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Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012

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2010 - 2011 - 2012

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT (OFFSHORE PROCESSING          AND OTHER MEASURES) BILL 2011

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration and Citizenship,

the Hon. Chris Bowen MP)

 

Migration LEGISLATION amendment (OFFSHORE PROCESSING AND OTHER MEASURES ) BILL 2011 - Government Amendments

OUTLINE

The Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 (‘the Bill’) amends the Migration Act 1958 (‘the Migration Act’) and the Immigration (Guardianship of Children) Act 1946 (‘the IGOC Act’) to:

·                  replace the existing framework in the Migration Act for taking offshore entry persons to another country for assessment of their claims to be refugees as defined by the 1951 Convention Relating to the Status of Refugees (‘Refugees Convention’) as amended by the 1967 Protocol Relating to the Status of Refugees (‘Refugees Protocol’); and

·                  clarify that provisions of the IGOC Act do not affect the operation of the Migration Act, particularly in relation to the making and implementation of any decision to remove, deport or take a non-citizen child from Australia.

The proposed Government amendments to the Bill implement key recommendations of the Report of the Expert Panel on Asylum Seekers provided to the Prime Minister and the Minister for Immigration and Citizenship on 13 August 2012.  These recommendation relate to arrangements to allow for regional processing of irregular maritime arrivals (IMAs) to Australia.  It is proposed that these regional processing arrangements will apply in relation to an offshore entry person who enters Australia on or after 13 August 2012.      

On 31 August 2011, the High Court of Australia delivered judgment in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 in which it held by majority that the sole source of power under the Migration Act to take asylum seekers from Australia to another country for determination of their refugee status is that conferred by section 198A of the Migration Act and that the declaration that Malaysia is a specified country for the purposes of section 198A was made without power.

The amendments in the Bill are to address that High Court decision in order to allow for regional processing of the protection claims of offshore entry persons. The amendments will ensure that the Government is able to implement the regional processing arrangements that are now envisaged.   The amendments will ensure that the government of the day can determine the border protection policy that it believes is in the national interest. It will also allow for the regional cooperation framework envisaged in the Expert Panel’s report to be implemented.

In line with the Expert Panel’s report, the Government amendments to the Bill will also ensure appropriate Parliamentary scrutiny of arrangements that are in place to support regional processing.  The amendments will also provide for a legislative instrument to designate only one country and must not provide that the designation ceases to have effect. 



A legislative instrument to designate a country commences at the earlier of the following times: 

·          immediately after both Houses of the Parliament have passed a resolution approving the designation;

 

·          immediately after both of the following apply:

-           a copy of the designation has been laid before each House of the Parliament under section 198AC;

-           5 sitting days of each House have passed since the copy was laid before that House without it passing a resolution disapproving the designation.

The Government amendments also provide additional accountability to Parliament by requiring the Minister to lay before each House of the Parliament: a copy of the designation; a statement about the Minister’s reasons for thinking it is in the national interest to designate the country to be a regional processing country; a copy of any written agreement between Australia and the country relating to the taking of persons to the country; a statement about the Minister’s consultations with the Office of the United Nations High Commissioner for Refugees in relation to the designation, including the nature of those consultations; a summary of any advice received from that Office in relation to the designation; and a statement about any arrangements that are in place, or are to be put in place, in the country for the treatment of persons taken to the country.

financial impact statement

The financial impact of the drafting of these amendments is low.  Any costs will be met from within existing resources of the Department of Immigration and Citizenship.

The costs of any decision to implement regional processing as a result of these amendments to the legislation will be significant. 



aMENDMENTS TO THE MIGRATION LEGISLATION aMENDMENT (oFFSHORE pROCESSING AND oTHER MEASURES) bILL 2011

notes on amendments

Amendment (1) - Clause 1, page 1 (line 6)

1.               This amendment omits “ Offshore ” and substitutes “ Regional ” in Clause 1 of the Bill.  Clause 1 of the Bill as amended by Amendment (1) provides that the Act may be cited as the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2011 .

2.               This amendment reflects the Expert Panel’s support for an enhanced regional cooperation framework on asylum issues by replacement of the current emphasis on offshore processing with an approach that aims to improve and strengthen regional cooperation and protection arrangements. 

3.               As a consequence, Amendments (2), (3), (4), (5), (8), (9), (11), (12), (13), (16), (19), (20), (21), (22), (23), (24), (25), (26), (27), (28), (29), (30), (31), (32), (33), (34), (35), (37), (38) and (39) amend references in the Bill from “offshore processing country” to “regional processing country” as grammatically appropriate.   

Amendment (6) - Schedule 1, item 7, page 3 (line 29) to page 4 (line 1)

4.               This amendment omits Item 7 of Schedule 1 to the Bill and substitutes a new Item 7.

5.               Currently, Item 7 of Schedule 1 to the Bill amends paragraph 36(2)(a) of the Migration Act to omit “to whom” and substitute “in respect of whom”.

6.               This amendment substitutes Item 7 of Schedule 1 to the Bill and amends both paragraphs 36(2)(a) and 36(2)(aa) of the Migration Act to omit “to whom” and substitute “in respect of whom”.

7.               Paragraph 36(2)(aa) of the Migration Act was inserted by the Migration Amendment (Complementary Protection) Act 2011 , which commenced by Proclamation on 24 March 2012.  This amendment is to ensure consistency between paragraphs 36(2)(a) and 36(2)(aa) of the Migration Act.

Amendment (7) - Schedule 1, items 9 and 10, page 4 (lines 4 to 9)

8.               This amendment omits Items 9 and 10 of Schedule 1 to the Bill.

9.               Currently Item 9 of Schedule 1 to the Bill amends paragraph 48A(2)(aa) of the Migration Act to omit “to whom” and substitute “in respect of whom”.

10.           Currently Item 10 of Schedule 1 to the Bill amends subparagraph 48A(2)(ab)(i) of the Migration Act to omit “to whom” and substitute “in respect of whom”.

11.           Paragraphs 48A(2)(aa) and 48A(2)(ab) were repealed by the Migration Amendment (Complementary Protection) Act 2011 , which commenced by Proclamation on 24 March 2012. There is therefore no need to amend paragraph 48A(2)(aa) and subparagraph 48A(2)(ab)(i) of the Migration Act.

Amendment (10) - Schedule 1, item 25, page 6 (line 12)

12.           This amendment inserts “and Parliament” after “Minister” in paragraph 198AA(c) in Item 25 of Schedule 1 to the Bill.

13.           Currently, paragraph 198AA(c) provides that it is a matter for the Minister to decide which countries should be designated as offshore processing countries.

14.           Paragraph 198AA(c) in Item 25 of Schedule 1 to the Bill as amended by Amendment (10) provides that it is a matter for the Minister and Parliament to decide which countries should be designated.

15.           Paragraph 198AA(c) in Item 25 of Schedule 1 to the Bill is amended to include reference to both the Minister and Parliament deciding which countries should be designated as regional processing countries as a result of Amendment (14) and Amendment (17).

16.           Amendments (14) and (17) provide that the Minister designates a country as a regional processing country by way of legislative instrument.

Amendment (14) - Schedule 1, item 25, page 6 (lines 18 and 19)

17.           This amendment omits “in writing, designate that a country is an offshore ” and substitutes “by legislative instrument, designate that country is a regional ”.

18.           Item 25 of Schedule 1 to the Bill inserts section 198AB into the Act. Subsection 198AB(1) of Schedule 1 to the Bill provides that the Minister may, in writing, designate that a country is an offshore processing country.

19.           Subsection 198AB(1) of Schedule 1 as amended by Amendment (14) provides that the Minister may, by legislative instrument, designate that a country is a regional processing country.

20.           This amendment is to provide that the designation of a country as a regional processing country by the Minister will be by way of a legislative instrument.

Amendment (15) - Schedule 1, item 25, page 6 (after line 19), after subsection   198AB(1)

21.           This amendment inserts subsections 198AB(1A) and (1B) after subsection 198AB(1) in item 25 of Schedule 1 to the Bill.

22.           Subsection 198AB(1A) provides that a legislative instrument made under subsection 198AB(1) may designate only one country and must not provide that the designation ceases to have effect. 

 

23.           Subsection 198AB(1B) provides that despite subsection 12(1) of the Legislative Instruments Act 2003 , a legislative instrument under subsection 198AB(1) commences at the earlier of the following times: 

·          immediately after both Houses of the Parliament have passed a resolution approving the designation;

 

·          immediately after both of the following apply:

-                 a copy of the designation has been laid before each House of the Parliament under section 198AC;

-                 5 sittings days of each House have passed since the copy was laid before that House without it passing a resolution disapproving the designation.

 

24.           This amendment is to clarify when the legislative instrument made under subsection 198AB(1) takes effect, despite the provisions in subsection 12(1) of the Legislative Instruments Act 2003 .    

Amendment (17) - Schedule 1, item 25, page 7 (line 11)

25.           This amendment omits “in writing” and substitutes “by legislative instrument” in subsection 198AB(6) in Item 25 of Schedule 1 to the Bill.

26.           Subsection 198AB(6) in Item 25 of Schedule 1 to the Bill provides that if the Minister designates a country under subsection 198AB(1), the Minister may, in writing, revoke the designation.

27.           Subsection 198AB(6) in Item 25 of Schedule 1 to the Bill as amended by Amendment (16) provides that if the Minister designates a country under subsection 198AB(1), the Minister may, by legislative instrument, revoke the designation.

28.           This amendment is to provide that the revocation of the designation of a country as a regional processing country by the Minister will be by way of a legislative instrument.

Amendment (18) - Schedule 1, item 25, page 7 (lines 14 and 15)

29.           This amendment omits subsection 198AB(8) in item 25 of Schedule 1 to the Bill.

30.           Subsection 198AB(8) in item 25 of Schedule 1 to the Bill provides that a designation under subsection 198AB(1), or a revocation under subsection 198(6), is not a legislative instrument. 

31.           This amendment is a consequential amendment as a result of Amendment (14) and (15).

 

 

Amendment (36) - Schedule 1, item 36, page 13 (line 18)

32.           This amendment omits “the commencement of this item” and substitutes          “13 August 2012” in Item 36 of Schedule 1 to the Bill.

33.           Item 36 of Schedule 1 to the Bill provides that section 198AD of the           Migration Act 1958 , as inserted by Schedule 1, applies in relation to an offshore entry person who enters Australia on or after the commencement of this item. 

34.           Item 36 of Schedule 1 to the Bill as amended by Amendment (36) provides that section 198AD of the Migration Act 1958 , as inserted by Schedule 1, applies in relation to an offshore entry person who enters Australia on or after 13 August 2012.

35.           The effect of the amendment made by Amendment (36) is that regional processing arrangements will apply in relation to offshore entry persons who enter Australia on or after 13 August 2012.  This date aligns with the date on which the Expert Panel on Asylum Seekers reported its recommendations to the Government.  The Government endorsed in-principle the Expert Panel’s recommendations on the same date.