‘If an officer knows or reasonably suspects that a transitory person is a legacy minor, the officer must bring the person to Australia for the temporary purpose…’
On 22 October 2018, the Migration Amendment (Kids Off Nauru) Bill 2018 was introduced by the House of Representatives and read a first time. The Bill commences the day after it receives the Royal Assent. According to the explanatory memorandum to the Bill, it ‘seeks to amend the Migration Act 1958 to require the temporary transfer of children and their families from offshore detention to Australia for the purpose of medical or psychiatric assessment’. The Bill adds subsections (4) to (7) to s 198B of the Migration Act, which currently provides as follows:
(1) An officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia.
(2) The power under subsection (1) includes the power to do any of the following things within or outside Australia:
(a) place the person on a vehicle or vessel;
(b) restrain the person on a vehicle or vessel;
(c) remove the person from a vehicle or vessel;
(d) use such force as is necessary and reasonable.
(3) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.
A transitory person is currently defined as follows under s 5(1) of the Migration Act:
transitory person means:
(a) a person who was taken to another country under repealed section 198A; or
(aa) a person who was taken to a regional processing country under section 198AD; or
(b) a person who was taken to a place outside Australia under paragraph 245F(9)(b) of this Act, or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; or
(c) a person who, while a non-citizen and during the period from 27 August 2001 to 6 October 2001:
(i) was transferred to the ship HMAS Manoora from the ship Aceng or the ship MV Tampa; and
(ii) was then taken by HMAS Manoora to another country; and
(iii) disembarked in that other country; or
(d) the child of a transitory person mentioned in paragraph (aa) or (b), if:
(i) the child was born in a regional processing country to which the parent was taken as mentioned in the relevant paragraph; and
(ii) the child was not an Australian citizen at the time of birth; or
(e) the child of a transitory person mentioned in paragraph (aa) or (b), if:
(i) the child was born in the migration zone; and
(ii) the child was not an Australian citizen at the time of birth.
The new subsections read as follows:
(4) Without limiting subsection (1), a temporary purpose includes:
(a) medical or psychiatric assessment or treatment; and
(b) accompanying another transitory person in respect of whom the power in subsection (1) has or will be exercised.
(5) If an officer knows or reasonably suspects that a transitory person is a legacy minor, the officer must bring the person to Australia for the temporary purpose referred to in paragraph (4)(a).
(6) If an officer knows or reasonably suspects that a transitory person is a member of the same family unit as another transitory person (the transitory minor) who is under 18 and who is being brought to Australia or is in Australia, the officer must, for the temporary purpose referred to in paragraph 4(b), bring the transitory person to Australia at the same time as, or as soon as reasonably practicable after, the transitory minor.
(7) In this section, legacy minor means a transitory person who, on the day this subsection commences:
(a) was in a regional processing country; and
(b) had not previously been the subject of the exercise of a power under subsection (5); and
(c) was under 18.
Disclaimer: the above is a mere tentative analysis of a Bill. The views expressed in those documents might not reflect the view of the Department, the AAT or the courts. The law or policies might have changed between the writing and reading of this article. The author of this article and Migration Law Updates disclaim any liability for any action (or omission) on their part based on any information provided (or not provided) in this article and are under no obligation to keep the general public nor practitioners informed about the matters discussed in this article or any other matters, or any future changes to any of those matters. It is the responsibility of each practitioner to obtain access to primary sources of law and policy by themselves and to carry out their own research and come to their own conclusions on legislation, case law, policies and more. This article is not intended for the general public.
Sergio Zanotti Stagliorio is a Registered Migration Agent (MARN 1461003). He is the owner of Target Migration in Sydney. He can be reached at sergio@targetmigration.com.au