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

I will now deal with the Migration Amendment Bill 2024 and two other bills, starting with the second reading amendments. The question is that the Pauline Hanson's One Nation amendment on sheet 2619 be agreed to.

Pauline Hanson's One Nation's circulated amendment in respect of the Migration Amendment (Removal and Other Measures) Bill 2024

At the end of the motion, add ", but the Senate notes that this bill does not:

(a) solve the problem of removing non-citizens from immigration detention and deporting them or removing non-citizens who have no valid reason for remaining in Australia; or

(b) actually enforce deportation, it only swaps detention centres for jail".

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

I will now deal with the second reading amendment circulated by Senator Thorpe on sheet 2500. The question is that the amendment on sheet 2500 be agreed to.

Senator Thorpe's amendment in respect of the Migration Amendment (Removal and Other Measures) Bill 2024

Omit all words after "That", substitute "the bill be withdrawn and the Senate notes that the bill:

(a) raises significant human rights concerns, including breaking Australia's human rights obligations as a signatory to the 1951 Refugee Convention and its 1967 Protocol to adhere to international standards in the protection of asylum seekers and refugees;

(b) was not subject to a proper consultation process, with key stakeholders and experts from lived experience refugee communities not consulted;

(c) criminalises refugees rather than looking at long-term strategies and solutions to address the underlying structural causes; and

(d) gives the Government power to impose punitive measures on countries, which could erode diplomatic ties and weakens Australia's foreign policy relations and stability globally".

Question negatived.

David Pocock (ACT, Independent) | Link to this | Hansard source

by leave—I withdraw the amendment on sheet 2495.

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

The question is that Senator David Pocock's second reading amendment on sheet 3168 be agreed to.

Senator David Pocock's amendment in respect of the Migration Amendment (Removal and Other Measures) Bill 2024

At the end of the motion, add ", but the Senate notes that:

(a) the separation of powers established by the Australian Constitution is fundamental to the protection of Australia's democracy, and

(b) the executive government cannot exercise Chapter III judicial power, including to impose punishment".

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

The question is that the Australian Greens second reading amendment on sheet 3228 be agreed to.

Australian Greens ' circulated amendment in respect of the Migration Amendment Bill 2024—

At the end of the motion, add ", but the Senate notes that:

(a) this bill will be part of a brutal package of bills that will be one of the most extreme changes in migration policy since White Australia;

(b) this bill and related bills will result in families being torn apart, communities being separated, and serious damage to Australia as a multicultural country; and

(c) this bill should have never been proposed, and Australia is a worse place because it was".

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

The question now is that these bills now be read a second time.

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

I will now deal with the Committee of the Whole amendments to the Migration Amendment (Removal and Other Measures) Bill 2024, starting with amendments circulated.

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) | Link to this | Hansard source

I table an addendum to the explanatory memorandum relating to the Migration Amendment Bill 2024. The addendum responds to matters raised by the Scrutiny of Bills Committee. And I table a supplementary explanatory memorandum relating to the government amendments to the Migration Amendment (Removal and Other Measures) Bill 2024.

Andrew McLachlan (SA, Deputy-President) | Link to this | 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)".

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

I will now deal with the amendments circulated by Pauline Hanson's One Nation. The question is that the amendments on sheet 2491, circulated by Pauline Hanson's One Nation, be agreed to.

Pauline Hanson's One Nation's circulated amendments to the Migration Amendment (Removal and Other Measures) Bill 2024

(1) Schedule 1, item 3, page 8 (line 22), omit the penalty, substitute:

Penalty: 25 years imprisonment or 900 penalty units, or both.

(2) Schedule 1, item 3, page 8 (line 24), omit "12", substitute "36".

Question negatived.

I will now deal with the amendments circulated by Senator Thorpe on sheets 2597 and 2605. The first question is that, in schedule 1, items 2 and 4 and clauses 199C(5), 199E, 199F and 199G in item 3 stand as printed.

Senator Thorpe opposed items 2 and 4 and clauses 199C(5), 199E, 199F and 199G in item 3 of the Migration Amendment (Removal and Other Measures) Bill 2024 in the following terms

SHEET 2597

(2) Schedule 1, item 3, page 6 (lines 10 to 13), subsection 199C(5) to be opposed.

(3) Schedule 1, item 3, page 8 (line 16) to page 9 (line 15), section 199E to be opposed.

_____

SHEET 2605

(2) Schedule 1, item 2, page 3 (lines 12 to 15), to be opposed.

(3) Schedule 1, item 3, page 9 (line 16) to page 12 (line 10), sections 199F and 199G to be opposed.

(4) Schedule 1, item 4, page 12 (lines 11 and 12), to be opposed.

Question agreed to.

We now come to the second question. The question now is that the remaining Senator Thorpe amendments on sheets 2597 and 2605 and the amendments on sheets 2533, 2551, 2552, 2553, 2554, 2557 and 2596, be agreed to.

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

SHEET 2533

(1) Schedule 2, items 3 to 9, page 13 (line 11) to page 14 (line 16), omit the items, substitute:

3 Paragraph 197C(3)(c)

Omit "none", substitute "neither".

4 Subparagraph 197C(3)(c)(ii)

Repeal the subparagraph.

5 Section 197D

Repeal the section.

6 Section 408 (paragraph beginning "Part 7")

Omit "or to decisions under subsection 197D(2)".

7 Subparagraph 411(1)(d)(iii)

Omit "(b);", substitute "(b).".

8 Paragraph 411(1)(e)

Repeal the paragraph.

_____

SHEET 2551

(1) Schedule 1, item 3, page 4 (line 17), omit "Australia;", substitute "Australia.".

(2) Schedule 1, item 3, page 4 (lines 18 and 19), omit paragraph 199B(1)(d).

(3) Schedule 2, item 4, page 13 (line 19), omit ", (c) or (d)", substitute "or (c)".

(4) Schedule 2, item 6, page 14 (line 8), omit ", (c) or (d)", substitute "or (c)".

_____

SHEET 2552

(1) Schedule 1, item 3, page 9 (line 1), omit "not".

_____

SHEET 2553

(1) Schedule 1, item 3, page 7 (line 18), omit paragraph 199D(2)(b), substitute:

(b) either:

(i) the application is not yet finally determined; or

(ii) a decision that has been made in respect of the application is subject to any form of judicial review or the period within which such a review could be instituted has not yet ended.

_____

SHEET 2554

(1) Schedule 1, item 3, page 4 (after line 4), insert:

199AA Rights of the child

(1) In making a decision under this Subdivision in relation to a child, the Minister must regard the best interests of the child as the paramount consideration.

(2) In determining what is in the best interests of the child, the Minister must have regard to the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4), as amended and in force for Australia from time to time.

Note: The text of the Convention could in 2024 be viewed in the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

_____

SHEET 2557

(1) Schedule 1, item 1, page 3 (line 9), omit "or (2)".

(2) Schedule 1, item 3, page 5 (after line 25), at the end of subsection 199C(1), add:

Note: For the circumstances in which the Minister must not give a direction under this subsection, see section 199D.

(3) Schedule 1, item 3, page 5 (lines 26 to 37), omit subsection 199C(2).

(4) Schedule 1, item 3, page 6 (lines 4 to 9), omit subsection 199C(4), substitute:

Period for compliance

(4) A removal pathway direction must specify the period within which the non-citizen must do a specified thing.

(4A) The period specified in the direction must be no longer than 12 months.

(5) Schedule 1, item 3, page 6 (line 25), omit ", or not do a thing".

(6) Schedule 1, item 3, page 7 (line 5), omit ", or not do,".

(7) Schedule 1, item 3, page 7 (line 28), omit ", or not do,".

(8) Schedule 1, item 3, page 8 (lines 8 to 15), omit subsection 199D(6), substitute:

Court or tribunal proceedings etc.

(6) The Minister must not give a removal pathway direction to a removal pathway non-citizen directing the non-citizen:

(a) to discontinue court or tribunal proceedings; or

(b) to take particular steps in the conduct of such proceedings; or

(c) to withdraw a visa application made under this Act.

_____

SHEET 2596

(1) Schedule 1, item 3, page 8 (lines 4 to 6), omit subsection 199D(5), substitute:

(5) The Minister must not give a removal pathway direction to a removal pathway non-citizen directing the non-citizen to do a thing in relation to a child under 18.

_____

SHEET 2597

(1) Schedule 1, item 3, page 4 (lines 20 to 30), omit subsection 199B(2), substitute:

Removal pathway non-citizens for whom protection findings have been made

(2) To avoid doubt, a removal pathway non-citizen for whom a protection finding has been made within the meaning of subsection 197C(4), (5), (6) or (7) may be given a removal pathway direction by the Minister.

Note: For the circumstances in which the Minister must not give a removal pathway direction, see section 199D.

_____

SHEET 2605

(1) Schedule 1, item 1, page 3 (lines 6 and 7), omit the definition of removal concern countryin subsection 5(1).

Question negatived.

I will now deal with the amendments circulated by Senator David Pocock on sheets 2494 and 2522. The first question is that the following stand as printed: in schedule 1, subsection 199E(2) in item 3; and, in schedule 2, items 3 to 9.

Senator David Pocock opposed subsection 199E(2) in item 3 of schedule 1, and items 3 to 9 of schedule 2, of the Migration Amendment (Removal and Other Measures) Bill 2024 in the following terms

SHEET 2494

(1) Schedule 1, item 3, page 8 (lines 23 to 25), subsection 199E(2) to be opposed.

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SHEET 2522

(1) Schedule 2, items 3 to 9, page 13 (line 11) to page 14 (line 16), to be opposed.

The question is that the following stand as printed: in schedule 1, item 3, in subsection 199E(2), and in schedule 2, items 3 to 9.

Question agreed to.

The next question is that the Senator David Pocock amendments on sheets 2492, 2493, 2497, 2520, 2521, 2602, 2603 and 2604 be agreed to.

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

SHEET 2492

(1) Schedule 1, page 12 (after line 17), at the end of the Schedule, add:

6 Sunset of amendments

The amendments of the Migration Act 1958 made by this Schedule cease to be in force at the start of the day after the end of the period of 6 months beginning on the day this Act receives the Royal Assent.

(2) Schedule 2, page 14 (after line 16), at the end of the Schedule, add:

10 Sunset of amendments

The amendments of the Migration Act 1958 made by this Schedule cease to be in force at the start of the day after the end of the period of 6 months beginning on the day this Act receives the Royal Assent.

_____

SHEET 2493

(1) Schedule 1, page 12 (after line 17), at the end of the Schedule, add:

6 Sunset of amendments

The amendments of the Migration Act 1958 made by this Schedule cease to be in force at the start of the day after the end of the period of 12 months beginning on the day this Act receives the Royal Assent.

(2) Schedule 2, page 14 (after line 16), at the end of the Schedule, add:

10 Sunset of amendments

The amendments of the Migration Act 1958 made by this Schedule cease to be in force at the start of the day after the end of the period of 12 months beginning on the day this Act receives the Royal Assent.

_____

SHEET 2497

(1) Page 2 (after line 11), after clause 3, insert:

4 Review of the operation of amendments

(1) The Minister must cause an independent review to be conducted of the operation of the amendments made by this Act.

(2) Without limiting subsection (1), the review must consider:

(a) whether the operation of the amendments is consistent with Australia's international human rights obligations; and

(b) whether the operation of the amendments is consistent with Australia's non-refoulement obligations; and

(c) the likely impact of the operation of the amendments on the wellbeing, safety and family unity of removal pathway non-citizens who are given removal pathway directions; and

(d) the likely impact of the operation of the amendments on Australian citizens who are family members of such removal pathway non-citizens; and

(e) the likely impact of the operation of the amendments on Australian citizens who have family members residing in removal concern countries; and

(f) the likely impact of the amendments on Australia's international relations.

(3) The review must commence as soon as practicable after the end of 3 months after the day this section commences.

(4) The persons who conduct the review must give the Minister a written report of the review as soon as practicable and, in any event, not later than 6 months after the day this section commences.

(5) The Minister must:

(a) prepare a written response to the report of the review; and

(b) cause a copy of the report, and of the Minister's response, to be tabled in each House of the Parliament within 5 sitting days of that House after the report is given to the Minister.

(6) The following expressions used in this section have the same meaning in this section as in the Migration Act 1958:

(a) non-refoulement obligations;

(b) removal concern country;

(c) removal pathway direction;

(d) removal pathway non-citizen.

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SHEET 2520

(1) Schedule 1, item 3, page 4 (line 12), omit "visa;", substitute "visa.".

(2) Schedule 1, item 3, page 4 (lines 13 to 19), omit paragraphs 199B(1)(c) and (d).

(3) Schedule 1, item 5, page 12 (lines 14 and 15), omit "Paragraphs 199B(1)(b) and (c) of the Migration Act 1958, as inserted by this Schedule, apply", substitute "Paragraph 199B(1)(b) of the Migration Act 1958, as inserted by this Schedule, applies".

(4) Schedule 2, item 4, page 13 (line 19), omit ", (c) or (d)".

(5) Schedule 2, item 6, page 14 (line 8), omit ", (c) or (d)".

_____

SHEET 2521

(1) Schedule 1, item 3, page 9 (lines 1 to 12), omit subsection 199E(4).

_____

SHEET 2602

(1) Schedule 1, item 3, page 8 (after line 15), at the end of section 199D, add:

Immediate family members

(7) The Minister must not give a removal pathway direction to (or in relation to) a removal pathway non-citizen who is the spouse, de facto partner or dependent child (within the meaning of the regulations) of:

(a) an Australian citizen; or

(b) the holder of a permanent visa that is in effect; or

(c) a person who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law; or

(d) a non-citizen who has no country of nationality and who is residing, or who is usually resident, in Australia.

(8) The Minister must not give a removal pathway direction to a removal pathway non-citizen who is the parent of a child, under 18, who is:

(a) an Australian citizen; or

(b) the holder of a permanent visa that is in effect; or

(c) usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law; or

(d) a non-citizen who has no country of nationality and who is residing, or who is usually resident, in Australia.

_____

SHEET 2603

(1) Schedule 1, item 3, page 10 (after line 25), after paragraph 199G(1)(a), insert:

(aa) the non-citizen is:

(i) a government official of a removal concern country; or

(ii) a member of the immediate family (within the meaning of the regulations) of a government official of a removal concern country; and

(2) Schedule 1, item 3, page 12 (after line 10), at the end of section 199G, add:

Definitions

(9) In this section:

government official, of a removal concern country, means an employee or official of:

(a) the government of the removal concern country or of part of the removal concern country; or

(b) an authority of the government of the removal concern country; or

(c) an authority of the government of part of the removal concern country; or

(d) a local government body, or regional government body, of the removal concern country.

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SHEET 2604

(1) Schedule 1, item 1, page 3 (before line 6), before the definition of removal concern country, insert:

finally reviewed:

(a) in relation to a valid application for a visa: see subsection (10A); and

(b) in relation to a request to the Minister to exercise a power: see subsection (10B).

(2) Schedule 1, page 3 (before line 12), before item 2, insert:

2A Before subsection 5(10)

Insert:

(10A) A valid application for a visa is finally reviewed when:

(a) the application is finally determined; and

(b) a decision that has been made in respect of the application:

(i) is not, or is no longer, subject to any form of judicial review; or

(ii) was subject to some form of judicial review, but the period within which such a review could be instituted has ended without a review having been instituted.

(10B) A person's request for the Minister to exercise a power in relation to the person is finally reviewed when:

(a) a decision has been made in respect of the request:

(i) to not consider whether to exercise the power; or

(ii) to exercise, or not exercise, the power; and

(b) a decision that has been made in respect of the request:

(i) is not, or is no longer, subject to any form of judicial review; or

(ii) was subject to some form of judicial review, but the period within which such a review could be instituted has ended without a review having been instituted.

(3) Schedule 1, item 3, page 7 (lines 13 to 18), omit subsection 199D(2), substitute:

Non-citizens who have applied for visas or requested Ministerial intervention

(2) The Minister must not give a removal pathway direction to a removal pathway non-citizen if:

(a) the non-citizen has made a valid application for a visa and the application is not yet finally reviewed; or

(b) the non-citizen has made a request to the Minister to exercise the Minister's power under subsection 48B(1), 351(1), 417(1) or 501J(1) in relation to the non-citizen and the request is not yet finally reviewed.

Non-citizens who have had visa applications finally reviewed

(2A) If a removal pathway non-citizen has made a valid application for a visa that is finally reviewed, the Minister must not give a removal pathway direction to the non-citizen within the period of 28 days starting on the day the application is finally reviewed.

Note: The non-citizen could, for example, make a request within that 28-day period to the Minister to exercise a power mentioned in paragraph (2)(b) in relation to the non-citizen.

(4) Schedule 1, item 3, page 7 (before line 19), before subsection 199D(3), insert:

Non-citizens who are unauthorised maritime arrivals

(3A) The Minister must not give a removal pathway direction to a removal pathway non-citizen if:

(a) the non-citizen is an unauthorised maritime arrival; and

(b) the Minister has not exercised the Minister's power under subsection 46A(2) to determine that subsection 46A(1) does not apply to an application by the non-citizen for a visa of a specified class.

Note: This subsection applies whether or not the non-citizen has made a request to the Minister to exercise the power.

Non-citizens who are transitory persons

(3B) The Minister must not give a removal pathway direction to a removal pathway non-citizen if:

(a) the non-citizen is a transitory person; and

(b) the Minister has not exercised the Minister's power under subsection 46B(2) to determine that subsection 46B(1) does not apply to an application by the non-citizen for a visa of a specified class.

Note: This subsection applies whether or not the non-citizen has made a request to the Minister to exercise the power.

Non-citizens who are holders of temporary safe haven visas

(3C) The Minister must not give a removal pathway direction to a removal pathway non-citizen if:

(a) the non-citizen is a non-citizen to whom Subdivision AJ of Division 3 of Part 2 (temporary safe haven visas) applies; and

(b) the Minister has not exercised the Minister's power under subsection 91L(1) to determine that section 91K does not apply to an application for a visa by the non-citizen.

Note: This subsection applies whether or not the non-citizen has made a request to the Minister to exercise the power.

(5) Schedule 1, item 3, page 9 (line 12), omit "or who have applied for a protection visa", substitute ", who have applied for a visa or requested Ministerial intervention".

Question negatived.

I will deal now with Committee of the Whole amendments to the Migration Amendment Bill 2024, starting with the amendments circulated by Senator David Pocock. The first question is that the Senator David Pocock amendments on sheets 3166 be agreed to.

Senator David Pocock 's circulated amendments to the Migration Amendment Bill 2024

(1) Schedule 1, item 1, page 3 (after line 16), after paragraph 76AAA(1)(c), insert:

(ca) the non-citizen has been convicted by a final judgment of a serious offence; and

(2) Schedule 1, item 1, page 5 (after line 5), at the end of section 76AAA, add:

(10) In this section:

serious offence has the same meaning as in Part 070 of Schedule 2 to the Migration Regulations 1994.

(3) Schedule 1, item 3, page 5 (lines 12 to 14), omit all the words from and including "whether" to the end of the item, substitute:

whether:

(a) the Subclass 070 (Bridging (Removal Pending)) visa, or the permission of the foreign country, was granted; or

(b) the serious offence was committed;

before, on or after the commencement of this item.

(4) Schedule 1, item 4, page 6 (line 15), omit "Australia; or", substitute "Australia".

(5) Schedule 1, item 4, page 6 (lines 16 to 21), omit paragraph (d).

(6) Schedule 1, item 8, page 7 (lines 21 to 22), omit ", (c) or (d)", substitute "or (c)".

Question negatived.

We now come to sheet 3167. The question is that schedule 2 stand as printed.

Senator David Pocock opposed schedule 2 to the Migration Amendment Bill 2024 in the following terms

(1) Schedule 2, page 9 (line 1) to page 11 (line 8), to be opposed.

Question agreed to.

I will now deal with the amendments circulated by Senator Thorpe. We come to sheet 3177. The first question is that schedule 1, items 6 to 9, stand as printed.

Senator Thorpe opposed schedule 1 to the Migration Amendment Bill 2024 in the following terms

(1) Schedule 1, items 6 to 9, page 6 (line 27) to page 7 (line 24), to be opposed.

Question agreed to.

The next question is that the remaining Senator Thorpe amendments on sheet 3177 and the amendments on sheet 3173, 3174, 3175 and 3176 be agreed to.

Senator Thorpe's circulated amendments to the Migration Amendment Bill 2024

SHEET 3173

(1) Schedule 5, item 1, page 19 (after line 10), after section 198AHB, insert:

198AHC Requirement to consider Australia's non-refoulement obligations

(1) The Commonwealth must not enter into an arrangement (third country reception arrangement) with a foreign country in relation to the removal of non-citizens from Australia and their acceptance, receipt or ongoing presence in the foreign country unless:

(a) the Minister has considered whether the arrangement is consistent with Australia's non-refoulement obligations; and

(b) the Minister is satisfied that the arrangement is consistent with Australia's non-refoulement obligations.

(2) This section limits:

(a) the executive power of the Commonwealth; and

(b) any other power or duty under this Act to the extent that it is relevant to the Commonwealth entering into a third country reception arrangement.

(3) In this section:

arrangement includes an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.

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SHEET 3174

(1) Page 25 (after line 14), after Schedule 7, insert:

Schedule 8 — Prohibiting removal and deportation of Aboriginal or Torres Strait Islander individuals

Migration Act 1958

1 In the appropriate position in Division 8 of Part 2

Insert:

Subdivision E — Aboriginal or Torres Strait Islander individuals

199H Aboriginal or Torres Strait Islander individuals must not be removed

Despite any other provision of this Division, an individual who is an Aboriginal or Torres Strait Islander must not be removed from Australia unless the individual agrees to the removal.

2 In the appropriate position in Division 9 of Part 2

Insert:

206A Aboriginal or Torres Strait Islander individuals must not be deported

Despite any other provision of this Division, an individual who is an Aboriginal or Torres Strait Islander must not be deported from Australia unless the individual agrees to the deportation.

_____

SHEET 3175

(1) Page 25 (after line 14), after Schedule 7, insert:

Schedule 9 — Prohibiting removal and deportation of individuals with immediate family in Australia

Migration Act 1958

1 In the appropriate position in Division 8 of Part 2

Insert:

Subdivision F — Individuals with immediate family in Australia

199J Individuals with immediate family in Australia must not be removed

(1) Despite any other provision of this Division, an individual must not be removed from Australia if the individual is the spouse, de facto partner or dependent child (within the meaning of the regulations) of:

(a) an Australian citizen; or

(b) the holder of a permanent visa that is in effect; or

(c) a person who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law; or

(d) a non-citizen who has no country of nationality and who is residing, or who is usually resident, in Australia.

(2) Despite any other provision of this Division, an individual must not be removed from Australia if the individual is the parent of a child, under 18, who is:

(a) an Australian citizen; or

(b) the holder of a permanent visa that is in effect; or

(c) usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law; or

(d) a non-citizen who has no country of nationality and who is residing, or who is usually resident, in Australia.

2 In the appropriate position in Division 9 of Part 2

Insert:

206B Individuals with immediate family in Australia must not be deported

(1) Despite any other provision of this Division, an individual must not be deported from Australia if the individual is the spouse, de facto partner or dependent child (within the meaning of the regulations) of:

(a) an Australian citizen; or

(b) the holder of a permanent visa that is in effect; or

(c) a person who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law; or

(d) a non-citizen who has no country of nationality and who is residing, or who is usually resident, in Australia.

(2) Despite any other provision of this Division, an individual must not be deported from Australia if the individual is the parent of a child, under 18, who is:

(a) an Australian citizen; or

(b) the holder of a permanent visa that is in effect; or

(c) usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law; or

(d) a non-citizen who has no country of nationality and who is residing, or who is usually resident, in Australia.

_____

SHEET 3176

(1) Schedule 5, item 1, page 18 (after line 29), after subsection 198AHB(4), insert:

(4A) As soon as practicable after the end of a financial year, the Secretary must prepare a report that contains the following information about each third country reception arrangement that was in force at any time in the financial year:

(a) details of the third country reception arrangement, including the foreign country that is a party to the arrangement;

(b) the age and nationality of each non-citizen that was accepted, received or present in the foreign country in the financial year in accordance with the third country reception agreement;

(c) details of any action taken, or caused to be taken, by (or on behalf of) the Commonwealth in the financial year in relation to the third country reception agreement or the third country reception functions of the foreign country;

(d) details of any payments made, or caused to have been made, by (or on behalf of) the Commonwealth in the financial year in relation to the in relation to the third country reception agreement or the third country reception functions of the foreign country;

(e) details of any other thing done by (or on behalf of) the Commonwealth in the financial year that is incidental or conducive to the taking of action referred to in paragraph (c) or the making of payments referred to in paragraph (d);

(f) any other information prescribed by the regulations for the purposes of this paragraph.

(4B) The Secretary must:

(a) give the report to the Minister; and

(b) publish the report on the Department's website;

as soon as practicable after the report is prepared and no later than 90 daysafter the end of the financial year.

(4C) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.

_____

SHEET 3177

(2) Schedule 1, item 11, page 7 (line 28), omit "(1)".

(3) Schedule 1, item 11, page 8 (lines 1 to 3), omit subitem (2).

(4) Page 25 (after line 14), at the end of the Bill, add:

Schedule 10—Repeal of section 197D

Migration Act 1958

1 Subparagraph 197C(3)(c)(ii)

Repeal the subparagraph.

2 Section 197D

Repeal the section.

Question negatived.

I will now deal with Committee of the Whole amendments to the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2024 circulated by Senator David Pocock on sheet 3213. The question is that section 252BB in item 19 of schedule 1 stand as printed.

Senator David Pocock opposed section 252BB in item 19 of schedule 1 to the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2024 in the following terms

(11) Schedule 1, item 19, page 18 (line 19) to page 19 (line 23), section 252BB to be opposed.

Question agreed to.

The question now is that the remaining Senator David Pocock amendments on sheet 3213 be agreed to.

Senator David Pocock's circulated amendments to the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2024

(1) Schedule 1, item 2, page 4 (lines 5 to 8), omit paragraph 251A(2)(b), substitute:

(b) there is a risk (an immigration detention facility risk) that the thing might be used in an immigration detention facility to commit an offence against:

(a) a law of the Commonwealth; or

(b) a law of the State or Territory in which the facility is located.

(2) Schedule 1, item 2, page 5 (lines 17 and 18), omit paragraph 251AA(3)(b), substitute:

(b) the prohibited thing is being used, or is intended to be used, in an immigration detention facility to commit an offence against:

(i) a law of the Commonwealth; or

(ii) a law of the State or Territory in which the facility is located.

(3) Schedule 1, item 2, page 7 (lines 1 to 2), omit subparagraph 251AA(7)(b)(v).

(4) Schedule 1, item 2, page 8 (after line 6), after section 251AA, insert:

251AAA Search and screening powers only to be exercised by certain authorised officers

(1) Despite any other provision of this Division, a power covered by subsection (2) may only be exercised by an authorised officer who is:

(a) the Secretary of the Department; or

(b) the Australian Border Force Commissioner; or

(c) an officer of the Department; or

(d) a person who is a protective service officer for the purposes of the Australian Federal Police Act 1979; or

(e) a member of the Australian Federal Police; or

(f) employed by the Commonwealth.

(2) This subsection covers the power of an authorised officer to conduct a search or screening procedure under the following provisions:

(a) section 252 (searches of detainees etc.—general powers of personal search and seizure);

(b) section 252AA (searches of detainees—screening procedures);

(c) section 252A (searches of detainees—strip searches);

(d) section 252BA (searches of certain immigration detention facilities—general).

(3) In this section, a reference to the exercise of a power under a provision of this Act includes a reference to the exercise of any particular aspect of the power under any particular part of that provision, and of any related power (or any particular aspect of such a related power).

(5) Schedule 1, item 2, page 8 (line 13), omit "under subsection (2)", substitute "under subsections (2) and (3)".

(6) Schedule 1, item 2, page 8 (after line 32), at the end of section 251AB, add:

(3) The alternative means of communication meets the requirements under this subsection if:

(a) the alternative means of communication is available to the detainee:

(i) for free; and

(ii) at any time; and

(iii) in private; and

(b) the use of the alternative means of communication is under the control of the detainee.

(7) Schedule 1, item 4, page 12 (lines 18 and 19), omit ", whether or not the officer has any suspicion", substitute "only if the officer reasonably suspects".

(8) Schedule 1, item 8, page 15 (line 18), omit ", whether or not the officer has any suspicion", substitute "only if the officer reasonably suspects".

(9) Schedule 1, item 19, page 17 (lines 29 to 31), omit subsection 252BA(3), substitute:

(3) An authorised officer may conduct a search under subsection (1) or (2) only if the officer reasonably suspects:

(a) there is a weapon or escape aid at the facility; or

(b) there is a prohibited thing at the facility.

(10) Schedule 1, item 19, page 18 (lines 3 to 14), omit subsections 252BA(4) to (6).

(12) Schedule 1, item 30, page 25 (lines 10 and 11), omit "whether or not, before making the request, the officer has any suspicion", substitute "only if the officer reasonably suspects".

Question negatived.