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Migration Amendment (Designated Unauthorised Arrivals) Bill 2006

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2004 - 2005 - 2006

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

MIGRATION AMENDMENT

(DESIGNATED UNAUTHORISED ARRIVALS) BILL 2006

supplementary EXPLANATORY MEMORANDUM

 

(Government)

 

 

(Amendments to be moved on Behalf of the Government)

(Circulated by authority of the

Minister for Immigration and Multicultural Affairs,

Senator the Honourable Amanda Vanstone)



amendments to the MIGRATION AMENDMENT (DESIGNATED UNAUTHORISED ARRIVALS) BILL 2006

 

OUTLINE

1.                  The purpose of these amendments to the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (‘the Bill’) is to:

·          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;

·          note the Minister’s power to direct officers of the Department to take all reasonable steps to work with a declared country with a view to having this principle upheld, such as through the establishment of residential-style accommodation in a community setting for women, children and families;

·          insert 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;

·          note the Minister’s power to direct DIMA officers to work with host countries (declared countries) to put appropriate accommodation arrangements in place for designated unauthorised arrivals, transitory persons, and person who have ceased to be transitory persons on being determined to be refugees;

·          require a report to be prepared and tabled, each financial year, on achievement of the 90 day target for determining claims for refugee status offshore, on arrangements for merits review of determination of such claims, and on the achievement of the 90 day target for processing reviews from the date of commencement of the review;

·          enable the Minister to refer to the Commonwealth Ombudsman for investigation and report, certain actions relating to designated unauthorised arrivals, transitory persons, or persons who have ceased to be transitory persons on being determined to be refugees;

·          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;

·          require an independent review of the operation and effect of the amendments made by the Bill as soon as practicable after the Bill has been in operation for 2 years, and require the report of that review to be tabled in Parliament;

·          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);

·          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; and

·          make minor technical amendments relating to the exemption (from being a designated unauthorised arrival) for persons brought to Australia for Customs purposes, and ensure legal proceedings cannot be instituted or continued in relation to the removal of a transitory person before, during or after that removal.

 

financial impact statement

2.                  The financial impact of Schedule 2 is negligible unless the sunsetting of offshore processing arrangements for unauthorised sea arrivals on the mainland attracts increased people smuggling activity, in which case further resources may need to be invested in onshore processing arrangements.

3.                  There will be some systems costs to establish IT systems to enable reporting against the 90 day time frame, in the order of $1million.

4.                  There will also be 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.

5.                  If additional resources are required for the Office of the Commonwealth Ombudsman as a result of the amendments, additional resources will be provided.

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



MIGRATION AMENDMENT (DESIGNATED UNAUTHORISED ARRIVALS) BILL 2006 - AMENDMENTS

NOTES ON INDIVIDUAL AMENDMENTS

Amendment 1          Clause 2, page 1 (lines 7 and 8)

1.                   This amendment amends clause 2 of the Bill, which sets out the commencement provisions of the Bill, and inserts a new clause 2 into the Bill. New subclause 2(1) includes a table setting out when various provisions of the Bill are to commence.  Under this table:

(a)           Sections 1 to 3 of the Bill will commence on the day on which the Bill receives the Royal Assent;

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

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

2.                   New 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.

 

Amendment 2           Schedule 1, heading, page 3 (line 2)

3.                   This amendment amends the heading before item 1 of Schedule 1 to the Bill, to replace “Amendments” with “Amendments commencing on the day after Royal Assent”.

4.                   This purpose of this amendment is to further clarify that, as provided for in clause 2 of the Bill (as amended by amendment 2 of these amendments), the amendments contained in Schedule 1 to the Bill are to commence on the day after the Bill receives the Royal Assent.

 Amendment 3          Schedule 1, page 3 (before line 5)

5.                   This amendment inserts new item 1A before item 1 of Schedule 1 to the Bill. New item 1A inserts new subsection 4AA(1A) after subsection 4AA(1) in Part 1 of the Migration Act 1958 (the Act).

6.                   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.

7.                   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. 

8.                   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.   

9.                   For the information of members, 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.

10.               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.

Amendment 4          Schedule 1, item 5, page 3 (line 21)

11.               This amendment amends item 5 of Schedule 1 to the Bill. In particular, it changes the wording of proposed new paragraph (d) of the definition in subsection 5(1) of ‘transitory person’, by replacing the word “assessed” with “determined”. This is a technical amendment to ensure consistency of expression.

Amendment 5          Schedule 1, item 8, page 5 (lines 23 to 29)

12.               This amendment replaces the proposed paragraph 5F(2)(c) in item 8 of Schedule 1 to the Bill with a new proposed paragraph 5F(2)(c).

13.               Paragraph 5F(2)(c) in item 8 of Schedule 1 to the Bill currently provides that, for the purposes of new section 5F, a person is an ‘exempt person’ if that person brought to the migration zone, pursuant to subsection 185(3A) of the Customs Act 1901 (‘the Customs Act’) as a result of being found on a ship detained under section 185 of that Act, and no officer reasonably suspected that the person was seeking to enter the migration zone and would, if in the migration zone, be an unlawful non citizen. The wording of this provision may cause operational difficulties for the Australian Customs Service, in terms of which officer must reasonably hold that suspicion.

14.               New proposed 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 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. This provides certainty as to which officer must have, or not have, the requisite state of mind.

Amendment 6          Schedule 1, page 8 (after line 7)

15.               This amendment 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 amendment 7 which inserts new item 16B into the Bill, and this amendment is therefore consequential and technical in nature.

Amendment 7           Schedule 1, page 8, after proposed item 16A

16.               This amendment inserts new item 16B in the Bill after item 16A. New item 16B inserts new section 84A at the end of Subdivision AG of Division 3 of Part 2 of the Act.

17.               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.

18.               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.

19.               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.

20.               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.

21.               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.

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

23.               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).

24.               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. 

25.               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).

Amendment 8           Schedule 1, page 8 (after line 14)

26.               This amendment inserts new item 18A after item 18 in Schedule 1 to the Bill. New item 18A inserts a note at the end of subsection 198A(1) in Division 8 of Part 2 of the Act.

27.               Subsection 198A(1) of the Act, as amended by item 18 of the Bill, 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).

28.               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.

29.               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.

Amendment 9          Schedule 1, page 9 (after line 1)

30.               This amendment inserts new item 23A after item 23 in Schedule 1 to the Bill. New item 23A inserts “84A” after the word “section” in paragraph 276(2A)(aa) of the Act.

31.               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.

32.               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.

33.               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.  

Amendment 10        Schedule 1, page 9, after proposed item 23A

34.               This amendment inserts new item 23B after item 23A in Schedule 1 to the Bill. New item 23B inserts “84A” after the word “section” in subsection 277(5) of the Act.

35.               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.

36.               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.

37.               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.

Amendment 11        Schedule 1, page 9, after proposed item 23B

38.               This amendment inserts new item 23C after item 23B in Schedule 1 to the Bill. New item 23C inserts “84A” after the word “section” in paragraph 282(4)(f) of the Act.

39.               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.

40.               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.  

41.                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.

42.               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.

Amendment 12        Schedule 1, page 9 (after line 10)

43.               This amendment inserts new item 26A after item 26 in Schedule 1 to the Bill. New item 26A replaces “91F” with “84A, 91F” in paragraph 474(7)(a) of the Act.

44.               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.

45.               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).

46.               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).

47.               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.

48.               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.

Amendment 13         Schedule 1, item 27, page 9 (line 24)

49.               This amendment makes a minor technical amendment to item 27 of the Bill, which inserts new section 486R into the Act. The item amends the wording of proposed paragraph 486R(2)(a) to omit “seeking asylum” and substitute “claiming refugee status”.  This amendment is to ensure consistency of expression.

Amendment 14        Schedule 1, item 27, page 9 (line 26)

50.               This amendment makes a minor technical amendment to item 27 of the Bill, which inserts new section 486R into the Act. The item amends the wording of proposed subparagraph 486R(2)(a)(i) to omit “assessing” and substitute “determining”.  This amendment is to ensure consistency of expression.

Amendment 15        Schedule 1, item 27, page 9 (after line 31)

51.               This amendment amends item 27 of Schedule 1 to the Bill by inserting new paragraph 486R(2)(aa) after paragraph 486R(2)(a).

52.               Proposed 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.

53.               Proposed subsection 486R(2) (as amended by amendments 13 to 17) 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, including arrangements for determining any claims for refugee status made by such persons, and for the accommodation, health care and education of such persons;

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

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

54.               New paragraph 486R(2)(aa) provides that, in addition to the above information, the report must also contain details of the 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.

55.               The purpose of new paragraph 486(2)(aa) is to require the Secretary’s report to the Minister to include details of the arrangements 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 Minister is required to table a copy of the report in each House of the Parliament (subsection 486R(5)) within 15 sitting days for each House after the Minister receives the report.



Amendment 16        Schedule 1, item 27, page 10 (line 1)

56.               This amendment amends item 27 of Schedule 1 to the Bill by omitting “asylum claims” in paragraph 486R(2)(b) and substituting “claims for refugee status”. This technical amendment ensures consistency of expression.

Amendment 17        Schedule 1, item 27, page 10 (line 2)

57.               This amendment amends item 27 of Schedule 1 to the Bill by omitting “that are assessed” in proposed paragraph 486R(2)(b) and substituting “determined”. This technical amendment corrects a grammatical error and ensures consistency of expression.

Amendment 18         Schedule 1, item 27, page 10 (after line 3)

58.               This amendment amends item 27 of Schedule 1 to the Bill by inserting new paragraphs 486R(2)(ba) and (bb) after paragraph 486R(2)(b).

59.               New paragraph 486R(2)(ba) requires that the report provided by the Secretary to the Minister under subsection 486R contain information about 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.

60.               New paragraph 486R(2)(bb) requires that if the report provided by the Secretary to the Minister under section 486R mentions a claim for refugee status under paragraph (ba), the report must contain information about the reasons why it was not completed within 90 days of being made.

 

61.               The purpose of new subsections 486R(2)(ba) and (bb) is to require the Secretary to report to the Minister on claims for refugee status not determined within 90 days.  The Minister is required to table the report in both Houses of the Parliament (subsection 486R(5)) within 15 sitting days of each House after the Minister receives the report.

Amendment 19        Schedule 1, item 27, page 10 (line 5)

62.               This amendment amends item 27 of Schedule 1 to the Bill by inserting new paragraphs 486R(2)(d) and (e) at the end of subsection 486R(2).

63.               New subsection 486R(2)(d) provides that the report provided by the Secretary to the Minister under subsection 486R contain information about 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.

64.               New paragraph 486R(2)(e) provides that, in addition to the above information, if a review is mentioned in such a report under paragraph (d), that report must include details of the reasons why it was not completed within the period of 90 days starting on the day on which the person carrying out the review started the review.

65.               The purpose of new paragraphs 486R(2)(d) and (e) is to require the Secretary to report to the Minister on reviews of determinations of refugee status not completed within 90 days. The Minister is required to table the report in both Houses of the Parliament (subsection 486R(5)) within 15 sitting days of each House after the Minister receives the report.

Amendment 20         Schedule 1, page 10 (after line 18)

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

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

 

67.               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.

68.               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.

69.               The Note following new subsection 486S(1) points out that in addition 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.

70.               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.

71.               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 .

72.               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.

73.                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.

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

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

76.               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.

77.               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.

78.               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.

79.               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.

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

Amendment 21        Schedule 1, item 38, page 11 (lines 28 to 30)

81.               This amendment replaces item 38 in Schedule 1 to the Bill with new item 38. New item 38 replaces paragraph 494AB(1)(d) in Part 9 of the Act with new paragraph 494AB(1)(d).

82.               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.

83.               New item 38 repeals proposed paragraph 494AB(1)(d) and inserts new paragraph 494AB(1)(d). 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.

84.               This is a technical amendment to ensure that 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. This is to ensure that the amended paragraph 494AB(1(d) reflects the current position under the current Act.

Amendment 22         Schedule 1, page 13 (after line 30)

85.               This amendment inserts new item 43A after item 43 in Schedule 1 to the Bill.

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

87.               New 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 the Bill, and alternative approaches or mechanisms as appropriate.

88.               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.

89.               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.

90.               The purpose of new item 43A is to require an independent review of the operation and effect of the amendments made by the Bill.

Amendment 2 3        Page 14 (after line 12)

91.               This amendment inserts new Schedule 2 after Schedule 1 to the Bill.

 



Amendments commencing 5 years after Royal Assent

92.               Schedule 2 contains amendments to the Migration Act which are to commence on the day after the end of the period of 5 years beginning on the day on which the Bill receives the Royal Assent. The effect of these amendments will be that offshore processing arrangements will revert to that in place prior to the commencement of Schedule 1 to the Bill. All unauthorised sea arrivals to mainland Australia (that is, to a place other than an ‘offshore excised place’) on or after the commencement of Schedule 2 will not become ‘designated unauthorised arrivals’ within the meaning of section 5F. On and after the commencement of Schedule 2, only persons arriving unauthorised at ‘excised offshore places’(whether by air or sea) will be liable to be taken to a country in which a declaration is in force under subsection 198A(3), and be liable to offshore processing.

93.               New item 1 of Schedule 2 will operate on the commencement of Schedule 2 to replace paragraph 5F(1)(b) (as inserted by item 8 in Schedule 1 to the Bill) with new paragraph 5F(1)(b).

94.               Paragraph 5F(1)(b), as inserted by item 8 in Schedule 1 to the Bill, 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.

95.               New paragraph 5F(1)(b), to come into effect 5 years after the Bill 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.

96.               New item 2 of Schedule 2 amends subsection 5F(9) of the Act (as inserted by item 8 of the Bill). Subsection 5F(9) is amended by omitting “subsection 8” and substituting “this section”. 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. 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).

97.               New item 3 sets out how the amendments made by Schedule 2 to the Bill are to apply. 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 the Bill receives the Royal Assent. 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 the Bill. 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.