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Migration (Validation of Port Appointment) Bill 2018

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2016-2017-2018

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

SENATE

MIGRATION (Validation of PORT APPOINTMENT) BILL 2018

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

Amendments and New Clause to be Moved on Behalf of the Government

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Home Affairs, the Hon. Peter Dutton MP)



Migration (Validation of PORT APPOINTMENT) BILL 2018

 

OUTLINE

The government amendment to the Migration (Validation of Port Appointment) Bill 2018 (the Bill) addresses the judgments of the Federal Circuit Court in DBC16 v Minister for Immigration & Anor [2018] FCCA 1802 ( DBC16 ) and DBD16 v Minister for Immigration & Anor [2018] FCCA 1801 ( DBD16 ), both of which declared invalid the appointment of a proclaimed port in the Territory of Ashmore and Cartier Islands contained in the Commonwealth of Australia Gazette No. GN 3, 23 January 2002 (the appointment). The amendments are intended to give effect to the purpose of the Bill, namely the confirmation of the validity of the appointment and  things done which relied on the validity of the appointment.

Specifically, the government amendments to the Bill:

·          clarify that the term “appointment” will include a purported appointment; and

·          confirm the validity of things done under the Migration Act 1958 (such as actions taken or decisions made) which relied directly or indirectly on the validity of the appointment, before the commencement of this Act. 

 

FINANCIAL IMPACT STATEMENT

These amendments will have a no financial impact.

 

Statement of compatibility with human rights

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill and assesses that the amendments are compatible with Australia’s human rights obligations. A copy of the Statement of Compatibility with Human Rights is at Attachment A .

Migration (Validation of Port APPOINTMENT) BILL 2018

 

NOTES ON INDIVIDUAL CLAUSES

Amendment 1           Page 2 (after line 9), after clause 2

1.                   This amendment inserts new clause 2A in the Bill with the heading “Definitions.”

2.                   Clause 2A of the Bill inserts a definition for the word “appointment” in this Act, providing that an appointment includes “a purported appointment.”

3.                   The purpose of this new clause is, in light of the judgments in DBC16 and DBD16 finding that the appointment is invalid, to clarify that any references to the term “appointment” in the Act will include any purported appointment.

Amendment 2            Clause 4, page 3 (lines 10 and 11)

4.                   This amendment omits from subclause 4(1) of the Bill the words “, directly or indirectly because of the terms of the appointment referred to in subsection 3(1)” and replaces them with the words “because the doing of the thing relied, directly or indirectly, on the validity of the appointment referred to in subsection 3(1)”.

5.                   The purpose of the amendment to subclause 4(1) is, in light of the judgments in DBC16 and DBD16 finding that the appointment is invalid, to give effect to the purpose of clause 4 which is to confirm the validity of things done (such as actions taken or decisions made) under the Migration Act 1958 which relied directly or indirectly on the validity of the appointment, before the commencement of this Act.   



 

                                                                                                                              Attachment A

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration (Validation of Port Appointment) Bill 2018

The amendments to this Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the amendments to the Bill

1.       The purpose of the amendments to the Migration ( Validation of Port Appointment ) Bill 2018 (the Bill) is to address the judgments of the Federal Circuit Court (FCC) in DBC16 v Minister for Immigration & Anor [2018] FCCA 1802 ( DBC16 ) and DBD16 v Minister for Immigration & Anor [2018] FCCA 1801 ( DBD16 ), both of which declared invalid the appointment of a proclaimed port in the Territory of Ashmore and Cartier Islands (contained in the Commonwealth of Australia Gazette No. GN 3, 23 January 2002 (the Appointment)).

2.       On 11 July 2018, the FCC upheld the challenge to the validity of the Appointment in the matters of DBC16 and DBD16, declaring the Appointment invalid.  The FCC held that the word ‘port’ should be given its ordinary meaning, which entails a place with infrastructure in place to facilitate the movement of goods and/or passengers between vessels on the water and the land.  The FCC concluded that the area described in the Appointment was not a ‘port’, as it only allowed for the transfer of goods and/or passengers between vessels and did not have any infrastructure.

3.       The amendments to the Bill are intended to ensure that the Bill operates as intended to confirm the validity of the Appointment and to ensure that things done under the Migration Act 1958 (the Act) will be valid and effective if they relied, directly or indirectly, on the validity of the Appointment.

4.       Specifically, the amendments to the Bill will:

·            define the term ‘appointment’ to put beyond doubt that an appointment includes a purported appointment; and

·            remove reference to the reason a thing done under the Act would be invalid or ineffective because of its direct or indirect reliance on the terms of the Appointment. Instead, it will provide that the doing of a thing under the Act will not be invalid or ineffective if it relied, directly or indirectly, on the validity of the Appointment.

5.       Due to ongoing proceedings in the FCC and the Federal Court which are challenging the validity of the Appointment, the amended Bill will not apply to cases where judgment has been delivered by a court before the commencement of these provisions, if the validity of the Appointment was at issue in the proceedings and that judgment set aside the Appointment or declared it to be invalid. 

 

Confirming the validity of the appointment of a proclaimed port

 

Human rights implications

The amended Bill reconfirms a legal position of the Australian Government that has been in place since 2002.  The amended Bill does not engage any of the applicable rights or freedoms.

However, the relevance of the following human rights or freedoms are discussed below insofar as how the validity of the Appointment relates to a person becoming an unauthorised maritime arrival and the related consequence of being processed as a Fast Track applicant:

 

Right to freedom of movement

Relevant to the amended Bill is Article 12 (1) of the International Covenant on Civil and Political Rights 1966 (ICCPR).  Article 12(1) provides that: “Everyone lawfully in the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence ”. (emphasis added)

As outlined above, the amended Bill merely confirms the validity of the Appointment. Thus the right to freedom of movement is not engaged.

Where an unlawful non-citizen enters certain waters at Ashmore and Cartier Islands that person becomes an unauthorised maritime arrival under the Act.  Unauthorised maritime arrivals (UMA) do not have a lawful right to travel to, enter into, or remain, in Australia. In accordance with Article 12(1), a UMA will not, upon entering Australian territory, be in Australia lawfully, so Article 12(1) is not engaged.

 

Australia’s non-refoulement obligations

Apart from Australia’s non-refoulement (non-return) obligations under the Refugees Convention (which is not one of the treaties specified in the definition of ‘human rights’ in the Human Rights (Parliamentary Scrutiny) Act 2011 ), Australia also has an obligation to not send a person to a country where they are at real risk of the death penalty, arbitrary deprivation of life, torture, or cruel, inhuman or degrading treatment or punishment (Articles 6 and 7 of the ICCPR, Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)) or to a country which would send the person to another country where they would face such a risk.

This amended Bill does not contain or amend any existing provisions which relate to removal in the Act.  The amended Bill does not affect the current operation of the Act in relation to removal or regional processing arrangements nor negatively impact on the protections against non-refoulement which already exist in legislation, policies and procedures.

 

 

 

Conclusion

The amended Bill is compatible with the applicable human rights and freedoms because it does not engage any obligations under relevant human rights treaties.

 

The Hon. Peter Dutton MP, Minister for Home Affairs