MIGRATION LEGISLATION AMENDMENT (REGIONAL PROCESSING AND OTHER MEASURES) BILL 2012 Explanatory Memorandum
MIGRATION LEGISLATION AMENDMENT (REGIONAL PROCESSING AND OTHER MEASURES) BILL 2012
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.