EXPLANATORY STATEMENT
Issued by the Minister for Immigration and Citizenship
Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013
Proclamation
Item 2 of the table in subsection 2(1) of the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (the Act) provides that items 1 to 14 of Schedule 1 to the Act are to commence on a single day to be fixed by Proclamation. However, if the provisions(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.
Item 4 of the table provides that items 17 to 62 of Schedule 1 to the Act are to commence at the same time as the provisions in item 2 of the table which would be a single day to be fixed by Proclamation. However, if the provisions(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. The Act received the Royal Assent on 20 May 2013.
The purpose of the Proclamation is to fix 1 June 2013 as the day on which items 1 to 14 and 17 to 62 of Schedule 1 to the Act will commence.
Sections 1 to 3 of the Act commenced on 20 May 2013. Items 15 and 16 of Schedule 1 to the Act commenced on 21 May 2013. Schedule 2 to the Act will only commence if section 69 of the Maritime Powers Act 2012 commences.
On 28 June 2012, the Prime Minister and the Minister for Immigration and Citizenship announced that the Government had invited Air Chief Marshal Angus Houston AC AFC (Ret’d), the former chief of Australia’s defence force, to lead an Expert panel (the Expert Panel) to provide a report on the best way forward for Australia to prevent asylum seekers risking their lives on dangerous boat journeys to Australia.
Items 1 to 14 and 17 to 62 of Schedule 1 to the Act contain the operative provisions of the Act which amend the Migration Act 1958 (“Migration Act”) to implement recommendation 14 from the report by the Expert Panel provided to the Prime Minister and the Minister for Immigration and Citizenship on 13 August 2012 and to implement other measures to strengthen the regional processing framework.
The Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Regional Processing Act) amended the Act to give effect to recommendation 7 of the
Expert Panel’s report to allow offshore entry persons to be taken to designated regional processing countries for the processing of any asylum claims. The Regional Processing Act commenced on 18 August 2012.
Under the Regional Processing Act, regional processing arrangements only apply to offshore entry persons who enter Australia at excised offshore places. Regional processing arrangements do not currently apply to individuals who enter Australia at the Australian mainland because they are not classified as offshore entry persons. Consequently, under current arrangements, there is an inherent risk that individuals may seek to travel to the Australian mainland to avoid being sent to a designated regional processing country.
The Expert Panel stated that all possible measures should be implemented to avoid creating an incentive for people to take even greater risks with their lives by seeking to bypass excised offshore places to reach the Australian mainland. Further, the Expert Panel stated that such an amendment will be important to ensure that the introduction of processing outside Australia does not encourage asylum seekers to avoid these arrangements by attempting to enter at the Australian mainland. Such attempts would increase the existing dangers inherent in irregular maritime travel.
For this reason, the Expert Panel recommended (in recommendation 14) that the Act also be amended to ensure that arrival anywhere in Australia by irregular maritime means will not provide individuals with a different lawful status than those who arrive at an excised offshore place.
These amendments therefore provide that all arrivals in Australia by irregular maritime means will have the same legal status regardless of where they arrive, unless they are an excluded class or otherwise exempted. This would mean all arrivals in Australia by irregular maritime means could not make a valid application for a visa unless the Minister personally thinks it is in the public interest to do so. Those people would also be subject to mandatory immigration detention, could be taken to a designated regional processing country and could not institute or continue certain legal proceedings.
The Act provides for amendments to be made to the term and requirements related to a transitory person in the Migration Act and amendments regarding the term “unauthorised maritime arrival”.
The term ‘transitory person’ is amended to provide flexibility to transfer persons back from a regional processing country to Australia for a temporary purpose. The definition of transitory person in the Migration Act provides the ability, amongst other things, to bring a person temporarily from a regional processing country to Australia, such as for medical reasons, and then return them to the regional processing country. At present, the definition of transitory person excludes a person assessed to be a refugee for the purposes of the Refugees Convention. As a transferee assessed to be a refugee may have to wait for a period of time in a regional processing country due to the ‘no advantage’ principle, excluding refugees under the arrangements for transitory persons would be inconsistent. Therefore, the Bill amends the Migration Act so that a person assessed to be a refugee can be a transitory person. The application of the ‘no advantage’ principle is to ensure that no benefit is gained through circumventing regular migration pathways.
This Act also amends the Migration Act to repeal the defined term offshore entry person (OEP) and insert a new defined term unauthorised maritime arrivals (UMA). A person will be a UMA if they entered Australia by sea:
at an excised offshore place at any time after the excision time for that place; or
at any other place at any time on or after commencement of the Act; and
if the person became an unlawful non-citizen because of that entry; and
if the person is not an excluded maritime arrival.
The Act also provides for discretionary immigration in certain situations including detention of Papua New Guinea (PNG) citizens who are unlawful non-citizens and are in a protected area.
Prior to the commencement of the Regional Processing Act in August 2012, the immigration detention of all unlawful non-citizens in an excised offshore place was discretionary. However, the Regional Processing Act amended section 189 of the Migration Act to make the immigration detention of these persons mandatory. The exception is allowed inhabitants of the Protected Zone in the Torres Strait who are unlawful non-citizens. The Migration Act recognises the special status of PNG citizens who are ‘allowed inhabitants of the Protected Zone’ under the Torres Strait Treaty by including provisions to permit their visa free travel within a protected area in certain circumstances. However, there are other PNG citizens who are not ‘allowed inhabitants of the Protected Zone’, and are not provided for under the Treaty. Due to the complex relationships, long standing cultural connections and way of life of the communities in and adjacent to the Protected Zone, the Bill extends discretionary immigration detention to persons in the Protected Zone who are unlawful non-citizens but who are citizens of PNG. This provision will only apply to PNG citizens while they are in a Protected Zone of the Torres Strait, regardless of whether they are also allowed inhabitants of the Protected Zone.
The amendments also provide the Minister with an express power to revoke or vary a determination made under section 198AE that a person will not be taken to a regional processing country, if the Minister thinks it would be in the public interest to do so. The amendments also require the Minister to make certain reports to each House of Parliament if the Minister exercises these powers. These reports set out the determination and 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.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.