Migration (Validation of Port Appointment) Bill 2018 [2018] AUSStaCSBSD 172 (27 June 2018)

• Chapter 1
• Commentary on Bills
• Migration (Validation of Port Appointment) Bill 2018
• Retrospective validation1

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Chapter 1

Commentary on Bills

1.1 The committee seeks a response or further information from the relevant minister or sponsor of the bill with respect to the following bills.

Migration (Validation of Port Appointment) Bill 2018

Purpose	This bill seeks to confirm the validity of the appointment of a proclaimed port in the Territory of Ashmore and Cartier Island contained in the Commonwealth of Australia Gazette No. GN 3, 23 January 2002
Portfolio	Home Affairs
Introduced	House of Representatives on 20 June 2018

Retrospective validation^[1]

1.2 Under paragraph 5(5)(a) of the Migration Act 1958 (the Migration Act) the minister may, by notice published in the Gazette, appoint ports as proclaimed ports for the purposes of the Migration Act and fix the limits of those ports. On 23 January 2002 a notice was published purporting to appoint an area of waters within the Territory of Ashmore and Cartier Islands as a proclaimed port (2002 appointment).^[2] The effect of this was to ensure that people arriving in boats without a valid visa who entered certain waters of the Territory of Ashmore and Cartier Islands, would be entering an 'excised offshore place' for the purposes of the Migration Act and would thereby become 'offshore entry persons', now 'unauthorised maritime arrivals' under the Migration Act.

1.3 Clause 3 seeks to retrospectively validate the 2002 appointment, as the 2002 appointment inadvertently omitted a number of details relating to the geographical coordinates.^[3] Subclause 3(2) provides that the 2002 appointment has, and is taken to have always had, effect as if the words identifying the geographical coordinates of the area were omitted and corrected geographical coordinates were substituted. Clause 4 also seeks to validate things done under the Migration Act at any time prior to the commencement of this Act that would be invalid or ineffective directly or indirectly because of the terms of the 2002 appointment.

1.4 In addition, clause 5 seeks to provide that the Act will not affect rights or liabilities arising between parties to proceedings 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 set aside the appointment or declared it to be invalid. The statement of compatibility states that this clause is included as there are ongoing proceedings in the Federal Circuit Court and Federal Court which are currently challenging the validity of the 2002 appointment.^[4]

1.5 The committee notes that if the 2002 appointment was invalidly made, it would appear that persons who entered certain waters of the Territory of Ashmore and Cartier Islands would not validly have been classified as 'offshore entry persons', or now as 'unauthorised maritime arrivals' (UMA). Whether or not a person is a UMA is of great significance to how their rights and obligations under the Migration Act are to be determined and how their applications may be processed. UMAs do not have a lawful right to travel to, enter into, or remain, in Australia.^[5] In addition, persons who entered the port between 13 August 2012 and 1 June 2013 without a valid visa also became 'fast track applicants' under the Migration Act,^[6] which resulted in a different system applying for the assessment of their applications for refugee status.

1.6 The committee considers that, in seeking to retrospectively validate the 2002 appointment, the bill is apt to adversely affect any person who seeks to challenge an act or decision under the Migration Act on the basis that the impugned action or decision is invalid under the 2002 appointment. The committee expects that legislation which adversely affects individuals through its retrospective operation should be thoroughly justified in the explanatory memorandum. Such legislation can undermine values associated with the rule of law. One such value is that persons should be able to order their affairs on the basis of the law as it stands. Retrospective legislation is often thought to be particularly problematic when affected persons have relied to their detriment on a reasonable expectation that the law on which they have based their decisions will not be altered retrospectively. Another important rule of law principle is that the governors are, like the governed, bound by the law and cannot exceed their legal authority. Retrospective validation of government decisions and actions can undermine this principle.

1.7 In this instance, the statement of compatibility explains that the purpose of the bill is to 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, such as actions taken or decisions made, which relied directly or indirectly on the terms of the 2002 appointment are also valid and effective.^[7] The statement of compatibility also explains that the effect of the bill will be to '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.'^[8]

1.8 The committee notes these explanations as to why it is considered necessary to retrospectively validate the 2002 appointment. However, it also notes that, while the bill would not apply to cases where a judgment has been delivered prior to the commencement of its provisions, it would apply to ongoing cases in which a judgment has not yet been delivered when the Act commences. The committee also notes that, as stated in the minister's second reading speech, a successful legal challenge to the 2002 appointment could mean that affected persons did not enter Australia at an excised offshore place and therefore are not UMAs under the Migration Act.^[9] The question of whether a person is or is not a UMA is of great significance with respect to how a person's rights and obligations under the Migration Act should be determined and how their applications should have proceeded. The committee therefore considers the explanatory materials do not provide a sufficiently comprehensive justification for the retrospective validation of the 2002 appointment.

1.9 The committee therefore requests the minister's detailed advice as to:

• the basis of the legal challenges to the validity of the 2002 appointment and the general arguments raised by the applicants in those cases;

• the number of persons who entered the relevant waters of the Territory of Ashmore and Cartier Islands since 23 January 2002 to date. In particular, how many of these people, if any:

• are yet to have their asylum applications finally determined;

• have been granted a protection visa;

• are in offshore detention;

• have had their applications refused but remain in Australia;

• how the persons in each of the categories above would have been treated if the 2002 appointment had not been made, and the extent of any detriment such persons may suffer if the 2002 appointment is retrospectively validated; and

• the fairness of applying the bill to persons who have instituted proceedings but where judgment is not delivered before commencement of the Act (noting that such persons may be liable to an adverse costs order).

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[1] Clauses 3 and 4. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[2] See Commonwealth of Australia Gazette, No. GN 3, 23 January 2002, p. 270, available at https://www.legislation.gov.au/file/2002GN03

[3] Explanatory memorandum, p. 4.

[4] Statement of compatibility, p. 5.

[5] See statement of compatibility, p. 6.

[6] The Hon. Peter Dutton, Minister for Home Affairs, Proof House of Representatives Hansard, 20 June 2018, p. 7.

[7] Explanatory memorandum, p. 6.

[8] Explanatory memorandum, p. 5.

[9] The Hon. Peter Dutton, Minister for Home Affairs, Proof House of Representatives Hansard, 20 June 2018, p. 8.