David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I table a revised explanatory memorandum relating to the bill and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

This Bill amends the Migration Act 1958 in accordance with the report of the Expert Panel on Asylum Seekers, which recommended that arrival anywhere in Australia by irregular maritime means should provide individuals with the same status. That is, arrival anywhere in Australia in these circumstances should make the person liable to regional processing arrangements.

At the forefront of the Panel's reasoning in making this recommendation was the need to reduce any incentive for people to take even greater risks with their lives by seeking to reach the Australian mainland to avoid being subject to regional processing arrangements.

Under the existing excision framework, unauthorised arrivals in excised offshore places are prevented from making valid applications for visas in Australia and are liable to be taken to a designated country for regional processing. Unauthorised arrivals who arrive at the Australian mainland are not currently subject to these provisions.

As the Panel emphasised – and the Government has reiterated – the recommendations in the report are an integrated set of proposals. To be effective in discouraging asylum seekers from risking their lives, the incentives and disincentives the Panel recommended must be pursued in a comprehensive manner. The legislative amendments proposed in this Bill are part of this integrated approach.

Under the amendments proposed, all non-citizens who arrive in Australia by irregular maritime means – to be known as "unauthorised maritime arrivals" – will be subject to the regional processing framework inserted by the Regional Processing Act in August this year unless they are specifically excluded.

Certain persons not intended to be subject to regional processing arrangements will be excluded from these arrangements. These excluded classes of persons include certain New Zealand citizens and permanent residents of Norfolk Island who do not need visas to travel to Australia.

The Bill also provides the power to prescribe further classes of excluded persons in the Migration Regulations in the future should it become clear that further classes need to be excluded from regional processing arrangements.

Excluded persons will not be subject to regional processing. Nor will they be subject to a statutory bar on applying for a visa.

In addition, the important safety valve provided under section 198AE of the Act remains. This provides the Minister with a personal, non-compellable power to determine that an unauthorised maritime arrival should not be taken to a designated regional processing country if the Minister thinks it is in the public interest to exempt them. This section will continue to provide flexibility to exempt individuals or classes from regional processing. Unlike excluded classes, exempt individuals or classes will still be subject to a statutory bar on applying for a visa unless the Minister also decides to lift this bar.

Sound border management requires such flexibility, in recognition of the range of complex circumstances that can apply to a person's arrival in Australia by sea without a visa. For example, a person who has been rescued at sea, and who has inadvertently engaged these provisions by arriving in Australia without a visa, could be such a case. The person may have had no intention to come to Australia, and their circumstances may warrant a more flexible approach.

The Bill also amends the definition of a 'transitory person' in the Act to provide flexibility to transfer persons back from a regional processing country to Australia for a temporary purpose. This amendment will allow the Government to bring people assessed to be refugees – but who have not yet met the 'no advantage' principle – back to Australia for a temporary purpose such as medical treatment, and then return them to a designated regional processing country pending provision of a durable outcome.

The application of the 'no advantage' principle is to ensure that no benefit is gained through circumventing regular migration pathways. This, combined with an increased refugee intake from offshore, is designed to remove the attractiveness of attempting an expensive and dangerous irregular boat journey to Australia.

The Bill also repeals section 198C of the Act. The current effect of this section is that transitory persons may request the Refugee Review Tribunal to assess whether they are a refugee if they are bought to Australia under section 198B of the Act and remain here for a continuous period of six months. This provision encourages transitory persons to attempt to extend their stay in Australia in order to gain access to the Refugee Review Tribunal and the courts and therefore should be amended.

This Bill also makes amendments to section 189 of the Act to provide for discretionary immigration detention of Papua New Guinea (PNG) citizens who are unlawful non-citizens and are in a protected area of the Torres Strait.

Prior to the commencement of the Regional Processing Act in August 2012, the immigration detention of all unlawful non-citizens in an excised offshore place was discretionary. However, the Regional Processing Act amended section 189 of the Act to change the immigration detention of these persons to mandatory. The exception is allowed inhabitants of the Protected Zone in the Torres Strait who are unlawful non-citizens. The Act recognises the special status of PNG citizens who are 'allowed inhabitants of the Protected Zone' under the Torres Strait Treaty by including provision to permit their visa free travel within a protected area in certain circumstances. However, there are other PNG citizens who are not 'allowed inhabitants' of the Protected Zone, and are not provided for under the Treaty.

Due to the complex relationships, long standing cultural connections and way of life of the communities in and adjacent to a protected area, the Bill extends discretionary immigration detention provided for in section 189 of the Act to persons in a protected area who are citizens of PNG and are unlawful non-citizens. This provision will only apply to PNG citizens while they are in a protected area of the Torres Strait.

The Bill also includes a clarifying amendment to section 198AE of the Act to provide an express power for the Minister to vary or revoke a determination that a person is not subject to regional processing, if it is in the public interest to do so. The Government's view is that this power is already implied but, for avoidance of legal doubt, it is preferable to make this power explicit.

Finally, the Bill provides for consequential amendments arising from the amendments relating to unauthorised maritime arrivals and transitory persons.

This Bill marks an important further step in giving full effect to the recommendations of the Expert Panel on Asylum Seekers. It removes the incentive for asylum seekers to take greater risks with their lives to reach the Australian mainland.

I commend the Bill to the Senate.

Debate adjourned.