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This is a Bill, not an Act. For current law, see the Acts databases.
2002
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Migration
Legislation Amendment Bill (No. 1)
2002
No. ,
2002
(Immigration and Multicultural and Indigenous
Affairs)
A Bill for an Act to amend the law
relating to migration, and for related purposes
Contents
Migration Act
1958 3
Migration Act
1958 4
Migration Act
1958 5
Migration Act
1958 7
Migration Act
1958 8
Migration Act
1958 10
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) 2002.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
|
Commencement information |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 to 3 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent |
|
|
2. Schedules 1, 2 and 3 |
A day or days to be fixed by Proclamation, subject to
subsection (3) |
|
|
3. Schedules 4 and 5 |
The day on which this Act receives the Royal Assent |
|
|
4. Schedule 6, items 1 and 2 |
A day or days to be fixed by Proclamation, subject to
subsection (3) |
|
|
5. Schedule 6, items 3, 4 and 5 |
The day on which this Act receives the Royal Assent |
|
|
6. Schedule 6, item 6 |
Immediately after the Border Protection (Validation and Enforcement
Powers) Act 2001 |
|
|
7. Schedule 6, item 7 |
The day on which this Act receives the Royal Assent |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part
of this Act. This information may be included in any published version of this
Act.
(3) If a provision covered by item 2 or 4 of the table does not
commence within the period of 6 months beginning on the day on which this Act
receives the Royal Assent, it commences on the first day after the end of that
period.
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repealed as set out in the applicable items in the Schedule concerned, and any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.
1 After paragraph 172(1)(b)
Insert:
(ba) the person:
(i) enters Australia by virtue of the operation of section 10;
and
(ii) at the time of the person’s birth, has at least one parent who
was immigration cleared on his or her last entry into Australia; or
2 Application provision
The amendment of the Migration Act 1958 made by item 1 of this
Schedule applies to a non-citizen child born in Australia on or after
1 September 1994.
3 At the end of subsection
172(1)
Add:
; or (d) the person is in a prescribed class of persons.
4 At the end of
section 173
Add:
(2) To avoid doubt, a non-citizen child who is taken to have been granted
a visa or visas, at the time of the child’s birth, by virtue of the
operation of section 78, is not to be taken, by virtue of that birth, to
have entered Australia in a way that contravenes section 43.
5 Application provision
The amendment of the Migration Act 1958 made by item 4 of this
Schedule applies to a non-citizen child born in Australia on or after
1 September 1994 who is taken to have been granted a visa or visas under
section 78 of that Act.
1 Subsection 269(1)
After “authorised officer may”, insert “, subject to
subsection (1A),”.
2 After subsection 269(1)
Insert:
(1A) The power of an authorised officer to require and take security under
subsection (1) in relation to an application for a visa applies only
if:
(a) the security is for compliance with conditions that will be imposed on
the visa in pursuance of, or for the purposes of, this Act or the regulations,
if the visa is granted; and
(b) the officer has indicated those conditions to the applicant.
3 Application provision
The amendments of the Migration Act 1958 made by items 1 and 2
of this Schedule apply in relation to all applications for visas made after the
commencement of those items.
1 Subsection 33(5)
Repeal the subsection, substitute:
(5) A special purpose visa ceases to be in effect at the earlier or
earliest of the following times:
(a) if paragraph (2)(a) applies:
(i) if the non-citizen ceases to have a prescribed status—the end of
the day the non-citizen so ceases;
(ii) if the non-citizen ceases to be a member of a class that has a
prescribed status—the end of the day the non-citizen so ceases;
(iii) if the Minister makes a declaration under subsection (9) in
relation to the non-citizen, or a class of persons of which the non-citizen is a
member—the time when that declaration takes effect;
(b) if paragraph (2)(b) applies:
(i) if a day is specified in the declaration as the day the visa ceases to
be in effect—the end of that day;
(ii) if an event is specified in the declaration as the event that causes
the visa to cease to be in effect—the end of the day the event
happens;
(iii) if the non-citizen ceases to be a member of a class of persons
specified in the declaration—the end of the day the non-citizen so
ceases;
(iv) if the declaration is revoked—the end of the day of the
revocation;
(v) if the Minister makes a declaration under subsection (9) in
relation to the non-citizen, or a class of persons of which the non-citizen is a
member—the time when that declaration takes effect.
(5A) For the purposes of subsection (5), the time when a declaration
made by the Minister under subsection (9) takes effect is:
(a) if the Minister specifies a time in the declaration as the time the
declaration takes effect—the time so specified; or
(b) if the Minister does not specify a time in the declaration as the time
the declaration takes effect—the end of the day on which the declaration
is made.
2 At the end of
section 33
Add:
(11) The rules of natural justice do not apply in relation to the making
of a declaration under subsection (9).
1 Section 337
Insert:
Deputy Principal Member means the Deputy Principal Member of
the Tribunal.
2 After paragraph 395(a)
Insert:
(aa) a Deputy Principal Member; and
3 Subsection 404(9) (definition of senior
office)
After “Principal Member”, insert “, the office of Deputy
Principal Member”.
4 Section 405
After “delegate to”, insert “the Deputy Principal Member
or to”.
1 Subsection 229(1)
Omit “unless”, substitute “if”.
2 Paragraphs 229(1)(a) to
(e)
Repeal the paragraphs, substitute:
(a) is not in possession of evidence of a visa that is in effect and that
permits him or her to travel to and enter Australia; and
(b) does not hold a special purpose visa; and
(c) is not eligible for a special category visa; and
(d) does not hold an enforcement visa; and
(e) is a person to whom subsection 42(1) applies.
3 After subsection 229(3)
Insert:
(4) For the purposes of subsection (1), the defendant bears an
evidential burden in relation to establishing that subsection 42(1) does not
apply to a person because of subsection 42(2) or (2A) or regulations made under
subsection 42(3).
Note: For evidential burdens, see subsection
13.3(3) of the Criminal Code.
4 After subsection 232(1A)
Insert:
(1B) For the purposes of paragraph (1)(a), the defendant bears an
evidential burden in relation to establishing that subsection 42(1) does not
apply to a person because of subsection 42(2) or (2A) or regulations made under
subsection 42(3).
Note: For evidential burdens, see subsection
13.3(3) of the Criminal Code.
5 At the end of
section 232A
Add:
(2) For the purposes of subsection (1), the defendant bears an
evidential burden in relation to establishing that subsection 42(1) does not
apply to a person because of subsection 42(2) or (2A) or regulations made under
subsection 42(3).
Note: For evidential burdens, see subsection
13.3(3) of the Criminal Code.
6 After subsection 233(1)
Insert:
(1A) Strict liability applies to the element of an offence against
paragraph (1)(a) that the bringing or coming to Australia of the relevant
non-citizen was under circumstances from which it might reasonably have been
inferred that the non-citizen intended to enter Australia in contravention of
this Act.
Note: For strict liability, see
section 6.1 of the Criminal Code.
7 At the end of
section 241
Add:
(3) Strict liability applies to the element of an offence against
subsection (1) that 2 persons are not de facto spouses of each other, for
the purposes of the regulations, in so far as the regulations require the
Minister to be satisfied of any matter in determining whether the persons are de
facto spouses of each other.
Note: For strict liability, see
section 6.1 of the Criminal Code.
8 Subsection 268BJ(1)
Omit “an authorised officer”.
9 Section 268CM
Omit “section 268CJ or 268CK (officer may ask questions)”,
substitute “a request under section 268CJ or a requirement under
section 268CK”.
10 Subsection 268CN(1)
Omit “an authorised officer”.
11 Subsection 268CN(1)
Omit “section 268CJ or 268CK (officer may ask questions)”,
substitute “a request under section 268CJ or a requirement under
section 268CK”.
1 At the end of
section 48
Add:
(3) For the purposes of this section, a non-citizen who, while holding a
bridging visa, leaves and re-enters the migration zone is taken to have been
continuously in the migration zone despite that travel.
2 Application provision
Section 48 of the Migration Act 1958, as amended by item 1
of this Schedule, applies to all applications for visas made after the
commencement of that item (the commencement time), regardless
of:
(a) whether the bridging visa mentioned in subsection 48(3) of that Act
was granted before or after the commencement time; and
(b) whether the travel mentioned in subsection 48(3) of that Act took
place before or after the commencement time.
3 After subsection 82(7)
Insert:
(7A) However, a bridging visa that ceases to permit the holder to remain
in, or to travel to, enter and remain in, Australia if a substantive visa is
cancelled ceases to be in effect the moment the substantive visa is
cancelled.
4 Application provision
The amendment made by item 3 applies in relation to all bridging visas
that are held at any time after the commencement of that item, regardless of
whether the bridging visas were granted before or after that time.
5 After subsection 137K(3)
Insert:
(3A) In addition to the restriction in subsection (2), a non-citizen
who is in immigration clearance cannot apply for revocation after the end of the
period prescribed in the regulations. The regulations must specify when that
period begins to run.
6 Subsection 245B(11) (the subsection (11)
inserted by item 6 of Schedule 2 to the Border Protection
(Validation and Enforcement Powers) Act 2001)
Re-number as subsection (12).
7 Subsection 338(3A)
After “migration zone”, insert “, and was not in
immigration clearance,”.