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Migration Legislation Amendment Bill (No. 1) 2008

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2008

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

 

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT BILL (NO. 1) 2008

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

 

 

Amendments to be moved on behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration and Citizenship,

Senator the Hon. Chris Evans)

AMENDMENTS TO THE MIGRATION LEGISLATION AMENDMENT                 BILL (NO. 1) 2008

 

 

OUTLINE

 

The amendments to the Migration Legislation Amendment Bill (No.1) 2008 (“the Bill”) are to ensure that measures contained in the Bill operate consistently with their intention. The amendments:

·          remove amendments in Schedule 1 of the Bill relating to time limits for applying for judicial review of migration decisions as they will not work appropriately in relation to decisions to which no merits review rights attach. Further consideration needs to be given to how best to reinstate effective time limits for all judicially reviewable decisions;

·          insert a new subsection at the end of sections 64ACD of the Customs Act 1901 and 245N of the Act to make it clear that an operator of an aircraft or ship is liable to separate prosecution under these offence provisions in relation to each individual passenger and crew, rather than in relation to each journey, not reported on prior to arrival in Australia;

·          provide in section 16 of the Australian Citizenship Act 2007 (“the Citizenship Act”) that an applicant who is not a ‘stateless person’ under Article 1(2)(iii) of the Convention Relating to the Status of Stateless Persons 1954 must be of good character to be eligible for citizenship by descent under section 16 of the Citizenship Act; and

·          remove the technical amendment to subparagraph 23(a)(ii) of the Citizenship Act to leave the requirement that an applicant must have completed at least “6 months” service, rather than “180 days” in the Reserves to meet the residence requirement.

 

FINANCIAL IMPACT STATEMENT

 

The amendments to the Bill made by Amendment (8) ensure that the Department of Immigration and Citizenship can issue separate infringement notices to operators of ships and aircraft (alleged to have committed an offence against subsection 245N(2)) in relation to each individual passenger and crew not reported on.  This gives effect to the original intention of the corresponding measures contained in the Bill.

 

As detailed in the explanatory memorandum, the new infringement notice regime to be established by Part 2 of Schedule 2 to the Bill is expected to result in 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 to the Bill made by Amendment (7) are not expected to have a substantial financial impact.

 

The other proposed amendments to the Bill have no financial impact.

AMENDMENTS TO THE MIGRATION LEGISLATION AMENDMENT                  BILL (NO. 1) 2008

 

NOTES ON AMENDMENTS

 

Amendment (1) - Clause 2, page 2 (table item 7) - Citizenship

 

1.       This amendment inserts new item 1A (contained in Amendment 9 below) in table item 7 of subclause 2(1) that sets out the commencement provisions of the Bill.

 

2.       Substituted table item 7 under subclause 2(1) of the Bill provides that Schedule 5, items 1A to 16 commence on a day or days to be fixed by Proclamation. If, however any of the provision(s) do not commence within the period of 6 months beginning on the day on which the Act receives the Royal Assent, they will commence on the first day after the end of that period.

 

Amendment (2) - Schedule 1, heading, page 4 (lines 2 and 3) - Time limits for judicial review

 

3.       This amendment omits “judicial and” from the heading of Schedule 1 to the Bill.

 

4.       This amendment is consequential to Amendments 3 to 6 (below) that remove items 30 to 35, subitem 37(4) and item 41 of the Bill that sought to reinstate time limits for applying for judicial review of migration decisions. The remaining items in Schedule 1 of the Bill relate to merits review.

 

5.       The effect of this amendment is that Schedule 1 will now be headed - Amendments relating to merits review.

 

Amendment (3) - Schedule 1, items 30 to 35, page 9 (line 6) to page 10 (line 18) - Time limits for judicial review

 

6.       This amendment removes items 30 to 35 of Schedule 1 to the Bill which sought to reinstate time limits for applying for judicial review of migration decisions in the Federal Magistrates Court, the Federal Court and the High Court (“the Courts”). Following introduction of the Bill into Parliament, it became apparent that these items produced an unintended consequence. While the amendments effectively reinstate time limits for merits reviewable decisions, these items would unintentionally remove time limits in relation to migration decisions to which no merits review rights attach (for example, in relation to applicants who are outside the migration zone).  Further consideration will be given to how best to reinstate effective time limits for all judicially reviewable decisions.

 

7.       Items 30 to 35 of the Bill sought to amend the Act to provide that where a person applies to the Courts for a remedy in exercise of the court’s original jurisdiction in relation to a migration decision, the person must make the application within 35 days of the day on which the decision is taken to have been made or such longer period as the court orders.  Items 30 to 35 of the Bill also provided that an application may be made, in writing, to the court for an extension of the 35 day period and vested the court with a broad discretion to extend time where it is necessary in the interests of the administration of justice to do so.

 

8.       As a consequence of the removal of items 30 to 35 in this amendment, subitem 37(4) and item 41 of Schedule 1 have also been removed as these items are related (see Amendments 4, 5 and 6 below).

 

Amendment (4) - Schedule 1, item 37, page 11 (lines 16 to 19) - Time limits for judicial review

 

9.       This amendment removes subitem 37(4) of Schedule 1 to the Bill.

 

10.   Subitem 37(4) provided that the amendments made by items 30 to 35 of this Schedule apply to proceedings for judicial review of a migration decision (within the meaning of the Act) that begin on or after the day on which those items commence.  This amendment is consequential to Amendment 3 that removes items 30 to 35.

 

Amendment (5) - Schedule 1, item 37, page 11 (line 20) - Time limits for judicial review

 

11.   This amendment removes a note at the end of subitem 37(4) of Schedule 1 to the Bill.

 

12.   The note at the end of subitem 37(4) referred readers to item 41 of this Schedule which contained a transitional provision in relation to time limits on applications for review of migration decisions.  This amendment is consequential to Amendment 6 below which will remove item 41 of Schedule 1 to the Bill.

 

Amendment (6) -Schedule 1, item 41, page 12 (line 21) to page 13 (line 37) - Time limits for judicial review

 

13.   This amendment removes item 41 of Schedule 1 to the Bill.

 

14.   Item 41 applied transitional provisions for the amendments in items 30 to 35 of Schedule 1, which concerned the time limits for applying to the courts for judicial review of a migration decision and the power to extend time for applying for a review.  This amendment is consequential to Amendment 3 that removes items 30 to 35.

 

Amendment (7) - Schedule 2, page 15 (after line 18), after item 8 - Reporting on passengers and crew

 

15.   This amendment inserts new item 8A after item 8 in Schedule 2 to the Bill.

 

16.   New item 8A 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”). 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.

 

17.   The original policy intention was 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 amendment 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.

 

18.   This amendment ensures that the amendments made by the Bill are consistent with the original policy intention.

 

Amendment (8) - Schedule 2, page 17 (after line 12), after item 16- Reporting on passengers and crew

 

19.   This amendment inserts new item 16A after item 16 in Schedule 2 to the Bill.

 

20.   New item 16A provides for new subsection 245N(4) to be inserted after subsection 245N(3) in Division 12B of Part 2 of the Act. 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.

 

21.   The original policy intention was 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 amendment 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.



22.   This amendment ensures that the amendments made by the Bill are consistent with the original policy intention.

 

Amendment (9) - Schedule 5, page 30 (before line 6), before item 1 - Citizenship

 

23.   This amendment inserts new item 1A into Schedule 5 of the Bill. 

 

24.   New item 1A 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.

 

25.   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.

 

26.   This new definition of “Stateless Persons Convention” in item 1A of Schedule 5 to the Bill provides the definition for this term used in Amendments 10 and 11 below.

 

Amendment (10) - Schedule 5, item1, page 30 (line 8) - Citizenship

 

27.   This amendment omits “any country and the person” from item 1 of Schedule 5 to the Bill and substitutes “any country or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person”.

 

28.   Item 1 of Schedule 5 to the Bill amends paragraph 16(2)(c) of the Citizenship Act after “if the person” to insert “is or has ever been a national or a citizen of any country and the person”.  Section 16 of the Citizenship Act provides the eligibility criteria for citizenship by descent with subsection 16(2) setting 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.

 

29.   The effect of Item 1 of Schedule 5 to the Bill was that only persons who are or who have ever been nationals or citizens of any country must meet the good character requirement prescribed in paragraph 16(2)(c). Persons who have never been nationals or citizens of any country (stateless persons) were not required to meet this requirement. This item was to ensure the Citizenship Act accords with Australia’s obligations under the United Nations Convention on the Reduction of Statelessness 1961 (“the CRS”).

 

30.   Subsequent to the introduction of the Bill into Parliament, it was realised that the Convention Relating to the Status of Stateless Persons 1954 (“Stateless persons convention” under this amendment) provides a definition of a ‘stateless person’ that should be included in the interpretation of the CRS.  The definition under article 1(2)(iii) of the “Stateless persons convention” provides that persons with respect to whom there are serious reasons for considering they have committed a crime against peace, a war crime, or a crime against humanity, have committed a serious non-political crime or have been guilty of acts contrary to the purposes and principles of the United Nations are not a ‘stateless person’.

 

31.   Consistent with Australia’s international obligations this amendment provides that if an applicant for citizenship by descent is a national or citizen of any country, or is not a ‘stateless person’ under article 1(2)(iii) of the “Stateless persons convention as defined in new item 1A, and is aged 18 or over at the time of application, the Minister must be satisfied that the applicant is of good character at the time of her or his decision.

 

Amendment (11) - Schedule 5, item 2, page 30 (lines 11 and 12) - Citizenship

 

32.   This amendment omits “any country” from item 2 of Schedule 5 to the Bill and substitutes “any country or if article 1(2)(iii) of the Stateless Persons Convention applies to the person”.

 

33.   Item 2 of Schedule 5 to the Bill proposed to repeal paragraph 16(3)(c) of the Citizenship Act and substituted a new paragraph (c) that stated - “if the person is or has ever been a national or a citizen of any country - the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.”

 

34.   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.

 

35.   The effect of item 2 of Schedule 5 to the Bill was that only persons who are or who have ever been nationals or citizens of any country must meet the good character requirement prescribed in paragraph 16(3)(c). Persons who have never been nationals or citizens of any country (stateless persons) were not required to meet this requirement. This item was to ensure the Citizenship Act accords with Australia’s obligations under the United Nations Convention on the Reduction of Statelessness 1961 (“the CRS”).

 

36.   Subsequent to the introduction of the Bill into Parliament, it was realised that the Convention Relating to the Status of Stateless Persons 1954 (“Stateless persons convention” under this amendment) provides a definition of a ‘stateless person’ that should be included in the interpretation of the CRS.  The definition under article 1(2)(iii) of the “stateless persons convention” provides that persons with respect to whom there are serious reasons for considering they have committed a crime against peace, a war crime, or a crime against humanity, have committed a serious non-political crime or have been guilty of acts contrary to the purposes and principles of the United Nations are not a ‘stateless person’.

 

37.   Consistent with Australia’s international obligations this amendment provides that if an applicant for citizenship by descent is a national or citizen of any country, or is not a ‘stateless person’ under article 1(2)(iii) of the stateless persons convention as defined in new item 1A, the Minister must be satisfied that the applicant is of good character at the time of her or his decision.

 

Amendment (12) - Schedule 5, item 11, page 31 (line 32) to page 32 (line 1) - Citizenship

 

38.   This amendment removes item 11 of Schedule 5 to the Bill.

 

39.   Item 11 of Schedule 5 to the Bill omitted the expression “6 months” and substituted the expression “180 days” in subparagraph 23(a)(ii) of the Citizenship Act.

 

40.   Section 23 of the Citizenship Act provides the relevant defence service a person must complete for the purposes of section 21. Subparagraph 23(a)(ii) provides that a person must have completed at least “6 months” service in the Naval, Army or Air Force Reserve.

 

41.   Under Department of Immigration and Citizenship and Department of Defence policy the equivalent of six months full time service in the Reserves is the completion of 130 service attendance days.  Subsequent to the introduction of the Bill, it became apparent that under this policy, meeting this requirement may take significantly longer than six months depending on the nature of a person’s service.  Item 11 of Schedule 5 of the Bill has therefore been removed to allow for further consultation regarding the policy behind this provision.

 

 

 

 

Amendment (13) - Schedule 5, item 14, page 32 (line 9), omit “items 1 to 13”, items 1A to 13”- Citizenship

 

42.   This amendment omits “items 1 to 13” and substitutes “items 1A to 13” in item 14 of Schedule 5 to the Bill.

 

43.   This amendment includes new item 1A in item 14 of Schedule 5 to the Bill.  The effect of this amendment is that 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.