House of Representatives

Explanatory Memorandum

(Circulated by authority of the Assistant Minister for Home Affairs, the Hon. Alex Hawke MP)

Outline

The Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018 (the Bill) amends the Migration Act 1958 (the Migration Act) the Customs Act 1901 (the Customs Act) and the Passenger Movement Charge Collection Act 1978 (the PMCC Act).

The Bill amends the 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 is not permitted entry into the receiving 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 and 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.

•

Allow the Department of Home Affairs (the Department) to use an online account such as ImmiAccount to provide clients with certain legally required communications.

The Bill amends the Customs Act to:

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Insert a new provision similar to section 15C of the Taxation Administration Act 1953 to allow the Department to make a recoverable payment to a person whom is entitled to it.

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Make a technical amendment to section 58A to restore wording that was inadvertently omitted when the provision was repealed and substituted by the Customs Legislation Amendment Act (No. 1) 1999, to ensure this provision operates as intended.

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Make a technical amendment to the wording of section 208DA to ensure this provision operates as originally intended in relation to the disposal of narcotic-related goods (other than narcotic goods).

The Bill amends the PMCC Act to:

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Insert a new head of power so that regulations can prescribe the charging and recovery of fees for, and in relation to, the payment of passenger movement charge or an amount equal to the charge.

Financial Impact Statement

These amendments will have no financial impact.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill and assesses that the amendments are compatible with Australia's human rights obligations. A copy of the Statement of Compatibility with Human Rights is at Attachment A.

Notes on Individual Clauses

Clause 1 - Short Title

1. The short title by which this Act may be cited is the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2018.

Clause 2 - Commencement

2. Subclause 2(1) provides that 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.

3. Sections 1 to 3 and anything in this Act not elsewhere covered by this table commence the day this Act receives the Royal Assent.

4. Schedules 1, 3 and 5 of the Bill commence the day after this Act receives the Royal Assent.

5. Schedules 2 and 4 commence on a single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

6. The note after subclause 2(1) states that 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.

7. Subclause 2(2) provides that 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.

Clause 3 - Schedules

8. This clause is the formal enabling provision for the Schedules to the Bill, providing that each Act specified in a Schedule is amended or repealed in accordance with the applicable items in the Schedule. This Bill amends the Migration Act, the Customs Act and the PMCC Act.

9. The clause also provides that other items of a Schedule have effect according to their terms. This is a standard enabling clause for transitional, savings and application items in amending legislation.

SCHEDULE 1 - Amendments relating to removal

Migration Act 1958

Background

10. The purpose of Schedule 1 to the Bill is to provide that when a non-citizen is removed from Australia under section 198 to another country (the destination country), or an unsuccessful attempt is made to remove that non-citizen under section 198, that non-citizen can be returned to Australia without needing to hold a visa. Further, the amendments in this Schedule are intended to provide that when the non-citizen is returned to Australia, then despite their temporary absence from Australia, if the non-citizen was barred from making certain visa applications under section 48 or 48A prior to their departure, they will continue to be barred on their return.

11. Important to these amendments is the concept of when a removal under section 198 is completed. The removal is completed at the very moment when the removee arrives in, but before entering, the destination country. Between the period when a removee arrives in the destination country and when they enter that country, it may be necessary to return them to Australia (for example, if the immigration officials of the destination country refuse the non-citizen entry). These amendments are intended to cover both the situation where a removal is attempted but not completed, and the situation where a removal is completed but the non-citizen does not enter the destination country.

Item 1 - Paragraph 42(2A)(ca)

12. This item inserts the word 'if' before the words 'the non-citizen' in paragraph 42(2A)(ca).

13. This item is a technical editorial amendment to correct the omission of the word 'if' from paragraph 42(2A)(ca) and does not change the effect of section 42. Subsection 42(1) provides that, as a general rule, a non-citizen must not travel to Australia without a visa that is in effect. Subsection 42(2A) sets out certain exceptions to this general rule. Paragraph 42(2A)(ca) is intended to be one of these exceptions, in particular when a non-citizen is brought to Australia under section 198B. Paragraph 42(2A)(ca) as inserted by the Migration Legislation Amendment (Transitional Movement) Act 2002 did not follow the convention of each of the other paragraphs under subsection 42(2A) to begin with 'if'. Without this 'if' the paragraph is grammatically incorrect, but due to the slip rule it should be read as if it were correct. This amendment corrects the inconsistency.

Item 2 - Paragraphs 42(2A)(d)

14. This item repeals paragraph 42(2A)(d) and substitutes new paragraphs 42(2A)(d) and (da).

15. Subsection 42(1) provides that subject to subsections 42(2), (2A) and (3) a non-citizen must not travel to Australia without a visa that is in effect. Current subsection 42(2A) provides for various exceptions to subsection 42(1) with existing paragraph 42(2A)(d) providing that subsection 42(1) does not apply to a non-citizen if:

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the non-citizen has been removed under section 198 to another country but has been refused entry by that country; and

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the non-citizen travels to Australia as a direct result of that refusal; and

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the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen.

16. Current paragraph 42(2A)(d) is repealed and substituted by new paragraphs 42(2A)(d) and 42(2A)(da) as current paragraph 42(2A)(d) would be redundant as a consequence of new paragraph 42(2A)(da). New paragraph 42(2A)(da) covers a broader range of situations than current paragraph 42(2A)(d), including any situation to which current paragraph 42(2A)(d) may have applied.

17. New paragraph 42(2A)(d) provides that subsection 42(1) does not apply to a non-citizen if:

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an attempt to remove the non-citizen under section 198 to another country was made but the removal was not completed; and

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the non-citizen travels to Australia as a direct result of the removal not being completed; and

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the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen.

18. This captures the situation where an unlawful non-citizen is being removed under section 198 to a destination country but, before reaching the destination country, the removal is aborted and the non-citizen must return to Australia as a result.

19. New paragraph 42(2A)(da) provides that subsection 42(1) does not apply to a non-citizen if:

•

the non-citizen has been removed under section 198 to another country but the non-citizen does not enter the other country; and

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the non-citizen travels to Australia as a direct result of not entering the other country; and

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the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen.

20. This paragraph captures the situation where an unlawful non-citizen has been successfully removed from Australia, but has not yet entered their destination country.

21. The purpose of new paragraph 42(2A)(d) is to cover the situation where a removal is attempted but not completed, while new paragraph 42(2A)(da) is inserted to cover the situation where a removal is completed but the non-citizen does not enter the destination country.

22. New paragraphs 42(2A)(d) and 42(2A)(da) are intended to work together to allow a non-citizen removed under section 198 of the Migration Act to return to Australia without holding a visa if it becomes necessary at any point after they leave Australia until they enter their destination country. New paragraph 42(2A)(d) applies to a non-citizen from the point they leave Australia until their removal is completed, while new paragraph 42(2A)(da) applies to a non-citizen from the point where their removal is completed until they have successfully entered the country to which they have been removed (the destination country).

23. A need to return to Australia a non-citizen who has been removed, or is in the process of being removed, could arise for a number of reasons. For example - the non-citizen could be refused entry to a transit country, an aircraft could be forced mid-flight to return to Australia, the Government could decide to cancel the removal in response to an Interim Measures Request from the United Nations, or, despite being successfully removed from Australia, the non-citizen could be refused entry into the destination country.

24. Paragraph 42(2A)(da) is similar to, but broader than, current paragraph 42(2A)(d). While current paragraph 42(2A)(d) applies to non-citizens who have been refused entry to the destination country, new paragraph 42(2A)(da) is broader as it applies to non-citizens who do not enter the destination country. In addition to the non-citizens to whom current paragraph 42(2A)(d) applies, new paragraph 42(2A)(da) will apply to people who do not enter the destination country for reasons other than being refused entry by the destination country.

25. Paragraph 42(2A)(da) is needed because new paragraph 42(2A)(d) only covers a non-citizen prior to the removal being completed. A removal is completed when the non-citizen arrives in the destination country, but the removed non-citizen does not enter the destination country until they are accepted into that country. Paragraph 42(2A)(da) covers a non-citizen in this in-between stage where the removal has been successfully completed, but they have not yet entered the destination country.

26. The broadened scope of paragraph 42(2A)(da) as compared to current paragraph 42(2A)(d) is intended to allow for greater flexibility in returning a removed non-citizen to Australia.

Item 3 - After subsection 48(1A)

27. This item will insert new subsection 48(1B) which provides that if:

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an attempt was made to remove a non-citizen from the migration zone under section 198 but the removal was not completed; and

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the non-citizen is again in the migration zone as a result of travel to Australia that is covered by new paragraph 42(2A)(d);

then, for the purposes of section 48 (which applies only in respect of applications made while a non-citizen is in the migration zone), the non-citizen is taken to have been continuously in the migration zone despite the attempted removal.

28. This item also inserts a note below the new subsection; this note is only intended to provide context to the subsection. The note states that paragraph 42(2A)(d) relates to the travel of a non-citizen to Australia after an attempt to remove the non-citizen has been made under section 198.

29. Section 48 contains two sets of circumstances in which a non-citizen in the migration zone can only apply for a prescribed list of visas. These circumstances are contained in subsections 48(1) and 48(1A) respectively. Common to these circumstances is that an event (which broadly speaking is either the cancellation or refusal of a visa) occurred since the non-citizen last entered Australia (this is provided for by the chapeau to paragraphs 48(1)(b) and 48(1A)(b) respectively).

30. This proviso exists because generally, the section 48 bar is not intended to apply to a non-citizen who has left Australia and returned since the cancellation or refusal of a visa occurred. The exception is that when a non-citizen has been removed, or is the subject of an attempted removal and returned because the removal was cancelled or they did not enter the destination country, it is intended that they should be in the same situation as if they were never removed, including that any relevant visa application bars should continue to apply.

31. Previously, travel covered by paragraph 42(2A)(d) was referenced in old paragraph 48(2)(b). However, paragraph 48(2)(b) applies to a non-citizen who has been removed, while item 2 of this Schedule changed the scope of 42(2A)(d) to cover a non-citizen where the removal has not been completed, i.e. they are in the process of removal rather than the removal having been completed. As such it was necessary to move the reference to 42(2A)(d) from subsection 48(2) into a separate subsection. This item creates the new subsection, while item 4 in this Schedule removes the reference to paragraph 42(2A)(d) from paragraph 48 (2)(b), replacing it with a reference to paragraph 42(2A)(da) which was inserted by item 2 of this Schedule. New paragraph 42(2A)(da) covers any situation that existing paragraph 42(2A)(d) would have covered.

32. The effect of this amendment is that when an attempt is made to remove a non-citizen under section 198, but the removal is cancelled before it is completed then the non-citizen is treated, for the purpose of section 48, as being continuously in the migration zone.

33. The purpose of this amendment, in conjunction with the amendments made by items 4 through 8 of this Schedule, is to ensure that if a non-citizen returns to Australia at any point from when they are removed from Australia under section 198 until they enter the destination country, any applicable bar on making valid applications imposed by sections 48 and 48A continue to apply to that non-citizen.

Item 4 - Paragraph 48(2)(b)

34. This item omits from paragraph 48(2)(b) the reference to "paragraph 42(2A)(d)" and substitutes a reference to "paragraph 42(2A)(da)". This amendment is consequential to the amendments made by item 2 of this Schedule.

35. Item 2 of this Schedule substitutes a new paragraph 42(2A)(d) and the substance of the current paragraph 42(2A)(d) is subsumed by new paragraph 42(2A)(da). The effect of this item is to update the reference in paragraph 48(2)(b) accordingly. This amendment will ensure that a person returned as a result of travel that is covered by new paragraph 42(2A)(da) will be taken to have remained in the migration zone, which will ensure that if a person is returned to Australia for any reason after the removal is completed but before they enter the country then any applicable bar on making valid applications imposed by section 48 continues to apply to that non-citizen.

36. The purpose of this item is to, in conjunction with items 3 and 5 through 8 of this Schedule, ensure that any bar on making a valid visa application imposed by section 48 or 48A will continue to apply to the non-citizen if they return to Australia at any point from when they are removed from Australia under section 198 until they enter the destination country.

Item 5 - Subsection 48(2) (note)

37. This item repeals and substitutes the note to subsection 48(2). This amendment is consequential to the amendments made by item 2 of this Schedule, which relevantly subsumes the substance of paragraph 42(2A)(d) into new paragraph 42(2A)(da). New paragraph 42(2A)(da) is broader in scope than current paragraph 42(2A)(d), as the new paragraph covers any removed non-citizen who does not enter the destination country, not just those who were refused entry by the destination country.

Item 6 - After subsection 48A(1AA)

38. This item will insert new subsection 48A(1AB) which provides that if:

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an attempt was made to remove a non-citizen from the migration zone under section 198 but the removal was not completed; and

•

the non-citizen is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d);

then, for the purposes of section 48A, the non-citizen is taken to have been continuously in the migration zone despite the attempted removal.

39. The intention of this amendment is that a non-citizen returned to Australia after an incomplete removal will be subject to the section 48A bar if they were subject to the bar prior to their removal. The purpose of this new subsection is to ensure that where an attempt to remove a non-citizen has been made, but that removal was not completed, the non-citizen does not gain an advantage (i.e. the ability to apply for another protection visa) due to the attempted removal. In conjunction with items 7 and 8 of this Schedule, this ensures that any bar imposed by section 48A will continue to apply to the non-citizen if they return to Australia at any point from when they are removed from Australia under section 198 until they enter the destination country.

40. Similarly to item 3 of this Schedule, it was necessary to move the reference to paragraph 42(2A)(d) from existing subsection 48A(1A) into new subsection 48A(1AB) as existing subsection 48A(1A) only applies when a person has been removed from Australia, while new paragraph 42(2A)(d) applies to a person who is returned before the removal is completed.

41. This item additionally inserts a note below the new subsection; this note is only intended to provide context. The note states that paragraph 42(2A)(d) relates to the travel of a non-citizen to Australia after an attempt to remove the non-citizen has been made under section 198.

Item 7 - Paragraph 48A(1A)(b)

42. This item omits from paragraph 48A(1A)(b) the reference to "paragraph 42(2A)(d)" and substitutes a reference to "paragraph 42(2A)(da)". This amendment is consequential to the amendments made by item 2 of this Schedule.

43. Item 2 of this Schedule substitutes a new paragraph 42(2A)(d) and the substance of the current paragraph (d) is subsumed by new paragraph (da).

44. The amendment made by item 2 will ensure that a person returned as a result of travel that is covered by new paragraph 42(2A)(da) will be taken to have remained in the migration zone, which will ensure that if a person is returned to Australia for any reason after the removal is completed but before they enter the country then any applicable bar on making valid applications imposed by section 48A continues to apply to that non-citizen. The effect of this item is to update the reference in paragraph 48A(1A)(b) accordingly.

45. The purpose of this item is to, in conjunction with items 3 through 6 and 8 of this Schedule, ensure that any bar on making a valid visa application imposed by section 48A will continue to apply to the non-citizen if they return to Australia at any point from when they are removed from Australia under section 198 until they enter the destination country

Item 8 - Subsection 48A(1A) (note)

46. This item repeals and substitutes the note to subsection 48A(1A). This amendment is consequential to the amendments made by item 2 of this Schedule, which relevantly subsumed the circumstances previously contained in paragraph 42(2A)(d) into new paragraph 42(2A)(da). New paragraph 42(2A)(da) is broader in scope than current paragraph 42(2A)(d), as the new paragraph covers any removed non-citizen who does not enter the destination country, not just those who were refused entry by the destination country.

SCHEDULE 2 - Giving of documents

Migration Act 1958

Items 1 and 2 - Subsection 494B(1A)

Subsection 494B(1A) note

47. These items make amendments consequential to the amendments being made by item 3.

Item 3 - After subsection 494B(5)

48. Subsection 494B of the Act specifies methods by which the Minister may give documents to a person where the Migration Act or the Migration Regulations 1994 (the Migration Regulations) specify the Minister must do so by a method specified in section 494B.

49. Subsection 494B(5) allows the Minister to transmit a document by fax, email or other electronic means to the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents. Paragraph 494B(5)(e) further provides that where the person is a minor, the document may be transmitted to the carer of the minor known by the Minister.

50. New subsection 494B(5A) provides an additional method by which the Minister may give a document to a person under section 494B. New subsection 494B(5A) provides that the Minister may give a document to a person by making the document available by way of an online account of the recipient established for the purposes relating to the Migration Act or Migration Regulations.

51. This new amendment will broaden the methods by which the Minister will be able to communicate with a person to include online technologies employed or proposed to be employed by the Minister that are not currently provided for by section 494B(5).

Item 4 - After subsection 494C(5)

52. Item 4 inserts new subsection 494C(6).

53. Where the Minister gives a person a document under section 494B, section 494C provides when a person is taken to have received a document.

54. New subsection 494C(6) provides that where the Minister gives a person a document by the method in new subsection 494B(5A), that is by making it available by way of an online account, the person is taken to have received the document at the end of the day on which it is made available.

55. This amendment will provide certainty as to when the person is taken to have received the document.

SCHEDULE 3 - Recoverable payments

Customs Act 1901

Background

56. Section 163 of Division 3 of Part VIII of the Customs Act provides for refunds of duty and includes a regulation making power. The circumstances in which refunds may be paid are set out in the Customs Regulation 2015 (the Customs Regulation).

57. The legislative basis to pay drawbacks is contained in section 168 of the Customs Act. This provision also includes a regulation-making power. The circumstances in which drawbacks are made are also set out in the Customs Regulation.

58. Section 83 of the Commonwealth Constitution (the Constitution) provides that no amount may be paid out of the Consolidated Revenue Fund (CRF) except under an appropriation made by law. The Department operates principally on a client self-assessment basis in relation to the collection, refund and drawback of duty in the Integrated Cargo System. There is a risk that refunds and drawbacks may be made otherwise than in accordance with the Customs Regulations, with the consequence that section 83 of the Constitution may be breached.

59. To address this issue, sections 165, 273 and Part XVII of the Customs Act are amended to create a power to enable the Department to pay refunds or duty or drawbacks of duty to a person in circumstances where the person is entitled to a refund. An additional power allows refunds and drawbacks to be drawn from the CRF.

60. The amendment reduces the risk of breaching section 83 of the Constitution, which may result from refunds and drawbacks of duty being made otherwise than in accordance with the Customs Regulations.

Item 1 - At the end of subsection 165(3)

61. This amendment is consequential to the amendment made by item 5 below, and clarifies that under subsection 165(3) of the Customs Act, the Comptroller-General of Customs may also demand payment of an amount that is a debt due to the Commonwealth under new subsection 278(2).

Item 2 - Paragraph 165(5)(b)

62. This amendment is consequential to the amendment made by item 5 below, and clarifies that under subsection 165(5) of the Customs Act, a written demand the Comptroller-General of Customs may make for payment of an amount that is a debt due to the Commonwealth under new subsection 278(2) must be made within four years from the time the amount was paid.

Item 3 - Subsection 165(6)

63. This amendment is consequential to the amendment made by item 5 below, and clarifies that a debt that is due to the Commonwealth under new subsection 278(2) of the Customs Act can be recovered under subsection 165(6) if the Comptroller-General of Customs has made a demand for payment of the debt in accordance with that section, or is satisfied that the debt arose as a result of fraud or evasion.

Item 4 - Paragraph 273GA(1)(ja)

64. This amendment is consequential to the amendment made by item 5 below, and clarifies that an application may be made to the AAT for review of a decision of the Comptroller-General of Customs under subsection 165(3) of the Customs Act to make a demand for payment of an amount that is a debt due to the Commonwealth under new subsection 278(2).

Item 5 - At the end of Part XVII

65. This item inserts new sections 278 and 279 at the end of Part XVII of the Customs Act.

66. Subsection 278(1) of the Customs Act authorises the Commonwealth to make a payment to a person in respect of a refund or rebate of duty to which the person is purportedly entitled in accordance with section 163, or in respect of a drawback of duty to which a person is purportedly entitled in accordance with regulations made for the purposes of section 168, if the Commonwealth does not otherwise have the power to make these payments.

67.

68. Subsection 278(2) of the Customs Act provides that if a person was not in fact entitled to a refund of duty or a drawback of duty under subsection 278(1) (because for example, mistake or fraud) the person has a debt to the Commonwealth. The Comptroller-General of Customs may recover that debt on behalf of the Commonwealth in a court of competent jurisdiction.

69. The effect of subsection 278(3) of the Customs Act is that an amount paid to a person under subsection 278(1) is authorised to be paid from the CRF. This amendment ensures that the CRF is appropriated for the payment of refunds or drawbacks of duty to which a person is purportedly entitled, thereby reducing the risk of section 83 of the Constitution being breached.

70. Section 279 of the Customs Act requires the Secretary of the Department to include information regarding payments under subsection 278(1) in the financial year in the Department's annual report for that financial year. That provision also requires the annual report to include information regarding payments under section 278(1) that employees of the Department became aware of during a financial year that were made in an earlier financial year.

71. Breaches of section 83 of the Constitution are already reported in the Department's Annual Report. Section 279 of the Customs Act makes the reporting of payments made under section 278 a legislative requirement.

SCHEDULE 4 - Passenger movement charge

Passenger Movement Charge Collection Act 1978

Background

72. A passenger movement charge is imposed by the Passenger Movement Charge Collection Act 1978 (the PMCC Act) on a person who departs from Australia.

73. The Department incurs a merchant fee by financial institutions where a person pays for the passenger movement charge with a credit card.

74. The Department wishes to recover the associated merchant's fee from relevant persons. The recovery of this fee is consistent with the fee for service that the Department recovers for other statutory portfolio charges, fees and duties, etc.

75. The amendments contained in Schedule 6 of the Bill will amend section 15 of the PMCC Act to broaden the scope in which regulations may be prescribed for the purposes of that Act and enable the recovery of fees in respect of charge and payment of the charge.

76. This amendment addresses the real need by the Department to manage the cost of merchant fees charged to the Department and recover such fees from persons who elects to pay for statutory payments with a credit card. The imposition of a surcharge to recover the merchant fee is permitted under the Reserve Bank of Australia surcharging standards and is consistent with the cost recovery guidelines issued by the Department of Finance. Recovery of these costs is now commonplace across the Commonwealth.

Items 1 and 2 - Section 15 and At the end of section 15

77. Item 2 of Schedule 6 to the Bill will amend section 15 of the PMCC Act to insert new subsection 15(2) of that Act.

78. The purpose of item 2 is to enable regulations to be prescribed for and in relation to the following:

•

the charging and recovery of fees in respect of the payment of charge under the PMCC Act or the payment of an amount to the Commonwealth under an arrangement under subsection 10(1) of the PMCC Act;

•

the way in which such fees are to be paid;

•

the refund of such fees.

79. Item 2 will enable regulations to be made to prescribe for the recovery of merchant fees incurred by the Department where a person who is liable to pay for the passenger movement charge pays for that charge with a credit card.

80. Item 1 makes a consequential amendment to the existing section 15 to reflect that section 15 will contain two subsections.

Item 3 - Transitional provisions

81. This item sets out a transitional provision such that regulations in force under section 15 of the PMCC Act immediately before the commencement of this item continue in force on and after that commencement as if they were regulations in force under subsection 15(1) of that Act.

82. This provision is necessary as the amendments in items 1 and 2 split the current section 15 into two separate subsections and create a new head of power in subsection 15(2).

SCHEDULE 5 - Minor Amendments

Customs Act 1901

Background

83. The purpose of section 58A of the Customs Act is to control the movement of persons and goods between sea installations installed in the adjacent area and the coastal area of Australia, or a resources installation attached to the Australian seabed, and an external place.

84. The wording "to an external place" was inadvertently omitted from paragraph 58A(4)(a) and paragraph 58A(5)(a) of the Customs Act when these provisions were repealed and substituted by the Customs Legislation Amendment Act (No. 1) 1999.

85. Section 208DA of the Customs Act sets out the process for disposal of certain condemned goods that are narcotic-related goods (other than narcotic goods).

86. Currently, subsection 208DA(4) of the Customs Act refers to narcotic-related goods (other than narcotic goods) being sold or otherwise disposed of under subsection 208DA(2). This is not accurate, however as under subsection 208DA(2) such goods must first be transferred to the Official Trustee, before being sold or otherwise disposed of under subsection 208DA(3).

87. The amendments to section 58A and section 208DA of the Customs Act will ensure these provisions operate as intended.

Item 1 - Paragraph 58A(4)(a)

88. This item will amend the wording of paragraph 58A(4)(a) to ensure that the movement of people between sea installations installed in the adjacent area and the coastal area of Australia, or a resources installation attached to the Australian seabed, and an external place is controlled by the provision.

Item 2 - Paragraph 58A(5)(a)

89. This item will amend the wording of paragraph 58A(5)(a) to ensure that the movement of goods between sea installations installed in the adjacent area and the coastal area of Australia, or a resources installation attached to the Australian seabed, and an external place is controlled by the provision.

Item 3 - Subsection 208DA(4)

90. This item will amend the wording of subsection 208DA(4) of the Customs Act so that it accurately refers to the correct process for disposing of narcotic-related goods (other than narcotic goods), as set out in subsection 208DA(2).

Attachment A - Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Home Affairs Legislation Amendment (Miscellaneous Measures Bill 2018

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

Schedule 1 - Amendments relating to removal

Due to the limitations of current provisions under section 42, 48 and 48A of the Migration Act 1958 (the Migration Act), complications can arise during removal operations where the removal of an unlawful non-citizen from Australia cannot be completed, or is completed but the removed person does not enter the destination country. Currently, if an attempt to remove an unlawful non-citizen from Australia under section 198 of the Migration Act is made, and the unlawful non-citizen is returned to Australia for reasons other than being refused entry by the destination country (as per current paragraph 42(2A)(d)) - for example, a decision is made to cancel the removal during transit, on return to Australia, because the non-citizen will have left the migration zone, any bar on the applicant applying for further certain visas under sections 48 and 48A of the Migration Act will no longer apply to that non-citizen.

Section 42 of the Migration Act broadly sets out detail regarding the circumstances in which a non-citizen is required to hold a visa for travel to Australia. Subsection 42(1) of the Migration Act specifies that, subject to subsections 42(2), (2A) and (3), a non-citizen must not travel to Australia without a visa that is in effect. Relevantly, current paragraph 42(2A)(d) states that subsection 42(1) does not apply to a non-citizen in relation to travel to Australia if the non-citizen has been removed under section 198 to another country but has been refused entry by the country, and the non-citizen travels to Australia as a direct result of that refusal, and the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen.

New paragraphs 42(2A)(d) and (da) will ensure that subsection 42(1) does not apply to certain non-citizens whose removal from Australia under section 198 of the Migration Act has been aborted, which means that the non-citizen is able to return to Australia without a visa if there is a need to cancel a removal at any stage between the non-citizen leaving the migration zone and the non-citizen entering the destination country.

Section 48 of the Migration Act broadly sets out detail regarding the visas for which non-citizen in the migration zone who have been refused a visa or whose visa has been cancelled, may apply. Current subsection 48(2) states that for the purposes of the section, which only applies in respect of applications made while a non-citizen is in the migration zone, a non-citizen who has been removed from the migration zone under section 198 of the Migration Act and is again in the migration zone as a result of travel to Australia that is covered by paragraphs 42(2A)(d) or (e), is taken to have been continuously in the migration zone despite the attempted removal. Currently there is no reference at paragraph 42(2A)(d) to non-citizens whose removal has been aborted in transit to the destination country, meaning that, for the purposes of section 48 and 48A of the Migration Act, the non-citizen is not taken to have been continuously in the migration zone. The result is that the non-citizen is taken to have left the migration zone and is therefore not restricted by section 48 and 48A in the visa(s) for which they may apply.

New subsection 48(1B) and amended paragraph 48(2)(b) will, respectively, apply to a non-citizen who is again in the migration zone as a result of travel to Australia that is covered by new paragraphs 42(2A)(d) and 42(2A)(da), so that a person who returns to Australia as a result of travel covered by either of those paragraphs will be taken to have been continuously in the migration zone.

Similarly, current paragraph 48A(1A)(b) cross-references paragraph 42(2A)(d) to the same effect. Amended paragraph 48A(1A)(b) and new subsection 48A(1AB) will ensure that the bar on visa applications at section 48A applies to non-citizens who return to Australia between the time they leave Australia and the time they enter the destination country in the same way as it currently applies to non-citizens whose entry has been refused by the country of destination. Amended paragraph 48A(1A)(b) and new subsection 48A(1AB) will, respectively, apply to a non-citizen who is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or paragraph 42(2A)(da) and so a non-citizen who returns to Australia as a result of travel covered by either of those paragraphs will be taken to have been continuously in the migration zone for the purpose of section 48A despite the attempted removal.

This amendment will correct the unintended operation of law that leads to unlawful non-citizens who are attempted to be removed from Australia under section 198 of the Migration Act being treated differently under law depending on the reason that they return to Australia following an unsuccessful removal. The intention of the amendment to subsection 42(2A) of the Migration Act is to ensure that unlawful non-citizens in relation to whom removal under section 198 of the Migration Act is intended, but who return to Australia before entering the destination country, can return to Australia without a visa, and if they do, ensure that the bars against further visa applications in sections 48 and 48A remain applicable to those individuals despite the attempted removal.

Schedule 2 - Giving of Documents

Schedule 2 to this Bill broadens the available channels by which the Department of Home Affairs (the Department) can give documents to people. This will occur by amending sections 494B and 494C of the Migration Act to enable the Department to give a document by making that document available by way of an online account.

Sections 494B and 494C respectively set out the methods by which the Minister gives documents to a person, and when a person is taken to have received a document from the Minister. The methods include giving a document by hand, by prepaid post or other prepaid means, or by fax, email or other electronic means. The Bill's amendment to allow for a document to be made available to a recipient by way of an online account, and for when this would be taken to be received in line with other electronic communications, provides a benefit to recipients in respect of certainty of the transmission of documents in addition to providing the Department with administrative efficiency.

Schedule 3 - Recoverable Payments

Section 163 of Division 3 of Part VIII of the Customs Act provides for refunds of duty and includes a regulation making power. The circumstances in which refunds may be paid are set out in the Customs Regulation 2015 (the Customs Regulation).

The legislative basis to pay drawbacks is contained in section 168 of the Customs Act. This provision also includes a regulation-making power. The circumstances in which drawbacks are made are also set out in the Customs Regulation.

Section 83 of the Commonwealth Constitution provides that no amount may be paid out of the Consolidated Revenue Fund (CRF) except under an appropriation made by law. The Department operates principally on a client self-assessment basis in relation to the collection, refund and drawback of duty in the Integrated Cargo System. There is a risk that refunds and drawbacks may be made otherwise than in accordance with the legislation, with the consequence that section 83 of the Constitution may be breached.

To address this issue, sections 165, 273 and Part XVII of the Customs Act are amended to create a power to enable the Department to refund duty or drawback of duty to a person in circumstances where the Department has mistakenly determined that the person is entitled to a refund. This power allows refund monies to be drawn from the CRF.

The amendment reduces the risk of breaching section 83 of the Constitution, which may result from refunds and drawbacks of duty being made otherwise than in accordance with the legislation.

Schedule 4 - Passenger Movement Charge

Schedule 6 to this Bill introduces a new power that will allow a fee for service to be charged for, and in relation to, the payment of the passenger movement charge or an amount equal to the charge.

The Department manages an online system and facility that enables applicants and clients to pay for statutory charges, fees, and duties, etc. These payments may be made online by bank transfer, PayPal or credit card.

Where an applicant or a client elects for the related statutory charges, fees and duties, etc. with a credit card or PayPal, the Department is charged a merchant fee by the financial institutions for those payments made by an applicant or a client. Where the applicant or client pays related statutory charges, fees and duties, etc. via bank transfer, no merchant fee is charged to the Department.

Under section 6 of the Passenger Movement Charge Collection Act 1978 (the PMC Collection Act) a person seeking to depart Australia is liable to pay a charge known as the passenger movement charge. The Department currently incurs a merchant fee whenever the person seeking to depart Australia pays the passenger movement charge with a credit card.

Consistent with the fee for service that the Department recovers for other statutory portfolio charges, fees and duties, etc. that are paid by credit card or PayPal, the purpose of the Bill is to insert a head of power into the PMC Collection Act to enable a similar fee to be recovered by the Department.

Schedule 5 - Minor Amendments

Schedule 5 to this Bill makes minor amendments to section 58A and section 208DA of the Customs Act to ensure these provisions operate as intended.

The purpose of section 58A of the Customs Act is to control the movement of persons and goods between sea installations installed in the adjacent area and the coastal area of Australia, or a resources installation attached to the Australian seabed, and an external place.

The wording "to an external place" was inadvertently omitted from paragraph 58A(4)(a) and paragraph 58A(5)(a) of the Customs Act when these provisions were repealed and substituted by the Customs Legislation Amendment Act (No. 1) 1999.

The amendments to section 58A will restore the omitted wording "to an external place" in paragraphs 58A(4)(a) and 58(5)(a) to ensure that these provisions operate as intended to control the movement of persons and goods for the purpose of section 58A.

Section 208DA of the Customs Act sets out the process for disposal of certain condemned goods that are narcotic-related goods (other than narcotic goods).

Currently, subsection 208DA(4) of the Customs Act refers to narcotic-related goods (other than narcotic goods) being sold or otherwise disposed of under subsection 208DA(2). This is not accurate, however as under subsection 208DA(2) such goods must first be transferred to the Official Trustee, before being sold or otherwise disposed of under subsection 208DA(3).

The amendment to subsection 208DA(4) of the Customs Act will ensure that this provision accurately refers to the correct process for disposing of narcotic-related goods (other than narcotic goods), as set out in subsection 208DA(2).

Human rights implications

This Bill does not breach any of the applicable rights or freedoms.

Schedule 1 - Amendments relating to removal

Freedom from arbitrary detention

Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) relevantly provides that no-one shall be subjected to arbitrary or unlawful detention. The proposed amendments engage this right by requiring the detention (under section 189 of the Migration Act) of unlawful non-citizens who are returned to Australia following an attempted removal under section 198 of the Migration Act. Australia takes its obligations to non-citizens in immigration detention very seriously.

The Australian Government's position is that the detention of individuals is neither unlawful nor arbitrary per se under international law. Continuing detention may become arbitrary after a certain period of time without proper justification. The determining factor, however, is not the length of detention, but whether the grounds for the detention are justifiable. In the context of Article 9(1), detention that is not 'arbitrary' must have a legitimate purpose within the framework of the ICCPR in its entirety. Detention must be predictable in the sense of the rule of law (it must not be capricious) and it must be reasonable (or proportional) in relation to the purpose to be achieved.

While the proposed amendments will limit an unlawful non-citizen's opportunity to apply for a visa (through continuous application of statutory bars in ss48 and 48A), their re-detention will continue to be for the legitimate purpose of completing their removal from Australia under section 198 of the Migration Act as soon as it becomes reasonably practicable to do so. The removal of unlawful non-citizens under section 198 is mandated by the law and is an integral part of maintaining the integrity of Australia's migration system. Where removal cannot be accomplished within reasonable timeframes, in line with established detention policy and procedures, the Department will review the detention decision and consider less restrictive forms of detention such as residence determination or grant of a Bridging visa E, as appropriate in circumstances of the case.

It is anticipated that the instances of a removal being aborted and the person being returned to Australia, will only occur in exceptional cases.

These policy and procedures ensure that the re-detention of affected unlawful non-citizens is reasonable and proportionate to completing their removal from Australia.

Non-refoulement

Australia has obligations under the ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) not to return a person to a certain country in certain circumstances.

Article 3(1) of the CAT states:

No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

Articles 6 and 7 of the ICCPR also impose on Australia an implied non-refoulement obligation. Article 6 of the ICCPR states:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Article 7 of the ICCPR states:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

The Department recognises that these non-refoulement obligations are absolute and does not seek to resile from or limit Australia's obligations. However, the form of administrative arrangements in place to support Australia meeting its non-refoulement obligations is a matter for the Government. The amendments outlined in this Bill do not breach Australia's non-refoulement obligations because the obligations - if applicable - will have been assessed prior to the non-citizen's removal from Australia. A pre-removal clearance check is undertaken for all involuntary removals of unlawful non-citizens to ensure the proposed removal would not breach Australia's non-refoulement obligations. Where this check identifies outstanding protection claims, removal will not proceed until these claims have been fully assessed. An individual will not be removed from Australia in breach of non-refoulement obligations.

The best interests of the child

As a party to the Convention on the Rights of the Child (CRC), Australia is required to ensure that in all actions concerning children, the best interests of the child are considered as a primary consideration (Article 3). It is the case that the amendments would apply to the removal of children under section 198 of the Migration Act in addition to adults being removed where affected children would remain in Australia. Under policy, all actions taken by the Department which involve children involve an assessment of the child's best interests as a primary consideration. However, although the best interests of the child is a primary consideration, such considerations may be outweighed by other factors, such as the need to maintain the integrity of Australia's migration system and the fact that those subject to removal have no entitlement to remain lawfully in Australia. Consequently, it may not be in a child's best interests to be removed from Australia, but in certain circumstances, this will need to be balanced against other primary considerations.

All removals from Australia involving children (including cases where the removal of an adult affects a child who is remaining in Australia) require the best interest of the child as a primary consideration to ensure compliance with Australia's obligations under Article 3 of the CRC. Where the best interest of the child overwhelmingly outweighs all other relevant considerations in relation to a removal, the case may be referred to the Minister for consideration to exercise his non-compellable powers to grant a visa.

Schedule 2 - Giving of Documents, Schedule 3 - Recoverable Payments, Schedule 4 - Passenger Movement Charge and Schedule 5 - Minor amendments

These Schedules to the Bill do not engage, impact on, or limit in any way, the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights at section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Conclusion

The Bill is compatible with applicable rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.