(8) The only condition for the performance of the duty under subsection (5) is that the Minister thinks that it is in the public interest to direct the officer to take an unauthorised maritime arrival, or a class of unauthorised maritime arrivals, under subsection (2) to the regional processing country specified by the Minister in the direction.
(9) The rules of natural justice do not apply to the performance of the duty under subsection (5).
(10) A direction under subsection (5) is not a legislative instrument.
Not in immigration detention
(11) An unauthorised maritime arrival who is being dealt with under subsection (3) is taken not to be in immigration detention (as defined in subsection 5(1)).
No civil liability for taking to regional processing country
(11A) No civil liability is incurred by an officer, the Minister or the Commonwealth in relation to any act or thing done, or omitted to be done, by the officer or the Minister in good faith and in the exercise of the officer’s or Minister’s powers, or the performance of the officer’s or Minister’s functions or duties, under this section.
(11B) No civil liability is incurred by an officer, an officer of the Commonwealth (including the Minister) or the Commonwealth in relation to any act or thing done, or omitted to be done:
(a) by the officer or officer of the Commonwealth in good faith and:
(i) in the exercise of the officer’s or the officer of the Commonwealth’s powers; or
(ii) in the performance of the officer’s or the officer of the Commonwealth’s functions or duties; or
(b) by a regional processing country or another foreign country; or
(c) by any person in a regional processing country or another foreign country;
in relation to the acceptance or receipt by a regional processing country or another foreign country, or ongoing presence in a regional processing country or another foreign country, of an unauthorised maritime arrival taken to a regional processing country under this section (the applicable country), including any act or thing done or omitted to be done:
(d) under or in relation to an arrangement (within the meaning of section 198AHA) mentioned in subsection 198AHA(1) that is in relation to the regional processing functions (within the meaning of section 198AHA) of the applicable country; or
(e) in relation to the regional processing functions (within the meaning of section 198AHA) of the applicable country; or
(f) under or in relation to a third country reception arrangement (within the meaning of section 198AHB); or
(g) in relation to the third country reception functions (within the meaning of section 198AHB) of the applicable country.
Meaning of officer
(12) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.
198AE Ministerial determination that section 198AD does not apply
(1) If the Minister thinks that it is in the public interest to do so, the Minister may, in writing, determine that section 198AD does not apply to an unauthorised maritime arrival.
Note: For specification by class, see the Acts Interpretation Act 1901.
(1A) The Minister may, in writing, vary or revoke a determination made under subsection (1) if the Minister thinks that it is in the public interest to do so.
(2) The power under subsection (1) or (1A) may only be exercised by the Minister personally.
(3) The rules of natural justice do not apply to an exercise of the power under subsection (1) or (1A).
(4) If the Minister makes a determination under subsection (1) or varies or revokes a determination under subsection (1A), the Minister must cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination, the determination as varied or the instrument of revocation; and
(b) sets out the reasons for the determination, variation or revocation, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.
(5) A statement under subsection (4) must not include:
(a) the name of the unauthorised maritime arrival; or
(b) any information that may identify the unauthorised maritime arrival; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(6) A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made, varied or revoked between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the determination is made, varied or revoked between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) or (1A) in respect of any unauthorised maritime arrival, whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances.
(8) An instrument under subsection (1) or (1A) is not a legislative instrument.
198AF No regional processing country
Section 198AD does not apply to an unauthorised maritime arrival if there is no regional processing country.
198AG Non‑acceptance by regional processing country
Section 198AD does not apply to an unauthorised maritime arrival if the regional processing country, or each regional processing country (if there is more than one such country), has advised an officer, in writing, that the country will not accept the unauthorised maritime arrival.
Note: For specification by class, see the Acts Interpretation Act 1901.
198AH Application of section 198AD to certain transitory persons
(1) Section 198AD applies, subject to sections 198AE, 198AF and 198AG, to a transitory person if, and only if, the person is covered by subsection (1A) or (1B).
(1A) A transitory person is covered by this subsection if:
(a) the person is an unauthorised maritime arrival who is brought to Australia from a regional processing country under section 198B or repealed section 198C for a temporary purpose; and
(b) the person is detained under section 189; and
(c) the person no longer needs to be in Australia for the temporary purpose (whether or not the purpose has been achieved).
Note: Section 198C was repealed by the Migration Amendment (Repairing Medical Transfers) Act 2019. It provided for certain transitory persons to be brought to Australia for a temporary purpose (including the temporary purpose of medical or psychiatric assessment or treatment).
(1B) A transitory person (a transitory child) is covered by this subsection if:
(a) a transitory person covered by subsection (1A) gives birth to the transitory child while in Australia; and
(b) the transitory child is detained under section 189; and
(c) the transitory child is a transitory person because of paragraph (e) of the definition of transitory person in subsection 5(1).
(2) Subsection (1) of this section applies whether or not the transitory person has been assessed to be covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol.
198AHA Power to take action etc. in relation to arrangement or regional processing functions of a country
(1) This section applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country.
(2) The Commonwealth may do all or any of the following:
(a) take, or cause to be taken, any action in relation to the arrangement or the regional processing functions of the country;
(b) make payments, or cause payments to be made, in relation to the arrangement or the regional processing functions of the country;
(c) do anything else that is incidental or conducive to the taking of such action or the making of such payments.
(3) To avoid doubt, subsection (2) is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action.
(4) Nothing in this section limits the executive power of the Commonwealth.
(5) In this section:
action includes:
(a) exercising restraint over the liberty of a person; and
(b) action in a regional processing country or another country.
arrangement includes an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.
regional processing functions includes the implementation of any law or policy, or the taking of any action, by a country in connection with the role of the country as a regional processing country, whether the implementation or the taking of action occurs in that country or another country.
198AHAA Rules of natural justice do not apply in relation to third country reception arrangements
Entering into third country reception arrangements
(1) The rules of natural justice do not apply to an exercise of the executive power of the Commonwealth to:
(a) enter into a third country reception arrangement with a foreign country; or
(b) do anything preparatory to entering into a third country reception arrangement with a foreign country.
Note: The following are examples of things that are preparatory to entering into a third country reception arrangement with a foreign country:
(a) drafting the arrangement;
(b) negotiating and settling the terms of the arrangement with the foreign country;
(c) providing information to the foreign country about non‑citizens who may be transferred to the foreign country under the arrangement (whether or not those non‑citizens are of a kind mentioned in subsection 198AAA(1));
(d) adopting the arrangement.
Things done in relation to third country reception arrangements
(2) The rules of natural justice do not apply to the doing of a thing in relation to a third country reception arrangement with a foreign country, including in relation to the third country reception functions of a foreign country.
Note: The following are examples of things done in relation to a third country reception arrangement with a foreign country or the third country reception functions of a foreign country:
(a) the things mentioned in subsection 198AHB(2);
(b) an officer of the Department applying for a non‑citizen to be granted permission by a foreign country to enter and remain in that country for the purposes of section 76AAA.
(3) For the purposes of subsection (2), it does not matter whether:
(a) the Commonwealth does the thing by exercising its executive power; or
(b) any of the following do the thing by exercising statutory power under a provision of this Act:
(i) the Commonwealth;
(ii) the Minister, or a delegate of the Minister;
(iii) an officer of the Department.
(4) In this section:
third country reception arrangement has the meaning given by section 198AHB.
third country reception functions has the meaning given by subsection 198AHB(5).
198AHB Power to take action etc. in relation to third country reception arrangement
(1) This section applies if the Commonwealth enters into an arrangement (third country reception arrangement) with a foreign country in relation to the removal of non‑citizens from Australia and their acceptance, receipt or ongoing presence in the foreign country.
Note: The rules of natural justice do not apply to entering into a third country reception arrangement with a foreign country, including anything done preparatory to entering into an arrangement: see subsection 198AHAA(1).
(2) The Commonwealth may do all or any of the following:
(a) take, or cause to be taken, any action (not including exercising restraint over the liberty of a person) in relation to the third country reception arrangement or the third country reception functions of the foreign country;
(b) make payments, or cause payments to be made, in relation to the third country reception arrangement or the third country reception functions of the foreign country;
(c) do anything else that is incidental or conducive to the taking of such action or the making of such payments.
Note: The rules of natural justice do not apply to the doing of a thing in relation to a third country reception arrangement with a foreign country, including anything done in relation to the third country reception functions of a foreign country: see subsection 198AHAA(2).
(3) To avoid doubt, subsection (2) is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action.
(4) Nothing in this section limits:
(a) any other power or duty under this Act; or
(b) the executive power of the Commonwealth.
(5) In this section:
action includes action in a foreign country.
arrangement includes an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.
third country reception functions, of a foreign country, means the implementation of any law or policy, or the taking of any action, by that country (including, if the foreign country so decides, exercising restraint over the liberty of a person) in connection with the role of that country as a country which has agreed to the acceptance, receipt or ongoing presence of persons who are not citizens of that country, whether the implementation or the taking of action occurs in that country or another country.
198AHC Relevance of Ministerial intervention powers to transfer of unauthorised maritime arrivals
(1) For the purposes of subsection 198AD(2), it is irrelevant whether the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to an unauthorised maritime arrival.
(2) To avoid doubt:
(a) an officer’s duty to take, as soon as reasonably practicable, an unauthorised maritime arrival from Australia to a regional processing country under subsection 198AD(2) arises irrespective of whether the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to the unauthorised maritime arrival; and
(b) the fact that the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to an unauthorised maritime arrival is irrelevant to whether or not the taking of the unauthorised maritime arrival from Australia to a regional processing country is reasonably practicable for the purposes of subsection 198AD(2).
(3) Subsection (1) applies whether a request is made by:
(a) the unauthorised maritime arrival; or
(b) an officer of the Department; or
(c) any other person.
(4) Subsection (1) applies whether or not a request has been drawn to the Minister’s attention.
Temporary suspension of duty to transfer unauthorised maritime arrivals
(5) Despite subsection (1), if the Minister decides to consider whether to exercise a Ministerial intervention power (whether on request or otherwise) in relation to an unauthorised maritime arrival, subsection 198AD(2) does not require or authorise an officer to take the unauthorised maritime arrival from Australia to a regional processing country during the period covered by subsection (6).
Note: Despite this subsection, an unauthorised maritime arrival who asks the Minister, in writing, to be taken from Australia to a regional processing country must be taken to that country (see subsection (10)).
Period during which duty to transfer is suspended
(6) For the purposes of subsection (5), the period is 6 months starting on the day (the start day) the Minister decides to consider whether to exercise the Ministerial intervention power in relation to the unauthorised maritime arrival, unless:
(a) before the end of that 6 month period, the unauthorised maritime arrival has agreed, in writing, to a day occurring after the end of that 6 month period nominated, in writing, by the Minister—in which case the period ends on the agreed day (subject to paragraph (b)); or
(b) the period ends earlier under subsection (7).
(7) For the purposes of paragraph (6)(b), the period ends at the earliest of the following times:
(a) the end of the day the Minister decides not to exercise the power in relation to the unauthorised maritime arrival;
(b) the end of the day the Minister decides to stop considering whether to exercise the power in relation to the unauthorised maritime arrival;
(c) if the Minister exercises the power in relation to the unauthorised maritime arrival, and subsection (8) specifies a day—the end of that day;
(d) if the Minister exercises the power in relation to the unauthorised maritime arrival but the exercise does not result in the unauthorised maritime arrival being able to make a visa application—the end of the day that the Minister exercises the power.
(8) For the purposes of paragraph (7)(c), this subsection specifies the following days:
(a) in a case where, as a consequence of the exercise of the Ministerial intervention power, the unauthorised maritime arrival may make a visa application within a specified period—the last day of the period in which the unauthorised maritime arrival could make the visa application;
(b) in any other case where, as a consequence of the exercise of the power, the unauthorised maritime arrival may make a visa application—whichever of the following days occurs first:
(i) the last day of the period determined by the Minister in which the unauthorised maritime arrival could make the visa application;
(ii) the day that is 3 months after the Minister exercises the power.
Scope of suspension of duty to transfer unauthorised maritime arrival
(9) To avoid doubt, subsection (5) of this section:
(a) prevents an unauthorised maritime arrival being taken from Australia to a regional processing country during the period covered by subsection (6); but