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

No. 113, 2012

An Act to amend the law relating to migration, and for other purposes

[Assented to 17 August 2012]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012.

2 Commencement

This Act commences on the day after this Act receives the Royal Assent.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Regional processing

Migration Act 1958

1 At the end of section 4

Add:

(5) To advance its object, this Act provides for the taking of offshore entry persons from Australia to a regional processing country.

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

Repeal the note, substitute:

Note 1: Subsection 198AD(11) provides that being dealt with under subsection 198AD(3) does not amount to immigration detention.

3 Subsection 5(1) (paragraph (a) of the definition of offshore entry person)

Before “entered”, insert “has, at any time,”.

4 Subsection 5(1)

Insert:

regional processing country means a country designated by the Minister under subsection 198AB(1) as a regional processing country.

5 Subsection 5(1) (paragraph (a) of the definition of transitory person)

Before “section”, insert “repealed”.

6 Subsection 5(1) (after paragraph (a) of the definition of transitory person)

Insert:

(aa) an offshore entry person who was taken to a regional processing country under section 198AD; or

7 Paragraphs 36(2)(a) and (aa)

Omit “to whom”, substitute “in respect of whom”.

8 Subsection 36(3)

Omit “obligations to”, substitute “obligations in respect of”.

11 Subsection 189(3)

After “a person”, insert “(other than a person referred to in subsection (3A))”.

12 Subsection 189(3)

Omit “may detain”, substitute “must detain”.

13 After subsection 189(3)

Insert:

(3A) If an officer knows or reasonably suspects that a person in a protected area:

(a) is an allowed inhabitant of the Protected Zone; and

(b) is an unlawful non‑citizen;

the officer may detain the person.

14 Subsection 189(5)

After “subsections (3)”, insert “, (3A)”.

15 Paragraph 193(1)(c)

Before “or (4)”, insert “, (3A)”.

16 Subsection 196(1)

Omit “he or she is”.

17 Paragraph 196(1)(a)

Before “removed”, insert “he or she is”.

18 After paragraph 196(1)(a)

Insert:

(aa) an officer begins to deal with the non‑citizen under subsection 198AD(3); or

19 Paragraph 196(1)(b)

Before “deported”, insert “he or she is”.

20 Paragraph 196(1)(c)

Before “granted”, insert “he or she is”.

21 Subsection 196(3)

Omit “for removal or deportation”, substitute “as referred to in paragraph (1)(a), (aa) or (b)”.

22 Division 8 of Part 2 (heading)

Repeal the heading, substitute:

Division 8—Removal of unlawful non‑citizens etc.

23 Before section 198

Insert:

Subdivision A—Removal

24 At the end of section 198

Add:

(11) This section does not apply to an offshore entry person to whom section 198AD applies.

25 Section 198A

Repeal the section, substitute:

Subdivision B—Regional processing

198AA Reason for Subdivision

This Subdivision is enacted because the Parliament considers that:

(a) people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed; and

(b) offshore entry persons, including offshore entry persons in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be a regional processing country; and

(c) it is a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries; and

(d) the designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of that country.

198AB Regional processing country

(1) The Minister may, by legislative instrument, designate that a country is a regional processing country.

(1A) A legislative instrument under subsection (1):

(a) may designate only one country; and

(b) must not provide that the designation ceases to have effect.

(1B) Despite subsection 12(1) of the Legislative Instruments Act 2003, a legislative instrument under subsection (1) of this section commences at the earlier of the following times:

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

(b) immediately after both of the following apply:

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

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

(2) The only condition for the exercise of the power under subsection (1) is that the Minister thinks that it is in the national interest to designate the country to be a regional processing country.

(3) In considering the national interest for the purposes of subsection (2), the Minister:

(a) must have regard to whether or not the country has given Australia any assurances to the effect that:

(i) the country will not expel or return a person taken to the country under section 198AD to another country where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion; and

(ii) the country will make an assessment, or permit an assessment to be made, of whether or not a person taken to the country under that section is covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol; and

(b) may have regard to any other matter which, in the opinion of the Minister, relates to the national interest.

(4) The assurances referred to in paragraph (3)(a) need not be legally binding.

(5) The power under subsection (1) may only be exercised by the Minister personally.

(6) If the Minister designates a country under subsection (1), the Minister may, by legislative instrument, revoke the designation.

(7) The rules of natural justice do not apply to the exercise of the power under subsection (1) or (6).

(9) In this section, country includes:

(a) a colony, overseas territory or protectorate of a foreign country; and

(b) an overseas territory for the international relations of which a foreign country is responsible.

198AC Documents to be laid before Parliament

(1) This section applies if the Minister designates a country to be a regional processing country under subsection 198AB(1).

(2) The Minister must cause to be laid before each House of the Parliament:

(a) a copy of the designation; and

(b) a statement of the Minister’s reasons for thinking it is in the national interest to designate the country to be a regional processing country, referring in particular to any assurances of a kind referred to in paragraph 198AB(3)(a) that have been given by the country; and

(c) a copy of any written agreement between Australia and the country relating to the taking of persons to the country; and

(d) 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; and

(e) a summary of any advice received from that Office in relation to the designation; and

(f) 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.

(3) The Minister must comply with subsection (2) within 2 sitting days of each House of the Parliament after the day on which the designation is made.

(4) The sole purpose of laying the documents referred to in subsection (2) before the Parliament is to inform the Parliament of the matters referred to in the documents and nothing in the documents affects the validity of the designation. Similarly, the fact that some or all of those documents do not exist does not affect the validity of the designation.

(5) A failure to comply with this section does not affect the validity of the designation.

(6) In this section, agreement includes an agreement, arrangement or understanding:

(a) whether or not it is legally binding; and

(b) whether it is made before, on or after the commencement of this section.

198AD Taking offshore entry persons to a regional processing country

(1) Subject to sections 198AE, 198AF and 198AG, this section applies to an offshore entry person who is detained under section 189.

Note: For when this section applies to a transitory person, see section 198AH.

(2) An officer must, as soon as reasonably practicable, take an offshore entry person to whom this section applies from Australia to a regional processing country.

Powers of an officer

(3) For the purposes of subsection (2) and without limiting that subsection, an officer may do any or all of the following things within or outside Australia:

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

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

(i) the place at which the person is detained; or

(ii) a vehicle or vessel;

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

(4) If, in the course of taking an offshore entry person to a regional processing country, an officer considers that it is necessary to return the person to Australia:

(a) subsection (3) applies until the person is returned to Australia; and

(b) section 42 does not apply in relation to the person’s return to Australia.

Ministerial direction

(5) If there are 2 or more regional processing countries, the Minister must, in writing, direct an officer to take an offshore entry person, or a class of offshore entry persons, under subsection (2) to the regional processing country specified by the Minister in the direction.

(6) If the Minister gives an officer a direction under subsection (5), the officer must comply with the direction.

(7) The duty under subsection (5) may only be performed by the Minister personally.

(8) The only condition for the performance of the duty under subsection (5) is that the Minister thinks that it is in the public interest to direct the officer to take an offshore entry person, or a class of offshore entry persons, under subsection (2) to the regional processing country specified by the Minister in the direction.

(9) The rules of natural justice do not apply to the performance of the duty under subsection (5).

(10) A direction under subsection (5) is not a legislative instrument.

Not in immigration detention

(11) An offshore entry person who is being dealt with under subsection (3) is taken not to be in immigration detention (as defined in subsection 5(1)).

Meaning of officer

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

198AE Ministerial determination that section 198AD does not apply

(1) If the Minister thinks that it is in the public interest to do so, the Minister may, in writing, determine that section 198AD does not apply to an offshore entry person.

Note: For specification by class, see the Acts Interpretation Act 1901.

(2) The power under subsection (1) may only be exercised by the Minister personally.

(3) The rules of natural justice do not apply to an exercise of the power under subsection (1).

(4) If the Minister makes a determination under subsection (1), the Minister must cause to be laid before each House of the Parliament a statement that:

(a) sets out the determination; and

(b) sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.

(5) A statement under subsection (4) must not include:

(a) the name of the offshore entry person; or

(b) any information that may identify the offshore entry person; or

(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.

(6) A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:

(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any offshore entry person, whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.

(8) A determination under subsection (1) is not a legislative instrument.

198AF No regional processing country

Section 198AD does not apply to an offshore entry person if there is no regional processing country.

198AG Non‑acceptance by regional processing country

Section 198AD does not apply to an offshore entry person if the regional processing country, or each regional processing country (if there is more than one such country), has advised an officer, in writing, that the country will not accept the offshore entry person.

Note: For specification by class, see the Acts Interpretation Act 1901.

198AH Application of section 198AD to certain transitory persons

Section 198AD applies, subject to sections 198AE, 198AF and 198AG, to a transitory person if, and only if:

(a) the person is an offshore entry person who is brought to Australia from a regional processing country under section 198B for a temporary purpose; and

(b) the person is detained under section 189; and

(c) the person no longer needs to be in Australia for the temporary purpose (whether or not the purpose has been achieved); and

(d) in the case where the person has not made a request under section 198C—an assessment of whether or not the person is covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol was not completed while the person was in the regional processing country; and

(e) in the case where the person has made such a request—a certificate is in force under section 198D in relation to the person.

Subdivision C—Transitory persons etc.

26 Subsection 198D(3) (paragraph (c) of the definition of uncooperative conduct)

Repeal the paragraph, substitute:

(d) the taking of the person to a regional processing country under section 198AD;

(e) the detention of the person in a regional processing country.

27 At the end of section 199

Add:

(4) In paragraphs (1)(a), (2)(a) and (3)(a), a reference to remove includes a reference to take to a regional processing country.

28 Subparagraph 336E(2)(a)(vi)

After “removed”, insert “, taken”.

29 Subparagraph 336F(5)(c)(ii)

Omit “to whom Australia owes”, substitute “in respect of whom Australia has protection”.

30 Paragraph 474(7)(a)

After “197AD,”, insert “198AE,”.

31 Subsection 486B(1)

After “deportation,”, insert “taking,”.

32 Paragraph 486C(1)(a)

After “deportation,”, insert “taking,”.

33 Paragraph 494AA(1)(d)

Before “section”, insert “repealed”.

34 At the end of subsection 494AA(1)

Add:

; (e) proceedings relating to the performance or exercise of a function, duty or power under Subdivision B of Division 8 of Part 2 in relation to an offshore entry person.

35 After paragraph 494AB(1)(c)

Insert:

(ca) proceedings relating to the performance or exercise of a function, duty or power under Subdivision B of Division 8 of Part 2 in relation to a transitory person;

36 Application—section 198AD of the Migration Act 1958

Section 198AD of the Migration Act 1958, as inserted by this Schedule, applies in relation to an offshore entry person who enters Australia on or after 13 August 2012.

Schedule 2—Other amendments

Immigration (Guardianship of Children) Act 1946

1 Section 4

Insert:

migration law means any of the following:

(a) the Migration Act 1958;

(b) regulations made under that Act;

2 Section 4

Insert:

regional processing country has the same meaning as in the Migration Act 1958.

3 Section 6

Before “The Minister”, insert “(1)”.

4 At the end of section 6

Add:

(2) Without limiting the meaning of the expression leaves Australia permanently in subsection (1), a non‑citizen child leaves Australia permanently if:

(a) the child is removed from Australia under section 198 or 199 of the Migration Act 1958; or

(b) the child is taken from Australia to a regional processing country under section 198AD of that Act; or

(d) the child is taken to a place outside Australia under paragraph 245F(9)(b) of that Act.

5 Subsection 6A(4)

Repeal the subsection.

6 Section 8 (heading)

Repeal the heading, substitute:

8 Operation of other laws

7 Section 8

Before “Except as”, insert “(1)”.

8 At the end of section 8

Add:

(2) Nothing in this Act:

(a) affects the operation of the migration law; or

(b) affects the performance or exercise, or the purported performance or exercise, of any function, duty or power under the migration law; or

(c) imposes any obligation on the Minister to exercise, or to consider exercising, any power conferred on the Minister by or under the migration law.

(3) Without limiting subsection (2), nothing in this Act affects the performance or exercise, or the purported performance or exercise, of any function, duty or power relating to:

(a) the removal of a non‑citizen child from Australia under section 198 or 199 of the Migration Act 1958; or

(b) the taking of a non‑citizen child from Australia to a regional processing country under section 198AD of that Act; or

(d) the taking of a non‑citizen child to a place outside Australia under paragraph 245F(9)(b) of that Act.