Section 198AA — Explanation of Subdivision C of Division 8
Text of provision
This Subdivision is enacted because the Parliament considers that:
(a) people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed; and
(b) unauthorised maritime arrivals, including unauthorised maritime arrivals in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be a regional processing country; and
(c) it is a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries; and
(d) the designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of that country.
Plain English
Section 198AA provides that the purpose of Subdivision C is to provide for the taking of offshore entry persons to regional processing countries. An "offshore entry person" is a person who entered Australia illegally at an excised offshore place. Subdivision C enables the Government to transfer these persons to a designated regional processing country (historically Nauru or Papua New Guinea's Manus Island) for assessment of their protection claims rather than having those claims assessed in Australia.
Practical effect
The offshore processing regime is the legislative foundation for Australia's third-country processing policy. Persons transferred offshore are not entitled to the protections of the Australian protection visa framework while overseas — their claims are assessed under the laws and processes of the receiving country. The legal and human rights implications of offshore processing are deeply contested. The regime has been challenged in the courts and before UN treaty bodies. In practice, the offshore processing system has had a significant deterrence effect on irregular maritime arrivals, though persons in offshore processing have experienced extended detention.