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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION (VALIDATION OF PORT APPOINTMENT) BILL 2018
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Home Affairs and Minister for Immigration
and Border Protection, the Hon. Peter Dutton MP)
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MIGRATION (VALIDATION OF PORT APPOINTMENT) BILL 2018
OUTLINE
The Migration (Validation of Port Appointment) Bill 2018 (the Bill) confirms the validity of
the appointment of a proclaimed port in the Territory of Ashmore and Cartier Islands
contained in the Commonwealth of Australia Gazette No. GN 3, 23 January 2002 (the
appointment).
Specifically, the provisions of the Bill:
clarify the geographical coordinates of the area of waters within the Territory of
Ashmore and Cartier Islands specified in the appointment;
confirm that there was a properly proclaimed port at Ashmore and Cartier Islands at
all relevant times; and
confirm the validity of things done under the Migration Act 1958 (such as actions
taken or decisions made) which relied directly or indirectly on the terms of the
appointment, before the commencement of this Act.
FINANCIAL IMPACT STATEMENT
These amendments will have a no financial impact.
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 Australia's
human rights obligations. A copy of the Statement of Compatibility with Human Rights is at
Attachment A.
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MIGRATION (VALIDATION OF PORT APPOINTMENT) BILL 2018
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short Title
1. Clause 1 provides that the short title of the Bill, once enacted, will be the Migration
(Validation of Port Appointment) Act 2018.
Clause 2 Commencement
2. Clause 2 of the Bill sets out the times at which the various provisions of the Act
commence.
3. Subclause 2(1) of the Bill provides that each provision of the 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.
4. Table item 1 provides that the whole of this Act will commence on the day after the
Act receives the Royal Assent.
5. The note in subclause 2(1) makes it clear that the table relates only to the provisions
of the Act as originally enacted. The table will not be amended to deal with any later
amendments to the Act.
6. Subclause 2(2) of the Bill provides that any information in column 3 of the table is not
part of the Act. Information may be inserted in this column, or information in it may
be edited, in any published version of the Act. There is currently no information in
column 3 of the table.
Clause 3 Validation of appointment of an area of water within the Territory of
Ashmore and Cartier Islands as a port
7. Subclause 3(1) of the Bill provides that this section applies to the appointment of an
area of waters within the Territory of Ashmore and Cartier Islands under paragraph
5(5)(a) of the Migration Act 1958 by notice published in the Gazette on 23 January
2002. This clause identifies the appointment to which the validation relates.
8. Subclause 3(2) provides that the appointment has, and is taken always to have had,
effect as if all of the words from and including "the area of waters" to and including
"point of commencement." were omitted and the following words were substituted:
the area of waters within the Territory of Ashmore and Cartier Islands
commencing at a point on the Mean Low Water (MLW) line closest to
Latitude 12 degrees 13.2 minutes South, Longitude 122 degrees 59.0 minutes
East, then following the line of MLW in an anticlockwise direction so as to
enclose a bay by bridging across islands of MLW at the entrance to the bay to
close back to the point of commencement.
9. The effect of this subclause is to clarify the geographical coordinates of the area of
waters within the Territory of Ashmore and Cartier Islands specified in the
appointment. The appointment inadvertently omitted the number "12" before the
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word "degree", and the letter "s" in the word "degrees" in the latitude coordinates and
the word "Longitude" before "122 degrees 59.0 minutes ... ". In addition to correcting
the inadvertent omissions in identifying the coordinates, the opportunity has been
taken to clearly identify the specific quadrant on the Earth's surface in which the
coordinates occur, by inclusion of the words "South," and "East," in the description.
This is consistent with the intention of the original appointment.
10. Subclause 3(3) of the Bill confirms that the Migration Act 1958 has, and is taken
always to have had, effect as if the area of waters specified in the appointment (as
affected by subsection (2)) were a port for the purposes of that Act.
11. Subclause 3(4) confirms that this section does not, by implication, prevent amendment
or revocation of the appointment.
Clause 4 Validation of things done under the Migration Act 1958
12. Subclause 4(1) of the Bill provides that this section applies to a thing done under the
Migration Act 1958 at any time before the day this Act commences, to the extent that
the doing of the thing would, apart from this Act, be invalid or ineffective, directly or
indirectly because of the terms of the appointment referred to in subsection 3(1).
13. Subclause 4(2) confirms that the thing done is as valid and effective, and is taken
always to have been as valid and effective, as it would have been had this Act been in
force at that time.
14. The purpose of this clause is to confirm the validity of things done (such as actions
taken or decisions made) under the Migration Act 1958 which relied directly or
indirectly on the terms of the appointment, before the commencement of this Act.
Clause 5 Act does not affect certain rights or liabilities
15. Clause 5 of the Bill provides that this Act does not affect rights or liabilities arising
between parties to proceedings in which judgment has been delivered by a court
before the commencement of this Act, if the validity of the appointment referred to in
subsection 3(1) was at issue in the proceedings; and the judgment set aside the
appointment or declared it to be invalid.
16. The purpose of this clause is to confirm that the Act will not apply to cases where
judgment has been delivered by a court before the commencement of this Act but only
if the validity of the appointment was at issue in the proceedings and the judgment set
aside the appointment or declared it to be invalid.
17. The effect of this clause will preserve any such decision of a court prior to the
commencement of this Act.
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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 (Validation of Port Appointment) Bill 2018
This Bill is compatible 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.
Overview of the Bill
1. The purpose of the Migration (Validation of Port Appointment) Bill 2018 (the Bill) is to
confirm the validity of the appointment of a proclaimed port in the Territory of Ashmore
and Cartier Islands contained in the Commonwealth of Australia Gazette No. GN 3, 23
January 2002 (the Appointment).
2. By confirming the validity of the Appointment, the Bill will ensure that there was a
properly proclaimed port at Ashmore and Cartier Islands at all relevant times and ensure
that things done under the Migration Act 1958 (the Act), such as actions taken or
decisions made, which relied directly or indirectly on the terms of the Appointment are
also valid and effective.
3. The effect of the Bill will simply maintain the status quo for unauthorised maritime
arrivals and, where relevant, fast track applicants, under the Act who entered Australia via
this proclaimed port between 23 January 2002 and 1 June 2013.
4. The Bill reiterates the Government's original intention that the Appointment is, and has
always been, valid. However, due to ongoing proceedings in the Federal Circuit Court
and Federal Court which are currently challenging the validity of the Appointment, the
Bill will not apply to cases where judgment has been delivered by a court before these
provisions commence, if:
the validity of the Appointment was at issue in the proceedings; and
the judgment either set aside or declared the Appointment to be invalid.
Confirming the validity of the appointment of a proclaimed port
Human rights implications
The Bill reconfirms a legal position of the Australian Government that has been in place
since 2002. The Bill does not engage any of the applicable rights or freedoms.
However, the relevance of the following human rights or freedoms are discussed below in the
context of how the validity of the Appointment relates to a person becoming an unauthorised
maritime arrival and the related consequence of being processed as a fast track applicant
under the Act.
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Right to freedom of movement
Relevant to the Bill is Article 12 (1) of the International Covenant on Civil and Political
Rights 1966 (ICCPR). Article 12(1) provides that: "Everyone lawfully in the territory of a
State shall, within that territory, have the right to liberty of movement and freedom to choose
his residence". (emphasis added)
As outlined above, the Bill merely confirms the validity of the Appointment. Thus the right to
freedom of movement is not engaged.
The Appointment was designed to ensure that unauthorised boat arrivals who entered certain
waters of the Territory of Ashmore and Cartier Islands, an 'excised offshore place' for the
purposes of the Act would thereby become 'offshore entry persons', now 'unauthorised
maritime arrivals' under the Act. Unauthorised maritime arrivals do not have a lawful right
to travel to, enter into, or remain, in Australia. In accordance with Article 12(1), an
unauthorised maritime arrival will not, upon entering Australian territory, be in Australia
lawfully, so Article 12(1) is not engaged.
Australia's non-refoulement obligations
Apart from Australia's non-refoulement (non-return) obligations under the
Refugees Convention (which is not one of the treaties specified in the definition of 'human
rights' in the Human Rights (Parliamentary Scrutiny) Act 2011), Australia also has an
obligation to not send a person to a country where they are at real risk of the death penalty,
arbitrary deprivation of life, torture, or cruel, inhuman or degrading treatment or punishment
(Articles 6 and 7 of the ICCPR, Article 3 of the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT)) or to a country which would send
the person to another country where they would face such a risk.
This Bill does not contain or amend any existing provisions which relate to removal in the
Act. The Bill does not affect the current operation of the Act in relation to removal or
regional processing arrangements nor negatively impact on the protections against non-
refoulement which already exist in legislation, policies and procedures.
Conclusion
The Bill is compatible with the applicable human rights and freedoms because it does not
engage any obligations under relevant human rights treaties.
The Hon. Peter Dutton MP, Minister for Home Affairs and
Minister for Immigration and Border Protection