Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Bill 2001
Schedule 1 Amendment of the Migration Act 1958

   

1  Subsection 5(1) (at the end of the definition of immigration detention )

Add:

Note:          See also section 198A, which provides that being dealt with under that section does not amount to immigration detention .

2  Subsection 189(1)

After “migration zone”, insert “(other than an excised offshore place)”.

3  Paragraph 189(2)(a)

After “migration zone”, insert “(other than an excised offshore place)”.

4  At the end of section 189

Add:

             (3)  If an officer knows or reasonably suspects that a person in an excised offshore place is an unlawful non-citizen, the officer may detain the person.

             (4)  If an officer reasonably suspects that a person in Australia but outside the migration zone:

                     (a)  is seeking to enter an excised offshore place; and

                     (b)  would, if in the migration zone, be an unlawful non-citizen;

the officer may detain the person.

             (5)  In subsections (3) and (4) and any other provisions of this Act that relate to those subsections, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.

5  At the end of paragraph 193(1)(c)

Add “, (3) or (4)”.

6  After section 198

Insert:

198A   Offshore entry person may be taken to a declared country

             (1)  An officer may take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3).

             (2)  The power under subsection (1) includes the power to do any of the following things within or outside Australia:

                     (a)  place the person on a vehicle or vessel;

                     (b)  restrain the person on a vehicle or vessel;

                     (c)  remove the person from a vehicle or vessel;

                     (d)  use such force as is necessary and reasonable.

             (3)  The Minister may:

                     (a)  declare in writing that a specified country:

                              (i)  provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and

                             (ii)  provides protection for persons seeking asylum, pending determination of their refugee status; and

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

                            (iv)  meets relevant human rights standards in providing that protection; and

                     (b)  in writing, revoke a declaration made under paragraph (a).

             (4)  An offshore entry person who is being dealt with under this section is taken not to be in immigration detention (as defined in subsection 5(1)).

             (5)  In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.

7  After section 494

Insert:

494AA   Bar on certain legal proceedings relating to offshore entry persons

             (1)  The following proceedings against the Commonwealth may not be instituted or continued in any court:

                     (a)  proceedings relating to an offshore entry by an offshore entry person;

                     (b)  proceedings relating to the status of an offshore entry person as an unlawful non-citizen during any part of the ineligibility period;

                     (c)  proceedings relating to the lawfulness of the detention of an offshore entry person during the ineligibility period, being a detention based on the status of the person as an unlawful non-citizen;

                     (d)  proceedings relating to the exercise of powers under section 198A.

             (2)  This section has effect despite anything else in this Act or any other law.

             (3)  Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

             (4)  In this section:

Commonwealth includes:

                     (a)  an officer of the Commonwealth; and

                     (b)  any other person acting on behalf of the Commonwealth.

ineligibility period means the period from the time of the offshore entry until the time when the person next ceases to be an unlawful non-citizen.

offshore entry means an entry into Australia that occurs:

                     (a)  at an excised offshore place; and

                     (b)  after the excision time for the offshore place concerned.