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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

 

HOUSE OF REPRESENTATIVES

MIGRATION (Validation of PORT APPOINTMENT) BILL 2018

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

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



Migration (Validation of PORT APPOINTMENT) BILL 2018

 

OUTLINE

The Migration (Validation of Port Appointment) Bill 2018 (the Bill) confirms the validity of 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).

Specifically, the provisions of the Bill:

·          clarify the geographical coordinates of the area of waters within the Territory of Ashmore and Cartier Islands specified in the appointment;

·          confirm that there was a properly proclaimed port at Ashmore and Cartier Islands at all relevant times; 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 terms 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

Clause 1            Short Title

1.                   Clause 1 provides that the short title of the Bill, once enacted, will be the Migration (Validation of Port Appointment) Act 2018 .

Clause 2            Commencement

2.                   Clause 2 of the Bill sets out the times at which the various provisions of the Act commence.

3.                   Subclause 2(1) of the Bill provides that each provision of the Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table.  Any other statement in column 2 has effect according to its terms.

4.                   Table item 1 provides that the whole of this Act will commence on the day after the Act receives the Royal Assent.

5.                   The note in subclause 2(1) makes it clear that the table relates only to the provisions of the Act as originally enacted.  The table will not be amended to deal with any later amendments to the Act.

6.                   Subclause 2(2) of the Bill provides that any information in column 3 of the table is not part of the Act. Information may be inserted in this column, or information in it may be edited, in any published version of the Act.  There is currently no information in column 3 of the table.

Clause 3          Validation of appointment of an area of water within the Territory of Ashmore and Cartier Islands as a port  

7.                   Subclause 3(1) of the Bill provides that this section applies to the appointment of an area of waters within the Territory of Ashmore and Cartier Islands under paragraph 5(5)(a) of the Migration Act 1958 by notice published in the Gazette on 23 January 2002.  This clause identifies the appointment to which the validation relates.

8.                   Subclause 3(2) provides that the appointment has, and is taken always to have had, effect as if all of the words from and including “the area of waters” to and including “point of commencement.” were omitted and the following words were substituted:

the area of waters within the Territory of Ashmore and Cartier Islands commencing at a point on the Mean Low Water (MLW) line closest to Latitude 12 degrees 13.2 minutes South, Longitude 122 degrees 59.0 minutes East, then following the line of MLW in an anticlockwise direction so as to enclose a bay by bridging across islands of MLW at the entrance to the bay to close back to the point of commencement. 

9.                   The effect of this subclause is to clarify the geographical coordinates of the area of waters within the Territory of Ashmore and Cartier Islands specified in the appointment.  The appointment inadvertently omitted the number “12” before the word “degree”, and the letter “s” in the word “degrees” in the latitude coordinates and the word “Longitude” before “122 degrees 59.0 minutes…”.  In addition to correcting the inadvertent omissions in identifying the coordinates, the opportunity has been taken to clearly identify the specific quadrant on the Earth’s surface in which the coordinates occur, by inclusion of the words “South,” and “East,” in the description.  This is consistent with the intention of the original appointment.

10.               Subclause 3(3) of the Bill confirms that the Migration Act 1958 has, and is taken always to have had, effect as if the area of waters specified in the appointment (as affected by subsection (2)) were a port for the purposes of that Act. 

11.               Subclause 3(4) confirms that this section does not, by implication, prevent amendment or revocation of the appointment.    

Clause 4          Validation of things done under the Migration Act 1958

12.               Subclause 4(1) of the Bill provides that this section applies to a thing done under the Migration Act 1958 at any time before the day this Act commences, to the extent that the doing of the thing would, apart from this Act, be invalid or ineffective, directly or indirectly because of the terms of the appointment referred to in subsection 3(1).

13.               Subclause 4(2) confirms that the thing done is as valid and effective, and is taken always to have been as valid and effective, as it would have been had this Act been in force at that time.

14.               The purpose of this clause 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 terms of the appointment, before the commencement of this Act.     

Clause 5          Act does not affect certain rights or liabilities

15.               Clause 5 of the Bill provides that this Act does not affect rights or liabilities arising between parties to proceedings in which judgment has been delivered by a court before the commencement of this Act, if the validity of the appointment referred to in subsection 3(1) was at issue in the proceedings; and the judgment set aside the appointment or declared it to be invalid. 

16.               The purpose of this clause is to confirm that the Act will not apply to cases where judgment has been delivered by a court before the commencement of this Act but only if the validity of the appointment was at issue in the proceedings and the judgment set aside the appointment or declared it to be invalid.

17.               The effect of this clause will preserve any such decision of a court prior to 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

This Bill is 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 Bill

1.       The purpose of the Migration ( Validation of Port Appointment ) Bill 2018 (the Bill) is to confirm the validity of 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.       By confirming the validity of the Appointment, the Bill will ensure that there was a properly proclaimed port at Ashmore and Cartier Islands at all relevant times and ensure that things done under the Migration Act 1958 (the Act), such as actions taken or decisions made, which relied directly or indirectly on the terms of the Appointment are also valid and effective.  

3.       The effect of the Bill will simply maintain the status quo for unauthorised maritime arrivals and, where relevant, fast track applicants, under the Act who entered Australia via this proclaimed port between 23 January 2002 and 1 June 2013.   

4.       The Bill reiterates the Government’s original intention that the Appointment is, and has always been, valid.  However, due to ongoing proceedings in the Federal Circuit Court and Federal Court which are currently challenging the validity of the Appointment, the Bill will not apply to cases where judgment has been delivered by a court before these provisions commence, if:

·          the validity of the Appointment was at issue in the proceedings; and

·          the judgment either set aside or declared the Appointment to be invalid. 

 

Confirming the validity of the appointment of a proclaimed port

 

Human rights implications

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

However, the relevance of the following human rights or freedoms are discussed below in the context of 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 under the Act.

 

Right to freedom of movement

Relevant to the 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 Bill merely confirms the validity of the Appointment. Thus the right to freedom of movement is not engaged.

The Appointment was designed to ensure that unauthorised boat arrivals who entered certain waters of the Territory of Ashmore and Cartier Islands, an ‘excised offshore place’ for the purposes of the Act would thereby become ‘offshore entry persons’, now ‘unauthorised maritime arrivals’ under the Act.  Unauthorised maritime arrivals do not have a lawful right to travel to, enter into, or remain, in Australia. In accordance with Article 12(1), an unauthorised maritime arrival 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 Bill does not contain or amend any existing provisions which relate to removal in the Act.  The 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 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 and

Minister for Immigration and Border Protection