Bills Digest No. 13, 2018–19
PDF version [611KB]
Claire Petrie
Law and Bills Digest Section
20 August 2018
Contents
Purpose of the Bill
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Date introduced: 20
June 2018
House: House of
Representatives
Portfolio: Home
Affairs
Commencement: The
day after Royal Assent.
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 August 2018.
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.
[1]. P
Dutton, ‘Second
reading speech: Migration (Validation of Port Appointment) Bill 2018’,
House of Representatives, Debates, [proof], 20 June 2018, p. 8.
[2]. ‘Proclaimed port notice for
the Territory of Ashmore and Cartier Islands’, Gazette Notice, GN3,
23 January 2002, p. 270, signed 21 December 2001.
[3]. Department
of Infrastructure, Regional Development and Cities (DIRDC), ‘Ashmore
and Cartier Islands’, DIRDC website.
[4]. The
Guardian has reported that more than 1,600 asylum seekers could be affected
by the invalidity of the port appointment notice: B Doherty, ‘1600
asylum claims could be reopened due to poorly drafted regulation’, The
Guardian (Australia),
21 July 2018. Also see: B Doherty, ‘Australia
sailed asylum seekers to remote reef to prevent them accessing mainland’, The
Guardian (Australia), 24 July 2018.
[5]. Migration
Amendment (Excision from Migration Zone) Act 2001 (Cth).
[6]. P
Ruddock (Minister for Immigration and Multicultural Affairs), ‘Second
reading speech: Migration Amendment (Excision from Migration Zone) Bill 2001’,
House of Representatives, Debates, 18 September 2001, p. 30869.
[7]. Migration Act 1958
(Cth) (as in effect until 31 May 2013), sections 5 (definition of offshore
entry person) and 46A (bar on visa applications by offshore entry
persons).
[8]. Section
198A of the Migration Act, which was in force from September 2001 until
18 August 2012, provided for the removal of offshore entry persons to a
‘declared country’. The Migration
Legislation Amendment (Regional Processing and Other Measures) Act 2012
(Cth), which commenced on 18 August 2012, amended the Migration Act to
require removal of offshore entry persons to a ‘regional processing country’:
see section 198AD.
[9]. Migration Amendment
(Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth).
[10]. Migration
Act, section 5AA.
[11]. Migration
Act, section 5. A port is defined under section 5 as a
proclaimed port or proclaimed airport.
[12]. Due
to amendments made by the Migration Amendment
(Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth),
those who travelled to Australia by boat and without a valid visa since 1 June
2013 will be unauthorised maritime arrivals regardless of whether they
‘entered’ Australia at an excised offshore place. This means that the
significance of the port appointment notice, and the retrospective measures in
the present Bill, is largely confined to those who arrived in Australia before
1 June 2013.
[13]. Migration
Act, Part 7. A small number of Protection visa decisions are reviewable in
the AAT’s General Division (including where the visa is refused or cancelled on
character grounds). For a detailed explanation, see: AAT, ‘Chapter
12—merits review of protection visa decisions’, Guide to refugee law,
last updated July 2018.
[14]. See
definition of fast track applicant under section 5 of the Migration
Act. The IAA was established by the Migration and
Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload)
Act 2014 (Cth). The IAA review process is set out in Part 7AA of the Migration
Act.
[15]. Migration
Act, section 473DB.
[16]. Ibid.,
section 473CC; IAA, ‘The review
process—steps in a review’, IAA website, last updated 22 December 2017. In
remitting a decision, the IAA can provide directions for the Department,
including that the referred applicant is a refugee within the meaning of the Migration
Act.
[17]. Dutton,
‘Second
reading speech: Migration (Validation of Port Appointment) Bill 2018’, op. cit.,
p. 8.
[18]. DBD16
v Minister for Immigration & Anor [2018]
FCCA 1801; DBC16 v Minister for Immigration & Anor [2018]
FCCA 1802.
[19]. DBC16
v Minister for Immigration & Anor, op. cit., at para. 1.
[20]. Ibid
at para. 20.
[21]. Ibid
at para. 41.
[22]. Ibid
at para. 26.
[23]. Ibid
at para. 44.
[24]. Ibid
at para. 55–6.
[25]. Ibid
at para. 88–9.
[26]. Ibid
at para. 6–18, 57.
[27]. Ibid
at para. 57.
[28]. ‘When
a lagoon is not a port - appeal's defeat exposes Australia's asylum process’,
Radio NZ, 16 August 2018; ‘Appeal’s
defeat exposes asylum seeker treatment’, Radio NZ—Dateline Pacific, 14
August 2018.
[29]. Senate
Standing Committee for the Selection of Bills, Report,
6, 2018, The Senate, Canberra, 21 June 2018, p. 3.
[30]. Senate Standing
Committee for the Scrutiny of Bills, Scrutiny
digest, 7, 2018, The Senate, Canberra, 27 June 2018, pp. 1–4.
[31]. Ibid.,
p. 2.
[32]. Ibid.
[33]. Ibid.,
pp. 3–4.
[34]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 8, 2018, The Senate, Canberra, 15 August 2018, pp. 44–5.
[35]. Ibid.,
pp. 46–7.
[36]. S
Neumann, ‘Second
reading speech: Migration (Validation of Port Appointment) Bill 2018’,
House of Representatives, Debates [proof], 16 August 2018, p. 5.
[37]. A
Bandt, ‘Second
reading speech: Migration (Validation of Port Appointment) Bill 2018’,
House of Representatives, Debates [proof], 16 August 2018, p. 7.
[38]. N
McKim, Bipartisan
cruelty toward people seeking asylum continues, media release, 16
August 2018.
[39]. Australia,
House of Representatives, Votes
and proceedings, 128, 2018–19, 16 August 2018, p. 1728.
[40]. Explanatory
Memorandum, Migration (Validation of Port Appointment) Bill 2018, p. 2.
[41]. The
Statement of Compatibility with Human Rights can be found at pages 5–6 of the Explanatory
Memorandum to the Bill.
[42]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 7, 2018, Canberra, 14 August 2018, pp. 15–22.
[43]. Ibid.,
p. 17.
[44]. Ibid.,
pp. 18–9.
[45]. Ibid.
[46]. This
could possibly include the removal of unauthorised maritime arrivals from
Australia under current section 198AD and former section 198A of the Migration
Act. However, the broader implications of the Federal Circuit Court’s
decision remain unclear.
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