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2013 - 2014 - 2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (REGIONAL PROCESSING ARRANGEMENTS)
BILL 2015
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration and Border Protection,
the Hon. Peter Dutton MP)
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MIGRATION AMENDMENT (REGIONAL PROCESSING ARRANGEMENTS)
BILL 2015
OUTLINE
The Migration Amendment (Regional Processing Arrangements) Bill 2015 (the Bill)
amends the Migration Act 1958 (the Migration Act) to provide statutory authority which
applies where the Commonwealth has entered into an arrangement with another country
with respect to the regional processing functions of that country.
The Migration Act confers express power to take unauthorised maritime arrivals to a
country that has been designated by the Minister, by legislative instrument, to be a
regional processing country. Currently, the Republic of Nauru and the Independent State
of Papua New Guinea are designated as regional processing countries.
The Bill complements the existing legislative framework for regional processing
arrangements. The Bill provides statutory authority for the Commonwealth to:
take, or cause to be taken, any action in relation to the arrangement or the regional
processing functions of the country;
make payments, or cause payments to be made, in relation to the arrangement or
the regional processing functions of the country; and
do anything that is incidental or conducive to the taking of such action or the
making of such payments.
This Bill provides statutory authority for the Commonwealth to provide assistance to
other countries to carry into effect arrangements for the processing and management of
unauthorised maritime arrivals who have been taken to regional processing countries,
including the expenditure of Commonwealth money on these arrangements. The Bill
confirms the ability of Australian officials, acting on behalf of the Commonwealth, to
take action to assist the foreign government in the regional processing country, consistent
with the law of that country.
The amendments in the Bill will have retrospective and prospective effect.
FINANCIAL IMPACT STATEMENT
The financial impact of the Bill is low. Any costs will be met from within existing
resources of the Department of Immigration and Border Protection.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the
amendments in this Bill and assesses that the amendments are compatible with
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Australia‟s human rights obligations. A copy of the Statement of Compatibility with
Human Rights is at Attachment A.
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MIGRATION AMENDMENT (REGIONAL PROCESSING ARRANGEMENTS)
BILL 2015
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short Title
1. Clause 1 provides that the short title by which this Act may be cited is the
Migration Amendment (Regional Processing Arrangements) Bill 2015.
Clause 2 Commencement
2. Subclause 2(1) provides that each provision of this Act specified in column 1 of
the table commences, or is taken to have commenced, in accordance with column 2 of the
table. Any other statement in column 2 has effect according to its terms.
3. Table item 1 provides that sections 1 to 3 of this Act and anything in this Act not
elsewhere covered by the table will commence on the day on which this Act receives the
Royal Assent.
4. Table item 2 provides that Schedule 1 to the Bill commences on 18 August 2012.
5. Table item 2 ensures that the amendments in Schedule 1 to the Bill operate
retrospectively from 18 August 2012, which is the date of commencement of the
Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012
(the Regional Processing Act). The Regional Processing Act replaced the previous
framework in the Migration Act for transferring unauthorised maritime arrivals to another
country for an assessment of their claims to be refugees.
6. The retrospective operation of these amendments is to put beyond doubt the
Commonwealth‟s authority to take, or cause to be taken, actions in relation to regional
processing arrangements or the regional processing functions of a country, and associated
Commonwealth expenditure, from the date of commencement of the Regional Processing
Act. The retrospective operation of these provisions will provide authority for all activity
undertaken in relation to regional processing arrangements for the entire period these
arrangements have been in place.
7. Subclause 2(2) provides that any information in column 3 of the table is not part
of this Act. Information may be inserted in this column, or information in it may be
edited, in any published version of this Act.
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Clause 3 Schedule(s)
8. This clause provides that each Act specified in a Schedule to this Act is amended
or repealed as set out in the applicable items in the Schedule concerned. In addition, any
other item in a Schedule to this Act has effect according to its terms.
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SCHEDULE 1 - Amendments
Migration Act 1958
Item 1 After section 198AH
9. This item inserts new section 198AHA in Part 2 of Division 8 of the Migration
Act.
10. New subsection 198AHA(1) provides that the section applies if the
Commonwealth enters into an arrangement with a person or body in relation to the
regional processing functions of a country.
11. The regional processing of claims made by „unauthorised maritime arrivals‟ (as
defined in sections 5 and 5AA of the Migration Act) is dealt with in Subdivision B of
Division 8 of Part 2 of the Migration Act. Relevantly, section 198AB of the Migration
Act provides that the Minister may, by legislative instrument, designate that a country is a
„regional processing country‟. Section 198AD provides in part that an officer must, as
soon as reasonably practicable, take an unauthorised maritime arrival who is detained
under section 189 to a regional processing country.
12. The „Commonwealth‟ may enter into the arrangement through a duly authorised
agent such as a Commonwealth Minister, a Secretary of a Commonwealth department or
a Commonwealth officer acting within his or her authority (such as a High
Commissioner) for and on behalf of the Commonwealth. New subsection 198AHA(1)
clarifies that this section applies when an arrangement has been entered into by the
Commonwealth with a person or body in relation to the regional processing functions of a
country. „Person‟ includes a „body politic‟ and therefore a country (see section 2C of the
Acts Interpretation Act 1901).
13. The terms „arrangement‟ and „regional processing functions‟ are defined in new
subsection 198AHA(5), which is inserted by this item.
14. New subsection 198AHA(2) provides that the Commonwealth may do all or any
of the following:
take, or cause to be taken, any action in relation to the arrangement or the regional
processing functions of the country;
make payments, or cause payments to be made, in relation to the arrangement or
the regional processing functions of the country; and
do anything else that is incidental or conducive to the taking of such action or the
making of such payments.
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15. The purpose of new subsection 198AHA(2) is to provide express statutory
authority for the actions of the Commonwealth in relation to regional processing
functions. It is intended that this would include the performance by the Commonwealth
of an arrangement that the Commonwealth has entered into with a person or body in
relation to the regional processing functions of a country. This provision is directed at
ensuring that there is legislative authority to carry into effect arrangements for the
processing and management of unauthorised maritime arrivals who have been taken to
regional processing countries, and does not purport to have any effect in itself on the
rights of those persons.
16. The amendments in the Bill are consistent with the power provided in sections
198AB and 198AD of the Migration Act. The amendments authorise the Commonwealth
to undertake action and expenditure to give effect to the regional processing
arrangements authorised by those provisions. Subsection 198AHA(2) does not purport to
provide the legal authority to detain a person taken to a regional processing country as
any authority to exercise restraint over the liberty of a person arises under the law of the
regional processing country. The purpose of subsection 198AHA(2) is merely to provide
the Commonwealth with the express authority to carry into effect arrangements for
supporting the processing and management of persons who have been taken to regional
processing countries, consistent with the law of those countries.
17. New subsection 198AHA(3) provides that, to avoid doubt, subsection 198AHA(2)
is intended to ensure that the Commonwealth has capacity and authority to take action,
without otherwise affecting the lawfulness of that action.
18. This provision is intended to assist readers to understand the purpose of new
subsection 198AHA(2). This provision puts beyond doubt that new subsection
198AHA(2) is limited to providing the Commonwealth with authority to take action to
assist foreign governments in regional processing countries.
19. New subsection 198AHA(4) provides that nothing in new section 198AHA limits
the executive power of the Commonwealth.
20. New subsection 198AHA(5) provides that, in section 198AHA:
action includes:
o exercising restraint over the liberty of a person; and
o action in a regional processing country or other country.
21. This definition of „action‟ is firstly to make clear that an action taken, or caused to
be taken, by the Commonwealth can include exercising restraint over the liberty of a
person. Secondly, it makes clear that the action might be in a regional processing country
or „another country‟. This is to make clear that these amendments are intended to
authorise actions in relation to arrangements made with one country in relation to the
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performance of regional processing functions in another country, for example
resettlement arrangements.
22. The Commonwealth does not exercise restraint over the liberty of any persons in
regional processing countries under the current operational model, which has been in
effect since 18 August 2012, and there is no intention to do so. To the extent that the
liberty of persons taken to regional processing countries is restrained, this is done under
the laws of that country. These amendments provide statutory authority only for
Australian officials to assist regional processing countries to process and manage persons,
but do not otherwise provide authority for the detention itself.
23. New subsection 198AHA(5) further provides that, in section 198AHA:
arrangement includes an arrangement, agreement, understanding, promise or
undertaking, whether or not it is legally binding; and
regional processing functions includes the implementation of any law or policy,
or the taking of any action, by a country in connection with the role of the country
as a regional processing country, whether the implementation or the taking of
action occurs in that country or another country.
24. The reference to „another country‟ in this definition is to cover the circumstance
where things might need to be done in another country in connection with the
arrangement or the regional processing functions of a regional processing country.
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ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
Migration Amendment (Regional Processing Arrangements) Bill 2015
This Bill does not engage with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011, because the Government‟s view is that the Regional Processing
Centres are managed and administered by the governments of the countries in which they
are located, under the law of those countries.
Overview of the Bill
This Bill inserts new section 198AHA into the Migration Act 1958, which applies where
the Commonwealth has entered into an arrangement with respect to the regional
processing functions of a country. Subsection 198AHA(2) clarifies that the
Commonwealth may, in relation to the arrangement or the regional processing functions
themselves:
take action, or cause action to be taken;
make payments, or cause payments to be made; and
do anything incidental or conducive to the taking of such action or the making of
such payments.
"Action" is defined in subsection 198AHA(5) as including "action in a regional
processing country ("RPC") or another country" and "exercising restraint over the liberty
of a person".
Subsection 198AHA(3) clarifies that, "to avoid doubt, subsection (2) is intended to
ensure that the Commonwealth has capacity and authority to take action, without
otherwise affecting the lawfulness of that action."
Human rights implications
The amendments made by this Bill strengthen and put beyond any doubt the existing
legislative authority to give practical effect to the substantive regional processing
provisions inserted by the Migration Legislation Amendment (Regional Processing and
Other Measures) Act 2012. The Committee examined the human rights implications of
the re-establishment of regional processing in its ninth report of 2013.
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Subsection 198AHA(5) provides that "action" includes exercising restraint over the
liberty of a person, which restraint may engage the right to security of the person and
freedom from arbitrary detention contained in Article 9 of the International Covenant on
Civil and Political Rights (ICCPR). Article 9(1) of the ICCPR provides that
Everyone has the right to liberty and security of person. No one shall be subjected
to arbitrary arrest or detention. No one shall be deprived of his liberty except on
such grounds and in accordance with such procedure as are established by law.
The Australian Government‟s long-standing view is that Australia‟s human rights
obligations are essentially territorial. Persons in regional processing countries are outside
Australia‟s territory. Australia has accepted that there may be exceptional circumstances
in which the rights and freedoms set out under the ICCPR may apply to persons beyond
the territory of a State party, and the extent of the obligations that a State may owe under
international human rights law where it is operating extraterritorially will be informed by
the degree of control exercised by the State. The Government‟s position is that Australia
does not exercise the degree of control necessary in regional processing countries to
enliven Australia‟s international obligations.
Australia does not restrain the liberty of persons in regional processing countries. To the
extent that the liberty of persons taken to regional processing countries is restrained in
those countries, this is done under the laws of that country. The Bill confirms the ability
of Australian officials, acting on behalf of the Commonwealth, to take action to assist the
foreign government in the regional processing country. These amendments do not
otherwise provide authority for any restraint over the liberty of persons. The lawful
authority for any restraint over liberty arises under the law of the relevant regional
processing country.
Conclusion
The amendments in the Bill do not engage Australia‟s human rights obligations because
the Government‟s position is that the the Regional Processing Centres are managed and
administered by the governments of the countries in which they are located, under the law
of those countries.
The Honourable Peter Dutton MP, Minister for Immigration and Border Protection