Bills Digest No. 69 2001-02
Migration Amendment (Excision from Migration Zone) Bill 2001
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Migration Amendment (Excision from
Migration Zone) Bill 2001
Date Introduced: 18 September 2001
House: House of Representatives
Portfolio: Immigration and Multicultural Affairs
Commencement: Royal Assent.
To amend the
Migration Act 1958 to create a separate visa application
regime applying to persons who arrive unlawfully at certain places
that are excised from Australian territory for the purposes of the
Migration Act 1958.
This Bill is one of a package of three Bills to
deal with unauthorised boat arrivals and potential asylum seekers,
and related issues such as border protection and people smuggling.
This Bill addresses the excision of certain external territories
from the ordinary visa application and processing regime under the
Migration Act 1958. The second is a bill which deals with
powers and obligations relating to detention of persons and amends
the Migration Regulations 1994. The third deals with the validation
of actions in relation to vessels such as the Tampa and
the Aceng and the clarification and expansion of border
protection powers under the Migration Act 1958 and the
Customs Act 1901.
On 26 August 2001, a routine surveillance flight
by Coastwatch revealed the presence of a fishing boat approximately
80 nautical miles northwest of Christmas Island. The vessel was
carrying 433 potential asylum seekers en route to Australia before
it broke down. The following day Australian Search and Rescue
(AusSAR) broadcast a call to any merchant ships in the vicinity to
render assistance to the stricken vessel. A Norwegian freighter,
the Tampa, responded to the call, intercepting the vessel
and bringing its passengers aboard. The master of the
Tampa, Captain Arne Rinnan, had intended to take the
rescuees to a port in Indonesia but was requested by the passengers
to proceed to Christmas Island. Before the Tampa reached
Australia's territorial waters it was instructed to remain in the
contiguous zone. On 28 August the Tampa issued a distress
signal based on the fact that assistance had not been provided
within 48 hours. On 29 August it proceeded into the territorial
waters surrounding Christmas Island and was interdicted by 45 SAS
members. The same day the Government introduced border protection
legislation into Parliament which would have expressly validated
these actions. The Bill did not pass the Senate.
On 30 August 2001 the Norwegian Ambassador went
on board the Tampa and was handed a letter signed 'Afghan
refugees now off the coast of Christmas Island'. On Friday 31
August 2001 two applications were filed in the Federal Court of
Australia, which commenced the proceedings in Victorian Council
for Civil Liberties Incorporated v The Minister for Immigration and
Multicultural Affairs(1) and Ruddock v
Vadarlis.(2) These applications sought to prevent
the Minister for Immigration and Multicultural Affairs from
allowing the removal of the rescuees from territorial sea off
On 3 September the rescuees were transhipped
from the Tampa to the HMAS Manoora.
On 7 September the HMAS Warramanga
intercepted a second vessel bound for Ashmore Reef. It was boarded
'as a stateless vessel without a flag' and warned to turn around.
Subsequently, the vessel was identified as an Indonesian fishing
vessel, the Aceng. It was repeatedly boarded and the
potential asylum seekers were transhipped to the
On 23 September the Minister for Immigration and
Multicultural Affairs confirmed plans to build a refugee processing
centre on Christmas Island.(4)
For a background of developments surrounding all
these issues the reader is referred to Current Issues Brief No.5
2001-02 Refugee Law - Recent Legislative
On 8 September the Prime Minister announced
proposed legislation to be introduced in the Spring Sittings that
would excise Christmas Island and Ashmore Reef from the 'migration
zone'. He said that the effect would be that 'any arrivals at
Christmas Island or Ashmore Islands ... will not be sufficient
grounds for application for status under the Migration Act'. He
stated, from a legal point of view, that the territories would
'technically become like Norfolk Island which has its own migration
regime but ... is still a territory of Australia'. However, he
indicated that '[t]here will still of course be our obligations
under the refugee convention and those obligations continue to be
fully met by Australia'.(6)
The Government has also stated that it would
excise the territory of the Cocos (Keeling) Islands from the
migration zone with effect from noon 17 September 2001.
The intention of the legislation is, as stated
in the Second Reading Speech by the Minister for Immigration and
Multicultural Affairs, to ensure that the territories 'will become
'excised offshore places' which will mean that simply arriving
unlawfully at one of them will not be enough to allow visa
applications to be made'. The effects of the Bill 'will be limited
only to those who arrive without lawful authority'.(7)
The Second Reading Speech also reiterates that Australia will
continue to honour international obligations.
Australia is a party to both the Convention
Relating to the Status of Refugees done at Geneva on 28 July 1951
(the Refugees Convention) and the Protocol relating to the
Status of Refugees done at New York on 31 January 1967 (the
Refugees Protocol). The Refugees Convention, read together
with the Refugees Protocol, defines 'refugee' relevantly as:
Any person who ... owing to a well-founded fear
of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is
outside the country of his nationality and is unable or, owing to
such fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside the
country of his former habitual residence as a result of such
events, is unable or, owing to such fear, is unwilling to return to
Under the Refugees Convention, a person is not
within the definition of 'refugee' in a number of circumstances,
- where a person has voluntarily returned to his or her country
of nationality or residence, or has acquired a new nationality, or
where the circumstances constituting persecution have ceased to
- where a person is currently receiving protection or assistance
from organs or agencies of the United Nations other than the United
Nations High Commissioner for Refugees,(9)
- where a person has a right of residence in a third country,
which gives him or her rights and obligations equivalent to
citizens of that country,(10) or
- where 'there are serious reasons for considering that' the
person has either:(11)
- committed a crime against peace, a war crime, or a crime
- committed a serious non-political crime outside the country of
refuge prior to his admission to that country as a refugee; or
- been guilty of acts contrary to the purposes and principles of
the United Nations.
This definition has been incorporated into
Australian law. Section 36 of the Migration Act 1958
creates a class of visas, called 'protection visas', which a person
is entitled to apply for if he or she is 'a non-citizen in
Australia to whom Australia has protection obligations under the
Refugees Convention as amended by the Refugees
Protocol'.(12) Thus, it falls to the Department, and on
review the Refugee Review Tribunal and the Federal and High Courts,
to consider the definition of 'refugee' given above, together with
Traditionally, international law viewed asylum
as an act of grace by states.(13) It recognised
diplomatic asylum, involving a permission by the protecting state
to shelter a refugee in its diplomatic premises. It also recognised
territorial asylum, involving a refusal by the protecting state to
extradite or deport a refugee from its territory. Both these forms
of asylum were voluntary and neither derogated from a state's
The Refugees Convention does not contain a right
of asylum for persons who satisfy the definition of 'refugees'.
Refugees have no direct right to gain entry to a country of refuge.
This has been accepted by the courts in a number of
countries.(14) Indeed, this fact was a significant
aspect of the decision of the Full Federal Court in Ruddock v
The most relevant obligation contained in the
Refugee Convention is to guarantee non-refoulement or
non-return of refugees to the place of persecution.(16)
Article 33 provides:
- No Contracting State shall expel or return ("refouler") a
refugee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social
group or political opinion.
- The benefit of the present provision may not, however, be
claimed by a refugee whom there are reasonable grounds for
regarding as a danger to the security of the country in which he
is, or who, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the community
of that country.
That is, once refugees are in Australia, there
is an obligation not to return them to the place of persecution.
This means in effect that Australia needs to have a system for
determining whether a person who claims to be a 'refugee' in
fact satisfies the definition.
Item 1 inserts into section 5
of the Migration Act a new definition of 'excised offshore place'.
Such places will include Christmas Island, Ashmore and Cartier
Islands, Cocos (Keeling) Islands and Australian sea and resources
installations. They will also include any other external
territories, or State or Territory islands, prescribed by
The Bill operates retrospectively by providing
in item 2 definitions of 'excision time'. For
Christmas, Ashmore and Cartier Islands this will be 2 p.m. on 8
September 2001. The relevant time for Cocos (Keeling) Islands will
be 12 noon on 17 September 2001. The relevant time for Australian
sea and resources installations will be the date of Royal Assent.
As indicated above, the Tampa entered Australian waters on
29 August 2001.
Item 3 inserts into section 5 a
related definition of an 'offshore entry person' which will be a
person who entered an excised offshore place after the excision
time for that place and became an unlawful non-citizen because of
Under the Migration Act 1958 an
'unlawful non-citizen' is a person who is present within the
'migration zone' but does not have a visa.(17) The
'migration zone' is basically the physical territory of Australia
and seas within a State or Territory port.(18)
Item 4 inserts new
section 46A into the Migration Act 1958. This new
provision provides that an application for a visa by an offshore
entry person will not be valid if that person is in Australia and
is an unlawful non-citizen (new subsection
46A(1)). As it draws on the definition of 'offshore entry
person' this provision applies only to applications from persons
arriving unlawfully to an excised offshore place after the relevant
New section 46A also deals with
exemptions from new subsection 46A(1). The
Minister will have a personal and discretionary power to determine
that subclause 46A(1) will not apply to an application by a
particular offshore entry person for a particular class of visa if
the Minister thinks that it is in the public interest to do so. If
the Minister does make such a determination, he or she must lay
before each House of Parliament a statement setting out that
determination and the reasons, 'referring in particular to the
Minister's reasons for thinking that the Minister's actions are in
the public interest'. (new subsections 46A(2), (3), and
(4)) The statement must be laid before the Houses within
15 sitting days after 1 July in a year, or 1 January in the
following year, depending on when the determination is made. There
is provision to protect the identity of the offshore entry person
in the statement to Parliament and the Minister has a discretion
not to name other persons.
Special provision is made in new
subsection 46A(7) that the Minister does not have a duty
to consider whether to exercise the power whether he or she is
requested to do so by the offshore entry person, any other person,
or in any other circumstances.
The Migration Amendment (Excision from the
Migration Zone) (Consequential Provisions) Bill 2001 introduced on
the same day as this Bill makes further provisions relevant to
offshore entry persons and potential asylum seekers. The key
- a privative clause, preventing proceedings relating to offshore
entry persons except proceedings brought in the original
jurisdiction of the High Court; and
- a power to declare for the overseas processing of offshore
entry persons, without any express requirement that those countries
be signatories to the Refugee Convention.
Excision time for Christmas Island, Ashmore and
Cartier Islands is to be from 2 p.m. 8 September 2001. Neither the
Explanatory Memorandum nor the Second Reading Speech mention the
reasons for this time and date. It is however the date of the Prime
Minister's doorstop interview at Sydney airport. After this point
of time offshore entry persons become unlawful non-citizens under
the proposed legislation.
The status of persons on board the
Tampa from 29 August to 3 September 2001 will not be
'offshore entry persons'. Nor will they be 'unlawful non-citizens'
as the Migration Act applies this term only to persons in the
migration zone which does not include the territorial sea. The
status of these arrivals therefore remains as 'rescuees' potential
asylum seekers and potential unlawful non-citizens.
The proposed provisions so far as they refer to
offshore entry persons will have no application in the period prior
to 8 September. The Border Protection (Validation and Enforcement
Powers) Bill 2001 (the Validation and Enforcement Bill) validates
the actions of the Commonwealth from 27 August 2001 until the
commencement of the Bill and prevents the institution or
continuation of any proceedings in respect of such actions. The
Validation and Enforcement Bill also preserves the original
jurisdiction of the High Court. But it does not deal with the
status or otherwise of the arrivals in Australian waters.
Under the obligations of the Refugees
Convention, Australia is not to refoule refugees. This
applies to persons found to be refugees within the meaning of the
Convention pursuant to whatever processes are used to determine
that status. Goodwin-Gill, a respected author on refugee law,
Likewise, it is fruitless to pay too much
attention to moments of entry or presence, legal or physical. As a
matter of fact, anyone presenting themselves at a frontier post,
port, or airport will be already be within State territory and
jurisdiction; for this reason, and the better to retain sovereign
control, States have devised a fiction to keep even the physically
present alien technically, legally, unadmitted.(19)
Migration zone, 'in Australia'
and 'excised offshore place'
The proposed amendments do not
alter the definition of 'migration zone' in the Migration Act
1958 or the general criteria for protection visas. They simply
create a particular status of applicant which is subject to a
special visa regime. The effect of new section 46A
is that an application made by an offshore entry person in
Australia will not be valid. With one minor exception, for
applications made within the territorial sea (see below), this
effectively prevents an offshore entry person from ever
validly applying for a visa whilst in Australia. Whether or not
such a person is in an 'excised offshore place' is immaterial.
Clearly, the Government has the option of
processing offshore entry persons on Christmas Island. It also has
the option, using the powers under the Validation and Enforcement
Bill, of moving these persons to an overseas processing place such
as Nauru or Kiribati. Moreover, it has the option of processing
these persons in mainland Australia, ostensibly without any risk
that those persons would have access to the general visa
Ultimately, a person seeking asylum in Australia
who arrives by boat on Christmas Island, Ashmore and Cartier
Islands or the Cocos (Keeling) Islands will be subject to one of
two alternatives. They may be moved overseas (to Nauru or Kiribati)
or remain in Australia. If they are moved overseas they may apply
under Australia's (offshore) humanitarian and refugee program to be
processed by the United Nations High Commissioner for Refugees. If
they remain, they will be subject to Australia's
non-refoulement obligation, but they may not be able to
apply under Australia's (onshore) humanitarian and refugee
program.(20) The benefit of remaining in Australia would
be a limited guarantee of due process under section 75 but an
uncertain refugee determination process. The benefit of moving
overseas would be a certain refugee determination process but a
limited guarantee of due process.
Most of the visas in the Migration Act
1958 require that the applicant is either within or outside
the migration zone. However the key criteria of protection visas,
for present purposes, is the requirement that the applicant be 'in
Australia'. This has implications for the operation of these
amendments. Under the Acts Interpretation Act 1901
'Australia' means 'the Commonwealth of Australia and, when used in
a geographical sense, includes the Territory of Christmas
Island'.(21) It also includes the 'coastal sea' of
Australia(22) and 'coastal sea' includes the
'territorial sea'.(23) Moreover, the Migration Act
1958 applies to 'prescribed Territories' which means 'the
Coral Sea Islands Territory, the Territory of Cocos (Keeling)
Islands, the Territory of Christmas Island and the Territory of
Ashmore and Cartier Islands'.(24) One of the criteria
for a protection visa is that the applicant is 'non-citizen in
Australia'.(25) Thus, in theory, a non-citizen who is
seeking asylum may apply for a protection visa while within the
territorial sea of Christmas Island, etc.
New subsection 46A(1) provides
that a person who enters Christmas Island, Ashmore and Cartier
Islands, or the Cocos (Keeling) Islands (for example) without a
visa may not apply for any visa under the Migration
Act 1958 while they are both within Australia
and within the migration zone (by virtue of the definition
of unlawful non-citizen). Thus, an offshore entry person who
remains in Australia but leaves the migration zone (for example, by
leaving a port and entering the territorial sea) is therefore not
precluded from applying for a protection visa under new
subsection 46A(1) (because they are no longer an unlawful
non-citizen). Neither is an offshore entry person
who enters the territorial sea but does not enter the migration
zone as happened in relation to the rescuees aboard the MV
It could be argued that, on the basis of the dual requirements
in new subsection 46A(1), the measures in this
Bill will not address the concerns arising out of the
Tampa incident. Thus, Theoretically, an unlawful entry
person may apply for a visa whilst in the territorial sea, provided
they do not enter the migration zone or the mainland of Christmas
-  FCA 1297.
-  FCA 1329.
- John Howard, MP, Transcript of Doorstop Interview, Sydney
Airport, 8 September 2001.
- Katharine Murphy, 'Plan for Refugee centre on Christmas
Island', Financial Review, 24/09/01.
- Hancock, N. Refugee Law - Recent Legislative Developments
Current Issues Brief No.5 2001-02.at
- John Howard, MP, Transcript of Doorstop Interview, Sydney
Airport, 8 September 2001.
- The Hon P. Ruddock Second Reading Speech 18 September
- Article 1C of the Refugees Convention.
- Article 1D of the Refugees Convention.
- Article 1E of the Refugees Convention.
- Article 1F of the Refugees Convention.
- If asylum seekers make valid applications for protection visas,
and satisfy any health criteria or other criteria prescribed under
Australian law, the Minister must grant the visas: section 65 of
the Migration Act 1958.
- Ivan Shearer, 'Extradition and Asylum', in Ryan (Ed.)
International Law in Australia, 2nd Ed., Law Book Company,
Sydney, 1984, pp. 201-207.
- See Applicant A (1997) 190 CLR 225 at 273-274 per
Gummow J, Sale v Haitian Centers Council (1993) 125 Law Ed
2d 128 (Supreme Court of the United States), T v Home
Secretary  AC 742 (United Kingdom House of Lords).
-  FCA 1329.
- Australia is also obliged not to expel a refugee
lawfully in its territory 'save on the grounds of national
security or public order' (Article 32(1)), and only in accordance
with 'due process of law' (Article 32(2)).
- Sections 13 and 14.
- Section 5(1).
- Guy Goodwin-Gill, The Refugee in International Law,
2nd Ed., Clarendon Press, Oxford, 1996.
- That is, unless the Minister decides otherwise
- Section 17.
- Section 15B(1)(b).
- Section 15B(4).
- Subsection 7(1).
- Subsection 36(2).
Dy Spooner and Nathan Hancock
26 September 2001
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to
Senators and Members of the Australian Parliament. While great care
is taken to ensure that the paper is accurate and balanced, the
paper is written using information publicly available at the time
of production. The views expressed are those of the author and
should not be attributed to the Information and Research Services
(IRS). Advice on legislation or legal policy issues contained in
this paper is provided for use in parliamentary debate and for
related parliamentary purposes. This paper is not professional
legal opinion. Readers are reminded that the paper is not an
official parliamentary or Australian government document.
IRS staff are available to discuss the paper's contents with
Senators and Members
and their staff but not with members of the public.
© Commonwealth of Australia 2000
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
Published by the Department of the Parliamentary Library,
Back to top