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Migration Amendment (Designated Unauthorised Arrivals) Bill 2006

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2004-2005-2006

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

Migration Amendment (Designated Unauthorised Arrivals) Bill 2006

 

 

(1)     Clause 2, page 1 (lines 7 and 8), omit the clause, substitute:

2   Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent.

 

2.  Schedule 1

The day after this Act receives the Royal Assent.

 

3.  Schedule 2

On the day after the end of the period of 5 years beginning on the day on which this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

[sunset]

(2)     Schedule 1, heading, page 3 (line 2), omit “ Amendments ”, substitute “ Amendments commencing on day after Royal Assent ”.

[sunset]

(3)     Schedule 1, page 3 (before line 5), before item 1, insert:

1A  After subsection 4AA(1)

Insert:

          (1A)  The Parliament affirms as a principle that a minor who is:

                     (a)  a designated unauthorised arrival or a transitory person; and

                     (b)  residing in a country in respect of which a declaration is in force under subsection 198A(3);

will only be detained as a measure of last resort.

Note:          The Minister has the power to direct officers of the Department to take all reasonable steps to work with any country in respect of which a declaration is in force under subsection 198A(3) with a view to having this principle upheld.

[minors]

(4)     Schedule 1, item 5, page 3 (line 21), omit “assessed”, substitute “determined”.

[technical correction]

(5)     Schedule 1, item 8, page 5 (lines 23 to 29), omit paragraph 5F(2)(c), substitute:

                     (c)  was brought to the migration zone, pursuant to subsection 185(3A) of the Customs Act 1901 as a result of being found on a ship detained under section 185 of that Act, and was not believed by the officer who detained the ship to be:

                              (i)  seeking to enter the migration zone; and

                             (ii)  a person who would, if in the migration zone, be an unlawful non-citizen; or

[exempt person]

(6)     Schedule 1, page 8 (after line 7), after item 16, insert:

16A  Subsection 65(1) (note)

Repeal the note, substitute:

Note:          See also sections 84A and 195A, under which the Minister has non-compellable powers to grant visas to certain people (whether or not the people have applied for the visas). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister’s powers under those sections.

[power to grant visas]

(7)     Schedule 1, page 8, after proposed item 16A, insert:

16B  At the end of Subdivision AG of Division 3 of Part 2

Add:

84A   Minister may grant visa to designated unauthorised arrival, transitory person or refugee

People to whom section applies

             (1)  This section applies to:

                     (a)  a person who is a designated unauthorised arrival; or

                     (b)  a person who is a transitory person; or

                     (c)  a person who ceased being a transitory person because he or she was determined to be a refugee for the purposes of the Refugees Convention as amended by the Refugees Protocol.

Minister may grant visa

             (2)  If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

             (3)  In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of this Division or by the regulations, but is bound by all other provisions of this Act.

Minister not under duty to consider whether to exercise power

             (4)  The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

Minister to exercise power personally

             (5)  The power under subsection (2) may only be exercised by the Minister personally.

Tabling of information relating to the granting of visas

             (6)  If the Minister grants a visa under subsection (2), he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (7)):

                     (a)  states that the Minister has granted a visa under this section; and

                     (b)  sets out the Minister’s reasons for granting the visa, referring in particular to the Minister’s reasons for thinking that the grant is in the public interest.

             (7)  A statement under subsection (6) in relation to a decision to grant a visa is not to include:

                     (a)  the name of the person to whom the visa is granted; or

                     (b)  any information that may identify the person to whom the visa is granted; 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 grant of the visa—the name of that other person or any information that may identify that other person.

             (8)  A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after:

                     (a)  if the decision to grant the visa is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

                     (b)  if the decision to grant the visa is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

[power to grant visas]

(8)     Schedule 1, page 8 (after line 14), after item 18, insert:

18A  At the end of subsection 198A(1)

Add:

Note:          The Minister has the power to direct officers of the Department to take all reasonable steps to encourage countries in respect of which declarations are in force under subsection (3) to provide suitable residential accommodation for people who are taken by officers to those countries.

[accommodation]

(9)     Schedule 1, page 9 (after line 1), after item 23, insert:

23A  Paragraph 276(2A)(aa)

After “section”, insert “84A,”.

[power to grant visas]

(10)   Schedule 1, page 9, after proposed item 23A, insert:

23B  Subsection 277(5)

After “section”, insert “84A,”.

[power to grant visas]

(11)   Schedule 1, page 9, after proposed item 23B, insert:

23C  Paragraph 282(4)(f)

After “section”, insert “84A,”.

[power to grant visas]

(12)   Schedule 1, page 9 (after line 10), after item 26, insert:

26A  Paragraph 474(7)(a)

Omit “section 91F”, insert “section 84A, 91F”.

[power to grant visas]

(13)   Schedule 1, item 27, page 9 (line 24), omit “seeking asylum”, substitute “claiming refugee status”.

[technical correction]

(14)   Schedule 1, item 27, page 9 (line 26), omit “assessing”, substitute “determining”.

[technical correction]

(15)   Schedule 1, item 27, page 9 (after line 31), after paragraph 486R(2)(a), insert:

                    (aa)  arrangements during that financial year for review of any determinations of claims for refugee status by designated unauthorised arrivals and transitory persons, including details about the qualifications of people carrying out any such reviews; and

[arrangements for review]

(16)   Schedule 1, item 27, page 10 (line 1), omit “asylum claims”, substitute “claims for refugee status”.

[technical correction]

(17)   Schedule 1, item 27, page 10 (line 2), omit “that are assessed”, substitute “determined”.

[technical correction]

(18)   Schedule 1, item 27, page 10 (after line 3), after paragraph 486R(2)(b), insert:

                   (ba)  the number (which could be zero) of claims for refugee status by designated unauthorised arrivals and transitory persons that, by the end of that financial year, have not been determined within 90 days of being made; and

                   (bb)  if a claim for refugee status is mentioned in the report under paragraph (ba), reasons why it was not determined within 90 days of being made; and

[time limit for assessment]

(19)   Schedule 1, item 27, page 10 (line 5), at the end of subsection 486R(2), add:

            ; and (d)  the number (which could be zero) of reviews of determinations of claims for refugee status by designated unauthorised arrivals and transitory persons that, by the end of that financial year, have not been completed within the period of 90 days starting on the day on which the person carrying out the review started the review; and

                     (e)  if a review is mentioned in the report under paragraph (d), reasons why it was not completed within the period of 90 days starting on the day on which the person carrying out the review started the review.

[time limit for review]

(20)   Schedule 1, page 10 (after line 18), after item 27, insert:

27A  Before Part 9

Insert:

Part 8E Ombudsman investigations in relation to designated unauthorised arrivals, transitory persons and refugees

   

486S   Referral of actions

             (1)  The Minister may, by writing given to the Commonwealth Ombudsman, refer to the Commonwealth Ombudsman for investigation and report action, being action that relates to a matter of administration, taken by a Department or prescribed authority in relation to one or more of the following:

                     (a)  designated unauthorised arrivals;

                     (b)  transitory persons;

                     (c)  people who ceased being transitory persons because they were determined to be refugees for the purposes of the Refugees Convention as amended by the Refugees Protocol.

Note:          The Commonwealth Ombudsman may also investigate action, which relates to a matter of administration taken by a Department or a prescribed authority, regardless of the geographical location of the action (see the Ombudsman Act 1976 , particularly sections 3C and 5).

             (2)  For the purposes of this section, action, being action that relates to a matter of administration, taken by a Department or prescribed authority , includes action that would be taken to be action taken by a Department or prescribed authority under subsection 3(4B) of the Ombudsman Act 1976 .

             (3)  In this section:

Department has the meaning given by subsection 3(1) of the Ombudsman Act 1976 .

prescribed authority has the meaning given by subsection 3(1) of the Ombudsman Act 1976 .

486T   Commonwealth Ombudsman to investigate and report

             (1)  As soon as practicable after the Minister refers action to the Commonwealth Ombudsman under subsection 486S(1), the Commonwealth Ombudsman must investigate the action and give the Minister a written report on the action.

             (2)  The report may include any recommendations the Commonwealth Ombudsman considers appropriate.

             (3)  The Minister is not bound by any recommendations the Commonwealth Ombudsman makes.

             (4)  The report must also include a statement, for the purpose of tabling in Parliament, that sets out or paraphrases so much of the content of the report as the Commonwealth Ombudsman considers can be tabled without adversely affecting the privacy of any person.

             (5)  The Commonwealth Ombudsman must give the report to the Minister even if any person to whom the report relates has, since the Minister referred the action under subsection 486S(1), ceased to be a designated unauthorised arrival or a transitory person.

486U   Minister to table statement from Commonwealth Ombudsman

                   The Minister must cause the statement included in a report as mentioned in subsection 486T(4) to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

486V   Application of the Ombudsman Act 1976

             (1)  Subject to this Part, the Ombudsman Act 1976 applies in relation to the Commonwealth Ombudsman’s investigation of action, and preparation of a report, under section 486T as if the investigation of the action and preparation of the report were an investigation under that Act.

             (2)  The Commonwealth Ombudsman’s functions include the functions conferred on the Commonwealth Ombudsman by this Part.

[Ombudsman]

(21)   Schedule 1, item 38, page 11 (lines 28 to 30), omit the item, substitute:

38  Paragraph 494AB(1)(d)

Repeal the paragraph, substitute:

                     (d)  proceedings relating to the removal from Australia under this Act of a person who is, or was at the time of the removal, a transitory person.

[bar on legal proceedings]

(22)   Schedule 1, page 13 (after line 30), after item 43, insert:

43A  Independent review

(1)       The Minister must cause an independent review of the operation and effect of the amendments made by this Act to be undertaken by a person who, in the Minister’s opinion, possesses appropriate qualifications and experience to undertake the review.

(2)       The review must be undertaken as soon as practicable after the second anniversary of the commencement of this item.

(3)       The person carrying out the review must, within 6 months of commencing the review, give the Minister a written report of the review that includes an assessment of the operation and effect of the amendments made by this Act, and alternative approaches or mechanisms as appropriate.

(4)       The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.

(5)       Before the copy of the report is tabled in accordance with subsection (4), the Minister may remove information from the copy of the report if the Minister is satisfied that the inclusion of the information is contrary to the public interest or adversely affects the privacy of any person.

[independent review]

(23)   Page 14 (after line 12), at the end of the Bill, add:

Schedule 2 Amendments commencing 5 years after Royal Assent

   

Migration Act 1958

1  Paragraph 5F(1)(b)

Repeal the paragraph, substitute:

                     (b)  became an unlawful non-citizen because the person:

                              (i)  entered Australia by sea (see subsection (8)); or

                             (ii)  entered the migration zone by air (see subsection (9));

                            at an excised offshore place after the excision time for that offshore place; and

2  Subsection 5F(9)

Omit “subsection (8)”, substitute “this section”.

3  Application

The amendments made by this Schedule apply in relation to people who become unlawful non-citizens because they enter the migration zone on or after the commencement of this item.

[sunset]