Andrew McLachlan (SA, Deputy-President) | Hansard source

The question is that the government amendments on SV105 be agreed to.

Government's circulated amendments to the Migration Amendment (Removal and Other Measures) Bill 2024

(1) Clause 2, page 1 (line 7) to page 2 (line 6), omit the clause, substitute:

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.

Note: This table relates only to the provisions of this Act as originally enacted.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

(2) Schedule 1, page 3 (line 1), omit "Main amendments", substitute "Removal and removal concern countries".

(3) Schedule 1, item 3, page 4 (lines 8 to 10), omit paragraph 199B(1)(a), substitute:

(a) an unlawful non-citizen:

(i) who is required to be removed from Australia under section 198 as soon as reasonably practicable; or

(ii) who would be required to be so removed except for the operation of subsection 197E(5);

(4) Schedule 1, item 3, page 4 (after line 19), at the end of subsection 199B(1), add:

Note: For subparagraph (a)(ii), subsection 197E(5) temporarily suspends the duty to remove an unlawful non-citizen under section 198 if the Minister decides to consider whether to exercise a Ministerial intervention power in relation to the non-citizen. However, the suspension does not prevent other action being taken, or things being done, to facilitate or otherwise prepare for the removal of the non-citizen under section 198 (see subsection 197E(10)).

(5) Schedule 1, item 3, page 5 (line 36), omit "Note", substitute "Note 1".

(6) Schedule 1, item 3, page 5 (after line 37), at the end of subsection 199C(2), add:

Note 2: The Minister may give a direction under subsection (1) or (2) to a removal pathway non-citizen during the period that the non-citizen's removal is not required or authorised under section 198 as a result of the Minister considering whether to exercise a Ministerial intervention power in relation to the non-citizen (see section 197E).

(7) Schedule 1, item 3, page 9 (after line 25), after subsection 199F(2), insert:

(2A) Before the Minister designates a country under subsection (1), the Minister must have regard to the matters (if any) prescribed by the regulations for the purposes of this subsection.

(2B) Neither of the following limits, or otherwise affects, the matters the Minister may consider for the purposes of deciding under subsection (1) whether it is in the national interest to designate a country to be a removal concern country:

(a) the requirement under subsection (2A) that the Minister must have regard to matters (if any) that are prescribed by the regulations for the purposes of that subsection;

(b) the prescription of particular matters by the regulations for the purposes of subsection (2A).

(8) Schedule 1, item 3, page 10 (after line 13), after subsection 199F(8), insert:

Automatic repeal

(8A) Unless revoked earlier, the designation is repealed at the end of 3 years after the day on which the designation commences.

(9) Schedule 2, page 13 (line 1), omit "Other amendments", substitute "Measures relating to bridging visas and protection findings".

(10) Page 14 (after line 16), at the end of the Bill, add:

Schedule 3 — Ministerial intervention

Migration Act 1958

1 Subsection 5(1)

Insert:

Ministerial intervention power means a power exercisable personally by the Minister under any one or more of the following provisions:

(a) subsection 46A(2) (about visa applications by unauthorised maritime arrivals);

(b) subsection 46B(2) (about visa applications by transitory persons);

(c) subsection 48B(1) (about further applications for a protection visa after refusal or cancellation);

(d) paragraph 72(1)(c) (about bridging visas for eligible non-citizens);

(e) subsection 91F(1) (about non-citizens for whom there is a safe third country);

(f) subsection 91L(1) (about holders of temporary safe haven visas);

(g) subsection 137N(1) (about revocation of visa cancellation on the Minister's initiative);

(h) subsection 195A(2) (about grant of visas to detainees);

(i) subsection 198AE(1) (about Minister's power to determine that section 198AD does not apply);

(j) subsection 351(1) (about Minister's power to substitute certain ART decisions);

(k) subsection 501J(1) (about Minister's power to substitute ART protection visa decision).

2 After section 197D

Insert:

197E Relevance of Ministerial intervention powers to removal of unlawful non-citizens under section 198

(1) For the purposes of section 198, it is irrelevant whether the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to an unlawful non-citizen.

(2) To avoid doubt:

(a) an officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to the unlawful non-citizen; and

(b) the fact that the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to an unlawful non-citizen is irrelevant to whether or not the removal of the unlawful non-citizen is reasonably practicable for the purposes of section 198.

(3) Subsection (1) applies whether a request is made by:

(a) the unlawful non-citizen; or

(b) an officer of the Department; or

(c) any other person.

(4) Subsection (1) applies whether or not a request has been drawn to the Minister's attention.

Temporary suspension of duty to remove unlawful non-citizens

(5) Despite subsection (1), if the Minister decides to consider whether to exercise a Ministerial intervention power (whether on request or otherwise) in relation to an unlawful non-citizen, section 198 does not require or authorise an officer to remove the non-citizen from Australia during the period covered by subsection (6).

Note: Despite this subsection, an unlawful non-citizen who asks the Minister, in writing, to be removed, must be removed under subsection 198(1) (see subsection (11) of this section).

Period during which duty to remove is suspended

(6) For the purposes of subsection (5), the period is 6 months starting on the day (the start day) the Minister decides to consider whether to exercise the Ministerial intervention power in relation to the unlawful non-citizen, unless:

(a) before the end of that 6 month period, the unlawful non-citizen has agreed, in writing, to a day occurring after the end of that 6 month period nominated, in writing, by the Minister—in which case the period ends on the agreed day (subject to paragraph (b)); or

(b) the period ends earlier under subsection (7).

(7) For the purposes of paragraph (6)(b), the period ends at the earliest of the following times:

(a) the end of the day the Minister decides not to exercise the Ministerial intervention power in relation to the unlawful non-citizen;

(b) the end of the day the Minister decides to stop considering whether to exercise the power in relation to the non-citizen;

(c) if the Minister exercises the power in relation to the non-citizen, and subsection (8) specifies a day—the end of that day;

(d) if the Minister exercises the power in relation to the non-citizen but the exercise does not result in the non-citizen being able to make a visa application—the end of the day that the Minister exercises the power.

(8) For the purposes of paragraph (7)(c), this subsection specifies the following days:

(a) in a case where, as a consequence of the exercise of the Ministerial intervention power, the unlawful non-citizen may make a visa application within a specified period—the last day of the period in which the non-citizen could make the visa application;

(b) in any other case where, as a consequence of the exercise of the power, the non-citizen may make a visa application—whichever of the following days occurs first:

(i) the last day of the period determined by the Minister in which the non-citizen could make the visa application;

(ii) the day that is 3 months after the Minister exercises the power.

Working out start day for certain requests

(9) If the Minister decides to consider whether to exercise a Ministerial intervention power in relation to a particular category of requests for such exercise by unlawful non-citizens, then, for the purposes of subsection (6), the start day, in relation to a particular unlawful non-citizen, is the day that the non-citizen's request is received, in writing, by the Minister.

Scope of suspension of duty to remove unlawful non-citizen

(10) To avoid doubt, subsection (5) of this section:

(a) prevents the removal of an unlawful non-citizen during the period covered by subsection (6); but

(b) does not prevent any other action being taken, or thing being done, during that period to facilitate or otherwise prepare for the eventual removal of the non-citizen after the period ends.

Example: The Minister could give the unlawful non-citizen a removal pathway direction under section 199C during the period covered by subsection (6).

Unlawful non-citizen must be removed at non-citizen's request

(11) Despite subsection (5), an officer is required and authorised to remove an unlawful non-citizen who asks the Minister, in writing, to be so removed under subsection 198(1).

3 At the end of subsection 198AD(2)

Add:

Note: For how this subsection operates if the Minister has been requested to exercise, or is considering exercising, a Ministerial intervention power in relation to an unauthorised maritime arrival, see section 198AHC.

4 Before section 198AI

Insert:

198AHC Relevance of Ministerial intervention powers to transfer of unauthorised maritime arrivals

(1) For the purposes of subsection 198AD(2), it is irrelevant whether the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to an unauthorised maritime arrival.

(2) To avoid doubt:

(a) an officer's duty to take, as soon as reasonably practicable, an unauthorised maritime arrival from Australia to a regional processing country under subsection 198AD(2) arises irrespective of whether the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to the unauthorised maritime arrival; and

(b) the fact that the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to an unauthorised maritime arrival is irrelevant to whether or not the taking of the unauthorised maritime arrival from Australia to a regional processing country is reasonably practicable for the purposes of subsection 198AD(2).

(3) Subsection (1) applies whether a request is made by:

(a) the unauthorised maritime arrival; or

(b) an officer of the Department; or

(c) any other person.

(4) Subsection (1) applies whether or not a request has been drawn to the Minister's attention.

Temporary suspension of duty to transfer unauthorised maritime arrivals

(5) Despite subsection (1), if the Minister decides to consider whether to exercise a Ministerial intervention power (whether on request or otherwise) in relation to an unauthorised maritime arrival, subsection 198AD(2) does not require or authorise an officer to take the unauthorised maritime arrival from Australia to a regional processing country during the period covered by subsection (6).

Note: Despite this subsection, an unauthorised maritime arrival who asks the Minister, in writing, to be taken from Australia to a regional processing country must be taken to that country (see subsection (10)).

Period during which duty to transfer is suspended

(6) For the purposes of subsection (5), the period is 6 months starting on the day (the start day) the Minister decides to consider whether to exercise the Ministerial intervention power in relation to the unauthorised maritime arrival, unless:

(a) before the end of that 6 month period, the unauthorised maritime arrival has agreed, in writing, to a day occurring after the end of that 6 month period nominated, in writing, by the Minister—in which case the period ends on the agreed day (subject to paragraph (b)); or

(b) the period ends earlier under subsection (7).

(7) For the purposes of paragraph (6)(b), the period ends at the earliest of the following times:

(a) the end of the day the Minister decides not to exercise the power in relation to the unauthorised maritime arrival;

(b) the end of the day the Minister decides to stop considering whether to exercise the power in relation to the unauthorised maritime arrival;

(c) if the Minister exercises the power in relation to the unauthorised maritime arrival, and subsection (8) specifies a day—the end of that day;

(d) if the Minister exercises the power in relation to the unauthorised maritime arrival but the exercise does not result in the unauthorised maritime arrival being able to make a visa application—the end of the day that the Minister exercises the power.

(8) For the purposes of paragraph (7)(c), this subsection specifies the following days:

(a) in a case where, as a consequence of the exercise of the Ministerial intervention power, the unauthorised maritime arrival may make a visa application within a specified period—the last day of the period in which the unauthorised maritime arrival could make the visa application;

(b) in any other case where, as a consequence of the exercise of the power, the unauthorised maritime arrival may make a visa application—whichever of the following days occurs first:

(i) the last day of the period determined by the Minister in which the unauthorised maritime arrival could make the visa application;

(ii) the day that is 3 months after the Minister exercises the power.

Scope of suspension of duty to transfer unauthorised maritime arrival

(9) To avoid doubt, subsection (5) of this section:

(a) prevents an unauthorised maritime arrival being taken from Australia to a regional processing country during the period covered by subsection (6); but

(b) does not prevent any other action being taken, or thing being done, during that period to facilitate or otherwise prepare for the unauthorised maritime arrival being taken from Australia to a regional processing country after the period ends.

Unauthorised maritime arrival may request transfer to regional processing country

(10) Despite subsection (5), if an unauthorised maritime arrival to whom section 198AD applies asks the Minister, in writing, to be taken from Australia to a regional processing country under section 198AD, the unauthorised maritime arrival must be taken, under that section, to that country.

5 At the end of Division 9 of Part 2

Add:

206A Relevance of Ministerial intervention powers to deportation

(1) For the purposes of:

(a) determining whether section 200 applies to a non-citizen; or

(b) executing a deportation order in relation to a non-citizen under subsection 206(1);

it is irrelevant whether the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to the non-citizen.

(2) Subsection (1) applies whether a request is made by:

(a) the non-citizen; or

(b) an officer of the Department; or

(c) any other person.

(3) Subsection (1) applies whether or not a request has been drawn to the Minister's attention.

Temporary suspension of deportation

(4) Despite subsection (1), if the Minister decides to consider whether to exercise a Ministerial intervention power (whether on request or otherwise) in relation to a non-citizen, the Minister must not order the deportation of the non-citizen, and the non-citizen must not be deported, during the period covered by subsection (5).

Period during which deportation is suspended

(5) For the purposes of subsection (4), the period is 6 months starting on the day (the start day) the Minister decides to consider whether to exercise the Ministerial intervention power in relation to the non-citizen, unless:

(a) before the end of that 6 month period, the non-citizen has agreed, in writing, to a day occurring after the end of that 6 month period nominated, in writing, by the Minister—in which case the period ends on the agreed day (subject to paragraph (b)); or

(b) the period ends earlier under subsection (6).

(6) For the purposes of paragraph (5)(b), the period ends at the earlier of the following times:

(a) the end of the day the Minister decides not to exercise the power in relation to the non-citizen;

(b) the end of the day the Minister decides to stop considering whether to exercise the power in relation to the non-citizen;

(c) if the Minister exercises the power in relation to the non-citizen, and subsection (7) specifies a day—the end of that day;

(d) if the Minister exercises the power in relation to the non-citizen but the exercise does not result in the non-citizen being able to make a visa application—the end of the day that the Minister exercises the power.

(7) For the purposes of paragraph (6)(c), this subsection specifies the following days:

(a) in a case where, as a consequence of the exercise of the Ministerial intervention power, the non-citizen may make a visa application within a specified period—the last day of the period in which the non-citizen could make the visa application;

(b) in any other case where, as a consequence of the exercise of the power, the non-citizen may make a visa application—whichever of the following days occurs first:

(i) the last day of the period determined by the Minister in which the non-citizen could make the visa application;

(ii) the day that is 3 months after the Minister exercises the power.

6 Application of amendments

(1) The amendments of the Migration Act 1958 made by this Schedule apply in relation to a request made to the Minister to exercise, or consider exercising, a Ministerial intervention power in relation to a person, whether the request is made before, on or after the commencement of this Schedule.

(2) The amendments of the Migration Act 1958 made by this Schedule apply in relation to a decision by the Minister to consider exercising a Ministerial intervention power (whether on request or otherwise) in relation to a person, whether that decision is made before, on or after the commencement of this Schedule.

(3) If:

(a) apart from this subitem, the start day mentioned in subsection 197E(6), 198AHC(6) or 206A(5) of the Migration Act 1958, as inserted by this Schedule, is a day before the day on which this item commences; and

(b) none of the days mentioned in subsections 197E(7) and (8), 198AHC(7) and (8) or 206A(6) and (7) of that Act, as the case requires, are days before the day on which this item commences;

then the start day mentioned in subsection 197E(6), 198AHC(6) or 206A(5) of that Act, as the case requires, is taken to be the day on which this item commences.

(4) For the purposes of subitems (1) to (3), the power of the Minister under subsection 417(1) of the Migration Act 1958, as in force immediately before the commencement of Schedule 2 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, is to be treated as if it were a Ministerial intervention power under the Migration Act 1958, as amended by this Schedule.

Note: Former subsection 417(1) of the Migration Act 1958 allowed the Minister to substitute, for the Tribunal's decision, a more favourable Part 7-reviewable decision.

(11) Page 14, at the end of the Bill (after proposed Schedule 3), add:

Schedule 4 — Contingent amendments

Migration Act 1958

1 Subsection 5(1) (definition of removal pathway non-citizen ) (the definition inserted by item 1 of Schedule 1 to this Act)

Repeal the definition.

2 Subsection 5(1) (paragraph (a) of the definition of removal pathway non-citizen ) (the definition inserted by item 4 of Schedule 1 to the Migration Amendment Act 2024 )

Repeal the paragraph, substitute:

(a) an unlawful non-citizen:

(i) who is required to be removed from Australia under section 198 as soon as reasonably practicable; or

(ii) who would be required to be so removed except for the operation of subsection 197E(5); or

3 Subsection 5(1) (before the note at the end of the definition of removal pathway non-citizen ) (the definition inserted by item 4 of Schedule 1 to the Migration Amendment Act 2024 )

Insert:

Note 1: For subparagraph (a)(ii), subsection 197E(5) temporarily suspends the duty to remove an unlawful non-citizen under section 198 if the Minister decides to consider whether to exercise a Ministerial intervention power in relation to the non-citizen. However, the suspension does not prevent other action being taken, or things being done, to facilitate or otherwise prepare for the removal of the non-citizen under section 198 (see subsection 197E(10)).

4 Subsection 5(1) (note to the definition of removal pathway non-citizen ) (the definition inserted by item 4 of Schedule 1 to the Migration Amendment Act 2024 )

Omit "Note", substitute "Note 2".

5 Subsection 5(1) (note to the definition of removal pathway non-citizen ) (the definition inserted by item 4 of Schedule 1 to the Migration Amendment Act 2024 )

Omit "paragraph (1)(c)", substitute "paragraph (c)".

6 Subsection 76E(6) (the subsection (6) added by item 2 of Schedule 2 to this Act)

Repeal the subsection.

7 Subsection 197D(2A) (the subsection (2A) inserted by item 6 of Schedule 2 to this Act)

Repeal the subsection.

8 Section 199B (at the end of the heading)

Add "—protection findings etc.".

9 Subsection 199B(1)

Repeal the subsection.

10 Subsection 199B(2) (heading)

Repeal the heading.

11 Subsection 199C(6)

Omit "mentioned in paragraph 199B(1)(b)", substitute "covered by paragraph (b) of the definition of that expression in subsection 5(1)".