Migration (Validation of Port Appointment) Bill 2018 - Commentary on Ministerial Responses [2018] AUSStaCSBSD 190 (15 August 2018)

• Migration (Validation of Port Appointment) Bill 2018
• Retrospective validation 7

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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
Bill status	Before the House of Representatives

Retrospective validation ^[7]

2.12 In Scrutiny Digest No. 7 of 2018^[8] the committee requested 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).

Minister's response^[9]

2.13 The minister advised:

The basis of the legal challenges to the validity of the 2002 appointment and the general arguments raised by the applicants in those cases
On 11 July 2018, the Federal Circuit Court handed down two decisions regarding the matters of DBC16 v Minister for Immigration and Border Protection & Anor [2018] and DBB16 v Minister for Immigration and Border Protection & Anor [2018], finding the 2002 instrument of appointment (the Appointment) to be invalid.
The validity of the Appointment was challenged on two grounds:

• that the Appointment is void for uncertainty as the result of the omission of a latitudinal coordinate in the description of the area of the proclaimed port; and

• that the Appointment was beyond the power of the Minister under paragraph 5(5)(a) of the Migration Act 1958 (the Act) to appoint a "port" within the Territory of Ashmore and Cartier Islands as a proclaimed port.

The Court rejected the first ground.
In relation to the second ground however, the applicants were successful in contending that no actual port exists within the Territory of Ashmore and Cartier Islands. The applicants were also successful in arguing that due to the invalidity, they were not 'unauthorised maritime arrivals' (UMAs) and consequently were not 'fast track applicants' within the meaning of the Act.
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 these categories 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
No persons will suffer a detriment if the validity of the Appointment is confirmed by passage of the Bill. Enactment of the Bill will merely confirm that the actions taken in relation to persons who entered the waters of the proclaimed port, by reference to their status as UMAs, were valid and effective.
The Appointment is critical to determining the status of persons as UMAs under the Act who entered Australia via this proclaimed port between 23 January 2002 and 1 June 2013. In addition, those who became UMAs by reason of having entered the proclaimed port between 13 August 2012 and 1 June 2013, also became 'fast track applicants’ under the Act.
Subject to any appeal, the successful challenge to the Appointment means that the affected persons did not enter Australia at an excised offshore place and are not therefore, UMAs under the Act. For some, this also means that they are not fast track applicants under the Act. However, the affected persons still entered Australia without a visa that was in effect, thereupon becoming unlawful non-citizens subject to immigration detention.
By reinstating the validity of the Appointment, the Bill does not impose any new obligations or detriment on affected persons. Instead, it maintains the status quo in relation to the processing of UMAs and, where relevant, fast track applicants under the Act who entered Australia via this proclaimed port between 23 January 2002 and 1 June 2013.
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):
Government policy around the management of UMAs has been highly effective in responding to the enduring threat of maritime people smuggling and protecting the integrity of Australia’s migration framework. The government considers it unacceptable for individuals to seek to rely on minor and inadvertent omissions in the wording of the Appointment in an attempt to undermine this policy. In order to maintain public confidence in our border protection arrangements, it is imperative that we uphold the original intent of the Appointment. For these reasons it is appropriate for the Bill to apply to persons who have instituted proceedings but where judgment has not been delivered before the provisions commence.
With respect to the Committee’s comment regarding an adverse costs order, we consider it highly unlikely that such an order would result from a court’s rejection of an attack on the validity of the Appointment alone. In practice, this issue is likely to be one of several grounds raised in proceedings so in the event that an adverse costs order is made, there are likely to be a number of other factors which would contribute to the making of such an order.

Committee comment

2.14 The committee thanks the minister for this response. The committee notes the minister's advice that, by validating the 2002 appointment of a proclaimed port in the Ashmore and Cartier Islands, the bill does not impose any new obligations or detriment on affected persons. The committee also notes the advice that the bill will merely confirm that actions taken in relation to persons who entered the waters of the proclaimed port, by reference to their status as unauthorised maritime arrivals (UMAs), were valid and effective.

2.15 However, the committee notes that the minister's response does not address the committee's question as to the number of persons who entered the relevant waters since 23 January 2002. The response also fails to articulate how many such persons, if any, are yet to have asylum applications finally determined, have been granted a protection visa, are in offshore detention, or have had asylum applications refused but remain in Australia.

2.16 The committee also notes that media reports indicate that over 1600 asylum cases may need to be revisited owing to the finding by the Federal Circuit Court that the 2002 appointment was invalid.^[10] Retrospectively validating the 2002 appointment would substantially limit affected persons' ability to challenge their classification as UMAs. As noted in the committee's initial comments, whether or not a person is classified as a UMA is of great significance to how their rights and obligations under the migration law are to be determined and how their applications may be processed. Consequently, it is not apparent to the committee that the bill would not detrimentally affect any persons.

2.17 The committee further notes the minister's advice that the government considers it unacceptable for individuals to seek to rely on 'minor and inadvertent omissions' in the wording of the 2002 appointment to undermine government migration policy, and that it is necessary to uphold the original intent of the appointment in order to maintain confidence in Australia's border protection arrangements.

2.18 While noting this advice, the committee reiterates that a fundamental principle of the rule of law is that the governors, like the governed, are bound by the law and cannot exceed their legal authority. In this respect, and irrespective of any underpinning policy intent, when the (then) minister made the 2002 appointment he exceeded his powers under the migration law. Consequently, the appointment was invalidly made. This has been confirmed by the Federal Circuit Court.^[11] Retrospectively altering the 2002 appointment, even if only to reflect its original policy intent, has the potential to undermine the rule of law and, as outlined above, may cause detriment to a number of affected persons.

2.19 The committee draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of retrospectively validating:

• the 2002 appointment of the Territory of Ashmore and Cartier Islands as a proclaimed port; and

• all things done under the Migration Act at any time prior to the commencement of the bill that would be invalid or ineffective directly or indirectly because of the terms of the 2002 appointment.

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

[8] Senate Scrutiny of Bills Committee, Scrutiny Digest No. 7 of 2018, at pp. 1-4.

[9] The minister responded to the committee's comments in a letter 19 July 2018. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest No. 8 of 2018 available at: www.aph.gov.au/senate_scrutiny_digest

[10] See e.g. Doherty, Ben, Australia sailed asylum seekers to remote reef to prevent them accessing mainland, in The Guardian (24 July 2018).

[11] See DBD16 v Minister for Immigration & Anor [2018] FCCA 1801.