Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019

(3 of 2019)

An Act to amend the law relating to migration, customs and passenger movement charge, and for related purposes

[Assented to 1 March 2019]

The Parliament of Australia enacts:

1   Short title

This Act is the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019.

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Note: This table relates only to the provisions of this Act as originally enacted.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

3   Schedules

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1   Amendments relating to removal

Migration Act 1958

1   Paragraph 42(2A)(ca)

Before "the non-citizen", insert "if".

2   Paragraph 42(2A)(d)

Repeal the paragraph, substitute:

(d) if:

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

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

(iii) the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen; or

(da) if:

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

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

(iii) the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen; or

3   After subsection 48(1A)

Insert:

(1B) If:

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

(b) 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 this section (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.

Note: 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.

4   Paragraph 48(2)(b)

Omit "paragraph 42(2A)(d)", substitute "paragraph 42(2A)(da)".

5   Subsection 48(2) (note)

Repeal the note, substitute:

Note: Paragraphs 42(2A)(da) and (e) relate to the travel of a non-citizen to Australia after the non-citizen has been removed from Australia under section 198.

6   After subsection 48A(1AA)

Insert:

(1AB) If:

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

(b) 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 this section, the non-citizen is taken to have been continuously in the migration zone despite the attempted removal.

Note: 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.

7   Paragraph 48A(1A)(b)

Omit "paragraph 42(2A)(d)", substitute "paragraph 42(2A)(da)".

8   Subsection 48A(1A) (note)

Repeal the note, substitute:

Note: Paragraphs 42(2A)(da) and (e) relate to the travel of a non-citizen to Australia after the non-citizen has been removed from Australia under section 198.

Schedule 2   Giving of documents

Migration Act 1958

1   Subsection 494B(1A)

Omit "methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be,", substitute "method mentioned in subsection (4), (5) or (5A) to dispatch, transmit or make available".

2   Subsection 494B(1A) (note)

Omit "or (5)", substitute ", (5) or (5A)".

3   After subsection 494B(5)

Insert:

Making document available by way of online account

(5A) Another method consists of the Minister making the document available by way of an online account of the recipient established for purposes relating to this Act or the regulations.

4   After subsection 494C(5)

Insert:

Making document available by way of online account

(6) If the Minister gives a document to a person by the method in subsection 494B(5A) (which involves making the document 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.

Schedule 3   Recoverable payments

Customs Act 1901

1   At the end of subsection 165(3)

Add "or subsection 278(2)".

2   Paragraph 165(5)(b)

After "subsection (2)", insert "or subsection 278(2)".

3   Subsection 165(6)

After "subsection (1) or (2)", insert "or subsection 278(2)".

4   Paragraph 273GA(1)(ja)

After "overpaid", insert "or for payment of an amount that is a debt due to the Commonwealth under subsection 278(2)".

5   At the end of Part XVII

Add:

278 Recoverable payments

(1) If, apart from this subsection, the Commonwealth does not have power under this Act or the regulations to pay an amount (the relevant amount ) to a person purportedly as:

(a) a refund or rebate of duty to which the person is entitled to in accordance with section 163; or

(b) a drawback of duty to which the person is entitled to in accordance with regulations made for the purposes of section 168;

then the Commonwealth may pay the relevant amount to the person.

Debt

(2) If a payment is made under subsection (1) to the person, the relevant amount is a debt due to the Commonwealth by the person.

Note: For recovery of the debt, see section 165.

Appropriation

(3) The Consolidated Revenue Fund is appropriated for the purposes of making payments under subsection (1).

279 Reports about recoverable payments

(1) The Secretary of the Department must cause the following information to be included in the Department's annual report for a financial year:

(a) the number of payments under subsection 278(1) that APS employees in the Department are aware of that were made during that financial year;

(b) the total amount of the payments referred to in paragraph (a);

(c) the number of payments under subsection 278(1) that APS employees in the Department became aware of during that financial year that were made during an earlier financial year;

(d) the total amount of the payments referred to in paragraph (c);

(e) for each payment referred to in paragraph (c) - the financial year in which the payment was made.

(2) Information is not required in the Department's annual report if no APS employee in the Department is aware of any payments referred to in paragraph (1)(a) or (c).

Schedule 4   Passenger movement charge

Passenger Movement Charge Collection Act 1978

1   Section 15

Before "The", insert "(1)".

2   At the end of section 15

Add:

(2) The regulations may make provision for and in relation to the following:

(a) the charging and recovery of fees in respect of:

(i) the payment of charge; or

(ii) the payment of an amount to the Commonwealth under an arrangement under subsection 10(1);

(b) the way in which such fees are to be paid;

(c) the refund of such fees.

3   Transitional provision

Regulations in force under section 15 of the Passenger Movement Charge Collection Act 1978 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.

Schedule 5   Minor amendments

Customs Act 1901

1   Paragraph 58A(4)(a)

Omit "whether or not in the course of a longer journey", substitute "to an external place, whether or not in the course of a longer journey".

2   Paragraph 58A(5)(a)

Omit "whether or not the goods are sent on from that place", substitute "to an external place, whether or not the goods are sent on from that place".

3   Subsection 208DA(4)

Omit "sold or otherwise disposed of under subsection (2)", substitute "transferred to the Official Trustee under subsection (2)".

Schedule 6   Transitory persons

Migration Act 1958

1   Subsection 5(1)

Insert:

legacy minor has the meaning given by subsection 198D(1).

relevant transitory person has the meaning given by subsection 198E(2).

treating doctor has the meaning given by subsection 198E(7).

2   Paragraph 42(2A)(ca)

Omit "section 198B", substitute "section 198B or 198C".

3   At the end of section 198B

Add:

(4) Without limiting the generality of subsection (1), a temporary purpose may include:

(a) medical or psychiatric assessment or treatment; or

(b) accompanying a person who has or will be brought to Australia in accordance with subsection (1) or section 198C, if that person is a member of the same family unit or if recommended by a medical practitioner.

4   After section 198B

Insert:

198C Transfer of legacy minors, relevant transitory persons and family members for medical treatment

Transfer of legacy minors

(1) If the Minister approves the transfer of a legacy minor to Australia under section 198D, an officer must, as soon as practicable, bring the legacy minor to Australia for the temporary purpose of medical or psychiatric assessment or treatment.

Note: For legacy minor , see subsection 198D(1).

Transfer of relevant transitory persons

(2) If the Minister approves the transfer of a relevant transitory person to Australia under section 198E or 198F, an officer must, as soon as practicable, bring the person to Australia for the temporary purpose of medical or psychiatric assessment or treatment.

Note: For relevant transitory person , see subsection 198E(2).

Transfer of family unit etc.

(3) If an officer knows or reasonably suspects that a transitory person in a regional processing country is a member of the same family unit as another transitory person (the relevant transferee ) who is being brought to or is in Australia for a temporary purpose, and the Minister has approved the transitory person's transfer under section 198G, the officer must, for the temporary purpose referred to in paragraph 198B(4)(b), bring the transitory person to Australia at the same time as, or as soon as practicable after, the relevant transferee.

(4) If an officer knows or reasonably suspects that a transitory person in a regional processing country has been recommended by a treating doctor to accompany another transitory person (the relevant transferee ) who is being brought to or is in Australia for a temporary purpose, and the Minister has approved the person's transfer under section 198G, the officer must, for the temporary purpose referred to in paragraph 198B(4)(b), bring the transitory person to Australia at the same time as, or as soon as practicable after, the relevant transferee.

(5) If an officer knows or reasonably suspects that a transitory person in a regional processing country is a member of the same family unit as a minor who is in Australia, and the Minister has approved the person's transfer under section 198G, the officer must, for a temporary purpose, bring the transitory person to Australia.

Miscellaneous

(6) Nothing in this section shall affect the operation of section 198B.

(7) An officer must not bring a person to Australia from a regional processing country in accordance with subsection (1), (3), (4) or (5) while the person does not consent to being brought to Australia.

Note: Any transitory person who is brought to Australia for a temporary purpose must be kept in immigration detention whilst in Australia. That immigration detention must continue until the time of removal from Australia or until the Minister determines that immigration detention is no longer required.

198D Minister's approval to bring legacy minors to Australia

(1) As soon as practicable after this section commences, the Secretary must:

(a) identify each transitory person who, on the day this section commences, is both in a regional processing country and aged under 18 (a legacy minor ); and

(b) notify the Minister that each such person is a legacy minor.

(2) After being notified that a person is a legacy minor, the Minister must approve, or refuse to approve, the person's transfer to Australia.

(2A) The Minister must make a decision under subsection (2):

(a) as soon as practicable after being notified; and

(b) no later than 72 hours after being notified.

(3) The Minister must approve the person's transfer to Australia unless:

(a) the Minister reasonably suspects that the transfer of the person to Australia would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979, including because an adverse security assessment in respect of the person is in force under that Act; or

(b) the Minister knows that the person has a substantial criminal record (as defined by subsection 501(7) as in force at the commencement of this section) and the Minister reasonably believes the person would expose the Australian community to a serious risk of criminal conduct.

(3A) Within 72 hours of the Minister being notified under subsection (1), ASIO should advise the Minister if the transfer of the person to Australia may be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979 (including because an adverse security assessment in respect of the person is in force under that Act) and if that threat cannot be mitigated.

(4) For the purposes of subsection (3), the Minister must also have regard to the best interests of the person.

(5) If the Minister does not make a decision under subsection (2) within the time required by subsection (2A), the Minister is, at the end of the time, taken to have approved the person's transfer under subsection (2).

(6) The Minister's powers under this section may only be exercised by the Minister personally.

(7) The regulations may prescribe processes to be complied with in relation to the exercise of the Minister's powers under this section.

198E Minister's approval to bring relevant transitory persons to Australia

(1) If 2 or more treating doctors for a transitory person who is in a regional processing country have notified the Secretary that the person is a relevant transitory person, the Secretary must notify the Minister as soon as practicable.

(2) A transitory person is a relevant transitory person if:

(a) the person:

(i) is in a regional processing country on the day this section commences; or

(ii) is born in a regional processing country; and

(b) in the opinion of a treating doctor for the person:

(i) the person requires medical or psychiatric assessment or treatment; and

(ii) the person is not receiving appropriate medical or psychiatric assessment or treatment in the regional processing country; and

(iii) it is necessary to remove the person from a regional processing country for appropriate medical or psychiatric assessment or treatment.

(3) After being notified by the Secretary that a person is a relevant transitory person, the Minister must approve, or refuse to approve, the person's transfer to Australia.

(3A) The Minister must make a decision under subsection (3):

(a) as soon as practicable after being notified; and

(b) no later than 72 hours after being notified.

(4) The Minister must approve the person's transfer to Australia unless:

(a) the Minister reasonably believes that it is not necessary to remove the person from a regional processing country for appropriate medical or psychiatric assessment or treatment; or

(b) the Minister reasonably suspects that the transfer of the person to Australia would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979, including because an adverse security assessment in respect of the person is in force under that Act; or

(c) the Minister knows that the person has a substantial criminal record (as defined by subsection 501(7) as in force at the commencement of this section) and the Minister reasonably believes the person would expose the Australian community to a serious risk of criminal conduct.

(4A) Within 72 hours of the Minister being notified under subsection (1), ASIO should advise the Minister if the transfer of the person to Australia may be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979 (including because an adverse security assessment in respect of the person is in force under that Act) and if that threat cannot be mitigated.

(5) If the Minister does not make a decision under subsection (3) within the time required by subsection (3A), the Minister is, at the end of the time, taken to have approved the person's transfer under subsection (3).

(6) The Minister's powers under this section may only be exercised by the Minister personally.

(7) A medical practitioner is a treating doctor for a transitory person if the medical practitioner:

(a) is registered or licensed to provide medical or psychiatric services in a regional processing country or in Australia; and

(b) has assessed the transitory person either remotely or in person.

(8) The regulations may prescribe processes to be complied with in relation to the exercise of the Minister's powers under this section.

198F Review by Independent Health Advice Panel of refusal on ground that transfer is not medically necessary

(1) If the Minister refuses to approve a relevant transitory person's transfer to Australia on the ground set out in paragraph 198E(4)(a), the Minister must notify the Independent Health Advice Panel established by section 199A (the panel ) as soon as practicable.

Note: The ground set out in paragraph 198E(4)(a) is that the Minister reasonably believes that it is not necessary to transfer the person to Australia for appropriate medical or psychiatric assessment or treatment.

(2) As soon as practicable, and no later than 72 hours, after being notified by the Minister, the panel must:

(a) conduct a further clinical assessment of the person (whether in person or remotely); and

(b) inform the Minister of the findings of that assessment, including its recommendation that:

(i) the decision to refuse the person's transfer be confirmed; or

(ii) the person's transfer be approved.

(3) If the panel does not inform the Minister of its recommendation under subsection (2) within the time required by the subsection, the panel is, at the end of that time, taken to have recommended that the person's transfer be approved and informed the Minister accordingly.

(4) After being informed by the panel of its findings and recommendation, the Minister must reconsider the decision to refuse to approve the person's transfer and either:

(a) confirm the decision to refuse; or

(b) approve the person's transfer.

(4A) The Minister must make a decision under subsection (4):

(a) as soon as practicable after being informed by the panel of its findings and recommendations; and

(b) no later than 24 hours after being informed by the panel of its findings and recommendation.

(5) If the panel recommends that the person's transfer be approved, the Minister must approve the person's transfer to Australia unless:

(a) the Minister reasonably suspects that the transfer of the person to Australia would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979, including because an adverse security assessment in respect of the person is in force under that Act; or

(b) the Minister knows that the person has a substantial criminal record (as defined by subsection 501(7) as in force at the commencement of this section) and the Minister reasonably believes the person would expose the Australian community to a serious risk of criminal conduct.

(6) If the Minister does not make a decision under subsection (4) within the time required by subsection (4A), the Minister is, at the end of that time, taken to have approved the person's transfer under subsection (4).

(7) The Minister's powers under this section may only be exercised by the Minister personally.

(8) A recommendation made by the panel for the purposes of this section must be agreed to by a majority of the panel's members.

(9) The regulations may prescribe processes in relation to the exercise of the Minister's powers under this section.

198G Minister's approval to bring members of family unit etc. to Australia

(1) An officer must inform the Minister as soon as practicable if the officer has knowledge or reasonable suspicion in relation to a person as mentioned in subsection 198C(3), (4) or (5).

(2) After being informed by an officer under subsection (1), the Minister must approve, or refuse to approve, the person's transfer to Australia.

(2A) The Minister must make a decision under subsection (2):

(a) as soon as practicable after being informed; and

(b) no later than 72 hours after being informed.

(3) The Minister must approve the person's transfer to Australia unless:

(a) the Minister reasonably suspects that the transfer of the person to Australia would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979, including because an adverse security assessment in respect of the person is in force under that Act; or

(b) the Minister knows that the person has a substantial criminal record (as defined by subsection 501(7) as in force at the commencement of this section) and the Minister reasonably believes the person would expose the Australian community to a serious risk of criminal conduct.

(3A) Within 72 hours of the Minister being informed under subsection (1), ASIO should advise the Minister if the transfer of the person to Australia may be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979 (including because an adverse security assessment in respect of the person is in force under that Act) and if that threat cannot be mitigated.

(4) For the purposes of subsection (3), the Minister must also have regard to the best interests of the person.

(5) In deciding whether to approve or refuse to approve the person's transfer, the Minister must have regard to the best interests of the relevant transferee or minor mentioned in the applicable subsection of section 198C.

(6) The regulations may prescribe processes to be complied with in relation to the exercise of the Minister's powers under this section.

198H AAT review of decisions

Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Minister under subsection 198E(3) to refuse to approve a relevant transitory person's transfer to Australia (other than on the ground set out in paragraph 198E(4)(b) or (c)).

198J Tabling of information relating to refusal to approve transitory person's transfer

(1) This section applies in relation to a decision under section 198D, 198E (other than a decision on the ground set out in paragraph 198E(4)(a)) or 198G to refuse to approve a person's transfer to Australia.

(2) The Minister must cause a refusal statement to be laid before each House of the Parliament within 3 sitting days of that House after the day the Minister makes the decision.

(3) In this section:

refusal statement means a statement of reasons as to why the Minister made the decision.

(4) A refusal statement tabled in accordance with subsection (3) must not include:

(a) the name of the person; or

(b) any information that may identify the person; or

(c) the name of any other person connected in any way with any person covered by paragraph (a); or

(d) any information that may identify that other person.

5   At the end of Division 8 of Part 2

Add:

Subdivision D - Independent Health Advice Panel

199A Independent Health Advice Panel

(1) The Independent Health Advice Panel (the panel ) is established by this section.

(2) The objective of the panel is to monitor, assess and report on the physical and mental health of transitory persons who are in regional processing countries and the standard of health services provided to them.

199B Membership and appointment

(1) The panel consists of:

(a) the person occupying the positions of Chief Medical Officer of the Department and the Surgeon-General of the Australian Border Force;

(b) the person occupying the position of Commonwealth Chief Medical Officer; and

(c) not less than 6 other members, including:

(i) at least one person nominated by the President of the Australian Medical Association;

(ii) at least one person nominated by the Royal Australian and New Zealand College of Psychiatrists;

(iii) at least one person nominated by the Royal Australasian College of Physicians; and

(iv) at least one person who has expertise in paediatric health.

(2) Other than the persons mentioned in paragraphs (1)(a) and (b), each member of the panel is to be appointed by the Minister by written instrument for a minimum term of 3 years.

(3) The Minister must not appoint a person as a member of the panel unless the Minister is satisfied that the person:

(a) has expertise in one or more of the following:

(i) the medical profession;

(ii) mental health;

(iii) public health;

(iv) paediatric health; and

(b) has been nominated by one or more of the following bodies:

(i) the Australian Medical Association;

(ii) the Royal Australian and New Zealand College of Psychiatrists;

(iii) the Royal Australasian College of Physicians;

(iv) the Australian Psychological Society;

(v) an Australian professional body prescribed by the regulations.

(4) A person is not entitled to remuneration in respect of their position as a member of the panel.

199C Performance of panel's functions

(1) Subject to this section, the panel is to carry out its functions in such manner as the panel determines.

(2) In performing its monitoring and assessment functions, the panel may:

(a) assign different members of the panel to monitor and assess the health of transitory persons in different regional processing countries; and

(b) travel to regional processing countries to conduct monitoring and assessment activities; and

(c) assess whether initial assessments of transitory persons on arrival in a regional processing country are adequate; and

(d) assess the adequacy of health services and support provided to transitory persons in regional processing countries; and

(e) monitor a transitory person's health on an ongoing basis for as long as the transitory person remains in a regional processing country; and

(f) adjudicate between treating doctors if there are differing clinical assessments and recommended treatment options.

(3) The panel may, at any time it considers appropriate, make recommendations to the Minister in respect of the health of transitory persons who have been taken to regional processing countries, including recommendations relating to:

(a) the treatment of individual transitory persons; and

(b) the treatment of a cohort of transitory persons in regional processing countries; and

(c) medical processes and procedures for managing the treatment of a cohort of transitory persons in regional processing countries.

199D Power to obtain information and documents

(1) If the panel has reason to believe that:

(a) a Department of the Commonwealth or a prescribed authority (a relevant agency ); or

(b) a person who is engaged as a consultant or independent contractor by a relevant agency;

is capable of giving information or producing documents or other records relevant to the panel's performance of its functions, the panel may, by notice in writing given to the head of the agency, require the head of the agency or a person nominated by the head of the agency, to give the information or produce the document or other record to the panel.

(2) The panel may specify in a notice given under subsection (1) the place where, or date or time when the information must be given or the document or other record produced.

(3) The Secretary must provide appropriate assistance to the panel for the purpose of ensuring the panel performs its functions and exercises its powers.

(4) Without limiting subsection (3), assistance provided by the Secretary may include:

(a) allowing the panel appropriate access to records, documents or information relating to the health of transitory persons who are in regional processing countries; and

(b) ensuring the panel has appropriate administrative support and assistance to perform its functions.

199E Reporting

(1) The panel must, as soon as practicable after 31 March, 30 June, 30 September and 31 December in each year, prepare and give to the Minister a report on its operations during the 3-month period that ended on that day.

(2) The Minister must cause a summary of each report to be laid before each House of the Parliament within 3 sitting days of that House after the report is given to the Minister.

(3) A summary report mentioned in subsection (2) must not include any information that may identify a transitory person.

(4) A summary report mentioned in subsection (2) must provide information about the number of transitory persons who have been brought to Australia under sections 198B and 198C in the relevant 3-month period.

(5) The Minister must prepare a response to any report provided in accordance with subsection (1).

(6) The Minister must cause the response to be laid before each House of Parliament within 3 sitting days of that House after the summary report mentioned in subsection (2) was laid before that House.

(7) A report provided to the Minister under subsection (1), and a summary report laid before a House of Parliament under subsection (2) must include a statement on the timeliness of the provision of information and assistance under section 199D.

(8) Notwithstanding subsection (1), the panel must produce its first report as soon as practicable after the commencement of this Subdivision.

(9) The first report of the panel is to consist of an assessment of:

(a) the physical and mental health conditions of transitory persons in regional processing countries; and

(b) the standards of health services provided to transitory persons in regional processing countries.

6   Subsection 474(4) (before table item 1)

Insert:

7   Subsection 499(1)

After "this Act", insert "(other than the panel established under section 199A)".