EXPLANATORY STATEMENT
Issued by authority of the Minister for Home Affairs and Minister for Cyber Security
Migration Act 1958
Migration (Regional Processing Country—Republic of Nauru) Designation (LIN 23/017) 2023
1 The instrument, Departmental reference LIN 23/017, is made under subsection 198AB(1) of the Migration Act 1958 (the Migration Act).
2 In accordance with subsection 198AB(1B) of the Migration Act, and despite subsection 12(1) of the Legislation Act 2003 (the Legislation Act), the instrument commences at the earlier of:
- immediately after both Houses of the Parliament have passed a resolution approving the designation, and
- immediately after 5 sitting days of each House have passed since a copy of the designation has been laid before each House without either House passing a resolution disapproving the designation.
3 The instrument is a legislative instrument for the Legislation Act.
Purpose
4 The instrument is made under subsection 198AB(1) of the Migration Act to designate the Republic of Nauru as a regional processing country. The purpose of the instrument is to enable the operation of section 198AD of the Migration Act in relation to the Republic of Nauru. Subsection 198AD(1) provides that, subject to sections 198AE, 198AF and 198AG, an officer must take an unauthorised maritime arrival to whom section 198AD applies from Australia to a regional processing country.
5 Subsection 198AB(2) of the Migration Act provides that the only condition for the exercise of the power under subsection 198AB(1) is that the Minister thinks that it is in the national interest to designate the country as a regional processing country.
6 Paragraph 198AB(3)(a) of the Migration Act provides that in considering the national interest, the Minister must have regard to whether or not the country has given Australia any assurances to the effect that the country will not expel or return a person taken to the country under subsection 198AD of the Migration Act to another country where the person’s life or freedom would be threatened on account of the person’s race, religion, nationality, membership of a particular social group, or political opinion; and that the country will make an assessment, or permit an assessment to be made, of whether or not a person taken to the country is covered by the definition of refugee in Article 1A of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.
7 Paragraph 198AB(3)(b) of the Migration Act provides that in considering the national interest, the Minister may have regard to any other matter which, in the opinion of the Minister, relates to the national interest.
Consultation
8 The Office of the United Nations High Commissioner for Refugees (UNHCR) was consulted on the designation of Nauru as a regional processing country.
9 No further consultation was done for this instrument. This is because the Australian Government’s policy in relation to regional processing arrangements in Nauru has not changed, and this instrument substantially replicates the Instrument of Designation of the Republic of Nauru as a Regional Processing Country under subsection 198AB(1) of the Migration Act 1958 (IMMI 12/100).
10 The Office of Impact Analysis was not consulted in relation to this instrument.
Parliamentary scrutiny etc.
11 The instrument is exempt from disallowance under section 42 of the Legislation Act. This is because it is an instrument (other than a regulation) made under Part 2 of the Migration Act, and is prescribed by subitem 20(a) of the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015.
12 As the instrument is exempt from disallowance, no Statement of Compatibility with Human Rights is required.
13 The instrument was made by the Minister for Home Affairs and Minister for Cyber Security, in accordance with subsection 198AB(1) of the Migration Act. The Minister considers that it is in the national interest to designate the Republic of Nauru as a regional processing country.
Overview
The Migration (Regional Processing Country—Republic of Nauru) Designation (LIN 23/017) 2023, enacted under the Migration Act 1958, addresses the issue of managing unauthorised maritime arrivals in Australia by designating the Republic of Nauru as a regional processing country. This legislative instrument, issued by the Minister for Home Affairs and Minister for Cyber Security, facilitates the relocation of individuals who arrive by sea to Nauru for their claims to be assessed, thereby easing the pressure on Australian immigration processing systems. The designation is made on the condition that it is deemed to be in Australia's national interest, considering assurances from Nauru regarding the protection and assessment of individuals’ refugee status. This measure aims to streamline the processing of asylum seekers while maintaining Australia’s obligations under international refugee law.
Scope and Application
The instrument F2023L00093, made under subsection 198AB(1) of the Migration Act 1958, designates the Republic of Nauru as a regional processing country. This designation applies to unauthorised maritime arrivals, enabling the operation of section 198AD of the Migration Act, which mandates that an officer must take such arrivals from Australia to Nauru for assessment. The application of this Act is strictly confined to the conduct of relocating unauthorised maritime arrivals to Nauru for the purposes outlined. Geographically, the Act applies to Nauru and Australia, with its jurisdictional reach dictated by the Commonwealth’s legislative powers under the Migration Act. The Act does not specify exclusions or exemptions, but its application may be limited by the conditions set out in sections 198AE, 198AF, and 198AG of the Migration Act. The instrument is exempt from disallowance under section 42 of the Legislation Act, and no Statement of Compatibility with Human Rights is required, as it is not a regulation and is prescribed by subitem 20(a) of the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015.
Key Provisions
The key provision of this legislation is the designation of the Republic of Nauru as a regional processing country under subsection 198AB(1) of the Migration Act 1958 (the Migration Act) (s 1). This enables the operation of section 198AD of the Migration Act in relation to the Republic of Nauru (s 4). Subsection 198AB(2) states that the condition for the exercise of this power is that the Minister believes it is in the national interest to designate the country as a regional processing country (s 5). In considering the national interest, the Minister must consider whether Nauru has provided assurances that it will not expel or return a person taken to the country under section 198AD to another country where the person's life or freedom would be threatened, and that Nauru will assess whether the person is a refugee under the 1951 Convention relating to the Status of Refugees (s 6). The Minister may also consider any other matter relating to the national interest (s 7). The instrument is exempt from disallowance under section 42 of the Legislation Act (s 11). The instrument was made by the Minister for Home Affairs and Minister for Cyber Security (s 13).
The Act imposes specific obligations on the Australian government and Nauru. The Australian government must ensure that any unauthorised maritime arrivals are taken to Nauru for processing, as required by subsection 198AD(1) (s 4). Nauru, as a designated regional processing country, must provide assurances that it will not expel or return individuals to countries where their lives or freedoms would be threatened, and must assess whether these individuals meet the definition of refugee under the 1951 Convention (s 6). The Australian government must also consult with the Office of the United Nations High Commissioner for Refugees (UNHCR) and consider any other matters relating to the national interest (s 6, s 7).
The legislation does not explicitly outline specific offences, penalties, or civil/criminal consequences for breaches. However, the failure to comply with the obligations under section 198AD or the failure of Nauru to meet the conditions outlined in the Act could potentially lead to legal challenges or diplomatic repercussions. The instrument itself is exempt from disallowance, meaning it is not subject to parliamentary scrutiny that would typically apply to other legislative instruments (s 11). The absence of specific penalties in the text suggests that enforcement and consequences may be handled through diplomatic channels or other legal mechanisms.