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Migration Legislation Amendment (Overseas Students) Bill 2000

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1998 - 1999 - 2000

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT (OVERSEAS STUDENTS) BILL 2000

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Immigration and Multicultural Affairs,

The Hon. Philip Ruddock MP)

 

 



MIGRATION LEGISLATION AMENDMENT (OVERSEAS STUDENTS) BILL 2000

 

OUTLINE

 

Overview

 

The Migration Legislation Amendment (Overseas Students) Bill 2000 (“the Bill”) is part of a package of bills aimed at improving regulation of the education/ training export industry and at strengthening the integrity of the Overseas Student Program.  It complements the Education Services for Overseas Students Bill 2000 (“the ESOS Bill”) and the Education Services for Overseas Students (Consequential and Transitional) Bill 2000.

 

2          The overall objectives of the package are to:

 

·          ensure that overseas students are treated with equity and fairness;

·          provide a positive basis for promoting Australia’s international reputation as a provider of reliable, high quality education and training; and

·          strengthen the integrity of the student visa programme.

 

3          This bill amends the Migration Act 1958 (“the Migration Act”) to:

 

·          provide, in certain circumstances, for the automatic cancellation of student visas by operation of law;

·          enable authorised officers of the Department of Immigration and Multicultural Affairs (DIMA) to require the production of, or to search for and inspect, and in some cases seize, relevant records of overseas students held by education providers;  and

·          enable regulations to provide for modified “no further stay” conditions so that holders of certain temporary visas may make valid applications for a limited number of temporary visas in addition to protection and bridging visas.

 

4          The provisions in this Bill give effect to some of the recommendations made following a recent internal Government Review of the Overseas Student Program.  The amendments will enhance the ability of authorised officers and assisting officers to ensure compliance with the Act and give effect to the Government’s commitment to monitoring and enhancing the integrity of the Overseas Student Program. 

 

 

Automatic Student Visa Cancellation

 

5          Schedule 1 inserts a new subdivision into the Migration Act. The new subdivision provides, in certain circumstances, for the automatic cancellation of student visas by operation of law and a process for the discretionary revocation of an automatic visa cancellation.

 

6          Automatic student visa cancellation will ensure that permission to remain in Australia is removed from students who do not comply with the conditions on their visas and who take no steps to explain their situation to immigration officers.  It is an effective means of dealing with non-complying students but also ensures that genuine students will have the opportunity to explain their situation. 

 

7          The legislative package which includes the new automatic visa cancellation scheme will also impose corresponding obligations on:

 

·          education providers to keep records of all students’ current residential addresses (section 21 of the ESOS Bill refers);

·          students to provide current residential addresses and information regarding subsequent changes of address to education providers (proposed by way of amendments to the Migration Regulations 1994);  and

·          education providers to report students who breach visa conditions relating to maintaining satisfactory attendance and/or academic performance (section 19 of the ESOS Bill refers) and to send a written notice to such students requiring them to explain the breach (section 20 of the ESOS Bill refers) - it is non-compliance with this notice which will trigger the automatic cancellation process.

 

 

Monitoring Compliance with Student Visa Conditions

 

8          Schedule 2 inserts a new Division into the Migration Act dealing with the monitoring of compliance with student visa conditions.  New Division 14A enables the Secretary of the Department of Immigration and Multicultural Affairs (DIMA) to authorise officers to require the production of, or to search for and inspect, and in some cases seize, relevant records of overseas students held by education providers. The powers in the new Division can be used where there is reason to believe that the conditions of a particular student visa or visas, or of student visas generally, are not being or have not been complied with.   

 

 

Applying for Additional Visas

 

9          Schedule 3 amends sections 41 and 46 of the Migration Act to enable the Regulations to provide for modified “no further stay” conditions so that holders of certain temporary visas may make valid applications for a limited number of temporary visas in addition to protection and bridging visas.

 

 

 

 

 

 

FINANCIAL IMPACT STATEMENT

 

10        The amendments contained in the Bill will be Budget neutral.

 

Schedule 1 (Automatic Student Visa Cancellation)

 

11        During the 2000-2001 financial year DIMA will expend a total of $325,000 in respect of the Electronic Confirmation of Enrolment (eCoE) component of the automatic student visa cancellation scheme implemented by the amendments contained in Schedule 1 to the Bill. Of this amount $300,000 represents programming costs associated with the development of Stage 2 of the eCoE system to accommodate the automatic visa cancellation process and allow for revocation in specified circumstances.  The remaining $25,000 represents project management fees for stage 2 of the eCoE system.

 

12        A further $100,000 has been budgeted for in 2001/2002 to accommodate enhancements associated with a fully integrated system within the automatic visa cancellation process.

 

13        DIMA will be absorbing the costs identified .

 

 

Schedule 2 (Monitoring Compliance with Student Visa Conditions) 

 

14        The amendments contained in this schedule may require minor additional administrative procedures by DIMA Compliance and Investigations officers.  Any associated costs will be absorbed by DIMA within the additional compliance and processing resources allocated to DIMA in July 1998.

 

Schedule 3 (Applying for Additional Visas)

 

15        The amendments contained in this schedule will have no direct financial impact.



MIGRATION LEGISLATION AMENDMENT (OVERSEAS STUDENTS) BILL 2000

 

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1           Short title

 

1          The short title by which this Act may be cited is the Migration Legislation Amendment (Overseas Students) Act 2000 .

 

Clause 2           Commencement

 

2          Subclause 2(1) provides that this section and section 1 commence on the day on which this Act receives Royal Assent.

 

3          Subclause 2(2) provides that, subject to subsection (3), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.

 

4          Subclause 2(3) provides that a provision of this Act does not commence under subclause (2) within the period of 6 months beginning the day on which this Act receives Royal Assent, it commences on the first day after the end of that period.

 

Clause 3          Schedule(s)

 

5          This clause provides that, subject to section 2, 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 - Automatic student visa cancellation

 

 

Migration Act 1958

 

Item 1                         Subparagraph 48(1)(b)(ii)

 

1                     This item amends section 48 of the Migration Act 1958 (“the Migration Act”) to ensure that a non-citizen who held a visa that was automatically cancelled under new section 137J is subject to the same restrictions regarding the making of visa applications as a non-citizen who held a visa that was cancelled under existing provisions. 

 

2                     If a section 137J visa cancellation is revoked under new section 137L or 137N, the visa is taken never to have been cancelled under new section 137J and, as a consequence, section 48 would not apply in such circumstances.

 

Item 2                         After Subdivision GA of Division 3 of Part 2

 

3          This item inserts new Subdivision GB - Automatic cancellation of student visas - into Division 3. The new Subdivision comprises sections 137J to 137P.

 

New section 137J   Non-Complying students must attend or have their visas automatically cancelled 

 

4          New section 137J provides for the cancellation, by operation of law, of student visas in certain circumstances.

 

5          New subsection 137J(1) provides that new section 137J applies if a notice (“an ESOS Act section 20 notice”) is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act 2000 (the ESOS Act) in relation to a visa held by the non-citizen.

 

6          The effect of this provision is that the consequence of non-compliance with a section 20 notice, namely automatic visa cancellation, will occur even if the non-citizen has not, or claims not to have, received the section 20 notice. To ensure any unintended consequences are be avoided, new sections 137L and 137N provide for revocation of an automatic visa cancellation by the Minister, on (a fee-free) application by a non-citizen in certain circumstances, or on the Minister’s own initiative.

 

7          The note following subsection (1) summarises the effect of section 20 of the ESOS Act. Upon enactment of the Education Services for Overseas Students Bill 2000, subsection 20(1) will provide that a registered education provider must send a written notice to a student of the provider if the student has breached a student visa condition relating to attendance or satisfactory academic performance. Other subsections of section 20 will provide that the notice must

 

·          be sent as soon as practicable after the breach;

·          be in an approved form and contain particulars of the breach;

·          require the student to attend before an officer for the purpose of explaining the breach;  and

·          contain information as to the effect of new sections 137J and 137K (dealing with revocation of automatic cancellation) of the Migration Act.

 

8          New subsection 137J(2) provides that a non-citizen’s visa is cancelled by virtue of new section 137J at the end of the 28th day after the date of the ESOS Act section 20 notice (as specified in the notice) unless, before then,

 

·          the non-citizen complies with the notice by attending in person before an officer at the place specified in the notice, for the purpose of explaining the breach alleged in the notice;  or

·          the non-citizen, while attending, for whatever reason, in person at an office of Immigration in Australia, or at an office of Immigration gazetted for the purposes of this section, makes himself or herself available to an officer for the purpose of explaining the breach alleged in the ESOS Act section 20 notice.

 

9          This means that the automatic cancellation process will stop if either of the above events occurs before the end of the 28th day after the date of the ESOS Act section 20 notice. Once stopped, the automatic process cannot recommence. However, in appropriate circumstances, the student may still be subject to other cancellation powers under the Migration Act.

 

10        The effect of providing, in new subsection 137J(1), that new section 137J applies even if the non-citizen never receives the ESOS Act section 20 notice is to make it clear that the time limit for compliance with the notice is 28 days from the date of the notice, and that, if neither of the specified events happens within that time, cancellation will occur automatically even if the non-citizen claims not to have received the notice (provided the notice has actually been sent).

 

New section 137K       Applying for revocation of cancellation

 

11        New section137K provides for the making of an application for the revocation of a section 137J visa cancellation.

 

12        New subsection 137K(1) provides that a non-citizen who has had a visa cancelled under section 137J may apply in writing to the Minister for a revocation of the cancellation. Consistent with existing cancellation provisions in the Migration Act, there is no prescribed or approved form for the making of such an application.

 

13        New subsections 137K(2) to (4) impose time limitations on a non-citizen’s ability to make an application to have a section 137J cancellation revoked: 

 

·          a non-citizen who is in the migration zone cannot apply for revocation at a time when, because of section 82 of the Migration Act (which deals with when visas cease to be in effect), the non-citizen’s visa which was cancelled under new section 137J would no longer have been in effect anyway; (subsection (2))

 

·          a non-citizen who is in the migration zone and who has been detained under section 189 of the Migration Act (on the basis that an officer knows or reasonably suspects the non-citizen to be an unlawful non-citizen) cannot apply for revocation later than

-         2 working days after the day on which new section 194 (see below; requiring a detained non-citizen to be notified of certain matters) was complied with in relation to the non-citizen’s detention, or

-         5 working days after those 2 initial working days if the non-citizen informs an officer in writing within the 2 initial working days of his or her intention to apply for a revocation of the section 137J cancellation

and provided the non-citizen is not preventing from so applying by virtue of new subsection (2) above; (subsection (3))

 

·          a non-citizen who is outside the migration zone (this term is defined at subsection 5(1) of the Migration Act) cannot apply for revocation later than 28 days after the day of the cancellation . (subsection (4))

 

14        New subsection 137K(5) provides that a non-citizen cannot apply for revocation if he or she has previously made such an application in respect of the same cancellation.

 

New section 137L       Dealing with the application

 

15        New section 137L deals with the circumstances in which the Minister may revoke a cancellation upon an application for revocation under new section 137K.

 

16        New subsection 137L(1) provides that the Minister may revoke a section 137J cancellation where the non-citizen whose visa has been cancelled makes an application for revocation under section 137K if and only if the non-citizen satisfies the Minister 

 

·          that the non-citizen did not in fact breach the visa condition(s) which were particularised in the ESOS Act section 20 notice;  or

·          that the breach was due to exceptional circumstances beyond the non-citizen’s control;  or

·          of any other matter prescribed in the regulations.

 

 

 

 

 

 

17        New subsection 137L(2) specifically provides that the Minister must not revoke a section 137J cancellation on the ground that the non-citizen whose visa was cancelled claims not to have been aware of the ESOS Act section 20 notice or of the effect of non-compliance with the notice. This is consistent with the provision in new section 137J to the effect that automatic cancellation of a visa is not dependent on the holder of the visa having received the ESOS Act section 20 notice.

 

18        DIMA, in conjunction with DETYA, will be taking steps to highlight the effect of this provision to existing and intending overseas students.

 

19        New subsection 137L(3) provides that a section 137J cancellation is revoked by the Minister causing a record of the revocation to be made.

 

New section 137M      Notification of decision

 

20        New section 137M deals with the notification requirements relating to a decision under section 137L about revocation of a section 137J visa cancellation.

 

21        New subsection 137M(1) provides that when the Minister decides whether to revoke a section 137J cancellation under section 137L, the Minister must give the non-citizen written notice of the decision.

 

22        Section 28A of the Acts Interpretation Act 1901 effectively provides that this may take place by delivering the notification to the non-citizen personally, or by leaving it at or sending it to the address of the place of residence or business of the non-citizen last known to the Minister.

 

23        New subsection 137M(2) provides that notification of a decision not to revoke a section 137J visa cancellation must specify the grounds for the decision and information regarding merits review rights relating to the decision.

 

24        New subsection 137M(3) provides that failure to notify of a decision whether to revoke a cancellation does not affect the validity of the decision.

 

New section 137N      Minister may revoke cancellation on his or her own initiative

 

25        New section 137N provides for a non-compellable power for the Minister, acting personally, to revoke a section 137J visa cancellation in certain circumstances.

 

26        New subsection 137N(1) provides that the Minister may, on his or her own initiative, revoke the section 137J visa cancellation of a particular non-citizen’s visa if the Minister thinks that it is in the public interest to do so.

 

27        New subsection 137N(2) provides that the Minister must give written notice to the non-citizen concerned if the Minister decides to revoke the cancellation in question.

28        New subsection 137N(3) provides that the Minister’s power to revoke a section 137J visa cancellation on his or her own initiative may only be exercised by the Minister personally.

 

29        New subsection 137N(4) provides that the Minister does not have a duty to consider whether to exercise the power in new subsection (1), whether or not any person requests the Minister to do so, or in any other circumstances. The effect of this subsection is that the Minister cannot be compelled to consider whether or not to exercise his or her power to revoke a visa cancellation under new subsection (1).  

 

30        New subsection 137N(5) provides that a cancellation is revoked under new section 137N by the Minister (or his or her delegate) causing a record of the revocation to be made.

 

New section 137P       Effect of revocation

 

31        New section 137P deals with the effect of revocation of a cancellation in terms of the non-citizen’s “visa status” and the non-citizen’s liability to have his or her visa cancelled under other, existing cancellation powers in the Migration Act.

 

32        New subsection 137P(1) provides that, if a section 137J visa cancellation is revoked under new section 137L or new section 137N, then the visa in question is taken never to have been cancelled under new section 137J.

 

33        New subsection 137P(2) provides that, if the decision to revoke a section 137J visa cancellation is made under new section 137L and is made wholly or partly on the ground that

 

·          the non-citizen did not in fact breach the visa condition(s) particularised in the ESOS Act section 20 notice;  or

·          the breach specified in the ESOS Act section 20 notice was due to exceptional circumstances beyond the non-citizen’s control;

 

then that breach cannot be a ground for cancelling the visa under section 116 of the Migration Act.

 

34        Broadly, section 116 allows the Minister to cancel a visa if, among other things, the Minister is satisfied that the visa holder in question has not complied with a condition of the visa.

 

35        New subsection 137P(3) provides that revocation of a section 137J visa cancellation does not otherwise limit or affect any other power to cancel the visa under the Migration Act.

 

36        New subsection 137P(4) clarifies that a different or later breach of a condition of the  visa can be a ground for cancelling the visa under section 116 of the Migration Act. 

 

 

37        New subsection 137P(5) provides that any detention of the non-citizen between the time of cancellation and the revocation of the cancellation is lawful; the subsection precludes the non-citizen from making any claim against the Commonwealth, an officer or any other person because of the detention.

 

Item 3             After subsection 138(1)

 

38        This item inserts new subsection 138(1A) as a consequence of the automatic nature of visa cancellation under new section 137J. The effect of this amendment is that subsection 138(1), which provides that a visa is cancelled by the Minister causing a record of it to be made, does not apply to a cancellation under new section 137J.  

 

Item 4             Subsection 140(1)

 

39        This item inserts a reference to new section 137J into subsection 140(1) so that, if a person’s visa is cancelled under new section 137J, a visa held by another person because of being a member of the family unit of the person is also cancelled. Subsection 140(1) currently provides for such “consequential cancellation” of family members’ visas where the relevant visa is cancelled under section 109 or 116 of the Migration Act. 

 

Item 5             Paragraph 140(2)(a)

 

40        This item inserts a reference to new section 137J into paragraph 140(2)(a) so that, if a person’s visa is cancelled under new section 137J and another person to whom subsection 140(1) does not apply (that is, who is not a member of the family unit of the person whose visa is cancelled) holds a visa only because the person whose visa is cancelled held a visa, then the Minister may, without notice, cancel the other person’s visa. Subsection 140(2) currently provides for “consequential cancellation” in such circumstances where the relevant visa is cancelled under section 109 or 116 of the Migration Act.

 

Item 6             Paragraph 140(4)(b)

 

41        This item inserts reference to new sections 137L and 137N into subsection 140(4) so that revocation of a section 137J visa cancellation under one of these new sections will lead to the automatic revocation of any “consequential cancellations” under subsections 140(1) or (2).

 

Item 7             Section 194

 

42        This item repeals and substitutes section 194. That section currently imposes upon officers an obligation to ensure persons detained under section 189 are made aware of the provisions of sections 195 and 196 of the Migration Act relating to the making of visa applications while in detention and to the duration of such detention. 

 

 

43        Briefly, sections 195 and 196 set out the time limits within which a non-citizen in section 189 detention can apply for a visa, what visas a non-citizen can apply for if those time limits are not complied with, and when a non-citizen’s period of section 189 detention comes to an end.

 

44        New section 194 will extend the abovementioned obligation so that officers must ensure that persons detained under section 189 are also made aware of the provisions of new section 137K relating to the making of a revocation application if a visa held by the person has been cancelled under new section 137J.

 

Item 8             Paragraph 198(5)(b)

 

45        Section 198 deals with the removal from Australia of unlawful non-citizens in certain circumstances. This item amends subsection 198(5) to ensure that an officer is under an obligation to remove as soon as reasonably practical an unlawful non-citizen if the person was entitled to apply for:

 

·          a visa in accordance with section 195;  or

·          revocation under new section 137K of the cancellation of a visa;

 

but did neither.

 

46        The effect of this amendment is that if a non-citizen whose visa was cancelled under new section 137J does not apply for revocation within the time limits set out in subsection 137K(3), and does not apply for a further visa within the time limits set out in section 195, then the non-citizen must be removed as soon as reasonably practicable.  

 

Item 9             At the end of section 198

 

47        Section 198 sets out the circumstances in which an officer is obliged to remove an unlawful non-citizen (as defined in section 14 of the Migration Act) as soon as practicable from Australia. Subsection 189(1) of the Migration Act provides that where an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.

 

48        Subsections 198(6) to (9) deal with circumstances where the unlawful non-citizen in question is a detainee and provide, among other things, that such a person must not be removed while he or she has, broadly speaking, an outstanding application for a substantive visa that can be granted when the applicant is in the migration zone.

 

49        New subsection 198(10) provides that, for the purposes of these subsections, a valid application under new section 137K for revocation of a visa cancellation is treated as though it were a valid application for a substantive visa that can be granted when the applicant is in the migration zone.

 

50        This will ensure that an officer is not obliged to remove an unlawful non-citizen who is in detention but who has an outstanding application under new section 137K for revocation of a visa cancellation. 

 

Item 10           Section 275 (definition of cancellation review applicant )

 

51        This item repeals and substitutes the definition of cancellation review applicant in section 275. The new definition provides that cancellation review applicant refers not only to an applicant for review of a decision to cancel a visa held by the applicant, but also to an applicant for revocation under section 137L of a cancellation of a visa held by the applicant, and an applicant for review of a decision under section 137L not to revoke such a cancellation.

 

52        The effect of this amendment is that the provisions of Part 3 - Migration Agents and Immigration Assistance - will apply to immigration assistance given in respect of applications for revocation under section 137L of a cancellation and in respect of applications for review of decisions under section 137L not to revoke a cancellation.

 

Item 11           After subsection 338(3)

 

53        This item inserts new subsection 338(3A) to provide that a decision under section 137L not to revoke the cancellation of a non-citizen’s visa is a decision which may be reviewed by the Migration Review Tribunal (MRT) provided the non-citizen was in the migration zone when the decision was made.

 

Item 12           Subparagraph 347(1)(b)(i)

 

54        This item adds a reference to new subsection 338(3A) in subparagraph 347(1)(b)(i) so that the period which may be prescribed for the giving to the MRT of an application for review of a decision under section 137L is a period ending not later than 28 days after the notification of the decision.

 

Item 13           Paragraph 347(2)(a)

 

55        This item adds a reference to new subsection 338(3A) in paragraph 347(2)(a) so that an application for review of a decision under section 137L may only be made by the non-citizen who is the subject of that decision.

 

Item 14           Subsection 347(3)     

                       

56        This item adds a reference to new subsection 338(3A) in subsection 347(3) so that an application for review of a decision under section 137L may only be made by a non-citizen who is present in the migration zone when the application for review is made.

 



SCHEDULE 2 - Monitoring compliance with student visa conditions

 

 

Migration Act 1958

 

Item 1             Subsection 5(1)

 

1          This item inserts a definition of “student visa” into subsection 5(1) of the Act. A student visa is defined as having the meaning given by the Migration Regulations 1994 .

 

Item 2             After Division 14 of Part 2

 

2          This item inserts new Division 14A into Part 2 of the Act. This Division empowers officers to require the production of, and to search for and inspect, and in some cases seize, relevant records held by education providers. The Division also contains protections for providers and occupiers against arbitrary use of these powers.

 

Division 14A - Monitoring compliance with student visa conditions

 

Subdivision A - Preliminary

 

Section 268AA  Definitions

 

3          New section 268AA sets out a number of definitions for the purposes of new Division 14A.

 

“Attendance notice” means a notice given under section 268BD of the Act.

 

“Document” includes a copy of a document.

 

“Education provider” means an institution or other body or person in Australia that provides, has provided or seeks to provide courses of education or of training to persons who hold student visas.

 

“Monitoring warrant” means a warrant issued under new section 268CE or 268CZD of the Act.

 

“New ESOS Act” means the Education Services for Overseas Students Act 2000 .

           

“Occupier” has its natural meaning and in addition includes a person who apparently represents the occupier.  Further, in relation to premises comprising a vehicle or vessel, “occupier” means the person apparently in charge of the vehicle or vessel.

 

“Old ESOS Act” means the Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act 1991 .

“Premises” means:

 

·          an area of land or any other place, whether or not it is enclosed or built on; or

·          a building or other structure; or

·          a vehicle or vessel.

 

Premises also includes a part of any of these premises.

 

“Production notice” means a notice given under new section 268BA of the Act.

 

“Tribunal member” means a member of the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975 .

 

“Visa monitoring purpose” means a purpose of determining whether the conditions of a particular student visa or visas, or of student visas generally, are being or have been complied with.



Section 268AB            Division binds the Crown

 

4          New section 268AB provides that new Division 14A binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.  However, nothing in new Division 14A makes the Crown in any of those capacities liable to prosecution for an offence.

 

Section 268AC            Criminal Code applies

 

5          New section 268AC provides that the Criminal Code applies to all offences against new Division 14A.

 

Section 268AD           Powers conferred on magistrates in their personal capacity

 

6          New section 268AD provides that the powers conferred on magistrates by new sections 268BQ, 268CE, 268CU or 268CZD are conferred on the magistrate in a personal capacity and not as a court or a member of a court. There is no obligation on a magistrate to accept the power conferred. However, if a magistrate exercises such a power he or she will have the same protection and immunity as if exercising the power as a court or as a member of the court of which he or she is a member.

 

Subdivision B - Notices requiring information and documents

 

7          New Subdivision B enhances DIMA’s capacity to ensure compliance with student visa conditions by providing for the issue of a notice requiring the production of relevant information, documents or copies of documents, or the answering of questions.

 

 

Section 268BA                        Production notices

 

8          New section 268BA provides for the issue of a written notice by the DIMA Secretary requiring the production of information or documents.  New subsection 268BA(1) provides that a notice may be issued where the Secretary reasonably believes that a specified individual has, or has access to, information or documents that are relevant to a visa monitoring purpose.  “Visa monitoring purpose” is defined in new section 268AA of the Act. It is envisaged that the types of information or documents that may be requested include student records, students’ addresses, academic transcripts or attendance records.

 

9          Under new subsection 268BA(2) the notice may require the individual to:

 

·          give information or documents to an authorised officer; or

·          show documents to an authorised officer; or

·          make copies of documents and give the copies to an authorised officer.

 

10        New subsection 268BA(3) provides that the notice may require information or documents to be provided in a particular form if already contained in that form.   

 

11        New subsection 268BA(4) provides that such a notice may be given to:

 

·          an officer or employee of an education provider; or

·          a consultant to an education provider; or

·          a partner of an education provider (for example, where it trades as a partnership); or

·          an individual who trades as an education provider.

 

12        New subsection 268BA(5) provides that a notice may be given under this section even if any relevant student visa is no longer in effect or the holder of any such visa is no longer enrolled in a course provided by the education provider. This ensures that an individual can be required to produce documents about a former student visa holder or relating to a student previously enrolled with an education provider.

 

Section 268BB            Contents of the production notice

 

13        New section 268BB provides that a production notice must:

 

·          state it is given under new section 268BA;

·          set out the effects of new sections 268BH (offence: failing to comply with a notice), 268BI (offence: giving false or misleading information) and 268BJ (offence: giving false or misleading document);

·          state how and by when the information or documents must be given or shown.

 

14        New subsection 268BB(2) provides that the period for complying with a notice must be at least 24 hours where the requested information or documents relate to any extent to the current calender year and can be produced at premises where they are currently located. 

15        However, if the notice requests information or documents not covered by new subsection 268BB(2), new subsection 268BB(3) provides that the period for complying with a notice must be at least 72 hours after the notice is given.

 

16        It is intended that new subsections 268BB(2) and (3) will be used where there are concerns that information or documents may be fabricated if a longer period of time is given to an individual to comply with the requirements of a notice.

 

Section 268BC            Serving production notices

 

17        New section 268BC provides for the service of a production notice. Service may be satisfied by:

·          delivering it to the individual personally; or

·          leaving it at the individual’s last known place of residence or business and taking reasonably practicable action to draw the individual’s attention to the notice; or

·          sending it by ordinary or any other class of pre-paid post to the individual’s last known place of residence or business.

 

18        New subsection 268BC(2) provides that if service is to be satisfied by sending it by ordinary or pre-paid post to the individual’s last known place of residence or business, the time mentioned in new paragraph 268BB(1)(c) must be at least 14 days after the notice is given (instead of at least 24 hours or 72 hours).

 

19        If service is to be satisfied by leaving it at the individual’s last known place of residence or business reasonably practicable action must also be taken to draw the individual’s attention to the notice.  For example, it is envisaged that a phone call, fax or e-mail message to the individual to let him or her know about the notice would constitute reasonably practicable action.

 

Section 268BD           Attendance notices

 

20        New section 268BD provides for the issue of a written notice by the DIMA Secretary requiring attendance before an authorised officer to answer questions relating to a visa monitoring purpose.

 

21        New subsection 268BD(1) provides that a notice may be issued where the Secretary reasonably believes that a specified individual has, or has access to, information or documents that are relevant to a visa monitoring purpose.  “Visa monitoring purpose” is defined in new section 268AA of the Act.

 

22        Under new subsection 268BD(2) the notice may require the individual to attend before an authorised officer and answer questions about the matter.

 



23        New subsection 268BD(3) provides that such a notice may be given to:

 

·          an officer or employee of an education provider; or

·          a consultant to an education provider; or

·          a partner of an education provider (for example, where it trades as a partnership); or

·          an individual who trades as an education provider.

 

24        New subsection 268BD(4) provides that a notice may be given under this section even if any relevant student visa is no longer in effect or the holder of any such visa is no longer enrolled in a course provided by the education provider. This ensures that an individual can be required to answer questions about a former student visa holder or relating to a student previously enrolled with an education provider.

 

Section 268BE            Contents of attendance notice

 

25        New subsection 268BE(1) provides that a notice must:

 

·          state it is given under new section 268BD; and

·          set out the effects of new sections 268BH (offence: failing to comply with a notice), 268BI (offence: giving false or misleading information) and 268BJ (offence: giving false or misleading document); and

·          state where the individual is to attend; and

·          state when the individual is to attend which must be at least 14 days after the notice is given.

 

26        New subsection 268BE(2) provides that an attendance notice may be included in the same document as a production notice if they are being given to the same individual.

 

27        As no express provision is made regarding the service of a section 268BB notice, section 28A of the Acts Interpretation Act 1901 applies.  According to section 28A, a section 268BB notice may be served:

 

·       by delivering it to the individual personally; or

·       by leaving it at, or by sending by pre-paid post to, the individual’s last known place of residence or business.

 

Section 268BF            Scales of expenses

 

28        New section 268BF provides that the Migration Regulations 1994 (“the Regulations”) may prescribe scales of expenses to be allowed to persons required to give information or documents under new Subdivision B.

 



Section 268BG           Reasonable compensation for giving copies

 

29        New section 268BG entitles a person to be paid reasonable compensation by the Commonwealth for complying with a requirement under new paragraph 268BA(2)(c).

 

Section 268BH           Offence: failing to comply with a notice

 

30        New subsection 268BH(1) makes it an offence for a person to refuse or fail to comply with a production notice or an attendance notice.  The maximum penalty for this offence is 6 months’ imprisonment.

 

31        New subsection 268BH(2) provides a defence to the offence in new subsection 268BH(1). A person is not guilty of an offence if he or she complied with the production notice to the extent practicable within the period allowed by that notice.

 

32        For example, if a person was given 24 hours to comply and that person for some legitimate reason was not able to provide all the documents or information required by the notice then the person may rely on the defence in new subsection 268BH(2).

 

Section 268BI             Offence: giving false or misleading information

 

33        New section 268BI makes it an offence for a person to give false or misleading information in the course of complying, or in purported compliance, with a production notice or an attendance notice.  The maximum penalty for this offence is 12 months’ imprisonment.

 

Section 268BJ            Offence: giving false or misleading document

 

34        New subsection 268BJ(1) makes it an offence for person to give or show an authorised officer a document that is false or misleading in a material particular.  It is an offence whether the document is given or shown in the course of complying, or in purported compliance, with a production notice or an attendance notice.  The maximum penalty for this offence is 12 months’ imprisonment.

 

35        However, under new subsection 268BJ(2), a person is not guilty of an offence under new subsection 268BJ(1) if the document is accompanied by a written statement signed by the person:

 

·          stating that the document is, to the person’s knowledge, false or misleading in the material particular concerned; and

·          setting out or referring to the material particular.

 



Section 268BK            Information and documents that incriminate a person

 

36        New subsection 268BK(1) abrogates the privilege against self-incrimination.  Consequently, a person is not excused from giving information, a document or a copy of a document, or answering a question under new Subdivision B because doing so might tend to incriminate the person or expose the person to a penalty.

 

37        However, in accordance with Commonwealth criminal law policy, new subsection 268H(2) grants an individual prosecutorial indemnity to offset the abrogation of the privilege against self-incrimination by new subsection 268BK(1).  The only exceptions to complete prosecutorial indemnity under new subsection 268BK(2) are proceedings under, or arising out of, new section 268BI or 268BJ.

 

Section 268BL            Copies of documents

 

38        New subsection 268BL(1) permits an authorised officer, or another officer with an authorised officer’s permission, to:

 

·        inspect a document given or shown to the authorised officer under new Subdivision B; and

·        make and retain copies of, or take and retrain extracts from, such a document; and

·        retain a copy of a document given to an authorised officer in accordance with a requirement covered by paragraph 268BA(2)(c) (copies of documents given under production notices).

 

Section 268BM           Officer may retain documents

 

39        New subsection 268BM(1) provides that a document given to an authorised officer under new Subdivision B may be retained for a maximum of 60 days in certain circumstances.  An authorised officer, or another officer with the authorised officer’s permission, may retain the document:

 

·          for the purposes of the Act; or

·          for the purposes of an investigation as to whether an offence has been committed; or

·          to enable evidence of an offence to be secured for the purposes of a prosecution.

 

Section 268BN           Owner of document must be given copy

 

40        New section 268BN provides that an officer retaining a document under section 268BM must as soon as is practicable:

 

·          certify a copy of the document to be a true copy; and

·          give the copy to the person (the owner) otherwise entitled to possession of the document.

 

41        New subsection 268BN(2) ensures that the certified copy given under new subsection 268BN(1) is received in all courts and tribunals as evidence as if it were the original.

 

42        New subsection 268BN(3) provides that until a certified copy is given, the person otherwise entitled to possession of the document, or a person authorised by that person, may inspect and make copies of, or take extracts from, the original document at the times and places that the Secretary thinks appropriate.

 

Section 268BO           Retaining documents

 

43        New section 268BO provides for the retention of a document provided to an officer under this Subdivision.

 

44        New section 268BO provides that 60 days after a document is given to an authorised officer under this subdivision, the authorised officer must take reasonable steps to return the document to the relevant person. However, new subsection 268BO(3) provides that an authorised officer does not have to take these steps if:

 

·          the authorised officer is entitled to retain the document because of an order under new section 268BQ (magistrate or tribunal member may order retention for a further period); or

·          the authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or a State) to retain, destroy or dispose of the document.

 

Section 268BP            Officer may apply to magistrate or tribunal member for a further period

 

45        New section 268BP provides that an authorised officer may apply for an extension of the period that a document, given to an authorised officer under new Subdivision B, may be retained.

 

46        Under new subsection 268BP(1) an authorised officer, or the officer who is currently retaining the document, may apply to a magistrate or tribunal member for an order that the document may be retained for a further period.

 

47        New subsection 268BP(2) provides that an application must be made:

 

·          before the end of the 60 days after the document was given to the authorised officer; or

·          before the end of a period previously specified in an order of a magistrate or tribunal member under new section 268BQ.

 



48        Before applying for an extension of the retention period, new subsection 268BP(3) requires the officer to:

 

·          take reasonable steps to discover which persons’ interests would be affected by the retention of the document; and

·          if it is practicable to do so, notify each person who the officer believes to be such a person of the proposed application.

 

49        For example, in certain circumstances new subsection 268BP(3) may require an authorised officer to notify the person who gave him or her the document of a proposed application to extend the retention period under new section 268BQ.

 

Section 268BQ           Magistrate or tribunal member may order retention for further period

 

50        New section 268BQ provides that a magistrate or tribunal member may extend the retention period of a document given to an authorised officer under Subdivision B if he or she is satisfied that it is necessary for the officer to continue to retain the document:

 

·          for the purposes of the Act; or

·          for the purposes of an investigation as to whether an offence has been committed; or

·          to enable evidence of an offence to be secured for the purposes of a prosecution.

 

 

Subdivision C - Searching education providers’ premises

 

51        New Subdivision C gives officers authorised under the Act the power to enter and search certain premises connected with education providers for a visa monitoring purpose (defined at new section 268AA as "a purpose of determining whether the conditions of a particular student visa or visas, or of student visas generally, are being or have been complied with").  Premises can only be entered with the consent of the occupier or pursuant to a warrant issued by a magistrate or a member of the Administrative Appeals Tribunal.

 

52        The entry and search powers in this Subdivision are not contingent on the issue of a notice under new Subdivision B.

 

Section 268CA            Authorised officer may enter premises for a visa monitoring purpose

 

53        New section 268CA sets out what an authorised officer can do for the purposes of determining whether the conditions of a particular student visa or visas, or of student visas generally, are being or have been complied with.

 

54        New paragraph 268CA(1)(a) permits an authorised officer, for a visa monitoring purpose, to enter any premises:

 

 

·          occupied by an education provider for purposes of providing courses of education or of training; or

·          on which it is reasonable to believe there might be a thing belonging to or possessed by an education provider, or an activity might be conducted by or with the consent of an education provider, that is relevant to a visa monitoring purpose, whether or not those premises are occupied by the education provider;

 

and exercise the monitoring powers set out in new section 268CI.

 

55        It is envisaged that the latter would, for example, allow an authorised officer to enter a warehouse operated by a private storage company in which an education provider stores relevant student records.

 

56        New subsection 268CA(2) provides that an authorised officer may not enter premises under subsection (1) unless:

 

·          the occupier of the premises has consented to the entry and the officer has shown his or her identity card if requested by the occupier; or

·          the entry is made under a monitoring warrant.

 

57        New subsection 268(3) provides that the powers in this Subdivision may be exercised even if any relevant student visa is no longer in effect or the holder of any such visa is no longer enrolled in a course provided by the education provider.

 

Section 268CB            Being on premises with consent

 

58        New subsection 268CB(1) provides that an authorised officer may enter premises under new section 268CA with the consent of the occupier at any reasonable time of the day or night. This is intended to ensure that the power to enter premises extends, for example, to both an education provider who operates within normal business hours and an education provider who operates during the evenings and/or weekends.

 

59        If an authorised officer is on premises with the consent of the occupier and that occupier asks the officer to leave, then under new subsection 268CB(2) the officer must do so.

 

Section 268CC            Consent

 

60        New subsection 268CC(1) provides that an authorised officer must inform the person that they are not obliged to consent to entry by an authorised officer under new paragraph 268CA(2)(a).

 

61        New subsection 268CC(2) clarifies that entry with consent is not lawful unless the relevant person voluntarily consents to the entry.



Section 268CD           Authorised officer may apply for monitoring warrant

 

62        New subsection 268CD(1) provides that an authorised officer may apply to a magistrate or tribunal member for a monitoring warrant authorising entry to premises and the exercise of the monitoring powers in new section 268CI.  However, as noted, warrants may also be obtained by telephone, fax or other electronic means in urgent circumstances under new section 268CZD.

 

63        New subsection 268CD(2) provides that in applying to a magistrate or tribunal member under subsection (1), the authorised officer must give information on oath or affirmation setting out the grounds for seeking the warrant.

 

Section 268CE            Magistrate or tribunal member may issue monitoring warrant

 

64        New section 268CE provides that a magistrate or tribunal member may issue a monitoring warrant if satisfied that access to the premises is reasonably necessary for a visa monitoring purpose.

 

Section 268CF            Magistrate or tribunal member may require more information

 

65        New subsection 268CF(1) provides that a magistrate or a tribunal member may request further information concerning the grounds on which the issue of the warrant is being sought. New subsections 268CF(2) and (3) provide that further information may be given either orally or by affidavit and a magistrate or tribunal member must not issue the warrant until that additional information required has been given.  

 

Section 268CG           Contents of monitoring warrant

 

66        A monitoring warrant issued under new section 268CE must do the following:

 

·          authorise one or more authorised officers to enter the premises and exercise the monitoring powers set out in new section 268CI;

·          state whether premises can be entered at any time of the day or night or during specified hours of the day or night;

·          specify the day and time at the end of which the warrant ceases to have effect.  This must not be more than 7 days after the issue of the warrant;

·          state the purpose for which it is issued. That is, the warrant must state that it authorises entry onto premises for a visa monitoring purpose; and

·          state that it is issued under new section 268CE. 

 

However, subsection 268CE(2) provides that the authorised officers do not have to be named in the warrant.

 



Section 268CH           Use of reasonable force and assistance        

 

67        New section 268CH provides that an authorised officer may use such assistance and force as is necessary and reasonable in entering the premises under a monitoring warrant and exercising monitoring powers under new section 268CI.

 

Section 268CI             Monitoring powers of authorised officers

 

68        New section 268CI sets out the “monitoring powers” an authorised officer may exercise for the purposes of new Subdivision C.

 

69        An authorised officer is defined in subsection 5(1) of the Act as an officer authorised in writing by the Minister or the Secretary. An officer is also defined in subsection 5(1) of the Act to include DIMA officers, Customs officers, Protective Service officers, or members of the Australian Federal Police or State or Territory police force.

 

70        A DIMA authorised officer will seek the assistance of Federal, State or Territory police in the execution of a monitoring warrant if deemed to be necessary. DIMA authorised officers required to execute warrants under the Act receive training provided by the National Investigation Training Centre and presented by members of the Australian Federal Police. The course covers departmental procedure and processes, obtaining warrants, executing and recording warrants, communication and self-defence. 

 

71        New subsection 268CI(1) provides that an authorised officer may exercise the following “monitoring powers” in relation to premises under new section 268CA:

 

·          the power to search the premises and any receptacle at the premises for any thing belonging to or possessed by the education provider that might be relevant to a visa monitoring purpose;

·          the power to examine any such thing;

·          the power to examine any activity conducted on the premises by or with the consent of the education provider and that might be relevant to that matter;

·          the power to take photographs or make video or audio recordings or sketches on the premises of any such activity or thing;

·          the power to inspect any document on the premises belonging to or possessed by the education provider that might be relevant to that matter;

·          the power to take extracts from or make copies of any such document;

·          the power to take onto the premises any equipment and materials that the authorised officer requires for the purpose of exercising powers in relation to the premises;

·          the powers in new subsections 268CI(2), (3) and (5).

 

72        New subsection 268CI(2) provides that the “monitoring powers” include the power to operate equipment that is at the premises to see whether:



·          the equipment; or

·          a disk, tape or other storage device that is at the premises and can be used with the equipment or is associated with it;

 

contains information belonging to the education provider that is relevant to a visa monitoring purpose.

 

73        New subsection 268CI(3) provides that the “monitoring powers” include the following powers in relation to information described in new subsection 268CI(2) that is found in the exercise of the power under that subsection:

 

·          the power to operate facilities that are at the premises to put the information in documentary form and remove the documents so produced;

·          the power to operate such facilities to transfer the information to a disk, tape or other storage device that:

-           is brought to the premises for the exercise of the power; or

-           is at the premises and the use of which for that purpose has been agreed to in writing by the education provider or occupier of the premises;

·          the power to remove from the premises such a disk, tape or other storage device.

 

74        New subsection 268CI(4) provides that the powers in new subsections 268CI(2) and 268CI(3) must be exercised in accordance with new sections 268CO, 268CP and 268CQ, which deal with the use of electronic equipment in exercising monitoring powers.

 

75        New subsection 268CI(5) provides that, in certain limited circumstances, the “monitoring powers” include a power to secure a thing found during a search of premises until a warrant is obtained to seize it.  This power is available where an authorised officer believes that the thing might afford evidence of the commission of an offence against the Act, the Regulations, the Crimes Act 1914 (“the Crimes Act”) or the Criminal Code .

 

76        There is no requirement on an authorised officer to tape (either video or audio) the execution of a monitoring warrant under this Division. For the vast majority of warrants the recording of execution would be impracticable.  However, authorised officers will seek to record the execution of a monitoring warrant where this is deemed necessary or desirable..

 

Section 268CJ            Authorised officer on premises with consent may ask questions

 

77        New section 268CJ applies where an authorised officer has entered premises with the consent of the occupier.  In these circumstances, the officer may ask the occupier:

 

·          to answer any questions that are relevant to a visa monitoring purpose; and

·          to give or show the officer any document requested by the officer that is relevant to that matter or ask any person at the premises to answer any questions that may facilitate the exercise of monitoring powers in relation to the premises.

 

78        However, neither the occupier nor any other person is compelled to comply with a request under new section 268CJ.

 

Section 268CK            Authorised officer on premises under warrant may ask questions

 

79        New section 268CK applies where an authorised officer has entered the premises pursuant to a monitoring warrant.  In these circumstances, the officer may require the occupier:

           

·          to answer any questions that are relevant to a visa monitoring purpose; and

·          to give or show the officer any document requested by the officer that is relevant to that matter.

 

The officer may also require any person on the premises to answer any questions that may facilitate the exercise of the monitoring powers in relation to the premises.

 

Section 268CL            Offence: failure to answer questions

 

80        New subsection 268CL(1) makes it an offence for a person to refuse or fail to comply with a requirement under new subsection 268CK (officer on premises under warrant may ask questions).  The maximum penalty for this offence is 6 months’ imprisonment.

 

81        New subsection 268CL(2) provides that the offence does not abrogate the privilege against self-incrimination.  Therefore, a person does not have to answer a question asked or give or show a document under new section 268CK if this might tend to incriminate the person or expose the person to a penalty.

 

Section 268CM           Offence: giving false or misleading information

 

82        New section 268CM makes it an offence for a person to give information to an authorised officer that is false or misleading where this information is given in the course of complying, or in purported compliance, with a request under new section 268CJ or 268CK.  The maximum penalty for this offence is 12 months’ imprisonment.

 

Section 268CN           Offence: giving or showing documents that are false or misleading in material particulars

 

83        New section 268CN makes it an offence for a person to give or show an authorised officer a document that is false or misleading in a material particular where the document is given or shown in the course of complying, or in purported compliance, with a request under new section 268CJ or 268CK.  The maximum penalty for this offence is 12 months’ imprisonment.



84        However, under new subsection 268CN(2), a person is not guilty of an offence if the document in question is accompanied by a written statement signed by the person:

 

·          stating that the document is, to the person’s knowledge, false or misleading in the material particular concerned; and

·          setting out or referring to the material particular.

 

Section 268CO           Use of electronic equipment in exercising monitoring powers

 

85        New section 268CO permits an authorised officer or person assisting that officer to operate electronic equipment on the premises in exercising monitoring powers. However, the officer must believe on reasonable grounds that the equipment can be operated without damaging the equipment or data recorded on the equipment.

 

Section 268CP            Use of electronic equipment by experts

 

86        New subsection 268CP(2) provides that in certain circumstances, an authorised officer or person assisting that officer may do whatever is necessary to secure electronic equipment at the premises in exercising monitoring powers. The circumstances when this can occur are set out in new subsection 268CP(1) which provides that an authorised officer, or a person assisting that officer, may take such steps if he or she believes, on reasonable grounds, that:

 

·          there is at the premises information belonging to the education provider concerned that is relevant to a visa monitoring purpose and that information might be accessible by operating electronic equipment that is at the premises; and

·          expert assistance is required to operate the equipment; and

·          the information might be destroyed, altered or otherwise interfered with.

 

87        Under new subsection 268CP(3), the occupier of the premises must be given notice of any intention to secure electronic equipment and of the fact that the equipment may be secured for up to 24 hours.

 

88        New subsection 268CP(4) provides that electronic equipment may actually be secured for a maximum of 24 hours or until the equipment has been operated by the expert, whichever happens first. 

 

Section 268CQ           Extension of period

 

89        An authorised officer, or a person assisting that officer, may apply to a magistrate under new section 268CQ for an extension of the period mentioned in new subsection 268CT(4).  Under new subsection 268CQ(1) such an application may be made where there are reasonable grounds for believing that expert assistance will not be available within 24 hours.

 



90        New subsection 268CQ(2) requires the authorised officer, or a person assisting that officer, to give notice to the occupier of the premises of his or her intention to apply for an extension of the 24 hour period.  This subsection also provides that the occupier is entitled to be heard in relation to that application.

 

91        New subsection 268CQ(3) clarifies that the provisions of new Subdivision C relating to the issue of monitoring warrants also apply, with the necessary modifications, to the issue of an extension. 

 

Section 268CR            Powers without warrant in emergency situations

 

92        New section 268CR sets out the powers of an authorised officer in emergency situations when on premises under section 268CA if the officer suspects on reasonable grounds that:

 

·          a thing relevant to an offence against the Act, the Regulations, the Crimes Act 1914 or the Criminal Code is at the premises; and

·          it is necessary to exercise specified powers in order to prevent the thing from being concealed, lost or destroyed; and

·          it is necessary to exercise the power without the authority of a monitoring warrant because the circumstances are so serious and urgent.

 

93        In the above circumstances, an authorised officer may:

 

·          search the premises, and any receptacle at the premises, for the thing; and

·          seize the thing if he or she finds it there; and

·          exercise the powers mentioned in new subsections 268CI(2) and 268CI(3) in relation to the thing.

 

Section 268CS            Retaining seized things

 

94        New section 268CS provides for the retention of a thing seized pursuant to the emergency powers in new section 268CR.

 

95        Under new subsection 268CS(1), a thing seized under new section 268CR must be returned, subject to a contrary court or tribunal order, when either of the following happen:

 

·          the reason for its seizure no longer exists or it is decided that it is not to be used in evidence; or

·          the period of 60 days after its seizure ends.

 

96        At the end of the 60 days, new subsection 268CR(2) requires an authorised officer to take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it. 

 

97        However, new subsection 268CR(3) does not require a seized thing to be returned if:

 

·          proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and have not yet been completed (including appeal applications); or

·          an order under new section 268CU permitting an authorised officer to retain the thing for a further period has been made; or

·          the authorised officer is otherwise authorised, by law or a court or tribunal order, to retain, destroy or dispose of the thing;

·          the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

 

Section 268CT            Authorised officer may apply for a thing to be retained for a further period

 

98        New section 268CT provides for the extension of the period a thing, seized pursuant to the emergency powers in new section 268CR, may be retained.

 

99        Under new subsections 268CT(1) and (2) an authorised officer may apply to a magistrate or a tribunal member for an order that the seized thing be retained for a further period where proceedings in respect of which the thing may afford evidence have not commenced before the end of: 

 

·          60 days after the seizure; or

·          a period previously specified in an order of a magistrate or tribunal member under new section 268CU.

 

100      However, before applying for an extension of the retention period, new subsection 268CT(3) requires the officer to:

 

·          take reasonable steps to discover which persons’ interests would be affected by the retention of thing; and

·          if it is practicable to do so, notify each person who the officer believes to be such a person of the proposed application.

 

101      For example, in certain circumstances new subsection 268CT(3) may require an authorised officer to notify the person who gave him or her the thing of a proposed application to extend the retention period under new section 268CT.

 

Section 268CU           Magistrate or tribunal member may order that thing be retained

 

102      A magistrate or tribunal member may, on application by an officer under section 268CT, extend the retention period under new subsection 268CU(1) if he or she is satisfied that it is necessary for the officer to continue to retain the seized thing:

 

·          for the purposes of an investigation as to whether an offence has been committed; or

·          to enable evidence of an offence to be secured for the purposes of a prosecution.

 

103      Subsection 268CU(2) provides that an order must specify the period for which the officer may retain the thing.

 

Section 268CV                        Occupier to provide authorised officer with all facilities and

assistance

 

104      If a monitoring warrant is being executed, new subsection 268CV(1) requires an occupier of the relevant premises to provide the authorised officer with all reasonable facilities and assistance for the effective exercise of the officer's powers.

 

105      New subsection 268CV(2) makes it an offence for the person to fail to comply with the obligation in new subsection 268CV(1).  The maximum penalty for this offence is a fine to the value of 10 penalty units.

 

Section 268CW           Announcement before entry

 

106      Before entering premises pursuant to a monitoring warrant, new section 268CW requires an authorised officer to:

 

·          announce that he or she is authorised to enter the premises; and

·          give a person at the premises (if there is one) an opportunity to allow entry to the premises.

 

Section 268CX            Copy of monitoring warrant to be given to occupier before entry

 

107      New subsection 268CX(1) requires a copy of the monitoring warrant to be given to the occupier of the relevant premises if that person is present at the premises when the warrant is being executed.

 

108      New subsection 268CX(2) requires the authorised officer executing the monitoring warrant to identify himself or herself to the occupier of the premises.

 

Section 268CY            Compensation for damage to electronic equipment or data

 

109      New subsection 268CY(1) sets out the circumstances in which the owner of damaged electronic equipment or the user of damaged or corrupted data or programs will be entitled to the payment of reasonable compensation by the Commonwealth.  Such a person will be entitled to reasonable compensation where:

·          insufficient care was exercised in selecting the person who was to operate the equipment; or

·          insufficient care was exercised by the person operating the equipment.

 

110      New subsection 268CY(2) provides that the Commonwealth must pay the owner of the equipment, or the user, such reasonable compensation for the damage or corruption as they agree on.

 

111      Where the owner or user and the Commonwealth cannot reach an agreement as to the amount of compensation payable, new subsection 268CY(3) provides that the owner or user may institute proceedings in the Federal Court for such reasonable compensation as the Court determines.

 

112      New subsection 268CY(4) provides guidance for determining the amount of

compensation payable.  It provides that regard should be had to whether the occupier of the premises and his or her employees and agents, if they were available at the time, provided any appropriate warning or guidance as to the operation of the equipment.

 

113      New subsection 268CY(5) provides that compensation is payable out of money appropriated by the Parliament.

 

114      New subsection 268CY(6) provides that for the purpose of subsection (1), “damage to data” includes damage by erasure of data or addition of other data.

 

Section 268CZ            Occupier entitled to be present during execution of monitoring warrant

 

115      New subsection 268CZ(1) entitles the occupier of the relevant premises, if present at the premises, to observe the execution of a monitoring warrant.

 

116      However, new subsection 268CZ(2) provides that the right to observe the execution of the warrant ceases if the person impedes that execution.

 

117      New subsection 268CZ(3) clarifies that new section 268CZ does not prevent the execution of the warrant in 2 or more areas of the premises at the same time.

 

  Section 268CZA        Identity Cards

 

118      New subsection 268CZA(1) provides that for the purposes of this Subdivision an authorised officer’s identity card must be in a form approved by the Secretary.  It must also contain a recent photograph of the authorised officer (that is, a photograph that is no more than 5 years old).  Under new subsection 268CZA(5), an authorised officer must carry an identity card at all times when exercising powers under this Subdivision. 

 

119      New subsection 268CZA(2) provides that a person is guilty of an offence if:

 

·          the person holds or held an identity card for the purposes of this Subdivision; and

·          the person ceases to be an authorised officer for all purposes under the Act; and

·          the person does not, as soon as practicable, return the identity card to the Secretary.



120      The maximum penalty for this offence is a fine to the value of 1 penalty unit.

 

121      New subsection 268CZA(3) provides that the offence in new subsection 268CP(2) is one of strict liability.  This means that there are no fault elements for any of the physical elements of the offence and the defence of mistake of fact under section 9.2 of the Criminal Code is available (please see section 6.1 of the Criminal Code ).

 

122      However, under new subsection 268CZA(4), a person is not guilty of an offence under new subsection 268CZA(2) if the identity card was lost or destroyed.

 

Section 268CZB         Authorised officer must produce identity card on request

 

123      New section 268CZB provides that an authorised officer must show his or her identity card if requested by the occupier of the premises. If an authorised officer fails to comply with this request they are no longer entitled to exercise any powers under Subdivision C in relation to premises.

 

Section 268CZC         Officer may apply for warrants to be granted by telephone etc.

 

124      New subsection 268CZC(1) provides that, if necessary, an authorised officer may apply to a magistrate or tribunal member for a warrant under new section 268CE by telephone, fax or other electronic means in urgent circumstances.

 

125      New subsection 268CZC(2) provides that the magistrate or tribunal member may require communication by voice to the extent practicable in the circumstances. New subsection 268CZC(3) requires an authorised officer, before making the application, to prepare an information that sets out the grounds for seeking the warrant. New subsection 268CZC(4) provides that the authorised officer may make the application before the information has been sworn or affirmed, if necessary.

 

Section 268CZD         Magistrate or tribunal member may grant warrant by telephone etc

 

126      New subsection 268CZD(1) provides that before issuing the warrant the magistrate or tribunal member must:

 

·          consider the information prepared under subsection 268CZC(3); and

·          receive any further information that the magistrate or tribunal member may require about the grounds on which the warrant is being sought.

 

127      New subsection 268CZD(2) provides that the magistrate or tribunal member may issue the warrant if satisfied:

 



·          that it is reasonably necessary that one or more authorised officers have access to the premises for a visa monitoring purpose; and

·          that there are reasonable grounds for issuing the warrant by telephone, fax or other electronic means.

 

Section 268CZE         Procedure for issuing warrant by telephone etc

 

128      New subsection 268CZE provides that if a magistrate or tribunal member issues a warrant under new section 268CZD, they must complete and sign a warrant as if it had been a warrant made and issued under new section 268CD.

 

129      Under subsection 268CZE(2) the magistrate or tribunal member must also record on the warrant the reasons for issuing it and inform the authorised officer of:

 

·          the terms of the warrant; and

·          the day and time when it was signed; and

·          the time at which it ceases to have effect (which must be no later than 48 hours after it is signed).

 

130      New subsection 268CZE(3) provides that an authorised officer must:

 

·          complete a form of warrant in the terms given to the authorised officer by the magistrate or tribunal member; and

·          write on it the magistrate or tribunal member’s name and the day and time when the warrant was signed.

 

Section 268CZF         Procedure after telephone warrant ceases or is executed

 

131      New subsection 268CZF(1) requires the authorised officer to send to the magistrate or tribunal member who signed the warrant the completed form of warrant and the information duly sworn or affirmed in connection with the warrant.  Under subsection 268CZF(2) this must be done not later than the day after:

 

·          the day on which the warrant ceases to have effect; or

·          the day on which the warrant is executed;

 

whichever happens first.

 

132      Under new subsection 268CZF(3) the magistrate or tribunal member must, on receiving the documents mentioned in new subsection 268CZF(1), attach them to the warrant signed by the magistrate or tribunal member.  The magistrate or tribunal member must also deal with the documents in the same way he or she would have dealt with the information if the application for the warrant had been made under new section 268CD.

 

Section 268CZG         Form of warrant authorises exercise of power

 

133      New section 268CZG clarifies that the form of warrant completed under new section 268CZE, if it is in accordance with the terms of the monitoring warrant signed by the magistrate or tribunal member, authority for any exercise of a power that the warrant so signed is authority for.

 

Section 268CZH         Court to assume that exercise of power not authorised by telephone etc. warrant

 

134      New section 268CZH provides that a court must assume (unless the contrary is proved) that the entry, search or other exercise of power authorised was not authorised by a monitoring warrant granted under section 268CZE if that warrant is not produced in evidence.

 



SCHEDULE 3 - Applying for additional visas

 

 

Migration Act 1958

 

Item 1             Paragraph 41(2)(a)

 

1          Section 41 of the Migration Act 1958 (“the Act”) allows the Migration Regulations 1994 (“the Regulations”) to provide for visa conditions which can be attached to a non-citizen's visa.  Paragraph 41(2)(a) allows the Regulations to provide for a special type of visa condition (the “no further stay” condition) - that the visa holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.  The Regulations currently provide for this condition at item 8503 of Schedule 8.

 

2          The amendment made by this Item is intended to allow the Regulations to provide for, in addition to the condition described above, further modified “no further stay” conditions, allowing grant of specified temporary visas to the visa holder in addition to grant of a protection visa.  In other words, such a modified condition would operate to bar the visa holder, after entering Australia, from being granted a substantive visa, other than a protection visa or a limited list of temporary visas, while the holder remains in Australia.

 

3          For example, section 41 as amended would allow the Regulations to provide for a visa condition, to be attached to a student visa, providing that the holder is not entitled to be granted any further substantive visa, other than a protection visa or a specified type of student visa, while the holder remains in Australia.

 

4          Subsection 41(2A) allows the Minister to waive (in certain circumstances) both the original type of “no further stay” condition and the modified type of “no further stay” condition enabled by this Item.

 

Item 2             Subsection 46(1)

Item 3             Paragraph 46(1)(d)

Item 4             Paragraph 46(1)(e)

 

5          These items are consequential to the amendment in item 5 below. 

 

Item 5             After subsection 46(1)

 

6          Section 46 deals with the requirements for a valid visa application.  Existing paragraph 46(1)(e) (repealed by item 4 above) effectively provided that a visa application made in contravention of the “no further stay” condition (described at paragraph 41(2)(a)) would be invalid.  Item 5 inserts new subsection 46(1A), which extends the scheme to cover the modified “no further stay” conditions enabled by Item 1 above.

 

7          In other words, the amendment made by Item 5 ensures that an application for a visa is invalid if:

 

·          since last entering Australia, the applicant held a visa subject to a condition described in paragraph 41(2)(a); and

·          the Minister has not waived that condition under section 41(2A); and

·          the application is for a visa of a kind that, under the condition, the applicant is not or was not entitled to be granted.

 

Item 6             Subsection 46(2)

 

8          This item is consequential to the amendment in item 5 above.

 

Item 7             Application

 

9          This amendment provides that the amendment made by item 1 applies to visas granted after the commencement of this Schedule.