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Migration Legislation Amendment Bill (No. 1) 2008

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2008

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT BILL (NO. 1) 2008

 

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Immigration and Citizenship,

Senator the Hon. Chris Evans)

 

 

 

This Explanatory Memorandum takes account of amendments made by the senate to the Bill as introduced



MIGRATION LEGISLATION AMENDMENT BILL (NO. 1) 2008

 

PURPOSE

 

The Migration Legislation Amendment Bill (No. 1) 2008 (“the Bill”) is an omnibus bill that will make a range of amendments to the Migration Act 1958 (“the Act”), the Australian Citizenship Act 2007 (“the Citizenship Act”), the Australian Citizenship (Transitionals and Consequentials) Act 2007 (“the Citizenship Transitionals Act”) and the Customs Act 1901 (“the Customs Act”) to clarify and improve the effectiveness of the Migration and Citizenship legislation and also to ensure consistency with Australia’s obligations under the United Nations Convention on the Reduction of Statelessness 1961 (“the Convention”) and the United Nations Convention Relating to the Status of Stateless Persons 1954 (“the Stateless Persons Convention”).

 

OUTLINE

 

Schedule 1 of the Bill will amend the Act to streamline the procedures for notifying parties of a decision of the Migration Review Tribunal and the Refugee Review Tribunal by, amongst other things, removing the requirement for the tribunals to “hand down” their decisions.  The Schedule will also create a new position of Deputy Principal Member for the Migration Review Tribunal.  Currently the Refugee Review Tribunal includes the position of Deputy Principal Member but the Migration Review Tribunal does not. 

 

Schedule 2 of the Bill will make a range of amendments to strengthen and improve the border protection provisions in the Act including measures to: establish an infringement notice regime as an alternative to prosecution for operators of aircraft and ships who fail to provide advance passenger and crew reports; clarify that reports must make disclosures in relation to each passenger and crew member individually and are liable to separate prosecution in relation to each individual passenger and crew that is not reported; replace the set time frames in the Act for submitting reports with a power to prescribe the time frames in the Migration Regulations 1994 ; make passengers and crew on “round trip cruises” subject to immigration clearance on their return to Australia; and clarify when a special purpose visa ceases.  

 

Schedule 3 of the Bill will make a number of minor amendments to the Act to clarify and improve certain provisions relating to visas, including amendments to give greater certainty to the immigration status and immigration clearance of non-citizen children born in Australia; amendments to ensure that a security may be imposed for compliance with visa conditions before grant and a range of other amendments to clarify the operation of certain provisions relating to bridging visas.  The Schedule also includes amendments to more effectively harmonise a number of offences in Divisions 12 and 14A of Part 2 of the Act with the Criminal Code .

 

The amendments in Schedule 4 of the Bill cover a broad range of subjects. Notably the Schedule addresses obiter remarks made by the Full Federal Court in Moore v Minister for Immigration and Citizenship [2007] FCAFC 134 (21 August 2007) that cast doubt on whether the character cancellation provisions apply to temporary and permanent transitional visas in circumstances where the visas came to be “held” rather than “granted”.  Schedule 4 to the Bill amends the Act so that the character cancellation provisions apply to all temporary and permanent transitional visas, and provides validation of all past character cancellation decisions in relation to such visas. This Schedule also includes amendments to ensure that illegal foreign fishers and environmental offenders who were previously granted a bridging visa or criminal justice visa while on remand or serving a custodial sentence can be removed from Australia. Further, the Schedule also amends the Act to provide that subject to certain requirements the Minister is not obliged to give documents to an authorised recipient if the authorised recipient is not a registered migration agent.

 

Schedule 5 to the Bill amends the Citizenship Act and the Citizenship Transitionals Act to clarify the meaning of certain provisions in the Citizenship Act and Citizenship Transitionals Act and removes inconsistencies across this legislation.  The amendments will also ensure that the Citizenship Act is consistent with Australia’s obligations in the Convention and the Stateless Persons Convention.

 

FINANCIAL IMPACT STATEMENT

 

The amendments in Schedules 1, 3, 4 will have a minimal financial impact and the amendments in Schedule 5 are expected to have a nil financial impact. 

 

With regard to the amendments in Schedule 2, it is expected that the Part 3 amendments associated with the round trip cruises and ship reporting timeframes will result in minimal costs to the Commonwealth which will be absorbed through existing funding arrangements.  

 

The new infringement notice regime that will be established by Part 2 of Schedule 2 to the Bill is expected to result in the projected revenue gains of $4.5 million in 2009-10 and $2.3 million in 2010-11.  These figures are based on the assumption that infringement notices would be able to be issued in relation to each passenger and crew not reported on, and that the amendments will commence on 1 July 2009 (therefore there are no projected revenue gains for 2007-08 and  2008-09).

 

The progressive reduction in revenue between 2009 and 2011 is based on experience with carrier reporting, when the department commenced feedback reporting to airline and shipping operators in relation to failures to report on passengers and crew in July 2007.  Airline and shipping operator reporting on passengers and crew in June 2007 was compared with May 2008 to determine the level of expected improvement.  This measured level of improvement was then extrapolated for future years.  On this basis a 40% improvement is expected in reporting in both 2008-09 and 2009-10.  It is envisaged that a 50% improvement will occur in 2010-11 due to acceleration in reporting compliance as airlines seek to avoid financial penalties.

 

The Australian Customs Service has advised that the amendments in the Bill to the Customs Act are not expected to have a substantial financial impact.



MIGRATION LEGISLATION AMENDMENT BILL (NO. 1) 2008

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1          Short title

 

1.                   Clause 1 provides that the short title by which this Act may be cited is the Migration Legislation Amendment Act (No.1) 2008 .

 

Clause 2          Commencement

 

2.                   Subclause 2(1) contains a table that sets out the commencement provisions of the Act. The table provides that:

 

 

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

 

·                      Schedules 1 and 2, Parts 1, 3 and 4 of Schedule 3, Schedule 4 and items 1A to 16 of Schedule 5 will commence on a day or days to be fixed by Proclamation. However, if any provisions do not commence within the period of 6 months beginning on the day on which the Act receives Royal Assent, they will commence on the first day after the end of that period;

 

·                      Part 2 of Schedule 3 and item 19 of Schedule 5 will commence on the day on which the Act receives Royal Assent; and

 

·                      Items 17 and 18 of Schedule 5 will commence on 1 July 2007 immediately before the commencement of items 5B and 7 of Schedule 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 .

 

3.                   The note in subclause 2(1) makes it clear that the table only relates to the provisions of this Act as originally passed by both Houses of the Parliament and assented to.  The table will not be expanded to deal with provisions inserted into this Act after it receives the Royal Assent.

 

4.                   Subclause 2(2) provides that column 3 of the table in subclause 2(1) is for additional information that may be included in any published version of this Act but which is not part of this Act (ie: the actual date of commencement of the provisions).

 

Clause 3          Schedule(s)

 

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

 



SCHEDULE 1 - Amendments relating to merits review

 

Migration Act 1958

 

Item 1              Section 337

 

6.                   This item, together with items 2 to 5 and 14 to 18 in this Schedule, concerns the creation of a new Deputy Principal Member position for the Migration Review Tribunal (“the MRT”).

 

7.                   The item inserts a definition of “Deputy Principal Member” in section 337 of the Migration Act 1958 (“the Act”).  It provides, in effect, that for the purposes of Part 5 of the Act the term “Deputy Principal Member” means the Deputy Principal Member of the MRT.

 

Item 2             Subsections 354(2) and (3)

 

8.                   This item amends section 354 of the Act by substituting new subsections 354(2) and (3). 

 

9.                   Subsection 354(1) of the Act provides that for a review by the MRT, it shall be constituted by one, two or three members in accordance with a direction given under subsection 354(2).  Currently, subsection 354(2) provides that the Principal Member, or a Senior Member acting under guidelines, may give a written direction about who is to constitute the MRT for a particular review.  New subsection 354(2) will extend this to also allow for the Deputy Principal Member acting in accordance with guidelines to give a written direction about who is to constitute the MRT for a particular review.

 

10.               Currently, subsection 354(3) provides that the Principal Member may give written guidelines to Senior Members for giving directions about who is to constitute the MRT for a particular review.  New subsection 354(3) will extend this, so that the Principal Member may also give written guidelines to the Deputy Principal Member for giving directions about who is to constitute the MRT for a particular review.  

 

Item 3             After subsection 357(2)

 

11.               This item inserts new subsection 357(2A) in section 357 of the Act.

 

12.               Section 357 provides for who shall preside on the MRT for the purposes of a review when the Tribunal is constituted by two or three members.

 

13.               New subsection 357(2A) provides that if the Tribunal constituted for a review does not include the Principal Member but includes the Deputy Principal Member, the Deputy Principal Member will preside at the review. 

 

 

 

Item 4             Paragraph 357(3)(a)

 

14.               This item amends paragraph 357(3)(a) of the Act by inserting the words “or the Deputy Principal Member” after the words “Principal Member”.

 

15.               Subsection 357(3) provides for when a Senior Member shall preside on the MRT for the purpose of a review when the Tribunal is constituted by two or three members.  Currently, the subsection provides that in such circumstance if the Tribunal as constituted, does not include the Principal Member but includes only one Senior Member, the Senior Member shall preside.

 

16.               The effect of this amendment to paragraph 357(3)(a) is that the Senior Member will only preside in such circumstance if the Tribunal, as constituted, does not include the Principal Member “or the Deputy Principal Member”.

 

Item 5             Subsection 357(4)

 

17.               This item makes a minor technical amendment consequential to the amendment in item 3 of this Schedule by replacing the words “neither subsection (2) nor (3) applies” in subsection 357(4) of the Act with the words “none of subsections (2), (2A) and (3) applies”.

 

18.               Currently, subsection 357(4) provides that if the circumstances in subsections 357(2) and 357(3) do not apply, the Principal Member shall designate one of the members of the Tribunal as constituted for the review as the presiding member.

 

19.               The effect of this amendment is that the requirement on the Principal Member to designate a presiding member under this subsection will only operate if subsections (2) and (3) and new subsection (2A) do not apply.

 

Item 6             After subsection 368(1)

 

20.               This item relates to the amendment in item 7 of this Schedule which will remove the requirement in the Act to “hand down” decisions of the MRT and replace the existing procedures for notifying the parties of a Tribunal decision with a simpler procedure.

 

21.               The item will insert new subsection 368(2) in section 368 of the Act.

 

22.               Subject to certain restrictions on disclosure contained in paragraphs 375A(2)(b) and 376(3)(b), subsection 368(1) of the Act requires the MRT to prepare a written statement of its decision on a review setting out the decision, the reasons for the decision, the findings on material questions of fact and referring to the evidence and other material on which the findings are based.

 

23.               New subsection 368(2) will provide that a decision of the MRT, other than an oral decision, is taken to have been made on the date of the written statement prepared under subsection 368(1) of the Act.  Currently, subsection 368B(4) provides, in effect, that in cases where a decision of the MRT is to be handed down, the date of the decision is the date the decision is handed down.  As existing section 368B and the handing down requirement is being removed (item 7), it is necessary to insert a provision - new subsection 368(2) - which specifies a date for when an MRT review decision is taken to have been made. 

 

Item 7             Sections 368A to 368C

 

24.               This item will remove the requirement in the Act to hand down decisions of the MRT and replace the existing procedures for notifying the parties of a Tribunal decision with a simpler procedure.

 

25.               The item will repeal existing sections 368A, 368B and 368C of the Act which set out the current process for handing down review decisions of the MRT and notifying the parties of the decision. 

 

26.               In general terms, the current process requires the MRT to invite a review applicant and the Secretary to be present when a decision is to be handed down (although there is no requirement for them to attend) and the Principal Member or other authorised person by the Principal Member, conducts the handing down by reading the outcome of the decision.  The date of the decision is the date the decision is handed down.  If the applicant or their representative is not present at the handing down, the Tribunal must notify the applicant by giving them a copy of the written statement prepared under subsection 368(1), within 14 days after the day on which the decision is handed down.  Section 368C provides in effect that applicants are taken to be notified of a decision when their representatives are notified of the decision.

 

27.               In addition to repealing existing sections 368A to 368C, this item will also insert new section 368A into the Act, which sets out the procedure for notifying the parties of an MRT decision on a review where the decision is not given orally.  New subsection 368A(1) provides that the MRT must notify the applicant by “giving” the applicant a copy of the written statement prepared under subsection 368(1) of the Act within 14 days after the day on which the decision is taken to have been made (see item 6 above).  The MRT must give a copy of the written statement to the applicant by one of the methods specified in section 379A of the Act.  That is, by handing it to the recipient, or to another person apparently at least 16 and living or working at the last residential or business address provided by the recipient in connection with the review.  Alternatively the MRT can give the document to the recipient by prepaid post or other prepaid means, by fax, e-mail or other electronic means, to the last contact details provided to the MRT by the recipient in connection with the review.  Depending on the method used, a statement “given” within 14 days may or may not also be received within that time.

 

28.               New subsection 368A(2) requires that a copy of the written statement must also be given to the Secretary by one of the methods specified in section 379B of the Act.  That is, by handing it to the Secretary or an authorised officer or by post or other means or by fax, e-mail or other electronic means, to the last contact details notified to the MRT in writing by the Secretary for the purposes in relation to review applications.  Depending on the method used, a statement “given” within 14 days may or may not also be received within that time.

 

29.               New subsection 368A(3) provides that where the MRT fails to comply with new subsections 368A(1) and 368A(2) in relation to a decision on a review, this will not affect the validity of the MRT decision.  Although failure to comply with those provisions will mean that applicants will not be validly notified, the decision itself will not be invalidated.  This new subsection is consistent with section 66 of the Act which relates to notifying applicants of a primary decision whether to grant or refuse a visa and with existing section 501G of the Act which relates to notification of a character decision.

 

Item 8             Subsection 368D(1)

 

30.               This item amends subsection 368D(1) of the Act by omitting “(1)” when it first occurs.  It is a technical amendment consequential to the amendment in item 9 of this Schedule which repeals subsection 368D(2). 

 

31.               In contrast to new section 368A (see item 7 above), subsection 368D(1) deals with cases where a decision of the MRT is orally given.  In general terms, it provides that where the MRT gives an oral decision on a review application, it must give the applicant and the Secretary a copy of the written statement prepared under subsection 368(1) within 14 days after the decision is made and that the applicant is taken to be notified of the decision on the day the decision is made.

 

32.               This item also inserts a note to inform readers that the heading to amended section 368D has changed to read “Notifying parties when Tribunal gives an oral decision”.  This will assist in clarifying that in contrast to new section 368A, new section 368D deals with notification when the decision is orally given.

 

Item 9             Subsection 368D(2)

 

33.               This item repeals subsection 368D(2) of the Act.  The subsection currently provides that where an applicant is in immigration detention because of a decision not to grant or cancel a bridging visa, the MRT must give the applicant and the Secretary a copy of the written statement prepared under subsection 368(1) within 14 days after the decision is made.  As the amendments to section 368A have the same effect as subsection 368D(2), this provision is no longer necessary and notification of applicants in these circumstances will be covered by amended section 368D.

 

Item 10           Division 8A of Part 5 (heading)

 

34.               This item makes a minor technical amendment to the current heading of Division 8A of Part 5 of the Act to reflect the inclusion of new section 379EA in the Division, which is discussed in item 13 of this Schedule.  The amendment will change the heading from “Division 8A—Giving and receiving review documents” to “Division 8A—Giving and receiving review documents etc.”.

Item 11           At the end of section 379AA (before the note)

 

35.               This item inserts note 1 before the existing note at the end of section 379AA of the Act referring the reader to new section 379EA, which is discussed in item 13 below.

 

Item 12           Section 379AA (note)

 

36.               This item makes a minor technical amendment consequential to the amendment in item 11 of this Schedule by omitting the word “Note” at the end of section 379AA and substituting the words “Note 2”. 

 

Item 13           After section 379E

 

37.               This item inserts new section 379EA into the Act.

 

38.               Subsection 52(3C) of the Act currently provides in relation to decisions made by the Minister or delegate whether to grant or refuse a visa, that if two or more non-citizens apply for a visa together (for example, where a spouse is part of the primary applicant’s visa application) notification given to any of them about the application is taken to be given to each of them.  However, there is no equivalent to subsection 52(3C) with regard to notifying review applicants to the MRT and the Refugee Review Tribunal (“the RRT”).  To avoid any uncertainty in relation to the notifying of secondary applicants who have made or sought to make a combined application, new section 379EA provides that if two or more persons apply for review of a decision together, any documents given to any of them in connection with the review are taken to be given to all of them. 

 

39.               A similar amendment is included in item 26 of this Schedule in relation to the RRT which will ensure consistency and greater certainty in the Tribunals’ communications with applicants.

 

40.               This item also inserts two notes after new subsection 379EA.  Note 1 informs the reader that where the MRT gives documents to a person by a method specified in section 379A, the person is taken to have received the documents at the time specified in section 379C in respect of that method.

 

41.               Section 379A specifies the methods by which the MRT can give documents to a person (other than the Secretary) and section 379C provides for when the person is taken to have received the documents.

 

42.               Note 2 informs the reader that section 379G of the Act deals with the giving of documents by the MRT to a person’s authorised recipient.

 

43.               Section 379G provides, amongst other things, that where a person has notified the MRT in writing of his or her authorised recipient, the MRT must give any documents to the authorised recipient instead of the applicant. 

 

Item 14           After paragraph 395(a)

 

44.               This item inserts new paragraph 395(aa) in section 395 of the Act.

 

45.               Section 395 currently provides that the membership of the MRT consists of a Principal Member and such number of Senior and other members (not exceeding the prescribed number) as are appointed under the Act.

 

46.               New paragraph 395(aa) provides that if a person is appointed as a Deputy Principal Member of the MRT (see item 16 below), the membership of the MRT shall also consist of a Deputy Principal Member.

 

47.               By making the appointment of a Deputy Principal Member discretionary, the Governor-General acting on Government advice will have the flexibility to appoint, or not appoint, a Deputy Principal Member in accordance with the management needs of the Tribunal. 

 

48.               This item is also consistent with item 27 of this Schedule which deals with the membership of the RRT.

 

Item 15           Subsection 396(1)

 

49.               This item amends subsection 396(1) of the Act by omitting the word “The” and substituting the words “Subject to subsection (1A), the”.  This is a minor technical amendment consequential to the amendment in item 16 below, emphasising that the power to appoint a Deputy Principal Member to the MRT is discretionary. 

 

Item 16           After subsection 396(1)

 

50.               This item inserts new subsection 396(1A) after subsection 396(1) of the Act. 

 

51.               Section 396 deals with the appointment of members of the MRT.  New subsection 396(1A) provides that the Governor-General may appoint a person to the position of Deputy Principal Member of the MRT.  The use of the word “may” in this context (and the amendments in items 14 and 15 above) makes it clear that the appointment of a Deputy Principal Member to the MRT is discretionary.

 

Item 17           Subsection 404(9) (definition of senior office)

 

52.               This item substitutes the definition of “senior office” in subsection 404(9) with a new definition that includes the office of Deputy Principal Member within the meaning of that term.  This will ensure that the provisions relating to acting appointments to the MRT in section 404 of the Act will also apply to the office of the Deputy Principal Member. 

 

 

 

Item 18           Section 405

 

53.               This item amends section 405 of the Act by inserting the words “the Deputy Principal Member or” after the words “delegate to”.  The amendment will, in effect, allow the Principal Member to delegate his or her powers other than the power to refer decisions to the Administrative Appeals Tribunal (“the AAT”) to the Deputy Principal Member (as well as to Senior Members, as is currently the case).

 

Item 19           After subsection 430(1)

 

54.               This item relates to the amendment in item 20 of this Schedule which will remove the requirement in the Act to “hand down” decisions of the RRT and replace the existing procedures for notifying the parties of a Tribunal decision with a simpler procedure.

 

55.               The item will insert new subsection 430(2) in section 430 of the Act.

 

56.               Subject to certain restrictions on disclosure contained in paragraph 438(3)(b), subsection 430(1) of the Act requires the RRT to prepare a written statement of its decision on a review setting out the decision, the reasons for the decision, the findings on material questions of fact and referring to the evidence and other material on which the findings are based.

 

57.               New subsection 430(2) will provide that a decision of the RRT, other than an oral decision, is taken to have been made on the date of the written statement prepared under subsection 430(1) of the Act.  Currently, subsection 430B(4) provides, in effect, that in cases where a decision of the RRT is to be handed down, the date of the decision is the date the decision is handed down.  As existing section 430B and the handing down requirement is being removed (item 20), it is necessary to insert a provision - new subsection 430(2) - which specifies a date for when an RRT review decision is taken to have been made.

 

Item 20           Sections 430A to 430C

 

58.               This item will remove the requirement in the Act to hand down decisions of the RRT and replace the existing procedures for notifying the parties of a Tribunal decision with a simpler procedure.

 

59.               The item will repeal existing sections 430A, 430B and 430C of the Act which set out the current process for handing down review decisions of the RRT and notifying the parties of the decision. 

 

60.               In general terms, the current process requires the RRT to invite a review applicant and the Secretary to be present when a decision is to be handed down (although there is no requirement for them to attend) and the Principal Member or other authorised person by the Principal Member, conducts the handing down by reading the outcome of the decision.  The date of the decision is the date the decision is handed down.  If the applicant or their representative is not present at the handing down, the Tribunal must notify the applicant by giving them a copy of the written statement prepared under subsection 430(1), within 14 days after the day on which the decision is handed down.  Section 430C provides in effect that applicants are taken to be notified of decisions when their representatives are notified of the decision.

 

61.               In addition to repealing existing sections 430A to 430C, this item will also insert new section 430A into the Act, which sets out the procedure for notifying the parties of an RRT decision on a review where the decision is not given orally.  New subsection 430A(1) provides that the RRT must notify the applicant by “giving” the applicant a copy of the written statement prepared under subsection 430(1) of the Act within 14 days after the day on which the decision is taken to have been made (see item 19 above).  The RRT must give a copy of the written statement to the applicant by one of the methods specified in section 441A of the Act.  That is, by handing it to the recipient, or to another person apparently at least 16 and living or working at the last residential or business address provided by the recipient in connection with the review.  Alternatively the RRT can give the document to the recipient by prepaid post or other prepaid means, by fax, e-mail or other electronic means, to the last contact details provided to the RRT by the recipient in connection with the review.  Depending on the method used, a statement “given” within 14 days may or may not also be received within that time.

 

62.               New subsection 430A(2) requires that a copy of the written statement must also be given to the Secretary by one of the methods specified in section 441B of the Act.  That is, by handing it to the Secretary or an authorised officer or by post or other means or by fax, e-mail or other electronic means, to the last contact details notified to the RRT in writing by the Secretary for the purposes in relation to review applications.  Depending on the method used, a statement “given” within 14 days may or may not also be received within that time.

 

63.               New subsection 430A(3) provides that where the RRT fails to comply with new subsections 430A(1) and 430A(2) in relation to a decision on a review, this will not affect the validity of the RRT decision.  Although failure to comply with those provisions will mean that applicants will not be validly notified, the decision itself will not be invalidated.  This new subsection is consistent with section 66 of the Act which relates to notifying applicants of a primary decision whether to grant or refuse a visa and with existing section 501G of the Act which relates to notification of a character decision.

 

Item 21           Subsection 430D(1)

 

64.               This item amends subsection 430D(1) of the Act by omitting “(1)” when it first occurs.  It is a technical amendment consequential to the amendment in item 22 of this Schedule which repeals subsection 430D(2).

 

65.               In contrast to new section 430A (see item 20 above), subsection 430D(1) deals with cases where a decision of the RRT is orally given.  In general terms, it provides that where the RRT gives an oral decision on a review application, it must give the applicant and the Secretary a copy of the written statement prepared under subsection 430(1) within 14 days after the decision is made and that the applicant is taken to be notified of the decision on the day the decision is made.

 

66.               This item also inserts a note to inform readers that the heading to amended section 430D has changed to read “Notifying parties when Tribunal gives an oral decision”.  This will assist in clarifying that in contrast to new section 430A, new section 430D deals with notification when the decision is orally given.

 

Item 22           Subsection 430D(2)

 

67.               This item repeals subsection 430D(2) of the Act.  The subsection currently provides that where an applicant is in immigration detention, the RRT must give the applicant and the Secretary a copy of the written statement prepared under subsection 430(1) within 14 days after the decision is made.  As the amendments to section 430A have the same effect as subsection 430D(2), this provision is no longer necessary and notification of applicants in these circumstances will be covered by amended section 430D.

 

Item 23           Division 7A of Part 7 (heading)

 

68.               This item makes a minor technical amendment to the current heading of Division 7A of Part 7 of the Act to reflect the inclusion of new section 441EA in the Division, which is discussed in item 26 of this Schedule.  The amendment will change the heading from “Division 7A—Giving and receiving review documents” to “Division 7A—Giving and receiving review documents etc.”

 

Item 24           At the end of section 441AA (before the note)

 

69.               This item inserts note 1 before the existing note at the end of section 441AA of the Act referring the reader to new section 441EA, which is discussed in item 26 below. 

 

Item 25           Section 441AA (note)

 

70.               This item makes a minor technical amendment consequential to the amendment in item 24 of this Schedule by omitting the word “Note” at the end of section 441AA and substituting the words “Note 2”. 

 

Item 26           After section 441E

 

71.               This item inserts new section 441EA into the Act.

 

72.               Subsection 52(3C) of the Act currently provides in relation to decisions made by the Minister or delegate to grant or refuse a visa, that if two or more non-citizens apply for a visa together (for example, where a spouse is part of the primary applicant’s visa application) notification given to any of them about the application is taken to be given to each of them.  However, there is no equivalent to subsection 52(3C) with regard to notifying review applicants to the MRT and RRT.  To avoid any uncertainty in relation to the notifying of secondary applicants who have made or sought to make a combined application, new section 441EA provides that if two or more persons apply for review of a decision together, any documents given to any of them in connection with the review are taken to be given to all of them. 

 

73.               A similar amendment is included in item 13 of this Schedule in relation to the MRT which will ensure consistency and greater certainty in the Tribunals’ communications with applicants.

 

74.               This item also inserts two notes after new subsection 441EA.  Note 1 informs the reader that where the RRT gives documents to a person by a method specified in section 441A, the person is taken to have received the documents at the time specified in section 441C in respect of that method.

 

75.               Section 441A specifies the methods by which the RRT can give documents to a person (other than the Secretary) and section 441C provides for when the person is taken to have received the documents.

 

76.               Note 2 informs the reader that section 441G of the Act deals with the giving of documents by the RRT to a person’s authorised recipient.

 

77.               Section 441G provides, amongst other things, that where a person has notified the RRT in writing of his or her authorised recipient, the RRT must give any documents to the authorised recipient instead of the applicant. 

 

Item 27           Paragraph 458(1)(b)

 

78.               This item substitutes paragraph 458(1)(b) of the Act to reflect the amendment in item 29 of this Schedule which provides for the discretionary appointment of a Deputy Principal Member to the RRT. 

 

79.               Section 458 currently provides that the membership of the RRT consists of a Principal Member, a Deputy Principal Member, and such number of Senior and other members (not exceeding the prescribed number) as are appointed under the Act.

 

80.               New paragraph 458(1)(b) provides that if a person is appointed as a Deputy Principal Member of the RRT (see item 29 below), the membership of the RRT shall also consist of a Deputy Principal Member.

 

81.               By making the appointment of a Deputy Principal Member discretionary, the Governor-General acting on Government advice will have the flexibility to appoint, or not appoint, a Deputy Principal Member in accordance with the management needs of the Tribunal.

 

82.               This item is also consistent with item 14 of this Schedule which deals with the membership of the MRT.

Item 28           Subsection 459(1)

 

83.               This item amends subsection 459(1) of the Act by omitting the word “The” and substituting the words “Subject to subsection (1A), the”.  This is a minor technical amendment consequential to the amendment in item 29 below, emphasising that the power to appoint a Deputy Principal Member to the RRT is discretionary.

 

Item 29           After subsection 459(1)

 

84.               This item inserts new section 459(1A) after subsection 459(1) of the Act. 

 

85.               Section 459 deals with the appointment of members of the RRT.  New subsection 459(1A) provides that the Governor-General may appoint a person to the position of Deputy Principal Member of the RRT.  The use of the word “may” in this context (and the amendments in items 27 and 28 above) makes it clear that the appointment of a Deputy Principal Member to the RRT is discretionary.

 

Item 36           Section 486AB

 

86.               This item amends section 486AB of the Act by omitting the words “subsection 486A(1)” and substituting the words “section 486A”.     

 

87.               The purpose of this item is to clarify the application of section 486AB.  This item makes it clear that whether a person applies to the High Court for judicial review of a decision, or for the court’s order to extend time to apply for judicial review (as currently provided in section 486AB), the lodging of either of those applications will not:

 

·            affect the operation of the decision under challenge, or

·            prevent any actions to implement the decision, or

·            prevent any actions taken in reliance on the making of the decision.

 

88.               The amendment is consistent with the intent of section 486AB and with section 481 of the Act, which is the corresponding existing provision relating to the Federal Magistrates Court and the Federal Court.

 

Item 37           Application

 

89.               Subitem 37(1) provides that the amendments made by items 6 and 7 apply to MRT review decisions made on or after the day on which those items commence and also to review decisions made before that time if written notice of the handing down has not been given to the applicant and the Secretary.

 

90.               A note is also inserted after subitem 37(1) referring readers to the transitional provision in item 38 of this Schedule.  Item 38 provides, in effect, that despite the amendment to section 368 of the Act and the repeal of sections 368A to 368C, these provisions continue to operate with respect to MRT review decisions after items 6 and 7 commence where written notice of the handing down is given to the parties before the day that items 6 and 7 commence.

 

91.               Subitem 37(2) provides that the amendments made by items 13 and 26 of this Schedule apply to review applications made to the MRT and the RRT on or after items 13 and 26 commence and also to review applications made before that day if the application is not decided before that day.

 

92.               Subitem 37(3) provides that the amendments made by items 19 and 20 apply to RRT review decisions made on or after the day on which those items commence and also to review decisions made before that time if written notice of the handing down has not been given to the applicant and the Secretary.

 

93.               A note is also inserted after subitem 37(3) referring readers to the transitional provision in item 39 of this Schedule.  Item 39 provides, in effect, that despite the amendment to section 430 of the Act and the repeal of sections 430A to 430C, these provisions continue to operate with respect to RRT review decisions after items 19 and 20 commence where written notice of the handing down is given to the parties before the day that items 19 and 20 commence.

 

Item 38           Transitional provision—handing down of decisions by                  Migration Review Tribunal

 

94.               This item inserts a transitional provision in relation to the amendments in items 6 and 7 of this Schedule.  Subitem 38(1) provides, in effect, that the transitional arrangement in this item applies if before the day on which items 6 and 7 commence the MRT has given the applicant and the Secretary written notice under existing section 368A of the Act of the day, time and place of the handing down of an MRT decision on a review.  In these cases, subitem 38(2) provides that despite the amendment to section 368 of the Act and the repeal of sections 368A to 368C, these provisions continue to operate after the day on which items 6 and 7 commence.  That is, normal handing down procedures will apply as they existed before the amendments by items 6 and 7.

 

Item 39           Transitional provision—handing down of decisions by                      Refugee Review Tribunal

 

95.               This item inserts a transitional provision in relation to the amendments in items 19 and 20 of this Schedule.  Subitem 39(1) provides, in effect, that the transitional arrangement in this item only applies if before the day on which items 19 and 20 commence the RRT has given the applicant and the Secretary written notice under existing section 430A of the Act of the day, time, and place of the handing down of an RRT decision on a review.  In these cases, subitem 39(2) provides that despite the amendment to section 430 of the Act and the repeal of sections 430A to 430C, these provisions continue to operate after the day on which items 19 and 20 commence.  That is, normal handing down procedures will apply as they existed before the amendments by items 19 and 20.

 

Item 40           Transitional provision—appointment of Deputy Principal Member           of the Refugee Review Tribunal

 

96.               This item ensures that the person occupying the position of Deputy Principal Member of the RRT continues in that position for the balance of the person’s current term of appointment after items 28 and 29 of this Schedule commence.

 

97.               The item provides that the person holding office of the Deputy Principal Member of the RRT under existing section 459 of the Act as in force immediately before items 28 and 29 commence is taken to have been appointed to that position under new section 459 of the Act for the balance of the person’s term of appointment that remained immediately before the day items 28 and 29 commenced.

 

 

 



SCHEDULE 2 - Amendments relating to border protection

 

Part 1 - Special purpose visas

 

Migration Act 1958

 

Item 1                         Subsection 33(5)

 

98.               This item omits the words “the end of the earlier or earliest of the following days” in subsection 33(5) of the Migration Act 1958 (“the Act”), and substitutes the words “the earliest of the following times”.  The purpose of this amendment is to allow for special purposes visas to cease at the end of a specified day, or at a particular time.

 

99.               The amendment preserves the current policy intention and effect of the section for special purpose visas which cease on a particular day - they will continue to cease at the end of that day.  Where a special purpose visa ceases at a particular time, the amendment ensures the visa will cease at that time.  A special purpose visa may cease at a particular time where a declaration under subsection 33(9) is expressed to take effect at specified time, under the amendment made to section 33 by the Migration Amendment (Border Integrity) Act 2007 .

 

Item 2             Subparagraphs 33(5)(a)(i) and (ii)

 

100.           This item repeals subparagraphs 33(5)(a)(i) and (ii) of the Act and replaces them with new subparagraphs 33(5)(a)(i) and (ii).

 

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

 

102.           Subparagraphs 33(5)(a)(i) and (ii) specify when a special purpose visa ceases to be in effect with regard to persons to whom paragraph 33(2)(a) applies.

 

103.           New subparagraphs 33(5)(a)(i) and (ii) will provide that, where paragraph 33(2)(a) applies, the special purpose visa ceases to be in effect at the end of the day on which the relevant non-citizen or class of non-citizens ceases to have prescribed status. Currently this subparagraph provides that the relevant special purpose visa ceases to be in effect “on the day” the prescribed status is lost. The opening words of subsection 33(5) make it clear that the visa would cease at the end of this day. However those opening words are being amended by item 1 of Schedule 2, to remove the reference to the ‘end of the day’.  New subparagraphs 33(5)(a)(i) and (ii) will preserve this effect for cases where the special purpose visa ceases on a particular day.

Item 3             Subparagraphs 33(5)(b)(i) to (iv)

 

104.           This item repeals subparagraphs 33(5)(b)(i) to (iv) of the Act, and replaces them with new subparagraphs 33(5)(b)(i) to (iv).

 

105.           New subparagraphs 33(5)(b)(i), (ii), (iii) and (iv) provide that, where paragraph 33(2)(b) applies, the special purpose visa ceases to be in effect “at the end of the day” on which the relevant events occur. Currently these subparagraphs provide that the relevant special purpose visa ceases to be in effect “on the day” the particular event occurs. The opening words of subsection 33(5) make it clear that the visa ceases at the end of this day. However those opening words are being amended by item 1 of Schedule 2, to remove the reference to the “end of the day”.  New subparagraphs 33(5)(b)(i) to (iv) will preserve this effect for cases where the special purpose visa ceases on a particular day.

 

Part 2 - Reporting on passengers and crew of aircraft and ships

 

Customs Act 1901

 

Item 4        Subsection 64ACA(1)

 

106.           This item amends subsection 64ACA(1) in Subdivision A of Division 3 of Part 4 of the Customs Act 1901 (“the Customs Act”) by replacing the words “the passengers” with the words “each passenger” .

 

107.           Subsection 64ACA(1) requires operators of a ship or aircraft due to arrive from a place outside Australia at an airport or port in Australia, to report to the Australian Customs Service (‘Customs’) on passengers who will be on board the aircraft or ship at the time of arrival.

 

108.           The purpose of this amendment is to make clear that the obligation on the operator of a ship or aircraft to provide reports on passengers to Customs is a requirement to report on each passenger individually as opposed to a requirement to report on passengers generally.

 

Item 5             Subsection 64ACB(1)

 

109.           This item amends subsection 64ACB(1) in Subdivision A of Division 3 of Part 4 of the Customs Act by replacing the words “the crew” with the words “each member of the crew”.

 

110.           Subsection 64ACB(1) requires the operator of a ship or aircraft due to arrive, from a place outside Australia, at a port or airport in Australia (whether it is the first or any subsequent airport or port of the flight or voyage) to report to Customs on the crew who will be on board the aircraft or ship at the time of its arrival at the airport or port.

 

111.           The purpose of this amendment is to make clear that the obligation on the operator of a ship or aircraft to provide reports on crew to Customs is a requirement to report on each crew member individually, as opposed to a requirement to report on crew members generally.

 

Item 6             Paragraph 64ACC(1)(a)

 

112.           This item amends paragraph 64ACC(1)(a) in Subdivision A of Division 3 of Part 4 of the Customs Act by replacing the words “particular passengers or crew” with the words “a particular passenger or member of the crew”.

 

113.           Subsection 64ACC(1) of the Customs Act provides that if both section 64ACA (obligation to report on passengers) or 64ACB (obligation to report on crew) of the Customs Act and section 245L of the Act (obligation to report on passengers and crew) require the same piece of information in relation to particular passengers or crew on a particular voyage or flight to be reported, and the relevant operator has reported that piece of information in accordance with that section of the Act, the operator is taken not to be required by section 64ACA or 64ACB of the Customs Act (as the case requires) to report the same piece of information in relation to those passengers or crew.

 

114.           The amendment made by this item ensures consistency of terminology and is consequential to the amendments made by items 4 and 5 of this Schedule to respective subsections 64ACA(1) and 64ACB(1) of the Customs Act.

 

Item 7             Paragraph 64ACC(1)(b)

 

115.           This item amends paragraph 64ACC(1)(b) in Subdivision A of Division 3 of Part 4 of the Customs Act by replacing the words “those passengers or crew” with the words “that passenger or member of the crew”. 

 

116.           Subsection 64ACC(1) of the Customs Act provides that if both section 64ACA (obligation to report on passengers) or 64ACB (obligation to report on crew) of the Customs Act and section 245L of the Act (obligation to report on passengers and crew) require the same piece of information in relation to particular passengers or crew on a particular voyage or flight to be reported, and the relevant operator has reported that piece of information in accordance with that section of the Act, the operator is then taken not to be required by section 64ACA or 64ACB of the Customs Act (as the case requires) to report the same piece of information in relation to those passengers or crew to Customs.

 

117.           The amendment made by this item ensures consistency of terminology and is consequential to the amendments made by items 4 and 5 of this Schedule to respective subsections 64ACA(1) and 64ACB(1) of the Customs Act.

 

Item 8             Subsection 64ACC(2) (note)

 

118.           This item amends the note to subsection 64ACC(2) in Subdivision A of Division 3 of Part 4 of the Customs Act by replacing the words “a complete report under this Act is still required (even if some of the same passengers or crew are still on board)” with the words “a report under this Act is required”.

 

119.           Subsection 64ACC(2) provides that subsection 64ACC(1) only applies if the relevant report required under the Act (that is, the Migration Act 1958 ) relates to the arrival of the ship or aircraft at the same port or airport for which the Customs Act requires a report.

 

120.           The purpose of this amendment is to provide further clarity to the provision and ensure it is consistent with the amendments made by items 4 and 5 of this Schedule which provide that the obligations to report are obligations to report on each passenger and member of the crew individually.

 

Item 8A          At the end of section 64ACD

 

121.           This item provides for new subsection 64ACD(4) to be inserted after subsection 64ACD(3) in Subdivision A of Division 3 of Part 4 of the Customs Act 1901 (“the Customs Act”).

 

122.           New subsection 64ACD(4) provides that an operator of an aircraft or ship commits a separate offence under subsection 64ACD(1) or 64ACD(2) in respect to each passenger or member of the crew in relation to whom the operator contravenes section 64ACA (requirement to report on each passenger) or 64ACB (obligation to report on each crew member). Currently these operators are liable to prosecution under subsection 64ACD(1) or 64ACD(2) of the Customs Act in relation to each journey to Australia. Currently these offences apply only in relation to one general requirement to report on passengers and crew in respect of each journey generally.   

 

123.           This item ensures that airline and shipping operators would be separately liable to the same penalty for each individual passenger and crew not reported as opposed to failure to report in respect of a journey generally. This item is necessary to ensure that operators take the highest level of care in providing advance passenger information to the Australian Customs Service in relation to each individual passenger and crew member aboard their vessel prior to its arrival in Australia. 

 

Item 9             Application - amendments to the Customs Act 1901

 

124.           This item provides that the Schedule 2 amendments to the Customs Act apply in relation to arrivals at an airport or port in Australia on or after the commencement of this item.   The commencement of this item will be a single day to be fixed by Proclamation.

 

Migration Act 1958

 

Item 10           After subsection 245J(2)

 

125.           This item inserts a new subsection 245J(2A) after subsection 245J(2) in Division 12B of Part 2 of the Act. 

 

126.           Subsection 245J(1) provides that the Secretary must, for each kind of aircraft or ship to which Division 12B applies, by legislative instrument, approve a system for the purposes of reporting under that Division. Subsection 245J(2) provides that, under subsection 245J(1), the Secretary may, for a kind of aircraft or ship, approve a single system for reporting on both passengers and crew or may approve one system for reporting on passengers, and another system for reporting on crew. Subsection 245J(3) further provides that the relevant instrument of approval must also specify the information about passengers or crew that is to be reported by that system.

 

127.      New subsection 245J(2A) will provide that the information about passengers or crew, or both passengers and crew, that is to be reported by a system, must be in relation to the passengers individually or members of the crew individually, or about the passengers individually and crew individually.

 

128.           The purpose of the new subsection is to make clear that the requirement to report on passengers and crew is a requirement to report on each passenger and crew member individually, and not a requirement to report on the passengers and crew generally .

 

Item 11           After subsection 245K(1)

 

129.           This item inserts new subsection 245K(1A) after subsection 245K(1) in Division 12B of Part 2 of the Act. 

 

130.           Subsection 245K(1) provides that the Secretary must, by legislative instrument, approve one or more systems as fall-back reporting systems. Subsection 245K(2) further provides that the instrument of approval of a system must also specify the information about passengers or crew that is to be reported by that system.

 

131.           New subsection 245K(1A) will provide that information about passengers, crew, or both passengers and crew, that is to be reported by a system, must be about the passengers individually, members of the crew individually, or about the passengers individually and crew members individually.

 

132.           The purpose of this new provision is to make clear that the requirement to report on passengers and crew is a requirement to report on each passenger and crew member individually, and not a requirement to report on the passengers and crew generally. 

 

Item 12           Paragraph 245L(2)(a)

 

133.           This item amends paragraph 245L(2)(a) in Division 12B of Part 2 of the Act by replacing the reference to “the passengers” with the words “each passenger”.

 

134.           Currently, paragraph 245L(2)(a) provides that an operator of a ship or aircraft due to arrive at an airport or port in Australia from a place outside Australia, has an obligation to report to the Department (using the relevant reporting systems for passengers) on the passengers who will be on board the aircraft or ship at the time of its arrival at the airport or port.

 

135.           Subsection 245N(1) provides that an operator of a ship or aircraft who intentionally contravenes subsection 245L(2) commits an offence punishable, on conviction, by a penalty not exceeding 120 penalty units. Subsection 245N(2) provides that an operator of a ship or aircraft who contravenes subsection 245L(2) commits an offence punishable, on conviction, by a penalty not exceeding 60 penalty units.

 

136.           New paragraph 245L(2)(a) will provide that an operator of a ship or aircraft due to arrive at an airport or port in Australia from a place outside Australia, has an obligation to report to the Department (using the relevant reporting systems for passengers) on each individual passenger who will be on board the aircraft or ship at the time of its arrival at the airport or port.

 

137.           The effect of these amendments made by this item and by items 10 and 11 of this Schedule is that operators of aircraft and ships will be liable to prosecution under section 245N for each passenger not reported (rather than for one offence for each group of passengers, or group of passengers and crew, not reported).

 

Item 13           Paragraph 245L(2)(b)

 

138.           This item amends paragraph 245L(2)(b) in Division 12B of Part 2 of the Act by replacing the reference to “the crew” with the words “each member of the crew”.

 

139.           Currently, paragraph 245L(2)(b) provides that the operator of a ship or aircraft due to arrive at an airport or port in Australia from a place outside Australia, has an obligation to report to the Department (using the relevant reporting systems for passengers) on the crew who will be on board the aircraft or ship at the time of its arrival at the airport or port.

 

140.           Subsection 245N(1) provides that an operator of a ship or aircraft who intentionally contravenes subsection 245L(2) commits an offence punishable, on conviction, by a penalty not exceeding 120 penalty units. Subsection 245N(2) provides that an operator of a ship or aircraft who contravenes subsection 245L(2) commits an offence punishable, on conviction, by a penalty not exceeding 60 penalty units.

 

141.           New paragraph 245L(2)(b) will provide that the operator of a ship or aircraft due to arrive at an airport or port in Australia from a place outside Australia, has an obligation to report to the Department (using the relevant reporting systems for passengers) on each individual member of the crew who will be on board the aircraft or ship at the time of its arrival at the airport or port.

 

142.           The effect of the amendments made by this item and by items 10 and 11 of this Schedule is that aircraft and shipping line operators will be liable to prosecution under section 245N for each crew member not reported (rather than for one offence for each group of crew members, or group of passengers and crew, not reported).

Item 14           After subsection 245L(5)

 

143.           This item repeals subsection 245L(5) in Division 12B of Part 2 of the Act and replaces it with new subsections 245L(5) and (5A). 

 

144.           Subsection 245L(5) provides the deadlines for reporting on passengers or crew for ships.  Previously, subsection 245L(5) provided that a report on passengers or crew onboard a ship must be given no later than:

 

(a)       if the journey from the last port outside Australia is likely to take not less than 48 hours — 48 hours before the ship's likely time of arrival at the port in Australia; or

(b)       if the journey from the last port outside Australia is likely to take less than 48 hours — 24 hours before the ship's likely time of arrival at the port in Australia.

 

145.           This amendment to paragraph 245L(5) will remove the time frames set out in the Act and replace them with a power to prescribe them in the regulations. New paragraph 245L(5) will provide that a report on passengers or crew onboard a ship must be given no later than:

 

(a)       the start of the prescribed period before the ship’s estimated time of arrival; or

(b)       if the journey is of a kind described in regulations made for the purposes of  paragraph 245L(5)(b) — the start of the shorter period specified in those regulations before the ship’s estimated time of arrival.

 

146.           The purpose of removing the time frames from the Act and allowing them to be prescribed in the regulations is to provide flexibility by enabling the time frames to be more readily changed. For example, to this will ensure consistency with reporting time frames required under customs legislation.

 

147.           New subsection 245L(5A) will also allow regulations to be made for the purposes of paragraph 245L(5)(b) to prescribe matters of a transitional nature (including prescribing any saving or application provisions) arising out of the making of regulations for those purposes.  The purpose of this amendment is to facilitate the alignment of reporting times under migration legislation with those under the customs legislation and make allowance for ships already en route to Australia when changes to the prescribed time frames take effect.

 

Item 15           Application - amendments to section 245L

 

148.           This item provides that, subject to the regulations, the amendments made to section 245L apply in relation to journeys begun on or after the commencement of this item. The commencement of this item will be a day or days to be fixed by Proclamation.

 

 

 

 

 

Item 16           At the end of subsection 245N(2)

 

149.           This item adds a note at the end of subsection 245N(2) in Division 12B of Part 2 of the Act. The note directs the reader to new paragraph 504(1)(jaa), as inserted by     item 17 of this Schedule.

 

150.           Subsection 245N(1) provides that an operator of a ship or aircraft who intentionally contravenes subsection 245L(2) commits an offence punishable, on conviction, by a penalty not exceeding 120 penalty units. Subsection 245N(2) provides that an operator of a ship or aircraft who contravenes subsection 245L(2) commits an offence punishable, on conviction, by a penalty not exceeding 60 penalty units. Further, subsection 245N(3) provides that an offence against subsection 245N(2) is an offence of strict liability.

 

151.           Following the amendments made by items 12 and 13 of this Schedule, subsection 245L(2) will provide that the operator of a ship or aircraft due to arrive at an airport or port in Australia from a place outside Australia has an obligation to report to the Department (using the relevant reporting systems) on each individual passenger and crew member who will be on board the aircraft or ship at the time of its arrival at the airport or port.

 

152.           New paragraph 504(1)(jaa) in Part 9 of the Act (inserted by item 17) will provide that regulations may be made under the Act (which are not inconsistent with the Act) prescribing matters enabling a person alleged to have committed an offence against subsection 245N(2) to pay to the Commonwealth, as an alternative to prosecution, a prescribed penalty, not exceeding 10 penalty units.

 

Item 16A        At the end of section 245N

 

153.           This item provides for new subsection 245N(4) to be inserted after subsection 245N(3) in Division 12B of Part 2 of the Act.

 

154.           New subsection 245N(4) provides that an operator of an aircraft or ship commits a separate offence under subsection 245N(1) or 245N(2) in respect to each passenger or member of the crew in relation to whom the operator contravenes subsection 245L(2) (requirement to report on each passenger and crew member). Currently these offences apply only in relation to one general requirement to report on passengers and crew in respect of each journey generally. 

 

155.           This ensures that airline and shipping operators would be separately liable to the same penalty for each individual passenger and crew not reported opposed to failure to report in respect of a journey generally. This item is necessary to ensure that operators take the highest level of care in providing advance passenger information to the Department of Immigration and Citizenship in relation to each individual passenger and crew member aboard their vessel prior to its arrival in Australia.  

 

 

 

Item 17           After paragraph 504(1)(j)

 

156.           This item inserts new paragraph 504(1)(jaa) after paragraph 504(1)(j) in Part 9 of the Act. 

 

157.                      Subsection 504(1) contains a number of regulation making powers that allow the prescribing of certain matters in regulations that are not inconsistent with, and necessary and convenient to give effect to the provisions contained in, the Act.

 

158.           New paragraph 504(1)(jaa) will provide that regulations may be made under the Act (which are not inconsistent with that Act) prescribing matters enabling a person who is alleged to have committed an offence against subsection 245N(2) to pay to the Commonwealth, as an alternative to prosecution, a prescribed penalty, not exceeding 10 penalty units.

 

159.           Subsection 245N(1) provides that an operator of a ship or aircraft who intentionally contravenes subsection 245L(2) commits an offence punishable, on conviction, by a penalty not exceeding 120 penalty units. Subsection 245N(2) provides that an operator of a ship or aircraft who contravenes subsection 245L(2) commits an offence punishable, on conviction, by a penalty not exceeding 60 penalty units. Further, subsection 245N(3) provides that an offence against subsection 245N(2) is an offence of strict liability.

 

160.           Following the amendments made by items 12 and 13 of this Schedule, subsection 245L(2) will provide that the operator of a ship or aircraft due to arrive at an airport or port in Australia from a place outside Australia has an obligation to report to the Department (using the relevant reporting systems) on each individual passenger and crew who will be on board the aircraft or ship at the time of its arrival at the airport or port.

 

161.           The purpose of this item is to provide for an infringement regime to enable a person alleged to have committed an offence against subsection 245N(2) to pay a prescribed penalty, not exceeding 10 penalty units, to the Commonwealth as an alternative to prosecution. 

 

Part 3 - Round trip cruises

 

Migration Act 1958

 

Item 18                       Section 169

 

162.           This item amends section 169 in Division 5 of Part 2 of the Act by inserting “(1)” before the word “If”.

 

163.           Section 169(1) provides that a person is not required to comply with the immigration clearance requirements in section 166 (unless directed by a clearance officer to do so) if that person goes outside and then re-enters the migration zone and under section 80 is taken not to have left Australia.

 

164.           This amendment is consequential to the amendment to section 169 made by item 19 of this Schedule which inserts new subsections 169(2), (3), (4) and (5).

 

165.           This item also inserts a note after subsection 169(1) advising that the heading to section 169 is altered by inserting “to” after “usually”. This is being done to correct a grammatical error in the heading to section 169.

 

Item 19                       At the end of section 169

 

166.           This item amends section 169 in Division 5 of Part 2 of the Act by adding new subsections 169(2), (3), (4) and (5) at the end of section 169. 

 

167.           New subsection 169(1) (previously section 169) will provide that a person is not required to comply with section 166 (unless directed by a clearance officer to do so) if that person goes outside the migration zone and then re-enters the migration zone but is taken not to have left Australia under section 80.

 

168.           New subsection 169(2) will provide that new subsection 169(1) (previously section 169) does not apply if the person leaves the migration zone on an “international passenger cruise ship”. The purpose of new subsection 169(2) is to provide that, as a general rule, passengers aboard international passenger cruise ships on round trip cruises are required to comply with the immigration clearance requirements in section 166.

 

169.           The note following new subsection 169(2) will indicate to the reader that the effect of subsection 169(2) is to require persons on international passenger cruise ships to be immigration cleared under section 166 (unless the Minister or Secretary determines otherwise under subsection (3) of section 169).

 

170.           New subsection 169(3) will provide that the Minister or Secretary may, in writing, determine that despite subsection 169(2), subsection 169(1) does apply to a class of persons that includes the person.

 

171.           The purpose of new subsection 169(3) is to provide a mechanism in the legislation to allow the Minister or Secretary to exempt certain classes of persons on round trip cruises from having to comply with the immigration clearance requirements of section 166. For example, the Minister or Secretary may choose to exempt certain international cruise ship voyages by specified carriers from having to comply with section 166 (that is, the relevant classes of persons would be passengers and crew aboard specified voyages by specified carriers). An example of such an instrument would be one that specifies a number of voyages by selected commercial international cruise ship carriers, and provides that subsection 169(1) applies to these voyages with the effect that the specified carriers will not be taken, on re-entering the migration zone, to enter Australia for the purposes of section 166 (but may nevertheless be directed by a clearance officer to comply with section 166).

 

 

172.           New subsection 169(4) defines “international passenger cruise ship” as: a ship that has sleeping facilities for at least 100 persons (other than crew members); a ship is being used to provide a service of sea transportation of persons from a place outside Australia to a port in Australia; and that service is provided in return for a fee payable by persons using the service and is available to the general public.

 

173.           New subsection 169(5) will provide that a determination made under new subsection 169(3) is not a legislative instrument. The purpose of this amendment is to expressly exclude the application of the Legislative Instruments Act 2003 from applying to determinations made under new subsection 169(3). Instruments made under new subsection 169(3) will be of an administrative character.

 

Item 20                       Application

 

174.           This item provides that the amendments made by items 18 and 19 apply in relation to persons who go outside the migration zone on or after the commencement of those items. 

 

Part 4 - Enforcement visas

 

Migration Act 1958

 

Item 21                       Subsection 31(2)

 

175.           This item amends subsection 31(2) of the Act by inserting “, 38A after “, 38”

 

176.           Subsection 31(2) sets out those classes of visa provided for by the Act (rather than prescribed in regulations). The addition of section 38A adds the enforcement visa (created by section 38A) to the list of classes already specified in subsection 31(2). Section 38A was added to the Act on 16 December 1999 by the Border Protection Legislation Amendment Act 1999 . Due to an oversight at the time, subsection 31(2) was not amended to add a reference to section 38A.

 

177.           The purpose of this item is to reflect the fact that enforcement visas, as provided for by section 38A, are a class of visa provided for in Act.

 

Item 22           Subsection 31(3)

 

178.           This item amends subsection 31(3) of the Act by replacing “or 38 with “, 38 or 38A” .

 

179.           Subsection 31(3) applies to visas provided for by the Act (rather than prescribed under the regulations). It provides that the regulations may prescribe criteria for certain of these visas, but may not prescribe criteria for certain other of these visas. This amendment will add section 38A (enforcement visas) to the list of visa classes for which the regulations may not prescribe criteria.

 

180.           Section 38A was added to the Act on 16 December 1999 by the Border Protection Legislation Amendment Act . Due to an oversight at the time, subsection 31(3) was not amended to add a reference to section 38A.  This amendment will preserve the policy intention that enforcement visa criteria are to be limited to the Act, and are not to be prescribed in the regulations.

 



SCHEDULE 3 - Amendments relating to visa integrity

 

Migration Act 1958

 

Part 1 - Immigration clearance status of non-citizen children born in Australia

 

Item 1                         After paragraph 172(1)(b)

 

181.           This item inserts new paragraph 172(1)(ba) after paragraph 172(1)(b) of the Migration Act 1958 (“the Act”).

 

182.           Section 172 deals with the immigration status of non-citizens on entry to Australia.  It outlines the circumstances in which a non-citizen is “immigration cleared”, “in immigration clearance”, “refused immigration clearance” and when a non-citizen “bypasses immigration clearance”. 

 

183.           Subsection 172(1) sets out the circumstances in which a non-citizen is “immigration cleared”.  Currently, none of these circumstances apply to non-citizen children born in Australia who are taken under section 10 of the Act to have entered Australia at the time of their birth, nor are these children explicitly exempted from the need to be immigration cleared on “entry by birth”.

 

184.           To clarify the immigration status of these non-citizen children, new paragraph 172(1)(ba) provides that a person who enters Australia by virtue of the operation of section 10 is immigration cleared if at the time of his or her birth at least one of the person’s parents was immigration cleared on his or her last entry into Australia.

 

185.           New paragraph 172(1)(ba) only provides immigration clearance to non-citizen children on entry to Australia by birth.  It does not provide immigration clearance for any subsequent entry to Australia.

 

Item 2                         Application

 

186.           This item provides that the amendment made by item 1 of this Schedule applies to a non-citizen child born in Australia on or after 1 September 1994.  This date corresponds to the date when the concept of “immigration clearance” was introduced into the Act by the Migration Reform Act 1992 which commenced in 1994.

 

Item 3             At the end of subsection 172(1)

 

187.           This item inserts new paragraph 172(1)(d) at the end of subsection 172(1) of the Act.

 

188.           Section 172 deals with the immigration status of non-citizens on entry to Australia. It outlines the circumstances in which a non-citizen is “immigration cleared”, “in immigration clearance”, “refused immigration clearance” and when a non-citizen “bypasses immigration clearance”.

189.           Subsection 172(1) sets out the circumstances in which a non-citizen is “immigration cleared”.

 

190.           New paragraph 172(1)(d) provides that a person is also immigration cleared if he or she is in a prescribed class of persons.  The purpose of new paragraph 172(1)(d) is to provide flexibility to prescribe in the Migration Regulations 1994 (“the Regulations”) further classes of persons who are immigration cleared for the purposes of section 172.

 

Item 4             Subsection 173(1)

 

191.           This item amends subsection 173(1) by inserting the words “or regulations to which that section is subject,” after the words “section 43,”. 

 

192.           Currently subsection 173(1) provides that if the holder of a visa enters Australia in a way that contravenes section 43 of the Act, the visa ceases to be in effect. The purpose of new subsection 173(1) is to make clear that a person’s visa will also cease to have effect by virtue of subsection 173(1) if the person contravenes any regulations to which section 43 is subject.

 

Item 5             At the end of section 173

 

193.           This item inserts new subsection 173(2) at the end of section 173 of the Act.

 

194.           Currently subsection 173(1) provides that if the holder of a visa enters Australia in a way that contravenes section 43 of the Act, the visa ceases to be in effect.  Section 43 provides that visa holders must enter at a port or on a pre-cleared flight.

 

195.           Under section 78, a non-citizen child born in Australia is taken to have been granted a visa if, at the time of his or her birth, at least one of the child’s parents holds a visa.  This non-citizen child is taken to have been granted the same visa as his or her parents.

 

196.           On a literal interpretation of subsection 173(1), a non-citizen child’s visa taken to have been granted under section 78 would appear to cease when the child enters Australia under section 10 in a way that “contravenes” section 43.

 

197.           New subsection 173(2) puts it beyond doubt that a non-citizen child born in Australia who, under section 78, is taken to have been granted a visa or visas at the time of his or her birth, is not taken to have entered Australia in a way that contravenes section 43 of the Act or any regulations to which section 43 is subject.  This will ensure that the visa taken to have been granted at birth under section 78 of the Act does not cease to be in effect at the same time because the entry is taken to contravene section 43 of the Act or any regulations to which section 43 is subject.

 

198.           The words “or regulations to which that section is subject” are included in new subsection 173(2) for consistency with the amendment made by item 4 of this Schedule.

 

 

Item 6                         Application

 

199.           This item provides that the amendment made by item 5 of this Schedule applies to a non-citizen child born in Australia on or after 1 September 1994 who is taken to have been granted a visa or visas under section 78 of the Act. 

 

200.           This date corresponds to the date when the concept of “immigration clearance” was introduced into the Act by the Migration Reform Act 1992 which commenced in 1994.

 

Part 2—Criminal Code harmonisation amendments

 

Item 7                         Subsection 229(1)

 

201.           This item makes a technical amendment consequential to the introduction of item 8 of this Schedule by omitting the word “unless” from subsection 229(1) and substituting “ if ”.

 

Item 8                         Paragraphs 229(1)(a) to (e)

 

202.           This item amends subsection 229(1) of the Act by repealing the existing paragraphs 229(1)(a) to (e) and substituting a new provision.

 

203.           Currently subsection 229(1) makes it an offence for the master, owner, agent, charterer and operator of a vessel to bring a non-citizen into Australia unless the non-citizen, when entering Australia satisfies paragraphs 229(1)(a), (b), (c), (d) or (e). 

 

204.           The current wording of the offence makes it unclear as to whether the matters in paragraphs 229(1)(a) to (e) constitute issues of exception or are elements of the offence.  It is considered that the matters in paragraphs 229(1)(a) to (e) are elements of the offence in subsection 229(1).  The existence of the defences in subsection 229(5) clearly indicates that the matters in paragraphs 229(1)(a) to (e) are not intended to be exceptions, but elements of the offence.  Accordingly, this item amends subsection 229(1) to clarify that the matters in paragraphs 229(1)(a) to (e) are elements of the offence in subsection 229(1). 

 

205.           Redrafting makes this clearer by specifying that the relevant persons are guilty of an offence against the section if, when entering Australia, the non-citizen:

 

·            is not in possession of evidence of a visa that is in effect and that permits him or her to travel to and enter Australia; and

·            does not hold a special purpose visa; and

·            is not eligible for a special category visa; and

·            does not hold an enforcement visa; and

·            is a person to whom subsection 42(1) applies.

 

206.           The effect is that the prosecution bears the legal burden of proving all of the elements of the subsection 229(1) offence as provided in new paragraphs 229(1)(a) to (e). 

 

207.           The prosecution must prove the existence of the matters in new paragraphs 229(1)(a) to (e) beyond reasonable doubt.

 

Item 9             After subsection 229(3)

 

208.           This item inserts new subsection 229(4) into the Act as a consequence of the amendments made to subsection 229(1) by items 7 and 8 of this Schedule.

 

209.           New subsection 229(1) makes it an offence for the master, owner, agent, charterer and operator of a vessel to bring a non-citizen into Australia if the non-citizen, when entering Australia does not meet one of paragraphs 229(1)(a), (b), (c), (d) or (e).

 

210.           New subsection 229(4) makes it clear that the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3).

 

211.           Subsection 42(1) provides that a non-citizen must not travel to Australia without a visa that is in effect.  However, subsection 42(1) is subject to subsections 42(2), 42(2A) and 42(3) which provide a number of exceptions to the requirement that a non-citizen must not travel to Australia without a visa.

 

212.           The effect of this amendment is that the defendant must adduce or point to evidence that suggests a reasonable possibility that the matters in subsection 42(2), 42(2A) or 42(3) exists.

 

213.           If the defendant does this, then the prosecution is required to prove beyond reasonable doubt that the matter does not exist.

 

214.           Note at the end of item 9 - After this item a note is inserted referring the reader to section 13.3 of the Criminal Code in relation to the evidential burden.

 

Item 10           After subsection 232(1A)

 

215.           This item inserts new subsection 232(1B) into the Act.

 

216.           The effect of subsection 232(1) is that the master, owner, agent and charterer of a vessel is guilty of an offence if a non-citizen on a vessel enters Australia without a visa and upon that entry becomes an unlawful non-citizen, or enters Australia in contravention of section 43 and as a result of section 173 becomes an unlawful non-citizen.

 

217.           An element of the offence in subsection 232(1) is that the non-citizen “is a person to whom subsection 42(1) applies”.  

 

218.           Subsection 42(1) provides that a non-citizen must not travel to Australia without a visa that is in effect.  However, subsection 42(1) is subject to subsections 42(2), 42(2A) and 42(3) which provide a number of exceptions to the requirement that a non-citizen must not travel to Australia without a visa.

 

219.           The purpose of new subsection 232(1B) is to put it beyond doubt that the matters in subsections 42(2), 42(2A) and 42(3) are exceptions to the requirement in subsection 42(1). It does this by clarifying that the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to the relevant person because of subsection 42(2) or 42(2A) or regulations made under subsection 42(3).

 

220.           This is consistent with subsection 13.3(3) of the Criminal Code , which provides that a defendant bears an evidential burden in relation to any matters of exception to an offence.

 

221.           This means that the defendant must adduce or point to evidence that suggests a reasonable possibility that the matters in subsection 42(2), 42(2A) or 42(3) exists. If the defendant does this, then the prosecution is required to prove beyond reasonable doubt that the matter does not exist.

 

222.           Note at the end of item 10 - After this item a note is inserted referring the reader to section 13.3 of the Criminal Code in relation to the evidential burden.

 

Item 11           Section 232A

 

223.           This item makes a technical amendment at the beginning of section 232A by inserting “ (1) ” before the words “A person”.

 

Item 12           At the end of section 232A

 

224.           This item inserts new subsection 232A(2) into the Act. 

 

225.           Section 232A in general terms, makes it an offence to bring a group of 5 or more non-citizens into Australia reckless as to whether they have a lawful right to come to Australia.  An element of the offence in section 232A is that the non-citizens are people “to whom subsection 42(1) applies”. 

 

226.           New subsection (2) makes provision in relation to the evidential burden borne by the defendant in subsection (1).   It provides that for the purposes of subsection (1), the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3).

 

227.           Subsection 42(1) provides that a non-citizen must not travel to Australia without a visa that is in effect.  Subsection 42(1) is subject to subsections 42(2), 42(2A) and 42(3) which provide a number of exceptions to the requirement that a non-citizen must not travel to Australia without a visa.

 

228.           The purpose of new subsection 232A(2) is to put it beyond doubt that the matters in subsections 42(2), 42(2A) and 42(3) are exceptions to the requirement in subsection 42(1). It does this by clarifying that the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to the relevant person because of subsection 42(2) or 42(2A) or regulations made under subsection 42(3).

 

229.           This is consistent with subsection 13.3(3) of the Criminal Code , which provides that a defendant bears an evidential burden in relation to any matters of exception to an offence.

 

230.           This means that the defendant must adduce or point to evidence that suggests a reasonable possibility that the matters in subsection 42(2), 42(2A) or 42(3) exists. If the defendant does this, then the prosecution is required to prove beyond reasonable doubt that the matter does not exist.

 

231.           Note at the end of item 12 - After this item a note is inserted referring the reader to section 13.3 of the Criminal Code in relation to the evidential burden.

 

Item 13           After subsection 233(1)

 

232.           This item inserts new subsection 233(1A) into the Act, which applies to the offence in paragraph 233(1)(a).

 

233.           New subsection 233(1A) makes it clear that strict liability applies to the physical element of circumstance of the offence in paragraph 233(1)(a). 

 

234.           Paragraph 233(1)(a) makes it an offence for a person to take part in the bringing or coming to Australia of a non-citizen under circumstances where it might reasonably be inferred that the non-citizen intended to enter Australia in contravention of the Act.

 

235.           Prior to the application of the Criminal Code to all offences against the Act, strict liability applied to the physical element of circumstance of the offence.

 

236.           The physical element (ie: the circumstance element) in this offence is taking part in the bringing or coming to Australia of a non-citizen under circumstances from which it might reasonably have been inferred that the non-citizen intended to enter Australia in contravention of the Act

 

237.           At the time the Criminal Code was applied to the Act, no provision was made for strict liability to apply to the physical element of circumstance of the offence in paragraph 233(1)(a). 

 

238.           The Criminal Code requires that if an offence is intended to be one of strict liability, it must be expressly stated. This is because there is a strong presumption that proof of fault is required in relation to an offence.  As there was no such express statement of strict liability in relation to this aspect of the offence in paragraph 233(1)(a), the default element provisions provided for in subsection 5.6(2) of the Criminal Code were applied.  These default provisions applied the fault element of “recklessness” to the circumstance of the offence, which changed the offence as it had been construed prior to the application of the Criminal Code to the Act.

 

239.           New subsection 233(1A) makes it clear that strict liability applies to the circumstance element of the offence in paragraph 233(1)(a).  In this way, it ensures that the offence in paragraph 233(1)(a) operates as it did prior to the application of the Criminal Code .

 

240.           It should be noted that the conduct element of the offence remains unchanged. That is, the prosecution needs to prove that the defendant intended to take part in ‘the bringing or coming to Australia of a non-citizen’. 

 

241.           Note at the end of item 13 - After this item a note is inserted referring the reader to section 6.1 of the Criminal Code in relation to the matter of strict liability.

 

242.           “Strict liability” is defined in section 6.1 of the Criminal Code and means that the prosecution does not need to prove any fault element in relation to an offence.  In cases of strict liability, the defence of mistake of fact is available to a defendant (see section 9.2 of the Criminal Code ).

 

Item 14           Subsection 268BJ(1)

 

243.           This item amends subsection 268BJ(1) of the Act, which makes it an offence for a person to give or show false or misleading documents to an authorised officer in the course of complying with a production or attendance notice.

 

244.           Under subsection 5(1) of the Act, an authorised officer is defined to mean an officer authorised in writing by the Minister or Secretary for the purposes of a provision of the Act.

 

245.           Currently, the fault element applicable to the conduct element of the offence in subsection 268BJ(1) requires proof that the person was aware that they were giving or showing a false or misleading document to an authorised officer .

 

246.           This could make it difficult to enforce the offence in practice, because it may be difficult for the prosecution to demonstrate that the defendant was aware that the person they were giving or showing false or misleading documents to was an authorised officer within the meaning of the Act.

 

247.           For example, the required fault element could not be established if the evidence established that the defendant was aware that the person to whom he or she gave the false or misleading document was an officer of the Department, but not that he or she was aware that the officer had been authorised in writing by the Minister or Secretary for the purposes of section 268BJ.

 

248.           The purpose of the amendment to subsection 268BJ(1) is to ensure that the offence it creates can be effectively enforced. This is achieved by ensuring that it is not an element of the offence that the person was aware that they were giving or showing a false or misleading document to an authorised officer .

 

Item 15           Section 268CM

 

249.           This item amends section 268CM of the Act, which makes it an offence for a person to give false or misleading information whilst complying or purporting to comply with section 268CJ or 268CK of the Act.

 

250.           Currently, the wording of the offence in section 268CM is inconsistent with the nature of the powers in sections 268CJ and 268CK of the Act.  The amendment will omit the words “section 268CJ or 268CK (officer may ask questions)” and substitute “a request under section 268CJ or a requirement under section 268CK”.

 

251.           In summary, section 268CJ allows an authorised officer to enter the premises of an education provider with consent and ask the occupier or another person on the premises to answer any questions that are relevant to a visa monitoring purpose (as defined in section 268AA).  In addition, the authorised officer can ask the occupier to give or show the officer any document that is relevant to the matter.

 

252.           There is no obligation for an occupier or another person on the premises to comply with the request of the authorised officer.

 

253.           Section 268CK, by comparison, allows an authorised officer to require an occupier or another person on the premises to answer questions or to give or show a document for visa monitoring purposes.

 

254.           The purpose of the amendment to section 268CM is to ensure that the wording of the offence it creates is in line with section 268CJ, which does not require a person to comply with a request made under the section; and section 268CK, which does require a person to comply with a request made under the section.

 

Item 16           Subsection 268CN(1)

 

255.           This item amends subsection 268CN(1) of the Act by omitting the term “ authorised officer  

 

256.           Subsection 268CN(1) makes it an offence for a person to give or show false or misleading documents to an authorised officer in the course of complying with a production or attendance notice.

 

257.           Under subsection 5(1) of the Act, an authorised officer is defined to mean an officer authorised in writing by the Minister or Secretary for the purposes of a provision of the Act.

 

258.           Currently, the fault element applicable to the conduct element of the offence requires proof that the person was aware that they were giving or showing a false or misleading document to an authorised officer .

 

259.           This could make it difficult to enforce the offence in practice, because it may be difficult for the prosecution to demonstrate that the defendant was aware that the person they were giving or showing false or misleading documents to was an authorised officer within the meaning of the Act.

 

260.           For example, the required fault element could not be established if the evidence established that the defendant was aware that the person to whom he or she gave the false or misleading document was an officer of the Department, but not that he or she was aware that the officer had been authorised in writing by the Minister or Secretary for the purposes of section 268CN.

 

261.           The purpose of the amendment to subsection 268CN(1) is to ensure that the offence it creates can be effectively enforced.  This is achieved by ensuring that it is not an element of the offence that the person was aware that they were giving or showing false or misleading documents to an authorised officer .

 

Item 17           Subsection 268CN(1)

 

262.           This item amends subsection 268CN(1) of the Act, which makes it an offence for a person to give or show false or misleading documents whilst complying or purporting to comply with section 268CJ or 268CK of the Act.

 

263.           Currently, the wording of the offence in subsection 268CN(1) is inconsistent with the nature of the powers in sections 268CJ and 268CK of the Act.  The amendment will omit the words “section 268CJ or 268CK (officer may ask questions)” and substitute “a request under section 268CJ or a requirement under section 268CK”.

 

264.           Section 268CJ allows an authorised officer to enter the premises of an education provider with consent and ask the occupier or another person on the premises to answer any questions that are relevant to a visa monitoring purpose (as defined in section 268AA).

 

265.           In addition the authorised officer can ask the occupier to give or show the officer any document that is relevant to the matter.

 

266.           There is no obligation for an occupier to comply with the request of the authorised officer to answer questions or to give or show documents.

 

267.           Section 268CK, by comparison, allows an authorised officer to require an occupier or another person on the premises to answer questions or require an occupier to give or show a document for visa monitoring purposes.

 

268.           The purpose of the amendment to subsection 268CN(1) is to ensure that the wording of the offence it creates is in line with section 268CJ, which does not require a person to comply with a request made under the section; and section 268CK, which does require a person to comply with a request made under the section.

 

Part 3—The taking of securities

 

Item 18           Subsection 269(1)

 

269.           This item makes a minor technical amendment to subsection 269(1) of the Act by inserting the words “, subject to subsection (1A),” after the words “authorized officer may”.  The item takes account of the amendment made by item 19 below that inserts new subsection 269(1A) by making subsection 269(1) subject to new subsection 269(1A).

 

Item 19           After subsection 269(1)

 

270.           This item inserts new subsection 269(1A) after subsection 269(1) of the Act.  The amendment clarifies the power of an authorized officer to require and take security in relation to an application for a visa.  

 

271.           New subsection 269(1A) provides that, in certain circumstances, an authorized officer may require and take security under subsection 269(1), in relation to an application for a visa before a visa is granted.  However the officer may do this only if the security is for compliance with conditions that will be imposed on the visa in pursuance of, or for the purposes of, the Act or regulations, if the visa is granted and if the officer has indicated those conditions to the visa applicant.

 

272.           The purpose of the amendment is intended to clear the uncertainty raised in the Federal Court decision of Tutugri v Minister for Immigration and Multicultural Affairs [1999] FCA 1785. 

 

273.           In that case, the Federal Court raised significant doubts about the power of an authorized officer to request and take security for compliance with conditions to be imposed on a visa at a time before the visa is actually granted.  The court considered that a condition on a visa does not bind the applicant until after the visa is granted.  As such, a condition cannot be said to have been “imposed” prior to grant.  This has presented difficulties from a practical point of view in the administration of these arrangements - the reason being, that a security must be able to be required before a visa grant.  Once the visa is granted, the holder can simply refuse to provide the security requested.

 

274.           The amendments address this uncertainty by allowing officers to take securities before the visa is granted.  Any security taken by an officer is intended to apply only if the visa is granted.  As such, the security will be returned to the individual if for some reason the visa is no longer required.

 

Item 20           Application

 

275.           This item provides that the amendments made by items 18 and 19 of this Schedule apply in relation to all visa applications made after the commencement of those items.  The commencement of these items will be a day or days to be fixed by Proclamation.

 

Part 4—Minor amendments

 

Item 21           Subsection 48(2)

 

276.           This item, together with item 22, makes it clear that section 48 only operates to restrict visa applications that a person can make while he or she is present in Australia (ie: in the migration zone).

 

277.           This item amends subsection 48(2) by inserting the words “(which applies only in respect of applications made while a non-citizen is in the migration zone)” after the word “section” where it first occurs.

 

278.           Section 48 imposes a bar on repeat visa applications made by a person in Australia who has had a visa application refused or cancelled since last entering Australia.  The intention is to prevent non-citizens refused a visa, or who have had a visa cancelled since last entering Australia, from applying for another visa in Australia other than certain prescribed visas.

 

279.           Subsection 48(2) provides that in certain situations, non-citizens are to be treated as having been continuously in the migration zone despite having left Australia and returned to Australia.

 

280.           The amendment clarifies that the bar in section 48 applies to repeat applications made while the applicant is actually in the migration zone.  It does not bar such applications made while the applicant is outside the migration zone.

 

Item 22           At the end of section 48

 

281.           This item inserts new subsection 48(3) at the end of section 48 of the Act.  This item, together with item 21, reinforces the intended effect of section 48, which is to only restrict visa applications that a person can make while he or she is present in Australia (ie: in the migration zone).

 

282.           Subsection 48(1) provides that a non-citizen who does not hold a substantive visa and who after last entering Australia was refused a visa, or had a visa cancelled, may only apply for a prescribed class of visa.  This is to prevent non-citizens refused a visa or who have had a visa cancelled, from applying for another visa in Australia other than certain prescribed visas.

 

283.           At present, an identified anomaly exists in the legislation which enables certain bridging visa holders, to circumvent the section 48 limitation.  This occurs where a non-citizen leaves and re-enters Australia as the holder of a certain class of bridging visa (Bridging Visa B).  Unlike other types of visa or bridging visas, this particular bridging visa enables the holder to leave and re-enter Australia. All other bridging visas cease on departure from Australia.  

 

284.           As a result, on re-entering Australia, the non-citizen holder of this particular bridging visa has not technically had a visa refused or cancelled “after last entering Australia” as specified by section 48.  This enables a person to apply for a visa of a class other than those prescribed in the Regulations.

 

285.           It was never intended that these bridging visa holders who leave and re-enter Australia be exempted from the restriction imposed by section 48.

 

286.           New subsection 48(3) corrects this situation.  It provides that a non-citizen who leaves and re-enters the migration zone while holding a bridging visa, is taken to have been continuously in the migration zone despite that travel. 

 

287.           This ensures that the restrictions imposed by section 48 on further visa applications will apply as originally intended.

 

Item 23           Application

 

288.           This item provides that section 48, as amended by item 22 of this Schedule, applies to all visa applications made or purported to be made after the commencement of that item ( the commencement time ), regardless of:

 

·            whether the bridging visa mentioned in subsection 48(3) was granted before or after the commencement time; and

·            whether the travel mentioned in subsection 48(3) took place before or after the commencement time.

 

289.           This means that a non-citizen is subject to the section 48 limitation on making further visa applications in the following circumstances:

 

·            where they leave and re-enter Australia before the commencement time on a bridging visa and apply for a subsequent visa after the commencement time;

·            where they leave Australia before the commencement time, re-enter Australia after the commencement time and apply for a subsequent visa after the commencement time; and

·            where they leave and re-enter Australia after the commencement time on a bridging visa that allows such travel and apply for a subsequent visa after the commencement time.

 

290.           The proposed new subsection 48(3) applies only to visa applications made in the migration zone.  It does not prevent a non-citizen from travelling outside Australia and making a valid application for a visa that can be applied for outside Australia whilst he or she is outside Australia.

 

Item 24           After subsection 82(7)

 

291.           This items inserts new subsection 82(7A) after subsection 82(7) of the Act. 

 

292.           Proposed subsection (7A) clarifies the time at which a bridging visa ceases to be in effect. 

 

293.           Under section 73 of the Act a bridging visa may be granted to an eligible non-citizen to permit the non-citizen to remain in, or to travel to, enter and remain in, Australia.  A bridging visa has effect during a specified period or until a specified event happens. 

 

294.           Schedule 2 to the Regulations specifies the events which will result in the cessation of a bridging visa. 

 

295.           Section 82 sets out the general rules for determining when visas cease to be in effect and qualifies the manner in which section 73 and Schedule 2 to the Regulations should be interpreted.

 

296.           New subsection 82(7A) provides that a bridging visa ceases to be in effect the moment a certain ceasing event happens, rather than at the end of the day on which the event occurs.  This event is one where the happening of the event results in the bridging visa ceasing to permit the holder to remain in, or to travel to, enter and remain in, Australia. 

 

297.           Where the “event” is the cancellation of the substantive visa, this means that the bridging visa would cease the moment that the non-citizen’s substantive visa is cancelled.  Where a bridging visa is in effect until the holder’s release from criminal detention, the bridging visa will cease immediately upon the person being released from criminal detention.  These events are, however, not exhaustive examples of how new subsection 82(7A) operates.

 

298.           The purpose of new subsection 82(7A) is to give effect to the policy intention.  It ensures that if an event happens, which results in the bridging visa ceasing to permit the holder to remain in, or to travel to, enter and remain in, Australia, then the person’s bridging visa ceases immediately upon the happening of that event. 

 

Item 25           Application

 

299.           This item provides that new subsection 82(7A), as inserted by item 24 of this Schedule, applies in relation to all bridging visas that are held at any time after the commencement of that item, regardless of whether the bridging visas were granted before or after that time.

SCHEDULE 4 - Miscellaneous

 

Migration Act 1958

 

Item 1                         Subsection 52(3C) (note 2)

 

300.           This item repeals note 2 in subsection 52(3C) of the Migration Act 1958 (“the Act”) and substitutes a new note 2.

 

301.           Subsection 52(3C) provides that where two or more non-citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them.  

 

302.           Note 2 currently informs the reader that if a person gives the Minister notice under section 494D of the Act, documents that would have been given to the person will be given to the person’s authorised recipient.  Since item 4 of this Schedule will amend section 494D to provide that in some instances the Minister will not be obliged to communicate with an authorised recipient, it is necessary to amend note 2 so that it accurately refers to section 494D.  Accordingly new note 2 simply states that section 494D of the Act deals with giving documents to a person’s authorised recipient. 

 

Item 2                         Subparagraph 193(1)(d)(ii)

 

303.           This item omits “a lawful non-citizen” and substitutes “granted a substantive visa” in subparagraph 193(1)(d)(ii) of the Act.

 

304.           Paragraph 193(1)(d), in conjunction with subsection 198(2), currently provides that an officer must remove an unlawful non-citizen detained under section 189 of the Act, who held an enforcement visa that has ceased to be in effect and who has not been a lawful non-citizen since the enforcement visa ceased.  Enforcement visas are granted to suspected illegal foreign fishers and suspected environmental offenders by operation of law when fisheries or environment officers take enforcement action under the Fisheries Management Act 1991 , the Torres Strait Fisheries Act 1984 or the Environment Protection and Biodiversity Conservation Act 1999 .

 

305.           These provisions, however, do not authorise the removal of illegal foreign fishers or environmental offenders who are granted a criminal justice visa or a bridging visa (visas which are non-substantive visas) while for example in remand or serving a custodial sentence, after their enforcement visa ceased to be in effect, because the granting of these visas would make them a lawful non-citizen. 

 

306.           Accordingly, this item amends subparagraph 193(1)(d)(ii) so that the requirement to remove an unlawful non-citizen detained under section 189 of the Act applies to a person who held an enforcement visa that has ceased, and has not been granted a substantive visa since the enforcement visa ceased. The term “substantive visa” is defined under section 5 of the Act to mean a visa other than a bridging visa, criminal justice visa or an enforcement visa.

307.           This amendment ensures paragraph 193(1)(d) and subsection 198(2) operate consistently with the original policy intention of these provisions.

 

Item 3                         Section 494A (note)

 

308.           This item repeals the note in section 494A of the Act and substitutes a new note.

 

309.           Section 494A provides that where a provision of the Act or the Migration Regulations 1994 (“the Regulations”) requires or permits the Minister to give a document to a person and the provision does not state the method by which the document must be given, the Minister may give the document by any method he or she considers appropriate. 

 

310.           The note currently informs the reader that under section 494D a person may give the Minister the name of an authorised recipient who is to receive documents on the person’s behalf.  Since item 4 of this Schedule will amend section 494D to provide that in some instances the Minister will not be obliged to communicate with an authorised recipient, it is necessary to amend the note so that it accurately refers to section 494D.  Accordingly the new note simply states that section 494D of the Act deals with giving documents to a person’s authorised recipient.

 

Item 4                         At the end of section 494D

 

311.           This item adds new subsection (5) at the end of section 494D of the Act.

 

312.           Subsection 494D(1) provides that where a person (“the first person”) gives the Minister written notice of the name and address of an authorised recipient, the Minister must give the authorised recipient any documents that would have otherwise been given to the first person.  Subsection 494D(4) provides that the Minister may communicate with the first person by means other than giving a document to the first person, provided the Minister gives the authorised recipient notice of the communication. 

 

313.           New subsection 494D(5) provides that the Minister is not obliged to comply with subsection 494D(1) or the requirement in subsection 494D(4) to give a notice if each of paragraphs (a), (b) and (c) apply.  Namely, that the authorised recipient is not a registered migration agent, the Minister reasonably suspects that the authorised recipient is giving immigration assistance and the Minister gives the first person notice, by a method specified in section 494B of the Act, stating that the Minister does not intend to give the documents to the authorised recipient.  The methods specified in section 494B for giving documents are giving the document to a person by hand; or by handing it to a person at the last residential or business address; or by dispatching it by prepaid post or transmitting by fax, e-mail or other electronic means.          

 

314.           If the Minister exercises the discretionary power in new subsection 494D(5) and refuses to communicate with the authorised recipient the Minister would give the relevant documents to the first person instead of the authorised recipient. 

 

315.           The effect of this amendment is that it will allow the Minister to refuse to communicate with an authorised recipient in relation to whom there are concerns, for example, about their character, conduct or professionalism.  The power is discretionary, however, so that in the overseas context where there is no migration agents registration scheme, if the Minister has no such concerns he or she can continue to communicate with authorised recipients providing immigration assistance.  In addition, under policy the Minister will continue to communicate with authorised recipients who, for example, are parliamentarians, lawyers, officials, individuals giving immigration assistance without fee or reward, close family members, persons nominating visa applicants, or persons sponsoring visa applicants.

 

316.           The amendments will also ensure that the Minister has the power to refuse to communicate with an authorised recipient who has previously been registered as a migration agent but whose registration has been cancelled by the Migration Agents Registration Authority (the MARA) for disciplinary reasons, or who has been refused registration because they are not a fit and proper person to provide immigration assistance or are not a person of integrity.  The Act does not currently contain a mechanism for the Minister to refuse to communicate with an authorised recipient on these grounds.

 

Item 5             After section 501H

317.           This item inserts new section 501HA into the Act, which is a technical amendment, applying to transitional (permanent) visas and transitional (temporary) visas that came to be held under the Migration Reform (Transitional Provisions) Regulations on 1 September 1994.   

 

318.           New section 501HA addresses obiter comments in the Full Federal Court’s decision of Moore v Minister for Immigration and Citizenship [2007] FCAFC 134 that cast doubt on whether a previous character cancellation decision made under subsection 501(2) of the Act in respect of a transitional (permanent) visa was valid in circumstances where the visa came to be “held” rather than “granted”.  This is because, on its face, subsection 501(2) only allows cancellation of a visa that “has been granted”

 

319.           New section 501HA will clarify the matter by providing that if a person held a visa or permit that continues in effect as a transitional (permanent) visa or a transitional (temporary) visa, or is taken to hold a transitional (permanent) visa, the person is also taken for the purposes of sections 501 to 501H of the Act to have been granted a visa. 

 

Item 6             Application

 

320.           Subitem (1) provides that the amendment made by item 2 of this Schedule applies to illegal foreign fishers and environmental offenders who have been granted a bridging visa or a criminal justice visa on or after the day on which that item commences.

 

321.           Subitem (2) provides that the amendments made by item 4 of this Schedule, apply whether the notice under subsection 494D(1) to appoint an authorised recipient is given before, on or after commencement of that item.

322.           Subitem (3) provides that the amendment made by item 5 of this Schedule applies in respect of a decision to cancel a visa that is made under the Act on or after the day on which new section 501HA commences.

 

Item 7                         Validation of pre-commencement decisions in relation to transitional (permanent) visas and transitional (temporary) visas

 

323.           Subitem 7(1) provides that to avoid doubt, any decision made or purported to have been made to cancel a transitional (permanent) visa or a transitional (temporary) visa is as valid, and will be taken to have always been as valid, as it would have been if the transitional (permanent) visa or transitional (temporary) visa were a visa that had been granted.

 

324.           The effect of this amendment is to provide validation of past visa cancellation decisions made under sections 501, 501A, 501B, 501C or 501F of the Act (as in force at any time on or after 1 September 1994 and before the day on which item 7 commences) in respect of transitional (permanent) visas and transitional (temporary) visas, if they would be invalid because they were made in respect of visas that were not technically ‘granted’.              

 

325.           Subitem 7(2) inserts definitions for the terms “transitional (permanent) visa” and “transitional (temporary) visa” for the purposes of subitem 7(1).  It provides that “transitional (permanent) visa” means a transitional (permanent) visa referred to in the Migration Reform (Transitional Provisions) Regulations , and that “transitional (temporary) visa” means a transitional (temporary) visa referred to in the Migration Reform (Transitional Provisions) Regulations .

 



SCHEDULE 5 - Amendments relating to Australian Citizenship

 

Australian Citizenship Act 2007

 

Item 1A           Section 3

 

326.           This item inserts the definition of “Stateless Persons Convention” into section 3 of the Australian Citizenship Act 2007 (“the Citizenship Act”). That section provides for the definitions of certain terms used in the Citizenship Act. 

 

327.           This definition provides that the Stateless Persons Convention means the Convention Relating to the Status of Stateless Persons; done at New York on 28 September 1954 [1974] ATS 20. The note further provides that the text of the Convention is set out in the Australian Treaty Series 1974 No 20 that is currently available in the Australian Treaties Library on the AustLII website. 

 

328.           The definition of “Stateless Persons Convention” in this item provides the definition for this term used in items 1 and 2 below.   

 

Item 1             Paragraph 16(2)(c)

 

329.           This item amends paragraph 16(2)(c) of the Australian Citizenship Act 2007  (the Citizenship Act) by inserting the words “is or has ever been a national or a citizen of any country of if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person” after the words “if the person”.

 

330.           Section 16 of the Citizenship Act provides the eligibility criteria for citizenship by descent and subsection 16(2) sets out the criteria for persons born outside Australia on or after 26 January 1949.  Paragraph 16(2)(c) currently provides that the Minister must be satisfied that the person is of good character if the person was 18 years or over at the time of application.

 

331.           The effect of this amendment is that an applicant who is or has ever been a national or citizen of any country or is not a ‘stateless person’ under article 1(2)(iii) of the “Stateless Persons Convention” (defined by item 1A that amends section 3 of the Citizenship Act), and is aged 18 or over at the time of application, must meet the good character requirement prescribed in paragraph 16(2)(c).  An applicant who is not or has never been a national or citizen of any country and does not fall within article 1(2)(iii) of the Stateless Persons Convention, or is under 18 years of age, is not required to meet the good character requirement.

 

332.            Under article 1(2)(iii) of the “Stateless Persons Convention” a person with respect to whom there are serious reasons for considering they have committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime or have been guilty of acts contrary to the purposes and principles of the United Nations, is excluded from the application of the Convention.  

333.           This amendment ensures this provision accords with Australia’s obligations under the United Nations Convention on the Reduction of Statelessness 1961 and United Nations Convention Relating to the Status of Stateless Persons 1954 .

 

Item 2             Paragraph 16(3)(c)

 

334.           This item repeals paragraph 16(3)(c) of the Citizenship Act and substitutes a new paragraph (c) that states - “if the person is or has ever been a national or a citizen of any country or if article 1(2)(iii) of the Stateless Persons Convention applies to the person - the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.”

 

335.           Section 16 of the Citizenship Act provides the eligibility and application criteria for citizenship by descent and subsection 16(3) sets out the criteria for persons born outside Australia or New Guinea before 26 January 1949. Paragraph 16(3)(c) provides that the Minister must be satisfied that the person is of good character at the time of the Minister’s decision on the application.

 

336.           This amendment will have a similar effect (with regard to citizenship applicants born outside Australia or New Guinea before 26 January 1949) as the amendment in item 1 of this Schedule. An applicant who is or has ever been a national or citizen of any country or is not a ‘stateless person’ under article 1(2)(iii) of the “Stateless Persons Convention” (defined by item 1A that amends section 3 of the Citizenship Act), must meet the good character requirement prescribed in paragraph 16(3)(c).  An applicant who is not or has never been a national or citizen of any country and does not fall within article 1(2)(iii) of the Stateless Persons Convention is not required to meet the good character requirement.

 

337.           Under article 1(2)(iii) of the “Stateless Persons Convention” a person with respect to whom there are serious reasons for considering they have committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime or have been guilty of acts contrary to the purposes and principles of the United Nations, is excluded from the application of the Convention.

 

338.           This amendment ensures this provision accords with Australia’s obligations under the United Nations Convention on the Reduction of Statelessness 1961 and United Nations Convention Relating to the Status of Stateless Persons 1954 .

 

Item 3             Paragraphs 21(2)(b) and (c)

 

339.           This item repeals paragraphs 21(2)(b) and (c) of the Citizenship Act and substitutes new paragraphs 21(2)(b) and (c). 

 

340.           Subsection 21(2) of the Citizenship Act sets out the general eligibility criteria for citizenship (citizenship by conferral).  Paragraphs 21(2)(b) and (c) currently provide that a person is eligible to become an Australian citizen if the Minister is satisfied, among other things, that at the time of application the person is a permanent resident and either satisfies the residence requirement or has completed relevant defence service.

 

341.           New paragraph 21(2)(b) alters the existing provision by providing, in effect, that in order to qualify for citizenship under the general eligibility criteria, a person must be a permanent resident at the time of their application and also at the time of the Minister’s decision on the application.

 

342.           New paragraph 21(2)(c) is a consequential amendment to eliminate uncertainty in the provision by making it clear that the time at which the Minister must be satisfied that a person meets the residence requirement, or has completed relevant defence service, is at the time of application. The residence requirement and the completion of relevant defence service are assessed at the time of application, not at the time of decision.

 

Item 4                         Paragraphs 21(3)(b) to (d)

 

343.           This item repeals paragraphs 21(3)(b), (c) and (d) of the Citizenship Act and substitutes new paragraphs 21(3)(b), (c) and (d). 

 

344.           Section 21 of the Citizenship Act provides the eligibility criteria for citizenship by conferral and subsection 21(3) sets out the criteria for persons with permanent physical or mental incapacity. Paragraphs 21(3)(b) to (d) currently provide that a person is eligible to become an Australian citizen if the Minister is satisfied, among other things, that at the time of application the person is a permanent resident, and either satisfies the resident requirement or has completed relevant defence service, and has a permanent physical or mental incapacity.

 

345.           New paragraphs 21(3)(b), (c) and (d) are similar in effect (with regard to citizenship applicants with permanent physical or mental incapacity) as the amendments in items 3 and 5 of this Schedule.  That is new paragraph 21(3)(b) alters the existing provision by providing, in effect, that in order to qualify for citizenship under subsection 21(3) a person must be a permanent resident at the time of their application and also at the time of the Minister’s decision on the application.  New paragraphs 21(3)(c) and (d) are consequential amendments to eliminate uncertainty in the provision by making it clear that the time at which the Minister must be satisfied that a person meets the residence requirement, or has completed relevant defence service, and has a permanent physical or mental incapacity that means the person is not capable of understanding the nature of the application, is at the time of application.

 

Item 5             Paragraphs 21(4)(b) to (d)

 

346.           This item repeals paragraphs 21(3)(b), (c) and (d) of the Citizenship Act and substitutes new paragraphs 21(4)(b), (c) and (d). 

 

347.           Section 21 of the Citizenship Act provides the eligibility criteria for citizenship by conferral and subsection 21(4) sets out the criteria for persons aged 60 or over who have a hearing, speech or sight impairment. Paragraphs 21(4)(b) to (d) currently provide that a person is eligible to become an Australian citizen if the Minister is satisfied, among other things, that at the time of application the person is a permanent resident, understands the nature of the application, and either satisfies the resident requirement or has completed relevant defence service.

 

348.           New paragraphs 21(4)(b), (c) and (d) are similar in effect (with regard to citizenship applicants aged 60 or over who have a hearing, speech or sight impairment) as the amendments in items 3 and 4 of this Schedule.  That is new paragraph 21(4)(b) alters the existing provision by providing, in effect, that in order to qualify for citizenship under subsection 21(4) a person must be a permanent resident at the time of their application and also at the time of the Minister’s decision on the application.  New paragraphs 21(4)(c) and (d) are consequential amendments to eliminate uncertainty in the provision by making it clear that the time at which the Minister must be satisfied that a person understands the nature of the application and meets the residence requirement, or has completed relevant defence service, is at the time of application.

 

Item 6             Paragraph 21(6)(d)

 

349.           This item repeals paragraph 21(6)(d) of the Citizenship Act and substitutes a new paragraph 21(6)(d).

 

350.           Section 21 of the Citizenship Act provides the eligibility criteria for citizenship by conferral and subsection 21(6) sets out the criteria for a person born to a former Australian citizen. Paragraph 21(6)(d) provides that the Minister must be satisfied that the person is of good character. 

 

351.           Paragraph 21(6)(d) does not limit the character requirement to persons aged 18 or over.  Accordingly, new paragraph 21(6)(d) provides in effect that an applicant for citizenship by conferral on the basis that their parent is a former Australian citizen under subsection 21(6) of the Citizenship Act, is only required to be of good character if they are aged 18 years or over at the time of application.  This amendment will achieve consistency with other provisions in the Citizenship Act that only require applicants aged 18 years or over to meet the good character requirement.

 

Item 7             Paragraph 21(8)(b)

 

352.           This item omits the words “at the time the person made the application” from paragraph 21(8)(b) of the Citizenship Act.

 

353.           Section 21 of the Citizenship Act provides the eligibility criteria for citizenship by conferral and subsection 21(8) sets out the criteria for stateless persons. Paragraph 21(8)(b) provides that the Minister must be satisfied that at the time of application the person is not a national or a citizen of any country.

 

354.           The amendment alters existing paragraph 21(8)(b) by providing, in effect, that the person is not a national or citizen of any country at the time of the Minister’s decision and not at the time of application, as is currently the case.  This will ensure that a person who is stateless at the time of the Minister’s decision on the application is not denied citizenship, which would be inconsistent with Australia’s obligations under the United Nations Convention on the Reduction of Statelessness 1961 .  

 

Item 8             Paragraphs 21(8)(d) and (e)

 

355.           This item repeals paragraphs 21(8)(d) and (e) of the Citizenship Act and substitutes a new paragraph 21(8)(d).

 

356.           Section 21 of the Citizenship Act provides the eligibility criteria for citizenship by conferral and subsection 21(8) sets out the criteria for stateless persons. Paragraph 21(8)(d) currently provides that the Minister must be satisfied at the time the person made the application, that the person does not have reasonable prospects of acquiring the nationality or citizenship of a foreign country.  Paragraph 21(8)(e) provides that the Minister must be satisfied at the time the person made the application, that the person has never had reasonable prospects of acquiring the nationality or citizenship of a foreign country.

 

357.            New paragraph 21(8)(d) will replace the two current provisions referred to with one provision that provides that the Minister must be satisfied that the person is not entitled to acquire the nationality or citizenship of a foreign country.

 

358.           The amendment in this item makes three important changes to the current provisions.  First it repeals paragraph 21(8)(e) which operates to deny eligibility to a person who has ever had reasonable prospects of acquiring the nationality or citizenship of a foreign country, even if they have no such prospects at the time they apply or when their application is being decided. This is consistent with Australia’s obligations under the United Nations Convention on the Reduction of Statelessness 1961 (the Convention). 

 

359.           Secondly, new paragraph 21(8)(b) will replace the current requirement for the applicant not to have “reasonable prospects” of acquiring the nationality or citizenship of a foreign country, with the requirement that the applicant is not entitled to acquire the nationality or citizenship of a foreign country.  The term “reasonable prospects” is too broad and can operate to deny citizenship to persons who are not in fact entitled to acquire the citizenship or nationality of a foreign country. This new formulation of not being “entitled to acquire” the nationality or citizenship of a foreign country is consistent with the language used in the Australian Citizenship Act 1948 and also with Australia’s obligations under the Convention.

 

360.           Thirdly, new paragraph 21(8)(d) also amends the time at which the Minister must be satisfied that a person is not entitled to acquire the nationality or citizenship of a foreign country.  That is, the Minister will now be required to be satisfied of this at the time of the Minister’s decision, rather than at the time of application.  This will ensure that a person is not denied eligibility for citizenship under subsection 21(8) where they were entitled to acquire citizenship and nationality at the time of application, however at the time of the Minister’s decision they were no longer entitled to acquire citizenship and nationality. This change is consistent with the amendment in item 7 of this Schedule and also with Australia’s obligations under the Convention.

 

Item 9             Paragraph 22(1B)(b)

 

361.           This item omits the expression “3 months” and substitutes the expression “90 days” in paragraph 22(1B)(b) of the Citizenship Act.

 

362.           Section 22 of the Citizenship Act provides the residence requirement for the purposes of section 21. Subsection 22(1B) of the Citizenship Act allows a person to have spent up to “3 months” outside Australia during the 12 month period that a person is required to be physically present in Australia as a permanent resident under subsection 22(1)(d) of the Citizenship Act. 

 

363.           This amendment specifies the number of days a person is able to be absent from Australia and still satisfy the residence requirement because a period of “3 months” can differ given the irregular lengths of the months.

 

Item 10                       Subparagraph 23(a)(i)

 

364.           This item is similar to item 9 of this Schedule in that it omits the expression “3 months” and substitutes the expression “90 days” in subparagraph 23(a)(i) of the Citizenship Act.

 

365.           Section 23 of the Citizenship Act provides the relevant defence service a person must complete for the purposes of section 21. Subparagraph 23(a)(i) provides that a person must have completed at least “3 months service” in the permanent forces of the Commonwealth.

 

366.           This amendment specifies the number of days service a person must have completed, because a period of “3 months” can differ given the irregular lengths of the months. This amendment is also to ensure there are consistent terms used to describe time periods across the Act.

 

Item 12                       Subsection 24(2)

 

367.           This item omits the reference to subsection 21(8) from subsection 24(2) of the Citizenship Act.

 

368.           Subsection 24(2) of the Citizenship Act provides the Minister with a discretion to refuse to approve a person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsections 21(2), (3), (4), (5), (6), (7) or (8).  Subsection 21(8) relates to persons born in Australia who are eligible to become Australian citizens by conferral if they are stateless.

 

369.           The discretion to refuse to approve stateless persons becoming Australian citizens was not contained in the Australian Citizenship Act 1948 .  To ensure the Australian Citizenship Act 2007 operates consistently with Australia’s obligations under the United Nations Convention on the Reduction of Statelessness 1961 , this discretion has been removed.

 

Item 13                       After subsection 24(4C)

 

370.           This item inserts new subsection 24(4D) to the Citizenship Act which provides that, to avoid doubt, subsection 24(4A) applies to persons eligible to become an Australian citizen under subsection 21(8). 

 

371.           This item is consequential to the amendment in item 12.  It ensures that although the discretion to refuse a person becoming an Australian citizen by being eligible under subsection 21(8) has been removed in subsection 24(2), subsection 24(4A) continues to apply to a person who is eligible to become an Australian citizen under subsection 21(8).

 

372.           Subsection 24(4A) provides that the Minister must not approve a stateless person becoming an Australian citizen if they have been convicted of a national security offence or, subject to subsection 24(4C), they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 5 years.  Subsection 24(4C) allows the Minister to decide that a stateless person born in Australia should not be refused citizenship because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 5 years (other than a national security offence) if this would be unreasonable.

 

Item 14           Application

 

373.           This item provides that the amendments made by items 1A to 13 of Schedule 5 apply in relation to applications made after the commencement of those items. The commencement of these items will be a day or days to be fixed by Proclamation.

 

Item 15           Paragraph 34(3)(a)

 

374.           This item repeals paragraph 34(3)(a) of the Citizenship Act and substitutes a new paragraph.

 

375.           Section 34 of the Citizenship Act provides the power for the Minister to revoke Australian Citizenship with subsection 34(3) providing where the Minister must not decide to revoke a person’s Australian citizenship by conferral.

 

376.            This amendment provides that, where a person would become stateless if their citizenship were revoked, the Minister must not decide to revoke a person’s citizenship if only subparagraph 34(2)(b)(ii) applies to the person.

 

377.           Subparagraph 34(2)(b)(ii) provides refers to where the person has, at any time after making the application for citizenship, been convicted of an offence for which they have been sentenced to death or to a serious prison sentence.

 

378.           The purpose of this amendment is to ensure that, in the case of a person who would become stateless if their citizenship was revoked, subsection 34(3) will only allow revocation in cases where there is citizenship or migration fraud, as provided for in subparagraphs 34(2)(b)(i), (iii) and (iv), and not where the person is only convicted of a serious offence.  This amendment will ensure the Citizenship Act is consistent with Article 8 of the United Nations Convention on the Reduction of Statelessness 1961 , which allows a state to deprive a person of his or her nationality in circumstances where the person would become stateless, where the nationality has been obtained by misrepresentation or fraud.

 

Item 16           Application

 

379.           This item provides that the amendment made by item 15 of Schedule 5 applies in relation to a decision concerning revocation of a person’s citizenship made after the commencement of item 15. The commencement of this item will be a day or days to be fixed by Proclamation.

 

Australian Citizenship (Transitionals and Consequentials) Act 2007

 

Item 17           Item 5B of Schedule 3

 

380.           This item repeals item 5B of Schedule 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Citizenship Transitionals Act) and substitutes a new item 5B.

 

381.           Item 5B of Schedule 3 provides the transitional provisions for persons who are permanent residents at the commencement of the Australian Citizenship Act 2007 (the Citizenship Act) and apply for citizenship within 3 years from 1 July 2007.  In those cases item 5B provides that subsection 22(1) of the Citizenship Act does not apply, and applies alternative residence requirements.  However, the discretions that the Minister may exercise with respect to the residence requirements under subsections 22(5), 22(6) and 22(11) of the Citizenship Act (which are intended to continue to operate in these cases) all cross refer to the non applicable residence requirement in paragraph 22(1)(c) of the Citizenship Act, rendering those discretionary provisions ineffective. 

 

382.           New item 5B is substantially the same as the current item 5B of Schedule 3 except that it includes a new subitem 5B(3) which makes it clear that the discretions that the Minister may exercise under subsections 22(5), 22(6) and 22(11) of the Citizenship Act, continue to operate with respect to citizenship applications covered by item 5B of the Citizenship Transitionals Act.  New subitem 5B(3) achieves this by providing that in applying section 22 of the Citizenship Act to an application covered by subitem 5B(1) of the Citizenship Transitionals Act, subsections 22(5), (6) and (11) of the Citizenship Act have effect as if the reference in those subsections to “paragraph (1)(c)” were a reference to “subsection (1)” as applied by subitem (2) in new item 5B.

 

383.           The discretions referred to in subsections 22(5), (6) and (11) have been applied to applications covered by item 5B of Schedule 3 to the Citizenship Transitionals Act, through a beneficial interpretation of the legislation, since the Citizenship Act was introduced on 1 July 2007.  This amendment will clarify the issue and put that interpretation beyond doubt. 

 

 

Item 18           At the end of item 7 of Schedule 3

 

384.           This item adds a new subitem 7(9) in Schedule 3 to the Citizenship Transitionals Act.

 

385.           Item 7 of Schedule 3 provides the transitional provisions for applications made under the Australian Citizenship Act 1948 (the old Citizenship Act) including applications made by people who acquired permanent residence before the commencement of the Citizenship Act (1 July 2007) where the application was not decided before 1 July 2007.

 

386.           The effect of this amendment is to clarify that the residence discretions provided for by subsections 22(5), (6) and (11) of the Citizenship Act apply to applications covered by subitem 7(2) of Schedule 3 to the Citizenship Transitionals Act.  That is, applications made under sections 13 or 23D of the old Citizenship Act and not decided before 1 July 2007 such that they are taken to be an application under section 21 of the new Citizenship Act.

 

387.           The residence discretions in subsections 22(5), (6) and (11) have been applied to applications covered by subitem 7(2) of Schedule 3 to the Citizenship Transitionals Act since the Citizenship Act commenced on 1 July 2007 through a beneficial interpretation of the legislation.

 

Item 19           Validation of past decisions

 

388.           This item provides that a decision in relation to an application covered by subitem 5B(1) or 7(2) of Schedule 3 to the Citizenship Transitionals Act before the commencement of items 17 and 18 in this Schedule, is as valid and taken always to have been as valid as it would have been if the amendments made by items 17 and 18 had been in force at the time of the decision.

 

389.           The purpose of this amendment is to ensure that any decisions made taking a beneficial interpretation (as specifically provided for in subitems 5B(3) and 7(9)), following the commencement of the Citizenship Transitionals Act on 1 July 2007, are valid.