Migration and Maritime Powers Amendment Bill (No. 1) 2015

2013-2014-2015

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Migration and Maritime Powers

Amendment Bill (No. 1) 2015

No. , 2015 (Immigration and Border Protection)

A Bill for an Act to amend the Migration Act 1958

and the Maritime Powers Act 2013, and for other

purposes

No. ,

2015

Migration and Maritime Powers Amendment Bill (No. 1) 2015 i

Contents

1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedules ........................................................................................... 2

Schedule 1—Amendments relating to removal 3

Migration Act 1958 3

Schedule 2—Amendments relating to the cancellation of visas

on character grounds 5


Schedule 3—Other amendments of the Migration Act 1958 10

Part 1—Amendments commencing on 25 September 2014 10


Part 2—Amendments commencing on the day after Royal

Assent 11


Schedule 4—Amendments relating to maritime powers 13

Maritime Powers Act 2013 13

No. ,

2015

Migration and Maritime Powers Amendment Bill (No. 1) 2015 1

A Bill for an Act to amend the Migration Act 1958

and the Maritime Powers Act 2013, and for other

purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Migration and Maritime Powers

Amendment Act (No. 1) 2015.

2 Commencement

(1) 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.

2 Migration and Maritime Powers Amendment Bill (No. 1) 2015 No. , 2015

Commencement information

Column 1 Column 2 Column 3

Provisions Commencement Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedules 1

and 2

The day after this Act receives the Royal

Assent.

3. Schedule 3,

Part 1

25 September 2014. 25 September

2014

4. Schedule 3,

Part 2

The day after this Act receives the Royal

Assent.

5. Schedule 4 The day after this Act receives the Royal

Assent.

Note: This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) 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.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Amendments relating to removal Schedule 1

No. ,

2015


Schedule 1—Amendments relating to removal

Migration Act 1958

1 Paragraph 42(2A)(ca)

Before “the non-citizen”, insert “if”.

2 Paragraph 42(2A)(d)

Repeal the paragraph, substitute:

(d) if:

(i) an attempt to remove the non-citizen under section 198

to another country was made but the removal was not

completed; and

(ii) the non-citizen travels to Australia as a direct result of

the removal not being completed; and

(iii) the non-citizen is a person who would, if in the

migration zone, be an unlawful non-citizen; or

(da) if:

(i) the non-citizen has been removed under section 198 to

another country but the non-citizen does not enter the

other country; and

(ii) the non-citizen travels to Australia as a direct result of

not entering the other country; and

(iii) the non-citizen is a person who would, if in the

migration zone, be an unlawful non-citizen; or

3 After subsection 48(1A)

Insert:

(1B) If:

(a) an attempt was made to remove a non-citizen from the

migration zone under section 198 but the removal was not

completed; and

(b) the non-citizen is again in the migration zone as a result of

travel to Australia that is covered by paragraph 42(2A)(d);

then, for the purposes of this section (which applies only in respect

of applications made while a non-citizen is in the migration zone),

Schedule 1 Amendments relating to removal


the non-citizen is taken to have been continuously in the migration

zone despite the attempted removal.

Note: Paragraph 42(2A)(d) relates to the travel of a non-citizen to Australia

after an attempt to remove the non-citizen has been made under

section 198.

4 Paragraph 48(2)(b)

Omit “paragraph 42(2A)(d)”, substitute “paragraph 42(2A)(da)”.

5 Subsection 48(2) (note)

Repeal the note, substitute:

Note: Paragraphs 42(2A)(da) and (e) relate to the travel of a non-citizen to

Australia after the non-citizen has been removed from Australia under

section 198.

6 After subsection 48A(1AA)

Insert:

(1AB) If:

(a) an attempt was made to remove a non-citizen from the

migration zone under section 198 but the removal was not

completed; and

(b) the non-citizen is again in the migration zone as a result of

travel to Australia that is covered by paragraph 42(2A)(d);

then, for the purposes of this section, the non-citizen is taken to

have been continuously in the migration zone despite the attempted

removal.

Note: Paragraph 42(2A)(d) relates to the travel of a non-citizen to Australia

after an attempt to remove the non-citizen has been made under

section 198.

7 Paragraph 48A(1A)(b)

Omit “paragraph 42(2A)(d)”, substitute “paragraph 42(2A)(da)”.

8 Subsection 48A(1A) (note)


Note: Paragraphs 42(2A)(da) and (e) relate to the travel of a non-citizen to

Australia after the non-citizen has been removed from Australia under

section 198.

Amendments relating to the cancellation of visas on character grounds Schedule 2

No. ,

2015


Schedule 2—Amendments relating to the cancellation of visas on character grounds

Migration Act 1958

1 Paragraph 5C(1)(b)

Repeal the paragraph, substitute:

(b) the non-citizen has been convicted of an offence that was

committed:

(i) while the non-citizen was in immigration detention; or

(ii) during an escape by the non-citizen from immigration

detention; or

(iii) after the non-citizen escaped from immigration

detention but before the non-citizen was taken into

immigration detention again; or

(ba) the non-citizen has been convicted of an offence against

section 197A; or

(bb) the Minister reasonably suspects:

(i) that the non-citizen has been or is a member of a group

or organisation, or has had or has an association with a

group, organisation or person; and

(ii) that the group, organisation or person has been or is

involved in criminal conduct; or

(bc) the Minister reasonably suspects that the non-citizen has been

or is involved in conduct constituting one or more of the

following:

(i) an offence under one or more of sections 233A to 234A

(people smuggling);

(ii) an offence of trafficking in persons;

(iii) the crime of genocide, a crime against humanity, a war

crime, a crime involving torture or slavery or a crime

that is otherwise of serious international concern;

whether or not the non-citizen, or another person, has been

convicted of an offence constituted by the conduct; or

Schedule 2 Amendments relating to the cancellation of visas on character grounds


2 Paragraph 5C(1)(d)

Omit “significant”.

3 At the end of subsection 5C(1)

Add:

; or (e) a court in Australia or a foreign country has:

(i) convicted the non-citizen of one or more sexually based

offences involving a child; or

(ii) found the non-citizen guilty of such an offence, or found

a charge against the non-citizen proved for such an

offence, even if the non-citizen was discharged without

a conviction; or

(f) the non-citizen has, in Australia or a foreign country, been

charged with or indicted for one or more of the following:

(i) the crime of genocide;

(ii) a crime against humanity;

(iii) a war crime;

(iv) a crime involving torture or slavery;

(v) a crime that is otherwise of serious international

concern; or

(g) the non-citizen has been assessed by the Australian Security

Intelligence Organisation to be directly or indirectly a risk to

security (within the meaning of section 4 of the Australian

Security Intelligence Organisation Act 1979); or

(h) an Interpol notice in relation to the non-citizen, from which it

is reasonable to infer that the non-citizen would present a risk

to the Australian community or a segment of that community,

is in force.

4 At the end of subsection 5C(2)

Add:

; or (f) the non-citizen has:

(i) been found by a court to not be fit to plead, in relation to

an offence; and

(ii) the court has nonetheless found that on the evidence

available the non-citizen committed the offence; and

(iii) as a result, the non-citizen has been detained in a facility

or institution.


No. ,

2015


5 Paragraph 118(f)

Omit “or 501B”, substitute “, 501B or 501BA”.

6 Paragraph 191(2)(d)

Omit “or 501A”, substitute “, 501A or 501BA”.

7 Subsections 192(1) and (4)

Omit “or 501A”, substitute “, 501A or 501BA”.

8 Subparagraph 193(1)(a)(iv)


9 Subsection 196(4)

After “section 501”, insert “, 501A, 501B, 501BA or 501F”.

10 Paragraph 198(2A)(c)

After “section 501C”, insert “or 501CA”.

11 After subsection 198(2A)

Insert:

(2B) An officer must remove as soon as reasonably practicable an

unlawful non-citizen if:

(a) a delegate of the Minister has cancelled a visa of the

non-citizen under subsection 501(3A); and

(b) since the delegate’s decision, the non-citizen has not made a

valid application for a substantive visa that can be granted

when the non-citizen is in the migration zone; and

(c) in a case where the non-citizen has been invited, in

accordance with section 501CA, to make representations to

the Minister about revocation of the delegate’s decision—

either:

(i) the non-citizen has not made representations in

accordance with the invitation and the period for

making representations has ended; or

(ii) the non-citizen has made representations in accordance

with the invitation and the Minister has decided not to

revoke the delegate’s decision.

Schedule 2 Amendments relating to the cancellation of visas on character grounds


Note: The only visa that the non-citizen could apply for is a protection visa

or a visa specified in the regulations for the purposes of

subsection 501E(2).

12 Paragraphs 476(2)(c) and 476A(1)(c)

Omit “or 501C”, substitute “, 501BA, 501C or 501CA”.

13 Subsections 500(6A) and (6B)

After “this Act”, insert “, or a decision under subsection 501CA(4) of

this Act not to revoke a decision to cancel a visa,”.

14 Subsections 500(6C) and (6D)

After “section 501”, insert “, or a decision under subsection 501CA(4)

not to revoke a decision to cancel a visa,”.

15 Paragraphs 500(6F)(a) and (6G)(a)

After “this Act”, insert “or a decision under subsection 501CA(4) of this

Act not to revoke a decision to cancel a visa”.

16 Paragraphs 500(6H)(a) and (6J)(a)

After “section 501”, insert “or a decision under subsection 501CA(4)

not to revoke a decision to cancel a visa”.

17 Paragraphs 500(6K)(a) and (6L)(a)

After “this Act”, insert “or a decision under subsection 501CA(4) of this

Act not to revoke a decision to cancel a visa”.

18 Paragraph 501E(1)(a)


19 Subsection 501F(1)


20 Paragraph 503(1)(b)


21 Subsections 503A(1) and (2) and 503B(1)

Omit “or 501C” (wherever occurring), substitute “, 501BA, 501C or

501CA”.


No. ,

2015


22 Application of amendments

(1) The amendments made by items 8, 18 and 19 of this Schedule apply in

relation to a decision under section 501BA of the Migration Act 1958

made after the commencement of this item.

(2) The amendment made by item 10 of this Schedule applies in relation to

an invitation under section 501CA of the Migration Act 1958 given

before or after the commencement of this item.

(3) Subsection 198(2B) of the Migration Act 1958, as inserted by item 11

of this Schedule, applies in relation to:

(a) a decision under subsection 501(3A) of that Act made before

or after the commencement of this item; and

(b) an invitation under section 501CA of that Act given before or

after that commencement.


a decision under section 501BA or 501CA of the Migration Act 1958

made before or after the commencement of this item.

(5) The amendments made by items 13 to 17 of this Schedule apply in

relation to a decision or application made after the commencement of

this item.


a decision under section 501BA of the Migration Act 1958 made before

or after the commencement of this item.


information communicated before or after the commencement of this

item.

Schedule 3 Other amendments of the Migration Act 1958

Part 1 Amendments commencing on 25 September 2014


Schedule 3—Other amendments of the Migration Act 1958

Part 1—Amendments commencing on 25 September 2014

Migration Act 1958

1 Subsection 48A(1C)

After “Subsections (1)”, insert “, (1AA)”.

2 Application—amendment of subsection 48A(1C) of the Migration Act 1958

For the purposes of the application of section 48A of the Migration Act

1958 after the commencement of this item, a non-citizen is prevented

from making an application for a protection visa after that

commencement, because of a refusal referred to in subsection 48(1AA)

of that Act, whether the refusal happened before or after that

commencement.

Other amendments of the Migration Act 1958 Schedule 3

Amendments commencing on the day after Royal Assent Part 2

No. ,

2015


Part 2—Amendments commencing on the day after Royal Assent

Migration Act 1958

3 Subsection 5(1) (note at the end of the definition of fast track decision)


Note: A fast track decision that is a fast track reviewable decision is

reviewable by the Immigration Assessment Authority under Part 7AA.

Some decisions made in the circumstances mentioned in paragraph (a)

or (b) of this definition are reviewable by the Administrative Appeals

Tribunal (see section 500).

4 Subsection 38B(5)

Omit “subsection (4)” (wherever occurring), substitute “subsection (3)”.

5 Subsection 68(4)

Omit “effect again”, substitute “effect for the first time or a subsequent

time”.

6 After section 82

Insert:

82A Cessation of visas that are not in effect

If:

(a) a non-citizen holds a visa at a particular time; and

(b) the visa is not in effect at that time; and

(c) the visa would, if it were in effect at that time, cease to be in

effect under section 82 (other than subsection 82(8)), 173 or

174;

then the visa is taken to have ceased to be in effect under that

section at that time.

Note: The visa period for a visa begins when the visa is granted and a

non-citizen holds the visa until the visa period ends. However, some

visas (such as bridging visas) do not come into effect at the time of

Schedule 3 Other amendments of the Migration Act 1958

Part 2 Amendments commencing on the day after Royal Assent


grant (see section 68). If this section applies then the visa period for a

visa that is held by a non-citizen, but that is not in effect, ends (except

if the visa is taken to have ceased to be in effect under

subsection 82(3)).

7 At the end of subsection 173(1)

Add:

Note: For visas that are not in effect, see section 82A.

8 At the end of section 174

Add:

Note: For visas that are not in effect, see section 82A.

9 Subsection 500(1) (note)

Repeal the note.

10 After subsection 500(3)

Insert:

(3A) Subsection (3) does not apply in relation to an application under

subsection (1) for review of:

(a) a decision of a delegate of the Minister under section 501 to

refuse to grant a protection visa to a fast track applicant; or

(b) a decision (other than a decision to which a certificate under

section 502 applies) to refuse under section 65 to grant a

protection visa to a fast track applicant relying on a provision

mentioned in paragraph (1)(c).

11 Application—subsection 500(3A) of the Migration Act 1958

Subsection 500(3A) of the Migration Act 1958, as inserted by this Part,

applies in relation to a decision made after the commencement of this

item.

Amendments relating to maritime powers Schedule 4

No. ,

2015


Schedule 4—Amendments relating to maritime powers

Maritime Powers Act 2013

1 Section 40

Before “This Act”, insert “(1)”.

2 At the end of section 40

Add:

(2) Subsection (1) does not apply to an exercise of powers if:

(a) the exercise of powers:

(i) is part of a continuous exercise of powers that

commenced in accordance with any applicable

requirements of this Part (disregarding this subsection);

and

(ii) occurs in the course of passage of a vessel or aircraft

through or above waters that are part of a country; and

(b) a relevant maritime officer, or the Minister, considers that the

passage is in accordance with the Convention.

Note 1: The definition of country in section 8 includes the territorial sea and

any archipelagic waters of the country.

Note 2: The fact that the Minister considers that passage of a particular vessel

or aircraft through or above waters that are part of a country is in

accordance with the Convention may (for example) be apparent from

the terms of a direction given under section 75F.

(3) An exercise of powers in reliance (or purported reliance) on

subsection (2) is not invalid because of a defective consideration of

the Convention.

3 Application—amendments of the Maritime Powers Act 2013

(1) The amendments of the Maritime Powers Act 2013 made by this

Schedule apply in relation to the exercise of powers under that Act after

the commencement of this Schedule, even if:

Schedule 4 Amendments relating to maritime powers


(a) an authorisation for the exercise of the powers was given

under Division 2 of Part 2 of that Act before the

commencement of this Schedule; or

(b) the powers are exercised:

(i) in the course of a continuous exercise of powers that

started before the commencement of this Schedule; or

(ii) without limiting subparagraph (i)—in relation to a

person, vessel or aircraft who or that started to be

detained, or otherwise held, under Division 7 or 8 of

Part 3 of the Maritime Powers Act 2013 before that

commencement; or

(iii) in any other situation in relation to which powers were

(or could have been) exercised under that Act before

that commencement.

(2) The amendments of the Maritime Powers Act 2013 made by this

Schedule do not, by implication, affect the interpretation of that Act, as

in force before the commencement of this Schedule, in relation to the

exercise of powers under that Act before that commencement.

Documents

Migration and Maritime Powers Amendment Bill (No. 1) 2015