Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATIONS 2002 (NO. 8) 2002 NO. 323

STATUTORY RULES 2002 No. 323

Issued by the Authority of the Minister for Immigration and Multicultural and Indigenous Affairs

Migration Act 1958

Migration Amendment Regulations 2002 (No. 8)

Subsection 504(1) of the Migration Act 1958 (the Act) provides that the GovernorGeneral may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

In addition, paragraph (e) of the definition of "excised offshore place" in subsection 5(1) of the Act provides that the regulations may prescribe any island that forms part of a State or Territory as an "excised offshore place" (other than the external Territories of Christmas Island, Ashmore and Cartier Islands, and Cocos (Keeling) Islands, which are already defined as excised offshore places).

The purpose of the Regulations is to amend the Migration Regulations 1994 to prescribe the following islands as "excised offshore places" pursuant to paragraph (e) of the definition of "excised offshore place" in subsection 5(1) of the Act:

-       Bernier Island, Dorre Island, Dirk Hartog Island and Faure Island.

These islands have been identified by the Department of Immigration and Multicultural and Indigenous Affairs as being on the likely route of people seeking to enter Australia without authority.

The effect of being an "excised offshore place" is that persons who are not citizens of Australia who arrive in such places without authority - usually in the form of a visa - cannot make a valid application for a visa.

The Regulations address indications that people smugglers have changed the focus of their operations to utilise alternative routes which do not include the islands set out in the Act as "excised offshore places". The above mentioned islands have been identified on the basis of Government information as being located on the navigation route of a boat currently travelling towards Australian and which is believed to be carrying people seeking to enter Australia without authority. In combating this new threat it is necessary to extend the bar on visa applications by persons who arrive without lawful authority at these additional offshore places.

Section 49 of the Acts Interpretation Act 1901 provides that where either House of Parliament disallows any regulation, no regulation, being the same in substance as the disallowed regulation, shall be made within 6 months after the date of disallowance.

The Migration Amendment Regulations 2002 (No. 4) were made by the GovernorGeneral on 7 June 2002 and subsequently disallowed on 19 June 2002. Those Regulations prescribed the Coral Sea Islands Territory and all islands north of certain degrees of latitude in Queensland, Western Australia and the Northern Territory, as "excised offshore places".

These Regulations are considered different in substance from the Migration Amendment Regulations 2002 (No. 4) because they prescribe, as "excised offshore places", specific islands that are located south of the areas specified in the Migration Amendment Regulations 2002 (No. 4).

Australian citizens and other persons with lawful authority under the Act to be in Australia continue to be able to move about freely in these areas and make any applications permitted by the Act.

The Commonwealth will continue to ensure that, while unauthorised arrivals at excised offshore places cannot apply for visas, appropriate arrangements will ensure that Australia continues to fulfil its obligations under the United Nations Convention relating to the Status of Refugees and under other relevant international instruments.

The Regulations commence on gazettal.