Migration and Maritime Powers Amendment Bill (No. 1) 2015: Amendments Pass the Senate

The Migration and Maritime Powers Amendment Bill (No. 1) 2015 has passed the Senate in Federal Parliament with five amendments including removing children from onshore detention facilities; allow greater media access to detention centres and the lifting of the gag order on staff working at detention centres.

Background to the Bill

According to the Bills Digest, the Migration and Maritime Powers Amendment Bill (No. 1) 2015 (the Bill) amends the Migration Act 1958 (Cth) (Migration Act) to:

• ensure that when an unlawful non-citizen is in the process of being removed to another country under section 198 and the removal is aborted, or the removal is completed but the person does not enter the other country, and as a direct result the person is returned to Australia, then that person has a lawful basis to return to Australia without a visa;
• ensure that when such a person does return to Australia without a visa, the person will be taken to have been continuously in the migration zone for the purposes of sections 48 and 48A of the Migration Act which bar the person from making a valid application for certain visas;
• improve coherency and consistency in the character related provisions of the Migration Act, following the amendments made by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (the Character Act);
• provide that the events described in sections 82, 173 and 174 of the Migration Act that cause a visa that is in effect to cease will, as a general rule, cause a visa that is held, but not in effect, to be taken to cease. As an exception to this general rule, a visa to only remain in, but not re-enter, Australia that is not in effect will not be taken to cease as a result of the holder leaving Australia;
• ensure that the Administrative Appeals Tribunal can review certain character or security based decisions to refuse to grant a protection visa to a fast track applicant ; and
• insert a reference to subsection 48A(1AA) in subsection 48A(1C), to clarify that a person who has previously been refused a protection visa application that was made on their behalf (e.g. because they were a minor at the time), cannot make a further protection visa application, irrespective of the ground on which the further protection visa application would be made or the criteria which the person would claim to satisfy, and irrespective of the grounds on which the previous protection visa application was made .

The Bill also amends the Maritime Powers Act 2013 (the Maritime Powers Act) to confirm that powers under the Maritime Powers Act are able to be exercised in the course of passage through or above the waters of another country in a manner consistent with the 1982 United Nations Convention on the Law of the Sea (the Convention - as defined in section 8 of the Maritime Powers Act ).

Progress Through Parliament

According to the Second Reading speech, the proposed amendments in Schedule 1 of the Bill ensure that, when an attempt is made to remove an unlawful noncitizen from our country, that noncitizen does not enter the destination country and is instead returned to Australia, the noncitizen can be returned to Australia without a visa. In addition, they will be treated as if they had never left Australia for the purposes of the visa application bars imposed by sections 48 and 48A of the Migration Act.

Currently the Migration Act allows an unlawful noncitizen who has been removed from Australia to return without a visa, if the unlawful noncitizen was refused entry into the destination country. It does not currently allow for the return without a visa of a noncitizen who we have attempted to remove from Australia in other circumstances where it may be necessary. For example, there is no facility to return a person to Australia without a visa, if a transit country refuses to allow the removed person to transit or if the United Nations Human Rights Committee makes an interim measures request that the removal not be completed. The amendments in Schedule 1 will address this inconsistency.

The amendments in Schedule 2 of the Bill are required to give full effect to the substantive amendments made to the Migration Act last year by the Character Act.

The Bill was introduced into the House of Representatives on 16 September 2015, with a referral to Committee on 17 September 2015. The Committee recommended simply that:

The Bill passed the House of Representatives on 10 November 2015 with introduction to the Senate on 11 November 2015 where multiple sets of amendments were proposed, based on the committee recommendations.

Current Amendments Proposed

The two most important amendments to be proposed by the Greens and then  adopted were new provisions for removal of all children from onshore immigration detention centres and greater media access to all detention centres.

The Greens had initially proposed five amendments, though one calling for the "separation of people seeking asylum from criminals in immigration detention" was voted down. Other adopted amendments related to the mandatory reporting of abuse witnessed within detention centres, as well as the reversal of secrecy provisions detailed under Section 42 of the Border Force Act.

The amendments passed the Senate on 23 November 2015 with the support of Labor, as well as crossbenchers Ricky Muir, David Leyonhjelm, Nick Xenophon, Dio Wang and John Madigan.

The Bill now returns to the House of Representatives for agreement with the amendments.

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