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2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MIGRATION LEGISLATION AMENDMENT BILL (NO. 1) 2008
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Immigration and Citizenship,
Senator the Hon. Chris Evans)
MIGRATION LEGISLATION AMENDMENT BILL (NO. 1) 2008
PURPOSE
The Migration Legislation Amendment Bill (No. 1) 2008 ("the Bill") is an Omnibus bill that
will make a range of amendments to the Migration Act 1958 ("the Act"), the Australian
Citizenship Act 2007 ("the Citizenship Act"), the Australian Citizenship (Transitionals and
Consequentials) Act 2007 ("the Citizenship Transitionals Act") and the Customs Act 1901
("the Customs Act") to clarify and improve the effectiveness of the Migration and Citizenship
legislation and also to ensure consistency with Australia's obligations under the United
Nations Convention on the Reduction of Statelessness 1961 ("the Convention")
OUTLINE
Schedule 1 of the Bill will amend the Act to reinstate effective time limits for applying to the
courts for judicial review of migration decisions and streamline the procedures for notifying
parties of a decision of the Migration Review Tribunal and the Refugee Review Tribunal by,
amongst other things, removing the requirement for the tribunals to "hand down" their
decisions. The Schedule will also create a new position of Deputy Principal Member for the
Migration Review Tribunal. Currently the Refugee Review Tribunal includes the position of
Deputy Principal Member but the Migration Review Tribunal does not.
Schedule 2 of the Bill will make a range of amendments to strengthen and improve the border
protection provisions in the Act including measures to: establish an infringement notice
regime as an alternative to prosecution for operators of aircraft and ships who fail to provide
advance passenger and crew reports; clarify that reports must make disclosures in relation to
each passenger and crew member individually; replace the set time frames in the Act for
submitting reports with a power to prescribe the time frames in the Migration Regulations
1994; make passengers and crew on "round trip cruises" subject to immigration clearance on
their return to Australia; and clarify when a special purpose visa ceases.
Schedule 3 of the Bill will make a number of minor amendments to the Act to clarify and
improve certain provisions relating to visas, including amendments to give greater certainty to
the immigration status and immigration clearance of non-citizen children born in Australia;
amendments to ensure that a security may be imposed for compliance with visa conditions
before grant and a range of other amendments to clarify the operation of certain provisions
relating to bridging visas. The Schedule also includes amendments to more effectively
harmonise a number of offences in Divisions 12 and 14A of Part 2 of the Act with the
Criminal Code.
The amendments in Schedule 4 of the Bill cover a broad range of subjects. Notably the
Schedule addresses obiter remarks made by the Full Federal Court in Moore v Minister for
Immigration and Citizenship [2007] FCA 626 (2 May 2007) that cast doubt on whether the
character cancellation provisions apply to temporary and permanent transitional visas in
circumstances where the visas came to be "held" rather than "granted". Schedule 4 to the Bill
amends the Act so that the character cancellation provisions apply to all temporary and
permanent transitional visas, and provides validation of all past character cancellation
decisions in relation to such visas. This Schedule also includes amendments to ensure that
illegal foreign fishers and environmental offenders who were previously granted a bridging
visa or criminal justice visa while on remand or serving a custodial sentence can be removed
from Australia. Further, the Schedule also amends the Act to provide that subject to certain
requirements the Minister is not obliged to give documents to an authorised recipient if the
authorised recipient is not a registered migration agent.
Schedule 5 to the Bill amends the Citizenship Act and the Citizenship Transitionals Act to
clarify the meaning of certain provisions in the Citizenship Act and Citizenship Transitionals
Act and removes inconsistencies across this legislation. The amendments will also ensure
that the Citizenship Act is consistent with Australia's obligations in the Convention.
FINANCIAL IMPACT STATEMENT
The amendments in Schedules 1, 3, 4 will have a minimal financial impact and the
amendments in Schedules 5 are expected to have a nil financial impact.
With regard to the amendments in Schedule 2, it is expected that the Part 3 amendments
associated with the round trip cruises and ship reporting timeframes will result in minimal
costs to the Commonwealth which will be absorbed through existing funding arrangements.
The new infringement notice regime that will be established by Part 2 of Schedule 2 of the
Bill is expected to result in the projected revenue gains of $4.5 million in 2009-10 and $2.3
million in 2010-11. These figures are based on the assumption that the amendments will
commence on 1 July 2009 (therefore there are no projected revenue gains for 2007-08 and
2008-09).
The progressive reduction in revenue between 2009 and 2011 is based on experience with
carrier reporting, when the department commenced feedback reporting to airline and shipping
operators in relation to failures to report on passengers and crew in July 2007.
Airline and shipping operator reporting on passengers and crew in June 2007 was compared
with May 2008 to determine the level of expected improvement. This measured level of
improvement was then extrapolated for future years. On this basis a 40% improvement is
expected in reporting in both 2008-09 and 2009-10. It is envisaged that a 50% improvement
will occur in 2010-11 due to acceleration in reporting compliance as airlines seek to avoid
financial penalties.
MIGRATION LEGISLATION AMENDMENT BILL (NO. 1) 2008
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short title
1. Clause 1 provides that the short title by which this Act may be cited is the Migration
Legislation Amendment Act (No.1) 2008.
Clause 2 Commencement
2. Subclause 2(1) contains a table that sets out the commencement provisions of the Act. The
table provides that:
· Sections 1 to 3 and anything in the Act not elsewhere covered by the table will
commence on Royal Assent;
· Schedules 1 and 2, Parts 1, 3 and 4 of Schedule 3, Schedule 4 and items 1 to 16
of Schedule 5 will commence on a day or days to be fixed by Proclamation.
However, if any provisions do not commence within the period of 6 months
beginning on the day on which the Act receives Royal Assent, they will
commence on the first day after the end of that period.
· Part 2 of Schedule 3 and item 19 of Schedule 5 will commence on the day on
which the Act receives Royal Assent.
· Items 17 and 18 of Schedule 5 will commence on 1 July 2007 immediately
before the commencement of items 5B and 7 of Schedule 3 to the Australian
Citizenship (Transitionals and Consequentials) Act 2007.
1. The note in subclause 2(1) makes it clear that the table only relates to the provisions of
this Act as originally passed by both Houses of the Parliament and assented to. The table will
not be expanded to deal with provisions inserted into this Act after it receives the Royal
Assent.
2. Subclause 2(2) provides that column 3 of the table in subclause 2(1) is for additional
information that may be included in any published version of this Act but which is not part of
this Act (ie: the actual date of commencement of the provisions).
Clause 3 Schedule(s)
3. This clause provides that each Act specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned. In addition, any other
item in a Schedule to this Act has effect according to its terms.
SCHEDULE 1 - Amendments relating to judicial and merits review
Migration Act 1958
Item 1 Section 337
4. This item, together with items 2 to 5 and 14 to 18 in this Schedule, concerns the creation
of a new Deputy Principal Member position for the Migration Review Tribunal ("the MRT").
5. The item inserts a definition of "Deputy Principal Member" in section 337 of the
Migration Act 1958 ("the Act"). It provides, in effect, that for the purposes of Part 5 of the
Act the term "Deputy Principal Member" means the Deputy Principal Member of the MRT.
Item 2 Subsections 354(2) and (3)
6. This item amends section 354 of the Act by substituting new subsections 354(2) and (3).
7. Subsection 354(1) of the Act provides that for a review by the MRT, it shall be constituted
by one, two or three members in accordance with a direction given under subsection 354(2).
Currently, subsection 354(2) provides that the Principal Member, or a Senior Member acting
under guidelines, may give a written direction about who is to constitute the MRT for a
particular review. New subsection 354(2) will extend this to also allow for the Deputy
Principal Member acting in accordance with guidelines to give a written direction about who
is to constitute the MRT for a particular review.
8. Currently, subsection 354(3) provides that the Principal Member may give written
guidelines to Senior Members for giving directions about who is to constitute the MRT for a
particular review. New subsection 354(3) will extend this, so that the Principal Member may
also give written guidelines to the Deputy Principal Member for giving directions about who
is to constitute the MRT for a particular review.
Item 3 After subsection 357(2)
9. This item inserts new subsection 357(2A) in section 357 of the Act.
10. Section 357 provides for who shall preside on the MRT for the purposes of a review
when the Tribunal is constituted by two or three members.
11. New subsection 357(2A) provides that if the Tribunal constituted for a review does not
include the Principal Member but includes the Deputy Principal Member, the Deputy
Principal Member will preside at the review.
Item 4 Paragraph 357(3)(a)
12. This item amends paragraph 357(3)(a) of the Act by inserting the words "or the Deputy
Principal Member" after the words "Principal Member".
13. Subsection 357(3) provides for when a Senior Member shall preside on the MRT for the
purpose of a review when the Tribunal is constituted by two or three members. Currently, the
subsection provides that in such circumstance if the Tribunal as constituted, does not include
the Principal Member but includes only one Senior Member, the Senior Member shall
preside.
14. The effect of this amendment to paragraph 357(3)(a) is that the Senior Member will only
preside in such circumstance if the Tribunal, as constituted, does not include the Principal
Member "or the Deputy Principal Member".
Item 5 Subsection 357(4)
15. This item makes a minor technical amendment consequential to the amendment in item 3
of this Schedule by replacing the words "neither subsection (2) nor (3) applies" in subsection
357(4) of the Act with the words "none of subsections (2), (2A) and (3) applies".
16. Currently, subsection 357(4) provides that if the circumstances in subsections 357(2) and
357(3) do not apply, the Principal Member shall designate one of the members of the Tribunal
as constituted for the review as the presiding member.
17. The effect of this amendment is that the requirement on the Principal Member to
designate a presiding member under this subsection will only operate if subsections (2) and
(3) and new subsection (2A) do not apply.
Item 6 After subsection 368(1)
18. This item relates to the amendment in item 7 of this Schedule which will remove the
requirement in the Act to "hand down" decisions of the MRT and replace the existing
procedures for notifying the parties of a Tribunal decision with a simpler procedure.
19. This item is also relevant to items 30-35 of this Schedule which will reinstate effective
and uniform time limits for applying for judicial review of migration decisions in the Federal
Magistrates Court, the Federal Court and the High Court.
20. The item will insert new subsection 368(2) in section 368 of the Act.
21. Subject to certain restrictions on disclosure contained in paragraphs 375A(2)(b) and
376(3)(b), subsection 368(1) of the Act requires the MRT to prepare a written statement of its
decision on a review setting out the decision, the reasons for the decision, the findings on
material questions of fact and referring to the evidence and other material on which the
findings are based.
22. New subsection 368(2) will provide that a decision of the MRT, other than an oral
decision, is taken to have been made on the date of the written statement prepared under
subsection 368(1) of the Act. Currently, subsection 368B(4) provides, in effect, that in cases
where a decision of the MRT is to be handed down, the date of the decision is the date the
decision is handed down. As existing section 368B and the handing down requirement is
being removed (item 7), it is necessary to insert a provision - new subsection 368(2) - which
specifies a date for when an MRT review decision is taken to have been made.
Item 7 Sections 368A to 368C
23. This item will remove the requirement in the Act to hand down decisions of the MRT and
replace the existing procedures for notifying the parties of a Tribunal decision with a simpler
procedure.
24. The item will repeal existing sections 368A, 368B and 368C of the Act which set out the
current process for handing down review decisions of the MRT and notifying the parties of
the decision.
25. In general terms, the current process requires the MRT to invite a review applicant and
the Secretary to be present when a decision is to be handed down (although there is no
requirement for them to attend) and the Principal Member or other authorised person by the
Principal Member, conducts the handing down by reading the outcome of the decision. The
date of the decision is the date the decision is handed down. If the applicant or their
representative is not present at the handing down, the Tribunal must notify the applicant by
giving them a copy of the written statement prepared under subsection 368(1), within 14 days
after the day on which the decision is handed down. Section 368C provides in effect that
applicants are taken to be notified of a decision when their representatives are notified of the
decision.
26. In addition to repealing existing sections 368A to 368C, this item will also insert new
section 368A into the Act, which sets out the procedure for notifying the parties of an MRT
decision on a review where the decision is not given orally. New subsection 368A(1)
provides that the MRT must notify the applicant by "giving" the applicant a copy of the
written statement prepared under subsection 368(1) of the Act within 14 days after the day on
which the decision is taken to have been made (see item 6 above). The MRT must give a
copy of the written statement to the applicant by one of the methods specified in section 379A
of the Act. That is, by handing it to the recipient, or to another person apparently at least 16
and living or working at the last residential or business address provided by the recipient in
connection with the review. Alternatively the MRT can give the document to the recipient by
prepaid post or other prepaid means, by fax, e-mail or other electronic means, to the last
contact details provided to the MRT by the recipient in connection with the review.
Depending on the method used, a statement "given" within 14 days may or may not also be
received within that time.
27. New subsection 368A(2) requires that a copy of the written statement must also be given
to the Secretary by one of the methods specified in section 379B of the Act. That is, by
handing it to the Secretary or an authorised officer or by post or other means or by fax, e-mail
or other electronic means, to the last contact details notified to the MRT in writing by the
Secretary for the purposes in relation to review applications. Depending on the method used,
a statement "given" within 14 days may or may not also be received within that time.
28. New subsection 368A(3) provides that where the MRT fails to comply with new
subsections 368A(1) and 368A(2) in relation to a decision on a review, this will not affect the
validity of the MRT decision. Although failure to comply with those provisions will mean
that applicants will not be validly notified, the decision itself will not be invalidated. This
new subsection is consistent with section 66 of the Act which relates to notifying applicants
of a primary decision whether to grant or refuse a visa and with existing section 501G of the
Act which relates to notification of a character decision.
Item 8 Subsection 368D(1)
29. This item amends subsection 368D(1) of the Act by omitting "(1)" when it first occurs. It
is a technical amendment consequential to the amendment in item 9 of this Schedule which
repeals subsection 368D(2).
30. In contrast to new section 368A (see item 7 above), subsection 368D(1) deals with cases
where a decision of the MRT is orally given. In general terms, it provides that where the
MRT gives an oral decision on a review application, it must give the applicant and the
Secretary a copy of the written statement prepared under subsection 368(1) within 14 days
after the decision is made and that the applicant is taken to be notified of the decision on the
day the decision is made.
31. This item also inserts a note to inform readers that the heading to amended section 368D
has changed to read "Notifying parties when Tribunal gives an oral decision". This will assist
in clarifying that in contrast to new section 368A, new section 368D deals with notification
when the decision is orally given.
Item 9 Subsection 368D(2)
32. This item repeals subsection 368D(2) of the Act. The subsection currently provides that
where an applicant is in immigration detention because of a decision not to grant or cancel a
bridging visa, the MRT must give the applicant and the Secretary a copy of the written
statement prepared under subsection 368(1) within 14 days after the decision is made. As the
amendments to section 368A have the same effect as subsection 368D(2), this provision is no
longer necessary and notification of applicants in these circumstances will be covered by
amended section 368D.
Item 10 Division 8A of Part 5 (heading)
33. This item makes a minor technical amendment to the current heading of Division 8A of
Part 5 of the Act to reflect the inclusion of new section 379EA in the Division, which is
discussed in item 13 of this Schedule. The amendment will change the heading from
"Division 8A--Giving and receiving review documents" to "Division 8A--Giving and
receiving review documents etc.".
Item 11 At the end of section 379AA (before the note)
34. This item inserts note 1 before the existing note at the end of section 379AA of the Act
referring the reader to new section 379EA, which is discussed in item 13 below.
Item 12 Section 379AA (note)
35. This item makes a minor technical amendment consequential to the amendment in item
11 of this Schedule by omitting the word "Note" at the end of section 379AA and substituting
the words "Note 2".
Item 13 After section 379E
36. This item inserts new section 379EA into the Act.
37. Subsection 52(3C) of the Act currently provides in relation to decisions made by the
Minister or delegate whether to grant or refuse a visa, that if two or more non-citizens apply
for a visa together (for example, where a spouse is part of the primary applicant's visa
application) notification given to any of them about the application is taken to be given to
each of them. However, there is no equivalent to subsection 52(3C) with regard to notifying
review applicants to the MRT and the Refugee Review Tribunal ("the RRT"). To avoid any
uncertainty in relation to the notifying of secondary applicants who have made or sought to
make a combined application, new section 379EA provides that if two or more persons apply
for review of a decision together, any documents given to any of them in connection with the
review are taken to be given to all of them.
38. A similar amendment is included in item 26 of this Schedule in relation to the RRT which
will ensure consistency and greater certainty in the Tribunals' communications with
applicants.
39. This item also inserts two notes after new subsection 379EA. Note 1 informs the reader
that where the MRT gives documents to a person by a method specified in section 379A, the
person is taken to have received the documents at the time specified in section 379C in
respect of that method.
40. Section 379A specifies the methods by which the MRT can give documents to a person
(other than the Secretary) and section 379C provides for when the person is taken to have
received the documents.
41. Note 2 informs the reader that section 379G of the Act deals with the giving of
documents by the MRT to a person's authorised recipient.
42. Section 379G provides, amongst other things, that where a person has notified the MRT
in writing of his or her authorised recipient, the MRT must give any documents to the
authorised recipient instead of the applicant.
Item 14 After paragraph 395(a)
43. This item inserts new paragraph 395(aa) in section 395 of the Act.
44. Section 395 currently provides that the membership of the MRT consists of a Principal
Member and such number of Senior and other members (not exceeding the prescribed
number) as are appointed under the Act.
45. New paragraph 395(aa) provides that if a person is appointed as a Deputy Principal
Member of the MRT (see item 16 below), the membership of the MRT shall also consist of a
Deputy Principal Member.
46. By making the appointment of a Deputy Principal Member discretionary, the Governor-
General acting on Government advice will have the flexibility to appoint, or not appoint, a
Deputy Principal Member in accordance with the management needs of the Tribunal.
47. This item is also consistent with item 27 of this Schedule which deals with the
membership of the RRT.
Item 15 Subsection 396(1)
48. This item amends subsection 396(1) of the Act by omitting the word "The" and
substituting the words "Subject to subsection (1A), the". This is a minor technical amendment
consequential to the amendment in item 16 below, emphasising that the power to appoint a
Deputy Principal Member to the MRT is discretionary.
Item 16 After subsection 396(1)
49. This item inserts new subsection 396(1A) after subsection 396(1) of the Act.
50. Section 396 deals with the appointment of members of the MRT. New subsection
396(1A) provides that the Governor-General may appoint a person to the position of Deputy
Principal Member of the MRT. The use of the word "may" in this context (and the
amendments in items 14 and 15 above) makes it clear that the appointment of a Deputy
Principal Member to the MRT is discretionary.
Item 17 Subsection 404(9) (definition of senior office)
51. This item substitutes the definition of "senior office" in subsection 404(9) with a new
definition that includes the office of Deputy Principal Member within the meaning of that
term. This will ensure that the provisions relating to acting appointments to the MRT in
section 404 of the Act will also apply to the office of the Deputy Principal Member.
Item 18 Section 405
52. This item amends section 405 of the Act by inserting the words "the Deputy Principal
Member or" after the words "delegate to". The amendment will, in effect, allow the Principal
Member to delegate his or her powers other than the power to refer decisions to the
Administrative Appeals Tribunal ("the AAT") to the Deputy Principal Member (as well as to
Senior Members, as is currently the case).
Item 19 After subsection 430(1)
53. This item relates to the amendment in item 20 of this Schedule which will remove the
requirement in the Act to "hand down" decisions of the RRT and replace the existing
procedures for notifying the parties of a Tribunal decision with a simpler procedure.
54. The amendment in this item is also relevant to items 30-35 of this Schedule which will
reinstate effective and uniform time limits for applying for judicial review of migration
decisions in the Federal Magistrates Court, the Federal Court and the High Court.
55. The item will insert new subsection 430(2) in section 430 of the Act.
56. Subject to certain restrictions on disclosure contained in paragraph 438(3)(b), subsection
430(1) of the Act requires the RRT to prepare a written statement of its decision on a review
setting out the decision, the reasons for the decision, the findings on material questions of fact
and referring to the evidence and other material on which the findings are based.
57. New subsection 430(2) will provide that a decision of the RRT, other than an oral
decision, is taken to have been made on the date of the written statement prepared under
subsection 430(1) of the Act. Currently, subsection 430B(4) provides, in effect, that in cases
where a decision of the RRT is to be handed down, the date of the decision is the date the
decision is handed down. As existing section 430B and the handing down requirement is
being removed (item 20), it is necessary to insert a provision - new subsection 430(2) - which
specifies a date for when an RRT review decision is taken to have been made.
Item 20 Sections 430A to 430C
58. This item will remove the requirement in the Act to hand down decisions of the RRT and
replace the existing procedures for notifying the parties of a Tribunal decision with a simpler
procedure.
59. The item will repeal existing sections 430A, 430B and 430C of the Act which set out the
current process for handing down review decisions of the RRT and notifying the parties of the
decision.
60. In general terms, the current process requires the RRT to invite a review applicant and the
Secretary to be present when a decision is to be handed down (although there is no
requirement for them to attend) and the Principal Member or other authorised person by the
Principal Member, conducts the handing down by reading the outcome of the decision. The
date of the decision is the date the decision is handed down. If the applicant or their
representative is not present at the handing down, the Tribunal must notify the applicant by
giving them a copy of the written statement prepared under subsection 430(1), within 14 days
after the day on which the decision is handed down. Section 430C provides in effect that
applicants are taken to be notified of decisions when their representatives are notified of the
decision.
61. In addition to repealing existing sections 430A to 430C, this item will also insert new
section 430A into the Act, which sets out the procedure for notifying the parties of an RRT
decision on a review where the decision is not given orally. New subsection 430A(1)
provides that the RRT must notify the applicant by "giving" the applicant a copy of the
written statement prepared under subsection 430(1) of the Act within 14 days after the day on
which the decision is taken to have been made (see item 19 above). The RRT must give a
copy of the written statement to the applicant by one of the methods specified in section 441A
of the Act. That is, by handing it to the recipient, or to another person apparently at least 16
and living or working at the last residential or business address provided by the recipient in
connection with the review. Alternatively the RRT can give the document to the recipient by
prepaid post or other prepaid means, by fax, e-mail or other electronic means, to the last
contact details provided to the RRT by the recipient in connection with the review.
Depending on the method used, a statement "given" within 14 days may or may not also be
received within that time.
62. New subsection 430A(2) requires that a copy of the written statement must also be given
to the Secretary by one of the methods specified in section 441B of the Act. That is, by
handing it to the Secretary or an authorised officer or by post or other means or by fax, e-mail
or other electronic means, to the last contact details notified to the RRT in writing by the
Secretary for the purposes in relation to review applications. Depending on the method used,
a statement "given" within 14 days may or may not also be received within that time.
63. New subsection 430A(3) provides that where the RRT fails to comply with new
subsections 430A(1) and 430A(2) in relation to a decision on a review, this will not affect the
validity of the RRT decision. Although failure to comply with those provisions will mean
that applicants will not be validly notified, the decision itself will not be invalidated. This
new subsection is consistent with section 66 of the Act which relates to notifying applicants
of a primary decision whether to grant or refuse a visa and with existing section 501G of the
Act which relates to notification of a character decision.
Item 21 Subsection 430D(1)
64. This item amends subsection 430D(1) of the Act by omitting "(1)" when it first occurs. It
is a technical amendment consequential to the amendment in item 22 of this Schedule which
repeals subsection 430D(2).
65. In contrast to new section 430A (see item 20 above), subsection 430D(1) deals with cases
where a decision of the RRT is orally given. In general terms, it provides that where the RRT
gives an oral decision on a review application, it must give the applicant and the Secretary a
copy of the written statement prepared under subsection 430(1) within 14 days after the
decision is made and that the applicant is taken to be notified of the decision on the day the
decision is made.
66. This item also inserts a note to inform readers that the heading to amended section 430D
has changed to read "Notifying parties when Tribunal gives an oral decision". This will assist
in clarifying that in contrast to new section 430A, new section 430D deals with notification
when the decision is orally given.
Item 22 Subsection 430D(2)
67. This item repeals subsection 430D(2) of the Act. The subsection currently provides that
where an applicant is in immigration detention, the RRT must give the applicant and the
Secretary a copy of the written statement prepared under subsection 430(1) within 14 days
after the decision is made. As the amendments to section 430A have the same effect as
subsection 430D(2), this provision is no longer necessary and notification of applicants in
these circumstances will be covered by amended section 430D.
Item 23 Division 7A of Part 7 (heading)
68. This item makes a minor technical amendment to the current heading of Division 7A of
Part 7 of the Act to reflect the inclusion of new section 441EA in the Division, which is
discussed in item 26 of this Schedule. The amendment will change the heading from
"Division 7A--Giving and receiving review documents" to "Division 7A--Giving and
receiving review documents etc.".
Item 24 At the end of section 441AA (before the note)
69. This item inserts note 1 before the existing note at the end of section 441AA of the Act
referring the reader to new section 441EA, which is discussed in item 26 below.
Item 25 Section 441AA (note)
70. This item makes a minor technical amendment consequential to the amendment in item
24 of this Schedule by omitting the word "Note" at the end of section 441AA and substituting
the words "Note 2".
Item 26 After section 441E
71. This item inserts new section 441EA into the Act.
72. Subsection 52(3C) of the Act currently provides in relation to decisions made by the
Minister or delegate to grant or refuse a visa, that if two or more non-citizens apply for a visa
together (for example, where a spouse is part of the primary applicant's visa application)
notification given to any of them about the application is taken to be given to each of them.
However, there is no equivalent to subsection 52(3C) with regard to notifying review
applicants to the MRT and RRT. To avoid any uncertainty in relation to the notifying of
secondary applicants who have made or sought to make a combined application, new section
441EA provides that if two or more persons apply for review of a decision together, any
documents given to any of them in connection with the review are taken to be given to all of
them.
73. A similar amendment is included in item 13 of this Schedule in relation to the MRT
which will ensure consistency and greater certainty in the Tribunals' communications with
applicants.
74. This item also inserts two notes after new subsection 441EA. Note 1 informs the reader
that where the RRT gives documents to a person by a method specified in section 441A, the
person is taken to have received the documents at the time specified in section 441C in
respect of that method.
75. Section 441A specifies the methods by which the RRT can give documents to a person
(other than the Secretary) and section 441C provides for when the person is taken to have
received the documents.
76. Note 2 informs the reader that section 441G of the Act deals with the giving of
documents by the RRT to a person's authorised recipient.
77. Section 441G provides, amongst other things, that where a person has notified the RRT in
writing of his or her authorised recipient, the RRT must give any documents to the authorised
recipient instead of the applicant.
Item 27 Paragraph 458(1)(b)
78. This item substitutes paragraph 458(1)(b) of the Act to reflect the amendment in item 29
of this Schedule which provides for the discretionary appointment of a Deputy Principal
Member to the RRT.
79. Section 458 currently provides that the membership of the RRT consists of a Principal
Member, a Deputy Principal Member, and such number of Senior and other members (not
exceeding the prescribed number) as are appointed under the Act.
80. New paragraph 458(1)(b) provides that if a person is appointed as a Deputy Principal
Member of the RRT (see item 29 below), the membership of the RRT shall also consist of a
Deputy Principal Member.
81. By making the appointment of a Deputy Principal Member discretionary, the Governor-
General acting on Government advice will have the flexibility to appoint, or not appoint, a
Deputy Principal Member in accordance with the management needs of the Tribunal.
82. This item is also consistent with item 14 of this Schedule which deals with the
membership of the MRT.
Item 28 Subsection 459(1)
83. This item amends subsection 459(1) of the Act by omitting the word "The" and
substituting the words "Subject to subsection (1A), the". This is a minor technical amendment
consequential to the amendment in item 29 below, emphasising that the power to appoint a
Deputy Principal Member to the RRT is discretionary.
Item 29 After subsection 459(1)
84. This item inserts new section 459(1A) after subsection 459(1) of the Act.
85. Section 459 deals with the appointment of members of the RRT. New subsection
459(1A) provides that the Governor-General may appoint a person to the position of Deputy
Principal Member of the RRT. The use of the word "may" in this context (and the
amendments in items 27 and 28 above) makes it clear that the appointment of a Deputy
Principal Member to the RRT is discretionary.
Item 30 Subsection 477(1)
86. This item and items 31 to 35 will reinstate effective and uniform time limits for applying
for judicial review of migration decisions in the Federal Magistrates Court, the Federal Court
and the High Court ("the courts").
87. In April 2007, the High Court in Bodruddaza v Minister for Immigration and
Multicultural Affairs [2007] HCA 14 ("the Bodruddaza decision") unanimously held that the
time limit imposed by section 486A of the Act was constitutionally invalid. As a result, there
is no longer an effective time limit on challenges to migration decisions filed in the High
Court's original jurisdiction conferred by section 75(v) of the Constitution.
88. Further, in July 2007 the Full Federal Court in Minister for Immigration and Citizenship v
SZKKC [2007] FCAFC 105 ("the SZKKC decision") held that the time limit in section 477 of
the Act (relating to the Federal Magistrates Court) will only begin to run if the applicant is
personally served with the written statement of reasons of the RRT by a person authorised by
the Registrar of the Tribunal. This decision also applies to the time limits in section 477A
(relating to the Federal Court) and decisions of the MRT.
89. The Act does not require the MRT or RRT to personally serve applicants with the
statement of reasons, and to do so would be very time consuming and expensive. In practice,
the result is that the time limits in sections 477 and 477A are no longer effective even when
applicants have been correctly notified of a decision in accordance with the Act.
90. To overcome the problems identified in the SZKKC and Bodruddaza decisions the
amendments in items 30 to 35 of this Schedule will provide that the time for lodging an
application in the courts, for judicial review of a migration decision, will commence to run
from the day the decision under challenge is taken to have been made rather than from actual
notification of the decision. The amendments will also vest the courts with a broad discretion
to extend time for applying for review of a migration decision where it is necessary in the
interests of the administration of justice to do so.
91. Item 30 amends subsection 477(1) of the Act. That subsection currently provides that
where a person applies to the Federal Magistrates Court ("the FMC") for a remedy in exercise
of the court's original jurisdiction, the person must make the application within 28 days of the
actual notification of the decision (rather than deemed notification).
92. This item amends subsection 477(1) by omitting all the words after the word "within"
and substituting the words "35 days of the day on which the decision is taken to have been
made or such longer period as the Federal Magistrates Court orders".
93. This will make two important changes to subsection 477(1). Firstly, it will allow 35 days
for lodging an application to the FMC for judicial review of a migration decision instead of
the 28 day period that currently applies in subsection 477(1). Secondly, the new 35 day
period will commence to run from the time "the decision is taken to have been made" rather
than from the time of actual notification (which is currently the case under subsection 477(1)).
This will eliminate the difficulties associated with the SZKKC decision and provide greater
certainty about when time starts to run for the purpose of judicial review. At present, the time
limit runs from the date of actual (as opposed to deemed) notification of the decision under
challenge. Actual notification creates uncertainty because it can be difficult to establish when
an applicant is actually notified. By contrast, where the relevant date is the date of the
decision, the decision-maker's statement of reasons will establish the date on which time
begins to run. See items 6 and 19 in this regard, which provide that a decision of the MRT
and the RRT is taken to have been made on the date of the written statement prepared under
subsections 368(1) and 430(1) of the Act respectively.
94. The amendment in this item also makes it clear that the FMC can allow a longer period
than the 35 day period to apply for judicial review of a migration decision. This must be read
in conjunction with the amendments in item 31 of this Schedule which relate to the power of
the court to extend time.
Item 31 Subsections 477(2) to (4)
95. This item repeals existing subsections 477(2), (3) and (4) of the Act and substitutes new
subsections 477(2) and (3) which will allow applicants to apply for, and the FMC to grant, an
extension of time for judicial review of a migration decision.
96. New subsection 477(2) provides that an application may be made, in writing, to the FMC
for an extension of the 35 day period for applying for judicial review by the court. The
subsection also provides that the application must explain why it is necessary in the interests
of the administration of justice for the FMC to allow the extension of time. The requirement
that the application explain why it is necessary in the interests of the administration of justice
corresponds to the test in new subsection 477(3) that the court must apply in determining
whether to extend time.
97. Requiring applicants to give reasons in their applications for an extension of time will
assist the FMC by drawing early attention to cases where there is a compelling reason to grant
an extension of the time. This may assist the court to deal with requests for extension of time
more quickly and may thereby result in a more efficient use of court resources.
98. New subsection 477(3) provides that if an application is made under subsection 477(2),
the FMC may extend the 35 day period to a longer period as it considers appropriate if it is
satisfied that it is necessary in the interests of the administration of justice to do so. Vesting
the court with a broad discretion to extend time where it is necessary in the interests of the
administration of justice will protect applicants from possible injustice, while also ensuring
that the extension is only granted where there are compelling reasons to do so.
99. Item 31 also repeals existing subsection 477(4). That subsection currently provides that
the Regulations may prescribe the way of notifying a person of a decision for the purposes of
section 477. However, this provision is no longer necessary because new subsection 477(1)
provides that the time for applying for a review will run from the date of a decision and not
from notification. There are currently no regulations made under subsection 477(4).
Item 32 Subsection 477A(1)
100. Item 32 amends subsection 477A(1) of the Act in similar terms to the amendment in
item 30 above by omitting all the words after the word "within" and substituting the words
"35 days of the day on which the decision is taken to have been made or such longer period
as the Federal Court orders".
101. As noted in relation to item 30 this amendment makes two important changes to
subsection 477A(1). Firstly, it will allow 35 days for lodging an application to the Federal
Court for judicial review of a migration decision instead of the 28 day period that currently
applies in subsection 477A(1). Secondly, the new 35 day period will commence to run from
the time "the decision is taken to have been made" rather than from the time of actual
notification (which is currently the case under subsection 477A(1)). This will eliminate the
difficulties associated with the SZKKC decision and provide greater certainty about when
time starts to run for the purpose of judicial review. At present, the time limit runs from the
date of actual (as opposed to deemed) notification of the decision under challenge. Actual
notification creates uncertainty because it can be difficult to establish when an applicant is
actually notified. By contrast, where the relevant date is the date of the decision, the decision-
maker's statement of reasons will establish the date on which time begins to run. See items 6
and 19 in this regard, which provide that a decision of the MRT and the RRT is taken to have
been made on the date of the written statement prepared under subsections 368(1) and 430(1)
of the Act respectively.
102. The amendment in this item also makes it clear that the Federal Court can allow a longer
period than the 35 day period to apply for judicial review of a migration decision. This must
be read in conjunction with the amendments made in item 33 of this Schedule which relate to
the power of the court to extend time.
Item 33 Subsections 477A(2) to (4)
103. This item repeals existing subsections 477A(2), (3) and (4) of the Act and substitutes
new subsections 477A(2) and (3) which will allow applicants to apply for, and the Federal
Court to grant, an extension of time for judicial review of a migration decision.
104. New subsection 477A(2) provides that an application may be made, in writing, to the
Federal Court for an extension of the 35 day period for applying for judicial review by the
court. The subsection also provides that the application must explain why it is necessary in
the interests of the administration of justice for the Federal Court to allow the extension of
time. The requirement that the application explain why it is necessary in the interests of the
administration of justice corresponds to the test in new subsection 477A(3) that the court must
apply in determining whether to extend time.
105. Requiring applicants to give reasons in their applications for an extension of time will
assist the Federal Court by drawing early attention to cases where there is a compelling reason
to grant an extension of the time. This may assist the court to deal with requests for extension
of time more quickly and may thereby result in a more efficient use of court resources.
106. New subsection 477A(3) provides that if an application is made under subsection
477A(2), the Federal Court may extend the 35 day period to a longer period as it considers
appropriate if it is satisfied that it is necessary in the interests of the administration of justice
to do so. Vesting the court with a broad discretion to extend time where it is necessary in the
interests of the administration of justice will protect applicants from possible injustice, while
also ensuring that the extension is only granted where there are compelling reasons to do so.
107. Item 33 also repeals existing subsection 477A(4). That subsection currently provides
that the Regulations may prescribe the way of notifying a person of a decision for the
purposes of section 477A. However, this provision is no longer necessary because new
subsection 477A(1) provides that the time for applying for a review will run from the date of
a decision and not from notification. There are currently no regulations made under
subsection 477A(4).
Item 34 Subsection 486A(1)
108. Item 34 amends subsection 486A(1) of the Act in similar terms to the amendment in
item 30 above by omitting all the words after the word "within" and substituting the words
"35 days of the day on which the decision is taken to have been made or such longer period
as the High Court orders".
109. As noted in relation to item 30 this amendment makes two important changes to
subsection 486A(1). Firstly, it will allow 35 days for lodging an application to the High
Court for judicial review of a migration decision instead of the 28 day period that currently
applies in subsection 486A(1). Secondly, the new 35 day period will commence to run from
the time "the decision is taken to have been made" rather than from the time of actual
notification (which is currently the case under subsection 486A(1)). This will eliminate the
difficulties associated with the SZKKC decision and provide greater certainty about when
time starts to run for the purpose of judicial review. At present, the time limit runs from the
date of actual (as opposed to deemed) notification of the decision under challenge. Actual
notification creates uncertainty because it can be difficult to establish when an applicant is
actually notified. By contrast, where the relevant date is the date of the decision, the decision-
maker's statement of reasons will establish the date on which time begins to run. See items 6
and 19 in this regard, which provide that a decision of the MRT and the RRT is taken to have
been made on the date of the written statement prepared under subsections 368(1) and 430(1)
of the Act respectively.
110. The amendment in this item also makes it clear that the High Court can allow a longer
period than the 35 day period to apply for judicial review of a migration decision. This must
be read in conjunction with the amendments made in item 35 of this Schedule which relate to
the power of the court to extend time.
Item 35 Subsections 486A(1A) to (3)
111. This item repeals existing subsections 486A(1A), (2) and (3) of the Act and substitutes
new subsections 486A(2) and (3) which will allow applicants to apply for, and the High Court
to grant, an extension of time for judicial review of a migration decision.
112. New subsection 486A(2) provides that an application may be made, in writing, to the
High Court for an extension of the 35 day period for applying for judicial review by the court.
The subsection also provides that the application must explain why it is necessary in the
interests of the administration of justice for the High Court to allow the extension of time.
The requirement that the application explain why it is necessary in the interests of the
administration of justice corresponds to the test in new subsection 486A(3) that the court must
apply in determining whether to extend time.
113. Requiring applicants to give reasons in their applications for an extension of time will
assist the High Court by drawing early attention to cases where there is a compelling reason
to grant an extension of the time. This may assist the court to deal with requests for extension
of time more quickly and may thereby result in a more efficient use of court resources.
114. New subsection 486A(3) provides that if an application is made under subsection
486A(2), the High Court may extend the 35 day period to a longer period as it considers
appropriate if it is satisfied that it is necessary in the interests of the administration of justice
to do so. Vesting the court with a broad discretion to extend time where it is necessary in the
interests of the administration of justice will protect applicants from possible injustice, while
also ensuring that the extension is only granted where there are compelling reasons to do so.
115. Item 35 also repeals existing subsection 477A(4). That subsection currently provides
that the Regulations may prescribe the way of notifying a person of a decision for the
purposes of section 486A. However, this provision is no longer necessary because new
subsection 486A(1) provides that the time for applying for a review will run from the date of
a decision and not from notification. There are currently no regulations made under
subsection 486A(4).
Item 36 Section 486AB
116. This item amends section 486AB of the Act by omitting the words "subsection
486A(1)" and substituting the words "section 486A". This is a minor technical amendment
consequential to amendments made to section 486A of the Act.
117. The purpose of this item is to clarify the application of section 486AB. This item makes
it clear that whether a person applies to the High Court for judicial review of a decision, or for
an extension of time to apply for judicial review, the lodging of either of those applications
will not:
· affect the operation of the decision under challenge, or
· prevent any actions to implement the decision, or
· prevent any actions taken in reliance on the making of the decision.
1. The amendment is consistent with the intent of section 486AB and with section 481 of the
Act, which is the corresponding existing provision relating to the Federal Magistrates Court
and the Federal Court.
Item 37 Application
2. Subitem 37(1) provides that the amendments made by items 6 and 7 apply to MRT review
decisions made on or after the day on which those items commence and also to review
decisions made before that time if written notice of the handing down has not been given to
the applicant and the Secretary.
3. A note is also inserted after subitem 37(1) referring readers to the transitional provision in
item 38 of this Schedule. Item 38 provides, in effect, that despite the amendment to section
368 of the Act and the repeal of sections 368A to 368C, these provisions continue to operate
with respect to MRT review decisions after items 6 and 7 commence where written notice of
the handing down is given to the parties before the day that items 6 and 7 commence.
4. Subitem 37(2) provides that the amendments made by items 13 and 26 of this Schedule
apply to review applications made to the MRT and the RRT on or after items 13 and 26
commence and also to review applications made before that day if the application is not
decided before that day.
5. Subitem 37(3) provides that the amendments made by items 19 and 20 apply to RRT
review decisions made on or after the day on which those items commence and also to review
decisions made before that time if written notice of the handing down has not been given to
the applicant and the Secretary.
6. A note is also inserted after subitem 37(3) referring readers to the transitional provision in
item 39 of this Schedule. Item 39 provides, in effect, that despite the amendment to section
430 of the Act and the repeal of sections 430A to 430C, these provisions continue to operate
with respect to RRT review decisions after items 19 and 20 commence where written notice
of the handing down is given to the parties before the day that items 19 and 20 commence.
7. Subitem 37(4) provides that the amendments made by items 30 to 35 apply to proceedings
for judicial review of a migration decision (within the meaning of the Act) that begin on or
after the day on which those items commence.
8. A note is also inserted at the end of this subitem referring readers to item 41 of this
Schedule which contains a transitional provision in relation to time limits on applications for
review of migration decisions.
Item 38 Transitional provision--handing down of decisions by
Migration Review Tribunal
9. This item inserts a transitional provision in relation to the amendments in items 6 and 7 of
this Schedule. Subitem 38(1) provides, in effect, that the transitional arrangement in this item
applies if before the day on which items 6 and 7 commence the MRT has given the applicant
and the Secretary written notice under existing section 368A of the Act of the day, time and
place of the handing down of an MRT decision on a review. In these cases, subitem 38(2)
provides that despite the amendment to section 368 of the Act and the repeal of sections 368A
to 368C, these provisions continue to operate after the day on which items 6 and 7 commence.
That is, normal handing down procedures will apply as they existed before the amendments
by items 6 and 7.
Item 39 Transitional provision--handing down of decisions by
Refugee Review Tribunal
10. This item inserts a transitional provision in relation to the amendments in items 19 and 20
of this Schedule. Subitem 39(1) provides, in effect, that the transitional arrangement in this
item only applies if before the day on which items 19 and 20 commence the RRT has given
the applicant and the Secretary written notice under existing section 430A of the Act of the
day, time, and place of the handing down of an RRT decision on a review. In these cases,
subitem 39(2) provides that despite the amendment to section 430 of the Act and the repeal of
sections 430A to 430C, these provisions continue to operate after the day on which items 19
and 20 commence. That is, normal handing down procedures will apply as they existed
before the amendments by items 19 and 20.
Item 40 Transitional provision--appointment of Deputy Principal Member
of the Refugee Review Tribunal
11. This item ensures that the person occupying the position of Deputy Principal Member of
the RRT continues in that position for the balance of the person's current term of appointment
after items 28 and 29 of this Schedule commence.
12. The item provides that the person holding office of the Deputy Principal Member of the
RRT under existing section 459 of the Act as in force immediately before items 28 and 29
commence is taken to have been appointed to that position under new section 459 of the Act
for the balance of the person's term of appointment that remained immediately before the day
items 28 and 29 commenced.
Item 41 Transitional provision--time limits on applications for
review of migration decisions
13. This item applies transitional provisions for the amendments in items 30 to 35 of this
Schedule, which concern the time limits for applying to the courts for judicial review of a
migration decision and the power to extend time for applying for a review.
14. Subitem 41(1) sets out the circumstances in which the transitional provision in subitem
41(2) will apply, namely where all of the following apply:
· proceedings are begun on or after the commencement day;
· the proceedings relate to a migration decision made before the commencement
day;
· an application for the merits review of the migration decision is made to the MRT,
RRT or AAT before the commencement day;
and any of the following applies:
(i) the MRT hands down its decision on the merits review under section 368B of the
Act before the commencement day; or
(ii) the MRT gives its oral decision under section 368D of the Act before the
commencement day; or
(iii) the RRT hands down its decision on the merits review under section 430B of the
Act before the commencement day; or
(iv) the RRT gives its oral decision under section 430D of the Act before the
commencement day; or
(v) the AAT makes a decision on the merits review and gives reasons for its decision
under section 43 of the Administrative Appeals Tribunal Act 1975 ("the AAT
Act") before the commencement day; or
(vi) the AAT makes a decision on the merits review and receives a request for reasons
under section 43 of the AAT Act before the commencement day but does not give
reasons for its decision until after the commencement day.
1. Subitem 41(2) provides, in effect, that if subitem 42(1) is satisfied then sections 477,
477A and 486A of the Act (as in force on the commencement day) will apply as follows:
· if (i) or (iii) referred to in subitem 41(1) applies, those sections will apply as if the
handing down of the decision took place on the commencement day;
· if (ii) or (iv) applies, those sections will apply as if the oral decision were given on
the commencement day;
· if (v) applies, those sections will apply as if the decision were made, and reasons for
the decision given, on the commencement day; and
· if (vi) applies, those sections will apply as if the decision were made, and reasons for
the decision given, on the day on which the reasons were given.
2. These provisions will ensure that the benefit of the new time limits for applying for
judicial review of migration decisions and the discretionary power to extend time will also
apply to applicants in relation to whom a decision was made before the amendments
commence but who do not apply for judicial review until after the amendments commence.
3. Subitem 41(3) provides that in relation to subparagraphs 41(1)(c)(i) and (iii), it does not
matter whether or not the applicant or the Secretary or both attend the handing down of a
decision on a review.
4. Subitem 41(4) defines "commencement day" to be the day on which items 30 to 35 of this
Schedule commence. It also defines "migration decision" to have the same meaning as in the
Act. "Migration decision" is defined in section 5 of the Act to mean a privative clause
decision, a purported privative clause decision, or a non-privative clause decision.
SCHEDULE 2 - Amendments relating to border protection
Part 1 - Special purpose visas
Migration Act 1958
Item 1 Subsection 33(5)
5. This item omits the words "the end of the earlier or earliest of the following days" in
subsection 33(5) of the Migration Act 1958 ("the Act"), and substitutes the words "the earliest
of the following times". The purpose of this amendment is to allow for special purposes visas
to cease at the end of a specified day, or at a particular time.
6. The amendment preserves the current policy intention and effect of the section for special
purpose visas which cease on a particular day - they will continue to cease at the end of that
day. Where a special purpose visa ceases at a particular time, the amendment ensures the visa
will cease at that time. A special purpose visa may cease at a particular time where a
declaration under subsection 33(9) is expressed to take effect at specified time, under the
amendment made to section 33 by the Migration Amendment (Border Integrity) Act 2007.
Item 2 Subparagraphs 33(5)(a)(i) and (ii)
7. This item repeals subparagraphs 33(5)(a)(i) and (ii) of the Act and replaces them with new
subparagraphs 33(5)(a)(i) and (ii).
8. Paragraph 33(2)(a) of the Act provides that a non-citizen is taken to have been granted a
special purpose visa (by operation of law) if the non-citizen has a prescribed status or is a
member of prescribed class of persons. Paragraph 33(2)(b) provides that a non-citizen is also
taken to have been granted a special purpose visa if the Minister declares in writing that the
non-citizen is taken to have been granted a special purpose visa or a class of persons, of
which the non-citizen is a member, are taken to have been granted special purpose visas.
Subsection 33(5) specifies when a special purpose visa ceases to be in effect with regard to
persons to whom either paragraphs 33(2)(a) or 33(2)(b) apply.
9. Subparagraphs 33(5)(a)(i) and (ii) specify when a special purpose visa ceases to be in
effect with regard to persons to whom paragraph 33(2)(a) applies.
10. New subparagraphs 33(5)(a)(i) and (ii) will provide that, where paragraph 33(2)(a)
applies, the special purpose visa ceases to be in effect at the end of the day on which the
relevant non-citizen or class of non-citizens ceases to have prescribed status. Currently this
subparagraph provides that the relevant special purpose visa ceases to be in effect "on the
day" the prescribed status is lost. The opening words of subsection 33(5) make it clear that the
visa would cease at the end of this day. However those opening words are being amended by
item 1 of Schedule 2, to remove the reference to the `end of the day'. New subparagraphs
33(5)(a)(i) and (ii) will preserve this effect for cases where the special purpose visa ceases on
a particular day.
Item 3 Subparagraphs 33(5)(b)(i) to (iv)
11. This item repeals subparagraphs 33(5)(b)(i) to (iv) of the Act, and replaces them with
new subparagraphs 33(5)(b)(i) to (iv).
12. New subparagraphs 33(5)(b)(i), (ii), (iii) and (iv) provide that, where paragraph 33(2)(b)
applies, the special purpose visa ceases to be in effect "at the end of the day" on which the
relevant events occur. Currently these subparagraphs provide that the relevant special purpose
visa ceases to be in effect "on the day" the particular event occurs. The opening words of
subsection 33(5) make it clear that the visa ceases at the end of this day. However those
opening words are being amended by item 1 of Schedule 2, to remove the reference to the
"end of the day". New subparagraphs 33(5)(b)(i) to (iv) will preserve this effect for cases
where the special purpose visa ceases on a particular day.
Part 2 - Reporting on passengers and crew of aircraft and ships
Customs Act 1901
Item 4 Subsection 64ACA(1)
13. This item amends subsection 64ACA(1) in Subdivision A of Division 3 of Part 4 of the
Customs Act 1901 ("the Customs Act") by replacing the words "the passengers" with the
words "each passenger".
14. Subsection 64ACA(1) requires operators of a ship or aircraft due to arrive from a place
outside Australia at an airport or port in Australia, to report to the Australian Customs Service
(`Customs') on passengers who will be on board the aircraft or ship at the time of arrival.
15. The purpose of this amendment is to make clear that the obligation on the operator of a
ship or aircraft to provide reports on passengers to Customs is a requirement to report on each
passenger individually as opposed to a requirement to report on passengers generally.
Item 5 Subsection 64ACB(1)
16. This item amends subsection 64ACB(1) in Subdivision A of Division 3 of Part 4 of the
Customs Act by replacing the words "the crew" with the words "each member of the crew".
17. Subsection 64ACB(1) requires the operator of a ship or aircraft due to arrive, from a
place outside Australia, at a port or airport in Australia (whether it is the first or any
subsequent airport or port of the flight or voyage) to report to Customs on the crew who will
be on board the aircraft or ship at the time of its arrival at the airport or port.
18. The purpose of this amendment is to make clear that the obligation on the operator of a
ship or aircraft to provide reports on crew to Customs is a requirement to report on each crew
member individually, as opposed to a requirement to report on crew members generally.
Item 6 Paragraph 64ACC(1)(a)
19. This item amends paragraph 64ACC(1)(a) in Subdivision A of Division 3 of Part 4 of the
Customs Act by replacing the words "particular passengers or crew" with the words "a
particular passenger or member of the crew".
20. Subsection 64ACC(1) of the Customs Act provides that if both section 64ACA
(obligation to report on passengers) or 64ACB (obligation to report on crew) of the Customs
Act and section 245L of the Act (obligation to report on passengers and crew) require the
same piece of information in relation to particular passengers or crew on a particular voyage
or flight to be reported, and the relevant operator has reported that piece of information in
accordance with that section of the Act, the operator is taken not to be required by section
64ACA or 64ACB of the Customs Act (as the case requires) to report the same piece of
information in relation to those passengers or crew.
21. The amendment made by this item ensures consistency of terminology and is
consequential to the amendments made by items 4 and 5 of this Schedule to respective
subsections 64ACA(1) and 64ACB(1) of the Customs Act.
Item 7 Paragraph 64ACC(1)(b)
22. This item amends paragraph 64ACC(1)(b) in Subdivision A of Division 3 of Part 4 of the
Customs Act by replacing the words "those passengers or crew" with the words "that
passenger or member of the crew".
23. Subsection 64ACC(1) of the Customs Act provides that if both section 64ACA
(obligation to report on passengers) or 64ACB (obligation to report on crew) of the Customs
Act and section 245L of the Act (obligation to report on passengers and crew) require the
same piece of information in relation to particular passengers or crew on a particular voyage
or flight to be reported, and the relevant operator has reported that piece of information in
accordance with that section of the Act, the operator is then taken not to be required by
section 64ACA or 64ACB of the Customs Act (as the case requires) to report the same piece
of information in relation to those passengers or crew to Customs.
24. The amendment made by this item ensures consistency of terminology and is
consequential to the amendments made by items 4 and 5 of this Schedule to respective
subsections 64ACA(1) and 64ACB(1) of the Customs Act.
Item 8 Subsection 64ACC(2) (note)
25. This item amends the note to subsection 64ACC(2) in Subdivision A of Division 3 of
Part 4 of the Customs Act by replacing the words "a complete report under this Act is still
required (even if some of the same passengers or crew are still on board)" with the words "a
report under this Act is required".
26. Subsection 64ACC(2) provides that subsection 64ACC(1) only applies if the relevant
report required under the Act (that is, the Migration Act 1958) relates to the arrival of the ship
or aircraft at the same port or airport for which the Customs Act requires a report.
27. The purpose of this amendment is to provide further clarity to the provision and ensure it
is consistent with the amendments made by items 4 and 5 of this Schedule which provide that
the obligations to report are obligations to report on each passenger and member of the crew
individually.
Item 9 Application - amendments to the Customs Act 1901
28. This item provides that the Schedule 2 amendments to the Customs Act apply in relation
to arrivals at an airport or port in Australia on or after the commencement of this item. The
commencement of this item will be a single day to be fixed by Proclamation.
Migration Act 1958
Item 10 After subsection 245J(2)
29. This item inserts a new subsection 245J(2A) after subsection 245J(2) in Division 12B of
Part 2 of the Act.
30. Subsection 245J(1) provides that the Secretary must, for each kind of aircraft or ship to
which Division 12B applies, by legislative instrument, approve a system for the purposes of
reporting under that Division. Subsection 245J(2) provides that, under subsection 245J(1), the
Secretary may, for a kind of aircraft or ship, approve a single system for reporting on both
passengers and crew or may approve one system for reporting on passengers, and another
system for reporting on crew. Subsection 245J(3) further provides that the relevant instrument
of approval must also specify the information about passengers or crew that is to be reported
by that system.
31. New subsection 245J(2A) will provide that the information about passengers or crew, or
both passengers and crew, that is to be reported by a system, must be in relation to the
passengers individually or members of the crew individually, or about the passengers
individually and crew individually.
32. The purpose of the new subsection is to make clear that the requirement to report on
passengers and crew is a requirement to report on each passenger and crew member
individually, and not a requirement to report on the passengers and crew generally.
Item 11 After subsection 245K(1)
33. This item inserts new subsection 245K(1A) after subsection 245K(1) in Division 12B of
Part 2 of the Act.
34. Subsection 245K(1) provides that the Secretary must, by legislative instrument, approve
one or more systems as fall-back reporting systems. Subsection 245K(2) further provides that
the instrument of approval of a system must also specify the information about passengers or
crew that is to be reported by that system.
35. New subsection 245K(1A) will provide that information about passengers, crew, or both
passengers and crew, that is to be reported by a system, must be about the passengers
individually, members of the crew individually, or about the passengers individually and crew
members individually.
36. The purpose of this new provision is to make clear that the requirement to report on
passengers and crew is a requirement to report on each passenger and crew member
individually, and not a requirement to report on the passengers and crew generally.
Item 12 Paragraph 245L(2)(a)
37. This item amends paragraph 245L(2)(a) in Division 12B of Part 2 of the Act by replacing
the reference to "the passengers" with the words "each passenger".
38. Currently, paragraph 245L(2)(a) provides that an operator of a ship or aircraft due to
arrive at an airport or port in Australia from a place outside Australia, has an obligation to
report to the Department (using the relevant reporting systems for passengers) on the
passengers who will be on board the aircraft or ship at the time of its arrival at the airport or
port.
39. Subsection 245N(1) provides that an operator of a ship or aircraft who intentionally
contravenes subsection 245L(2) commits an offence punishable, on conviction, by a penalty
not exceeding 120 penalty units. Subsection 245N(2) provides that an operator of a ship or
aircraft who contravenes subsection 245L(2) commits an offence punishable, on conviction,
by a penalty not exceeding 60 penalty units.
40. New paragraph 245L(2)(a) will provide that an operator of a ship or aircraft due to arrive
at an airport or port in Australia from a place outside Australia, has an obligation to report to
the Department (using the relevant reporting systems for passengers) on each individual
passenger who will be on board the aircraft or ship at the time of its arrival at the airport or
port.
41. The effect of these amendments made by this item and by items 10 and 11 of this
Schedule is that operators of aircraft and ships will be liable to prosecution under section
245N for each passenger not reported (rather than for one offence for each group of
passengers, or group of passengers and crew, not reported).
Item 13 Paragraph 245L(2)(b)
42. This item amends paragraph 245L(2)(b) in Division 12B of Part 2 of the Act by replacing
the reference to "the crew" with the words "each member of the crew".
43. Currently, paragraph 245L(2)(b) provides that the operator of a ship or aircraft due to
arrive at an airport or port in Australia from a place outside Australia, has an obligation to
report to the Department (using the relevant reporting systems for passengers) on the crew
who will be on board the aircraft or ship at the time of its arrival at the airport or port.
44. Subsection 245N(1) provides that an operator of a ship or aircraft who intentionally
contravenes subsection 245L(2) commits an offence punishable, on conviction, by a penalty
not exceeding 120 penalty units. Subsection 245N(2) provides that an operator of a ship or
aircraft who contravenes subsection 245L(2) commits an offence punishable, on conviction,
by a penalty not exceeding 60 penalty units.
45. New paragraph 245L(2)(b) will provide that the operator of a ship or aircraft due to arrive
at an airport or port in Australia from a place outside Australia, has an obligation to report to
the Department (using the relevant reporting systems for passengers) on each individual
member of the crew who will be on board the aircraft or ship at the time of its arrival at the
airport or port.
46. The effect of the amendments made by this item and by items 10 and 11 of this Schedule
is that aircraft and shipping line operators will be liable to prosecution under section 245N for
each crew member not reported (rather than for one offence for each group of crew members,
or group of passengers and crew, not reported).
Item 14 After subsection 245L(5)
47. This item repeals subsection 245L(5) in Division 12B of Part 2 of the Act and replaces it
with new subsections 245L(5) and (5A).
48. Subsection 245L(5) provides the deadlines for reporting on passengers or crew for ships.
Previously, subsection 245L(5) provided that a report on passengers or crew onboard a ship
must be given no later than:
(a) if the journey from the last port outside Australia is likely to take not less than 48
hours -- 48 hours before the ship's likely time of arrival at the port in Australia;
or
(b) if the journey from the last port outside Australia is likely to take less than 48
hours -- 24 hours before the ship's likely time of arrival at the port in Australia.
1. This amendment to paragraph 245L(5) will remove the time frames set out in the Act and
replace them with a power to prescribe them in the regulations. New paragraph 245L(5) will
provide that a report on passengers or crew onboard a ship must be given no later than:
(a) the start of the prescribed period before the ship's estimated time of arrival; or
(b) if the journey is of a kind described in regulations made for the purposes of
paragraph 245L(5)(b) -- the start of the shorter period specified in those
regulations before the ship's estimated time of arrival.
1. The purpose of removing the time frames from the Act and allowing them to be
prescribed in the regulations is to provide flexibility by enabling the time frames to be more
readily changed. For example, to this will ensure consistency with reporting time frames
required under customs legislation.
2. New subsection 245L(5A) will also allow regulations to be made for the purposes of
paragraph 245L(5)(b) to prescribe matters of a transitional nature (including prescribing any
saving or application provisions) arising out of the making of regulations for those purposes.
The purpose of this amendment is to facilitate the alignment of reporting times under
migration legislation with those under the customs legislation and make allowance for ships
already en route to Australia when changes to the prescribed time frames take effect.
Item 15 Application - amendments to section 245L
3. This item provides that, subject to the regulations, the amendments made to section 245L
apply in relation to journeys begun on or after the commencement of this item. The
commencement of this item will be a day or days to be fixed by Proclamation.
Item 16 At the end of subsection 245N(2)
4. This item adds a note at the end of subsection 245N(2) in Division 12B of Part 2 of the
Act. The note directs the reader to new paragraph 504(1)(jaa), as inserted by item 17 of this
Schedule.
5. Subsection 245N(1) provides that an operator of a ship or aircraft who intentionally
contravenes subsection 245L(2) commits an offence punishable, on conviction, by a penalty
not exceeding 120 penalty units. Subsection 245N(2) provides that an operator of a ship or
aircraft who contravenes subsection 245L(2) commits an offence punishable, on conviction,
by a penalty not exceeding 60 penalty units. Further, subsection 245N(3) provides that an
offence against subsection 245N(2) is an offence of strict liability.
6. Following the amendments made by items 12 and 13 of this Schedule, subsection 245L(2)
will provide that the operator of a ship or aircraft due to arrive at an airport or port in
Australia from a place outside Australia has an obligation to report to the Department (using
the relevant reporting systems) on each individual passenger and crew member who will be
on board the aircraft or ship at the time of its arrival at the airport or port.
7. New paragraph 504(1)(jaa) in Part 9 of the Act (inserted by item 17) will provide that
regulations may be made under the Act (which are not inconsistent with the Act) prescribing
matters enabling a person alleged to have committed an offence against subsection 245N(2) to
pay to the Commonwealth, as an alternative to prosecution, a prescribed penalty, not
exceeding 10 penalty units.
Item 17 After paragraph 504(1)(j)
8. This item inserts new paragraph 504(1)(jaa) after paragraph 504(1)(j) in Part 9 of the Act.
9. Subsection 504(1) contains a number of regulation making powers that allow the
prescribing of certain matters in regulations that are not inconsistent with, and necessary and
convenient to give effect to the provisions contained in, the Act.
10. New paragraph 504(1)(jaa) will provide that regulations may be made under the Act
(which are not inconsistent with that Act) prescribing matters enabling a person who is
alleged to have committed an offence against subsection 245N(2) to pay to the
Commonwealth, as an alternative to prosecution, a prescribed penalty, not exceeding 10
penalty units.
11. Subsection 245N(1) provides that an operator of a ship or aircraft who intentionally
contravenes subsection 245L(2) commits an offence punishable, on conviction, by a penalty
not exceeding 120 penalty units. Subsection 245N(2) provides that an operator of a ship or
aircraft who contravenes subsection 245L(2) commits an offence punishable, on conviction,
by a penalty not exceeding 60 penalty units. Further, subsection 245N(3) provides that an
offence against subsection 245N(2) is an offence of strict liability.
12. Following the amendments made by items 12 and 13 of this Schedule, subsection
245L(2) will provide that the operator of a ship or aircraft due to arrive at an airport or port in
Australia from a place outside Australia has an obligation to report to the Department (using
the relevant reporting systems) on each individual passenger and crew who will be on board
the aircraft or ship at the time of its arrival at the airport or port.
13. The purpose of this item is to provide for an infringement regime to enable a person
alleged to have committed an offence against subsection 245N(2) to pay a prescribed penalty,
not exceeding 10 penalty units, to the Commonwealth as an alternative to prosecution.
Part 3 - Round trip cruises
Migration Act 1958
Item 18 Section 169
14. This item amends section 169 in Division 5 of Part 2 of the Act by inserting "(1)" before
the word "If".
15. Section 169(1) provides that a person is not required to comply with the immigration
clearance requirements in section 166 (unless directed by a clearance officer to do so) if that
person goes outside and then re-enters the migration zone and under section 80 is taken not to
have left Australia.
16. This amendment is consequential to the amendment to section 169 made by item 19 of
this Schedule which inserts new subsections 169(2), (3), (4) and (5).
17. This item also inserts a note after subsection 169(1) advising that the heading to section
169 is altered by inserting "to" after "usually". This is being done to correct a grammatical
error in the heading to section 169.
Item 19 At the end of section 169
18. This item amends section 169 in Division 5 of Part 2 of the Act by adding new
subsections 169(2), (3), (4) and (5) at the end of section 169.
19. New subsection 169(1) (previously section 169) will provide that a person is not required
to comply with section 166 (unless directed by a clearance officer to do so) if that person goes
outside the migration zone and then re-enters the migration zone but is taken not to have left
Australia under section 80.
20. New subsection 169(2) will provide that new subsection 169(1) (previously section 169)
does not apply if the person leaves the migration zone on an "international passenger cruise
ship". The purpose of new subsection 169(2) is to provide that, as a general rule, passengers
aboard international passenger cruise ships on round trip cruises are required to comply with
the immigration clearance requirements in section 166.
21. The note following new subsection 169(2) will indicate to the reader that the effect of
subsection 169(2) is to require persons on international passenger cruise ships to be
immigration cleared under section 166 (unless the Minister or Secretary determines otherwise
under subsection (3) of section 169).
22. New subsection 169(3) will provide that the Minister or Secretary may, in writing,
determine that despite subsection 169(2), subsection 169(1) does apply to a class of persons
that includes the person.
23. The purpose of new subsection 169(3) is to provide a mechanism in the legislation to
allow the Minister or Secretary to exempt certain classes of persons on round trip cruises from
having to comply with the immigration clearance requirements of section 166. For example,
the Minister or Secretary may choose to exempt certain international cruise ship voyages by
specified carriers from having to comply with section 166 (that is, the relevant classes of
persons would be passengers and crew aboard specified voyages by specified carriers). An
example of such an instrument would be one that specifies a number of voyages by selected
commercial international cruise ship carriers, and provides that subsection 169(1) applies to
these voyages with the effect that the specified carriers will not be taken, on re-entering the
migration zone, to enter Australia for the purposes of section 166 (but may nevertheless be
directed by a clearance officer to comply with section 166).
24. New subsection 169(4) defines "international passenger cruise ship" as: a ship that has
sleeping facilities for at least 100 persons (other than crew members); a ship is being used to
provide a service of sea transportation of persons from a place outside Australia to a port in
Australia; and that service is provided in return for a fee payable by persons using the service
and is available to the general public.
25. New subsection 169(5) will provide that a determination made under new subsection
169(3) is not a legislative instrument. The purpose of this amendment is to expressly exclude
the application of the Legislative Instruments Act 2003 from applying to determinations made
under new subsection 169(3). Instruments made under new subsection 169(3) will be of an
administrative character.
Item 20 Application
26. This item provides that the amendments made by items 18 and 19 apply in relation to
persons who go outside the migration zone on or after the commencement of those items.
Part 4 - Enforcement visas
Migration Act 1958
Item 21 Subsection 31(2)
27. This item amends subsection 31(2) of the Act by inserting ", 38A" after ", 38".
28. Subsection 31(2) sets out those classes of visa provided for by the Act (rather than
prescribed in regulations). The addition of section 38A adds the enforcement visa (created by
section 38A) to the list of classes already specified in subsection 31(2). Section 38A was
added to the Act on 16 December 1999 by the Border Protection Legislation Amendment Act
1999. Due to an oversight at the time, subsection 31(2) was not amended to add a reference to
section 38A.
29. The purpose of this item is to reflect the fact that enforcement visas, as provided for by
section 38A, are a class of visa provided for in Act.
Item 22 Subsection 31(3)
30. This item amends subsection 31(3) of the Act by replacing "or 38" with ", 38 or 38A".
31. Subsection 31(3) applies to visas provided for by the Act (rather than prescribed under
the regulations). It provides that the regulations may prescribe criteria for certain of these
visas, but may not prescribe criteria for certain other of these visas. This amendment will add
section 38A (enforcement visas) to the list of visa classes for which the regulations may not
prescribe criteria.
32. Section 38A was added to the Act on 16 December 1999 by the Border Protection
Legislation Amendment Act. Due to an oversight at the time, subsection 31(3) was not
amended to add a reference to section 38A. This amendment will preserve the policy
intention that enforcement visa criteria are to be limited to the Act, and are not to be
prescribed in the regulations.
SCHEDULE 3 - Amendments relating to visa integrity
Migration Act 1958
Part 1 - Immigration clearance status of non-citizen children born in Australia
Item 1 After paragraph 172(1)(b)
33. This item inserts new paragraph 172(1)(ba) after paragraph 172(1)(b) of the Migration
Act 1958 ("the Act").
34. Section 172 deals with the immigration status of non-citizens on entry to Australia. It
outlines the circumstances in which a non-citizen is "immigration cleared", "in immigration
clearance", "refused immigration clearance" and when a non-citizen "bypasses immigration
clearance".
35. Subsection 172(1) sets out the circumstances in which a non-citizen is "immigration
cleared". Currently, none of these circumstances apply to non-citizen children born in
Australia who are taken under section 10 of the Act to have entered Australia at the time of
their birth, nor are these children explicitly exempted from the need to be immigration cleared
on "entry by birth".
36. To clarify the immigration status of these non-citizen children, new paragraph 172(1)(ba)
provides that a person who enters Australia by virtue of the operation of section 10 is
immigration cleared if at the time of his or her birth at least one of the person's parents was
immigration cleared on his or her last entry into Australia.
37. New paragraph 172(1)(ba) only provides immigration clearance to non-citizen children
on entry to Australia by birth. It does not provide immigration clearance for any subsequent
entry to Australia.
Item 2 Application
38. This item provides that the amendment made by item 1 of this Schedule applies to a non-
citizen child born in Australia on or after 1 September 1994. This date corresponds to the
date when the concept of "immigration clearance" was introduced into the Act by the
Migration Reform Act 1992 which commenced in 1994.
Item 3 At the end of subsection 172(1)
39. This item inserts new paragraph 172(1)(d) at the end of subsection 172(1) of the Act.
40. Section 172 deals with the immigration status of non-citizens on entry to Australia. It
outlines the circumstances in which a non-citizen is "immigration cleared", "in immigration
clearance", "refused immigration clearance" and when a non-citizen "bypasses immigration
clearance".
41. Subsection 172(1) sets out the circumstances in which a non-citizen is "immigration
cleared".
42. New paragraph 172(1)(d) provides that a person is also immigration cleared if he or she
is in a prescribed class of persons. The purpose of new paragraph 172(1)(d) is to provide
flexibility to prescribe in the Migration Regulations 1994 ("the Regulations") further classes
of persons who are immigration cleared for the purposes of section 172.
Item 4 Subsection 173(1)
43. This item amends subsection 173(1) by inserting the words "or regulations to which that
section is subject," after the words "section 43,".
44. Currently subsection 173(1) provides that if the holder of a visa enters Australia in a way
that contravenes section 43 of the Act, the visa ceases to be in effect. The purpose of new
subsection 173(1) is to make clear that a person's visa will also cease to have effect by virtue
of subsection 173(1) if the person contravenes any regulations to which section 43 is subject.
Item 5 At the end of section 173
45. This item inserts new subsection 173(2) at the end of section 173 of the Act.
46. Currently subsection 173(1) provides that if the holder of a visa enters Australia in a way
that contravenes section 43 of the Act, the visa ceases to be in effect. Section 43 provides that
visa holders must enter at a port or on a pre-cleared flight.
47. Under section 78, a non-citizen child born in Australia is taken to have been granted a
visa if, at the time of his or her birth, at least one of the child's parents holds a visa. This non-
citizen child is taken to have been granted the same visa as his or her parents.
48. On a literal interpretation of subsection 173(1), a non-citizen child's visa taken to have
been granted under section 78 would appear to cease when the child enters Australia under
section 10 in a way that "contravenes" section 43.
49. New subsection 173(2) puts it beyond doubt that a non-citizen child born in Australia
who, under section 78, is taken to have been granted a visa or visas at the time of his or her
birth, is not taken to have entered Australia in a way that contravenes section 43 of the Act or
any regulations to which section 43 is subject. This will ensure that the visa taken to have
been granted at birth under section 78 of the Act does not cease to be in effect at the same
time because the entry is taken to contravene section 43 of the Act or any regulations to which
section 43 is subject.
50. The words "or regulations to which that section is subject" are included in new
subsection 173(2) for consistency with the amendment made by item 4 of this Schedule.
Item 6 Application
51. This item provides that the amendment made by item 5 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 the Act.
52. This date corresponds to the date when the concept of "immigration clearance" was
introduced into the Act by the Migration Reform Act 1992 which commenced in 1994.
Part 2--Criminal Code harmonisation amendments
Item 7 Subsection 229(1)
53. This item makes a technical amendment consequential to the introduction of item 8 of
this Schedule by omitting the word "unless" from subsection 229(1) and substituting "if".
Item 8 Paragraphs 229(1)(a) to (e)
54. This item amends subsection 229(1) of the Act by repealing the existing paragraphs
229(1)(a) to (e) and substituting a new provision.
55. Currently subsection 229(1) makes it an offence for the master, owner, agent, charterer
and operator of a vessel to bring a non-citizen into Australia unless the non-citizen, when
entering Australia satisfies paragraphs 229(1)(a), (b), (c), (d) or (e).
56. The current wording of the offence makes it unclear as to whether the matters in
paragraphs 229(1)(a) to (e) constitute issues of exception or are elements of the offence. It is
considered that the matters in paragraphs 229(1)(a) to (e) are elements of the offence in
subsection 229(1). The existence of the defences in subsection 229(5) clearly indicates that
the matters in paragraphs 229(1)(a) to (e) are not intended to be exceptions, but elements of
the offence. Accordingly, this item amends subsection 229(1) to clarify that the matters in
paragraphs 229(1)(a) to (e) are elements of the offence in subsection 229(1).
57. Redrafting makes this clearer by specifying that the relevant persons are guilty of an
offence against the section if, when entering Australia, the non-citizen:
· 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
· does not hold a special purpose visa; and
· is not eligible for a special category visa; and
· does not hold an enforcement visa; and
· is a person to whom subsection 42(1) applies.
58. The effect is that the prosecution bears the legal burden of proving all of the elements of
the subsection 229(1) offence as provided in new paragraphs 229(1)(a) to (e).
59. The prosecution must prove the existence of the matters in new paragraphs 229(1)(a) to
(e) beyond reasonable doubt.
Item 9 After subsection 229(3)
60. This item inserts new subsection 229(4) into the Act as a consequence of the amendments
made to subsection 229(1) by items 7 and 8 of this Schedule.
61. New subsection 229(1) makes it an offence for the master, owner, agent, charterer and
operator of a vessel to bring a non-citizen into Australia if the non-citizen, when entering
Australia does not meet one of paragraphs 229(1)(a), (b), (c), (d) or (e).
62. New subsection 229(4) makes it clear that 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).
63. Subsection 42(1) provides that a non-citizen must not travel to Australia without a visa
that is in effect. However, subsection 42(1) is subject to subsections 42(2), 42(2A) and 42(3)
which provide a number of exceptions to the requirement that a non-citizen must not travel to
Australia without a visa.
64. The effect of this amendment is that the defendant must adduce or point to evidence that
suggests a reasonable possibility that the matters in subsection 42(2), 42(2A) or 42(3) exists.
65. If the defendant does this, then the prosecution is required to prove beyond reasonable
doubt that the matter does not exist.
66. Note at the end of item 9 - After this item a note is inserted referring the reader to section
13.3 of the Criminal Code in relation to the evidential burden.
Item 10 After subsection 232(1A)
67. This item inserts new subsection 232(1B) into the Act.
68. The effect of subsection 232(1) is that the master, owner, agent and charterer of a vessel
is guilty of an offence if a non-citizen on a vessel enters Australia without a visa and upon
that entry becomes an unlawful non-citizen, or enters Australia in contravention of section 43
and as a result of section 173 becomes an unlawful non-citizen.
69. An element of the offence in subsection 232(1) is that the non-citizen "is a person to
whom subsection 42(1) applies".
70. Subsection 42(1) provides that a non-citizen must not travel to Australia without a visa
that is in effect. However, subsection 42(1) is subject to subsections 42(2), 42(2A) and 42(3)
which provide a number of exceptions to the requirement that a non-citizen must not travel to
Australia without a visa.
71. The purpose of new subsection 232(1B) is to put it beyond doubt that the matters in
subsections 42(2), 42(2A) and 42(3) are exceptions to the requirement in subsection 42(1). It
does this by clarifying that the defendant bears an evidential burden in relation to establishing
that subsection 42(1) does not apply to the relevant person because of subsection 42(2) or
42(2A) or regulations made under subsection 42(3).
72. This is consistent with subsection 13.3(3) of the Criminal Code, which provides that a
defendant bears an evidential burden in relation to any matters of exception to an offence.
73. This means that the defendant must adduce or point to evidence that suggests a
reasonable possibility that the matters in subsection 42(2), 42(2A) or 42(3) exists. If the
defendant does this, then the prosecution is required to prove beyond reasonable doubt that
the matter does not exist.
74. Note at the end of item 10 - After this item a note is inserted referring the reader to
section 13.3 of the Criminal Code in relation to the evidential burden.
Item 11 Section 232A
75. This item makes a technical amendment at the beginning of section 232A by inserting
"(1)" before the words "A person".
Item 12 At the end of section 232A
76. This item inserts new subsection 232A(2) into the Act.
77. Section 232A in general terms, makes it an offence to bring a group of 5 or more non-
citizens into Australia reckless as to whether they have a lawful right to come to Australia.
An element of the offence in section 232A is that the non-citizens are people "to whom
subsection 42(1) applies".
78. New subsection (2) makes provision in relation to the evidential burden borne by the
defendant in subsection (1). It provides that 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).
79. Subsection 42(1) provides that a non-citizen must not travel to Australia without a visa
that is in effect. Subsection 42(1) is subject to subsections 42(2), 42(2A) and 42(3) which
provide a number of exceptions to the requirement that a non-citizen must not travel to
Australia without a visa.
80. The purpose of new subsection 232A(2) is to put it beyond doubt that the matters in
subsections 42(2), 42(2A) and 42(3) are exceptions to the requirement in subsection 42(1). It
does this by clarifying that the defendant bears an evidential burden in relation to establishing
that subsection 42(1) does not apply to the relevant person because of subsection 42(2) or
42(2A) or regulations made under subsection 42(3).
81. This is consistent with subsection 13.3(3) of the Criminal Code, which provides that a
defendant bears an evidential burden in relation to any matters of exception to an offence.
82. This means that the defendant must adduce or point to evidence that suggests a
reasonable possibility that the matters in subsection 42(2), 42(2A) or 42(3) exists. If the
defendant does this, then the prosecution is required to prove beyond reasonable doubt that
the matter does not exist.
83. Note at the end of item 12 - After this item a note is inserted referring the reader to
section 13.3 of the Criminal Code in relation to the evidential burden.
Item 13 After subsection 233(1)
84. This item inserts new subsection 233(1A) into the Act, which applies to the offence in
paragraph 233(1)(a).
85. New subsection 233(1A) makes it clear that strict liability applies to the physical element
of circumstance of the offence in paragraph 233(1)(a).
86. Paragraph 233(1)(a) makes it an offence for a person to take part in the bringing or
coming to Australia of a non-citizen under circumstances where it might reasonably be
inferred that the non-citizen intended to enter Australia in contravention of the Act.
87. Prior to the application of the Criminal Code to all offences against the Act, strict liability
applied to the physical element of circumstance of the offence.
88. The physical element (ie: the circumstance element) in this offence is taking part in the
bringing or coming to Australia of a non-citizen under circumstances from which it might
reasonably have been inferred that the non-citizen intended to enter Australia in
contravention of the Act.
89. At the time the Criminal Code was applied to the Act, no provision was made for strict
liability to apply to the physical element of circumstance of the offence in paragraph
233(1)(a).
90. The Criminal Code requires that if an offence is intended to be one of strict liability, it
must be expressly stated. This is because there is a strong presumption that proof of fault is
required in relation to an offence. As there was no such express statement of strict liability in
relation to this aspect of the offence in paragraph 233(1)(a), the default element provisions
provided for in subsection 5.6(2) of the Criminal Code were applied. These default
provisions applied the fault element of "recklessness" to the circumstance of the offence,
which changed the offence as it had been construed prior to the application of the Criminal
Code to the Act.
91. New subsection 233(1A) makes it clear that strict liability applies to the circumstance
element of the offence in paragraph 233(1)(a). In this way, it ensures that the offence in
paragraph 233(1)(a) operates as it did prior to the application of the Criminal Code.
92. It should be noted that the conduct element of the offence remains unchanged. That is,
the prosecution needs to prove that the defendant intended to take part in `the bringing or
coming to Australia of a non-citizen'.
93. Note at the end of item 13 - After this item a note is inserted referring the reader to
section 6.1 of the Criminal Code in relation to the matter of strict liability.
94. "Strict liability" is defined in section 6.1 of the Criminal Code and means that the
prosecution does not need to prove any fault element in relation to an offence. In cases of
strict liability, the defence of mistake of fact is available to a defendant (see section 9.2 of the
Criminal Code).
Item 14 Subsection 268BJ(1)
95. This item amends subsection 268BJ(1) of the Act, which makes it an offence for a person
to give or show false or misleading documents to an authorised officer in the course of
complying with a production or attendance notice.
96. Under subsection 5(1) of the Act, an authorised officer is defined to mean an officer
authorised in writing by the Minister or Secretary for the purposes of a provision of the Act.
97. Currently, the fault element applicable to the conduct element of the offence in
subsection 268BJ(1) requires proof that the person was aware that they were giving or
showing a false or misleading document to an authorised officer.
98. This could make it difficult to enforce the offence in practice, because it may be difficult
for the prosecution to demonstrate that the defendant was aware that the person they were
giving or showing false or misleading documents to was an authorised officer within the
meaning of the Act.
99. For example, the required fault element could not be established if the evidence
established that the defendant was aware that the person to whom he or she gave the false or
misleading document was an officer of the Department, but not that he or she was aware that
the officer had been authorised in writing by the Minister or Secretary for the purposes of
section 268BJ.
100. The purpose of the amendment to subsection 268BJ(1) is to ensure that the offence it
creates can be effectively enforced. This is achieved by ensuring that it is not an element of
the offence that the person was aware that they were giving or showing a false or misleading
document to an authorised officer.
Item 15 Section 268CM
101. This item amends section 268CM of the Act, which makes it an offence for a person to
give false or misleading information whilst complying or purporting to comply with section
268CJ or 268CK of the Act.
102. Currently, the wording of the offence in section 268CM is inconsistent with the nature
of the powers in sections 268CJ and 268CK of the Act. The amendment will omit the words
"section 268CJ or 268CK (officer may ask questions)" and substitute "a request under section
268CJ or a requirement under section 268CK".
103. In summary, section 268CJ allows an authorised officer to enter the premises of an
education provider with consent and ask the occupier or another person on the premises to
answer any questions that are relevant to a visa monitoring purpose (as defined in section
268AA). In addition, the authorised officer can ask the occupier to give or show the officer
any document that is relevant to the matter.
104. There is no obligation for an occupier or another person on the premises to comply with
the request of the authorised officer.
105. Section 268CK, by comparison, allows an authorised officer to require an occupier or
another person on the premises to answer questions or to give or show a document for visa
monitoring purposes.
106. The purpose of the amendment to section 268CM is to ensure that the wording of the
offence it creates is in line with section 268CJ, which does not require a person to comply
with a request made under the section; and section 268CK, which does require a person to
comply with a request made under the section.
Item 16 Subsection 268CN(1)
107. This item amends subsection 268CN(1) of the Act by omitting the term "authorised
officer".
108. Subsection 268CN(1) makes it an offence for a person to give or show false or
misleading documents to an authorised officer in the course of complying with a production
or attendance notice.
109. Under subsection 5(1) of the Act, an authorised officer is defined to mean an officer
authorised in writing by the Minister or Secretary for the purposes of a provision of the Act.
110. Currently, the fault element applicable to the conduct element of the offence requires
proof that the person was aware that they were giving or showing a false or misleading
document to an authorised officer.
111. This could make it difficult to enforce the offence in practice, because it may be difficult
for the prosecution to demonstrate that the defendant was aware that the person they were
giving or showing false or misleading documents to was an authorised officer within the
meaning of the Act.
112. For example, the required fault element could not be established if the evidence
established that the defendant was aware that the person to whom he or she gave the false or
misleading document was an officer of the Department, but not that he or she was aware that
the officer had been authorised in writing by the Minister or Secretary for the purposes of
section 268CN.
113. The purpose of the amendment to subsection 268CN(1) is to ensure that the offence it
creates can be effectively enforced. This is achieved by ensuring that it is not an element of
the offence that the person was aware that they were giving or showing false or misleading
documents to an authorised officer.
Item 17 Subsection 268CN(1)
114. This item amends subsection 268CN(1) of the Act, which makes it an offence for a
person to give or show false or misleading documents whilst complying or purporting to
comply with section 268CJ or 268CK of the Act.
115. Currently, the wording of the offence in subsection 268CN(1) is inconsistent with the
nature of the powers in sections 268CJ and 268CK of the Act. The amendment will omit the
words "section 268CJ or 268CK (officer may ask questions)" and substitute "a request under
section 268CJ or a requirement under section 268CK".
116. Section 268CJ allows an authorised officer to enter the premises of an education
provider with consent and ask the occupier or another person on the premises to answer any
questions that are relevant to a visa monitoring purpose (as defined in section 268AA).
117. In addition the authorised officer can ask the occupier to give or show the officer any
document that is relevant to the matter.
118. There is no obligation for an occupier to comply with the request of the authorised
officer to answer questions or to give or show documents.
119. Section 268CK, by comparison, allows an authorised officer to require an occupier or
another person on the premises to answer questions or require an occupier to give or show a
document for visa monitoring purposes.
120. The purpose of the amendment to subsection 268CN(1) is to ensure that the wording of
the offence it creates is in line with section 268CJ, which does not require a person to comply
with a request made under the section; and section 268CK, which does require a person to
comply with a request made under the section.
Part 3--The taking of securities
Item 18 Subsection 269(1)
121. This item makes a minor technical amendment to subsection 269(1) of the Act by
inserting the words ", subject to subsection (1A)," after the words "authorized officer may".
The item takes account of the amendment made by item 19 below that inserts new subsection
269(1A) by making subsection 269(1) subject to new subsection 269(1A).
Item 19 After subsection 269(1)
122. This item inserts new subsection 269(1A) after subsection 269(1) of the Act. The
amendment clarifies the power of an authorized officer to require and take security in relation
to an application for a visa.
123. New subsection 269(1A) provides that, in certain circumstances, an authorized officer
may require and take security under subsection 269(1), in relation to an application for a visa
before a visa is granted. However the officer may do this only if the security is for
compliance with conditions that will be imposed on the visa in pursuance of, or for the
purposes of, the Act or regulations, if the visa is granted and if the officer has indicated those
conditions to the visa applicant.
124. The purpose of the amendment is intended to clear the uncertainty raised in the Federal
Court decision of Tutugri v Minister for Immigration and Multicultural Affairs [1999] FCA
1785.
125. In that case, the Federal Court raised significant doubts about the power of an
authorized officer to request and take security for compliance with conditions to be imposed
on a visa at a time before the visa is actually granted. The court considered that a condition
on a visa does not bind the applicant until after the visa is granted. As such, a condition
cannot be said to have been "imposed" prior to grant. This has presented difficulties from a
practical point of view in the administration of these arrangements - the reason being, that a
security must be able to be required before a visa grant. Once the visa is granted, the holder
can simply refuse to provide the security requested.
126. The amendments address this uncertainty by allowing officers to take securities before
the visa is granted. Any security taken by an officer is intended to apply only if the visa is
granted. As such, the security will be returned to the individual if for some reason the visa is
no longer required.
Item 20 Application
127. This item provides that the amendments made by items 18 and 19 of this Schedule apply
in relation to all visa applications made after the commencement of those items. The
commencement of these items will be a day or days to be fixed by Proclamation.
Part 4--Minor amendments
Item 21 Subsection 48(2)
128. This item, together with item 22, makes it clear that section 48 only operates to restrict
visa applications that a person can make while he or she is present in Australia (ie: in the
migration zone).
129. This item amends subsection 48(2) by inserting the words "(which applies only in
respect of applications made while a non-citizen is in the migration zone)" after the word
"section" where it first occurs.
130. Section 48 imposes a bar on repeat visa applications made by a person in Australia who
has had a visa application refused or cancelled since last entering Australia. The intention is
to prevent non-citizens refused a visa, or who have had a visa cancelled since last entering
Australia, from applying for another visa in Australia other than certain prescribed visas.
131. Subsection 48(2) provides that in certain situations, non-citizens are to be treated as
having been continuously in the migration zone despite having left Australia and returned to
Australia.
132. The amendment clarifies that the bar in section 48 applies to repeat applications made
while the applicant is actually in the migration zone. It does not bar such applications made
while the applicant is outside the migration zone.
Item 22 At the end of section 48
133. This item inserts new subsection 48(3) at the end of section 48 of the Act. This item,
together with item 21, reinforces the intended effect of section 48, which is to only restrict
visa applications that a person can make while he or she is present in Australia (ie: in the
migration zone).
134. Subsection 48(1) provides that a non-citizen who does not hold a substantive visa and
who after last entering Australia was refused a visa, or had a visa cancelled, may only apply
for a prescribed class of visa. This is to prevent non-citizens refused a visa or who have had a
visa cancelled, from applying for another visa in Australia other than certain prescribed visas.
135. At present, an identified anomaly exists in the legislation which enables certain bridging
visa holders, to circumvent the section 48 limitation. This occurs where a non-citizen leaves
and re-enters Australia as the holder of a certain class of bridging visa (Bridging Visa B).
Unlike other types of visa or bridging visas, this particular bridging visa enables the holder to
leave and re-enter Australia. All other bridging visas cease on departure from Australia.
136. As a result, on re-entering Australia, the non-citizen holder of this particular bridging
visa has not technically had a visa refused or cancelled "after last entering Australia" as
specified by section 48. This enables a person to apply for a visa of a class other than those
prescribed in the Regulations.
137. It was never intended that these bridging visa holders who leave and re-enter Australia
be exempted from the restriction imposed by section 48.
138. New subsection 48(3) corrects this situation. It provides that a non-citizen who leaves
and re-enters the migration zone while holding a bridging visa, is taken to have been
continuously in the migration zone despite that travel.
139. This ensures that the restrictions imposed by section 48 on further visa applications will
apply as originally intended.
Item 23 Application
140. This item provides that section 48, as amended by item 22 of this Schedule, applies to
all visa applications made or purported to be made after the commencement of that item (the
commencement time), regardless of:
· whether the bridging visa mentioned in subsection 48(3) was granted before or
after the commencement time; and
· whether the travel mentioned in subsection 48(3) took place before or after the
commencement time.
141. This means that a non-citizen is subject to the section 48 limitation on making further
visa applications in the following circumstances:
· where they leave and re-enter Australia before the commencement time on a
bridging visa and apply for a subsequent visa after the commencement time;
· where they leave Australia before the commencement time, re-enter Australia
after the commencement time and apply for a subsequent visa after the
commencement time; and
· where they leave and re-enter Australia after the commencement time on a
bridging visa that allows such travel and apply for a subsequent visa after the
commencement time.
1. The proposed new subsection 48(3) applies only to visa applications made in the
migration zone. It does not prevent a non-citizen from travelling outside Australia and
making a valid application for a visa that can be applied for outside Australia whilst he or she
is outside Australia.
Item 24 After subsection 82(7)
2. This items inserts new subsection 82(7A) after subsection 82(7) of the Act.
3. Proposed subsection (7A) clarifies the time at which a bridging visa ceases to be in effect.
4. Under section 73 of the Act a bridging visa may be granted to an eligible non-citizen to
permit the non-citizen to remain in, or to travel to, enter and remain in, Australia. A bridging
visa has effect during a specified period or until a specified event happens.
5. Schedule 2 to the Regulations specifies the events which will result in the cessation of a
bridging visa.
6. Section 82 sets out the general rules for determining when visas cease to be in effect and
qualifies the manner in which section 73 and Schedule 2 to the Regulations should be
interpreted.
7. New subsection 82(7A) provides that a bridging visa ceases to be in effect the moment a
certain ceasing event happens, rather than at the end of the day on which the event occurs.
This event is one where the happening of the event results in the bridging visa ceasing to
permit the holder to remain in, or to travel to, enter and remain in, Australia.
8. Where the "event" is the cancellation of the substantive visa, this means that the bridging
visa would cease the moment that the non-citizen's substantive visa is cancelled. Where a
bridging visa is in effect until the holder's release from criminal detention, the bridging visa
will cease immediately upon the person being released from criminal detention. These events
are, however, not exhaustive examples of how new subsection 82(7A) operates.
9. The purpose of new subsection 82(7A) is to give effect to the policy intention. It ensures
that if an event happens, which results in the bridging visa ceasing to permit the holder to
remain in, or to travel to, enter and remain in, Australia, then the person's bridging visa
ceases immediately upon the happening of that event.
Item 25 Application
10. This item provides that new subsection 82(7A), as inserted by item 24 of this Schedule,
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.
SCHEDULE 4 - Miscellaneous
Migration Act 1958
Item 1 Subsection 52(3C) (note 2)
11. This item repeals note 2 in subsection 52(3C) of the Migration Act 1958 ("the Act") and
substitutes a new note 2.
12. Subsection 52(3C) provides that where two or more non-citizens apply for visas together,
notifications given to any of them about the application are taken to be given to each of them.
13. Note 2 currently informs the reader that if a person gives the Minister notice under
section 494D of the Act, documents that would have been given to the person will be given to
the person's authorised recipient. Since item 4 of this Schedule will amend section 494D to
provide that in some instances the Minister will not be obliged to communicate with an
authorised recipient, it is necessary to amend note 2 so that it accurately refers to section
494D. Accordingly new note 2 simply states that section 494D of the Act deals with giving
documents to a person's authorised recipient.
Item 2 Subparagraph 193(1)(d)(ii)
14. This item omits "a lawful non-citizen" and substitutes "granted a substantive visa" in
subparagraph 193(1)(d)(ii) of the Act.
15. Paragraph 193(1)(d), in conjunction with subsection 198(2), currently provides that an
officer must remove an unlawful non-citizen detained under section 189 of the Act, who held
an enforcement visa that has ceased to be in effect and who has not been a lawful non-citizen
since the enforcement visa ceased. Enforcement visas are granted to suspected illegal foreign
fishers and suspected environmental offenders by operation of law when fisheries or
environment officers take enforcement action under the Fisheries Management Act 1991, the
Torres Strait Fisheries Act 1984 or the Environment Protection and Biodiversity
Conservation Act 1999.
16. These provisions, however, do not authorise the removal of illegal foreign fishers or
environmental offenders who are granted a criminal justice visa or a bridging visa (visas
which are non-substantive visas) while for example in remand or serving a custodial sentence,
after their enforcement visa ceased to be in effect, because the granting of these visas would
make them a lawful non-citizen.
17. Accordingly, this item amends subparagraph 193(1)(d)(ii) so that the requirement to
remove an unlawful non-citizen detained under section 189 of the Act applies to a person who
held an enforcement visa that has ceased, and has not been granted a substantive visa since
the enforcement visa ceased. The term "substantive visa" is defined under section 5 of the Act
to mean a visa other than a bridging visa, criminal justice visa or an enforcement visa.
18. This amendment ensures paragraph 193(1)(d) and subsection 198(2) operate consistently
with the original policy intention of these provisions.
Item 3 Section 494A (note)
19. This item repeals the note in section 494A of the Act and substitutes a new note.
20. Section 494A provides that where a provision of the Act or the Migration Regulations
1994 ("the Regulations") requires or permits the Minister to give a document to a person and
the provision does not state the method by which the document must be given, the Minister
may give the document by any method he or she considers appropriate.
21. The note currently informs the reader that under section 494D a person may give the
Minister the name of an authorised recipient who is to receive documents on the person's
behalf. Since item 4 of this Schedule will amend section 494D to provide that in some
instances the Minister will not be obliged to communicate with an authorised recipient, it is
necessary to amend the note so that it accurately refers to section 494D. Accordingly the new
note simply states that section 494D of the Act deals with giving documents to a person's
authorised recipient.
Item 4 At the end of section 494D
22. This item adds new subsection (5) at the end of section 494D of the Act.
23. Subsection 494D(1) provides that where a person ("the first person") gives the Minister
written notice of the name and address of an authorised recipient, the Minister must give the
authorised recipient any documents that would have otherwise been given to the first person.
Subsection 494D(4) provides that the Minister may communicate with the first person by
means other than giving a document to the first person, provided the Minister gives the
authorised recipient notice of the communication.
24. New subsection 494D(5) provides that the Minister is not obliged to comply with
subsection 494D(1) or the requirement in subsection 494D(4) to give a notice if each of
paragraphs (a), (b) and (c) apply. Namely, that the authorised recipient is not a registered
migration agent, the Minister reasonably suspects that the authorised recipient is giving
immigration assistance and the Minister gives the first person notice, by a method specified in
section 494B of the Act, stating that the Minister does not intend to give the documents to the
authorised recipient. The methods specified in section 494B for giving documents are giving
the document to a person by hand; or by handing it to a person at the last residential or
business address; or by dispatching it by prepaid post or transmitting by fax, e-mail or other
electronic means.
25. If the Minister exercises the discretionary power in new subsection 494D(5) and refuses
to communicate with the authorised recipient the Minister would give the relevant documents
to the first person instead of the authorised recipient.
26. The effect of this amendment is that it will allow the Minister to refuse to communicate
with an authorised recipient in relation to whom there are concerns, for example, about their
character, conduct or professionalism. The power is discretionary, however, so that in the
overseas context where there is no migration agents registration scheme, if the Minister has
no such concerns he or she can continue to communicate with authorised recipients providing
immigration assistance. In addition, under policy the Minister will continue to communicate
with authorised recipients who, for example, are parliamentarians, lawyers, officials,
individuals giving immigration assistance without fee or reward, close family members,
persons nominating visa applicants, or persons sponsoring visa applicants.
27. The amendments will also ensure that the Minister has the power to refuse to
communicate with an authorised recipient who has previously been registered as a migration
agent but whose registration has been cancelled by the Migration Agents Registration
Authority (the MARA) for disciplinary reasons, or who has been refused registration because
they are not a fit and proper person to provide immigration assistance or are not a person of
integrity. The Act does not currently contain a mechanism for the Minister to refuse to
communicate with an authorised recipient on these grounds.
Item 5 After section 501H
28. This item inserts new section 501HA into the Act, which is a technical amendment,
applying to transitional (permanent) visas and transitional (temporary) visas that came to be
held under the Migration Reform (Transitional Provisions) Regulations on 1 September 1994.
29. New section 501HA addresses obiter comments in the Full Federal Court's decision of
Moore v Minister for Immigration and Citizenship [2007] FCAFC 134 that cast doubt on
whether a previous character cancellation decision made under subsection 501(2) of the Act
in respect of a transitional (permanent) visa was valid in circumstances where the visa came
to be "held" rather than "granted". This is because, on its face, subsection 501(2) only allows
cancellation of a visa that "has been granted".
30. New section 501HA will clarify the matter by providing that if a person held a visa or
permit that continues in effect as a transitional (permanent) visa or a transitional (temporary)
visa, or is taken to hold a transitional (permanent) visa, the person is also taken for the
purposes of sections 501 to 501H of the Act to have been granted a visa.
Item 6 Application
31. Subitem (1) provides that the amendment made by item 2 of this Schedule applies to
illegal foreign fishers and environmental offenders who have been granted a bridging visa or
a criminal justice visa on or after the day on which that item commences.
32. Subitem (2) provides that the amendments made by item 4 of this Schedule, apply
whether the notice under subsection 494D(1) to appoint an authorised recipient is given
before, on or after commencement of that item.
33. Subitem (3) provides that the amendment made by item 5 of this Schedule applies in
respect of a decision to cancel a visa that is made under the Act on or after the day on which
new section 501HA commences.
Item 7 Validation of pre-commencement decisions in relation to transitional
(permanent) visas and transitional (temporary) visas
34. Subitem 7(1) provides that to avoid doubt, any decision made or purported to have been
made to cancel a transitional (permanent) visa or a transitional (temporary) visa is as valid,
and will be taken to have always been as valid, as it would have been if the transitional
(permanent) visa or transitional (temporary) visa were a visa that had been granted.
35. The effect of this amendment is to provide validation of past visa cancellation decisions
made under sections 501, 501A, 501B, 501C or 501F of the Act (as in force at any time on or
after 1 September 1994 and before the day on which item 7 commences) in respect of
transitional (permanent) visas and transitional (temporary) visas, if they would be invalid
because they were made in respect of visas that were not technically `granted'.
36. Subitem 7(2) inserts definitions for the terms "transitional (permanent) visa" and
"transitional (temporary) visa" for the purposes of subitem 7(1). It provides that "transitional
(permanent) visa" means a transitional (permanent) visa referred to in the Migration Reform
(Transitional Provisions) Regulations, and that "transitional (temporary) visa" means a
transitional (temporary) visa referred to in the Migration Reform (Transitional Provisions)
Regulations.
SCHEDULE 5 - Amendments relating to Australian Citizenship
Australian Citizenship Act 2007
Item 1 Paragraph 16(2)(c)
37. This item amends paragraph 16(2)(c) of the Australian Citizenship Act 2007 (the
Citizenship Act) by inserting the words "is or has ever been a national or a citizen of any
country and the person" after the words "if the person".
38. Section 16 of the Citizenship Act provides the eligibility criteria for citizenship by
descent and subsection 16(2) sets out the criteria for persons born outside Australia on or after
26 January 1949. Paragraph 16(2)(c) currently provides that the Minister must be satisfied
that the person is of good character if the person was 18 years or over at the time of
application.
39. The effect of this amendment is that only persons who are or who have ever been
nationals or citizens of any country must meet the good character requirement prescribed in
paragraph 16(2)(c). Persons who have never been nationals or citizens of any country
(stateless persons) are not required to meet this requirement. This is consistent with section
21 of the Citizenship Act, which does not apply the good character requirement to stateless
persons seeking citizenship by conferral, and also accords with Australia's obligations under
the United Nations Convention on the Reduction of Statelessness 1961.
Item 2 Paragraph 16(3)(c)
40. This item repeals paragraph 16(3)(c) of the Citizenship Act and substitutes a new
paragraph (c) that states - "if the person is or has ever been a national or a citizen of any
country - the Minister is satisfied that the person is of good character at the time of the
Minister's decision on the application."
41. Section 16 of the Citizenship Act provides the eligibility and application criteria for
citizenship by descent and subsection 16(3) sets out the criteria for persons born outside
Australia or New Guinea before 26 January 1949. Paragraph 16(3)(c) provides that the
Minister must be satisfied that the person is of good character if the person was 18 years or
over at the time of application.
42. This amendment will have the same effect (with regard to citizenship applicants born
outside Australia or New Guinea before 26 January 1949) as the amendment in item 1 of this
Schedule, in that only persons who are or have ever been nationals or citizens of any country
must meet the good character requirement prescribed in paragraph 16(3)(c). Persons who are
not or have never been nationals or citizens of any country (stateless persons) are not required
to meet this requirement. This is consistent with section 21 of the Citizenship Act and
ensures that Australia meets its obligations under the United Nations Convention on the
Reduction of Statelessness 1961.
Item 3 Paragraphs 21(2)(b) and (c)
43. This item repeals paragraphs 21(2)(b) and (c) of the Citizenship Act and substitutes new
paragraphs 21(2)(b) and (c).
44. Subsection 21(2) of the Citizenship Act sets out the general eligibility criteria for
citizenship (citizenship by conferral). Paragraphs 21(2)(b) and (c) currently provide that a
person is eligible to become an Australian citizen if the Minister is satisfied, among other
things, that at the time of application the person is a permanent resident and either satisfies the
residence requirement or has completed relevant defence service.
45. New paragraph 21(2)(b) alters the existing provision by providing, in effect, that in order
to qualify for citizenship under the general eligibility criteria, a person must be a permanent
resident at the time of their application and also at the time of the Minister's decision on the
application.
46. New paragraph 21(2)(c) is a consequential amendment to eliminate uncertainty in the
provision by making it clear that the time at which the Minister must be satisfied that a person
meets the residence requirement, or has completed relevant defence service, is at the time of
application. The residence requirement and the completion of relevant defence service are
assessed at the time of application, not at the time of decision.
Item 4 Paragraphs 21(3)(b) to (d)
47. This item repeals paragraphs 21(3)(b), (c) and (d) of the Citizenship Act and substitutes
new paragraphs 21(3)(b), (c) and (d).
48. Section 21 of the Citizenship Act provides the eligibility criteria for citizenship by
conferral and subsection 21(3) sets out the criteria for persons with permanent physical or
mental incapacity. Paragraphs 21(3)(b) to (d) currently provide that a person is eligible to
become an Australian citizen if the Minister is satisfied, among other things, that at the time
of application the person is a permanent resident, and either satisfies the resident requirement
or has completed relevant defence service, and has a permanent physical or mental incapacity.
49. New paragraphs 21(3)(b), (c) and (d) are similar in effect (with regard to citizenship
applicants with permanent physical or mental incapacity) as the amendments in items 3 and 5
of this Schedule. That is new paragraph 21(3)(b) alters the existing provision by providing, in
effect, that in order to qualify for citizenship under subsection 21(3) a person must be a
permanent resident at the time of their application and also at the time of the Minister's
decision on the application. New paragraphs 21(3)(c) and (d) are consequential amendments
to eliminate uncertainty in the provision by making it clear that the time at which the Minister
must be satisfied that a person meets the residence requirement, or has completed relevant
defence service, and has a permanent physical or mental incapacity that means the person is
not capable of understanding the nature of the application, is at the time of application.
Item 5 Paragraphs 21(4)(b) to (d)
50. This item repeals paragraphs 21(3)(b), (c) and (d) of the Citizenship Act and substitutes
new paragraphs 21(4)(b), (c) and (d).
51. Section 21 of the Citizenship Act provides the eligibility criteria for citizenship by
conferral and subsection 21(4) sets out the criteria for persons aged 60 or over who have a
hearing, speech or sight impairment. Paragraphs 21(4)(b) to (d) currently provide that a
person is eligible to become an Australian citizen if the Minister is satisfied, among other
things, that at the time of application the person is a permanent resident, understands the
nature of the application, and either satisfies the resident requirement or has completed
relevant defence service.
52. New paragraphs 21(4)(b), (c) and (d) are similar in effect (with regard to citizenship
applicants aged 60 or over who have a hearing, speech or sight impairment) as the
amendments in items 3 and 4 of this Schedule. That is new paragraph 21(4)(b) alters the
existing provision by providing, in effect, that in order to qualify for citizenship under
subsection 21(4) a person must be a permanent resident at the time of their application and
also at the time of the Minister's decision on the application. New paragraphs 21(4)(c) and
(d) are consequential amendments to eliminate uncertainty in the provision by making it clear
that the time at which the Minister must be satisfied that a person understands the nature of
the application and meets the residence requirement, or has completed relevant defence
service, is at the time of application.
Item 6 Paragraph 21(6)(d)
53. This item repeals paragraph 21(6)(d) of the Citizenship Act and substitutes a new
paragraph 21(6)(d).
54. Section 21 of the Citizenship Act provides the eligibility criteria for citizenship by
conferral and subsection 21(6) sets out the criteria for a person born to a former Australian
citizen. Paragraph 21(6)(d) provides that the Minister must be satisfied that the person is of
good character.
55. Paragraph 21(6)(d) does not limit the character requirement to persons aged 18 or over.
Accordingly, new paragraph 21(6)(d) provides in effect that an applicant for citizenship by
conferral on the basis that their parent is a former Australian citizen under subsection 21(6) of
the Citizenship Act, is only required to be of good character if they are aged 18 years or over
at the time of application. This amendment will achieve consistency with other provisions in
the Citizenship Act that only require applicants aged 18 years or over to meet the good
character requirement.
Item 7 Paragraph 21(8)(b)
56. This item omits the words "at the time the person made the application" from paragraph
21(8)(b) of the Citizenship Act.
57. Section 21 of the Citizenship Act provides the eligibility criteria for citizenship by
conferral and subsection 21(8) sets out the criteria for stateless persons. Paragraph 21(8)(b)
provides that the Minister must be satisfied that at the time of application the person is not a
national or a citizen of any country.
58. The amendment alters existing paragraph 21(8)(b) by providing, in effect, that the person
is not a national or citizen of any country at the time of the Minister's decision and not at the
time of application, as is currently the case. This will ensure that a person who is stateless at
the time of the Minister's decision on the application is not denied citizenship, which would
be inconsistent with Australia's obligations under the United Nations Convention on the
Reduction of Statelessness 1961.
Item 8 Paragraphs 21(8)(d) and (e)
59. This item repeals paragraphs 21(8)(d) and (e) of the Citizenship Act and substitutes a new
paragraph 21(8)(d).
60. Section 21 of the Citizenship Act provides the eligibility criteria for citizenship by
conferral and subsection 21(8) sets out the criteria for stateless persons. Paragraph 21(8)(d)
currently provides that the Minister must be satisfied at the time the person made the
application, that the person does not have reasonable prospects of acquiring the nationality or
citizenship of a foreign country. Paragraph 21(8)(e) provides that the Minister must be
satisfied at the time the person made the application, that the person has never had reasonable
prospects of acquiring the nationality or citizenship of a foreign country.
61. New paragraph 21(8)(d) will replace the two current provisions referred to with one
provision that provides that the Minister must be satisfied that the person is not entitled to
acquire the nationality or citizenship of a foreign country.
62. The amendment in this item makes three important changes to the current provisions.
First it repeals paragraph 21(8)(e) which operates to deny eligibility to a person who has ever
had reasonable prospects of acquiring the nationality or citizenship of a foreign country, even
if they have no such prospects at the time they apply or when their application is being
decided. This is consistent with Australia's obligations under the United Nations Convention
on the Reduction of Statelessness 1961 (the Convention).
63. Secondly, new paragraph 21(8)(b) will replace the current requirement for the applicant
not to have "reasonable prospects" of acquiring the nationality or citizenship of a foreign
country, with the requirement that the applicant is not entitled to acquire the nationality or
citizenship of a foreign country. The term "reasonable prospects" is too broad and can
operate to deny citizenship to persons who are not in fact entitled to acquire the citizenship or
nationality of a foreign country. This new formulation of not being "entitled to acquire" the
nationality or citizenship of a foreign country is consistent with the language used in the
Australian Citizenship Act 1948 and also with Australia's obligations under the Convention.
64. Thirdly, new paragraph 21(8)(d) also amends the time at which the Minister must be
satisfied that a person is not entitled to acquire the nationality or citizenship of a foreign
country. That is, the Minister will now be required to be satisfied of this at the time of the
Minister's decision, rather than at the time of application. This will ensure that a person is not
denied eligibility for citizenship under subsection 21(8) where they were entitled to acquire
citizenship and nationality at the time of application, however at the time of the Minister's
decision they were no longer entitled to acquire citizenship and nationality. This change is
consistent with the amendment in item 7 of this Schedule and also with Australia's
obligations under the Convention.
Item 9 Paragraph 22(1B)(b)
65. This item omits the expression "3 months" and substitutes the expression "90 days" in
paragraph 22(1B)(b) of the Citizenship Act.
66. Section 22 of the Citizenship Act provides the residence requirement for the purposes of
section 21. Subsection 22(1B) of the Citizenship Act allows a person to have spent up to "3
months" outside Australia during the 12 month period that a person is required to be
physically present in Australia as a permanent resident under subsection 22(1)(d) of the
Citizenship Act.
67. This amendment specifies the number of days a person is able to be absent from Australia
and still satisfy the residence requirement because a period of "3 months" can differ given the
irregular lengths of the months.
Item 10 Subparagraph 23(a)(i)
68. This item is similar to item 9 of this Schedule in that it omits the expression "3 months"
and substitutes the expression "90 days" in subparagraph 23(a)(i) of the Citizenship Act.
69. Section 23 of the Citizenship Act provides the relevant defence service a person must
complete for the purposes of section 21. Subparagraph 23(a)(i) provides that a person must
have completed at least "3 months service" in the permanent forces of the Commonwealth.
70. This amendment specifies the number of days service a person must have completed,
because a period of "3 months" can differ given the irregular lengths of the months. This
amendment is also to ensure there are consistent terms used to describe time periods across
the Act.
Item 11 Subparagraph 23(a)(ii)
71. This item is similar to the amendments in items 9 and 10 of this Schedule in that it omits
the expression "6 months" and substitutes the expression "180 days" in subparagraph 23(a)(ii)
of the Citizenship Act.
72. Section 23 of the Citizenship Act provides the relevant defence service a person must
complete for the purposes of section 21. Subparagraph 23(a)(ii) provides that a person must
have completed at least "6 months" service in the Naval, Army or Air Force Reserve.
73. This amendment specifies the number of days service a person must have completed,
because a period of "6 months" can differ given the irregular lengths of the months. This
amendment is also to ensure there are consistent terms used to describe time periods across
the Act.
Item 12 Subsection 24(2)
74. This item omits the reference to subsection 21(8) from subsection 24(2) of the
Citizenship Act.
75. Subsection 24(2) of the Citizenship Act provides the Minister with a discretion to refuse
to approve a person becoming an Australian citizen despite the person being eligible to
become an Australian citizen under subsections 21(2), (3), (4), (5), (6), (7) or (8). Subsection
21(8) relates to persons born in Australia who are eligible to become Australian citizens by
conferral if they are stateless.
76. The discretion to refuse to approve stateless persons becoming Australian citizens was
not contained in the Australian Citizenship Act 1948. To ensure the Australian Citizenship
Act 2007 operates consistently with Australia's obligations under the United Nations
Convention on the Reduction of Statelessness 1961, this discretion has been removed.
Item 13 After subsection 24(4C)
77. This item inserts new subsection 24(4D) to the Citizenship Act which provides that, to
avoid doubt, subsection 24(4A) applies to persons eligible to become an Australian citizen
under subsection 21(8).
78. This item is consequential to the amendment in item 12. It ensures that although the
discretion to refuse a person becoming an Australian citizen by being eligible under
subsection 21(8) has been removed in subsection 24(2), subsection 24(4A) continues to apply
to a person who is eligible to become an Australian citizen under subsection 21(8).
79. Subsection 24(4A) provides that the Minister must not approve a stateless person
becoming an Australian citizen if they have been convicted of a national security offence or,
subject to subsection 24(4C), they have been convicted of an offence for which they have
been sentenced to a period of imprisonment of at least 5 years. Subsection 24(4C) allows the
Minister to decide that a stateless person born in Australia should not be refused citizenship
because they have been convicted of an offence for which they have been sentenced to a
period of imprisonment of at least 5 years (other than a national security offence) if this
would be unreasonable.
Item 14 Application
80. This item provides that the amendments made by items 1 to 13 of Schedule 5 apply in
relation to applications made after the commencement of those items. The commencement of
these items will be a day or days to be fixed by Proclamation.
Item 15 Paragraph 34(3)(a)
81. This item repeals paragraph 34(3)(a) of the Citizenship Act and substitutes a new
paragraph.
82. Section 34 of the Citizenship Act provides the power for the Minister to revoke
Australian Citizenship with subsection 34(3) providing where the Minister must not decide to
revoke a person's Australian citizenship by conferral.
83. This amendment provides that, where a person would become stateless if their
citizenship were revoked, the Minister must not decide to revoke a person's citizenship if only
subparagraph 34(2)(b)(ii) applies to the person.
84. Subparagraph 34(2)(b)(ii) provides refers to where the person has, at any time after
making the application for citizenship, been convicted of an offence for which they have been
sentenced to death or to a serious prison sentence.
85. The purpose of this amendment is to ensure that, in the case of a person who would
become stateless if their citizenship was revoked, subsection 34(3) will only allow revocation
in cases where there is citizenship or migration fraud, as provided for in subparagraphs
34(2)(b)(i), (iii) and (iv), and not where the person is only convicted of a serious offence.
This amendment will ensure the Citizenship Act is consistent with Article 8 of the United
Nations Convention on the Reduction of Statelessness 1961, which allows a state to deprive a
person of his or her nationality in circumstances where the person would become stateless,
where the nationality has been obtained by misrepresentation or fraud.
Item 16 Application
86. This item provides that the amendment made by item 15 of Schedule 5 applies in relation
to a decision concerning revocation of a person's citizenship made after the commencement
of item 15. The commencement of this item will be a day or days to be fixed by Proclamation.
Australian Citizenship (Transitionals and Consequentials) Act 2007
Item 17 Item 5B of Schedule 3
87. This item repeals item 5B of Schedule 3 to the Australian Citizenship (Transitionals and
Consequentials) Act 2007 (the Citizenship Transitionals Act) and substitutes a new item 5B.
88. Item 5B of Schedule 3 provides the transitional provisions for persons who are permanent
residents at the commencement of the Australian Citizenship Act 2007 (the Citizenship Act)
and apply for citizenship within 3 years from 1 July 2007. In those cases item 5B provides
that subsection 22(1) of the Citizenship Act does not apply, and applies alternative residence
requirements. However, the discretions that the Minister may exercise with respect to the
residence requirements under subsections 22(5), 22(6) and 22(11) of the Citizenship Act
(which are intended to continue to operate in these cases) all cross refer to the non applicable
residence requirement in paragraph 22(1)(c) of the Citizenship Act, rendering those
discretionary provisions ineffective.
89. New item 5B is substantially the same as the current item 5B of Schedule 3 except that it
includes a new subitem 5B(3) which makes it clear that the discretions that the Minister may
exercise under subsections 22(5), 22(6) and 22(11) of the Citizenship Act, continue to operate
with respect to citizenship applications covered by item 5B of the Citizenship Transitionals
Act. New subitem 5B(3) achieves this by providing that in applying section 22 of the
Citizenship Act to an application covered by subitem 5B(1) of the Citizenship Transitionals
Act, subsections 22(5), (6) and (11) of the Citizenship Act have effect as if the reference in
those subsections to "paragraph (1)(c)" were a reference to "subsection (1)" as applied by
subitem (2) in new item 5B.
90. The discretions referred to in subsections 22(5), (6) and (11) have been applied to
applications covered by item 5B of Schedule 3 to the Citizenship Transitionals Act, through a
beneficial interpretation of the legislation, since the Citizenship Act was introduced on 1 July
2007. This amendment will clarify the issue and put that interpretation beyond doubt.
Item 18 At the end of item 7 of Schedule 3
91. This item adds a new subitem 7(9) in Schedule 3 to the Citizenship Transitionals Act.
92. Item 7 of Schedule 3 provides the transitional provisions for applications made under the
Australian Citizenship Act 1948 (the old Citizenship Act) including applications made by
people who acquired permanent residence before the commencement of the Citizenship Act
(1 July 2007) where the application was not decided before 1 July 2007.
93. The effect of this amendment is to clarify that the residence discretions provided for by
subsections 22(5), (6) and (11) of the Citizenship Act apply to applications covered by
subitem 7(2) of Schedule 3 to the Citizenship Transitionals Act. That is, applications made
under sections 13 or 23D of the old Citizenship Act and not decided before 1 July 2007 such
that they are taken to be an application under section 21 of the new Citizenship Act.
94. The residence discretions in subsections 22(5), (6) and (11) have been applied to
applications covered by subitem 7(2) of Schedule 3 to the Citizenship Transitionals Act since
the Citizenship Act commenced on 1 July 2007 through a beneficial interpretation of the
legislation.
Item 19 Validation of past decisions
95. This item provides that a decision in relation to an application covered by subitem 5B(1)
or 7(2) of Schedule 3 to the Citizenship Transitionals Act before the commencement of items
17 and 18 in this Schedule, is as valid and taken always to have been as valid as it would have
been if the amendments made by items 17 and 18 had been in force at the time of the
decision.
96. The purpose of this amendment is to ensure that any decisions made taking a beneficial
interpretation (as specifically provided for in subitems 5B(3) and 7(9)), following the
commencement of the Citizenship Transitionals Act on 1 July 2007, are valid.
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