Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATIONS 2004 (NO. 7) 2004 NO. 270

EXPLANATORY STATEMENT

STATUTORY RULES 2004 NO. 270

Issued by the Minister for Immigration and Multicultural and Indigenous Affairs

Migration Act 1958

Migration Amendment Regulations 2004 (No. 7)

Subsection 504(1) of the Migration Act 1958 (the Act) provides in part that the Governor-General 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, regulations may be made pursuant to the provisions in Attachment A.

The Australian Government has committed $9.7 million in 2004/2005 towards developing biometric technology (such as facial recognition and fingerprint and iris scanning) to combat identity fraud at Australia's borders, of which the Department of Immigration and Multicultural and Indigenous Affairs (the Department) has been allocated $4.4 million. This will allow the Department to enhance border security and address identity fraud by researching and testing the best way to incorporate biometric technologies into Australia's existing advanced electronic visa and entry arrangements. The Migration Legislation Amendment (Identification and Authentication) Act 2004 (the Amendment Act) amends the Act to enable the Department to incorporate biometric technologies into its border control operations.

The purpose of the Regulations is to make necessary regulations for certain provisions in the Amendment Act which are essential for the Department to obtain identifying information from non-citizens in certain situations and be able to use that information. The Regulations amend the Migration Regulations 1994 (the Principal Regulations) to: make various amendments relating to the provision of personal identifiers by non-citizens for the purposes of visa application validity, immigration clearance and immigration detention; and prescribe the types of information which must be given to a person before they either undergo an identification test or otherwise provide a personal identifier. The term personal identifier is defined in new subsection 5A(1) of the Act, inserted by Schedule 1 to the Amendment Act, to include identifying information such as fingerprints or hand prints, height and weight measurements, photographs or images of a person's face and shoulders, iris scans and a person's signature.

In particular, the Regulations effect changes to the Principal Regulations to prescribe:

•       the circumstance when an officer may require an applicant for a visa to provide one or more personal identifiers for the application not to be considered invalid, and which personal identifiers are able to be provided by an applicant without an identification test;

•       the circumstances when a non-citizen entering Australia must comply with any requirement by a clearance officer to provide one or more personal identifiers, with particular provision for the use of an automated identification processing system;

•       the matters a non-citizen is required to be informed of before an identification test is carried out on the non-citizen or before a non-citizen is required to provide a personal identifier; and

•       the circumstances when a non-citizen in immigration detention is not required to provide to an authorised officer one or more personal identifiers.

Details of the Regulations are set out in Attachment B.

The Regulations commence on 27 August 2004 to coincide with the commencement of Schedule 1 to the Amendment Act.

Schedule 1 to the Amendment Act commences on either a single day to be fixed by Proclamation or the first day after the end of the six month period beginning on the day on which the Amendment Act received Royal Assent. The commencement of the Amendment Act is not fixed by Proclamation. The Amendment Act was assented to on 27 February 2004 resulting in Schedule 1 to the Amendment Act commencing on 27 August 2004.

0406381A-040805Z

ATTACHMENT A

Subsection 504(1) of the Migration Act 1958 (the Act) provides in part that the

Governor-General 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, the following provisions of the Act, to be inserted or amended by the Migration Legislation Amendment (Identification and Authentication) Act 2004 on commencement, may apply:

•       subsection 46(2A), which provides that an application for a visa is invalid if prescribed circumstances exist, the Minister has not waived the operation of this subsection in relation to the application for the visa, the applicant has been required by an officer to provide one or more personal identifiers in relation to the application, and the applicant has not complied with the requirement;

•       subsection 46(2C), which provides that the requirement in subsection 46(2B) that one or more personal identifiers are to be provided by an applicant by way of one or more identification tests carried out by the authorised officer does not apply in circumstances prescribed for subsection (2C) if the personal identifier is of a prescribed type and the applicant otherwise provides a personal identifier and complies with any further prescribed requirements relating to the provision of the personal identifier;

•       paragraph 166(1)(aa), which provides that a non-citizen must, if prescribed circumstances exist, comply with any requirement of a clearance officer to provide one or more personal identifiers;

•       subsection 166(1C), which provides that the requirement in subsection 166(1B) that one or more personal identifiers are to be provided by non-citizen by way of one or more identification tests carried out by the authorised officer does not apply in circumstances prescribed for subsection (1C) if the personal identifier is of a prescribed type and the non-citizen otherwise provides a personal identifier and complies with any further prescribed requirements relating to the provision of the personal identifier;

•       paragraph 258B(1)(b), which provides that before carrying out an identification test on a non-citizen, the authorised officer must in any case inform the non-citizen on such matters as are prescribed;

•       subsection 258B(3), which provides that the authorised officer may comply with section 258B by giving to the non-citizen, in accordance with the regulations, a form setting out the information specified in the regulations;

•       subsection 258C(1), which provides that before requiring a non-citizen to provide a personal identifier by way other than an identification test carried out by an authorised officer, the non-citizen must be informed, in the prescribed manner, of such matters as are prescribed;

•       subsection 261AA(1), which provides that a non-citizen who is in immigration detention must (other than in the prescribed circumstances) provide to an authorised officer one or more personal identifiers;

•       paragraph 261AB(1)(a), which prescribes that the authorised officer must require a non-citizen in immigration detention to provide one or more personal identifiers, of the type or types prescribed, by way of one or more identification tests carried out by the authorised officer.

ATTACHMENT B

Details of the Migration Amendment Regulations 2004 (No. 7)

Regulation 1 - Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2004 (No. 7).

Regulation 2 - Commencement

These Regulations commence on 27 August 2004.

Regulation 3 - Amendment of Migration Regulations 1994

Schedule 1 amends the Migration Regulations 1994 (the Principal Regulations).

Schedule 1 - Amendments

Item [1] - After regulation 2.08AA

This item inserts new regulations 2.08AB and 2.08AC in Part 2 of the Principal Regulations.

Subsection 46(2A) of the Act provides that an application for a visa is invalid if:

•       prescribed circumstances exist; and

•       the operation of subsection 46(2A) has not been waived in relation to the application; and

•       the applicant has been required by an officer to provide one or more personal identifiers in relation to the application; and

•       the applicant has not complied with that requirement.

New regulation 2.08AB provides that, for paragraph 46(2A)(a) of the Migration Act 1958 (the Act) (inserted by the Migration Legislation Amendment (Identification and Authentication) Act 2004 (the Amendment Act)), the circumstances in which an application for a visa is invalid is where the application is for a visa other than a bridging visa, Witness Protection (Trafficking) (Permanent) (Class DH) or Witness Protection (Trafficking) (Temporary) (Class UM) visa (witness protection visas).

Bridging visas are excepted from the operation of subsection 46(2A) because they are usually granted in conjunction with an application for substantive visa, or after a substantive visa has ceased to be in effect. It is not a current requirement for such identifying information to be provided for bridging visas as personal identifiers are usually required to be provided in relation to the substantive visa. Witness protection visas are excepted because it is not a current requirement for such identifying information to be provided by applicants for these visas. Identifying information relating to applicants for witness protection visas is usually provided by the relevant Commonwealth, State or Territory law enforcement agency to the Department of Immigration and Multicultural and Indigenous Affairs.

The purpose of the amendment is to allow the Department of Immigration and Multicultural and Indigenous Affairs (the Department) to continue its practice of obtaining passport type photographs of applicants' face and shoulders and applicants' signatures under the new identification and authentication provisions inserted by the Amendment Act.

An explanatory note is included at the end of new regulation 2.08AB regarding the operation of section 46 of the Act generally, and subsection 46(2A) in particular.

New regulation 2.08AC, made under subsection 46(2C) of the Act (inserted by the Amendment Act), allows applicants for a visa to provide passport type photos of their face and shoulders, or their signature, without the need for an identification test carried out by an authorised officer under subsection 46(2B) of the Act (inserted by the Amendment Act). Typically, applicants would provide either a photograph or signature (or both) as part of completing an approved visa application form.

Item [2] - After subregulation 3.03(1)

This item inserts new subregulations 3.03(1A) and 3.03(1B) in Part 3 of the Principal Regulations.

Regulation 3.03 of the Principal Regulations provides details of how a person is to comply with the requirements in section 166 of the Act in relation to evidence of identity and other required information in order to be immigration cleared.

In particular, paragraph 166(1)(aa) of the Act (inserted by the Amendment Act) provides that if the person is a non-citizen and prescribed circumstances exist, the person must comply with any requirement of the clearance officer to provide one or more personal identifiers.

New subregulation 3.03(1A) prescribes the circumstance as being that the person is in immigration clearance.

The purpose of new subregulation 3.03(1A) is to ensure that, where a non-citizen is in immigration clearance, then the non-citizen must comply with any requirement by a clearance officer to provide one or more personal identifiers.

Subsection 166(1C) of the Act (inserted by the Amendment Act) provides that in prescribed circumstances, a personal identifier of a prescribed type can be provided by a non-citizen otherwise than by way of an identification test carried out by an authorised officer under subsection 166(1B) of the Act (inserted by the Amendment Act) if the non-citizen complies with any further related requirements.

New subregulation 3.03(1B), made under subsection 166(1C), allows airline crew members or airline positioning crew members to use an automated identification processing system (the system) to comply with immigration clearance requirements. The terms airline crew member and airline positioning crew member are defined in regulation 1.03 of the Principal Regulations. An airline crew member is a person employed by an international air carrier as an aircrew member, who travels to Australia in the course of his or her employment as a member of the crew of an aircraft, and who will depart Australia in the course of his or her employment as a member of the crew of, or a passenger on, an aircraft. An airline positioning crew member is an international aircrew member who travels to Australia in the course of his or her employment as a passenger on an aircraft and who will depart Australia as a member of the crew of an aircraft. The term airline crew member also includes an aircraft safety inspector.

Under current arrangements, for a person to use the system, the person must register with the Australian Customs Service (the ACS). The registration process involves the person having electronic images of their face taken and their passport details recorded by an ACS officer. When used by a person in immigration clearance, the system uses information contained in a person's passport to retrieve personal information obtained and registered beforehand, and verifies an electronic image of a person's face, taken by the system, with the registered images. If the verification is successful, the person is immigration cleared unless he or she has other immigration clearance requirements which must be met. If verification is unsuccessful, the person is referred to a clearance officer.

As the use of the system involves the providing of personal identifiers by a non-citizen other than by way of an identification test carried out by an authorised officer under subsection 166(1B), it is necessary to prescribe the use of the system as a circumstance as well as the types of personal identifiers able to be obtained under subsection 166(1C) of the Act.

An explanatory note is included at the end of new subregulation 3.03(1B) regarding the operation of subsection 166(1C).

Item [3] - Paragraph 3.03(3)(a)

This item substitutes paragraph 3.03(3)(a) in Part 3 of the Principal Regulations with new paragraph 3.03(3)(a).

Subregulation 3.03(3) of the Principal Regulations gives details of the way a person seeking immigration clearance is to comply with the requirements in paragraphs 166(1)(a) and (b) of the Act which relate to evidence of identity, visas and other required information. Airline crew members or airline positioning crew members are deemed to be granted special purpose visas under section 33 of the Act and regulation 2.40 of the Principal Regulations.

New paragraph 3.03(3)(a) takes into consideration the automated identification processing system which registered airline crew members or airline positioning crew members are able to use to be immigration cleared.

Under new subparagraph 3.03(a)(i), all special purpose visa holders will continue to have to provide a completed passenger card where required to by Part 1 of Schedule 9. Item 14 of Part 1 of Schedule 9 to the Principal Regulations provides that airline crew members are not required to give a clearance officer a completed passenger card, whereas Item 15 provides that airline positioning crew members are required do so. Airline positioning crew members usually arrive in Australia as passengers in an aircraft of their employer, for the purpose of later working on a departing flight, and are subject to immigration clearance as passengers despite being taken to hold a special purpose visa.

New sub-subparagraph 3.03(3)(a)(ii)(A) makes it an alternative requirement for registered airline crew members or airline positioning crew members to give evidence of their identity using the new system. However, under new sub-subparagraph 3.03(3)(a)(ii)(B), special purpose visa holders who are not registered to use the system, whether airline crew members or airline positioning crew members or not, will continue to be required to provide the same evidence of identity as specified in Part 1 of Schedule 9 to the Principal Regulations.

Item [4] - After Part 3, Division 3.2

This item inserts new Divisions 3.3 and 3.4 in Part 3 of the Principal Regulations. New Division 3.3 contains new regulations 3.20 and 3.21, and new Division 3.4 contains new regulations 3.30 and 3.31.

New Division 3.3 - Examination, search and detention

New regulation 3.20 specifies, for section 258B of the Act (inserted by the Amendment Act), the matters about which a non-citizen must be informed before the non-citizen undergoes any form of identification test conducted by an authorised officer under the Act, and the manner in which the information may be presented.

The matters to be informed, listed in new subregulation 3.20(1), ensure that the non-citizen is made fully aware of the reason why one or more personal identifiers are being collected, how they will be collected, used and disclosed, that the personal identifiers may be produced in evidence in a court or tribunal in relation to the non-citizen, what rights the non-citizen has under the Privacy Act 1988 and the Freedom of Information Act 1982, and information concerning how a personal identifier is to be obtained from a minor or incapable person.

Information relating to how personal identifiers are to be obtained from a minor or an incapable person is only to be provided when a personal identifier is being obtained from a minor or incapable person. The explanatory note following subregulation 3.20(1) explains that subsections 261AL(4) and 261AM(3) of the Act (inserted by the Amendment Act) make it a requirement that parents, guardians or independent persons must also be informed of all matters which a minor or incapable person must be informed before they give consent for a minor or incapable person to provide a personal identifier. Paragraph 258E(e) of the Act (inserted by the Amendment Act) also makes it a requirement that identification tests must be carried out as is required under the Act for minor or incapable persons unless the authorised officer has reasonable grounds for believing that the non-citizen is not a minor or incapable person.

New subregulation 3.20(2) makes it a requirement that, where the information is given by way of a form, the non-citizen must be allowed enough time for them to read and understand the information before the non-citizen undergoes an identification test.

New subregulation 3.21(1) specifies, under section 258C of the Act (inserted by the Amendment Act), the matters about which a non-citizen must be informed before requiring them to provide a personal identifier other than by way of an identification test carried out by an authorised officer under the Act, and the manner in which the information must be presented. An example of this is where a non-citizen is required to provide a photograph of his or her face and shoulders, or signature, under subsection 46(2A) of the Act (inserted by the Amendment Act) for an application for a visa to be validly made under section 46 of the Act - subsection 46(2C) of the Act (inserted by the Amendment Act) and new regulation 2.08AC, inserted by these Regulations, allow the applicant to provide these personal identifiers otherwise than by way of an identification test under the Act. New subregulation 3.21(2) provides that the prescribed manner in which a non-citizen must be informed of the matters is in writing.

The matters to be informed, prescribed in new subregulation 3.21(1), are the same matters that are prescribed in new subregulation 3.20 for section 258B. However, for section 258C, information relating how personal identifiers are to be obtained from a minor or an incapable person must be provided on all occasions. This is necessary as, in most circumstances to which section 258C of the Act applies, it will not always be apparent, at the time the information is provided, if the non-citizen is a minor or incapable person, or a parent or guardian of a minor or incapable person.

New subregulation 3.21(2) prescribes that this information must be provided in writing.

New Division 3.4 - Identification of immigration detainees

New regulation 3.30 prescribes, for subsection 261AA(1) of the Act (inserted by the Amendment Act), the circumstances where a non-citizen in immigration detention is not required to provide an authorised officer one or more personal identifiers.

New regulation 3.30 provides that the circumstances are that the non-citizen is in the company of and restrained by an officer or, in relation to a particular non-citizen, another person directed by the Secretary of the Department to accompany and restrain the non-citizen. It is not the current practice of the Department to obtain personal identifiers in these circumstances.

The effect of new regulation 3.30 is that a non-citizen must provide to an authorised officer one or more personal identifiers if the non-citizen is being held by, or on behalf of, an officer:

•       in a detention centre established under the Act;

•       in a prison or remand centre of the Commonwealth, a State or a Territory;

•       in a police station or watch house;

•       in relation to a non-citizen who is prevented, under section 249, from leaving a vessel - on that vessel; or

•       in another place approved by the Minister in writing.

The term "immigration detention" is defined in subsection 5(1) of the Act.

New regulation 3.31 lists the various types of personal identifiers which an authorised officer must require for the purposes of subsection 261AB(1) of the Act (inserted by the Amendment Act), unless the circumstances prescribed in new regulation 3.30 exist. The types of personal identifiers specified in new regulation 3.31 are the same as those listed in paragraphs 261AA(1A)(a) to (d).


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