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Migration Amendment (Regional Processing Arrangements) Bill 2015

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7738

2013-2014-2015

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

 

Migration Amendment (Regional Processing Arrangements) Bill 2015

 

 

(1)     Clause 2, page 2, at the end of the table, add:

 

3.  Schedule 2

The day after this Act receives the Royal Assent.

 

[detention of vulnerable persons]

(2)     Clause 2, page 2, at the end of the table, after proposed table item 3, add:

4.  Schedule 3

Immediately after the commencement of Schedule 1 to the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Act 2015 .

 

[mandatory reporting of abuse]

(3)     Schedule 1, page 3 (before line 4), before item 1, insert:

1A  Subsection 198AB(2)

Repeal the subsection, substitute:

             (2)  The only conditions for the exercise of the power under subsection (1) are:

                     (a)  that the Minister thinks that it is in the national interest to designate the country to be a regional processing country; and

                     (b)  that subsection (4A) has been complied with.

1B  After subsection 198AB(4)

Insert:

          (4A)  The Minister must not designate a country to be a regional processing country unless the country has given Australia assurances, in writing, to the effect that the country will allow the following persons or bodies reasonable access to unauthorised maritime arrivals who have been taken to the regional processing country under section 198AD:

                     (a)  the Australian Human Rights Commission;

                     (b)  the Commonwealth Ombudsman;

                     (c)  journalists (within the meaning of the Evidence Act 1995 ).

          (4B)  The assurances referred to in subsection (4A) need not be legally binding.

Note:          However, the Minister must revoke a designation if the country does not comply with those assurances, see subsection (5A).

1C  After subsection 198AB(5)

Insert:

          (5A)  If:

                     (a)  the Minister designates a country under subsection (1); and

                     (b)  the country has given written assurances under subsection (4A); and

                     (c)  the Minister becomes aware that the country has not complied, or is not complying, with those assurances;

the Minister must revoke the designation.

[access to detainees]

(4)     Schedule 1, page 3 (after line 19), after subsection 198AHA(2), insert:

          (2A)  Despite subsection (2), the Commonwealth must not:

                     (a)  take, or cause to be taken, any action; or

                     (b)  make any payment, or cause any payment to be made; or

                     (c)  do anything else that is incidental or conducive to the taking of such action or the making of such a payment;

to the extent that the action, payment or anything else will result in, or enable, the restraint over the liberty of an individual for longer than 3 months.

[detention longer than 3 months]

(5)     Schedule 1, page 4 (after line 5), at the end of the Schedule, add:

2  Application—written assurances relating to access

            The amendments made to the Migration Act 1958 by items 1A, 1B and 1C apply in relation to the designation of a country as a regional processing centre on or after the day on which this Act receives the Royal Assent.

3  Application and transitional—regional processing countries designated before Royal Assent

(1)       This item applies if the Minister designated a country to be a regional processing country under subsection 198AB(1) of the Migration Act 1958 before the day on which this Act receives the Royal Assent.

(2)       As soon as practicable, but no later than 3 months after the day on which this Act receives the Royal Assent, the Minister must revoke the designation unless the country has given assurances, in writing, to the effect that the country will allow the following persons or bodies reasonable access to unauthorised maritime arrivals who have been taken to the regional processing country under section 198AD of that Act:

                     (a)  the Australian Human Rights Commission;

                     (b)  the Commonwealth Ombudsman;

                     (c)  journalists (within the meaning of the Evidence Act 1995 ).

(3)       If the assurances under subitem (2) are given, subsection 198AB(5A) of the Migration Act 1958 , as amended by this Schedule, applies in relation to the designation on and after the day the assurances are received, as if the designation were made under section 198AB of that Act as amended by this Act.

[access to detainees]

(6)     Schedule 1, page 4 (after line 5), at the end of the Schedule, add (after proposed item 3):

4  Application—detention beyond 3 months

Subsection 198AHA(2) of the Migration Act 1958 , as amended by this Act, applies in relation to an action, payment or anything else that is done by the Commonwealth on or after the day on which this Act receives the Royal Assent.

[detention longer than 3 months]

(7)     Page 4 (after line 5), at the end of the Bill, add:

Schedule 2 Detention of vulnerable persons

   

Migration Act 1958

1  Subsection 198AD(1)

Omit “sections 198AE, 198AF and 198AG”, substitute “sections 198AE, 198AF, 198AG and 198AGA”.

2  After section 198AG

Insert:

198AGA   Vulnerable persons

             (1)  Section 198AD does not apply to an unauthorised maritime arrival if the person is a vulnerable person for the purpose of subsection (2).

             (2)  A person is a vulnerable person for the purpose of this subsection if:

                     (a)  the person is aged under 18; or

                     (b)  the person is the parent of guardian (or other family member) of a person covered by paragraph (a).

3  Application

The amendments to the Migration Act 1958 made by this Schedule apply in relation to an unauthorised maritime arrival on or after the day on which this Schedule commences.

4  Transitional—vulnerable persons transferred before Royal Assent

(1)       This item applies to a person if:

                     (a)  the person was an unauthorised maritime arrival at any time on or after 13 August 2012; and

                     (b)  the person was taken from Australia to a regional processing country in accordance with subsection 198AD(2) of the Migration Act 1958 ; and

                     (c)  at the time the person was taken to the regional processing country the person was:

                              (i)  aged under 18; or

                             (ii)  the parent or guardian (or other family member) of a person covered by subparagraph (i); and

                     (d)  on the day this Act receives the Royal Assent, the person is:

                              (i)  aged under 18; or

                             (ii)  the parent or guardian (or other family member) of a person covered by subparagraph (i).

(2)       As soon as reasonably practicable, an officer must ensure the person is removed from the regional processing country and returned to Australia.

[detention of vulnerable persons]

(8)     Page 4 (after line 5), at the end of the Bill (after proposed Schedule 2), add:

Schedule 3 Mandatory reporting of abuse

   

Migration Act 1958

1  After section 197BA

Insert:

197BAA   Mandatory reporting of reportable assaults

             (1)  If a designated person believes on reasonable grounds that a person has experienced, or is experiencing, a reportable assault, the designated person must, as soon as practicable, notify the relevant authorities of:

                     (a)  the alleged assault; and

                     (b)  the grounds on which the person has formed the belief that the alleged assault occurred.

Offence

             (2)  A person commits an offence if:

                     (a)  the person is required to make a notification under subsection (1); and

                     (b)  the person fails to comply with the requirement.

Penalty:  60 penalty units.

Geographical jurisdiction

             (3)  Section 15.3 of the Criminal Code (extended geographical jurisdiction—category C) applies to an offence against subsection (2).

Interpretation

             (4)  In this section:

designated person means:

                     (a)  an authorised officer; and

                     (b)  a person appointed or employed by, or for the performance of services for:

                              (i)  the Commonwealth, a State or a Territory; or

                             (ii)  an authority of the Commonwealth, a State or a Territory; and

                     (c)  a person employed by another person or body that is contracted by the Commonwealth, or an authority of the Commonwealth, to perform services in relation to an immigration detention facility.

relevant authority means:

                     (a)  in any case—the Department and the Australian Federal Police; and

                     (b)  if:

                              (i)  the victim of an alleged reportable assault is a child ; and

                             (ii)  the alleged assault occurs in a State or Territory;

                            a relevant authority of the State or Territory that has functions relating to child safety; and

                     (c)  if:

                              (i)  the victim of an alleged reportable assault is a child; and

                             (ii)  the alleged assault occurs in a foreign country;

                            a police force of the foreign country.

reportable assault means any of the following, to the extent that they occur, or allegedly occur, in an immigration detention facility:

                     (a)  unlawful sexual contact;

                     (b)  sexual harassment;

                     (c)  unreasonable use of force;

                     (d)  any other assault.

[mandatory reporting of abuse]