Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
As read a third
time
Migration
Legislation Amendment Bill (No. 1) 2001
No.
, 2001
A Bill for an Act to
amend the law relating to migration, and for related
purposes
Contents
Part 1—Amendments commencing on Royal
Assent 3
Migration Act
1958 3
Part 2—Amendments commencing on
Proclamation 5
Migration Act
1958 5
Part 1—Character
test 10
Migration Act
1958 10
Migration Legislation Amendment (Strengthening of Provisions relating to
Character and Conduct) Act
1998 10
Part 2—Other technical
corrections 11
Migration Act
1958 11
Migration Legislation Amendment Act (No. 1)
1998 11
Migration Legislation Amendment (Migration Agents) Act
1999 11
This Bill originated in the House of Representatives; and,
having this day passed, is now ready for presentation to the Senate for its
concurrence.
I.C. HARRIS
Clerk of the House
of Representatives
House of Representatives
7 February
2001
A Bill for an Act to amend the law relating to migration,
and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Migration Legislation Amendment Act (No.
1) 2001.
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(2) Subject to subsection (3), the following provisions commence on a day
or days to be fixed by Proclamation:
(a) Part 2 of Schedule 1;
(b) items 5, 6 and 7 of Schedule 2.
(3) If a provision mentioned in subsection (2) does not commence under
that subsection within the period of 6 months beginning on the day on which this
Act receives the Royal Assent, the provision commences on the first day after
the end of that period.
(4) Part 1 of Schedule 2 is taken to have commenced on 1 June 1999,
immediately after the commencement of item 23 of Schedule 1 to the Migration
Legislation Amendment (Strengthening of Provisions relating to Character and
Conduct) Act 1998.
(4A) Item 7A of Schedule 2 is taken to have commenced on
16 December 1999, immediately after the commencement of item 11 of
Schedule 1 to the Border Protection Legislation Amendment Act
1999.
(5) Items 8 and 9 of Schedule 2 are taken to have commenced on 1 June
1999.
(6) Item 10 of Schedule 2 is taken to have commenced on 1 March 2000,
immediately after the commencement of item 5 of Schedule 2 to the Migration
Legislation Amendment (Migration Agents) Act 1999.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
Part
1—Amendments commencing on
Royal Assent
Omit “or decisions covered by subsection 475(2) or
(3)”.
Repeal the subsection, substitute:
(3) If a matter relating to a judicially-reviewable decision is remitted
to the Federal Court under section 44 of the Judiciary Act 1903, the
Court must treat the matter as if it were a judicially-reviewable decision under
section 476 or 477 (as appropriate) of this Act.
(4) The limitations, powers and requirements of this Division (other than
section 478) apply to the matter mentioned in subsection (3). In particular, the
only grounds of review available to the Federal Court are those provided for in
section 476 or 477 (as appropriate).
Insert:
In spite of any other law, including sections 39B and 44 of the
Judiciary Act 1903, the Federal Court does not have any jurisdiction in
respect of decisions covered by subsection 475(2) or (4).
Insert:
(1) An application to the High Court for a writ of mandamus, prohibition
or certiorari or an injunction or a declaration in respect of a decision covered
by subsection 475(1), (2) or (4) must be made to the High Court within 35 days
of the notification of the decision.
(2) The High Court must not make an order allowing, or which has the
effect of allowing, an applicant to make an application mentioned in subsection
(1) outside that 35 day period.
(3) The regulations may prescribe the way of notifying a person of a
decision for the purposes of this section.
(1) The amendments made by items 1 and 3 apply in relation to proceedings
(including applications for leave to appeal or other appeal proceedings) begun
after this Part commences.
(2) The amendment made by item 2 applies to matters remitted to the Federal
Court after this Part commences.
(3) The amendment made by item 4 applies to decisions made after this Part
commences.
Part
2—Amendments commencing on
Proclamation
Add:
(1) In any proceeding in the High Court or the Federal Court that raises
an issue in connection with visas (including if a visa is not granted or has
been cancelled), deportation, or removal of unlawful non-citizens, the following
are not permitted:
(a) joinder of plaintiffs or applicants;
(b) consolidation of the proceeding with any other proceedings;
(c) representative or class actions;
(d) a person in any other way being a party to the proceeding jointly
with, on behalf of, for the benefit of, or representing, one or more other
persons, however this is described.
Relationship with other laws
(2) Subsection (1) has effect despite any other law, including in
particular:
(a) Part IVA of the Federal Court of Australia Act 1976;
and
(b) any Rules of Court.
(3) However, subsection (2) does not apply to a provision of an Act if the
provision:
(a) commences after this section commences; and
(b) specifically states that it applies despite this section.
Exceptions to general rule
(4) Subsection (1) does not prevent the following persons from being
involved in a proceeding in any of the ways mentioned in that
subsection:
(a) the applicants in the proceeding and any persons they represent,
if:
(i) the regulations set out a definition of family for the
purposes of this paragraph; and
(ii) all of those applicants and other persons are members of the same
family as so defined;
(b) a person who becomes a party to the proceeding in performing the
person’s statutory functions;
(c) the Attorney-General of the Commonwealth or of a State or
Territory;
(d) any other person prescribed in the regulations.
(1) Only the persons mentioned in this section may commence or continue a
proceeding in the Federal Court that raises an issue (the relevant
issue):
(a) in connection with visas (including if a visa is not granted or has
been cancelled), deportation, or removal of unlawful non-citizens; and
(b) that relates to the validity, interpretation or effect of a provision
of this Act or the regulations;
(whether or not the proceeding raises any other issue).
(2) Those persons are:
(a) in the case of a proceeding under Part 8:
(i) if the decision that gives rise to the relevant issue is covered by
paragraph 475(1)(a) or (b)—the applicant in the review by the relevant
Tribunal; or
(ii) if the decision that gives rise to the relevant issue is covered by
paragraph 475(1)(c)—the person who is the subject of the decision;
or
Note: A person cannot commence or continue a proceeding in
respect of a decision covered by subsection 475(2) or (4) because the Federal
Court has no jurisdiction in respect of those decisions. See section
485A.
(b) in the case of any other proceeding:
(i) a person who is the subject of a visa decision (see subsection (7))
that gives rise to the relevant issue; or
(ii) a person who is the subject of a deportation decision (see subsection
(7)) that gives rise to the relevant issue; or
(iii) a person who is the subject of a removal action (see subsection (7))
that gives rise to the relevant issue; or
(iv) a person who may appeal to the Federal Court under section 44 of the
Administrative Appeals Tribunal Act 1975 in respect of a visa decision or
a deportation decision (see subsection (7)) that gives rise to the relevant
issue; or
(c) in any case:
(i) the Minister; or
(ii) the Attorney-General of the Commonwealth or of a State or Territory;
or
(iii) a person who commences or continues the proceeding in performing the
person’s statutory functions; or
(iv) any other person prescribed in the regulations.
Scope of rule
(3) This section applies to proceedings in the Federal Court’s
jurisdiction under Part 8 of this Act, section 39B or 44 of the Judiciary Act
1903 or any other law.
(4) To avoid doubt, nothing in this section allows a person to commence or
continue a proceeding that the person could not otherwise commence or
continue.
Relationship with other laws
(5) This section has effect despite any other law.
(6) However, subsection (5) does not apply to a provision of an Act if the
provision:
(a) commences after this section commences; and
(b) specifically states that it applies despite this section.
Definitions
(7) In this section:
deportation decision means a decision relating to the
deportation of a person.
removal action means an action to remove a person.
visa decision means a decision relating to a visa (including
if the visa is not granted or has been cancelled).
(1) The amendments made by this Part apply to a proceeding if the
application to commence the proceeding is filed in a court on or after 14
March 2000.
(2) However, the amendments do not apply:
(a) if the relevant court began the substantive hearing of the proceeding
before this Part commenced; or
(b) to an application for leave to appeal, or any other appeal proceeding,
filed on or after 14 March 2000 if the application to commence the original
court proceeding was filed before 14 March 2000.
8
Transitional—proceedings that contravene new section
486B
(1) If:
(a) a proceeding was begun before this Part commences; and
(b) section 486B of the Migration Act 1958, as amended by this
Part, applies to the proceeding (see item 7); and
(c) the proceeding contravenes that section when this Part
commences;
the court must treat the proceeding as if the court had lacked jurisdiction
to hear the proceeding when it was begun.
(2) Despite any other time limit, a person who has an interest in such a
proceeding may commence a fresh proceeding in relation to the matter concerned
within 28 days after this Part commences, so long as the person complies with
the Migration Act 1958, as amended by this Part, and all other
laws relating to such proceedings (including a law relating to standing or
requiring a fee to be paid).
(3) However, subitem (2) does not apply to a person in respect of a
proceeding if item 9 applies to the proceeding.
9
Transitional—proceedings that contravene new section
486C
If:
(a) a proceeding was begun before this Part commences; and
(b) section 486C of the Migration Act 1958, as amended by this
Part, applies to the proceeding (see item 7); and
(c) the proceeding contravenes that section when this Part
commences;
the court must treat the proceeding as if the court had lacked jurisdiction
to hear the proceeding when it was begun.
10
Transitional—refund of application fees
(1) If:
(a) a person has paid a fee to a court in respect of a proceeding;
and
(b) because of the operation of item 8 or 9, the proceeding does not
continue;
then, on application, the Commonwealth must refund the fee to the
person.
Note: Section 28 of the Financial Management and
Accountability Act 1997 contains a standing appropriation for the refund of
such fees.
(2) If the fee was paid in respect of a proceeding brought on behalf of
more than one person, then the Commonwealth must refund the fee to a person
authorised in writing by all such persons to receive the refund.
Despite section 48 of the Acts Interpretation Act 1901, a regulation
made for the purposes of paragraph 486B(4)(a) or (d) or subparagraph
486C(2)(c)(iv) of the Migration Act 1958, as amended by this Part, may
provide that the regulation is taken to have had effect from the beginning of 14
March 2000.
Omit “to grant a visa to a person as a result of not
exercising”, substitute “not to exercise”.
2 At the end of
subsection 501A(1) (after paragraph (d))
Add:
; whether or not the person satisfies the delegate or Tribunal that the
person passes the character test and whether or not the delegate or Tribunal
reasonably suspects that the person does not pass the character test.
Insert:
(4A) Under subsection (2) or (3), the Minister may cancel a visa that has
been granted to a person even if the original decision under subsection (1) was
a decision not to exercise the power conferred by subsection 501(1) to refuse to
grant a visa to the person.
Migration
Legislation Amendment (Strengthening of Provisions relating to Character and
Conduct) Act 1998
4 Paragraph 33(1)(c)
of Schedule 1
Omit “to grant a visa to a person as a result of not
exercising”, substitute “not to exercise”.
Part
2—Other technical
corrections
Omit “or 116”, substitute “, 116 or 128”.
Omit “or 116”, substitute “, 116 or 128”.
The amendment made by item 6 applies in relation to cancellations of visas
under section 128 that take place after the commencement of that item.
7A Subsection 475(3) (second
occurring)
Renumber as subsection (4).
Migration
Legislation Amendment Act (No. 1) 1998
Repeal the item.
Note: This item repeals a misdescribed amendment of the
Migration Act 1958.
9 Item 12 of
Schedule 3 (heading)
Omit “Part 6”, substitute “Part
7”.
Note: This item corrects a misdescribed amendment of the
Migration Act 1958.
Migration
Legislation Amendment (Migration Agents) Act 1999
10 Item 5 of
Schedule 2 (heading)
Repeal the heading, substitute:
5 At the end of subsection
316(1)
Note: This item corrects a misdescribed amendment of the
Migration Act 1958.
(31/00)