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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

SENATE

MIGRATION AMENDMENT

(DESIGNATED UNAUTHORISED ARRIVALS) BILL 2006

REVISED EXPLANATORY MEMORANDUM

(Circulated by authority of the

Minister for Immigration and Multicultural Affairs,

Senator the Honourable Amanda Vanstone)



MIGRATION AMENDMENT (DESIGNATED UNAUTHORISED ARRIVALS) BILL 2006

 

OUTLINE

1.       On 13 April 2006, the Minister for Immigration and Multicultural Affairs announced that the Australian Government would introduce legislation as soon as possible to further strengthen border control measures in relation to unauthorised boat arrivals.  These new measures would mean that all unauthorised boat arrivals will be liable to be transferred to offshore processing centres for assessment of their refugee claims. The Bill is intended to give effect to the Government’s announcement.

2.       The amendments contained in the Bill propose to amend the Migration Act 1958 (the Act) to expand the offshore processing regime currently applying to offshore entry persons and transitory persons to include, in addition, all persons arriving at mainland Australia (meaning other than at an excised offshore place) unlawfully by sea on or after 13 April 2006. The concept of offshore entry person will be replaced by the concept of designated unauthorised arrivals. 

3.       The Bill will also deem certain air arrivals to be entry by sea so the persons will be subject to the new regime. Persons who travel most of the way to Australia by sea but travel the last leg by air, before entering (on or after 13 April 2006)  and who become unlawful on entry, will be taken to have entered Australia by sea. These are basically situations where persons are airlifted into Australia at the end of their sea journey.

4.       Certain persons not intended to be caught by the regime will be exempted from the definition of designated unauthorised arrivals. These include New Zealand citizens, permanent residents of Norfolk Island and persons brought to Australia purely for Customs Act 1901 purposes.  It is also proposed that the Minister have an additional power to declare that specified persons or classes of persons are exempt. This will provide flexibility to avoid the regime being extended to those not intended to be covered by the changes .

5.       Designated unauthorised arrivals may be removed to a declared country outside Australia for processing of any claims that they are owed refugee protection under the Refugees Convention as amended by the Refugees Protocol. 

6.       In the past, persons taken to declared countries for processing of refugee claims have had these assessed either by the United Nations High Commissioner for Refugees (UNHCR) or by trained Australian officers using a process modelled closely on that used by the UNHCR.

7.       The power to remove a person to another country for processing is dependent on the Minister having declared in writing that the specified country meets fundamental conditions set out at section 198A of the Act. The Minister must declare that the country:

·         provides access, for persons seeking asylum, to effective procedures for assessing the person’s need for protection;

·         provides protection for persons seeking asylum pending determination of their refugee status;

·         provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and

·         meets relevant human rights standards in providing that protection.

8.       This Bill will affirm Parliament’s view that a minor who is a designated unauthorised arrival or transitory person residing in a declared country will only be detained as a measure of last resort.

9.       Notes have been included regarding the  Minister’s  powers to direct officers of the Department of Immigration and Multicultural Affairs (DIMA) to take all reasonable steps to work with a declared country with a view to having this principle upheld, and to direct officers to work with declared countries to provide appropriate accommodation arrangements for persons being processed offshore, such as through the establishment of residential-style accommodation in a community setting for women, children and families.

10.     As is currently the case for offshore entry persons, designated unauthorised arrivals will not be able to apply for any visa while they are in Australia without the Minister’s non-compellable personal intervention to lift the bar prohibiting the person from making visa applications.

11.     Designated unauthorised arrivals and transitory persons will no longer be subject to the offshore processing regime if they become the holder of a substantive visa, or leave Australia (other than being taken to a declared country), or leave a declared country (other than to travel to Australia).  Persons who leave and return to a declared country after obtaining medical treatment in another country or countries, or after being refused entry to another country or countries, are taken not to have left the declared country.

12.     Through the definitions of a designated unauthorised arrival and transitory person, the offshore processing regime will continue to apply to persons who at the time of commencement of the Bill are offshore entry persons and transitory persons under the current provisions, unless the person holds a substantive visa or is no longer in Australia or a declared country.

13.     The detention regime will be amended to change mandatory detention to discretionary detention where an officer reasonably suspects a non-citizen in Australia but outside the migration zone, is seeking to enter the migration zone (other than an excised offshore place) and would on entry, be an unlawful non-citizen.  This will mirror the discretionary detention provision in relation to non-citizens seeking to enter Australia at an excised offshore place in the same circumstances. The existing mandatory detention of unlawful non-citizens who arrive in the migration zone (other than at an excised offshore place), or those who overstay their visa or have a visa cancelled while they are in Australia, and who remain unlawful will continue.

14.     Restrictions relating to legal proceedings in respect of offshore entry persons and transitory persons will continue in respect of designated unauthorised arrivals and transitory persons. These provisions will prohibit the institution or continuation of certain court proceedings relating to designated unauthorised arrivals and transitory persons.

15.     Existing arrangements which may allow for the temporary transfer to Australia of persons being processed offshore at a declared country will remain in place. The right of a transitory person (a person who has been transferred offshore to a declared place) who returns temporarily and who has been in Australia for 6 months continuously to seek assessment from the Refugee Review Tribunal, as to whether the person is a refugee under the Refugees Convention (as amended by the Refugees Protocol), will also remain in place for designated unauthorised arrivals.

16.     The ability of a transitory person to seek an assessment of their refugee status after 6 months continuously in Australia is in addition to the access provided in declared countries to a reliable refugee determination process, including a merits review opportunity for those found not to be refugees at the first instance. 

17.     In relation to merits review, the Government has undertaken to establish a pool of non-Department of Immigration and Multicultural Affairs decision makers to conduct independent reviews of failed requests for refugee status. The Government has also committed to initial determinations taking place within 90 days and reviews also taking place within 90 days of commencement. The Government has also undertaken to provide written reasons for the initial and review decisions.

18.     The Bill establishes an annual reporting requirement whereby the Secretary is obligated to report to the Minister, in relation to designated unauthorised arrivals and transitory persons claiming refugee status. The report is to include:

19.     arrangements for assessing such person’s claims for refugee status and for operational matters such as their accommodation, health care and education;

20.     information regarding numbers of claims for refugee status assessed and numbers of such persons determined during that financial year, to be refugees.;

21.     arrangements for review of refugee status determinations including the qualifications of the reviewers;

22.     the numbers of claims for refugee status not determined within 90 days and the reasons for this; and

23.     the numbers of reviews not completed within 90 days of commencement and the reasons for this.

The Minister is required to table a copy of this report in both Houses of Parliament.

24.     Important oversight provisions have also been included in the Bill. More specifically, these will enable the Minister to refer to the Commonwealth Ombudsman for investigation and report, actions relating to designated unauthorised arrivals, transitory persons, or persons who have ceased to be transitory persons on being determined to be refugees. These new provisions also make clear on the face of the Act that the Ombudsman has powers to investigate the actions of DIMA officers overseas, including in relation to refugee assessment processes in offshore processing centres, while enhancing those powers through the provision for mandatory tabling of statements of all reports received from the Ombudsman.

25.     The Bill inserts a non-compellable, non-reviewable power for the Minister to grant a visa to a designated unauthorised arrival, transitory person, or person who ceased to be a transitory person on being determined to be a refugee.

26.     The Bill makes provision for certain transitory arrangements for persons who arrive by sea to a place, other than an excised offshore place, between 13 April 2006 and the commencement of the amendments. Any visa applications made by such persons that have not resulted in the grant of a visa by commencement of the amendments, will be rendered invalid. If, however, any visa has been granted to such a person before commencement, the visa grant will stand.

27.     The Bill will not affect the validity of visa applications made by persons arriving unauthorised at a place in Australia other than an excised offshore place before 13 April 2006. Any such visa applications will continue to be processed under the existing onshore processing arrangements. 

28.     The Bill will establish a power for regulations to be made to deal with consequential and transitional matters arising as a result of the amendments to be made by the Bill.  This is to ensure that any transitional matters arising from the Bill and any consequential changes needed, which were not anticipated and covered by the Bill, can be dealt with by regulation.

29.     It is intended that regulations will be made under the Act amending the Migration Regulations 1994 relating to certain humanitarian visa subclasses.  These changes will be needed to adapt the existing criteria for certain visas to reflect the new arrangements for designated unauthorised arrivals.

30.     An independent review of the operation and effect of the amendments made by the Bill will be required as soon as practicable after the Bill has been in operation for 2 years, and a report of that review must be tabled in Parliament.

31.     The Bill will provide that the definition of designated unauthorised arrival will cease to include unauthorised sea arrivals to the mainland of Australia (as opposed to unauthorised sea arrivals at excised offshore places) on the day which is 5 years after the day on which the Bill receives Royal Assent, so that on and from that date the coverage of the offshore processing arrangements would revert to that under the current provisions of the Migration Act 1958 (the Act).

32.     Further, the Bill will apply the sunset provisions to persons entering the migration zone unlawfully after their commencement such that those persons who entered before the sunset provisions commence would continue to be designated unauthorised arrivals liable to offshore processing.

33.     The extension of offshore processing arrangements to all persons who arrive unlawfully by sea will not impact on Australia’s implementation of its refugee protection obligations.  Australia has developed an offshore refugee status assessment process for use in declared countries which is modelled closely on the process followed by the United Nations High Commissioner for Refugees.  The new regime will include provisions for independent merits review of refugee decisions and statutory provisions for oversight by the Commonwealth Ombudsman.  

financial impact statement

34.     The direct financial impacts of the Bill are:

35.     some  costs to establish IT systems to enable reporting against the 90 day time frames, in the order of $1million;

36.     some costs involved in the conduct of the review of the operation and effect of the amendments, to be conducted two years after the commencement of the Bill;

37.     some costs involved in meeting the reporting requirements; and

38.     possible additional resources for the Office of the Commonwealth Ombudsman.  The government has undertaken to provide additional resources for the Office of the Ombudsman if required;

39.     The Bill provides flexibility to the Government to move a wider group of people to offshore processing centres.  The financial impact of this is difficult to estimate. Nearly 9,000 people arrived unauthorised by boat in the two years to June 2001 but, following the legislative changes made in 2001 providing for offshore processing for arrivals at excised offshore places, less then 200 people have arrived.   As a rule of thumb, there was a saving of around $50,000 for each person whose unauthorised arrival was avoided.   The Government believes that these changes will further reduce the incentive for unauthorised boat arrivals reducing costs further.

40.     Indirect costs from the package including administrative undertakings:

41.     costs for the provision of legal assistance to person being processed in a declared country;

42.     increased costs of review of refugee determination refusals by a pool of  independent decision makers;

43.     costs associated with assisting declared countries to provide appropriate accommodation for person being processed offshore.  The government is working with the government of Nauru to establish residential -style accommodation for women, children and families within a community setting which will have financial implications.  There are additional costs expected to cater for the separation of women children and families while the residential style accommodation is being developed;

44.     the Government has decided to rationalise the two sites on Nauru so that only one will be operational, reducing capacity from 1,500 to 500 places, to reduce costs;

45.     costs associated with the upgrading of current facilities to an agreeable standard;

46.     increased costs associated with the provision of health care, education, and policing in the declared countries;

47.     costs to ensure that staff working in the centres can be accommodated in safe conditions to an acceptable standard; and

48.     costs associated with the management of the centres whether activated or in a mothballed state.

49.     The Commonwealth will meet all relevant costs involved in implementing the offshore processing arrangements.

 

 

 

 

 

 

 

 

 



MIGRATION AMENDMENT (DESIGNATED UNAUTHORISED ARRIVALS) BILL 2006

NOTES ON INDIVIDUAL CLAUSES

Clause 1        Short title

1.       The short title by which this Act may be cited is the Migration Amendment (Designated Unauthorised Arrivals) Act 2006 .

Clause 2        Commencement

2.       Subclause 2(1) provides a table that sets out the commencement provisions of this Act.  Under this table:

(a)           sections 1 to 3 of this Act, and anything else not covered by the table, will commence on the day on which this Act receives the Royal Assent;

(b)          Schedule 1 to this Act will commence on the day after this Act receives the Royal Assent; and

(c)           Schedule 2 to this Act will commence on the day after the end of the period of 5 years beginning on the day on which this Act receives the Royal Assent.

1.       Subclause 2(2) provides that Column 3 contains additional information that is not part of this Act and that information in Column 3 may be edited in any published version of this Act.

Clause 3       Schedules

2.       This clause provides that each Act specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned.  In addition, any other item in a Schedule to this Act has effect according to its terms.

 

 

 



SCHEDULE 1 - Amendments commencing on day after Royal Assent

Migration Act 1958

Item 1A       After subsection 4AA(1)

50.     This item inserts new subsection 4AA(1A) after subsection 4AA(1) in Part 1 of the Migration Act 1958 (the Act).

51.     New subsection 4AA(1A) is an affirmation by Parliament of the principle that a minor who is a designated unauthorised arrival or a transitory person residing in a country in respect of which a declaration is in force under subsection 198A(3) of the Act, will only be detained as a measure of last resort.

52.     The purpose of new subsection 4AA(1A) is for the Parliament to confirm and lend additional emphasis to the Government’s view that children should not be detained, while being processed under offshore processing arrangements, except as a measure of last resort. 

53.     A note is also included confirming the Minister’s power to direct officers of the Department to take all reasonable steps to work with declared countries with  a view to upholding this principle, as the means by which the principle is to be reflected by government action.  

54.     It is noted that the Government intends to establish in Nauru residential-style accommodation for women, children and families in a community setting.  Security around such a village-style complex would be non-intrusive and designed to ensure the safety and protection of the women, children and families living there.  It would be fenced, but residents would be able to enter and exit during the day on their own recognisance. Night time access would be monitored and controlled by IOM-engaged private security personnel for safety reasons.  Families would be free to come and go consistent with their Nauruan visa requirements.

55.     It should be noted however, as with the onshore arrangements, that there will be some circumstances warranting restrictions on movement of individuals.  For example, an initial period of restriction for health checking and other processing may be required.

Item 1          Subsection 5(1)

56.     This item inserts a definition of “designated unauthorised arrival” after the definition of "deportee" in subsection 5(1) in Part 1 of the Migration Act 1958 (‘the Act’). The definition of “designated unauthorised arrival” provides that the term has the meaning given by new section 5F.

57.     This purpose of this amendment is to provide that, for the purposes of the Act, the meaning of the term “designated unauthorised arrival” is given by new section 5F.

Item 2          Subsection 5(1) (note to the definition of excised offshore place )

58.     This item makes a technical amendment to the note following the definition of excised offshore place in subsection 5(1) in Part 1 of the Act consequential to the amendments made by items 3 and 8. This amendment replaces the reference to offshore entry person with certain designated unauthorised arrivals .

59.     Item 3 omits offshore entry person as a defined term for the Act. Item 8 of this Schedule inserts new section 5F, which defines designated unauthorised arrival. In broad terms, a designated unauthorised arrival includes both persons who meet the definition through entry by whatever means at an excised offshore place and unauthorised sea arrivals that enter at any other place in Australia. The note following the definition of excised offshore place in subsection 5(1) is relevant, therefore, to certain designated unauthorised arrivals, ie those who are designated unauthorised arrivals as a result of entry at an excised offshore place.

Item 3          Subsection 5(1) (definition of offshore entry person )

60.     This item repeals the defined term offshore entry person . References to this term are removed from the Act by this Schedule as this concept is being discontinued from use in the Act. Persons who enter Australia at an excised offshore place and who become unlawful non-citizens because of that entry will, by virtue of item 8 (which inserts new section 5F defining designated unauthorised arrivals), become designated unauthorised arrivals. Existing offshore entry persons who do not hold a substantive visa on commencement of this Schedule, or who have not departed Australia or a declared country, will become designated unauthorised arrivals on commencement through the operation of new section 5F.

Item 4          Subsection 5(1) (paragraph (a) of the definition of transitory person )

61.     This item makes a technical change consequential to items 3 and 8. It omits the reference to offshore entry person and substitutes this with a reference to a person .

62.     The term offshore entry person was not replaced with designated unauthorised arrival as it might have been interpreted that the person had to be a designated unauthorised arrival at the time they were taken to another country pursuant to section 198A. Persons taken prior to commencement and whom this definition is intended to cover, would not have been designated unauthorised arrivals at the time of being taken, but offshore entry persons.

 

Item 5          Subsection 5(1) (definition of transitory person )

63.     This item amends the definition of transitory person by excluding certain persons from meeting the definition. It inserts new paragraphs (d) to (g) into the definition. Paragraph (d) repeats the language currently in the definition which excludes a person who has been assessed to be a refugee.

64.     The new paragraphs provide events upon which a person who has been a transitory person will cease to hold that status. A person ceases to be a transitory person if they have:

·         been determined to be a refugee;

·         become the holder of a substantive visa;

·         left Australia other than as result of being removed under subsection 198(1A) or taken under subsection 198A(1), from Australia to a country in respect of which a declaration is in force under subsection 198A(3); or

·         left a country in respect of which a declaration is in force under subsection 198A(3), to travel to a country other than Australia. 

65.     New subsections 5(4B) and (4C) (inserted by item 6) provide certain circumstances in which a person is taken not to have left Australia or to have left a country, for the purposes of the definition of transitory person.

66.     Persons covered by paragraphs (d) to (g) will not be, or will no longer be, a transitory person and will not be subject to the provisions applying to transitory persons. A person who is a designated unauthorised arrival pursuant to new section 5F may be a transitory person at the same time.

Item 6          After subsection 5(4A)

67.     This item inserts new subsections (4B) and (4C) into section 5. These new subsections provide certain circumstances in which a person is taken not to have left Australia or left a country declared under subsection 198A(3), for the purposes of the definition of transitory person.

68.     New subsection 5(4B) provides that a person is taken not to have left Australia if they have been removed under section 198 to another country but refused entry by that country and returned to Australia as a result of that refusal.

69.     New subsection 5(4C) provides that a person is taken not to have left a country if they have left the country to travel to one or more other countries, been refused entry by each of those other countries and returned to the first country as a result of the refusal or refusals. It also provides that a person is taken not to have left a country if they have left the country for medical treatment in another country or countries and have returned to the first country after having received medical treatment.

70.     A transitory person who is taken not to have left Australia or not to have left a declared country in these circumstances will continue to come within the definition of transitory person.

Item 7          Subparagraph 5A(3)(j)(ii)

71.     This item makes a technical amendment to subparagraph 5A(3)(j)(ii) consequential to items 3 and 8. It omits the reference to an offshore entry person and substitutes this with a reference to a designated unauthorised arrival .

Item 8         After section 5E

72.     This item inserts new section 5F, which defines designated unauthorised arrival . The definition includes those persons who formerly came within the definition of offshore entry person ie a person who became an unlawful non-citizen because the person entered Australia at an excised offshore place after the excision time for that place (i.e. before the commencement of this Act). Excised offshore place and excision time are defined at subsection 5(1). The definition will also cover such persons who enter at an excised offshore place after commencement of the Act where the place is excised at time of commencement. In addition it will cover such persons who enter excised offshore places that may be prescribed after the commencement of the Act pursuant to paragraph (e) of the definition of excised offshore place .

73.     The definition also includes persons who enter Australia at a place other than an excised offshore place by sea on or after 13 April 2006 and become an unlawful non-citizen because of that entry. Subsection 5F(8) provides for circumstances in which a person is taken to have entered Australia by sea.

74.     Certain persons are excluded from the definition of designated unauthorised arrival by paragraphs 5F(1)(a) and (c) and by subsection 5F(2). Paragraph 5F(1)(a) excludes a person who is an exempt person under subsection 5F(2). 

75.     Paragraph 5F(1)(c) provides that a person is not a designated unauthorised arrival if the person has, after the entry that made them a designated unauthorised arrival:

·         become the holder of a substantive visa;

·         left Australia other than as result of being taken under subsection 198A(1) from Australia to a country in respect of which a declaration is in force under subsection 198A(3); or

·         left a country in respect of which a declaration is in force under subsection 198A(3), to travel to a country other than Australia. 

76.     New subsections 5F(10) and (11) provide certain circumstances in which a person is taken not to have left Australia or left a country, for the purposes of the definition of designated unauthorised arrival. 

77.     A person who falls within paragraph 5F(1)(c) is not (or will cease to be) a designated unauthorised arrival and is not (or will cease to be) subject to the provisions applying to designated unauthorised arrivals. A person who is an offshore entry person immediately prior to commencement but who falls within paragraph 5F(1)(c) will not become a designated unauthorised arrival on commencement. 

78.     Subsection 5F(2) sets out certain classes of person who are exempt from inclusion in the definition of designated unauthorised arrival. These are persons who do not become designated unauthorised arrivals despite having become unlawful because of entry to Australia at an excised offshore place after the excision time for that place, or entry to Australia by sea on or after 13 April 2006.

79.     Paragraph 5F(2)(a) exempts New Zealand citizens who hold and produce a New Zealand passport that is in force.

80.     Paragraph 5F(2)(b) exempts non-citizens who hold and produce a passport that is in force and is endorsed with an authority to reside indefinitely on Norfolk Island.

81.     Persons described in paragraphs 30 and 31 need to be exempted as they receive a Special Category visa after arrival and would be caught by the designated unauthorised arrival definition if not otherwise exempted.

82.     Paragraph 5F(2)(c) provides that, for the purposes of new section 5F, a person is an ‘exempt person’ if that person 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 either seeking to enter the migration zone and to be a person who would, if in the migration zone, be an unlawful non-citizen.

83.     Paragraph 5F(2)(d) exempts classes of persons declared by the Minister, under subsection 5F(3), to be exempt.

84.     Paragraph 5F(2)(e) exempts individual persons declared by the Minister, under subsection 5F(6), to be exempt.

85.     Subsection 5F(3) allows the Minister to declare a class of persons to be exempt under paragraph 5F(2)(d). Such persons will not become designated unauthorised arrivals despite having become unlawful because of entry to Australia at an excised offshore place after the excision time for that place, or entry to Australia by sea on or after 13 April 2006.

86.     Subsection 5F(4) provides that a class of persons may be specified in a declaration made under subsection 5F(3) even if ascertaining the membership of the class relies on a discretion being exercised or a particular opinion being held.  For example, a declaration might describe an exempt class as “where an officer is satisfied the person would meet the criteria for a particular visa were they able to make a valid application”. This will assist in ensuring that persons not intended to be subject to the offshore processing regime are not caught.

87.     Subsection 5F(5) provides that a declaration by the Minister under subsection 5F(3), that declares a class of persons to be exempt under paragraph 5F(2)(d), is a legislative instrument. While this would be the normal position, this provision puts the matter beyond doubt.

88.     Subsection 5F(6) provides that the Minister may, for the purposes of paragraph (2)(e), declare, in writing, a specified person to be exempt if:

89.     regulations made for the purposes of the subsection specify criteria that a person must satisfy before the person may be declared to be exempt under this subsection; and

90.     the Minister is satisfied that the person satisfies those criteria.

91.     This will allow for the regulations to provide criteria which must be met by an individual before the Minister may declare that individual to be exempt. For example, a criterion might be that the person would likely be eligible to be granted a particular visa were they able to make such an application.  The Minister cannot make any declaration under subsection 5F(6) unless regulations are in place under paragraph 5F(6)(a).

92.     Subsection 5F(7) provides that a declaration by the Minister under subsection 5F(6), that declares a specified person to be exempt, is not a legislative instrument. Such a declaration would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 . This subsection assists readers by providing a clear statement that this is the case.

93.      Subsection 5F(8) sets out circumstances in which a person is taken to have entered Australia by sea, for the purposes of section 5F.  The intention is to make clear that certain persons who travel by sea, but enter the migration zone other than by sea, are nonetheless taken to have entered Australia by sea.

94.     Paragraph 5F(8)(a) provides that a person enters Australia by sea if the person travels to Australia by sea and enters the migration zone (whether or not by sea).  Migration zone is defined in subsection 5(1). This reflects the fact that some people may not enter Australia (enter the migration zone) until they step onto land rather than while they are still at sea.

95.     Paragraph 5F(8)(b) provides that a person enters Australia by sea if the person enters the migration zone by air pursuant to subsection 245F(9) as a result of being found on a ship detained under section 245F. Subsection 5F(9) provides that for the purposes of section 5F a person who enters Australia on an aircraft is taken to have entered the migration zone by air only if that aircraft lands in the migration zone.

96.     Paragraph 5F(8)(c) provides that a person enters Australia by sea if the person enters the migration zone by air after being rescued at sea.

97.     Paragraphs 5F(8)(b) and (c) are to ensure that persons airlifted to Australia for the last leg of their journey after having travelled by sea do not avoid becoming a designated unauthorised arrival if they would otherwise meet the definition of such a person.

98.     Subsection 5F(9) clarifies, for the purposes of section 5F, that a person who enters Australia on an aircraft is taken to have entered the migration zone by air only if that aircraft lands in the migration zone.

99.     New subsections 5F(10) and (11) provide certain circumstances in which a person is taken not to have left Australia or left a country, for the purposes of the definition of a designated unauthorised arrival.

100.     New subsection 5F(10) provides that a person is taken not to have left Australia if they have been removed under section 198 to another country but refused entry by that country and returned to Australia as a result of that refusal.

101.     New subsection 5F(11) provides that a person is taken not to have left a country if they have left the country to travel to one or more other countries, been refused entry by each of those other countries and returned to the first country as a result of the refusal or refusals. It also provides that a person is taken not to have left a country if they have left the country for medical treatment in one or more other countries and have returned to the first-mentioned country after having received medical treatment.

Item 9        Subsection 42(4) (note)

102.     This item repeals the note after subsection 42(4) and substitutes a new note, to the effect that section 189 provides for the detention of unlawful non-citizens in the migration zone. The change provides a more accurate note. Before the amendment the note stated that section 189 provides that an unlawful non-citizen in the migration zone must be detained. This did not take account of the fact that for unlawful non-citizens in the migration zone which is also an excised offshore place, detention is discretionary pursuant to subsection 189(3) of the Act.

Item 10        Subsection 46A(1)

103.     This item repeals subsection 46A(1) and substitutes a new subsection which provides that an application for a visa is not valid if made by a designated unauthorised arrival who is in Australia.

104.     Section 46A forms part of the offshore processing regime for designated unauthorised arrivals. Prior to amendment, section 46A prohibited applications for visas by offshore entry persons in Australia unlawfully (unless the Minister determines that a particular person may apply for a particular class of visa). The concept of offshore entry person is removed from the Act by this Schedule (item 3) and replaced with the new concept of designated unauthorised arrival. The amendment made by this item provides that the bar on visa applications in section 46A applies to designated unauthorised arrivals. Such persons will be prohibited from applying for any visa while the person is in Australia, unless the Minister determines under subsection 46A(2) that the person may apply for a visa of a class specified in the determination. When such a determination is made, the Minister is required to table a statement in each House of the Parliament as set out in subsections 46A(4) and (5).

105.     The new subsection 46A(1) does not refer to the designated unauthorised arrival being in Australia as an unlawful non-citizen. A designated unauthorised arrival who is granted a substantive visa ceases to be a designated unauthorised arrival, and so would no longer be subject to the bar in section 46A on making applications. The lawfulness element has essentially been transferred to the definition of a designated unauthorised arrival and does not need to be repeated in subsection 46A(1). A designated unauthorised arrival who holds a visa which is not a substantive visa (eg a bridging visa) will be barred by section 46A from making visa applications while in Australia unless the Minister lifts the bar.

106.     This item also amends the heading to section 46A to replace the reference to offshore entry persons with a reference to designated unauthorised arrivals.

Item 11        Subsection 46A(2)

107.      This item makes a technical change to subsection 46A(2) to replace the reference to offshore entry person with a reference to designated unauthorised arrival. This change is consequential to the amendment made by item 10, which provides that the bar on making visa applications in section 46A applies to designated unauthorised arrivals, rather than to offshore entry persons.  The amendment provides that the Minister may determine that a designated unauthorised arrival may apply, while in Australia, for a visa of a class specified in the determination. When making such a determination, the Minister is required to table a statement in each House of the Parliament as set out in subsections 46A(4) and (5).

Item 12        Subsection 46A(2)

108.     This item makes a technical change to subsection 46A(2) to replace the reference to the person with a reference to designated unauthorised arrivals . The amendment is intended to make clear that the Minister’s determination under subsection 46A(2) relates to a designated unauthorised arrival.

 

Item 13        Paragraph 46A(5)(a)

109.     This item makes a technical change to paragraph 46A(5)(a) to replace the reference to offshore entry person with a reference to designated unauthorised arrival .   The amendment is consequential to the change made by item 11 to subsection 46A(2).

Item 14        Paragraph 46A(5)(b)

110.     This item makes a technical change to paragraph 46A(5)(b) to replace the reference to offshore entry person with a reference to designated unauthorised arrival .   The amendment is consequential to the change made by item 11 to subsection 46A(2).

Item 15        Subsection 46A(7)

111.     This item makes a technical change to subsection 46A(7) to replace all references to offshore entry person with references to designated unauthorised arrival .   The amendment is consequential to the change made by item 11 to subsection 46A(2). Subsection 46A(7) provides that the Minister does not have a duty to consider whether to make a determination under subsection 46A(2) allowing a designated unauthorised arrival, who would otherwise be prohibited from applying for a visa while in Australia to apply for a class of visa specified in the determination.  

Item 16        Subsection 46B(1)

112.     This item repeals subsection 46B(1). This subsection provided that the bar on a transitory person making visa applications while in Australia only applied where the person was an unlawful non-citizen. A transitory person who is granted a substantive visa ceases to be a transitory person, and so would no longer be subject to the bar in section 46B on making applications. The lawfulness element has essentially been transferred to the definition of a transitory person and does not need to be repeated in subsection 46B(1).  A transitory person who holds a visa which is not a substantive visa (eg a bridging visa) will be barred by section 46B from making visa applications while in Australia unless the Minister lifts the bar.

Item 16A     Subsection 65(1) (note)

113.     This item repeals the note after subsection 65(1) in Division 3 of Part 2 of the Act and substitutes a new note. The new note includes a reference to new section 84A, inserted by item 16B of this Schedule, and this amendment is therefore consequential and technical in nature.

 

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

114.     This item inserts new section 84A at the end of Subdivision AG of Division 3 of Part 2 of the Act.

115.     New section 84A provides the Minister with a non-compellable, non-reviewable power to grant a visa to a designated unauthorised arrival, transitory person or a person who has ceased to be a transitory person by reason of having been found to be a refugee.

116.     New subsection 84A(1) provides that section 84A applies to a person who is a designated unauthorised arrival, transitory person or a person who has ceased to be a transitory person by reason of having been found to be a refugee.

117.     New subsection 84A(2) provides that the Minister may, if he or she thinks it is in the public interest to do so, grant a visa of a particular class to a person whom section 84A applies irrespective of whether that person has applied for that visa.

118.     New subsection 84A(3) provides that, in exercising the power under subsection 84A(2), the Minister is not bound by Subdivision AA (provisions governing applications for visas), Subdivision AC (provisions governing the grant of visas), Subdivision AF (provisions governing Bridging visas) in Division 3 of Part 2, or by the regulations, but is bound by all other provisions of the Act.

119.     New subsection 84A(4) provides that the Minister’s power to grant such a visa is one which is non-compellable. That is, the Minister does not have a duty to consider whether to exercise the power, irrespective of whether he or she is requested to do so by any person, or in any other circumstances.

120.     New subsection 84A(5) provides that this power may only be exercised by the Minister personally (that is, it is a non-delegable power).

121.     New subsection 84A(6) provides that, subject to new subsection 84A(7), where the Minister grants a visa under subsection 84A(2), he or she is required to table a statement in both Houses of Parliament detailing that the Minister has granted a visa and setting out his or her reasons for granting that visa (in particular, why he or she believes it to be in the public interest).

122.     New subsection 84A(7) specifies information that is not to be included in such a statement. This is information which may identify the person to whom the visa has been granted or, if the Minister thinks that it would not be in the public interest to publish the name of any other person connected in any way with the grant of the visa, the name of that person or any information that may identify that person. 

123.     New subsection 84A(8) provides that such a statement must be tabled in both Houses of Parliament within 15 sitting days after 1 July (if the decision is made between 1 January and 30 June) or after 1 January ( if the decision is made between 1 July and 31 December).

Item 17        Subsection 189(2)

124.     This item amends subsection 189(2). Subsection 189(2) applies to persons in Australia but outside the migration zone, where an officer reasonably suspects that the person is seeking to enter the migration zone (other than at an excised offshore place) and would, if in the migration zone, be an unlawful non-citizen. Currently, subsection 189(2) requires an officer to detain such a person. This item amends subsection 189(2) to provide that an officer has a discretion whether or not to detain such a person.

125.     This amendment brings the detention regime for persons seeking to enter Australia (other than at an excised offshore place) in line with the regime in place for persons seeking to enter at offshore entry places. It provides officers with the opportunity to detain a person under this section or alternative provisions such as subsection 245F(9) of the Act.

Item 18        Subsection 198A(1)

126.     This item amends subsection 198A(1) to replace the reference to offshore entry person with a reference to designated unauthorised arrival.

127.     Subsection 198A(1) forms part of the offshore processing regime for designated unauthorised arrivals. It allows an officer to take such a person from Australia to a country in respect of which a declaration is in force under subsection 198A(3), for the processing of their refugee claims.  In the past, persons taken to declared countries for processing of refugee claims have had these assessed either by the United Nations High Commissioner for Refugees (UNHCR) or by trained Australian officers using a process modelled closely on that used by the UNHCR. Subsection 198A(3) provides that the Minister may declare that a country: 

·         provides access, for persons seeking asylum, to effective procedures for assessing the person’s need for protection;

·         provides protection for persons seeking asylum pending determination of their refugee status;

·         provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and

·         meets relevant human rights standards in providing that protection.

128.     This provision ensures that asylum seekers will be dealt with under the offshore processing regime in a manner that meets Australia’s international obligations.  

129.     Prior to the amendment made by this item, section 198A applied to offshore entry persons. The concept of offshore entry persons is removed from the Act by this Schedule, and replaced by the concept of designated unauthorised arrivals (items 3 and 8). The amendment provides that the power to take a person to a declared country for offshore processing of refugee claims applies to designated unauthorised arrivals.

130.     This item also amends the heading to section 198A by replacing the reference to offshore entry person with a reference to designated unauthorised arrival .         

Item 18A     At the end of subsection 198A(1)

131.     This item inserts a note at the end of subsection 198A(1) in Division 8 of Part 2 of the Act.

132.     Subsection 198A(1) of the Act, as amended by item 18 of this Act, provides that an officer may take a designated unauthorised arrival from Australia to a country in respect of which a declaration is in force under subsection 198A(3).

133.     The note inserted by this item states that the Minster 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 198A(3) to provide suitable residential accommodation for people who are taken to those countries.

134.       The purpose of this amendment is to confirm that the power exists to allow the Minister to direct officers of the Department to take such steps.

Item 19        Paragraph 198A(2)(a)

135.     This item makes a technical amendment to paragraph 198A(2)(a) to replace the reference to person with a reference to designated unauthorised arrival . This amendment makes clear that the person referred to in paragraph 198A(2)(a) is a designated unauthorised arrival.

Item 20       Paragraph 198A(2)(b)

136.     This item makes a technical amendment to paragraph 198A(2)(b) to replace the reference to person with a reference to designated unauthorised arrival . This amendment makes clear that the person referred to in paragraph 198A(2)(b) is a designated unauthorised arrival.

 

Item 21        Paragraph 198A(2)(c)

137.     This item makes a technical amendment to paragraph 198A(2)(c) to replace the reference to person with a reference to designated unauthorised arrival . This amendment makes clear that the person referred to in paragraph 198A(2)(c) is a designated unauthorised arrival.

Item 22        Subsection 198A(4)

138.     This item repeals and substitutes a new subsection 198A(4), in relation to the immigration detention of designated unauthorised arrivals being dealt with under section 198A(1). It replaces the reference to an offshore entry person with a reference to a designated unauthorised arrival, consequential to the change made by item 18. It maintains the effect that a person is taken not to be in immigration detention while the person is being dealt with under section 198A.

139.     This item also adds a provision making clear that the fact a designated unauthorised arrival is in immigration detention (whether pursuant to a mandatory or discretionary power) does not prevent an officer removing the person to a declared country under section 198A.

Item 23        Paragraph 198C(8)(b)

140.     This item amends paragraph 198C(8)(c) to refer to both sections 46A and section 46B.

141.     The purpose of this amendment is to correct a technical error that would have prevented transitory persons (who are designated unauthorised arrivals) being able to apply for a visa as intended by the paragraph.

Item 23A     Paragraph 276(2A)(aa)

142.     This item inserts “84A” after the word “section” in paragraph 276(2A)(aa) of the Act.

143.     Section 276 sets out the circumstances in which a person is considered to give ‘immigration assistance’ for the purposes of Part 3 of the Act (which deals with migration agents and immigration assistance). Paragraph 276(2A)(aa) provides that a person gives immigration assistance if that person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by preparing, or helping to prepare, a request to the Minister to exercise a power under section 195A (grant of visa to a detainee), 197AB (residence determination) or 197AD (revocation or variation of a residence determination), whether or not the exercise of the power would relate to the other person.

144.     By inserting the reference to section 84A in paragraph 276(2A)(aa), the meaning of ‘immigration assistance’ is extended to include where a person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by preparing, or helping to prepare, a request to the Minister to exercise his or her power under section 84A to grant a visa to a designated unauthorised arrival, transitory person, or person who has ceased to be a transitory person on being determined to be a refugee, whether or not the exercise of the power would relate to the other person.

145.     The purpose of this amendment is to ensure that persons providing such assistance are considered to be providing ‘immigration assistance’ for the purposes of Part 3 of the Act, and are thus governed by the requirements in relation to providing immigration assistance. 

Item 23B     Subsection 277(5)

146.     This item inserts “84A” after the word “section” in subsection 277(5) of the Act.

147.       Subsection 277(5) provides that, for the purposes of Part 3 of the Act, a lawyer is not considered to give ‘immigration legal assistance’ if he or she provides advice to another person that is for the purpose of the preparation or making of a request to the Minister to exercise a power under section 195A (grant of visa to a detainee), 197AB (residence determination) or 197AD (revocation or variation of a residence determination), whether or not the exercise of the power would relate to the other person.

148.       Inserting the reference to section 84A in subsection 277(5) means that ‘immigration legal assistance’ will not include where a lawyer provides advice to another person that is for the purpose of the preparation or making of a request to the Minister to exercise his or her power under section 84A to grant a visa to a designated unauthorised arrival, transitory person, or a person who ceased to a transitory person on being determined to be a refugee, whether or not the exercise of the power would relate to the other person.

149.     The purpose of this amendment is to ensure that lawyers providing such assistance are not considered to be providing ‘immigration legal assistance’ for the purposes of Part 3 of the Migration Act.

Item 23C     Paragraph 282(4)(f)

150.     This item inserts “84A” after the word “section” in paragraph 282(4)(f) of the Act.

151.     Subsection 282(1) makes it an offence for a person, who is not a registered migration agent, to ask for or receive any fee or other reward for the making of ‘immigration representations’. Subsection 282(2) makes it an offence for a person to ask for or receive any fee or other reward for the making of ‘immigration representations’ by another person who is not a registered migration agent.

152.     Paragraph 282(4)(f) provides that a person makes immigration representations if he or she makes representations to, or otherwise communicates with, the Minister, a member of the Minister’s staff or the Department, on behalf of a person who has made (or is proposing to make) a request to the Minister to exercise a power under section 195A (grant of visa to detainee), 197AB (residence determination) or 197AD (revocation or variation of residence determination), whether or not the exercise of the power would relate to the other person, about the request.  

153.      This item extends the definition of ‘immigration representations’ to include where a person makes representations to, or otherwise communicates with, the Minister, a member of the Minister’s staff or the Department on behalf of a person who has made (or is proposing to make) a request to the Minister to exercise a power under new section 84A to grant a visa to a designated unauthorised arrival, transitory person, or person who ceased to be a transitory person on being determined to be a refugee.

154.     The purpose of this amendment is to ensure that persons providing such representations are considered to be providing ‘immigration representations’ for the purposes of Part 3 of the Act.

Item 24        Subparagraph 336F(3)(a)(ii)

155.     This item amends subparagraph 336F(3)(a)(ii). Section 336F allows the Secretary to authorise officers to disclose identifying information in certain circumstances. Subsection 336F(3) puts certain limitations on the Secretary’s ability to give such an authorisation. Disclosure cannot be authorised in respect of persons who have made claims to protection under the Refugees Convention as amended by the Refugees Protocol, where disclosure would be to a foreign country in respect of which the claim is made, or a body of such a country.

156.     Item 24 amends subparagraph 336F(3)(a)(ii) to replace the reference to an offshore entry person with a reference to a designated unauthorised arrival. The amendment is consequential to the amendments made by items 3 and 8, removing the concept of offshore entry person and replacing it with the concept of designated unauthorised arrival.

Item 25       Subparagraph 336F(4)(a)(ii)

157.     This item amends subparagraph 336F(4)(a)(ii). Section 336F allows the Secretary to authorise officers to disclose identifying information in certain circumstances. Subsection 336F(4) puts certain limitations on the Secretary’s ability to give such an authorisation. Disclosure cannot be authorised in respect of persons who have made claims to protection under the Refugees Convention as amended by the Refugees Protocol, where the officer making the disclosure is not reasonably satisfied that the country or body receiving the information will not disclose it to a foreign country in respect of which the claim is made, or to a body of such a country.

158.     Item 25 amends subparagraph 336F(4)(a)(ii) to replace the reference to offshore entry person with a reference to designated unauthorised arrival. The amendment is consequential to the amendments made by items 3 and 8, removing the concept of offshore entry person and replacing it with the concept of designated unauthorised arrival.

Item 26        Paragraph 336F(5)(c)

159.     This item amends paragraph 336F(5)(c). Section 336F allows the Secretary to authorise officers to disclose identifying information in certain circumstances. Subsections 336F(3) and (4) place certain limitations on the Secretary’s ability to give such an authorisation in respect of persons who have made claims to protection under the Refugees Convention as amended by the Refugees Protocol. Subsection 336F(5) provides that those limitations do not apply where the person has had their refugee claims assessed and been found not to be person to whom Australia owes obligations under the Refugees Convention as amended by the Refugees Protocol. Item 26 amends paragraph 336F(5)(c) to replace the reference to offshore entry person with a reference to designated unauthorised arrival. The amendment is consequential to the amendments made by items 3 and 8, removing the concept of offshore entry person and replacing it with the concept of designated unauthorised arrival.

Item 26A     Paragraph 474(7)(a)

160.     This item replaces “91F” with “84A, 91F” in paragraph 474(7)(a) of the Act.

161.     Subsection 474(1) provides that a ‘privative clause decision’ is 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.

162.       Subsection 474(2) defines ‘privative clause’ to mean a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under the Act or under a regulation or other instrument made under that Act (whether in the exercise of a discretion or not), other than a decision referred to in subsections 474(4) or (5).

163.       Paragraph 474(7)(a) provides that, to avoid doubt, decisions made under subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 195A, 197AB, 197AD, 351, 391, 417 or 454 or subsection 503A(3) of the Migration Act are ‘privative clause decisions’ within the meaning of subsection 474(2).

164.       The effect of this item is to provide that a decision by the Minister made under new section 84A is a privative clause decision for the purposes of section 474.

165.     The purpose of this amendment is to achieve consistency with other provisions relating to the exercise of the Minister’s non-compellable powers under the Act.

Item 27        After Part 8C

166.     This item inserts a new Part 8D after Part 8C of the Act. This item also inserts new section 486R in new Part 8D of the Act.

Part 8D-Reports relating to designated unauthorised arrivals and transitory persons

167.     Subsection 486R(1) provides that the Secretary must, in regard to each financial year (commencing the year ending 30 June 2007), provide to the Minister a report under section 486R not later than 30 September in the next financial year.

168.     Subsection 486R(2) provides that a report under section 486R must include information about:

·          arrangements during that financial year for designated unauthorised arrivals and transitory persons claiming refugee status. This includes arrangements for:

-           determining any claims for refugee status made by such designated unauthorised arrivals and transitory persons; and

-           the accommodation, health care and education of such designated unauthorised arrivals and transitory persons; and

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

·          the number of claims for refugee status, by designated unauthorised arrivals and transitory persons that are determined during that financial year;

·          the number of designated unauthorised arrivals and transitory persons determined, during that financial year, to be refugees;

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

·          if the report provided by the Secretary to the Minister under section 486R mentions a claim for refugee status not determined within 90 days of being made, the report must contain information about the reasons why it was not determined within that time;

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

·          if a review is mentioned in such a report as not having been completed within 90 days starting on the day on which the person carrying out the review commenced the review, that report must include details of the reasons why it was not completed within that time.

169.      The purpose of subsections 486R(1) and 486R(2) is to require the Secretary to report to the Minister, specific details relating to designated unauthorised arrivals and transitory persons who claim refugee status. The report will not cover designated unauthorised arrivals and transitory persons who do not seek asylum.

170.     Subsection 486R(3) provides that a report made under section 486R must not include:

·          the name of any person who is or was a designated unauthorised arrival or a transitory person; or

·          any information that may identify such a person; or

·          the name of any other person connected in any way with any person covered by the first point above; or

·          any information that may identify that other person.

171.     The purpose of subsection 486R(3) is to provide that any such information contained in a report, which becomes a public document under subsection 486R(5), be subject to privacy considerations and provisions under the Refugees Convention (as amended by the Refugees Protocol) concerning the identification of individual asylum seekers.

172.     Subsection 486R(4) provides that a report made under section 486R may include any further information that the Secretary thinks is appropriate.

173.     The purpose of subsection 486R(4) is to provide a mechanism in the legislation to facilitate the communication of any other information not identified above which the Secretary believes to be relevant. It would not be appropriate for the Secretary to include information referred to in subsection 486R(3).

174.     Subsection 486R(5) provides that the Minister must table in each House of Parliament a copy of the report provided under section 486R, within 15 sitting days of that House after the day on which the Minister receives the report from the Secretary.

175.     The purpose of subsection 486R(5) is to inform the Parliament of the contents of the report provided pursuant to section 486R.

Item 27A     Before Part 9

176.     This item inserts Part 8E before Part 9 of the Act. Part 8E contains new sections 486S, 486T, 486U, and 486V.  Item 27A also inserts a Note after new subsection 486S(1).

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

177.     New Part 8E relates to investigations by the Commonwealth Ombudsman into designated unauthorised arrivals, transitory persons and persons who have ceased to be transitory persons by reason of having been determined to be refugees. The amendments make clear on the face of the Act that the Ombudsman has powers to investigate action relating to matters of administration taken by a Department in relation to designated unauthorised arrivals, transitory persons and persons who have ceased to be transitory persons on being determined to be refugees. The amendments also enhance the powers of the Ombudsman through the provision of mandatory tabling requirements.

178.     New subsection 486S(1) provides that the Minister may refer action, being action that relates to a matter of administration, taken by a Department or prescribed authority relating to such persons to the Commonwealth Ombudsman for investigation and report by the Ombudsman.

179.     The Note following new subsection 486S(1) points out that in addition to an investigation under this Part 8E, the Commonwealth Ombudsman may also investigate action, which relates to a matter of administration, taken by a Department or prescribed authority, regardless of the geographical location of the action, under the Ombudsman Act 1976. The note refers to section 3C of the Ombudsman Act - that section provides that the Ombudsman Act applies both within and outside Australia.

180.     Subsection 486S(2) provides that 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 . This has the effect that action taken by a service provider contracted to the Department will be taken to be action of the Department, and will be able to be investigated by the Ombudsman.

181.     Subsection 486S(3) provides that in section 486S:

·           Department has the meaning given by subsection 3(1) of the Ombudsman Act 1976; and

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

182.     The purpose of new section 486S is to enable the Minister to refer matters relating to designated unauthorised arrivals, transitory persons and persons who have ceased to be transitory persons on being determined to be refugees, to the Commonwealth Ombudsman for investigation and report, and to confirm the jurisdiction of the Commonwealth Ombudsman in relation to actions of a Department (including officers of the Department) or prescribed authority regardless of the geographical location of the action. Matters which could be referred would include, for example, circumstances where a person has been resident at an offshore processing centre for more than two years.

183.      New subsection 486T(1) provides that, as soon as practicable after the Minister refers action to the Commonwealth Ombudsman under new subsection 486S(1), the Commonwealth Ombudsman must investigate the action and provide the Minister with a written report on the action.

184.     New subsection 486T(2) provides that such a report may include any recommendations that the Commonwealth Ombudsman considers appropriate.

185.     New subsection 486T(3) further provides that the Minister is not bound by any of the recommendations made by the Commonwealth Ombudsman.

186.     New subsection 486T(4) requires the Ombudsman’s report to include a statement, for the purposes of tabling in Parliament, that sets out or paraphrases so much of the content of the report as the Ombudsman considers can be tabled without adversely affecting the privacy of any person. The purpose of new subsection 486T(4) is to ensure that any information contained in a report, which the Ombudsman considers could adversely affect the privacy of any person, can be removed from the statement to be tabled in Parliament.

187.     New subsection 486T(5) provides that the requirement to provide a report remains even if the person has, since the Minister referred the action under subsection 486S(1), ceased to be a designated unauthorised arrival or transitory person.

188.     New section 486U requires that the Minister table the Ombudsman’s statement, referred to in new subsection 486T(4) explained above,  in both Houses of Parliament within 15 sitting days of each House after the Minister receives the report.

189.     New subsection 486V(1) provides that the Ombudsman Act 1976 applies in relation to the 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. This is to ensure that the Ombudsman may exercise all of his or her powers, conferred by the Ombudsman Act in relation to investigations and reports under that Act, when investigating and reporting under section 486T of the Migration Act, and that the corresponding protections under the Ombudsman Act would also apply. Those powers include the power to obtain information and documents (sections 8 and 9 of the Ombudsman Act) and the power to examine witnesses (section 13 of the Ombudsman Act); those sections also provide protections for persons providing information to the Ombudsman in relevant circumstances.

190.     New subsection 486V(2) provides that the Ombudsman’s functions include the functions conferred on the Ombudsman by Part 8E of the Act.

Item 28        Paragraph 494AA(1)(a)

191.     This item repeals paragraph 494AA(1)(a) and substitutes a new paragraph 494AA(1)(a). Section 494AA is part of the offshore processing regime applying to designated unauthorised arrivals. It prohibits the institution or continuation of certain court proceedings relating to such persons. Prior to the amendments made by this Schedule, the offshore processing regime applied to offshore entry persons. The concept of offshore entry persons is removed by this Schedule and replaced with the concept of designated unauthorised arrivals (items 3 and 8).

192.     This item amends paragraph 494AA(1)(a) to prohibit the institution or continuation of court proceedings relating to an unauthorised entry by a person who, as a result of that entry, became a designated unauthorised arrival. Item 34 inserts a definition of unauthorised entry for the purposes of section 494AA.   

193.     Item 28 also amends the heading of section 494AA by omitting the reference to offshore entry persons and substituting this with a reference to designated unauthorised arrivals.

Item 29        Paragraph 494AA(1)(b)

194.     This item amends paragraph 494AA(1)(b). Section 494AA is part of the offshore processing regime applying to designated unauthorised arrivals. It prohibits the institution or continuation of certain court proceedings relating to such persons. Prior to amendment, paragraph 494AA(1)(b) referred to offshore entry persons. The concept of offshore entry persons is removed by this Schedule and replaced with the concept of designated unauthorised arrivals (items 3 and 8).

195.     This item replaces the reference to offshore entry person in paragraph 494AA(1)(b) with a reference to a person . It ensures that court proceedings cannot be instituted or continued in relation to the status of a person as an unlawful non-citizen during any part of the ineligibility period. The provision refers to a person rather than a designated unauthorised arrival to ensure that if a person has ceased to be a designated unauthorised arrival, as they are now able to under the new section 5F definition, the bar on legal proceedings in paragraph 494AA(1)(b) remains applicable.

196.     Subsection 494AA(4) defines the ineligibility period. As amended by item 32, the ineligibility period is the period from the time the person made an unauthorised entry which resulted in the person becoming a designated unauthorised arrival until the time when the person next ceases to be an unlawful non-citizen. This makes it clear that the bar on proceedings does not relate to persons who are not or never have been a designated unauthorised arrival.

Item 30        At the end of paragraph 494AA(1)(b)

197.     This item adds the words “in relation to the person” at the end of paragraph 494AA(1)(b). The amendment makes clear that the ineligibility period referred to in paragraph 494AA(1)(b) is the ineligibility period in relation to the person referred to in that paragraph.  Subsection 494AA(4) defines the ineligibility period. As amended by item 32, the ineligibility period is the period from the time the person made an unauthorised entry which resulted in the person becoming a designated unauthorised arrival until the time when the person next ceases to be an unlawful non-citizen.

Item 31       Paragraph 494AA(1)(c)

198.     This item repeals paragraph 494AA(1)(c) and substitutes new paragraph 494AA(1)(c). Section 494AA is part of the offshore processing regime applying to designated unauthorised arrivals. It prohibits the institution or continuation of certain court proceedings relating to such persons. Prior to amendment, paragraph 494AA(1)(c) referred to offshore entry persons. The concept of offshore entry persons is removed by this Schedule and replaced with the concept of designated unauthorised arrivals (items 3 and 8).

199.     This item replaces the reference to offshore entry person in paragraph 494AA(1)(c) with a reference to a person . It ensures that court proceedings cannot be instituted or continued in relation to the lawfulness of detention during the ineligibility period in relation to the person, being a detention based on the status of the person as an unlawful non-citizen. The provision refers to a person rather than a designated unauthorised arrival to ensure that if a person has ceased to be a designated unauthorised arrival, as they are now able to under the new section 5F definition, the bar on legal proceedings in paragraph 494AA(1)(c) remains applicable.

200.     Subsection 494AA(4) defines the ineligibility period. As amended by item 32, the ineligibility period is the period from the time the person made an unauthorised entry which resulted in the person becoming a designated unauthorised arrival until the time when the person next ceases to be an unlawful non-citizen. This makes clear that the bar on proceedings does not relate to persons who are not, or have never been, designated unauthorised arrivals.

Item 32        Subsection 494AA(4) (definition of ineligibility period )

201.     This item repeals the definition of ineligibility period in subsection 494AA(4) and substitutes a new definition for this term. The new definition provides that the ineligibility period is the period from the time the person made an unauthorised entry which resulted in the person becoming a designated unauthorised arrival until the time when the person next ceases to be an unlawful non-citizen. The new definition reflects the changed application of the provision from offshore entry persons to designated unauthorised arrivals.

Item 33        Subsection 494AA(4)(definition of offshore entry )

202.     This item repeals the definition of offshore entry for section 494AA, consequential to the amendments made by items 28 and 32 to section 494AA.

Item 34        Subsection 494AA(4)

203.     This item amends subsection 494AA(4) to insert a definition of unauthorised entry . The amendment is consequential to the amendment made by item 28. An unauthorised entry is defined as a n entry into Australia that occurs:

·         if the entry occurs at an excised offshore place—after the excision time for that offshore place; or

·         if the entry occurs at a place other than an excised offshore place—on or after 13 April 2006.

Item 35        Paragraph 494AB(1)(b)

204.     This item amends paragraph 494AB(1)(b) by omitting the word “transitory”. Paragraph 494AB(1)(b) currently prohibits court proceedings relating to the status of a transitory person as an unlawful non-citizen during any part of the ineligibility period.  As amended, it will apply to persons rather than to transitory persons. The definition of ineligibility period in subsection 494AB(4) makes clear that persons who were never transitory persons are not caught by the prohibition.   The provision refers to a person rather than a transitory person to ensure that if a person has ceased to be a transitory person, as they are now able to under the new subsection 5(1) definition of transitory person, the bar on legal proceedings in paragraph 494AB(1)(b) remains applicable.

Item 36        At the end of paragraph 494AB(1)(b)

205.     This item adds the words “in relation to the person” at the end of paragraph 494AB(1)(b). The amendment makes clear that the ineligibility period referred to in paragraph 494AB(1)(b) is the ineligibility period in relation to the person referred to in that paragraph.  Subsection 494AB(4) defines the ineligibility period. As amended by item 39, the ineligibility period is the period from the time when the person was brought to Australia, as a transitory person, under section 198B until the time when the person next ceases to be an unlawful non-citizen.

 

Item 37       Paragraph 494AB(1)(c)

206.     This item substitutes a new paragraph 494AB(1)(c). The new paragraph provides that the court proceedings which may not be instituted or continued are those relating to the lawfulness of the detention of a person brought to Australia, as a transitory person, under section 198B, being a detention based on the status of the person as an unlawful non-citizen.

Item 38       Paragraph 494AB(1)(d)

207.     This item replaces paragraph 494AB(1)(d) in Part 9 of the Act with new paragraph 494AB(1)(d).

208.     Section 494AB provides that certain legal proceedings against the Commonwealth may not be instituted or continued in any court. Paragraph 494AB(1)(d) relates to removals from Australia in respect of transitory persons.

209.     New paragraph 494AB(1)(d) operates to prohibit the institution or continuation of legal proceedings relating to the removal from Australia under the Act of a person who is, or was at the time of the removal, a transitory person.

210.     The prohibition in paragraph 494AB(1)(d) applies whether the legal proceedings are instituted or continued before, during, or after the removal of the person.

Item 39       Subsection 494AB(4) (definition of ineligibility period )

211.     This item amends subsection 494AB(4) by substituting a new definition for ineligibility period, to ensure that if a person has ceased to be a transitory person, as they are now able to under the new subsection 5(1) definition of transitory person, the bar on legal proceedings in paragraph 494AB(1)(b) remains applicable.

Item 40      Application of amendments

212.     This item sets out how the amendments made by items 28 to 39 in Schedule 1 are to apply.

213.     Item 40 provides that the amendments made by items 28 to 39 apply to the institution of proceedings on or after the day on which item 40 commences. It also provides that these amendments apply to the continuation, after the day on which item 40 commences, of proceedings instituted on or after 13 April 2006 but before the commencement of item 40. The amendments made by items 28 to 39 amend sections 494AA and 494AB in respect of prohibitions on instituting, and continuing, certain legal proceedings relating to designated unauthorised arrivals and transitory persons.  

Item 41        Transitional

214.     This item makes provision for transitional cases affected by the amendments made by this Schedule. Subitem 41(1) provides that a visa application made in certain circumstances is taken, on and after commencement of the item, not to be a valid application for a visa. The circumstances are where a person:

·         entered the migration zone (other than at an excised offshore place) during the relevant period;

·         made an application for a visa during the relevant period;

·         was not granted the visa during the relevant period; and

·         is covered by the definition of a designated unauthorised arrival on the commencement on section 5F of the Migration 1958 (inserted by item 8 of this Schedule) because of the entry to the migration zone.

215.     The relevant period is defined at subitem 40(2) as the period starting on 13 April 2006 and ending immediately before the commencement of this item.

216.     Persons entering unlawfully by sea at a place other than an excised offshore place on or after 13 April 2006 and before commencement will be able to make visa applications until they become subject to the new regime on commencement. Consistent with the Government’s decision that such persons should be subject to the offshore processing regime, any application that has not resulted in the grant of a visa will be rendered invalid on commencement of the Act. This will include cases where a primary decision has been made to refuse the grant of a visa, and the decision is subject to merits review. It will also include cases where a refusal decision has been upheld on merits review, and the matter is subject to judicial review. In all such cases, any visa application will be rendered invalid because no visa has been granted before commencement.

Item 42         Saving  

217.     The item is consequential to the amendments made by items 7 and 24 to 26. Those items repeal references to offshore entry person in paragraphs 5A(3)(j)(ii) and 336F(5)( c) and subparagraphs 336F(3)(a)(ii) and (4)(a)(ii), and substitute references to designated unauthorised arrival .  Item 42 provides that any references to offshore entry person in an instrument of authorisation made under section 336D or 336F are taken to be references to designated unauthorised arrivals . It also provides that such an instrument is taken to authorise access to, and disclosure of, identifying information in respect of a designated unauthorised arrival to the extent that it would have authorised access to, or disclosure of, identifying information in relation to an offshore entry person. This ensures such instruments will continue to have effect as intended, on and after commencement of the Act.

 

Item 43         Compensation for acquisition of property

218.     This item provides for the payment by the Commonwealth of compensation if the operation of this Act would result in an acquisition of property otherwise than on just terms.

219.     Subitem 43(1) provides that if the operation of this Act would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

220.     Subitem 43(2) provides that if the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

221.     Subitem 43(3) provides that the Consolidated Revenue Fund is appropriated for the purposes of this item. It is important that in the event a visa application is rendered invalid by operation of these amendments, or a court proceeding is discontinued, the applicant is entitled to be repaid the visa application charge or court application fee without delay. A standing appropriation ensures this.

222.     An annual appropriation through the annual budget bills would require that an accurate estimation be made annually regarding the likely total cost to the Commonwealth resulting from refunds of charges and fees over the forthcoming twelve months. While we do not expect the cost to be large, it is not possible to accurately estimate the likely cost to the Commonwealth as this will depend on the number of unauthorised arrivals, especially unauthorised sea arrivals to a place other than an excised offshore place after 13 April 2006 and before the commencement. It is largely only these persons who may have made visa applications that this Bill will render invalid or commenced court proceedings that may not be continued. Any estimates would have to be a “worst case scenario” and may over estimate the needed appropriation.

223.     By contrast, a standing appropriation will ensure that public money can be used for other purposes while ensuring the certainty of refund of visa application charges and court fees, and accountability to Parliament through the Portfolio Budget Statements and Annual Report.

224.     Subitem 43(1) makes the Commonwealth liable to pay “a reasonable amount” of compensation. The amount of compensation to be paid will however generally be a fixed and readily ascertainable amount, it will represent a refund of a visa application charge or a refund of court fees.

225.           Subitem 43(4) provides that in this item:

·             acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution; and

·             just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

Item 43A     Independent review

226.     Subitem 43A(1) provides that the Minister must cause an independent review of the operation and effect of the amendments made by this Act. Subitem 43A(2) further provides that the review must be undertaken as soon as practicable after two years from the commencement of this item.

227.     Subitem 43A(3) requires the person carrying out the review to, within 6 months of commencing the review, provide to the Minister a written report of the review which includes an assessment of the operation and effect of the amendments made by this Act, and alternative approaches or mechanisms as appropriate.

228.     Subitem 43A(4) provides that the Minister must table a copy of the report in each House of Parliament within 15 sitting days of that House after the report is received.

229.     Subitem 43A(5) provides that, before the copy of the report is tabled pursuant to subitem 43A(4), the Minister may remove information from 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.

230.     The purpose of item 43A is to require an independent review of the operation and effect of the amendments made by this Act.

Item 44        Regulations

231.     This item provides a power for the Governor-General to make regulations under the Act.

232.     Subitem 44(1) provides that the Governor-General may make regulations prescribing matters required or permitted to be prescribed by the Act; or necessary or convenient for carrying out or giving effect to the Act.

233.     Subitem 44(2) provides that the Governor-General may also make regulations for matters of a consequential or transitional nature. Paragraph 44(2)(a) allows for regulations for or in relation to matters consequential on amendments or repeals made by the Act. These can include provisions which modify any Act, but those provisions cannot change the penalty for an offence (subitem 44(3)). Paragraph 44(2)(b) allows for regulations prescribing matters of a transitional nature relating to the enactment of the Act or the amendments or repeals made by the Act. These may include any saving or application provisions.

234.     The purpose of item 44 is to ensure that regulations can made to deal with unforeseen consequential or transitional provisions which are required as a result of the Act.

235.     Subitem 44(4) provides that the modifications permitted by regulations made under paragraph 44(2)(a) includes additions, omissions and substitutions.



SCHEDULE 2 - Amendments commencing 5 years after Royal Assent

Migration Act 1958

Item 1       Paragraph 5F(1)(b)

1.       This amendment will operate on the commencement of Schedule 2 to replace paragraph 5F(1)(b) (as inserted by item 8 in Schedule 1 to this Act) with new paragraph 5F(1)(b).

2.       Paragraph 5F(1)(b), as inserted by item 8 in Schedule 1 to this Act, operates to provide that a person is a ‘designated unauthorised arrival’ if that person became an unlawful non citizen because the person entered Australia at an excised offshore place after the excision time for that offshore place or entered Australia unlawfully by sea (see subsection 5F(8)) on or after 13 April 2006.

3.       New paragraph 5F(1)(b), to come into effect 5 years after this Act receives Royal Assent, operates to provide that a person is a ‘designated unauthorised arrival’ if that person became an unlawful non citizen because the person entered Australia by sea (see subsection 5F(8)) or entered Australia by air (see subsection 5F(9)) at an ‘excised offshore place’ after the excision time for that offshore place. The definition of a designated unauthorised arrival will no longer, on or after the commencement of Schedule 2, refer to persons who entered Australia by sea on or after 13 April 2006.

Item 2       Subsection 5F(9)

4.       This amendment will operate on the commencement of Schedule 2 to amend subsection 5F(9) of the Act (as inserted by item 8 of this Act). Subsection 5F(9) is amended by omitting “subsection 8” and substituting “this section”.

5.       As amended, subsection 5F(9) will provide that for the purposes of section 5F, a person who enters Australia on an aircraft is taken to have entered the migration zone by air only if that aircraft lands in the migration zone. The ‘migration zone’ is defined in subsection 5(1) of the Act to mean the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes land that is part of a State or Territory at mean low water; sea within the limits of both a State or a Territory and a port; and 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 a Territory not including a port.

6.       The purpose of this amendment is to make the definition of “entered the migration zone by air” applicable to all of section 5F not just subsection 5F(8). This is necessary as that wording will now be used in paragraph 5F(1)(b).

 

Item 3       Application

7.       This item makes provision for how the amendments made by Schedule 2 to this Act are to apply.

8.       It provides that the amendments apply in relation to people who become unlawful non-citizens because they enter Australia on or after the commencement of new item 3 of Schedule 2, that is, anyone who enters Australia on or after the day after the end of the period of 5 years beginning on the day on which this Act receives the Royal Assent.

9.       The effect of this is that any person who becomes unlawful because they enter Australia by sea or enter at an excised offshore place by air before the commencement of Schedule 2 will be subject to the provisions of the Act as amended by Schedule 1 to this Act. If the person enters unauthorised by sea on the Australian mainland, that person will become a designated unauthorised arrival on entry, and will be liable to be taken to a declared country under subsection 198A(1) of the Act for processing of any refugee claims. Anyone who enters unauthorised by sea on the Australian mainland on or after the commencement of Schedule 2 will not be a designated unauthorised arrival and not liable to offshore processing.