BILLS DIGEST NO. 112, 2017–18              14 June 2018

Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018

Claire Petrie
Law and Bills Digest Section 

Date introduced: 28 March 2018

House:  House of Representatives

Portfolio: Home Affairs

Commencement: Sections 1 to 3 commence on Royal Assent. Schedules 1, 3 and 5 commence the day after Assent. Schedule 2 and 4 commence at Proclamation, or 6 months after Assent, whichever occurs first.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at June 2018.

Purpose of the Bill

The Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018 (the Bill) is an omnibus Bill which makes various amendments to migration, customs and passenger movement laws. The Bill:

•       amends the Migration Act 1958 to:

–      clarify that where the removal of a non-citizen from the migration zone to another country is unsuccessful, a visa is not required to bring the person back to Australia and they remain subject to statutory bars on subsequent visa applications, where applicable (Schedule 1)

–      provide that the Minister may make documents available to a person by way of an online account (Schedule 2)

•       amends the Customs Act 1901 to:

–      provide that the Commonwealth may appropriate money from the Consolidated Revenue Fund to pay refunds, rebates or drawbacks of customs duty in circumstances where those payments have no other statutory basis (Schedule 3)

–      make minor technical amendments (Schedule 5) and

•       amends the Passenger Movement Charge Collection Act 1978 to specify that regulations may make provision for the charging and recovery of fees in relation to the Passenger Movement Charge (Schedule 4).

Committee consideration

Senate Standing Committee for the Selection of Bills

On 10 May 2018 the Selection of Bills Committee recommended that the Bill not be referred to a committee.[1]

Senate Standing Committee for the Scrutiny of Bills

In its report on 9 May 2018, the Scrutiny of Bills Committee stated that it had no comment on the Bill.[2]

Policy position of non-government parties/independents

Non-government parties and independents have not commented on the Bill at the time of writing.

Position of major interest groups

No comments have been made by interest groups about the Bill at the time of writing.

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[3]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights reported on the Bill on 8 May 2018.[4] It raised concerns with the Schedule 1 amendments in relation to the expanded application of the ‘visa bar’ under the Migration Act, and requested information from the Minister in relation to this.

These concerns are discussed in more detail under the ‘Migration Act amendments’ heading below.

Migration Act amendments

Summary of changes

The Bill amends the Migration Act to:

•       clarify that if a person is unsuccessfully removed from Australia under section 198, they do not require a visa to return

•       provide that where a person leaves the migration zone but returns as the result of an unsuccessful section 198 removal, they remain subject to a statutory bar against applying for further visas (if applicable) and

•       enable the Department to deliver documents to a person through their online ImmiAccount.

Removal from Australia

Requirement for visa when travelling to Australia

Background

Section 42 of the Migration Act provides that a non-citizen must not travel to Australia without a visa that is in effect. A non-citizen who is in the migration zone without a valid visa is an unlawful non-citizen.[5] Section 198 requires the removal from the migration zone of any non-citizen who does not hold a visa that is in effect, and who is unable to resolve their visa status. Removal must occur ‘as soon as reasonably practicable’.

There are some specified exceptions to the section 42 requirement for travel with a visa—relevantly, existing paragraph 42(2A)(d) provides that an exception arises where:

•       a non-citizen is removed under section 198 to another country but

•       is refused entry by that country and returns to Australia as a result and

•       would be an ‘unlawful’ non-citizen if they were in the migration zone.[6]

Proposed amendments

Item 2 of Schedule 1 repeals paragraph 42(2A)(d) and inserts proposed paragraphs 42(2A)(d) and (da), which set out two circumstances in which a non-citizen removed under section 198 can return to Australia without a visa.

Firstly, proposed paragraph 42(2A)(d) provides that a visa is not required where an attempt to remove a non-citizen under section 198 is made but not completed, the non-citizen travels to Australia as a direct result of this, and the person would be an unlawful non-citizen if they were in the migration zone.

Secondly, proposed paragraph 42(2A)(da) applies where removal under section 198 is completed but the non-citizen does not enter the other country—for example, due to being refused entry by that country—and would be an unlawful non-citizen if they were in the migration zone.

The amendments expand the exceptions to the section 42 visa requirement, in circumstances where the Department seeks to remove a person from Australia under section 198. These changes recognise that removal may not be successful for reasons other than the destination country refusing entry. The Explanatory Memorandum provides examples of such reasons:

… the non-citizen could be refused entry to a transit country, an aircraft could be forced mid-flight to return to Australia [or] the Government could decide to cancel the removal in response to an Interim Measures Request from the United Nations…[7]

These amendments may affect the Department’s processes in bringing a person back to Australia where removal is unsuccessful, but they do not change or regularise the person’s status. Existing subsection 42(4) provides that none of the exceptions under subsection 42(2A) affect a
non-citizen’s status in the migration zone as an unlawful non-citizen.

Bar on further visa applications

Background

Under section 48 of the Migration Act, a person is barred from applying for most visas if:

•       they are in the migration zone

•       they do not hold a substantive visa (that is, they are on a bridging visa) and

•       since last entering Australia, have either had a visa application refused or a visa cancelled.[8]

A person falling within the scope of section 48 may only apply for a visa class prescribed in the Regulations—this currently includes protection visas, partner and child visas.[9] Section 48A provides a similar bar against subsequent applications for a protection visa where a person has already had a protection visa cancelled or refused.[10]

These two statutory bars apply only for as long as a person remains in the migration zone after their visa is cancelled or refused. However, where a person is removed from the migration zone under section 198, and then returns to Australia in circumstances provided for under existing paragraphs 42(2A)(d) or (e),[11] then for the purposes of these statutory bars they are taken to have been continuously in the migration zone.[12]

Proposed amendments

The Bill amends sections 48 and 48A in line with its amendments to section 42, with the effect being that where a section 198 removal is unsuccessful (whether because the removal is not completed[13] or because the person doesn’t enter the other country[14]), and the person returns to Australia, they will be taken to have been continuously in the migration zone. This means that if prior to the person’s removal they would have been barred from making a visa application under either section 48 or 48A, this will continue to be the case when they return to Australia.

Commentary

The Parliamentary Joint Committee on Human Rights raised concerns about this measure, which it noted will expand the circumstances in which the statutory visa bar applies. The Committee queried whether the proposed amendments are compatible with the right to liberty, right to
non-refoulement and right to an effective remedy, as well as with the obligation to consider the best interests of the child.[15] It suggested there is a risk that a person barred from applying for a new protection visa (for example) ‘could be subject to immigration detention for an extended period given that an attempt to deport the person has already failed’, or could be deported even if owed protection obligations.[16]

The Committee has requested advice from the Minister on a number of points, including:

•       why it is necessary to apply a visa bar to non-citizens which the government has attempted to remove under section 198, and whether there are adequate safeguards in place to ensure a person is not subject to arbitrary detention

•       the compatibility of the measure with the obligation of non-refoulement and

•       the way in which the obligation to consider the best interests of the child will be applied in the context of the measure.[17]

Delivery of documents

Background

Section 494B of the Migration Act provides for different ways in which the Minister (or a delegate) can give documents to a person.[18] This currently includes by handing the document to the recipient or another person at the same address, dispatch by prepaid post or transmission by fax, email or other electronic means. Certain provisions in the Act and regulations require the Minister to use one of the methods in section 494B; in other circumstances the Minister is not restricted by this provision and may give the document to the relevant person by any method that is considered appropriate.[19]

Section 494C sets out when a person will be taken to have received a document, which varies depending on the method of delivery.[20] This is also known as ‘deemed receipt’; the actual date a person has received the document—or even whether they have received it at all—is not relevant.[21] Deemed receipt is important for determining when particular statutory timeframes begin running. For example, various provisions under the Migration Act and regulations specify a time period in which a person must respond to a request for information or lodge an application for review of a decision—these periods will usually (though not always) be calculated from the date of notification.[22]

In sending documents electronically, the Department is also subject to requirements under the Electronic Transactions Act 1999 (Cth). This Act provides that a document must not be sent electronically if the person has not consented to information being given in this way, and if the officer does not have a reasonable expectation that the communication will be ‘readily accessible so as to be useable for subsequent reference’.[23]

Proposed amendments

The amendments in Schedule 2 are intended to enable the Department to send documents to a person through their online ImmiAccount, which is used to lodge and track online visa and citizenship applications.[24] Item 3 inserts proposed subsection 494B(5A) which provides that the Minister may make a document available by way of an online account of the recipient. In the case of a minor, a document can also be sent to the person the Minister reasonably believes to be the carer of the minor.[25]

Proposed subsection 494C(6) states that where the Minister gives a document to a person via their online account, the person is taken to have received the document at the end of the day on which it is made available.[26] This is the same deemed time of notification as for other methods of electronic delivery, such as fax and email.[27] In contrast, when a document is sent by prepaid post within Australia, the applicant is deemed to have received it seven working days after the date of the document.[28]

It is unclear whether the amendments are strictly required—as noted above, the Migration Act already provides for the delivery of documents by email, fax and ‘other electronic means’, which would possibly cover delivery via an online account. However, the changes create a clearer statutory basis for providing documents in this way.[29]

Customs Act amendments

Summary of changes

The Bill amends the Customs Act to:

•       authorise appropriations from the Consolidated Revenue Fund (CRF) where customs clients mistakenly claim refunds or rebates and

•       correct an error in which the words ‘to an external place’ were left out of parts of section 58A of the Act.

CRF appropriations

Background

Section 163 of the Customs Act provides for the making of refunds, rebates and remissions of duty, while section 168 authorises the payment of drawbacks of duty. The Customs Regulation 2015 sets out the circumstances in which such refunds, rebates and drawbacks will be payable.[30] These provisions ensure that such payments from the Consolidated Revenue Fund (CRF) will be authorised for the purposes of section 83 of the Constitution, which requires any appropriations from the CRF to have a statutory basis.[31]

However, Schedule 3 of the Bill seeks to address a possible gap in the coverage provided by these provisions. The Explanatory Memorandum states that this gap may occur because under the Integrated Cargo System—the computerised reporting system used by customs clients—the collection, refund and drawback of duty largely proceeds on a self-assessment basis.[32] This may lead to a client claiming a refund or drawback in circumstances other than those authorised by the Act and Regulation.

Proposed amendments

Item 5 of Schedule 3 inserts proposed section 278 into the Customs Act, which authorises the Commonwealth to pay a purported refund, rebate or drawback of duty to a person in circumstances where there is no other statutory basis for the payment.[33] Proposed subsection 278(3) provides that the CRF is appropriated for the purposes of making such payments.

This effectively works as a safety net against a possible constitutional breach—it means that if the Department pays a refund or drawback to a person who is not entitled to it (for example, because the person has made a reporting error) the payment itself remains constitutionally valid. The provision does not create an entitlement to the refund or drawback, or permit the person to keep the amount. Proposed subsection 278(2) expressly provides that such payment becomes a debt due to the Commonwealth.

Existing section 165 provides the Comptroller-General of Customs with the power to demand the payment of duty, or an overpaid drawback, refund or rebate of duty, as a debt due to the Commonwealth.[34] It sets out requirements for how and when such demands are to be made, and provides that such debts may be sued for and recovered in court if they arise as a result of fraud or evasion.[35] Items 1 to 3 of Schedule 3 make consequential amendments to section 165 to extend the Comptroller-General’s power to recover payments to those debts due to the Commonwealth under proposed subsection 278(2). Item 4 amends subsection 273GA(1) to provide that a decision of the Comptroller-General to demand payment of an amount under proposed subsection 278(2) is reviewable by the Administrative Appeals Tribunal.

Proposed section 279 creates a reporting requirement for payments made under proposed section 278. This requires the Secretary to include in the Department’s annual report the number of such payments which APS employees in the Department are aware of having been made during the relevant financial year; the number of payments from previous years of which they become aware; and the total amount of each of these categories of payments.[36]

Minor amendments

Section 58A of the Customs Act currently controls the direct movement of persons and goods between ‘external places’ and sea installations installed in the ‘adjacent area’ or the coastal area of Australia.[37] In relation to persons, it is an offence to travel between a sea or resources installation and an external place without the person being made available for questioning in Australia for the purposes of the Act (subsections 58A(2) and (4)). In relation to goods, it is an offence to move goods between a sea or resources installation and an external place without the goods being make available for examination in Australia for the purposes of the Act (subsections 58A(3) and (5)). External place is defined to mean:

(a)  a Territory other than an internal Territory; or

(b)  a foreign country.[38]

The Explanatory Memorandum states that legislative amendments in 1999 inadvertently removed the words ‘to an external place’ from subsections 58A(4) and (5).[39] Items 1 and 2 of Schedule 5
re-insert these words back into the two subsections.

This is a technical amendment and is unlikely to have a substantive effect.

Passenger Movement Charge Collection Act amendments

Background

The Passenger Movement Charge Collection Act provides for the collection of a passenger movement charge, currently $60, from all people who depart Australia.[40] It sets out a number of exemptions to the charge, as well as circumstances in which refunds are payable.[41] Existing section 15 of the Act gives the Governor-General the power to make regulations prescribing matters for carrying out or giving effect to the Act, including in relation to refunds, the appointment of bodies or persons as approved agents and prescribing penalties for offences against the regulations.

Proposed amendments

Item 2 of Schedule 4 amends section 15 to insert proposed subsection 15(2). This states that the regulations may make provision for:

•       the charging and recovery of fees in respect of the payment of charge (or equivalent)

•       the way in which such fees are to be paid and

•       the refund of such fees.

The Explanatory Memorandum notes that this is intended to allow for the recovery of merchant fees incurred by the Department when people pay for the charge 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.[42]

© Commonwealth of Australia

Creative Commons

With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.

In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.

To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.

Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.

Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.

Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library’s Central Enquiry Point for referral.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

[1].              Senate Standing Committee for the Selection of Bills, Report, 5, 2018, The Senate, Canberra, 10 May 2018, p. 4.

[2].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 5, 2018, The Senate, Canberra, 9 May 2018, p. 30.

[3].              The Statement of Compatibility with Human Rights can be found at pages 22–28 of the Explanatory Memorandum to the Bill.

[4].              Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 4, 8 May 2018, pp. 4–11.

[5].              Migration Act 1958 (Cth), section 14.

[6].              Ibid., paragraph 42(2A)(d).

[7].              Explanatory Memorandum, Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018, p. 8.

[8].              Section 48 does not apply where a visa is cancelled on character grounds—this is dealt with separately under section 501E, which limits subsequent visa applications where a person’s visa is cancelled, or application refused, on character grounds.

[9].              Migration Regulations 1994 (Cth), section 2.12.

[10].              Section 48B provides the Minister with discretion to lift the section 48A bar and permit a person to make a subsequent protection visa application, where the Minister believes it is in the public interest to do so. There is no equivalent discretion in relation to the section 48 bar.

[11].              Paragraph 42(2A)(e) applies where a non-citizen is removed, and before the removal a federal court makes an order in relation to the person, or the Minister gives an undertaking, and the person’s travel to Australia is required to give effect to the order or undertaking (and the Minister makes a declaration accordingly).

[12].              Migration Act, subsection 48(2).

[13].              This is covered by proposed subsection 48(1B) (inserted by item 3 of Schedule 1) and proposed subsection 48A(1AB) (inserted by item 6 of Schedule 1).

[14].              This is covered by the amendments made by items 4 and 7 of Schedule 1, which replace references to existing paragraph 42(2A)(d) with references to proposed paragraph 42(2A)(da).

[15].              Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 4, 2018, op. cit., pp. 4–11.

[16].              Ibid., pp. 5, 8.

[17].              Ibid., pp. 6–11.

[18].              Migration Act, section 494B.

[19].              Ibid., section 494A.

[20].              Also see Migration Regulations 1994, section 2.55.

[21].              Department of Home Affairs (DOHA), ‘PAM3: Act—Code of procedure—notification requirements’, Procedures Advice Manual, LEGENDcom database.

[22].              For example, see: Migration Act, paragraphs 347(1)(b) and 412(1)(b) (in relation to applications for merits review); Migration Regulations, section 2.15 (in relation to prescribed periods to respond to an invitation to give additional information or comments).

[23].              Electronic Transactions Act 1999 (Cth), subsection 9(1).

[24].              DOHA, ‘ImmiAccount’, DOHA website.

[25].              Schedule 2, items 1 and 2.

[26].              Schedule 2, item 4.

[27].              Migration Act, subsection 494C(5).

[28].              Ibid., subsection 494C(4).

[29].              A Hawke, ‘Second reading speech: Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018’, House of Representatives, Debates, 28 March 2018, p. 3061.

[30].              Customs Regulation 2015 (Cth).

[31].              Australian Constitution, section 83.

[32].              Explanatory Memorandum, Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018, p. 15.

[33].              Proposed subsection 278(1).

[34].              Customs Act 1901 (Cth), subsection 165(3).

[35].              Ibid., subsections 165(4)–(6).

[36].              Proposed subsection 279(1).

[37].              An ‘adjacent area’ is a defined term equating to the area of waters beyond the territorial sea to the limits of the continental shelf: Customs Act, subsection 4(1).

[38].              Customs Act, section 4.

[39].              Explanatory Memorandum, Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018, p. 20; Customs Legislation Amendment Act (No. 1) 1999, Schedule 1, clauses 17 and 18.

[40].              The charge is imposed by the Passenger Movement Charge Act 1978 (Cth), section 5. For more information see: DOHA, ‘Passenger Movement Charge (PMC)’, DOHA website.

[41].              Passenger Movement Charge Collection Act 1978 (Cth), section 5 (in relation to exemptions) and section 7 (in relation to refunds).

[42].              Explanatory Memorandum, Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018, p. 18.