Commonwealth of Australia Explanatory Memoranda

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MIGRATION (VALIDATION OF PORT APPOINTMENT) BILL 2018

                                 2016-2017-2018

      THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                                     SENATE




    MIGRATION (VALIDATION OF PORT APPOINTMENT) BILL 2018




            SUPPLEMENTARY EXPLANATORY MEMORANDUM


     Amendments and New Clause to be Moved on Behalf of the Government




(Circulated by authority of the Minister for Home Affairs, the Hon. Peter Dutton MP)

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MIGRATION (VALIDATION OF PORT APPOINTMENT) BILL 2018



OUTLINE

The government amendment to the Migration (Validation of Port Appointment) Bill 2018
(the Bill) addresses the judgments of the Federal Circuit Court in DBC16 v Minister for
Immigration & Anor [2018] FCCA 1802 (DBC16) and DBD16 v Minister for Immigration &
Anor [2018] FCCA 1801 (DBD16), both of which declared invalid 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). The
amendments are intended to give effect to the purpose of the Bill, namely the confirmation of
the validity of the appointment and things done which relied on the validity of the
appointment.

Specifically, the government amendments to the Bill:

      clarify that the term "appointment" will include a purported appointment; 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 validity 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

Amendment 1         Page 2 (after line 9), after clause 2
1.   This amendment inserts new clause 2A in the Bill with the heading "Definitions."

2.   Clause 2A of the Bill inserts a definition for the word "appointment" in this Act,
     providing that an appointment includes "a purported appointment."

3.   The purpose of this new clause is, in light of the judgments in DBC16 and DBD16
     finding that the appointment is invalid, to clarify that any references to the term
     "appointment" in the Act will include any purported appointment.

Amendment 2         Clause 4, page 3 (lines 10 and 11)

4.   This amendment omits from subclause 4(1) of the Bill the words ", directly or
     indirectly because of the terms of the appointment referred to in subsection 3(1)" and
     replaces them with the words "because the doing of the thing relied, directly or
     indirectly, on the validity of the appointment referred to in subsection 3(1)".

5.   The purpose of the amendment to subclause 4(1) is, in light of the judgments in
     DBC16 and DBD16 finding that the appointment is invalid, to give effect to the
     purpose of clause 4 which 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 validity of the appointment, before 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
The amendments to this Bill are 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 amendments to the Bill
1. The purpose of the amendments to the Migration (Validation of Port Appointment) Bill
   2018 (the Bill) is to address the judgments of the Federal Circuit Court (FCC) in DBC16 v
   Minister for Immigration & Anor [2018] FCCA 1802 (DBC16) and DBD16 v Minister for
   Immigration & Anor [2018] FCCA 1801 (DBD16), both of which declared invalid 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. On 11 July 2018, the FCC upheld the challenge to the validity of the Appointment in the
   matters of DBC16 and DBD16, declaring the Appointment invalid. The FCC held that
   the word 'port' should be given its ordinary meaning, which entails a place with
   infrastructure in place to facilitate the movement of goods and/or passengers between
   vessels on the water and the land. The FCC concluded that the area described in the
   Appointment was not a 'port', as it only allowed for the transfer of goods and/or
   passengers between vessels and did not have any infrastructure.
3. The amendments to the Bill are intended to ensure that the Bill operates as intended to
   confirm the validity of the Appointment and to ensure that things done under the
   Migration Act 1958 (the Act) will be valid and effective if they relied, directly or
   indirectly, on the validity of the Appointment.
4. Specifically, the amendments to the Bill will:
       define the term 'appointment' to put beyond doubt that an appointment includes a
        purported appointment; and
       remove reference to the reason a thing done under the Act would be invalid or
        ineffective because of its direct or indirect reliance on the terms of the Appointment.
        Instead, it will provide that the doing of a thing under the Act will not be invalid or
        ineffective if it relied, directly or indirectly, on the validity of the Appointment.
5. Due to ongoing proceedings in the FCC and the Federal Court which are challenging the
   validity of the Appointment, the amended Bill will not apply to cases where judgment has
   been delivered by a court before the commencement of these provisions, if the validity of

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   the Appointment was at issue in the proceedings and that judgment set aside the
   Appointment or declared it to be invalid.


Confirming the validity of the appointment of a proclaimed port


Human rights implications
The amended Bill reconfirms a legal position of the Australian Government that has been in
place since 2002. The amended Bill does not engage any of the applicable rights or
freedoms.
However, the relevance of the following human rights or freedoms are discussed below
insofar as 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:


Right to freedom of movement
Relevant to the amended 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 amended Bill merely confirms the validity of the Appointment. Thus
the right to freedom of movement is not engaged.
Where an unlawful non-citizen enters certain waters at Ashmore and Cartier Islands that
person becomes an unauthorised maritime arrival under the Act. Unauthorised maritime
arrivals (UMA) do not have a lawful right to travel to, enter into, or remain, in Australia. In
accordance with Article 12(1), a UMA 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 amended Bill does not contain or amend any existing provisions which relate to removal
in the Act. The amended 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.

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Conclusion
The amended 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
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