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Migration Amendment (Border Integrity) Bill 2007

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2004 - 2005 - 2006

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

MIGRATION AMENDMENT (BORDER INTEGRITY) BILL 2006

EXPLANATORY MEMORANDUM

(Circulated by authority of the

Minister for Immigration and Multicultural Affairs,

Senator the Honourable Amanda Vanstone)



MIGRATION AMENDMENT (BORDER INTEGRITY) BILL 2006

 

OUTLINE

1.                   The Migration Amendment (Border Integrity) Bill 2006 (‘the Bill’) amends the Migration Act 1958 (‘the Migration Act’) to

·          provide that a special purpose visa may cease at a time specified by the Minister where the Minister has made a declaration under subsection 33(9) of the Migration Act that it is undesirable for that special purpose visa holder, or class of special visa holders, to travel to and enter or remain in, Australia;

 

·          enable citizens and selected non-citizens in immigration clearance, arriving and departing Australia, to have their identity, and their Australian citizenship status or visa, verified by an automated system instead of an officer;

 

·          preserve the current policy intention that the evidence required to be presented (that is, shown but not for the purposes of collection) by non-citizens as proof of identity, of a visa that is in effect, and of lawful status, may include a “personal identifier” for the purposes of the Migration Act; and

 

·          enable selected New Zealand citizens arriving in Australia to be granted a special category visa, in immigration clearance, by an automated system, instead of an officer.

Special purpose visas

2.                   The special purpose visa regime was designed to facilitate the lawful travel and entry to Australia to certain low risk groups of travellers. Special purpose visas  are distinct from most other visas as there is no visa application process and the visa is granted by operation of law to non-citizens who come within either a prescribed class of persons, or are a person, or class of persons, declared by the Minister to hold special purpose visas.

3.                   Examples of persons eligible for grant of a special purpose visa include crew members of non-military ships, aircrew, foreign dignitaries, and visiting members of overseas armed forces.

4.                   The Minister may declare that it is undesirable for a person, or any persons in a class of persons, to travel to and enter Australia or remain in Australia.  The declaration has the effect of ceasing the special purpose visa (if the person already holds a special purpose visa), or preventing the grant of a special purpose visa (if the person does not yet hold one).

5.                   Under the current legislation, where such a declaration is made, the special purpose visa does not cease until midnight on the day on which the declaration is made.

6.                   The Bill proposes an amendment to the Migration Act to allow the Minister to specify a time in the declaration (not being a time before the making of the declaration) as the time upon which the declaration is to take effect. The amendments will also provide that the special purpose visa will cease at the moment the declaration takes effect, rather than at the end of that day.

7.                   This will remedy the current situation where a declaration is made that a non-citizen should not remain in Australia, but action to take the person into immigration detention cannot occur until midnight on the day on which the declaration is made.

Immigration clearance

8.                   Immigration clearance is the process that regulates the entry of people into Australia. It ensures that those persons who enter have authority to do so, are who they claim to be, and that they provide other information if required to do so (for example, a passenger card).

9.                   The Bill amends the Migration Act to enable certain citizens and non-citizens in immigration clearance, arriving and departing Australia, to have their identity, and their Australian citizenship status or visa, verified by an automated system instead of an officer. Citizens and non-citizens eligible will be able to choose to be processed by an automated system or a clearance officer.

10.               To be eligible to use this automated system, non-citizens must hold a passport which the Minister or the Secretary has determined as eligible. These ‘eligible’ passports will contain embedded information stored on a microchip which would be accessible by the automated system. The automated system will temporarily store this data while it is used to process the relevant passenger and then destroy this information shortly after. The automated system will not collect (that is, permanently store) the relevant “personal identifiers” from these passports.

11.               The Bill also contains amendments which preserve the current policy intention that where evidence required to be ‘presented’ (that is, shown but not for the purposes of collection) by non-citizens such as proof of identity, of a visa that is in effect, and of lawful status, such evidence may include a “personal identifier” for the purposes of the Migration Act. This is necessary as travel documents such as passports almost always contain personal identifiers (for example, photograph, signature etc) and it is necessary for officers to be able to be shown such information. This measure also seeks to ensure that the statutory limitations on the types of personal identifiers that can be provided (that is, collected) also apply to limit the types of personal identifiers that can be presented (that is, shown).

 Special category visas

12.               In 2001 the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 inserted section 495A in Part 9 of the Migration Act. In broad terms, subsection 495A provides that the Minister may arrange for the use of computer programs to make a decision, exercise a power or obligation, or do anything else relating to a decision, power or obligation, under specified provisions in the Migration Act.

13.               Amendments made by the Bill will enable selected New Zealand citizens arriving in Australia to be granted a special category visa by an automated system (a computer program) in immigration clearance, instead of an officer.

14.               Only those New Zealand citizens who hold a New Zealand passport of a kind determined by the Minister or Secretary to be an eligible passport for the purposes of the provisions will be able to use the automated system. The automated system will temporarily store data from the passport while processing the passenger, and then destroy this information shortly after. The automated system will not collect (that is, permanently store) the relevant “personal identifiers” from these passports

15.               This amendment means that New Zealand citizens holding passports approved for these purposes, in addition to being eligible to be to be immigration cleared by having their identity verified by an automated system instead of an officer, will also be eligible to apply for, and be granted (if they meet the relevant criteria for grant), a special category visa, using an automated system instead of being processed by an officer, in immigration clearance.

financial impact statement

16.               The Australian Customs Service is responsible for the development, delivery and maintenance of the automated system referred to above (‘SmartGate’). In the 2005-06 Federal Budget, Customs was allocated $61.7 million over four years to fund the automation of border processing (SmartGate). Customs’ ongoing costs associated with the maintenance of SmartGate beyond the four-year funding program, have not yet been determined.

17.               Minimal costs associated with the proposal, incurred by DIMA, will be absorbed through existing funding arrangements and therefore there would be no additional cost implications for the Federal budget.



MIGRATION AMENDMENT (BORDER INTEGRITY) BILL 2006

NOTES ON INDIVIDUAL CLAUSES

Clause 1        Short title

1.                   Clause 1 provides that the short title by which this Act may be cited is the Migration Amendment (Border Integrity) Act 2006 (‘the Act’).

Clause 2        Commencement

2.                   This clause provides a table that sets out the commencement provisions of the Act.  Under this table:

·          Sections 1 to 3 of the Act and anything in the Act not elsewhere covered by the table will commence on Royal Assent;

·          Schedule 1 to the Act, concerning special purpose visas, will commence on a single day fixed by Proclamation.  However if any of the provision(s) do not commence within the period of 6 months beginning on the day which the Act receives the Royal Assent, they commence on the first day after the end of that period;

·          Schedules 2 and 3 to the Act, concerning immigration clearance and special category visas, will commence on a single day to be fixed by Proclamation. However if any of the provision(s) do not commence within the period of 6 months beginning on the day which the Act receives the Royal Assent, they commence on the first day after the end of that period.

Clause 3       Schedule(s)

3.                   This clause provides that each Act specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned.  In addition, any other item in a Schedule to this Act has effect according to its terms.



Schedule 1 - Special purpose visas

Migration Act 1958

Item 1          Subparagraph 33(5)(a)(iii)

1.                   This item repeals existing subparagraph 33(5)(a)(iii) in Division 3 of Part 2 of the Migration Act 1958 (‘the Migration Act’) and replaces it with new subparagraph 33(5)(a)(iii).

2.                   Paragraph 33(2)(a) of the Migration Act provides that a non-citizen is taken to have been granted a special purpose visa (by operation of law) if the non-citizen has a prescribed status or is a member of a prescribed class of persons. Paragraph 33(2)(b) provides that a non-citizen is also taken to have been granted a special purpose visa if the Minister declares in writing that the non-citizen is taken to have been granted a special purpose visa or a class of persons, of which the non-citizen is a member, are taken to have been granted special purpose visas. Subsection 33(5) specifies when a special purpose visa ceases to be in effect with regard to persons to whom either paragraphs 33(2)(a) or 33(2)(b) apply.

3.                   Section 33(9) provides that the Minister may make a declaration in writing that it is undesirable that a person, or any persons in a class of persons, travel to, enter, or remain in Australia. Such classes of persons provided for in the declaration may differ from those prescribed under subparagraph 33(2)(a)(ii) or declared in writing by the Minister under subparagraph 33(2)(b)(ii). For example, where a class of persons are taken to have been granted special purpose visas under subparagraph 33(2)(a)(ii) (member of a class of persons prescribed in the regulations), the Minister may make a declaration under subsection 33(9) in relation to a subclass of that class.

4.                   New subparagraph 33(5)(a)(iii) provides that, where the Minister has made a declaration under subsection 33(9) in relation to a non-citizen or a class of persons of which the non-citizen is a member (which does not have to be the same as a class prescribed under subparagraph 33(2)(a)(ii)), the special purpose visa ceases to be in effect at the time at which that declaration takes effect. Previously, this subparagraph provided that such a special purpose visa ceased to be in effect “on the day” that declaration was made, and this resulted in some uncertainty as to at what time on that day the special purpose visa is taken to have ceased. New subsection 33(5A) (as inserted by Item 3) provides the time at which, for the purposes of subsection 33(5), a declaration made by the Minister under subsection 33(9) takes effect.

Item 2             Subparagraph 33(5)(b)(v)

5.                   New subparagraph 33(5)(b)(v) provides that, where the Minister has made a declaration under subsection 33(9) in relation to a non-citizen or class of persons of which the non-citizen is a member (which does not have to be the same as a class declared by the Minister in writing under subparagraph 33(2)(b)(ii)), the special purpose visa ceases to be in effect at the time when that declaration takes effect. Previously, this subparagraph provided that such a special purpose visa ceased to be in effect “on the day” that declaration was made, and this resulted in some uncertainty as to at what time on that day the special purpose visa is taken to have ceased. New subsection 33(5A) (as inserted by Item 3) provides the time at which, for the purposes of subsection 33(5), a declaration made by the Minister under subsection 33(9) takes effect.

Item 3             After subsection 33(5)

6.                   This item inserts new subsection 33(5A) after subsection 33(5).

7.                   Section 33(9) provides that the Minister may make a declaration in writing that it is undesirable that a person, or any persons in a class of persons, travel to, enter, or remain in Australia.

8.                   New subsection 33(5A) specifies the time when a declaration made by the Minister under subsection 33(9) takes effect.

9.                   More specifically, new paragraph 33(5A)(a) provides that the Minister may specify a time in the declaration as the time that declaration takes effect (as long as that time is not earlier than the time when the declaration was made). For example, if the Minister makes a declaration at 10 am on a particular day, and specifies that the declaration will take effect at 12 noon on that day, that declaration will take effect at 12 noon on that day, and the holder’s special purpose visa will cease at that time under new paragraph 33(5)(a)(iii) or (b)(v). Previously, any declaration made under subsection 33(9) could only come into effect at the end of the day on which it was made.

10.               New paragraph 33(5A)(b) provides certainty by specifying that where the Minister does not specify the time at which the declaration is to take effect, it takes effect at the end of the day on which it was made. For example, if the Minister makes a declaration at 10 am on a particular day, and does not specify a time at which the declaration will take effect, that declaration will take effect at just before midnight on that day, and the holder’s special purpose visa will cease at that time under subsection 33(5).

11.               The purpose of new subsection 33(5A) is to provide certainty in the legislation as to when a declaration made under subsection 33(9) takes effect, and to allow the Minister some further flexibility by allowing him or her to specify a particular time for the declaration to take effect (and thus ceasing the relevant special purpose visa(s)) instead of being restricted to the SPV only being able to cease at the end of the day on which the declaration was made.

Item 4          Application      

12.               This item provides that the amendments to the Migration Act made by Schedule 1 apply to declarations made under subsection 33(9) on or after the commencement of this item. The table in clause 2 of this Act provides that the amendments contained in Schedule 1 commence on a day to be fixed by Proclamation.



Schedule 2 - Immigration clearance

Migration Act 1958

Item 1          Subsection 5(1)

1.                   This item inserts a definition of “authorised system” in subsection 5(1) Part 1 of the Migration Act 1958 (‘the Migration Act’). 

2.                   The purpose of the item is to provide that “authorised system”, when used in a provision of the Migration Act, has the meaning of an automated system authorised in writing by the Minister or the Secretary for the purposes of that provision. With regard to Division 5 of Part 2 of the Migration Act, an “authorised system” includes those systems authorised by the Minister or Secretary in writing which allow selected citizens and non-citizens to satisfy evidentiary checks using an automated system, instead of an officer.

Item 2          Subsection 5(1)

3.                   This item inserts a definition of “clearance authority” in subsection 5(1) Part 1 of the Migration Act. This definition applies throughout the Migration Act.

4.                   This definition provides that “clearance authority” has the same meaning given by section 165. The definition of “clearance authority” in section 165 in Division 5 of Part 2, inserted by Item 7 of this Schedule, provides that a “clearance authority” means a “clearance officer” or an “authorised system”.

5.                   The purpose of this amendment is to facilitate provisions of the Migration Act allowing for functions to be carried out by either a clearance officer or an automated system.

Item 3          Subsection 5(1)

6.                   This item inserts a definition of “clearance officer” in subsection 5(1) Part 1 of the Migration Act. This definition applies throughout the Migration Act.

7.                   This definition provides that “clearance officer” has the same meaning given by section 165. The definition of “clearance officer” in section 165 in Division 5 of Part 2 provides that a “clearance officer” means an officer, or other person, authorised by the Minister to perform duties for the purposes of this Division.

8.                   The purpose of this amendment is to extend the application of the definition of “clearance officer” to the Migration Act generally.

Item 4          After subsection 5(1A)

9.                   This item inserts new subsection 5(1B) after subsection 5(1A) in Part 1 of the Migration Act.

10.               New subsection 5(1B) provides the Minister and the Secretary with an express power to authorise the use of an “authorised system”. The definition of “authorised system”, as inserted by Item 1 of this Schedule, provides that “authorised system” means an automated system authorised in writing by the Minister or the Secretary for the purposes of that provision.

11.               The purpose of this amendment is to provide a source for the power referred to in the definition of “authorised system” inserted by Item 1 in subsection 5(1).

Item 5          Paragraph 5B(c)

12.               This item amends paragraph 5B(c) in Part 1 of the Migration Act by replacing the reference to “166(1C)” with “166(8)”.

13.               Item 8 of this Schedule repeals section 166 and replaces it with new section 166.  New subsection 166(8) maintains the operation of existing subsection 166(1C).

14.               This item is a consequential amendment.  The purpose of this item is to make sure that the reference to the existing subsection 166(1C) remains valid after it is replaced by the new subsection 166(8) by Item 8 of this Schedule.

Item 6          Section 165

15.               This item amends section 165 in Division 5 of Part 2 of the Migration Act by replacing “In this Subdivision” with “In this Division”.

16.               This item is a technical amendment.  The purpose of this item is to rectify a typographical error.  There is no subdivision in Part 2 Division 5.

Item 7          Section 165

17.               This item inserts a definition of “clearance authority” in section 165 in Division 5 of Part 2 of the Migration Act.

18.               New section 165 provides that, for the purposes of Division 5 of Part 2 of the Migration Act, “clearance authority” is defined to mean a “clearance officer” or “an authorised system”. A “clearance officer” is defined in section 165 to mean an officer, or other person, authorised by the Minister to perform duties for the purposes of this Division. The definition of “authorised system” inserted in subsection 5(1) by Item 1 of this Schedule defines this term to mean an automated system authorised in writing by the Minister or the Secretary for the purpose of that provision.

19.               The purpose of this amendment is to facilitate provisions of the Migration Act allowing for functions to be carried out by either a clearance officer or an automated system.

Item 8          Section 165

20.               This item inserts a definition of “eligible passport” in section 165 in Division 5 of Part 2 of the Migration Act. 

21.               An “eligible passport” is defined to mean a passport of a kind specified in a determination made under section 175A.  Item 27 of this Schedule inserts new section 175A in Division 5 of Part 2 of the Migration Act. New section 175A provides that, for the purposes of Division 5, the Minister or Secretary may, by legislative instrument, determine that a specified kind of passport is one which is eligible to be used with an “automated system”.

22.               The purpose of this amendment is to define the term “eligible passport” for the purposes of Division 5 of Part 2 of the Migration Act, and allow those persons eligible to use the “automated system” to be specified in a legislative instrument made by the Minister or Secretary.

Item 9          Section 166

23.               This item repeals section 166 in Division 5 of Part 2 of the Migration Act and replaces it with new section 166.

Section 166 Persons entering to present certain evidence of identity etc.

24.               Immigration clearance is the process defined in section 172 in Division 5 of Part 2 of the Migration Act, that regulates the entry of people to Australia to ensure that those who enter have authority to do so, those persons entering are who they claim to be, and those persons provide other information if required to do so (for example, a passenger card).

25.               Subsection 172(1) provides that a person is immigration cleared if, and only if, that person, among other things, enters Australia at a proclaimed airport or port and complies with the requirements contained in section 166.

26.               Section 166 requires citizens and non-citizens entering Australia to satisfy various evidentiary requirements which assist to verify those persons’ identity and lawful status or Australian citizenship.

Requirement to be immigration cleared

27.               Previously, paragraph 166(1)(a) provided that such persons must “show” this evidence to a “clearance officer”. New paragraph 166(1)(a) provides that persons must “present” this evidence to a “clearance authority”. In both instances, the terms “show” and “present” are used to clarify that this provision authorises only the verification of that evidence and not the collection or storage of the evidence by the clearance authority. The term “provide” is used in reference to “personal identifiers” elsewhere in the Migration Act to mean for the purposes of collection.

28.               Item 7 of this Schedule inserts a definition of “clearance authority” in section 165 of the Migration Act. This definition provides that a “clearance authority” includes both a “clearance officer” and an “automated system” as defined in subsection 5(1) of the Migration Act. The term “show” is replaced with “present” to provide consistency with how an automated system will receive such information. The purpose of new paragraph 166(1)(a) is to allow an automated system to replace the role of a clearance officer with regard to the verification of the evidence (that is, not collection) under that paragraph, for eligible citizens and non-citizens.

29.               Further, new paragraph 166(1)(a) clarifies that some evidence presented to a clearance authority under that paragraph may be a “personal identifier” as defined in section 5A of Part 1 of the Migration Act. For example, passports will usually contain a photograph or other image of the person, and the person’s signature, and these are defined as personal identifiers section 5A.

30.               Prior to the commencement of this Act, paragraph 166(1)(b) provided that the person entering Australia must “provide” to a clearance officer any information required to be given by the Migration Act or regulations. Regulations prescribed that this information includes a “passenger card” which passengers are required to give a clearance officer.

31.               New paragraph 166(1)(b) requires those persons to “provide” (that is, for the purposes of collection) to the clearance authority, any information (other than a personal identifier) required by the Migration Act or regulations. New paragraph 166(1)(b) is consistent with the automated system and a clearance officer collecting this further information and expressly provides that it may not include “personal identifiers” (as defined in section 5A).

32.               The purpose of new paragraph 166(1)(b) is to allow the automated system to collect information such as that which would otherwise be provided on a passenger card given to a clearance officer, and to expressly provide that this information is not to include personal identifiers (which may be collected under new paragraph 166(1)(c)).

33.               Prior to this Act, paragraph 166(1)(aa) provided that, where prescribed circumstances exist, a non-citizen entering Australia must comply with any requirement of the clearance officer to provide personal identifiers. This provision, combined with the others in section 166, enabled a clearance officer to require non-citizens entering Australia to provide prescribed types of personal identifiers, by way of an identification test carried out by an authorised officer or otherwise, and for the clearance officer to refuse immigration clearance to a non-citizen who refuses to do so.

34.               New paragraph 166(1)(c) inserts a similar requirement, allowing both the clearance officer and the automated system to require non-citizens to provide personal identifiers to a clearance officer (not to the automated system) in prescribed circumstances and before those non-citizens are immigration cleared under section 172.

35.               The purpose of new paragraph 166(1)(c) is to authorise a clearance officer to collect personal identifier information from non-citizens after they arrive in Australia and before they are immigration cleared under section 172, to further confirm the identity and lawful status of those citizens. An example of where a paragraph 166(1)(c) request might be made is where a non-citizen has entered Australia and satisfied the requirements under paragraph 166(1)(a) using the automated system, but a clearance officer is not satisfied of that non-citizen’s identity or lawful status and wishes further information to be provided. Paragraph 166(1)(c) also allows for instances where the automated system refers a non-citizen, who is using that system, to a clearance officer for the purposes of providing personal identifiers (this follows the automated system not being authorised to collect those personal identifiers itself).

36.               The note at the end of subsection 166(1) provides that a person might be taken to have complied with subsection 166(1) under subsection 167(3) or (4) or might not be required to comply under section 168 or 169.

Who may use an authorised system

37.               Subsection 166(2) specifies which citizens and non-citizens are eligible to use the automated system in order to satisfy the relevant evidentiary requirements under subsection 166(1). More specifically, it states that a person is eligible to use the system if:

·          that person holds a passport of a kind specified in a determination under new section 175A (“eligible passport”); and

·          that person chooses to be processed by the system, instead of a clearance officer; and

·          either:

o    before that person is immigration cleared under subsection 172(1), neither the automated system nor a clearance officer requires the person to present or provide further evidence, information (other than a passenger card) or personal identifiers to a clearance officer under subsection 166(1); or

o    if the system or officer does require the person to provide such further evidence, a clearance officer determines that the person has complied with subsection 166(1).

38.               The purpose of new subsection 166(2) is to provide that, where a person has used the automated system to satisfy the evidentiary requirements under paragraphs 166(1)(a) and (b), a clearance officer can retrospectively undo that person’s previous satisfaction of subsection 166(1) requirements where that clearance officer believes it necessary to ask the person for further information (irrespective of whether the automated system successfully processed them), and that person has not yet been “immigration cleared” under subsection 172(1). An example of where this might be used includes where the automated system has incorrectly cleared a person (due to a computer error) and a clearance officer wishes to manually clear that person.

Complying with paragraphs (1)(a), (b) and (c)

39.               The content of previous subsection 166(2) is reproduced in new subsection 166(3) which provides that subject to section 167, a person is to comply with paragraphs 166(1)(a) and (b) in a prescribed way. Section 167 makes provision for a range of places at which persons entering Australia may comply with section 166 and specifies time constraints for such compliance.

40.               The purpose of new subsection 166(3) (like previous subsection 166(2)) is to provide for a power to prescribe in the regulations how certain persons are required to comply with section 166. For example, the regulations currently prescribe that some classes of special purpose visa holders must comply with the requirements of section 166 differently than others.

41.               The content of previous subsection 166(3) is reproduced in new subsection 166(4) which provides that a person is taken to have complied with subparagraph 166(1)(a)(i) if a clearance officer knows or reasonably believes that the person is an Australian citizen.

42.               The purpose of new subsection 166(4) (like previous subsection 166(3)) is to provide that a clearance officer may deem a person to have complied with subparagraph 166(1)(a)(i), where that person does not have any evidence of their Australian citizenship with them at the time, but the clearance officer is reasonably satisfied that the person is an Australian citizen. An example of where this might be used is when a person in immigration clearance has misplaced their Australian passport and other evidence of Australian citizenship en route to Australia.

43.               New subsection 166(5) provides a list of those “personal identifiers” able to be ‘presented’ and ‘provided’ under paragraphs 166(1)(a) and (c) respectively. This new provision preserves the policy intention of previous subsection 166(1AA). The purpose of this exhaustive list is to make it clear that, despite the definition of “personal identifier” in subsection 5A(1), clearance officers are only able to request certain personal identifiers for the purposes of subsection 166(1).

44.               The note after subsection 166(5) notifies the reader that Division 13AB of Part 2 of the Migration Act provides further restrictions on the provision (not ‘presenting’) of personal identifiers with respect to minors and incapable persons.

Complying with paragraph 166(1)(c)

45.               Previous subsection 166(1A) provided that paragraph 166(1)(aa) did not limit a clearance officer's power under subparagraph 166(1)(a)(ii) to require a non-citizen to show the officer evidence (other than a personal identifier) of the non-citizen's identity. The purpose of this provision was to provide that, despite the power of clearance officers to request personal identifiers from non-citizens under paragraph 166(1)(aa), this did not lessen the ability of those clearance officers to require evidence from non-citizens under subparagraph 166(1)(a)(ii) where that evidence is not a “personal identifier”.

46.               New subsection 166(6) provides that paragraph 166(1)(c) does not limit a clearance authority’s power under subparagraph (1)(a)(ii) to require a non-citizen to present to the authority evidence (which might include a personal identifier) of the non-citizen’s identity. This new subsection 166(6) differs from its predecessor subsection 166(1A) as it provides that the power to request personal identifiers from non-citizens under paragraph 166(1)(c) does not affect the power to request evidence, which may include personal identifiers , from non-citizens under subparagraph 166(1)(a)(ii).

47.               The purpose of new subsection 166(6) is to preserve the policy intention of subsection 166(1A), but also to provide that the evidence presented by non-citizens 166(1)(a)(ii) may include “personal identifiers”. This is necessary as travel documents such as passports contain “personal identifiers” within the meaning of the Migration Act, for example, photographs and signatures.

48.               The content of previous subsection 166(1B) is reproduced in new subsection 166(7), to preserve the general rule for how non-citizens are to comply with a requirement to provide (rather than simply present) a personal identifier. The general rule is that the non-citizen must comply with a requirement to provide a personal identifier in paragraph 166(1)(c) (previously paragraph 166(1)(aa)) by way of one or more identification tests carried out by an authorised officer. This applies irrespective of whether an authorised officer or a clearance officer actually requires the non-citizen to provide one or more personal identifiers. For example, it may be a clearance officer, who is not appointed as an authorised officer for the purposes of carrying out identification tests, who actually requires the non-citizen to provide one or more personal identifiers under new paragraph 166(1)(c). However, the identification test itself must be carried out by an authorised officer.

49.               The content of the previous note following subsection 166(1B) is reproduced in a new note after new subsection 166(7). This new note reflects section 5D in Part 1 of the Migration Act, and makes it clear that if the instrument of authorisation appointing an authorised officer specifies which type(s) of identification tests that authorised officer can carry out, then that authorised officer can only carry out those specified types of identification tests.

50.               The content of previous subsection 166(1C) is reproduced in new subsection 166(8) to provide that subsection 166(7) does not apply, in circumstances prescribed for the purposes of subsection 166(8), if the personal identifier is of a prescribed type and the non-citizen provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer and complies with any further requirements that are prescribed relating to the provision of the personal identifier.

51.               The content of previous subsection 166(1C) is reproduced in new subsection 166(8) to provide an exception to the general rule set out in new subsection 166(7) (previously subsection 166(1B)). It operates to provide that, in the prescribed circumstances, the non-citizen can comply with the requirement to provide a prescribed personal identifier other than by way of an identification test carried out by an authorised officer.

52.               New subsection 166(8) provides that the relevant non-citizen must also comply with any further requirements prescribed in regulations in relation to the provision of the personal identifier. For example, these may include requirements as to when, where and how such non-citizens must provide their personal identifiers.

Item 10        Paragraph 167(3)(b)

53.               This item amends paragraph 167(3)(b) in Division 5 of the Part 2 of the Migration Act by replacing “(aa) and (b)” with “(b) and (c)”.

54.               Section 167 makes provision for a range of places at which persons entering Australia may comply with section 166 and specifies time constraints for such compliance. Subsection 167(3) provides that if a person proposes to enter Australia and, with the permission of a clearance officer, complies with subsection 166(1) on the vessel on which the person travels to Australia and before entering Australia, that person is taken to have complied with section 166.

55.               This amendment is consequential to the amendment to section 166 made by Item 9.  The purpose of this amendment is to replace the references to previous paragraphs 166(1)(aa) and (b) with the equivalent new provisions - paragraphs 166(1)(b) and (c).

Item 11        Paragraphs 170(1)(a) and (b)

56.               This item amends section 170 in Division 5 of Part 2 of the Migration Act by replacing paragraphs 170(1)(a) and (b) with new paragraphs 170(1)(a) and (b).

57.               In general terms, section 170 allows a clearance officer to require a person who travels, or appears to intend to travel, on an overseas vessel from a port to another port (in Australia) to give evidence of identity or other required information. This section applies to both non-citizens and citizens.

58.               More specifically, former paragraph 170(1)(a) provided that, where required, such a person must ‘show’ the officer prescribed evidence of the person's identity. New paragraph 170(1)(a) provides that, where required, the person must ‘present’ to the officer or an authorised system prescribed evidence (which might include a personal identifier referred to in subsection (2A)) of the person’s identity. In both instances, the terms “show” and “present” are used to clarify that this provision authorises only the verification of that evidence and not the collection or storage of it. The term “provide” is used in reference to “personal identifiers” elsewhere in the Migration Act to mean for the purposes of collection.

59.               New paragraph 170(1)(a) makes provision for the person to present this evidence to an ‘authorised system’, in addition to an officer. Item 1 of this Schedule inserts the definition of ‘authorised system’ in subsection 5(1) of the Migration Act. This definition provides that the term ‘authorised system’ means an automated system authorised in writing by the Minister or the Secretary for the purposes of that provision. New paragraph 170(1)(a) also provides that the relevant prescribed evidence may include those types of “personal identifiers” specified in subsection 170(2A).

60.               The purpose of new paragraph 170(1)(a) is to allow an automated system to replace the role of a clearance officer with regard to the verification of the evidence (that is, not collection) under that paragraph, for eligible citizens and non-citizens, and to allow those persons to present evidence to an officer or authorised system which may contain such personal identifiers. For example, passports will always contain a photograph and signature of the person.

61.               Former paragraph 170(1)(b) provided that a person subject to subsection 170(1) must give the officer any information required to be given by the Migration Act or regulations. New paragraph 170(1)(b) provides that such a person must provide to the officer or system any information (other than a personal identifier) required by the Migration Act or regulations.

62.                 New paragraph 170(1)(b) requires these persons to provide (that is, for the purposes of collection) the relevant information to the authorised system, or to an officer. Unlike paragraph 170(1)(a), this paragraph authorises the collection of this information and provides that it must not include personal identifiers.

63.               The purpose of new paragraph 170(1)(b) is to allow an automated system to replace the role of a clearance officer with regard to the provision of further information (not including personal identifiers) under that paragraph, for those eligible citizens and non-citizens who opt to use that system.

Item 12        Subsection 170(2)

64.               This item amends subsection 170(2) in Division 5 of Part 2 of the Migration Act by replacing “clearance officer at either port or by officers at both ports” with “clearance authority at either or both ports”.

65.               In general terms, section 170 allows a clearance officer to require a person who travels, or appears to intend to travel, on an overseas vessel from a port to another port (in Australia) to give evidence of identity or other required information. This section applies to both non-citizens and citizens. Previously, subsection 170(2) provided that, where prescribed circumstances exist, a non-citizen who travels, or appears to intend to travel, on an overseas vessel from a port to another port must be required by a clearance officer at either port or by officers at both ports to provide one or more personal identifiers.

66.               Together with the amendment made by Item 13, new subsection 170(2) provides that where prescribed circumstances exist, a non-citizen who travels, or appears to intend to travel, on an overseas vessel from a port to another port must be required by a clearance authority at either or both ports to provide one or more personal identifiers referred to in subsection (2A) to a clearance officer.

67.               The purpose of this item is to make provision for the authorised system to require such persons to provide personal identifiers to clearance officers at these locations, when these persons have opted (and are eligible) to use the system to satisfy the evidentiary requirements under new subsection 170(1). The authorised system will not, itself, collect personal identifiers - only a clearance officer may do this.

Item 13        At the end of subsection 170(2)

68.               This item amends subsection 170(2) in Division 5 of Part 2 of the Migration Act by inserting “referred to in subsection (2A) to a clearance officer” at the end of that subsection.

69.               In general terms, section 170 allows a clearance officer to require a person who travels, or appears to intend to travel, on an overseas vessel from a port to another port (in Australia) to give evidence of identity or other required information. This section applies to both non-citizens and citizens.

70.               Together with the amendment made by Item 12, new subsection 170(2) provides that those persons who have opted to use the automated system to satisfy the requirements of subsection 170(1), may be directed by the authorised system to provide one or more of those personal identifiers specified in subsection 170(2A), to a clearance officer.

71.               The purpose of this item is to ensure that it is clear that the authorised system is not authorised to collect personal identifiers, but is allowed to require persons using the system to provide personal identifiers of a type specified in subsection 170(2A) to a clearance officer.

Item 14        After subsection 170(2)

72.               This item inserts new subsection 170(2AA) after subsection 170(2) in Division 5 of Part 2 of the Migration Act. 

73.               In general terms, section 170 allows a clearance officer to require a person who travels, or appears to intend to travel, on an overseas vessel from a port to another port (in Australia) to give evidence of identity or other required information. This section applies to both non-citizens and citizens.

74.               New subsection 170(2AA) specifies which citizens and non-citizens are eligible to use the automated system in order to satisfy the relevant evidentiary requirements under subsection 170(1). More specifically, it states that a person is eligible to use the system if:

·          that person holds a passport of a kind specified in a determination under new section 175A (“eligible passport”); and

·          that person chooses to be processed by the system, instead of a clearance officer; and

·          either:

o    before that person leaves the port at which the requirement is made, neither the automated system nor a clearance officer requires the person to present or provide evidence or information (other than a passenger card) or personal identifiers referred to in subsection 170(1) or subsection 170(2) to a clearance officer; or

o    if the system or officer does require the person to provide such further evidence, information or personal identifiers, a clearance officer determines that the person has complied with subsection 170(1).

75.               The purpose of new subsection 170(2AA) is to provide that, where a person has used the automated system to satisfy the requirements under subsection 170(1), a clearance officer can undo that person’s previous satisfaction of those requirements where that clearance officer believes it necessary to ask the person for further information (irrespective of whether the automated system successfully processed the person). An example of this might be where the automated system has incorrectly processed a person due to a computer error, and a clearance officer wishes to manually process that person again.

Item 15        Subsection 170(2A)

76.               This item amends subsection 170(2A) in Division 5 of Part 2 of the Migration Act by omitting “An officer must not require, for the purposes of subsection (2), a person to provide a personal identifier other than any of the following (including any of the following in digital form)” and replacing it with “Under paragraph (1)(a) and subsection (2), a person may only be required to present or provide (including in digital form) one or more of the following personal identifiers”.

77.               In general terms, section 170 allows a clearance officer to require a person who travels, or appears to intend to travel, on an overseas vessel from a port to another port (in Australia) to give evidence of identity or other required information. This section applies to both non-citizens and citizens.

78.               Previously, subsection 170(2A) provided that an officer must not require, under subsection 170(2), a person to provide a personal identifier other than those which are listed. New subsection 170(2A) provides that a person may only be required to present personal identifiers under paragraph 170(1)(a) or provide personal identifiers under subsection 170(2), of a kind listed in subsection 170(2A).

79.               The purpose of this item is to further clarify the distinction between the requirement to present, and the requirement to provide a personal identifier and to make an amendment consequential to that made by Item 11.

Item 16        Subsection 170(3)

80.               This item amends subsection 170(3) in Division 5 of Part 2 of the Migration Act by replacing “show the officer evidence (other than a personal identifier)” with “present to the officer or an authorised system evidence (which might include a personal identifier)”.

81.               In general terms, section 170 allows a clearance officer to require a person who travels, or appears to intend to travel, on an overseas vessel from a port to another port (in Australia) to give evidence of identity or other required information. This section applies to both non-citizens and citizens.

82.               Previously, subsection 170(3) provided that subsection 170(2) did not limit a clearance officer's power under paragraph 170(1)(a) to require a non-citizen to show the officer evidence (other than a personal identifier) of the non-citizen's identity. New subsection 170(3) makes provision for non-citizens to present this evidence of identity to an authorised system, in addition to a clearance officer. New subsection 170(3) includes the term ‘present’ and not “show” as the former is consistent with the how an authorised system verifies this information.

83.               This purpose of this amendment, which is consequential to the amendment made by Item 11 to paragraph 170(1)(a), is to provide consistency with the new terminology (that is, “present” as opposed to “show”) and to recognise that this evidence may be presented to an authorised system in addition to a clearance officer, and recognise that such information may include personal identifiers within the meaning of the Migration Act, as information contained in passports will often include personal identifiers, such as photographs and signatures.

Item 17        Paragraph 171(a)

84.               This item amends paragraph 171(a) in Division 5 of Part 2 of the Migration Act by replacing “showing” with “presenting”.

85.               This is amendment is consequential to the amendment made by Item 11 and ensures consistency of terminology.

Item 18        Subparagraphs 172(1)(a)(iii) and (b)(iii)

86.               This item amends subparagraphs 172(1)(a)(iii) and (b)(iii) in Division 5 of Part 2 of the Migration Act by replacing “clearance officer” with “clearance authority”.

87.               The definition of “immigration cleared” in Part 1 of the Migration Act provides that the term has the meaning given by subsection 172(1). Previously, paragraphs  172(1)(a) and (b) provided that a person is immigration cleared if, and only if:

·          that person enters Australia at a port, complies with section 166 and leaves that port with the permission of a clearance officer and otherwise than in immigration detention; or

·          enters Australia otherwise than at a port, complies with section 166 and leaves the prescribed place at which the person complied with the permission of a clearance officer and otherwise than in immigration detention.

88.               New paragraphs 172(1)(a) and (b) preserve the previous operation of the provision but provide that a “clearance authority” may grant the relevant permission. A definition of “clearance authority” is inserted into section 165 of the Migration Act by Item 7 of this Schedule, to mean a clearance officer or an “authorised system”. A definition of the term “authorised system” is inserted into subsection 5(1) of the Migration Act by Item 1 of this Schedule, to mean an automated system authorised in writing by the Minister or the Secretary for the purposes of the provision in which the term is used.

89.               The purpose of this item is to provide an authorised system with equivalent powers to immigration clear people under subsection 172(1) as a clearance officer. This allows persons to be immigration cleared by an automated system without the need for a clearance officer to be present (both at a port and at relevant prescribed places).

90.               The note following this item inserts a heading to subsection 172(1): “When a person is immigration cleared”.

Item 19        Paragraph 172(2)(a)

91.               This item amends paragraph 172(2)(a) in Division 5 of Part 2 of the Migration Act by inserting “or at an authorised system” after “an officer”.

92.                Previously, subsection 172(2) provided that a person is taken to be in immigration clearance, for the purposes of the Migration Act, if that person is with an officer for the purposes of section 166 and has not been refused immigration clearance. New subsection 172(2) provides that a person is taken to be in immigration clearance, for the purposes of the Migration Act, if that person is with an officer or at an authorised system, for the purposes of section 166, and has not been refused immigration clearance.

93.               The purpose of this amendment is to expand the definition of when a person is “in immigration clearance” to mean when, for the purposes of section 166, a person is with an officer or at an authorised system.  This amendment is consistent with the amendments made to section 166 by Item 9, which allow for a person to go through the immigration clearance process by being processed by an authorised system, or by a clearance officer.

94.               The note following this item inserts a heading to subsection 172(2): “When a person is in immigration clearance”.

Item 20        Paragraph 172(3)(b)

95.               This item repeals paragraph 172(3)(b) in Division 5 of Part 2 of the Migration Act and replaces it with new paragraph 172(3)(b).

96.               Subsection 172(3) makes provision for when a person is taken to have been refused immigration clearance under the Migration Act. Previously, subsection 172(3) provided that a person is refused immigration clearance if, in general terms, that person is with a clearance officer for the purposes of section 166 and either has his or her visa cancelled or refuses, or is unable, to comply with a requirement under subsection 166(1) to show or provide evidence, information or personal identifiers to a clearance officer.

97.               New subsection 172(3) preserves the operation of the previous subsection but also provides for consistency of terminology by using the term “present” in subparagraph 172(3)(b)(ii) instead of “show” following the amendment made by Item 9 of this Schedule to section 166. New subsection 172(3) also contains updated cross-references consequential to the Item 9 (which inserts new paragraphs 166(1)(b) and (c)).

98.               The amendment preserves the intention that only a clearance officer can refuse immigration clearance.  An authorised system will only be able to clear persons for immigration clearance.  If the case may be one for refusal, the authorised system will refer the person to a clearance officer for processing. 

99.               The notes following this item insert headings to subsection 172(3) and (4).

Item 21        Paragraphs 175(1)(a) and (b)

100.           This item repeals paragraphs 175(1)(a) and (b) in Division 5 of Part 2 of the Migration Act and replaces them with new paragraphs 175(1)(a) and (b).

101.           In broad terms, previous subsection 175(1) provided that a clearance officer may require a person departing Australia to, for citizens, show the officer that person's Australian passport or prescribed other evidence of the person's identity and Australian citizenship or, for non-citizens, evidence of the person's identity and permission to remain in Australia. Subsection 175(1) also allowed the clearance officer to require the persons (whether or not a citizen) to give any information required to be given by the Migration Act or regulations.

102.           New paragraph 175(1)(a) provides that, where required by a clearance officer, departing persons must “present” certain evidence to the officer or an authorised system, and expressly provides that this evidence may include a personal identifier listed in subsection 175(2A). The purpose of this amendment is to provide consistency of terminology following the amendments made by Item 9 of the Schedule to section 166 and to recognise that such evidence provided by departing persons will often (if not always) include personal identifiers listed in subsection 175(2A). It also allows the evidence to be presented to an authorised system or to a clearance officer. As in Item 9, the term “present” (rather than “provide”) is used to reflect that the relevant information is for verification purposes only and is not retained or collected for the purposes of storage.

103.           New paragraph 175(1)(b) provides that, where required by a clearance officer, departing persons must also provide to the officer or an authorised system any information (other than a personal identifier) required by the Migration Act or regulations. The purpose of new paragraph 175(1)(b) is to provide consistency with other amendments made by items in this Schedule (such as Item 9) by using the word “provide”, instead of “give”, to indicate that the relevant information is to be produced for the purposes of collection and storage (not just verification). It is also made clear in this item that the information collected under new paragraph 175(1)(b) may not be personal identifiers within the meaning of the Migration Act. This would be incompatible with the principle that personal identifiers may only be collected by officers and not an authorised system. The amendment also ensures that the information can be provided to a clearance officer or to an authorised system.

104.           The notes following this item alter the heading to section 175 (to reflect new terminology) and insert a heading to subsection 175(1).

Item 22        Subsection 175(2)

105.           This item amends subsection 175(2) in Division 5 of Part 2 of the Migration Act by replacing “clearance officer” with “clearance authority”.

106.           Previously, subsection 175(2) provided that, if prescribed circumstances exist, a non-citizen who is on board, or about to board, a vessel that is to leave Australia (whether or not after calling at places in Australia) must be required by a clearance officer to provide one or more personal identifiers.

107.           Together with Item 23 of this Schedule, new subsection 175(2) preserves the intention of this subsection but provides that the relevant request may be from a “clearance authority”, and may require the relevant person to provide personal identifiers of a type specified in subsection 175(2A) to a clearance officer. A definition of “clearance authority” is inserted into section 165 of the Migration Act by item 7 of this Schedule to mean a clearance officer or an “authorised system”. A definition of “automated system” is inserted into subsection 5(1) of the Migration Act by Item 1 of this Schedule to mean an automated system authorised in writing by the Minister or the Secretary for the purposes of that provision. Subsection 175(2A) specifies those types of personal identifiers capable of being collected under subsection 175(2).

108.           The purpose of this item (and Item 23) is to provide for an authorised system to make such a request, and provide that the collection of personal identifiers of a specified type must only be done by a clearance officer (that is, the automated system may issue the request but may not do the collecting as this would be incompatible with the principle that automated system are not to collect personal identifiers).

109.           The note following this item inserts a heading to subsection 175(2).

Item 23        At the end of subsection 175(2)

110.           This item amends subsection 175(2) in Division 5 of Part 2 of the Migration Act by adding “referred to in subsection (2A) to a clearance officer” at the end of that subsection.

111.           Previously, subsection 175(2) provided that, if prescribed circumstances exist, a non-citizen who is on board, or about to board, a vessel that is to leave Australia (whether or not after calling at places in Australia) must be required by a clearance officer to provide one or more personal identifiers.

112.           Together with Item 22 of this Schedule, new subsection 175(2) preserves the intention of this subsection but clarifies that the personal identifiers must be provided to a clearance officer (not to an authorised system, which cannot collect personal identifiers) and must be of a type specified in subsection 175(2A).

Item 24        After subsection 175(2)

113.           This item inserts new subsection 175(2AA) after subsection 175(2) in Division 5 of Part 2 of the Migration Act.

114.           Following the amendment made by Item 21, new paragraph 175(1)(a) provides, in general terms, that departing citizens and non-citizens may satisfy the respective evidentiary requirements under that paragraph by presenting the required evidence to an officer or “authorised system”. New paragraph 175(1)(b) provides that these persons must also provide to the officer or an authorised system any information (other than a personal identifier) required by the Migration Act or regulations. A definition of “authorised system” is inserted into subsection 5(1) of the Migration Act by Item 1 of this Schedule to mean an automated system authorised in writing by the Minister or the Secretary for the purposes of the provision in which the term is used.

115.           New subsection 175(2AA) specifies which citizens and non-citizens are eligible to use the automated system in order to satisfy the relevant evidentiary requirements under subsection 175(1). More specifically, it states that a person is eligible to use the system if:

·          that person holds a passport of a kind specified in a determination under new section 175A (“eligible passport”); and

·          that person chooses to be processed by the system, instead of a clearance officer; and

·          either:

o    before the relevant vessel leaves Australia, neither an automated system nor a clearance officer requires the person to present or provide further evidence, information (other than a passenger card) or personal identifiers to a clearance officer under subsections 175(1) or (2); or

o    if the automated system or officer does require the person to provide such further evidence, information or personal identifiers, a clearance officer determines that the person has complied with subsection 175(1).

116.           The purpose of new subsection 175(2AA) is to provide that, where a person has used the automated system to satisfy the evidentiary requirements under paragraph 175(1), a clearance officer can undo that person’s previous satisfaction of the requirements subsection 175(1) where that clearance officer believes it necessary to ask the person for further information (irrespective of whether the automated system successfully processed the person), provided the vessel has not yet left Australia. An example might be where the automated system has incorrectly processed a person due to a computer error, and a clearance officer wishes to manually process that person again.

Item 25        Subsection 175(2A)

117.           This item amends subsection 175(2A) in Division 5 of Part 2 of the Migration Act by replacing the words “an officer must not require, for the purposes of subsection (2), a person to provide a personal identifier other than any of the following (including any of the following in digital form)” with “Under paragraph (1)(a) and subsection (2), a person may only be required to present or provide (including in digital form) one or more of the following personal identifiers”.

118.           The purpose of this item is to reflect that personal identifiers may now be presented (that is, not for the purposes of collection) under paragraph 175(1)(a), in addition to them being provided (that is, for the purposes of collection) under subsection 175(2). It also reflects the ability of an authorised system to require that a person provide or present personal identifiers (however the authorised system cannot collect the personal identifiers - only a clearance officer may do this).

119.           The note following this item inserts a heading to subsection 175(2A).

Item 26        Subsection 175(3)

120.           This item amends subsection 175(3) in Division 5 of Part 2 of the Migration Act by replacing the words “show the officer evidence (other than a personal identifier)” with “present to the officer or an authorised system evidence (which might include a personal identifier)”.

121.           Previously, subsection 175(3) provided that subsection 175(2) did not limit a clearance officer's power under subparagraph 175(1)(a)(ii) to require a non-citizen to show the officer evidence (other than a personal identifier) of the non-citizen's identity. New subsection 175(3) makes provision for non-citizens to present this evidence of identity to an authorised system, in addition to a clearance officer. New subsection 175(3) includes the term ‘present’ instead of “show” as the former term follows the amendment made by Item 21 and is consistent with how an authorised system verifies this information. Finally, new subsection 175(3) clarifies that evidence presented under subparagraph 175(1)(a)(ii) may be “personal identifiers” for the purpose of the Migration Act.

122.           The purpose of this amendment, which is consequential to the amendment made by Item 21 to paragraphs 175(1)(a) and (b), is to provide consistency with the new terminology (that is, “present” as opposed to “show”) and to recognise that this evidence may be presented to an authorised system in addition to a clearance officer, and may include personal identifiers within the meaning of the Migration Act. The latter is necessary as a high proportion of evidence presented will contain personal identifiers (for example, a photograph or signature in a person’s passport).

Item 27        At the end of Division 5 of Part 2

123.           This item inserts new section 175A at the end of Division 5 of Part 2 of the Migration Act.

124.           New section 175A provides that, for the purposes of Division 5, the Minister or Secretary may, by legislative instrument, determine that a specified kind of passport is an eligible passport. This item follows the amendment made by Item 8 of this Schedule which provides that an “eligible passport” means a passport of a kind specified in a determination under section 175A.

125.           The purpose of this item is to provide a mechanism in the legislation for determining which passports are eligible for use with an authorised system. New section 175A expressly provides that any such instrument approving a passport as such is a legislative instrument for the purposes of the Legislative Instruments Act 2003 .

Item 28        Paragraphs 188(1)(a) and (b)

126.           This item amends paragraphs 188(1)(a) and (b) in Subdivision A of Division 7 of Part 2 of the Migration Act by replacing the words “show the officer evidence” with “present to the officer evidence (which might include a personal identifier referred to in subsection (4A))”.

127.           Previously, subsection 188(1) provided that an officer may require a person whom the officer knows or reasonably suspects is a non-citizen to show the officer evidence of being a lawful non-citizen or of identity. New subsection 188(1) preserves the operation of the provision but expressly provides that the relevant evidence may include any one or more of the personal identifiers listed in subsection 188(4A). New subsection 188(1) also provides that the relevant evidence must be ‘presented’ as opposed to ‘shown’.

128.           The purpose of this item is provide consistency of terminology and to clarify that the evidence required under subsection 188(1) may include personal identifiers. For example, evidence of identity such as a drivers license or passport will contain a signature and photograph of the relevant person. The references to “show” are replaced with “present” to ensure that the language is consistent with other provisions amended by this Schedule such as new subsection 166(1) (Item 9).

129.           The notes following this item insert headings to subsection 188(1) and (4).

Item 29        At the end of subsection 188(4)

130.           This item amends subsection 188(4) in Subdivision A of Division 7 of Part 2 of the Migration Act by inserting “referred to in subsection (4A) to an officer” at the end of that subsection.

131.           The purpose of this item is to clarify that the officer may only require a person to present personal identifiers of a type listed in subsection 188(4A) of the Migration Act.

Item 30        Subsection 188(4A)

132.           This item amends subsection 188(4A) in Subdivision A of Division 7 of Part 2 of the Migration Act by replacing “show the officer evidence (other than a personal identifier)” with “present to the officer evidence (which might include a personal identifier)”.

133.           Following the amendment made by Item 28, new subsection 188(1) provides that an officer may require a person, whom the officer knows or reasonably suspects is a non-citizen, to present evidence (which may be a personal identifier referred to in subsection 188(4A)) of being a lawful non-citizen or of identity.

134.           Previously, subsection 188(4A) provided that an officer must not require, for the purposes of subsection 188(4), a person to provide a personal identifier other than those specified in that subsection. New subsection 188(4A) provides that, for the purposes of new subsections 188(1) and (4), a person may only be required to present (subsection 188(1)) or provide (subsection 188(4)) one or more of those types of personal identifiers listed.

135.           This item ensures that only those types of personal identifiers listed in subsection 188(4A) may be required to be presented under subsection 188(1).

Item 31        Subsection 188(5)

136.           This item amends subsection 188(5) in Subdivision A of Division 7 of Part 2 of the Migration Act by replacing “show the officer evidence (other than a personal identifier)” with “present to the officer evidence (which might include a personal identifier)”.

137.           Following the amendment made by Item 28, new subsection 188(1) provides that an officer may require a person, whom the officer knows or reasonably suspects is a non-citizen, to present evidence (which may be a personal identifier referred to in subsection 188(4A)) of being a lawful non-citizen or of identity.

138.           Previously, subsection 188(5) provided that subsection 188(4) does not limit the officer's power under subsection 188(1) to require the person to show the officer evidence (other than a personal identifier) of the person's identity or evidence of the person being a lawful non-citizen. New subsection 188(5) provides that subsection 188(4) does not limit the officer's power under subsection 188(1) to require the person to present to the officer evidence (which might include a personal identifier) of the person's identity or evidence of the person being a lawful non-citizen.

139.           The purpose of this item is to ensure consistency of terminology (“present” rather than “show”) and to recognise that evidence presented under subsection 188(1) may include personal identifiers. For example, presenting evidence of identity and of being a lawful non-citizen may include showing an officer a passport containing a visa, which also contains personal identifiers such as a photograph and signature.

Item 32        Subparagraphs 190(1)(b)(ii) and (iii)

140.           This item repeals subparagraphs 190(1)(b)(ii) and (iii) in Subdivision A of Division 7 of Part 2 of the Migration Act and replaces them with new subparagraphs 190(1)(b)(ii), (iii) and (iv).

141.           Subsection 189(1) provides that an officer must detain a person where that person is in the migration zone (other than an excised offshore place) and knows or reasonably suspects that the person is an unlawful non-citizen. Previously, subsection 190(1) provided that, for the purposes of section 189, an officer suspects on reasonable grounds that a person in Australia is an unlawful non-citizen if, but not only if, the officer knows, or suspects on reasonable grounds, that the person was required to comply with section 166 and, among other things:

·          went to a clearance officer but was not able to show, or otherwise did not show, evidence required by section 166 to be shown;

·          if a non-citizen, went to a clearance officer but was not able to comply with, or did not otherwise comply with, any requirement of the officer under section 166 to provide one or more personal identifiers;

·          if a non-citizen, went to a clearance officer but was not able to give, or otherwise did not give, information required by section 166 to be given.

142.           New subsection 190(1) provides that, for the purposes of section 189, an officer suspects on reasonable grounds that a person in Australia is an unlawful non-citizen if, but not only if, the officer knows, or suspects on reasonable grounds, that the person was required to comply with section 166 and, among other things:

·          went to a clearance authority but was not able to present, or otherwise did not present, evidence required by section 166 to be presented;

·          if a non citizen—went to a clearance authority but was not able to provide, or otherwise did not provide, information required by section 166 to be provided;

·          if a non citizen—went to a clearance officer but was not able to comply with, or did not otherwise comply with, any requirement referred to in section 166 to provide one or more personal identifiers to the clearance officer.

143.           The amendments made by this item are consequential to those made to section 166 of the Migration Act by Item 9 of this Schedule. In particular, the amendments indicate that a person may be immigration cleared by an authorised system rather than by a clearance officer. The amendments also ensure consistency of expression with the terminology used in section 166, as amended by Item 9, replacing “show” with “present”.

Item 33        Subparagraph 191(1)(c)(i)

144.           This item amends subparagraph 191(1)(c)(i) in Subdivision A of Division 7 of Part 2 of the Migration Act by replacing “shows an officer” with “presents to a clearance officer”.

145.           This item is consequential to the amendments made to section 166 of the Migration Act by Item 9 of this Schedule, and ensures consistency of terminology.

Item 34        Subsection 258C(1)

146.           This item amends subparagraph 258C(1) in Division 13 of Part 2 of the Migration Act by replacing “166(1C)” with “166(8)”.

147.           Item 9 of this Schedule repeals section 166 and replaces it with new section 166.  New subsection 166(8) maintains the operation of existing subsection 166(1C).

148.           This item is a consequential amendment and reflects that changes made to section 166 by Item 9.

Item 35        Application

149.           This item provides that the amendments to the Migration Act made by this Schedule apply in relation to the following persons on or after the commencement of this item:

·          persons who enter Australia;

·          persons who go outside the migration zone;

·          persons who travel, or appear to intend to travel, from a port; and

·          persons who are on board, or about to board, vessels that are to leave Australia (whether or not after calling at places in Australia);

150.           The table in clause 2 of this Act provides that the amendments contained in this Schedule commence on a day to be fixed by Proclamation.

Item 36        Transitional-instruments

151.           This item provides for certain regulations previously made under the Migration Act to continue in force, by providing that they are taken to have been made for the purposes of the equivalent new provisions of the Migration Act (as inserted by this Schedule).

152.           Subitem 36(1) contains a table which lists provisions of the Migration Act which are repealed or amended by this Act, and the equivalent provisions of the Migration Act following the amendments made by this Schedule. It provides that regulations made under the old provisions are, on commencement of this subitem, taken to have been made under the equivalent new provisions. For example, Item 1 of the table provides that regulations made for the purposes of old paragraph 166(1)(aa) of the Migration Act, on commencement of Subitem 36(1) of this Schedule, are taken to have been made for the purposes of new paragraph 166(1)(c) (and therefore continue to be in effect after commencement).

153.           Subitem 36(2) provides that the amendment made to section 166 by Item 9 of this Schedule does not affect the continuity of those regulations made for the purposes of paragraph 166(1)(b) of the Migration Act that were in force immediately before the commencement of Subitem 36(2).

154.           Subitem 36(3) provides that, subject to Subitem 36(1), an amendment made by this Schedule does not affect the continuity of any other regulations made for the purposes of Division 5 of Part 2 of the Migration Act, or a provision of that Division, that were in force immediately before the commencement of Subitem 36(3).

155.           The purpose of Item 36 is to ensure that existing regulations do not have to be remade.

Schedule 3 - Special category visas

Migration Act 1958

Item 1          Subparagraph 32(2)(a)(i)

1.                   This item amends subparagraph 32(2)(a)(i) in Division 3 of Part 2 of the Migration Act by replacing “shown an officer” with “presented to an officer or an authorised system”.

2.                   Subsection 32(1) provides that there is a class of temporary visas to be known as special category visas. Previously, subparagraph 32(2)(a)(i) provided that a criterion for a special category visa is that the Minister is satisfied the applicant is a non-citizen who is a New Zealand citizen and holds, and has shown an officer, a New Zealand passport that is in force.

3.                   In 2001 the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 inserted new section 495A in Part 9 of the Migration Act. Subsection 495A(1) provides that the Minister may arrange for the use of computer programs to make a decision, exercise a power or obligation, or do anything else relating to a decision, power or obligation, under “designated migration law.  Subsection 495A(2) deems a decision made, or any power or obligation exercised, by a computer program to be that of the Minister. The term “designated migration law” is defined in new subsection 495A(3) to include, among other things, Subdivisions A of Division 3 of Part 2 of the Migration Act (which contains section 32).

4.                   New subparagraph 32(2)(a)(i) mirrors the previous provision but provides that, instead of the New Zealand citizen being required to “show” his or her passport to “an officer”, they are required to “present” his or her passport to “an officer or an authorised system”.

5.                   The purpose of this amendment is to provide eligible New Zealand citizens arriving in Australia with the option to be granted a special category visa, in immigration clearance, by an authorised system (that is, a computer program), instead of by an officer. They may opt for the latter where they are eligible to do so under new subsection 32(3) (as inserted by Item 2 of this Schedule). The change in terminology from “shown” to “present” is consistent with other changes made by this Act to better reflect the verification process used by authorised systems.

Item 2          At the end of section 32

6.                   This item inserts new subsection 32(3) after subsection 32(2) in Division 3 of Part 2 of the Migration Act.

7.                   In 2001 the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 inserted section 495A in Part 9 of the Migration Act. Subsection 495A(1) provides that the Minister may arrange for the use of computer programs to make a decision, exercise a power or obligation, or do anything else relating to a decision, power or obligation, under “designated migration law”.  Subsection 495A(2) deems a decision made, or any power or obligation exercised, by a computer program to be that of the Minister. The term “designated migration law” is defined in new subsection 495A(3) to include, among other things, Subdivisions A of Division 3 of Part 2 of the Migration Act (which contains section 32).

8.                   Following the amendment made by Item 1 of this Schedule, new subparagraph 32(2)(a)(i) provides that a criterion for a special category visa is that the Minister, satisfied that the applicant is a non-citizen who is a New Zealand citizen and holds, and has presented to an officer or an authorised system, a New Zealand passport that is in force. That is, New Zealand citizens may satisfy this criterion for a special category visa by being processed by an authorised system (containing the relevant computer program(s) able to establish if subparagraph 32(2)(a)(i) is satisfied) rather than by an officer.

9.                   New subsection 32(3) provides which New Zealand passport holders are eligible to use the authorised system to satisfy the requirement in subparagraph 32(2)(a)(i). More specifically, new subsection 32(3) provides that a person may comply with subparagraph 32(2)(a)(i) by presenting a New Zealand passport to an authorised system only if:

·          the New Zealand passport is of a kind specified in a determination made under new section 175A (see Item 27 of Schedule 3);

·          that person opts to be processed by the authorised system instead of an officer; and

·          before that person is granted a special category visa, neither the system nor an officer requires the person to be manually processed by an officer.

10.               This item has the effect that, where a New Zealand citizen has used the automated system (containing the relevant computer program(s))to satisfy the evidentiary requirements under subparagraph 32(2)(a)(i), an officer may undo that person’s previous satisfaction of those requirements where that officer believes it necessary to require the relevant New Zealand citizen to be manually processed (that is, present his or her passport to an officer), provided the person has not yet been granted a Special Category Visa. The intention of new subsection 32(3) is also to provide that the class of New Zealand citizens eligible to use the authorised system to satisfy subparagraph 32(2)(a)(i) is the same as the class of New Zealand citizens eligible to use the authorised system to satisfy the requirements under subsection 166(1) (see Item 9 in Schedule 3). A further purpose of new subsection 32(3) is to make provision for the relevant eligible New Zealand citizens to opt not to be processed by the authorised system (that is, choose to be manually processed by an officer).

Item 3          Section 99

11.               This item amends section 99 in Subdivision C of Division 3 of Part 2 of the Migration Act by replacing “gives, causes to be given or that is given on his or her behalf to the Minister, an officer” with “gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system”.

12.               Previously, in broad terms, section 99 provided that information given by a person to an officer, or caused to be given, or given on their behalf, in relation to the person’s application for a visa, whether in writing or orally, was taken for the purposes of sections 101 (questions on a visa application form to be correct), 102 (passenger card information to be correct), 104 (changes in circumstances to be notified) and 105 (particulars of incorrect answers to be given if applicant becomes aware of incorrect answer), to be an answer to a question on the visa application form.

13.               New section 99 preserves the operation and extends its application to include information provided to an authorised system, in addition to information provided to the Minister, an officer, or a person or Tribunal reviewing a decision under the Migration Act in relation to that non-citizen's application.

14.               The purpose of this item is to ensure that those visas which are applied for using, and granted by, an authorised system, are liable to the same cancellation provisions as those visas which are applied for, and granted, using more traditional means. This item also provides for consistency of terminology following the other amendments made by this Schedule, and in particular, those made by Schedule 2.

Item 4          Section 99

15.               This item amends section 99 in Subdivision C of Division 3 of Part 2 of the Migration Act by inserting “or provided” after “information is given”.

16.               The purpose of this item is to preserve consistency in terminology following the other amendments made by this Schedule, and in particular, those made by Schedule 2. The term “provided” better describes how a person may convey information to an authorised system, than “given”.

Item 5          Section 100

17.               This item amends section 100 in Subdivision C of Division 3 of Part 2 of the Migration Act by replacing “gave the answer or caused the answer to be given” with “gave or provided the answer, or caused the answer to be given or provided”.

18.               The purpose of this item is to preserve consistency in terminology following the other amendments made by this Schedule, and in particular, those made by Schedule 2. The term “provided” better describes how a person may convey information to an authorised system, than “given”.

Item 6          Section 101

19.               This item amends section 101 in Subdivision C of Division 3 of Part 2 of the Migration Act by inserting “or complete” after “fill in”.

20.               The purpose of this amendment is to make provision for those visa applicants who provide the visa application form information using an authorised system, as opposed to the more traditional means such as a hard copy application form. The new terminology more accurately reflects the manner in which these applicants provide this information.

Item 7          Section 101(b)

21.               This item amends paragraph 101(b) in Subdivision C of Division 3 of Part 2 of the Migration Act by inserting “or provided” after “given”.

22.               The purpose of this item is to preserve consistency in terminology following the other amendments made by this Schedule, and in particular, those made by Schedule 2. The term “provided” better describes how a person may convey information to an authorised system, than “given”.

Item 8          Section 103

23.               This item amends section 103 in Subdivision C of Division 3 of Part 2 of the Migration Act by replacing “give an officer” with “give, present or provide to an officer, an authorised system”.

24.               Previously, section 103 provided that a non-citizen must not give an officer, the Minister, or a tribunal performing a function or purpose under the Migration Act, a bogus document or cause such a document to be so given. Together with Item 9 of this Schedule, new section 103 preserves the operation of the section but extends the operation of the provision to include where a person “presents” or “provides” information to an authorised system.

25.               Together with Item 9 of this Schedule, the purpose of this item is to extend the application of the provision to cover visas which are applied for using an automated system, and to preserve consistency in terminology following the other amendments made by this Schedule, and in particular, those made by Schedule 2.

Item 9          At the end of section 103

26.               This item amends section 103 in Subdivision C of Division 3 of Part 2 of the Migration Act by inserting “, presented or provided” at the end of that section.

27.               Previously, section 103 provided that a non-citizen must not give an officer, the Minister, or a tribunal performing a function or purpose under the Migration Act, a bogus document or cause such a document to be so given. Together with Item 8 of this Schedule, new section 103 preserves the operation of the section but extends the operation of the provision to include where a person “presented” or “provided” information to an authorised system.

28.               Together with Item 8 of this Schedule, the purpose of this item is to extend the application of the provision to cover visas which are applied for using an automated system, and to preserve consistency in terminology following the other amendments made by this Schedule, and in particular, those made by Schedule 2.

Item 10        Paragraph 105(1)(a)

29.               This item amends paragraph 105(1)(a) in Subdivision C of Division 3 of Part 2 of the Migration Act by inserting “or provided” after “given”.

30.               Previously, paragraph 105(1)(a) provided that where a non-citizen becomes aware that an answer given in his or her application form was incorrect when it was given, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer. New paragraph 105(1)(a) preserves the operation of the provision but extends its application to include where persons “provided” such an answer.

31.               The purpose of this item is to extend the application of the provision to cover visas which are applied for using an automated system, and to preserve consistency in terminology following the other amendments made by this Schedule, and in particular, those made by Schedule 2.

Item 11        Subsection 105(1)

32.               This item amends subsection 105(1) in Subdivision C of Division 3 of Part 2 of the Migration Act by inserting “or provided” after “given”.

33.               Previously, subsection 105(1) provided a list of circumstances involving the giving of information by non-citizens, and provided that where this information is incorrect, the  non-citizen must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer. Together with Item 10, new subsection 105(1) preserves the operation of the subsection but extends its application to include where such information is “provided”, in addition to where it was “given”.

34.               The purpose of this item is to extend the application of the provision to cover visas which are applied for using an automated system, and to preserve consistency in terminology following the other amendments made by this Schedule, and in particular, those made by Schedule 2.