa Cancellation) Act 2014, accessed 30 September 2015. 12. M Coombs, Migration Amendment (Character and General Visa Cancellation) Bill 2014, Bills digest, 53, 2014-15, Parliamentary Library, Canberra, 25 November 2014, accessed 30 September 2015. 13. Explanatory Memorandum, Migration and Maritime Powers Amendment Bill (No. 1) 2015, op. cit., p. 15.

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cancelled under section 501BA. This amendment will ensure that section 501BA is treated in the same way as sections 501 and 501A, which are already referred to in current subsections 192(1) and 192(4).

Item 8 inserts a reference to section 501BA into existing subparagraph 193(1)(a)(iv) of the Migration Act (application of law to certain non-citizens while they remain in immigration detention). The effect of this amendment is 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 (currently only a Bridging R (Class WR) visa is specified for the purposes of this section).14

Item 9 inserts a reference to sections 501A, 501B, 501BA or 501F in existing subsection 196(4) of the Migration Act (duration of detention). The effect of this amendment is that a person whose visa has been cancelled on character grounds (whether by a delegate, 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 18 inserts a reference to section 501BA in existing paragraph 501E(1)(a) of the Migration Act (refusal or cancellation of visa—prohibition on applying for other visas). 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, other than for a protection visa or a visa specified in the regulations (currently only a Bridging R (Class WR) visa is specified for the purposes of this provision).

Item 19 inserts a reference to section 501BA in existing subsection 501F(1) of the Migration Act (refusal or cancellation of visa—refusal of other visa applications and cancellation of other visas). 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).15

According to the Explanatory Memorandum:

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.

16

Item 20 inserts a reference to section 501BA in existing paragraph 503(1)(b) (exclusion of certain persons from Australia). 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.17

Subitem 22(6) provides that the amendment made by item 20 applies in relation to a decision under section 501BA of the Migration Act made before or after the commencement (that is, the day after the Act receives Royal Assent). The Explanatory Memorandum justifies the retrospective application of this amendment in the following terms:

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.

18

14. Ibid., pp. 16-17. 15. Migration Regulations 1994 do not appear to have specified any visas for the purposes of existing subsections 501F(2) or (3), accessed 30 September 2015. 16. Explanatory Memorandum, Migration and Maritime Powers Amendment Bill (No. 1) 2015, op. cit., p. 21. 17. Migration Regulations 1994 do not appear to have specified any periods for the purposes of existing subsection 503(1). 18. Explanatory Memorandum, Migration and Maritime Powers Amendment Bill (No. 1) 2015, op. cit., p. 23.

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Item 21 inserts references to sections 501BA and 501CA in subsections 503A(1), 503A(2) (protection of information supplied by law enforcement agencies or intelligence agencies) and 503B(1) (protection of confidential information disclosed to Federal Court or Federal Circuit Court—permanent non-disclosure orders) in the Migration Act. The effect of the amendment to existing subsections 503A(1) and 503A(2) is 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.19

The effect of the amendment to existing subsection 503B(1) is 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.20

Subitem 22(7) provides that the amendment made by item 21 applies in relation to information communicated before or after commencement (that is, the day after the Act receives Royal Assent). The Explanatory Memorandum justifies the retrospective application of this amendment in the following terms:

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. 21

Removal from Australia of unlawful non-citizens Item 10 inserts a reference to section 501CA in existing paragraph 198(2A)(c) of the Migration Act (removal from Australia of unlawful non-citizens). The effect of this amendment is to ensure 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.

Subitem 22(2) provides that this amendment applies in relation to an invitation given before or after commencement, that is, the day after the Act receives Royal Assent. The Explanatory Memorandum justifies the retrospective application of this amendment in the following terms:

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.

22

Item 11 inserts proposed subsection 198(2B) into the Migration Act (removal from Australia of unlawful non-citizens). The effect of this amendment is to provide 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 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. Namely, a protection visa, or a visa specified in the regulations for the purposes of subsection 501E(2) (currently only a Bridging R (Class WR) visa is specified for the purposes of this subsection).23

Subitem 22(3) provides that this amendment applies in relation to a decision under subsection 501(3A) made before or after the commencement and to an invitation under section 501CA given before or after commencement (that is, the day after the Act receives Royal Assent). The Explanatory Memorandum justifies the retrospective application of this amendment in the following terms:

19. Ibid., p. 21. 20. Ibid., p. 22. 21. Ibid., p. 23. 22. Ibid., p. 22. 23. Regulation 2.12AA, Migration Regulations 1994, accessed 30 September 2015.

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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 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.

24

Schedule 3 - Other amendments of the Migration Act

Bar on further protection visa applications Existing section 48A of the Act prevents 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 unless the Minister personally permits them to do so on public interest grounds (under section 48B of the Migration Act).

Existing subsection 48A(1C) clarifies 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.25

Item 1 amends existing subsection 48A(1C) to clarify that this statutory bar applies to persons who are barred under subsection 48(1AA). That is, to a non-citizen who has been refused a protection visa where the application was made on their behalf.26

According to the Explanatory Memorandum, 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) and that its omission was simply an oversight.27

This amendment will commence on 25 September 2014, being the date that subsection 48A(1AA) was inserted into the Migration Act by the Migration Legislation Amendment Act (No. 1) 2014. The application provision in item 2 clarifies that a non-citizen will be prevented from making an application for a protection visa whether the refusal (referred to in subsection 48(1AA)) happened before or after commencement (that is, 25 September 2014). The Explanatory Memorandum provides the following explanation for the retrospective application of this amendment:

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.

28

The Refugee Advice and Casework Service (RACS) expressed concern at the retrospective application of these amendments, noting that the Bill will ‘render invalid any previous or ongoing protection visa applications which are currently not invalid but which fall within the gap that Schedule 3 proposes to patch’.29 They further observed:

24. Explanatory Memorandum, Migration and Maritime Powers Amendment Bill (No. 1) 2015, op. cit., p. 22. 25. Subsection 48A(1C) was inserted by the Migration Amendment Act 2014 effective from 28 May 2014. For background information on this provision see: M Coombs, Migration Amendment Bill 2013, Bills digest, 43, 2013-14, Parliamentary Library, Canberra, 12 February 2014, accessed 22 September 2015.

26. Subsection 48A(1AA) was inserted into the Migration Act by the Migration Legislation Amendment Act (No. 1) 2014 and commenced on 25 September 2014. For background information on this provision see: E Karlsen, Migration Legislation Amendment Bill (No. 1) 2014, Bills digest, 81, 2013-14, Parliamentary Library, Canberra, 4 June 2014, accessed 22 September 2015.

27. Explanatory Memorandum, Migration and Maritime Powers Amendment Bill (No. 1) 2015, op. cit., p. 25. 28. Ibid., p. 5. 29. Refugee Advice and Casework Service (RACS), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into Migration and Maritime Powers Amendment Bill (No. 1) 2015, 8 October 2015, accessed 13 October 2015.

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RACS supports the principle that migration laws should be prospective and transparent, and we consider that it is a fundamental principal of the rule of law that the government in all its actions is bound by rules that are fixed and certain. This position would be offended by the passage of legislation to extinguish existing rights arising from a visa application that has been lodged in reliance on the current position of the law.

30

Review of Fast-Track decisions The amendments made by items 3 and 10 are designed to ensure that the AAT can review certain decisions to refuse to grant a protection visa to a ‘fast-track applicant’ where the refusal is based on character or security grounds, as was the intention of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Legacy Caseload Act).31

Item 3 amends the note to the definition of ‘fast track decision’ contained in subsection 5(1) of the Migration Act to clarify that a ‘fast track decision’ that is a ‘fast track reviewable decision’ is reviewable by the Immigration Assessment Authority (IAA) and that ‘some decisions’ made in the circumstances mentioned in paragraph (a) or (b) of the definition are reviewable by the AAT (such as a decision relying on subsection 36(1C) of the Migration Act).

Item 10 inserts proposed subsection 500(3A) into the Migration Act. This amendment will ensure that existing 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).32 Item 11 clarifies that the amendment made by item 10 will only apply to decisions made after the commencement (that is, the day after the Act receives Royal Assent). It is not clear why the commencement date of this item is not 18 April 2015, being the date Schedule 4 (amendments relating to fast track assessment process) of the Legacy Caseload Act commenced (as is being done for amendments contained in Part 1 of Schedule 3).33

Cessation of visas The amendments made by items 5 to 8 are designed to ensure that visa ceasing provisions in sections 82, 173 and 174 of the Migration Act operate as intended under policy.

Most significantly, item 6 inserts proposed section 82A into the Migration Act. It provides that if:

• a non-citizen holds a visa at a particular time

• 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.

The effect 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(8) ceasing event) of the cessation, the visa period of the dormant visa will end, and the visa will never come into effect.34

This amendment is explained in greater detail in the Explanatory Memorandum.35

Schedule 4 - Amendments relating to exercise of maritime powers Item 2 amends existing section 40 of the Maritime Powers Act which curtails the exercise of powers at a place in another country in certain prescribed circumstances.36 Section 8 of the Maritime Powers Act relevantly defines a

30. Ibid.

31. Ibid., p. 28; Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, accessed 30 September 2015. 32. Existing subsection 500(3) provides that a person cannot make an application for review unless they could seek merits review under Part 5 or 7 of the Migration Act (if the decision had been made on grounds other than those referred to in paragraph 500(1)(b) or (c)). 33. Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload), commencement proclamation,

16 April 2015, accessed 29 September 2015. 34. Explanatory Memorandum, Migration and Maritime Powers Amendment Bill (No. 1) 2015, op. cit., p. 31. 35. Ibid., pp. 29-33. 36. Maritime Powers Act 2013, accessed 30 September 2015.

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‘country’ to include the territorial sea and archipelagic waters of the country. Proposed subsection 40(2) provides that subsection 40(1) will not apply to an exercise of powers in the following circumstances:

• 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; and a relevant maritime officer, or the Minister, considers that the passage is in accordance with the 1982 United Nations Convention on the Law of the Sea.

The rationale for this amendment is explained in the Explanatory Memorandum in the following terms:

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…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. [Emphasis added]

37

The Andrew and Renata Kaldor Centre for International Refugee Law (Kaldor Centre) is of the view that these amendments ‘are intended to justify activities taking place in the territorial waters of other countries, such as Indonesia, pursuant to Operation Sovereign Borders’.38 To this end, they note that ‘turning back boats and patrolling for this purpose within the territorial waters of another State do not constitute innocent passage under the Convention…’.39

Proposed subsection 40(3) preserves the lawfulness of the activity under domestic law in circumstances where there is a defective consideration of the Convention. The Kaldor Centre relevantly notes that ‘the fact that a relevant maritime officer or the Minister mistakenly considers that the exercise of powers is consistent with the Convention cannot render the exercise of powers lawful as a matter of international law’.40

37. Ibid., p. 37. 38. Andrew and Renata Kaldor Centre for International Refugee Law, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into Migration and Maritime Powers Amendment Bill (No. 1) 2015, 6 October 2015, accessed 13 October 2015. 39. Ibid.

40. Ibid.

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