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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014-2015
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Migration and Maritime Powers
Amendment Bill (No. 1) 2015
No. , 2015
(Immigration and Border Protection)
A Bill for an Act to amend the Migration Act 1958
and the Maritime Powers Act 2013, and for other
purposes
No. ,
2015
Migration and Maritime Powers Amendment Bill (No. 1) 2015
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments relating to removal
3
Migration Act 1958
3
Schedule 2--Amendments relating to the cancellation of visas
on character grounds
5
Migration Act 1958
5
Schedule 3--Other amendments of the Migration Act 1958
10
Part 1--Amendments commencing on 25 September 2014
10
Migration Act 1958
10
Part 2--Amendments commencing on the day after Royal
Assent
11
Migration Act 1958
11
Schedule 4--Amendments relating to maritime powers
13
Maritime Powers Act 2013
13
No. ,
2015
Migration and Maritime Powers Amendment Bill (No. 1) 2015
1
A Bill for an Act to amend the Migration Act 1958
1
and the Maritime Powers Act 2013, and for other
2
purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Migration and Maritime Powers
6
Amendment Act (No. 1) 2015.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
Migration and Maritime Powers Amendment Bill (No. 1) 2015
No. , 2015
1
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedules 1
and 2
The day after this Act receives the Royal
Assent.
3. Schedule 3,
Part 1
25 September 2014.
25 September
2014
4. Schedule 3,
Part 2
The day after this Act receives the Royal
Assent.
5. Schedule 4
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
3 Schedules
8
Legislation that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
12
Amendments relating to removal Schedule 1
No. ,
2015
Migration and Maritime Powers Amendment Bill (No. 1) 2015
3
Schedule 1
--Amendments relating to removal
1
2
Migration Act 1958
3
1 Paragraph 42(2A)(ca)
4
Before "the non-citizen", insert "if".
5
2 Paragraph 42(2A)(d)
6
Repeal the paragraph, substitute:
7
(d) if:
8
(i) an attempt to remove the non-citizen under section 198
9
to another country was made but the removal was not
10
completed; and
11
(ii) the non-citizen travels to Australia as a direct result of
12
the removal not being completed; and
13
(iii) the non-citizen is a person who would, if in the
14
migration zone, be an unlawful non-citizen; or
15
(da) if:
16
(i) the non-citizen has been removed under section 198 to
17
another country but the non-citizen does not enter the
18
other country; and
19
(ii) the non-citizen travels to Australia as a direct result of
20
not entering the other country; and
21
(iii) the non-citizen is a person who would, if in the
22
migration zone, be an unlawful non-citizen; or
23
3 After subsection 48(1A)
24
Insert:
25
(1B) If:
26
(a) an attempt was made to remove a non-citizen from the
27
migration zone under section 198 but the removal was not
28
completed; and
29
(b) the non-citizen is again in the migration zone as a result of
30
travel to Australia that is covered by paragraph 42(2A)(d);
31
then, for the purposes of this section (which applies only in respect
32
of applications made while a non-citizen is in the migration zone),
33
Schedule 1 Amendments relating to removal
4
Migration and Maritime Powers Amendment Bill (No. 1) 2015
No. , 2015
the non-citizen is taken to have been continuously in the migration
1
zone despite the attempted removal.
2
Note:
Paragraph 42(2A)(d) relates to the travel of a non-citizen to Australia
3
after an attempt to remove the non-citizen has been made under
4
section 198.
5
4 Paragraph 48(2)(b)
6
Omit "paragraph 42(2A)(d)", substitute "paragraph 42(2A)(da)".
7
5 Subsection 48(2) (note)
8
Repeal the note, substitute:
9
Note:
Paragraphs 42(2A)(da) and (e) relate to the travel of a non-citizen to
10
Australia after the non-citizen has been removed from Australia under
11
section 198.
12
6 After subsection 48A(1AA)
13
Insert:
14
(1AB) If:
15
(a) an attempt was made to remove a non-citizen from the
16
migration zone under section 198 but the removal was not
17
completed; and
18
(b) the non-citizen is again in the migration zone as a result of
19
travel to Australia that is covered by paragraph 42(2A)(d);
20
then, for the purposes of this section, the non-citizen is taken to
21
have been continuously in the migration zone despite the attempted
22
removal.
23
Note:
Paragraph 42(2A)(d) relates to the travel of a non-citizen to Australia
24
after an attempt to remove the non-citizen has been made under
25
section 198.
26
7 Paragraph 48A(1A)(b)
27
Omit "paragraph 42(2A)(d)", substitute "paragraph 42(2A)(da)".
28
8 Subsection 48A(1A) (note)
29
Repeal the note, substitute:
30
Note:
Paragraphs 42(2A)(da) and (e) relate to the travel of a non-citizen to
31
Australia after the non-citizen has been removed from Australia under
32
section 198.
33
Amendments relating to the cancellation of visas on character grounds Schedule 2
No. ,
2015
Migration and Maritime Powers Amendment Bill (No. 1) 2015
5
Schedule 2
--Amendments relating to the
1
cancellation of visas on character
2
grounds
3
4
Migration Act 1958
5
1 Paragraph 5C(1)(b)
6
Repeal the paragraph, substitute:
7
(b) the non-citizen has been convicted of an offence that was
8
committed:
9
(i) while the non-citizen was in immigration detention; or
10
(ii) during an escape by the non-citizen from immigration
11
detention; or
12
(iii) after the non-citizen escaped from immigration
13
detention but before the non-citizen was taken into
14
immigration detention again; or
15
(ba) the non-citizen has been convicted of an offence against
16
section 197A; or
17
(bb) the Minister reasonably suspects:
18
(i) that the non-citizen has been or is a member of a group
19
or organisation, or has had or has an association with a
20
group, organisation or person; and
21
(ii) that the group, organisation or person has been or is
22
involved in criminal conduct; or
23
(bc) the Minister reasonably suspects that the non-citizen has been
24
or is involved in conduct constituting one or more of the
25
following:
26
(i) an offence under one or more of sections 233A to 234A
27
(people smuggling);
28
(ii) an offence of trafficking in persons;
29
(iii) the crime of genocide, a crime against humanity, a war
30
crime, a crime involving torture or slavery or a crime
31
that is otherwise of serious international concern;
32
whether or not the non-citizen, or another person, has been
33
convicted of an offence constituted by the conduct; or
34
Schedule 2 Amendments relating to the cancellation of visas on character grounds
6
Migration and Maritime Powers Amendment Bill (No. 1) 2015
No. , 2015
2 Paragraph 5C(1)(d)
1
Omit "significant".
2
3 At the end of subsection 5C(1)
3
Add:
4
; or (e) a court in Australia or a foreign country has:
5
(i) convicted the non-citizen of one or more sexually based
6
offences involving a child; or
7
(ii) found the non-citizen guilty of such an offence, or found
8
a charge against the non-citizen proved for such an
9
offence, even if the non-citizen was discharged without
10
a conviction; or
11
(f) the non-citizen has, in Australia or a foreign country, been
12
charged with or indicted for one or more of the following:
13
(i) the crime of genocide;
14
(ii) a crime against humanity;
15
(iii) a war crime;
16
(iv) a crime involving torture or slavery;
17
(v) a crime that is otherwise of serious international
18
concern; or
19
(g) the non-citizen has been assessed by the Australian Security
20
Intelligence Organisation to be directly or indirectly a risk to
21
security (within the meaning of section 4 of the Australian
22
Security Intelligence Organisation Act 1979); or
23
(h) an Interpol notice in relation to the non-citizen, from which it
24
is reasonable to infer that the non-citizen would present a risk
25
to the Australian community or a segment of that community,
26
is in force.
27
4 At the end of subsection 5C(2)
28
Add:
29
; or (f) the non-citizen has:
30
(i) been found by a court to not be fit to plead, in relation to
31
an offence; and
32
(ii) the court has nonetheless found that on the evidence
33
available the non-citizen committed the offence; and
34
(iii) as a result, the non-citizen has been detained in a facility
35
or institution.
36
Amendments relating to the cancellation of visas on character grounds Schedule 2
No. ,
2015
Migration and Maritime Powers Amendment Bill (No. 1) 2015
7
5 Paragraph 118(f)
1
Omit "or 501B", substitute ", 501B or 501BA".
2
6 Paragraph 191(2)(d)
3
Omit "or 501A", substitute ", 501A or 501BA".
4
7 Subsections 192(1) and (4)
5
Omit "or 501A", substitute ", 501A or 501BA".
6
8 Subparagraph 193(1)(a)(iv)
7
Omit "or 501B", substitute ", 501B or 501BA".
8
9 Subsection 196(4)
9
After "section 501", insert ", 501A, 501B, 501BA or 501F".
10
10 Paragraph 198(2A)(c)
11
After "section 501C", insert "or 501CA".
12
11 After subsection 198(2A)
13
Insert:
14
(2B) An officer must remove as soon as reasonably practicable an
15
unlawful non-citizen if:
16
(a) a delegate of the Minister has cancelled a visa of the
17
non-citizen under subsection 501(3A); and
18
(b) since the delegate's decision, the non-citizen has not made a
19
valid application for a substantive visa that can be granted
20
when the non-citizen is in the migration zone; and
21
(c) in a case where the non-citizen has been invited, in
22
accordance with section 501CA, to make representations to
23
the Minister about revocation of the delegate's decision--
24
either:
25
(i) the non-citizen has not made representations in
26
accordance with the invitation and the period for
27
making representations has ended; or
28
(ii) the non-citizen has made representations in accordance
29
with the invitation and the Minister has decided not to
30
revoke the delegate's decision.
31
Schedule 2 Amendments relating to the cancellation of visas on character grounds
8
Migration and Maritime Powers Amendment Bill (No. 1) 2015
No. , 2015
Note:
The only visa that the non-citizen could apply for is a protection visa
1
or a visa specified in the regulations for the purposes of
2
subsection 501E(2).
3
12 Paragraphs 476(2)(c) and 476A(1)(c)
4
Omit "or 501C", substitute ", 501BA, 501C or 501CA".
5
13 Subsections 500(6A) and (6B)
6
After "this Act", insert ", or a decision under subsection 501CA(4) of
7
this Act not to revoke a decision to cancel a visa,".
8
14 Subsections 500(6C) and (6D)
9
After "section 501", insert ", or a decision under subsection 501CA(4)
10
not to revoke a decision to cancel a visa,".
11
15 Paragraphs 500(6F)(a) and (6G)(a)
12
After "this Act", insert "or a decision under subsection 501CA(4) of this
13
Act not to revoke a decision to cancel a visa".
14
16 Paragraphs 500(6H)(a) and (6J)(a)
15
After "section 501", insert "or a decision under subsection 501CA(4)
16
not to revoke a decision to cancel a visa".
17
17 Paragraphs 500(6K)(a) and (6L)(a)
18
After "this Act", insert "or a decision under subsection 501CA(4) of this
19
Act not to revoke a decision to cancel a visa".
20
18 Paragraph 501E(1)(a)
21
Omit "or 501B", substitute ", 501B or 501BA".
22
19 Subsection 501F(1)
23
Omit "or 501B", substitute ", 501B or 501BA".
24
20 Paragraph 503(1)(b)
25
Omit "or 501B", substitute ", 501B or 501BA".
26
21 Subsections 503A(1) and (2) and 503B(1)
27
Omit "or 501C" (wherever occurring), substitute ", 501BA, 501C or
28
501CA".
29
Amendments relating to the cancellation of visas on character grounds Schedule 2
No. ,
2015
Migration and Maritime Powers Amendment Bill (No. 1) 2015
9
22 Application of amendments
1
(1)
The amendments made by items 8, 18 and 19 of this Schedule apply in
2
relation to a decision under section 501BA of the Migration Act 1958
3
made after the commencement of this item.
4
(2)
The amendment made by item 10 of this Schedule applies in relation to
5
an invitation under section 501CA of the Migration Act 1958 given
6
before or after the commencement of this item.
7
(3)
Subsection 198(2B) of the Migration Act 1958, as inserted by item 11
8
of this Schedule, applies in relation to:
9
(a) a decision under subsection 501(3A) of that Act made before
10
or after the commencement of this item; and
11
(b) an invitation under section 501CA of that Act given before or
12
after that commencement.
13
(4)
The amendment made by item 12 of this Schedule applies in relation to
14
a decision under section 501BA or 501CA of the Migration Act 1958
15
made before or after the commencement of this item.
16
(5)
The amendments made by items 13 to 17 of this Schedule apply in
17
relation to a decision or application made after the commencement of
18
this item.
19
(6)
The amendment made by item 20 of this Schedule applies in relation to
20
a decision under section 501BA of the Migration Act 1958 made before
21
or after the commencement of this item.
22
(7)
The amendment made by item 21 of this Schedule applies in relation to
23
information communicated before or after the commencement of this
24
item.
25
Schedule 3 Other amendments of the Migration Act 1958
Part 1 Amendments commencing on 25 September 2014
10
Migration and Maritime Powers Amendment Bill (No. 1) 2015
No. , 2015
Schedule 3
--Other amendments of the
1
Migration Act 1958
2
Part 1
--Amendments commencing on 25 September
3
2014
4
Migration Act 1958
5
1 Subsection 48A(1C)
6
After "Subsections (1)", insert ", (1AA)".
7
2 Application
--amendment of subsection 48A(1C) of the
8
Migration Act 1958
9
For the purposes of the application of section 48A of the Migration Act
10
1958 after the commencement of this item, a non-citizen is prevented
11
from making an application for a protection visa after that
12
commencement, because of a refusal referred to in subsection 48(1AA)
13
of that Act, whether the refusal happened before or after that
14
commencement.
15
Other amendments of the Migration Act 1958 Schedule 3
Amendments commencing on the day after Royal Assent Part 2
No. ,
2015
Migration and Maritime Powers Amendment Bill (No. 1) 2015
11
Part 2
--Amendments commencing on the day after
1
Royal Assent
2
Migration Act 1958
3
3 Subsection 5(1) (note at the end of the definition of fast
4
track decision)
5
Repeal the note, substitute:
6
Note:
A fast track decision that is a fast track reviewable decision is
7
reviewable by the Immigration Assessment Authority under Part 7AA.
8
Some decisions made in the circumstances mentioned in paragraph (a)
9
or (b) of this definition are reviewable by the Administrative Appeals
10
Tribunal (see section 500).
11
4 Subsection 38B(5)
12
Omit "subsection (4)" (wherever occurring), substitute "subsection (3)".
13
5 Subsection 68(4)
14
Omit "effect again", substitute "effect for the first time or a subsequent
15
time".
16
6 After section 82
17
Insert:
18
82A Cessation of visas that are not in effect
19
If:
20
(a) a non-citizen holds a visa at a particular time; and
21
(b) the visa is not in effect at that time; and
22
(c) the visa would, if it were in effect at that time, cease to be in
23
effect under section 82 (other than subsection 82(8)), 173 or
24
174;
25
then the visa is taken to have ceased to be in effect under that
26
section at that time.
27
Note:
The visa period for a visa begins when the visa is granted and a
28
non-citizen holds the visa until the visa period ends. However, some
29
visas (such as bridging visas) do not come into effect at the time of
30
Schedule 3 Other amendments of the Migration Act 1958
Part 2 Amendments commencing on the day after Royal Assent
12
Migration and Maritime Powers Amendment Bill (No. 1) 2015
No. , 2015
grant (see section 68). If this section applies then the visa period for a
1
visa that is held by a non-citizen, but that is not in effect, ends (except
2
if the visa is taken to have ceased to be in effect under
3
subsection 82(3)).
4
7 At the end of subsection 173(1)
5
Add:
6
Note:
For visas that are not in effect, see section 82A.
7
8 At the end of section 174
8
Add:
9
Note:
For visas that are not in effect, see section 82A.
10
9 Subsection 500(1) (note)
11
Repeal the note.
12
10 After subsection 500(3)
13
Insert:
14
(3A) Subsection (3) does not apply in relation to an application under
15
subsection (1) for review of:
16
(a) a decision of a delegate of the Minister under section 501 to
17
refuse to grant a protection visa to a fast track applicant; or
18
(b) a decision (other than a decision to which a certificate under
19
section 502 applies) to refuse under section 65 to grant a
20
protection visa to a fast track applicant relying on a provision
21
mentioned in paragraph (1)(c).
22
11 Application
--subsection 500(3A) of the Migration Act 1958
23
Subsection 500(3A) of the Migration Act 1958, as inserted by this Part,
24
applies in relation to a decision made after the commencement of this
25
item.
26
Amendments relating to maritime powers Schedule 4
No. ,
2015
Migration and Maritime Powers Amendment Bill (No. 1) 2015
13
Schedule 4
--Amendments relating to
1
maritime powers
2
3
Maritime Powers Act 2013
4
1 Section 40
5
Before "This Act", insert "(1)".
6
2 At the end of section 40
7
Add:
8
(2) Subsection (1) does not apply to an exercise of powers if:
9
(a) the exercise of powers:
10
(i) is part of a continuous exercise of powers that
11
commenced in accordance with any applicable
12
requirements of this Part (disregarding this subsection);
13
and
14
(ii) occurs in the course of passage of a vessel or aircraft
15
through or above waters that are part of a country; and
16
(b) a relevant maritime officer, or the Minister, considers that the
17
passage is in accordance with the Convention.
18
Note 1:
The definition of country in section 8 includes the territorial sea and
19
any archipelagic waters of the country.
20
Note 2:
The fact that the Minister considers that passage of a particular vessel
21
or aircraft through or above waters that are part of a country is in
22
accordance with the Convention may (for example) be apparent from
23
the terms of a direction given under section 75F.
24
(3) An exercise of powers in reliance (or purported reliance) on
25
subsection (2) is not invalid because of a defective consideration of
26
the Convention.
27
3 Application
--amendments of the Maritime Powers Act 2013
28
(1)
The amendments of the Maritime Powers Act 2013 made by this
29
Schedule apply in relation to the exercise of powers under that Act after
30
the commencement of this Schedule, even if:
31
Schedule 4 Amendments relating to maritime powers
14
Migration and Maritime Powers Amendment Bill (No. 1) 2015
No. , 2015
(a) an authorisation for the exercise of the powers was given
1
under Division 2 of Part 2 of that Act before the
2
commencement of this Schedule; or
3
(b) the powers are exercised:
4
(i) in the course of a continuous exercise of powers that
5
started before the commencement of this Schedule; or
6
(ii) without limiting subparagraph (i)--in relation to a
7
person, vessel or aircraft who or that started to be
8
detained, or otherwise held, under Division 7 or 8 of
9
Part 3 of the Maritime Powers Act 2013 before that
10
commencement; or
11
(iii) in any other situation in relation to which powers were
12
(or could have been) exercised under that Act before
13
that commencement.
14
(2)
The amendments of the Maritime Powers Act 2013 made by this
15
Schedule do not, by implication, affect the interpretation of that Act, as
16
in force before the commencement of this Schedule, in relation to the
17
exercise of powers under that Act before that commencement.
18