Purpose of the Bill

The purpose of the Migration (Validation of Port Appointment) Bill 2018 (the Bill) is to retrospectively validate a notice published in the Commonwealth Gazette on 23 January 2002, which appointed the waters within the Territory of Ashmore and Cartier Islands as a ‘proclaimed port’ for the purposes of the Migration Act 1958. The Bill also aims to ensure that ‘things done ... which relied directly or indirectly on the terms of the Appointment are valid and effective’.[1]

The effect of the port appointment was that a person who passed through Ashmore Reef was deemed to have entered Australia at an excised offshore place, and was therefore an ‘offshore entry person’ (now an ‘unauthorised maritime arrival’) for the purposes of the Migration Act. Since the Bill was introduced, the Federal Circuit Court has found the port appointment notice to be invalid. A consequence of this invalidity is that asylum seekers arriving in Australia via the Ashmore and Cartier Islands between 2002 and 1 June 2013 may not be unauthorised maritime arrivals under the Migration Act.

Background

Validation notice

The Bill has been introduced to retrospectively safeguard the validity of a port appointment notice made by then Immigration Minister, Philip Ruddock, on 21 December 2001 and published in the Commonwealth Gazette on 23 January 2002. The notice was made under paragraph 5(5)(a) of the Migration Act, which provides that the Minister may appoint ports in an external Territory as ‘proclaimed ports’ for the purposes of the Migration Act, and fix the limits of these ports.

The notice appoints as a proclaimed port the area of waters within the Territory of Ashmore and Cartier Islands.[2] The Territory is an uninhabited reef system located in the Indian Ocean, approximately 320 kilometres off Australia’s north-west coast and 144 kilometres south of the Indonesian island of Roti.[3] The Ashmore Reef has been a site at which a significant number of asylum seekers travelling by boat from Indonesia have first entered Australia.[4]

Statutory scheme

In 2001, the Ashmore and Cartier Islands, along with Christmas Island and the Cocos (Keeling) Islands, were excised from Australia’s migration zone for the purposes of the Migration Act.[5] This was aimed at ensuring that arrival at one of these places would not automatically entitle a person to apply for a visa to stay in Australia.[6] As a result of the changes, a person who entered Australia by sea at the Ashmore and Cartier Islands (or another offshore entry place) without a valid, in‑effect visa, automatically became an ‘offshore entry person’ and was barred from making a valid visa application unless permitted by the Minister.[7] An offshore entry person could also be removed from Australia and taken to another country for the assessment of their protection claims.[8]

Further legislative amendments in 2013 replaced references to ‘offshore entry persons’ with the term ‘unauthorised maritime arrivals’, and inserted a more expansive definition.[9] These changes have meant that a person is an unauthorised maritime arrival if they have entered Australia by sea without a valid visa at:

• an excised offshore place at any time after the excision time for that place (in the case of the Ashmore and Cartier Islands, this is 2pm on 8 September 2001) or
• any other place after 1 June 2013.[10]

Entry into Australia

The Migration Act specifies that a person ‘enters Australia’ if they enter the migration zone. The migration zone is defined as:

... the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:

(a) land that is part of a State or Territory at mean low water; and

(b) sea within the limits of both a State or a Territory and a port; and

(c) piers, or similar structures, any part of which is connected to such land or to ground under such sea;

but does not include sea within the limits of a State or Territory but not in a port.[11]

(Emphasis added)

The appointment of a port as a ‘proclaimed port’ may therefore be relevant to the question of whether, and where, a person enters Australia by sea. In particular, for those who arrived in Australia without a valid visa before 1 June 2013 (when the expanded definition of ‘unauthorised maritime arrival’ was inserted into the Migration Act), the place at which they entered Australia, and whether it falls within the meaning of an ‘excised offshore place’, is relevant to whether they are classified as an unauthorised maritime arrival.[12]

Fast track review

The status of a person as an unauthorised maritime arrival, and the date when they entered Australia, may determine the availability and nature of merits review of an adverse visa decision.

Most Protection visa decisions are reviewable by the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT).[13] However, in 2015 the Immigration Assessment Authority (IAA) was established as an independent office within the AAT, to conduct a more limited form of merits review of Protection visa decisions for ‘fast track applicants’—certain unauthorised maritime arrivals who entered Australia between 13 August 2012 and 1 January 2014 and were not taken to a regional processing country.[14] A person’s status as an unauthorised maritime arrival is therefore a precondition for being subject to IAA review.

Unlike review by the Migration and Refugee Division of the AAT, the IAA does not hold hearings but conducts its review on the papers.[15] It can only consider new information in exceptional circumstances, and cannot substitute its own decision—it must affirm the decision under review or remit the matter back to the Department for reconsideration.[16]

Federal Circuit Court decision

In his second reading speech, Minister Peter Dutton stated that the Bill responds to ongoing legal proceedings:

The validity of the Appointment is now being challenged in the Federal Circuit Court and the Federal Court. The Appointment was designed to ensure that illegal maritime arrivals who entered certain waters of the territory of Ashmore and Cartier Islands, an 'excised offshore place' for the purposes of the Migration Act 1958, would thereby become 'offshore entry persons', now 'unauthorised maritime arrivals', under the act. The Appointment was critical to determining the status of persons as unauthorised maritime arrivals under the act who entered Australia via this proclaimed port between 23 January 2002 and 1 June 2013.[17]

On 11 July 2018, the Federal Circuit Court issued decisions in two related matters, and found that the port appointment notice was invalid.[18] The cases involved two asylum seekers from Bangladesh who had arrived in Australia by boat in 2012. The applicants were both classified as unauthorised maritime arrivals and fast track applicants and had their unsuccessful protection visa decisions referred to the IAA, which subsequently affirmed the Department’s decisions.[19]

The applicants sought judicial review in the Federal Circuit Court, arguing that the IAA did not have authority to review the Department’s decisions. Although both had entered the waters surrounding the Ashmore and Cartier Islands in their passage to Australia, they argued that the Gazette Notice appointing this territory as a proclaimed port was invalidly made. As a result of this invalidity, they claimed that they had first arrived in Australia in Darwin—which was not an ‘excised offshore place’—and therefore were not unauthorised maritime arrivals.

The Court agreed with this argument.

Why was the port appointment invalid?

The applicants raised a number of grounds on which the port appointment notice was invalid, with two key arguments being:

• that the Territory of Ashmore and Cartier Islands was not a ‘port’ which could be appointed as a ‘proclaimed port’ under the Migration Act. The applicants argued the word ‘port’ requires features such as pre-existing infrastructure, the actual or anticipated passing of goods into or out of the course of trade with or within Australia, and immigration personnel performing relevant functions and
• that the notice of appointment was not valid due to its description of the area comprising the Territory of Ashmore and Cartier Islands not being sufficiently precise.[20]

The Court accepted the first ground but rejected the second. In determining the meaning of the word ‘port’, Justice Smith considered the role played by ports within the broader statutory scheme, which he described as:

... complex and aimed at tight control of entry into Australia. It is designed to achieve certainty: to know who is in Australia with the relevant authority, and who is not. The definition of “port” that best fits with that scheme must be preferred.[21]

He rejected the Minister’s submission that the word should be construed as meaning ‘a place along the coast where ships may take refuge from storms or any place where persons may be allowed to pass into a country’.[22] Instead, he held that ‘port’ should be understood as being used in its ordinary sense, as:

... a place where there is ordinarily movement of goods and/or passengers between vessels on the water and the land.[23]

Once this definition of ‘port’ was accepted, the Court found ‘there was no real issue’ that the waters surrounding the Ashmore and Cartier Islands did not meet this definition:

The area was an area of water within a reef. It was, it seems, navigable, but it was not disputed that the area was not, and could not be, used for the transfer of goods or passengers from vessels unless that transfer was to another vessel.

For those reasons...the area described in the Instrument was not a “port” within the meaning of the Act. As the Minister only had power to designate a “port” as a “proclaimed port”, the Instrument was beyond the Minister’s power and so was invalid.[24]

Having made this decision, the Court did not need to consider the other grounds raised by the applicants. Nonetheless, Justice Smith found that the description of the territory in the port appointment notice, when considered within the statutory and physical context, was not so unclear to be in itself a basis for invalidity.[25]

Consequence of invalidity

As a result of finding the port appointment notice invalid, the Court found that the applicants could not be unauthorised maritime arrivals—the absence of a validly-proclaimed port in the Ashmore and Cartier Islands meant that they had not ‘entered Australia’ at an ‘excised offshore place’.[26]

Because the applicants were not unauthorised maritime arrivals, they also could not be ‘fast track applicants’ for the purposes of the Migration Act. The IAA therefore did not have jurisdiction to review their Protection visa decisions. The Court accordingly quashed the IAA’s decisions.[27]

The decision appears to mean that the applicants are instead entitled to a more comprehensive form of merits review by the Migration and Refugee Division of the AAT.

Federal Court appeal

In August 2018, Reuben Saul, a lawyer for the firm Estrin Saul which ran the case, stated that the matter had been appealed to the Full Court of the Federal Court of Australia, which also found the port appointment to be invalid.[28] The Federal Court’s decision has not been published at the time of writing.

Committee consideration

Selection of Bills Committee

On 21 June 2018 the Senate Standing Committee for the Selection of Bills recommended that the Bill not be referred to committee for inquiry.[29]

Senate Standing Committee for the Scrutiny of Bills

The Scrutiny of Bills Committee reported on the Bill on 27 June 2018.[30] It noted the retrospective operation of the Bill and raised concerns that the explanatory materials ‘do not provide a sufficiently comprehensive justification’ for this. The Committee stated it:

... expects that legislation which adversely affects individuals through its retrospective operation should be thoroughly justified in the explanatory memorandum. Such legislation can undermine values associated with the rule of law.[31]

The Committee expressed the view that ‘persons should be able to order their affairs on the basis of the law as it stands’.[32] It requested the Minister’s detailed advice as to:

• the basis of the legal challenges to the validity of the appointment notice and the arguments raised by the applicants in such cases
• the number of people who have entered the waters of the Territory of Ashmore and Cartier Islands since 23 January 2002, and details as to the status or outcome of their applications for asylum
• how such persons would have been treated if the 2002 appointment had not been made, and the detriment they might suffer if the 2002 appointment is retrospectively validated and
• the fairness of applying the Bill to persons who have instituted legal proceedings, but where judgment is not delivered before commencement of the Act.[33]

The Minister’s response to the Committee stated that no person would suffer detriment as a result of the Bill:

By reinstating the validity of the Appointment, the Bill does not impose any new obligations or detriment on affected persons. Instead, it maintains the status quo in relation to the processing of UMAs and, where relevant, fast track applicants under the Act who entered Australia via this proclaimed port between 23 January 2002 and 1 June 2013.

...The government considers it unacceptable for individuals to seek to rely on minor and inadvertent omissions in the wording of the Appointment in an attempt to undermine this policy. In order to maintain public confidence in our border protection arrangements, it is imperative that we uphold the original intent of the Appointment.[34]

The Committee noted that the Minister’s response did not identify the number of persons who entered the relevant waters since 23 January 2002, or what has happened to such persons. It reiterated its concern about the Bill’s retrospective operation, stating: ‘a fundamental principle of the rule of law is that the governors, like the governed, are bound by the law and cannot exceed their legal authority’. The Committee drew its scrutiny concerns to the attention of senators.[35]

Policy position of non-government parties/independents

The Bill passed the House of Representatives on 16 August 2018. It was supported by the Australian Labor Party, with Shadow Minister for Immigration and Border Protection, Shayne Neumann, stating:

Labor believes in strong borders which prevent deaths at sea while committing to a more humane and compassionate approach. The poor drafting of immigration legislation and associated instruments should not happen in this place in the first place... The unintended consequences that come as a result of poor drafting have the potential to undermine the integrity of Australia's migration framework. Given this, Labor will support this legislation as the government attempts to clean up this mess of its own creation.[36]

The Australian Greens oppose the Bill, with Adam Bandt arguing: ‘this wasn’t a typo. We are in this situation because the previous government, a Liberal government, took the step of trying to circumvent the rule of law.’[37] Greens Immigration spokesperson, Nick McKim, stated: ‘this is the Labor and Liberal parties trying to rewrite history because their detention of up to 1600 people seeking asylum was based on a legal fiction’.[38]

Independents Cathy McGowan and Andrew Wilkie also did not support the Bill in the House.[39] No other non-government parties or independents have commented on the Bill at the time of writing.

Position of major interest groups

No major interest groups have commented on the Bill at the time of writing.

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact.[40]

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.[41]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights reported on the Bill on 14 August 2018.[42] The Committee raised concerns about the Bill’s compatibility with the obligation of non‑refoulement and right to an effective remedy, right to a fair hearing and right to an effective remedy for impermissible limitations on human rights. It stated:

Given that the 2002 appointment has been found to have been invalidly made, this will have a range of consequences. Specifically...persons who entered the area of waters within the Territory of Ashmore and Cartier Islands without a valid visa may not have been correctly classified as ‘offshore entry persons’ (now UMAs).

The classification of a person as an UMA significantly affects how their rights and obligations under the Migration Act are to be determined and how their applications for a visa may be processed.[43]

In particular, the Committee noted that persons entering the area of waters within the Territory of the Ashmore and Cartier Islands between 13 August 2012 and 1 June 2013, without a valid visa, became ‘fast track applicants’ under the Migration Act. It stated:

The committee has previously considered that the 'fast track' assessment process is likely to be incompatible with Australia's obligations under the International Covenant on Civil and Political Rights and the Convention Against Torture of ensuring independent, effective and impartial review, including merits review, of non-refoulement decisions.[44]

The Committee requested further information from the Minister as to the extent of the impact of the Bill’s retrospective validation of the port appointment notice on Australia’s obligations, including:

• how affected individuals would have been treated if the 2002 appointment had not been made
• the extent of any detriment to individuals if the appointment is validated and
• how many affected persons are yet to have their claims for asylum or applications for protection visas determined, and how many have had their applications refused under the ‘fast track’ process.[45]

Key issues and provisions

The Bill seeks to retrospectively validate both the 2002 port appointment notice and any things done under the Migration Act which may be affected by the notice’s invalidity.

Validation of appointment notice

Clause 3 is aimed at validating the port appointment notice. Subclause 3(2) provides that the notice has, and is taken to always have had, effect as if the following words:

... commencing at a point on the Mean Low Water (MLW) line closest to Latitude degree 13.2 minutes 122 degrees 59.0 minutes...

were omitted and replaced with the following:

... commencing at a point on the Mean Low Water (MLW) line closest to Latitude 12 degrees 13.2 minutes South, Longitude 122 degrees 59.0 minutes East...

While this provision addresses concerns about the clarity of the description in the notice, it may not be strictly necessary, as the Federal Circuit Court has held that the existing description does not in itself invalidate the notice. Nonetheless, the amendment appears to safeguard the notice against any future legal challenges on this basis.

Subclause 3(3) provides that the Migration Act has effect and is taken to have always had effect as if the area of waters in the notice—as affected by the amended wording in subclause 3(2)—were a port for the purposes of that Act. This appears to address the key issue identified by the Federal Circuit Court’s decision, by providing that the area covered by the notice is (and has always been) a port, and therefore capable of being a ‘proclaimed port’ for the purposes of the Migration Act. In this way, the Bill effectively overrides the Court’s finding that the area covered by the appointment notice is not a port.

Validation of acts

Clause 4 is aimed at validating things done under the Migration Act at any time prior to this Act’s commencement, which otherwise would be invalid or ineffective as a result of the port appointment notice being found invalid. Subclause 4(2) specifies that the thing done is as valid and effective as it would have been if the current Bill was in force at the time.

The provision seeks to ensure that actions taken under the Migration Act since 2002 are not now found to be invalid. This would appear to retrospectively validate any actions taken in relation to persons who were classified as unauthorised maritime arrivals due to entering Australia via the Ashmore reef. One clear example arising from the Federal Circuit Court decision is the processing of certain unauthorised maritime arrivals as fast track applicants, including the referral of their applications to the IAA. However, there may be other actions which could also be found invalid as a consequence of the invalidity of the port appointment notice.[46]

Impact on court proceedings

Clause 5 provides that where a court delivers its judgment prior to this Bill being passed, and the judgment sets aside the port appointment or declares it to be invalid, this Bill will not affect any rights or liabilities arising between the parties to that particular proceedings.

This means that the Bill will not affect the Federal Circuit Court’s decisions in DBC16 and DBD16 as far as the decisions relate to the two applicants in those matters. However, if passed, the Bill will prevent other fast track applicants who arrived in Australia in similar circumstances, from making the same argument in respect of their own cases. This will be the case even if proceedings have commenced (but not been finalised) at the time the Bill is passed.