text:
Details: C2006C00043
Migration Legislation Amendment Act 1989
- C2006C00043
Act No. 59 of 1989 as amended, taking into account amendments up to Act No. 180 of 1989
An Act to amend the law relating to migration, and for related purposes
Registered 06 Feb 2006
Start Date 20 Dec 1989
End Date 10 Dec 2015
Repealed by Amending Acts 1980 to 1989 Repeal Act 2015
C2006C00043
Table of contents.
Part 1—Preliminary
1 Short title [see Note 1]
2 Commencement [see Note 1]
Part 2—Amendments of Migration Act 1958
"Part III—Review of decisions
"Part IIIA—Immigration Review Tribunal
Schedule 1—Amendments of the Migration Act 1958 relating to penalties
Schedule 2—Amendments of the Migration Act 1958 relating to sexist language
Schedule 3—Amendments of the Migration Act 1958 relating to powers of secretary
Schedule 4—Amendments of the Migration Act 1958 relating to illegal entrants
Schedule 5—Other consequential amendments of the Migration Act 1958
Schedule 6—Consequential amendments of other Acts
Notes relating to section headings
Act No. 59 of 1989 as amended
This compilation was prepared on 28 June 2001
taking into account amendments up to Act No. 180 of 1989
The text of any of those amendments not in force
on that date is appended in the Notes section
Prepared by the Office of Legislative Drafting,
Attorney-General's Department, Canberra
Part 1—Preliminary 1
1............ Short title [see Note 1]....................................................................... 1
2............ Commencement [see Note 1].............................................................. 1
Part 2—Amendments of Migration Act 1958 2
3............ Principal Act....................................................................................... 2
4............ Interpretation...................................................................................... 2
5............ After section 5C of the Principal Act the following sections are inserted in Part I: 8
"5D....... Certain children taken to enter Australia at birth............................... 8
"5E........ How a person stops being an exempt non-citizen.............................. 8
"5F........ Visa applicable to 2 or more persons............................................... 10
"5G....... Meaning of custody........................................................................... 10
"5H....... Application of Part VA of the Marriage Act................................... 10
"5J........ Period of grace.................................................................................. 10
6............ (1) Divisions 1 and 1A of Part II of the Principal Act are repealed and the following Divisions are substituted: 11
"Division 1—Control of entry into Australia 11
"6.......... Illegal entrants................................................................................... 11
"7.......... Exemptions....................................................................................... 12
"8.......... Minister may declare exempt non-citizens to be undesirable........... 12
"9.......... Visa holders authorised to enter Australia in some circumstances... 12
"10........ Effect of visa that authorised entry into Australia........................... 13
"11........ Minister may declare pre-cleared flights.......................................... 13
"11A..... Circumstances in which non-citizens may become illegal entrants.. 14
"11B..... Transitional provisions relating to Christmas Island........................ 18
"11C..... How an illegal entrant loses that status while remaining in Australia 18
"Division 1A—Visas 19
"Subdivision A—General provisions 19
"11D..... Regulations may provide for visas................................................... 19
"11E...... Grant or refusal of visas................................................................... 20
"11F...... Visas not to be granted to certain deportees..................................... 22
"11G..... Cancellation of visas......................................................................... 22
"11H..... Certain persons taken to be included in spouse or parent's visa..... 22
"11J...... Minister may suspend processing of visa applications................... 23
"Subdivision B—The points system 24
"11K..... Operation of Subdivision.................................................................. 24
"11L...... Determination of applicant's score.................................................. 24
"11M.... Initial application of points system.................................................. 24
"11N..... Minister may set pool entrance mark, priority mark and pass mark 25
"Division 1B—Entry permits 26
"11P...... Regulations may provide for entry permits..................................... 26
"11Q..... Grant or refusal of entry permits..................................................... 28
"11R..... Cancellation of entry permits........................................................... 28
"11S...... Restriction on applications for entry permits—review applied for. 28
"11T..... Restriction on applications for entry permits—review not applied for 29
"11U..... Certain persons taken to be included in spouse or parent's entry permit 29
"11V..... Certain non-citizen children born in Australia taken to be included in parent's entry permit 30
"11W.... Minister may suspend processing of entry permit applications where applicants are in Australia 31
"11X..... Operation of points system.............................................................. 31
"11Y..... Minister may set priority mark........................................................ 32
"11Z..... Entry permits not to be granted to certain persons before entry into Australia 32
"11ZA.. Entry permits not to be granted to certain persons after entry into Australia 33
"11ZB... Entry permits not to be granted to certain deportees....................... 33
"11ZC... Entry permits not to be granted to persons outside Australia......... 33
"11ZD.. Circumstances in which permanent entry permits may be granted to non-citizens after entry into Australia 33
"11ZE... Deportee not to be granted entry permit.......................................... 36
"11ZF... Entry permit stops being in force upon departure from Australia... 36
"11ZG.. Application of Division to statutory visitors.................................. 36
"Division 1C—Statutory visitors 37
"11ZH.. Grant of visas to statutory visitors.................................................. 37
"11ZJ.... Regulations may provide for entry permits..................................... 37
"11ZK.. Circumstances in which entry permits may be granted to statutory visitors after entry into Australia 38
"11ZL... Application of provisions of Division 1B........................................ 38
7............ Repeal of section 16......................................................................... 40
8............ Section 18 of the Principal Act is repealed and the following sections are substituted: 40
"17A..... Mandatory deportation of illegal entrants........................................ 40
"18........ Deportation of illegal entrants.......................................................... 40
9............ Statutory visitors whose certificates are cancelled........................... 40
10.......... Section 19 of the Principal Act is repealed and the following section is substituted: 41
"19........ Dependants of deportee................................................................... 41
10A....... Deportation order to be executed..................................................... 41
11.......... Duty of master etc. of vessel or installation which brought deportee to Australia to provide passage 41
12.......... (1) Section 21A of the Principal Act is repealed and the following sections are substituted: 43
"21A..... Costs of deporting deportees........................................................... 43
"21B..... Costs of keeping deportees in custody............................................ 45
"21C..... Orders restraining deportees and illegal entrants from disposing etc. of property 46
"21D..... Secretary may give direction about valuables of deportee or illegal entrant 48
"21E...... Dealing with seized valuables........................................................... 51
13.......... After section 26 of the Principal Act the following section is inserted in Division 4 of Part II: 53
"26A..... Carriage of persons to Australia without documentation................. 53
14.......... Offences in relation to entering into or remaining in Australia......... 54
15.......... Minister may require illegal entrant to leave Australia..................... 56
16.......... Offences in relation to work............................................................. 57
17.......... Custody of prohibited entrant during stay of vessel in port............ 58
18.......... After section 37 of the Principal Act the following section is inserted: 60
"37A..... Searches of persons.......................................................................... 60
19.......... Arrest of illegal entrant..................................................................... 62
20.......... Arrest of deportee............................................................................ 64
"39A..... Operation of section 39 in relation to deportees held in other custody 65
22.......... Division 6 of Part II of the Principal Act is repealed and the following Division is substituted: 66
"Division 6—Regulation of conduct of third parties in connection with the making of decisions 66
"46........ Offences in relation to false or misleading statements regarding the making of decisions 66
"47........ Offence of undertaking, for reward, to cause decisions to be made etc. 66
"48........ Effect of contravention of section 46 or 47 on charging for services 66
"49........ Persons charged for services to be given detailed statement of services 67
"50........ Court may order reparation for loss suffered................................... 68
23.......... Before section 54 of the Principal Act the following section is inserted in Division 7 of Part II: 69
"53A..... Exemptions....................................................................................... 69
24.......... Proof of certain matters.................................................................... 70
25.......... After section 58 of the Principal Act the following sections are inserted in Part II: 71
"59........ Detention centres.............................................................................. 71
"60........ Secretary may issue documents containing information concerning certain persons 71
26.......... After Part II of the Principal Act the following Part is inserted:..... 72
"Part III—Review of decisions 72
"Division 1—Review of decisions 72
"61........ Internal review of certain decisions.................................................. 72
"62........ Applications for review by Tribunal................................................ 74
"63........ Powers of review authority.............................................................. 75
"64........ Determinative powers...................................................................... 75
"64A..... Recommendatory powers................................................................. 76
"64B..... Some decisions not reviewable......................................................... 76
"64C..... Review authority to consider all possible applications.................... 77
"Division 2—Applications for review by Tribunal 78
"64D..... Secretary to be notified of application for review............................ 78
"Division 3—Exercise of Tribunal's powers 78
"64E...... Tribunal's way of operating............................................................. 78
"64F...... Constitution of Tribunal for exercise of powers.............................. 79
"64G..... Reconstitution of Tribunal............................................................... 79
"64H..... Exercise of Tribunal's powers.......................................................... 80
"64J...... Presiding member.............................................................................. 80
"Division 4—Conduct of review 81
"64K..... Documents to be given to the Tribunal............................................ 81
"64L...... Review 'on the papers'.................................................................... 81
"64M.... Where review 'on the papers' is not available.................................. 81
"64N..... Applicant may request Tribunal to call witnesses........................... 82
"64P...... Powers of the Tribunal etc............................................................... 82
"64Q..... Presiding member may authorise another person to take evidence.. 83
"64R..... Review to be in public...................................................................... 84
"Division 5—Decisions of Tribunal 85
"64S...... Tribunal to record its decisions etc. and to notify parties................ 85
"64T..... Tribunal decisions to be published................................................... 85
"64U..... Minister may set aside Tribunal's decision etc................................ 85
"64V..... Appeal to Federal Court on question of law.................................... 87
"64W.... Operation etc. of decision subject to appeal.................................... 87
"64X..... Jurisdiction of Federal Court............................................................ 88
"Division 6—Offences 88
"64Y..... Failure of witness to attend.............................................................. 88
"64Z..... Refusal to be sworn or to answer questions etc............................... 89
"64ZA.. Contempt of Tribunal....................................................................... 89
"Division 7—Miscellaneous 89
"64ZB... Protection of members and persons giving evidence........................ 89
"64ZC... Fees for persons giving evidence...................................................... 90
"64ZD.. Restrictions on disclosure of certain information etc....................... 90
"64ZE... Tribunal's discretion in relation to disclosure of certain information etc. 90
"64ZF... Disclosure of confidential information............................................. 91
"64ZG.. Tribunal may restrict publication of certain matters........................ 92
"64ZH.. Sittings of Tribunal........................................................................... 93
27.......... Before Part IV of the Principal Act the following Part is inserted:.. 94
"Part IIIA—Immigration Review Tribunal 94
"Division 1—Establishment and Membership of the Immigration Review Tribunal 94
"64ZJ.... Establishment of the Immigration Review Tribunal......................... 94
"64ZK.. Appointment of members................................................................ 94
"64ZL... Principal Member............................................................................. 94
"64ZM. Period of appointment of members.................................................. 95
"64ZN.. Remuneration and allowances of Principal Member........................ 95
"64ZP... Remuneration and allowances of other members.............................. 95
"64ZQ.. Leave of absence............................................................................... 96
"64ZR... Other terms and conditions.............................................................. 96
"64ZS... Resignation....................................................................................... 96
"64ZT... Disclosure of interests...................................................................... 96
"64ZU.. Removal from office......................................................................... 97
"64ZV... Acting appointments........................................................................ 98
"64ZW.. Delegation......................................................................................... 99
"Division 2—Registries and Officers 99
"64ZX.. Registries.......................................................................................... 99
"64ZY... Officers of Tribunal........................................................................ 100
"64ZZ... Acting appointments...................................................................... 100
28.......... Section 65 of the Principal Act is repealed and the following section is substituted: 100
"65........ Obstructing or deceiving person exercising powers etc. under this Act 100
29.......... Repeal of section 66....................................................................... 101
29A....... Offences in relation to escaping from custody............................... 101
30.......... After section 66B of the Principal Act the following section is inserted: 101
"66BA.. Conduct of directors, servants and agents...................................... 101
31.......... Section 66D of the Principal Act is repealed and the following sections are substituted: 102
"66D..... Minister may approve forms......................................................... 102
"66DA.. Delegation....................................................................................... 103
"66DB.. Delegate not required to perform certain administrative tasks....... 104
"66DC.. Exercise of powers under Act......................................................... 104
"66DD.. Minister may give general policy directions................................... 105
32.......... Review of decisions........................................................................ 105
33.......... Regulations..................................................................................... 105
34.......... Further amendments....................................................................... 107
35.......... Renumbering and re-lettering of the Migration Act........................ 107
Part 3—Amendment of Migration Amendment Act (No. 2) 1980 109
36.......... Principal Act................................................................................... 109
37.......... Transitional provision.................................................................... 109
Part 4—Consequential Amendments of other Acts 110
38.......... Consequential amendments of other Acts...................................... 110
Schedule 1—Amendments of the Migration Act 1958 relating to penalties 111
Schedule 2—Amendments of the Migration Act 1958 relating to sexist language 113
Schedule 3—Amendments of the Migration Act 1958 relating to powers of secretary 121
Schedule 4—Amendments of the Migration Act 1958 relating to illegal entrants 123
Schedule 5—Other consequential amendments of the Migration Act 1958 126
Schedule 6—Consequential amendments of other Acts 127
Australian Citizenship Act 1948 127
Australian Protective Service Act 1987 137
Departure Tax Collection Act 1978 137
First Home Owners Act 1983 137
Health Insurance Act 1973 137
Radiocommunications Act 1983 137
Social Security Act 1947 137
Veterans' Entitlements Act 1986 137
Notes relating to section headings 138
This Act may be cited as the Migration Legislation Amendment Act 1989.
(1) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.
(2) Part 3 commences on 19 June 1990.
(3) Subject to subsection (5), section 27 commences on a day to be fixed by Proclamation.
(4) Subject to subsection (5), the remaining provisions of this Act (other than section 35) commence on a day to be fixed by Proclamation.
(5) If a provision of this Act (other than section 1, 2 or 35 or Part 3) has not commenced within the period of 6 months beginning on the day on which this Act receives the Royal Assent, that provision commences on the first day after the end of that period.
(6) Section 35 of this Act commences on the day after the provisions of this Act referred to in subsection (4) commence.
3 Principal Act
In this Part, Principal Act means the Migration Act 1958.
Section 5 of the Principal Act is amended:
(a) by omitting from subsection (1) the definitions of authorised officer, entry permit, officer, temporary entry permit and visa and substituting respectively the following definitions:
"authorised officer, when used in a provision of this Act, means an officer authorised in writing by the Minister or the Secretary for the purposes of that provision.
entry permit means permission to enter or remain in Australia.
officer means:
(a) an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph;
(b) a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph;
(c) a person who is a protective service officer for the purposes of the Australian Protective Service Act 1987, other than such a person specified by the Minister in writing for the purposes of this paragraph;
(d) a member of the Australian Federal Police or of the police force of a State or an internal Territory; or
(e) a member of the police force of an external Territory.
temporary entry permit means an entry permit that is subject to a limitation as to the time the holder is authorised to remain in Australia.
visa means permission to travel to Australia.";
(b) by inserting in subsection (1) the following definitions:
"accompanying child, in relation to a deportee, means a dependent child of the deportee, if a deportation order has been made, whether under section 19 or another provision of this Act in respect of the child.
accompanying spouse, in relation to a deportee, means the spouse of the deportee, if a deportation order has been made under section 19 in respect of the spouse.
aged parent means a parent who is old enough to be granted an age pension under the Social Security Act 1947.
applicable pass mark, in relation to an application for a visa of a particular class that is reconsidered pursuant to Subdivision B of Division 1A of Part II, means the number of points specified, in a notice under section 11N in force at the time of the reconsideration, as the pass mark for the purposes of applications for visas of that class.
applicable pool entrance mark, in relation to a visa of a particular class, means the number of points specified as the pool entrance mark for that class in a notice under section 11N in force at the time concerned.
applicable priority mark means:
(a) in relation to a visa of a particular class—the number of points specified as the priority mark for that class in a notice under section 11N in force at the time concerned; and
(b) in relation to an entry permit of a particular class—the number of points specified as the priority mark for that class in a notice under section 11Y in force at the time concerned.
approved form, when used in a provision of this Act, means a form approved by the Minister in writing for the purposes of that provision.
Australian passport means a passport issued under the Passports Act 1938.
diplomatic or consular representative, in relation to a country other than Australia, means a person who has been appointed to, or is the holder of, a post or position in a diplomatic or consular mission of that country in Australia, not being a person who was ordinarily resident in Australia when he or she was appointed to be a member of the mission.
exempt non-citizen means a non-citizen who is:
(a) a member of the armed forces of the Crown who enters or has entered Australia in the course of his or her duty;
(b) a diplomatic or consular representative of a country other than Australia, a member of the staff of such a representative or the spouse or dependant relative of such a representative;
(c) a person included in the complement of a vessel of the regular armed forces of a government recognised by the Commonwealth, who enters or has entered Australia with leave from that vessel during the vessel's stay in a port;
(d) a person in relation to whom the following conditions are satisfied:
(i) the person is a member of the crew of a vessel other than:
(A) a prescribed vessel; or
(B) a vessel referred to in paragraph (c);
(ii) the person is not a prescribed crew member;
(iii) the person is entering or has entered Australia with leave from the vessel during the vessel's stay in a port;
(iv) in the case of a person who enters Australia after the commencement of section 4 of the Migration Legislation Amendment Act 1989—when the person enters Australia, he or she does not intend to remain in Australia for more than 28 days;
(v) the master of the vessel has duly complied with the provisions of Division 3 of Part II that are applicable upon arrival of the vessel at the port;
(e) a person who is, or is included in a class of persons who are, for the time being exempted, by an instrument under subsection 53A(2), from the operation of subsection 6(1); or
(f) a person who is an inhabitant of the Protected Zone, not being a person who, at the time of entry, is or was a person to whom subsection 11A(1) applies because of paragraph 11A(1)(d), who is entering or has entered a part of Australia (being a part that is in the Protected Zone or in an area in the vicinity of the Protected Zone) in connection with the performance of traditional activities.
Federal Court means the Federal Court of Australia.
member means a member of the Tribunal.
period of grace, in relation to an illegal entrant, means the period worked out under section 5J.
permanent entry permit means an entry permit that is not subject to any limitation as to the time the holder is authorised to remain in Australia.
prescribed means prescribed by the regulations.
presiding member, in relation to a review by the Tribunal, means:
(a) if the Tribunal is, for the purposes of the review, constituted by 2 or 3 members—the member who, in accordance with section 64J, is to preside at the review; or
(b) if the Tribunal is, for the purposes of the review, constituted by one member—that member.
Principal Member means the Principal Member of the Tribunal.
properly endorsed valid entry permit, in relation to a person to whom subsection 11A(1) or (2) applies, means:
(a) a valid entry permit granted before the commencement of section 4 of the Migration Legislation Amendment Act 1989 that is endorsed with a statement that the person granting the entry permit recognises the holder of the entry permit to be a person to whom subsection 16(1) or (1AA) of this Act, as in force at any time before that commencement, applies; or
(b) a valid entry permit granted after the commencement of section 4 of the Migration Legislation Amendment Act 1989 that is endorsed pursuant to subsection 11A(4) with a statement that the person granting the entry permit recognises the holder of the entry permit to be a person to whom subsection 11A(1) or (2), as the case requires, applies for the reasons set out in a section 11A notice referred to in the endorsement, where those are the only reasons for which either of those last-mentioned subsections applies to the person.
properly endorsed valid entry visa, in relation to a person to whom subsection 11A(1) applies, means a valid visa, being an entry visa under section 9, that is endorsed with a statement that the Secretary recognises the holder of the visa to be a person to whom subsection 11A(1) would apply, if the person entered Australia, for the reasons set out in a section 11A notice, where those are the only reasons for which subsection 11A(1) applies to the person.
reviewable decision means a decision that is, because of regulations under subsection 61(1) or 62(1), reviewable by a review authority.
review authority means:
(a) a review officer; or
(b) the Tribunal.
review officer means:
(a) an officer of the Department prescribed for the purposes of this definition; or
(b) an officer of the Department included in a class of officers of the Department prescribed for the purposes of this definition.
review under Part III does not include an appeal to the Federal Court under section 64V.
score means:
(a) in relation to an applicant for a visa—the total number of points given to the applicant pursuant to section 11L in the most recent assessment or re-assessment under Subdivision B of Division 1A of Part II; or
(b) in relation to an applicant for an entry permit—the total number of points given to the applicant pursuant to subsection 11X(2).
Secretary means the Secretary to the Department.
section 11A notice means a notice given to the Secretary under subsection 11A(3).
Senior Member means a Senior Member of the Tribunal.
Tribunal means the Immigration Review Tribunal established by section 64ZJ.
valid entry permit means an entry permit that:
(a) was granted under this Act, whether before or after the commencement of section 4 of the Migration Legislation Amendment Act 1989;
(b) has not been cancelled under this Act; and
(c) has not expired, or otherwise stopped being in force, under this Act or the regulations;
and includes a visa that has effect as if it were an entry permit because of section 10, but does not include a visa or similar notation, or a form of provisional authority to enter Australia, issued, before 1 November 1979 on behalf of the Commonwealth.
valid permanent entry permit means a permanent entry permit that is a valid entry permit.
valid temporary entry permit means a temporary entry permit that is a valid entry permit.
valid visa means a visa that:
(c) has not expired, or otherwise stopped being in force, under this Act or the regulations.
working day, in relation to a place, means any day that is not a Saturday, a Sunday or a public holiday in that place.";
(c) by omitting subsection (6) and substituting the following subsection:
"(6) For the purposes of this Act, an application under this Act is finally determined when either:
(a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part III; or
(b) a decision that has been made in respect of the application was subject to some form of review under Part III, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.";
(d) by adding at the end the following subsection:
"(20) For the purposes of Division 6 of Part II:
(a) a reference to a payment includes a reference to the transfer of property other than money; and
(b) if a payment is made by the transfer of property other than money, the amount paid shall be taken to be the money value of that property.".
5 After section 5C of the Principal Act the following sections are inserted in Part I:
"5D Certain children taken to enter Australia at birth
A child who:
(a) was born in Australia; and
(b) was a non-citizen when he or she was born;
shall be taken to have entered Australia when he or she was born.
"5E How a person stops being an exempt non-citizen
A person described in a paragraph of the definition of exempt non-citizen in subsection 5(1) stops being an exempt non-citizen if:
(a) where the person is described in paragraph (a) of that definition and is not a member of the Australian armed forces—the person becomes absent without leave or ceases to be a member of the armed forces of the Crown;
(b) where the person is described in paragraph (b) of that definition—the person stops being a person so described;
(c) where the person is described in paragraph (c) or (d) of that definition:
(i) the person remains in Australia after the vessel has left the port at which he or she entered, or last entered, Australia; or
(ii) before the vessel has so left, the person becomes absent without leave;
(d) where the person is described in paragraph (d) of that definition—after entering Australia, the person remains in Australia for more than 28 days;
(e) where the person is described in paragraph (e) of that definition—the person stops being a person so described, whether by his or her own act, by act of the Minister or otherwise;
(f) where the person is described in paragraph (f) of that definition:
(i) the person ceases to be an inhabitant of the Protected Zone;
(ii) the person remains in Australia otherwise than in connection with the performance of traditional activities; or
(iii) the person enters a part of Australia that is not in the Protected Zone or in an area in the vicinity of the Protected Zone; or
(g) except in the case of a person described in paragraph (b) of that definition—a declaration in relation to the person is made under section 8.
"5F Visa applicable to 2 or more persons
(a) 2 or more persons who are the holders of the same visa travel to Australia on board the same vessel; and
(b) on arrival in Australia, one of those persons is in possession of that visa;
each of them shall, for the purposes of this Act, be taken to be in possession of that visa on arrival in Australia.
"5G Meaning of custody
For the purposes of this Act, a person shall not be taken to be in custody under this Act, or in the custody of an officer, unless the person is:
(a) being held:
(i) in a detention centre established under this Act;
(ii) in a prison or remand centre of the Commonwealth, of a State or of a Territory;
(iii) in a police station or watch house; or
(iv) in another place approved by the Minister in writing; or
(b) in the company of, and restrained by:
(i) an officer; or
(ii) another person directed by the Secretary to accompany and restrain the person.
"5H Application of Part VA of the Marriage Act
For the purpose of deciding whether a marriage is to be recognised as valid for the purposes of this Act, Part VA of the Marriage Act 1961 applies as if section 88E of that Act were omitted.
"5J Period of grace
"(1) The period of grace for a person who has become an illegal entrant:
(a) starts when the person becomes an illegal entrant; and
(b) ends when the total number of days that have passed since the period started, not counting excluded days, equals 28.
"(2) In this section:
excluded day, in relation to a person who becomes an illegal entrant, means each day of any period:
(a) starting when the person applies, as permitted by or under this Act and in circumstances where section 11Q applies, for an entry permit and ending when the person is notified of the decision on the application;
(b) starting when the person applies, as permitted by or under this Act and in accordance with the regulations for a review under Part III of a decision refusing him or her an entry permit and ending when the person is notified:
(i) where the review authority has determinative powers—of the decision on the review; or
(ii) where the review authority has recommendatory powers—of the making of a decision in response to the recommendation of the review authority; or
(c) starting when the person applies to the Federal Court, whether under this Act, the Judiciary Act 1903 or the Administrative Decisions (Judicial Review) Act 1977, for review of a decision refusing the person an entry permit and ending when the Federal Court gives its decision at first instance on that review;
other than a day on which a notice under section 11W is operating to stop the taking of action in relation to entry permits of the class concerned.".
6 (1) Divisions 1 and 1A of Part II of the Principal Act are repealed and the following Divisions are substituted:
"Division 1—Control of entry into Australia
"6 Illegal entrants
On entering Australia, a non-citizen becomes an illegal entrant unless:
(a) he or she is the holder of a valid entry permit; or
(b) the entry was authorised by section 9.
"(2) Where a person to whom subsection 11A(1) or (2) applies has entered Australia (whether before or after the commencement of this section) then, at and after that commencement, or that entry, whichever is later, the person is an illegal entrant at any time while he or she:
(a) remains in Australia;
(b) is not a citizen; and
(c) does not hold a properly endorsed valid entry permit or a properly endorsed valid entry visa.
"(3) A non-citizen who is the holder of a valid entry permit becomes an illegal entrant if he or she stops being the holder of a valid entry permit while he or she is in Australia.
"(4) An exempt non-citizen becomes an illegal entrant if:
(a) while he or she is in Australia, he or she stops being an exempt non-citizen; and
(b) at that time, he or she is not the holder of a valid entry permit.
"7 Exemptions
"(1) Subsection 6(1) does not apply in relation to the entry into Australia of an exempt non-citizen, not being a person in respect of whom a declaration is in force under section 8.
"(2) Subsection 6(1) does not apply in relation to the entry into Australia of a statutory visitor.
"8 Minister may declare exempt non-citizens to be undesirable
The Minister may, in writing, declare, in relation to an exempt non-citizen, that it is undesirable that the exempt non-citizen be permitted to enter Australia or to remain in Australia.
"9 Visa holders authorised to enter Australia in some circumstances
"(1) The holder of an entry visa (not being a statutory visitor) may enter Australia after disembarkation at a proclaimed airport.
"(2) The holder of an entry visa (not being a statutory visitor) may enter Australia if he or she:
(a) travelled to Australia on a pre-cleared flight; and
(b) did not land in any other country after leaving the country of embarkation of that pre-cleared flight and before arriving in Australia.
"(3) Except as provided by subsection (1) or (2), a visa, whenever granted, does not entitle the holder of the visa to enter Australia or to be granted an entry permit.
"(4) The Minister may, by instrument in writing, determine that this section applies to visas granted in a specified manner and form.
entry visa means:
(a) a valid visa that was granted, after the commencement of section 7 of the Migration Amendment Act (No. 2) 1988 but before the commencement of this section, in a manner and form specified in a determination in force under subsection 6AA(7) of this Act at the time of the grant; or
(b) a valid visa that was granted after the commencement of this section in a manner and form specified in a determination in force under subsection (4) at the time of the grant.
"10 Effect of visa that authorised entry into Australia
Where the holder of an entry visa within the meaning of section 9 enters Australia pursuant to that section, the visa has effect, immediately after the holder's entry, for all purposes as if it were an entry permit granted subject to any conditions, and to any limitation as to the time the holder is authorised to remain in Australia, that are specified in the visa.
"11 Minister may declare pre-cleared flights
The Minister may, in writing, declare a specified flight by an aircraft on a specified day between a specified foreign country and Australia to be a pre-cleared flight for the purposes of section 9.
"11A Circumstances in which non-citizens may become illegal entrants
"(1) This subsection applies to a person, being a non-citizen, who has entered Australia, whether before or after the commencement of this section, if:
(a) the person evaded an officer for the purpose of entering Australia;
(b) when, or before, the person entered Australia, he or she:
(i) produced, or caused to be produced, to an officer or a person exercising powers or performing functions under this Act, in respect of that entry:
(A) a bogus document; or
(B) a passenger card containing information that was false or misleading in a material particular; or
(ii) made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, in respect of that entry, a statement that was false or misleading in a material particular;
(c) when, or before, a visa was granted or issued in respect of the person, he or she:
(i) produced, or caused to be produced, to an officer or a person exercising powers or performing functions under this Act, in respect of the grant of that visa, a bogus document; or
(ii) made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, in respect of the grant of that visa, a statement that was false or misleading in a material particular; or
(d) when the person entered Australia, the person was:
(i) suffering from a prescribed disease or a prescribed physical or mental condition;
(ii) a person who had been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of at least one year;
(iii) a person who had been convicted of 2 or more crimes and sentenced to imprisonment for a period totalling at least one year;
(iv) a person who had been charged with a crime and either:
(A) found guilty of having committed the crime while of unsound mind; or
(B) acquitted on the ground that the crime was committed while the person was of unsound mind;
(v) a person who has been deported from Australia or another country; or
(vi) a person who has been excluded from another country in prescribed circumstances.
(a) after entry, an entry permit has been granted to the person authorising the person to remain in Australia; and
(b) in respect of the grant of that entry permit:
(i) the person produced a bogus document, or caused a bogus document to be produced, to an officer or a person exercising powers or performing functions under this Act; or
(ii) the person made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, a statement that was false or misleading in a material particular.
"(3) A person:
(a) to whom subsection (1) would apply if the person entered Australia; or
(b) to whom subsection (1) or (2) applies;
may give to the Secretary a notice in the prescribed form stating that the person is, for reasons specified in the notice, a person to whom the subsection concerned would apply, or applies, as the case requires.
"(3A) Where:
(a) a person has given the Secretary a section 11A notice; and
(b) a visa is granted to the person;
the person granting the visa must endorse the visa with a statement that he or she recognises the holder of the visa to be a person to whom subsection 11A(1) applies or would apply for the reasons set out in the section 11A notice.
"(4) Where:
(a) a person gives the Secretary a section 11A notice; and
(b) an entry permit is granted to the person;
the person granting the entry permit shall endorse the entry permit with a statement that he or she recognises the holder of the entry permit to be a person to whom subsection 11A(1) or (2), as the case requires, applies for the reasons set out in the section 11A notice.
"(4A) Without limiting the generality of section 67, the regulations may make provision for visas and entry permits to be endorsed for the purposes of subsections (3A) and (4) using codes or abbreviations.
"(5) For the purposes of this section, the circumstances in which a person shall be taken to have evaded an officer include, but are not limited to, the circumstances set out in subsections (6) and (7).
"(6) For the purposes of this section, a person shall be taken to have evaded an officer for the purpose of entering Australia if:
(a) the person entered Australia before 1 June 1959 while he or she was a member of the crew of, or a person included in the complement of, a vessel; and
(b) at the time of entering Australia, or at any time afterwards, the person deserted the vessel or became absent without leave.
"(7) For the purposes of this section, a person shall be taken to have evaded an officer for the purpose of entering Australia if the person entered Australia (whether before or after the commencement of this section) at a place (other than an Australian resources installation or an Australian sea installation) where no officer (other than a member of a police force) was stationed.
"(8) A reference in this section to a person producing, or causing to be produced, a bogus document is a reference to a person producing, or causing to be produced, a bogus document whether or not the person knew that the document was a bogus document.
"(9) A reference in this section to a person producing, or causing to be produced, a passenger card containing information that was false or misleading in a material particular is a reference to a person producing, or causing to be produced, such a passenger card, whether or not the person knew that the information contained in it was false or misleading in a material particular.
"(10) A reference in this section to a person making, or causing to be made, a statement that was false or misleading in a material particular is a reference to a person making, or causing to be made, such a statement, whether or not the person knew that the statement was false or misleading in a material particular.
"(11) A person who has been convicted of a crime and ordered to be confined in a corrective institution other than a prison shall for the purposes of this section be taken to have been convicted of that crime and sentenced to imprisonment for the period equal to the period during which he or she was so confined.
"(12) For the purpose of ordering the deportation of a person on the ground that the person is an illegal entrant because of subsection 6(2), the reference in this section to a prescribed disease shall be read as a reference to a disease, or a physical or mental condition, that is prescribed for the purposes of this section by regulations in force at the time when the person is ordered to be deported.
"(13) In this section:
bogus document, in relation to a person, means an entry permit, certificate, passport, visa, identification card or any other document that:
(a) was not issued to the person;
(b) was forged or fraudulently altered; or
(c) was obtained by the making of a false or misleading representation.
crime means an offence punishable:
(a) by death;
(b) by imprisonment for life; or
(c) by imprisonment for a maximum period of at least 6 months.
officer includes a person who was an officer for the purposes of the Immigration Restriction Act 1901.
visa includes:
(a) a visa or similar notation, or a form of provisional authority to enter Australia, that was issued on behalf of the Commonwealth before 1 November 1979; and
(b) a document or notation that was issued on behalf of the Commonwealth before 1 November 1979 in respect of the return of a person to Australia.
"11B Transitional provisions relating to Christmas Island
"(1) Where a person is deemed, because of subsection 12(1) of the Migration Amendment Act (No. 2) 1980, to have entered Australia as an immigrant within the meaning of the Migration Act 1958 as amended by the Migration Amendment Act (No. 2) 1980, subsection 6(2) does not apply in relation to that entry.
"(2) Section 11A has effect in relation to a person who is the holder of a re-entry permit within the meaning of section 12 of the Migration Amendment Act (No. 2) 1980, being a re-entry permit that has not expired, as if paragraph (1)(d) of that section were omitted and the following paragraph were substituted:
'(d) when he or she made a request for the grant of an entry permit, the person was a person referred to in paragraph 12(7)(c), (d), (e), (f) or (g) of the Migration Amendment Act (No. 2) 1980.'.
"11C How an illegal entrant loses that status while remaining in Australia
"(1) A person who has become an illegal entrant otherwise than under subsection 6(2) stops being an illegal entrant if and when an entry permit or further entry permit is granted to the person, and not otherwise.
"(2) A person who has become an illegal entrant under subsection 6(2) for a particular reason stops being an illegal entrant if and when there is granted to the person a properly endorsed valid entry permit, and does not otherwise stop being an illegal entrant.
"Division 1A—Visas
"Subdivision A—General provisions
"11D Regulations may provide for visas
"(1) Without limiting the generality of section 67, the regulations may make provision:
(a) in relation to the granting and refusal of visas with respect to travel to Australia, including the granting of visas:
(i) subject to conditions; or
(ii) subject to a limitation as to the time the holder is authorised to remain in Australia;
(b) for the recording and evidencing of visas;
(c) in relation to the effect and operation of visas; and
(d) in relation to the cancellation of visas.
"(2) Regulations made under subsection (1) may provide:
(a) for different classes of visas; and
(b) that, subject to section 11J, a person is entitled to be granted a visa of a particular class if a person satisfies all the prescribed criteria in relation to that class.
"(3) The criteria that may be prescribed include, but are not limited to, the criterion that the applicant receives the necessary score when assessed under Subdivision B.
"(4) The conditions subject to which visas may be granted pursuant to regulations made under paragraph (1)(a) include, but are not limited to:
(a) the condition that if, because of section 10, the visa has effect as if it were an entry permit, it will be taken, in spite of section 10, not to be a valid entry permit for the purposes of section 11ZD;
(b) the condition that, in spite of anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted an entry permit while he or she remains in Australia; and
(c) a condition imposing restrictions about the work that may be performed in Australia by the holder, including restrictions on performing:
(i) any work;
(ii) work other than specified work; or
(iii) work of a specified kind;
without the permission in writing of the Secretary.
"(5) Except as otherwise provided in the regulation concerned, a regulation providing as mentioned in paragraph (2)(b) shall, unless it has been disallowed, be taken to be repealed 2 years after the day on which the regulation takes effect.
"11E Grant or refusal of visas
"(1) This section applies where, and only where:
(a) a person makes an application for a visa of a particular class in the approved form and in accordance with the regulations; and
(b) any fee payable in respect of the application is paid.
"(2) Unless this section applies, the Minister:
(a) is not required to consider an application at all; and
(b) shall not in any circumstances grant a visa.
"(3) Where it appears to the Minister that an applicant for a visa other than an exempt visa is, under the regulations, entitled to be granted a visa of the class concerned, then:
(a) the Minister shall give the applicant written notice:
(i) stating that the Minister proposes to grant a visa; and
(ii) requiring the applicant to notify the Minister, as prescribed, if there has been any material change in his or her circumstances since the application was made; and
(b) if and only if the Minister becomes satisfied that there has been no material change in the applicant's circumstances since the application was made, the Minister shall, subject to section 11J, grant the visa.
(a) an applicant is given a notice under paragraph (3)(a); and
(b) the applicant notifies the Minister, as required by that paragraph, that there has been a material change in his or her circumstances since the application was made;
the Minister shall reconsider the application having regard to that material change, including if necessary by reassessing the applicant's score under section 11L, to determine, whether for the purposes of subsection (3), the applicant is, at the time of the reconsideration, entitled under the regulations to be granted a visa of the class concerned.
"(5) Where paragraph (3)(b) requires the Minister to grant a visa, the Minister:
(a) may impose such conditions in connection with the grant of the visa as are permitted by the regulations; and
(b) shall impose such conditions in connection with the grant of the visa as are required by the regulations.
"(5A) Where it appears to the Minister that an applicant for an exempt visa is, under the regulations, entitled to be granted a visa of the class concerned:
(a) the Minister shall, subject to section 11J, grant the visa; and
(b) the Minister:
(i) may impose such conditions in connection with the grant of the visa as are permitted by the regulations; and
(ii) shall impose such conditions in connection with the grant of the visa as are required by the regulations.
"(6) Except in a case where subsection 11M(3) applies, where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted a visa of the class concerned, the Minister shall refuse to grant the applicant such a visa.
"(7) Where it appears to the Minister, upon reconsideration of an application pursuant to regulations made under subsection 11M(4), that the applicant:
(a) because of subparagraph 11M(5)(b)(i), is to be taken not to have received the necessary score; and (b) because of that is not, under the regulations, entitled to be granted a visa of the class concerned;
the Minister shall refuse to grant the applicant such a visa.
"(8) For the purposes of this section and section 11A, an applicant who:
(a) is given a notice under paragraph (3)(a); and
(b) does not notify the Minister, as required by that paragraph, that there has been a material change in his or her circumstances since the application was made;
shall be taken to have notified the Minister that there has been no material change in his or her circumstances since the application was made.
exempt visa means a visa included in a prescribed class of visas.
"11F Visas not to be granted to certain deportees
"(1) A visa shall not be granted to a person who has previously been deported from Australia if an amount is still payable by the person to the Commonwealth under section 21A or 21B.
"(2) Nothing in subsection (1) prevents the grant of a visa to a person if the Minister is satisfied that appropriate arrangements have been made for the payment of the amount concerned to the Commonwealth.
"(3) This section does not apply in relation to the granting of visas to statutory visitors.
"11G Cancellation of visas
The Minister may at any time, in his or her absolute discretion, cancel a valid visa.
"11H Certain persons taken to be included in spouse or parent's visa
(a) a person's name is included in the passport or other document of identity of the person's spouse; and
(b) the person accompanies his or her spouse to Australia (whether before or after the commencement of this section);
the person shall be taken to be included in any visa granted to the spouse and noted on the passport or other document of identity if, and only if, the person's name is included in the visa.
(a) the name of a child is included in the passport or other document of identity of a parent of the child; and
(b) the child accompanies that parent to Australia (whether before or after the commencement of this section);
the child shall be taken to be included in any visa granted to the parent and noted on the passport or other document of identity if, and only if, the child's name is included in the visa.
"11J Minister may suspend processing of visa applications
"(1) The Minister may, by notice in the Gazette, determine that dealing with applications for visas of a specified class is to stop until a day specified in the notice (in this section called the resumption day).
"(2) Where a notice under subsection (1) is published in the Gazette, no official shall take any action in relation to any application for a visa of the class concerned until the resumption day.
"(3) A notice under this section does not have any effect in relation to an application for a visa made by a person on the ground that he or she is the spouse, child or aged parent of a person who:
(a) is an Australian citizen; or
(b) is the holder of a valid permanent entry permit.
"(4) Nothing in this section prevents a person taking action to implement a decision to grant or refuse a visa if the decision had been made before the date of the notice concerned.
child, in relation to a person, means an unmarried child of the person, being a child who:
(a) has not turned 18; or
(b) has turned 18 but has not turned 21, and has been determined by the Minister in writing to be an integral part of that person's family.
official means any person or body performing functions or exercising powers under or for the purposes of this Act.
"Subdivision B—The points system
"11K Operation of Subdivision
This Subdivision has effect where one of the prescribed criteria in relation to a visa of a particular class is the criterion that the applicant receives the necessary score when assessed as provided by this Subdivision.
"11L Determination of applicant's score
"(1) The Minister shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant.
prescribed means prescribed by regulations in force at the time the assessment is made.
"11M Initial application of points system
"(1) An applicant whose score is more than or equal to the applicable priority mark at the time when the score is assessed shall be taken to have received the necessary score.
"(2) An applicant whose score is less than the applicable pool entrance mark at the time when the score is assessed shall be taken not to have received the necessary score.
"(3) Where an applicant's score is more than or equal to the applicable pool entrance mark but less than the applicable priority mark at the time when the score is assessed, the Minister shall, unless the application is withdrawn, put it aside and deal with it in accordance with regulations made under subsection (4).
"(4) The regulations may provide:
(a) for the Minister to reconsider an application that is put aside under subsection (3) after the Minister next gives a notice under section 11N specifying the pass mark in relation to the class of visas concerned;
(b) for such reconsideration to involve comparing the applicant's score with that pass mark but not to involve re-assessing that score; and
(c) for such reconsideration to occur a specified maximum number of times.
"(5) Where an application for a visa of a particular class is reconsidered pursuant to regulations made under subsection (4):
(a) if the applicant's score is more than or equal to the applicable pass mark—the applicant shall be taken to have received the necessary score; and
(b) if the applicant's score is less than the applicable pass mark:
(i) if those regulations do not permit any further reconsideration of the application—the applicant shall be taken not to have received the necessary score; and
(ii) in any other case—the Minister shall put the application aside and continue to deal with it in accordance with those regulations.
"(6) Where, in accordance with this section, the Minister puts an application aside, he or she shall be taken for all purposes not to have failed to make a decision about the application.
"11N Minister may set pool entrance mark, priority mark and pass mark
"(1) The Minister may, from time to time, by notice in the Gazette, specify, in relation to a class of visas, the pool entrance mark and the priority mark for the purposes of this Act and the regulations.
"(2) The Minister may, from time to time, by notice in the Gazette, specify, in relation to applications for visas of a particular class, the pass mark for the purposes of this Act and the regulations.
"(3) A notice under subsection (1) or (2) operates to revoke the previous notice under that subsection in relation to the same class of visas.
"(4) The Minister shall cause copies of each notice under subsection (1) or (2) to be laid before each House of the Parliament within 15 sitting days of that House after the publication of the notice in the Gazette.
"Division 1B—Entry permits
"11P Regulations may provide for entry permits
(a) in relation to the granting and refusal of entry permits, including the granting of entry permits:
(b) for the recording and evidencing of entry permits;
(c) in relation to the effect and operation of entry permits; and
(d) in relation to the cancellation of entry permits that are granted subject to a limitation as to the time the holder is authorised to remain in Australia.
(a) for different classes of entry permits; and
(b) that, subject to sections 11W and 11ZB, a person is entitled to be granted an entry permit of a particular class if that person satisfies all the prescribed criteria in relation to that class.
"(3) The criteria that may be prescribed include, but are not limited to, the criterion that the applicant receives the necessary score when assessed as provided by section 11X.
"(4) The conditions subject to which temporary entry permits may be granted pursuant to regulations made under paragraph (1)(a) include, but are not limited to:
(a) the condition that the temporary entry permit will be taken not to be a valid temporary entry permit for the purposes of section 11ZD;
(b) where the temporary entry permit is granted to the person before entry into Australia—the condition that, in spite of anything else in this Act, the holder of the temporary entry permit will not, after entering Australia, be entitled to be granted another entry permit while he or she remains in Australia; and
"11Q Grant or refusal of entry permits
(a) a person makes an application for an entry permit of a particular class in accordance with the regulations; and
(b) shall not in any circumstances grant an entry permit.
"(3) Where it appears to the Minister that the applicant is, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall, subject to this Division, grant the applicant such an entry permit.
"(4) Where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit.
"11R Cancellation of entry permits
"(1) The Minister may at any time, in his or her absolute discretion, cancel a valid temporary entry permit.
"(2) Where, because of the operation of subsection 6(2), a person is an illegal entrant even though the person holds a valid entry permit, the entry permit shall be taken to have been cancelled:
(a) when the person entered Australia; or
(b) when the entry permit was granted;
whichever is later.
"11S Restriction on applications for entry permits—review applied for
"(1) A person to whom this section applies because of section 64C is not entitled to make any application for an entry permit while he or she remains in Australia unless:
(a) there has been a prescribed change in the person's circumstances since the end of the period of 10 working days mentioned in subsections 64C(3) and (4); and
(b) no deportation order has been made in respect of the applicant under section 17A.
"(2) Nothing in this section prevents a person making an application for an entry permit where:
(a) the person has been notified under subsection 64C(2); and
(b) the application is made, pursuant to that notification, within 10 working days after the person is so notified.
"11T Restriction on applications for entry permits—review not applied for
"(1) This section applies to an illegal entrant who:
(a) has entered, and remains in, Australia;
(b) while in Australia, has been refused an entry permit; and
(c) is not a person to whom section 11S applies because of section 64C.
"(2) Where this section applies to a person, the person is not entitled to make any further application for an entry permit while he or she remains in Australia unless:
(a) there has been a prescribed change in the person's circumstances since he or she last applied for an entry permit; and
(b) no deportation order has been made in respect of that person under section 17A.
"11U Certain persons taken to be included in spouse or parent's entry permit
(b) the person enters Australia (whether before or after the commencement of this section) in the company of his or her spouse;
the person shall be taken to be included in any entry permit granted to the spouse before the spouse's entry and noted on that passport or other document of identity, unless the contrary is stated in the entry permit.
(b) the child enters Australia (whether before or after the commencement of this section) in the company of that parent;
the child shall be taken to be included in any entry permit granted to the parent before the parent's entry and noted on that passport or other document of identity, unless the contrary is stated in the entry permit.
"11V Certain non-citizen children born in Australia taken to be included in parent's entry permit
"(1) This section applies to a child who:
(a) is born in Australia (whether before or after the commencement of this section); and
(b) is a non-citizen when he or she is born.
"(2) Where, at the time of birth:
(a) one of the child's parents is the holder of a valid temporary entry permit; and
(b) the other parent:
(i) is not the holder of a valid entry permit; or
(ii) is, because of subsection 11U(1), taken to be included in the valid temporary entry permit referred to in paragraph (a);
the child shall be taken to be included from the time of birth in the valid temporary entry permit referred to in paragraph (a).
"(3) Where, at the time of birth, each of the child's parents is the holder of a valid temporary entry permit, the child shall be taken to be included from the time of birth in each of the valid temporary entry permits.
"11W Minister may suspend processing of entry permit applications where applicants are in Australia
"(1) The Minister may, by notice in the Gazette, determine that dealing with applications for entry permits of a specified class made by persons who have entered, and remain in, Australia is to stop until a day specified in the notice (in this section called the resumption day).
"(2) Where a notice under subsection (1) is published in the Gazette, no official shall take any action in relation to any application for an entry permit of the class concerned made by an applicant who has entered, and remains in, Australia until the resumption day.
"(3) A notice under this section does not have any effect in relation to an application for an entry permit made by a person on the ground that he or she is the spouse, child or aged parent of a person who:
"(4) Nothing in this section prevents a person taking action to implement a decision to grant or refuse an entry permit if the decision had been made before the date of the notice concerned.
"11X Operation of points system
"(1) This section applies in relation to an application for an entry permit of a particular class where:
(a) the applicant has entered, and remains in, Australia; and
(b) one of the prescribed criteria in relation to an entry permit of that class is the criterion that the applicant receives the necessary score when assessed as provided by this section.
"(2) The Minister shall make the assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant.
"(4) An applicant whose score is less than the applicable priority mark at the time when the score is assessed shall be taken not to have received the necessary score.
"11Y Minister may set priority mark
"(1) The Minister may, from time to time, by notice in the Gazette, specify, in relation to a class of entry permits, the priority mark for the purposes of this Act and the regulations.
"(2) A notice under subsection (1) operates to revoke the previous notice under that subsection in relation to the same class of entry permits.
"(3) The Minister shall cause copies of each notice under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after publication of the notice in the Gazette.
"11Z Entry permits not to be granted to certain persons before entry into Australia
An entry permit shall not be granted to a person before he or she enters Australia unless the person:
(a) is the holder of a valid visa; or
(b) is exempted from the operation of section 26A by an instrument under subsection 53A(1).
"11ZA Entry permits not to be granted to certain persons after entry into Australia
An entry permit shall not be granted to a non-citizen who has entered Australia without an entry permit pursuant to an exemption under subsection 53A(2) that specified as mentioned in subsection 53A(3).
"11ZB Entry permits not to be granted to certain deportees
"(1) An entry permit shall not be granted to a person who has previously been deported from Australia if an amount is still payable by the person to the Commonwealth under section 21A or 21B.
"(2) Nothing in subsection (1) prevents the grant of an entry permit to a person if the Minister is satisfied that appropriate arrangements have been made for the payment of the amount concerned to the Commonwealth.
"11ZC Entry permits not to be granted to persons outside Australia
An entry permit shall not be granted to a person unless the person is physically present in Australia.
"11ZD Circumstances in which permanent entry permits may be granted to non-citizens after entry into Australia
"(1) A permanent entry permit shall not be granted to a non-citizen after entry into Australia unless at least one of the following paragraphs applies to the non-citizen:
(a) he or she has been granted territorial asylum in Australia by instrument of a Minister;
(b) he or she:
(i) is the holder of a valid temporary entry permit; and
(ii) is the spouse or child of an Australian citizen or of the holder of a valid permanent entry permit;
(c) he or she:
(ii) is the aged parent of an Australian citizen or of the holder of a valid permanent entry permit;
and the balance of his or her family is in Australia;
(d) he or she is the holder of a valid temporary entry permit and the Minister has determined, in writing, that the non-citizen has the status of refugee within the meaning of:
(i) the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951; or
(ii) the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967;
(e) he or she:
(i) is the holder of a valid temporary entry permit;
(ii) is authorised to work in Australia; and
(iii) is not a prescribed non-citizen;
(f) he or she is the holder of a valid temporary entry permit and there are strong compassionate grounds for the grant of a permanent entry permit to him or her;
(g) he or she is the holder of a valid temporary entry permit and there are strong humanitarian grounds for the grant of a permanent entry permit to him or her.
"(2) The Minister shall not delegate to any person the power to grant a permanent entry permit to a non-citizen to whom paragraph (1)(a) applies (whether or not another paragraph of subsection (1) also applies to the non-citizen).
"(3) For the purposes of this section, the balance of an aged parent's family shall be taken to be in Australia in prescribed circumstances.
"(4) For the purposes of this section but without limiting its generality, the holder of a valid temporary entry permit granted before 29 October 1979 shall be taken to be authorised to work in Australia if, in the application or last application to visit Australia made by the holder or on the holder's behalf:
(a) where the application was made by the holder—the holder did not declare that he or she would not engage in employment in Australia; or
(b) where the application was made on the holder's behalf—the person making the application did not declare that the holder would not engage in employment in Australia.
"(5) For the purposes of this section but without limiting its generality, the holder of a valid temporary entry permit granted after 28 October 1979 shall be taken to be authorised to work in Australia if:
(a) the temporary entry permit was not granted subject to any condition imposing restrictions with respect to the work that may be performed by the holder in Australia;
(b) the temporary entry permit was granted subject to a condition imposing restrictions on the holder's performing work other than specified work or work of a specified kind in Australia; or
(c) the temporary entry permit was granted:
(i) before the commencement of this section, subject to a condition imposing restrictions on the holder's performing any work without the written permission of an authorised officer; or
(ii) after that commencement, subject to a condition imposing restrictions on the holder's performing any work without the written permission of the Secretary;
and such permission has been given and has not been revoked.
"(6) Where a temporary entry permit was granted before the commencement of this section subject to a condition as mentioned in subparagraph (5)(c)(i), the Secretary may, after the commencement:
(a) give permission for the purposes of that condition; and
(b) revoke any permission given by an authorised officer for the purposes of that condition.
non-citizen does not include a statutory visitor.
prescribed non-citizen means:
(a) the holder of a valid temporary entry permit who is included in a prescribed class of persons granted temporary entry permits to enable them to enter Australia for the purpose of engaging in study or training;
(b) the holder of a valid temporary entry permit who:
(i) is the spouse or a child of a person referred to in paragraph (a); and
(ii) was granted a temporary entry permit permitting him or her to enter Australia only because he or she was the spouse or child of that person; or
(c) the holder of a valid temporary entry permit who, immediately before the grant of that temporary entry permit, was a person of the kind referred to in paragraph (b) of the definition of exempt non-citizen in subsection 5(1) or the spouse or dependent relative of such a person.
valid temporary entry permit does not include:
(a) a temporary entry permit granted subject to a condition set out in paragraph 11P(4)(a) or (b); or
(b) a visa that, because of section 10, has effect as if it were an entry permit, being a visa granted subject to a condition set out in paragraph 11D(4)(a) or (b).
"11ZE Deportee not to be granted entry permit
An entry permit shall not be granted to a person while a deportation order is in force in respect of the person.
"11ZF Entry permit stops being in force upon departure from Australia
An entry permit granted to a non-citizen stops being in force when the non-citizen leaves Australia, and has no further force.
"11ZG Application of Division to statutory visitors
Except as provided by section 11ZL, nothing in this Division applies in relation to the grant of entry permits to statutory visitors or in relation to entry permits granted to statutory visitors.
"Division 1C—Statutory visitors
"11ZH Grant of visas to statutory visitors
"(1) The Secretary to the Attorney-General's Department, or an officer of that Department authorised by that Secretary, may issue a certificate in writing stating that the presence of a specified non-citizen in Australia is required for purposes connected with the Extradition Act 1988 or the Mutual Assistance in Criminal Matters Act 1987.
"(2) Where the Minister is satisfied that a certificate is in force in relation to a person, the Minister shall grant to the person a visa with respect to travel to Australia by the person for the purposes referred to in subsection (1).
"(3) Subject to subsection (4), the Secretary to the Attorney-General's Department, or an officer of that Department authorised by that Secretary, may cancel a certificate under subsection (1), but only on the ground that the presence of the non-citizen in Australia is no longer required for the purposes referred to in that subsection.
"(4) A certificate issued under subsection (1) shall not be cancelled before reasonable notice in writing has been given to the non-citizen and the Minister.
"11ZJ Regulations may provide for entry permits
(a) in relation to the granting and refusal of entry permits to statutory visitors, including the granting of entry permits:
(b) for the recording and evidencing of entry permits granted to statutory visitors;
(c) in relation to the effect and operation of entry permits granted to statutory visitors; and
(d) in relation to the cancellation of entry permits granted to statutory visitors that are granted subject to a limitation as to the time the holder is authorised to remain in Australia.
"(2) Regulations made under subsection (1) may provide for different classes of entry permits.
"11ZK Circumstances in which entry permits may be granted to statutory visitors after entry into Australia
"(1) The Minister may grant an entry permit to a statutory visitor after entry into Australia if, and only if, at least one of the following paragraphs applies to the non-citizen:
(b) the Minister has determined, in writing, that the statutory visitor has the status of refugee within the meaning of:
(ii) the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967.
"(2) The Minister shall not delegate to any person the power to grant an entry permit to a statutory visitor to whom paragraph (1)(a) applies (whether or not paragraph (1)(b) also applies to the statutory visitor).
"11ZL Application of provisions of Division 1B
"Sections 11R, 11V, 11ZC and 11ZF apply in relation to the grant of entry permits to statutory visitors and in relation to entry permits granted to statutory visitors.".
(2) A person who, immediately before the commencement of this section, was a prohibited non-citizen:
(a) becomes an illegal entrant at that commencement;
(b) shall, after that commencement, be taken for all purposes to have become an illegal entrant because of the provision of section 6 of the Migration Act 1958 that most closely corresponds with the provision of the Principal Act as in force before that commencement because of which the person became a prohibited non-citizen; and
(c) remains an illegal entrant until he or she stops being an illegal entrant under the Migration Act 1958.
(3) Where the holder of an entry visa within the meaning of section 6AA of the Principal Act as in force immediately before the commencement of this section has, before that commencement, entered Australia pursuant to that section, the visa has effect, on and after the holder's entry, for all purposes as if it were an entry permit granted subject to any conditions, and to any limitation as to the time the holder is authorised to remain in Australia, that are specified in the visa.
(4) In spite of the repeal effected by subsection (1), the provisions of the Principal Act relating to the granting of visas and entry permits as in force immediately before the commencement of this section continue to have effect after that commencement for the purposes of applications for visas or entry permits made before that commencement.
(5) After the commencement of this section, the Migration Act 1958 has effect as if:
(a) references in that Act to certificates under subsection 11ZH(1) include references to certificates under section 11AB of the Principal Act as in force before that commencement, being certificates in force immediately before that commencement; and
(b) references in that Act to visas granted under section 11ZH include references to visas granted under section 11AB of the Principal Act as in force before that commencement, being visas in force immediately before that commencement.
7 Repeal of section 16
Section 16 of the Principal Act is repealed.
8 Section 18 of the Principal Act is repealed and the following sections are substituted:
"17A Mandatory deportation of illegal entrants
"(1) An illegal entrant is liable to deportation if the period of grace for the illegal entrant has ended.
"(2) Where the Minister, after following the prescribed procedures, is satisfied that a person is, under subsection (1), liable to deportation, the Minister shall, in writing, order the deportation of the person.
"(3) A deportation order made under this section may not be revoked.
"(4) A deportation order made under this section in relation to a person shall be taken to revoke any deportation order made under section 18 in relation to the person.
"18 Deportation of illegal entrants
"(1) The Minister may, after considering the prescribed matters and no other matters, order the deportation of a person who is an illegal entrant under any provision of this Act.
"(2) In spite of any other provision of this Act, a deportation order made under this section shall not be executed before the period of grace for the person has ended.".
9 Statutory visitors whose certificates are cancelled
Section 18A of the Principal Act is amended:
(a) by omitting from subsection (1) "11AB" (wherever occurring) and substituting "11ZH";
(b) by omitting from subsection (1) "a prohibited non-citizen" and substituting "an illegal entrant";
(c) by omitting from subsection (3) "to the Department, or of an officer of the Department authorised by that Secretary to grant certificates under this subsection,".
10 Section 19 of the Principal Act is repealed and the following section is substituted:
"19 Dependants of deportee
"(1) Where the Minister makes or has made an order for the deportation of a person who has a spouse, the Minister may, at the request of the spouse of that person, order the deportation of:
(a) the spouse; or
(b) the spouse and a dependent child or children;
of that person.
"(2) Where the Minister makes or has made an order for the deportation of a person who does not have a spouse but who does have a dependent child or children, the Minister may, at the person's request, order the deportation of a dependent child or children of the person.".
10A Deportation order to be executed
Section 20 of the Principal Act is amended by inserting ", after considering the prescribed matters and no other matters," after "Minister" (second occurring).
11 Duty of master etc. of vessel or installation which brought deportee to Australia to provide passage
Section 21 of the Principal Act is amended:
(a) by omitting subsection (1) and substituting the following subsection:
"(1) Where the Minister has ordered the deportation of a person (not being a person referred to in subsection (3A)) who:
(a) is an illegal entrant because of subsection 6(1);
(b) being a person to whom subsection 11A(1) applies because of paragraph 11A(1)(a), is an illegal entrant because of subsection 6(2); or
(c) being a person who has stopped being an exempt non-citizen because of paragraph 5E(c), is an illegal entrant because of subsection 6(4);
the Secretary may, by notice in writing, require the master, owner, agent or charterer of the vessel in which the deportee arrived in Australia to remove the deportee from Australia without charge to the Commonwealth.";
(b) by omitting from subsection (2) "An authorised officer" and substituting "The Secretary";
(c) by omitting from subsection (2) "that authorised officer or another authorised officer" and substituting "the Secretary";
(d) by omitting subsections (3) and (3A) and substituting the following subsections:
"(3) Subject to subsection (6), where the Minister has:
(a) ordered the deportation of a person under section 12; or
(b) ordered the deportation of a person who, being a person to whom subsection 11A(1) applies because of paragraph 11A(1)(b) or (d), is an illegal entrant because of subsection 6(2);
the Secretary may, by notice in writing, require the master, owner, agent or charterer of the vessel in which the deportee arrived in Australia to, provide without charge to the Commonwealth, a passage for the deportee to the place at which he or she boarded the vessel when he or she came to Australia.
(a) a person is deemed to have entered Australia because of subsection 5(2A) or (2B); and
(b) the Minister has:
(i) ordered the deportation of the person under section 12;
(ii) ordered the deportation of the person because he or she is an illegal entrant because of subsection 6(1); or
(iii) ordered the deportation of the person because he or she, being a person to whom subsection 11A(1) applies because of paragraph 11A(1)(a), (b) or (d), is an illegal entrant because of subsection 6(2);
the Secretary may, by notice in writing, require the master, owner, agent or charterer of the installation on which the deportee arrived in Australia to provide, without charge to the Commonwealth, a passage for the deportee to a place outside Australia.";
(e) by omitting from subsection (4) "or (3)" and substituting.", (3) or (3A)";
(f) by inserting in subsection (4) "or her" after "his";
(g) by omitting from subsection (4) "$2,000" and substituting "$5,000";
(h) by omitting from subsection (5) "he" and substituting "the defendant";
(j) by omitting from subsection (5) "an authorised officer" and substituting "the Secretary";
(k) by inserting in subsection (5) "or her" after "his".
12 (1) Section 21A of the Principal Act is repealed and the following sections are substituted:
"21A Costs of deporting deportees
"(1) Subject to this section, where the Commonwealth makes arrangements for the conveyance of a deportee from a place in Australia to a place outside Australia, the deportee is liable to pay the conveyance expenses to the Commonwealth.
"(2) Where, under subsection (1), a deportee who is an accompanying spouse in relation to another deportee is liable to pay an amount to the Commonwealth, the first-mentioned deportee and the other deportee are jointly and severally liable to pay the amount to the Commonwealth.
"(3) Where, under subsection (1), a deportee who is an accompanying child in relation to another deportee would, but for this subsection, be liable to pay an amount to the Commonwealth, the following provisions have effect:
(a) if the other deportee has a spouse and that spouse is also a deportee—the other deportee and his or her spouse, rather than the first-mentioned deportee, are jointly and severally liable to pay the amount to the Commonwealth;
(b) if paragraph (a) does not apply in relation to the other deportee—the other deportee, rather than the first-mentioned deportee, is liable to pay the amount to the Commonwealth.
"(4) The arrangements to which subsection (1) applies include arrangements made under section 22 but do not include arrangements made under section 21.
"(5) Without limiting the manner in which the obligation of a deportee under this section may be fulfilled, that obligation may be fulfilled in whole or in part as provided in subsection (6).
(a) the Commonwealth makes arrangements as mentioned in subsection (1) for the conveyance of a deportee to a place outside Australia; and
(b) the deportee, or another person, holds a ticket for the conveyance of the deportee from a place within Australia to a place outside Australia;
the Secretary may, on behalf of the ticket holder, and either with or without the consent of the ticket holder, arrange for the ticket to be applied for or towards the conveyance of the deportee to that
first-mentioned place.
"(7) Arrangements for the application of a ticket made by the Secretary pursuant to subsection (6) are as effective as they would have been if they had been made by the ticket holder.
"(8) Where the Secretary arranges for a ticket to be applied for or towards the conveyance of a deportee pursuant to subsection (6):
(a) if the application of the ticket meets the conveyance expenses in full—the liability under this section in respect of the deportee shall be taken to have been discharged; and
(b) in any other case—the liability under this section in respect of the deportee shall be taken to have been discharged to the extent of the amount credited to the conveyance expenses because of the application of the ticket.
"(9) An amount payable by a deportee to the Commonwealth under this section may be recovered by the Commonwealth, as a debt due to the Commonwealth in a court of competent jurisdiction.
"(10) This section does not apply unless the deportation order is executed.
conveyance expenses, in relation to the conveyance of a deportee from a place in Australia to a place outside Australia, means the amount of the passage money and other charges payable in respect of the conveyance.
"21B Costs of keeping deportees in custody
"(1) Subject to this section, a deportee who is being, or who has been, kept in custody under section 38 or 39 (whether or not as a deportee) is liable to pay the Commonwealth, in respect of each custody day in relation to the deportee, an amount equal to the daily maintenance amount for the custody day.
"(4) An amount is not payable to the Commonwealth under this section in respect of a custody day in relation to a deportee if another person, being a person on whom a requirement is or has been made under section 21, has paid, or is liable to pay, an amount to the Commonwealth in respect of the cost of maintaining the deportee on that day, or during a period that includes that day.
"(5) The Minister may, by notice published in the Gazette, determine, in relation to each State and Territory, a daily maintenance amount in relation to the State or Territory.
"(6) In making a determination under subsection (5) in respect of a State or Territory, the Minister shall have regard to the cost to the Commonwealth of persons kept in custody in that State or Territory on behalf of the Commonwealth.
"(7) An amount payable by a deportee to the Commonwealth under this section may be recovered by the Commonwealth, as a debt due to the Commonwealth, in a court of competent jurisdiction.
custody day, in relation to a deportee, means a day during the whole of which the deportee is or was in custody (whether or not as a deportee) under section 38 or 39.
daily maintenance amount, in relation to a custody day in relation to a deportee, means the daily maintenance amount most recently determined by the Minister under subsection (5) before that day, in relation to the State or Territory in which the person was, on that day, in custody.
day means a period of 24 hours ending at midnight.
"21C Orders restraining deportees and illegal entrants from disposing etc. of property
"(1) Where, on an application by the Secretary relating to property of a deportee, a court is satisfied that:
(a) the deportee is liable, or may, on deportation, become liable, to pay the Commonwealth an amount under section 21A or 21B; and
(b) if the court does not make an order under this subsection there is a risk that the Commonwealth will not be able to recover the whole or a part of any amount that the deportee is, or becomes, liable to pay to the Commonwealth under section 21A or 21B;
the court may make an order restraining any dealing with the property, or such part of the property as is specified in the order.
"(2) The Secretary may apply to a court for an order under subsection (1) in respect of:
(a) any of a deportee's property that is in Australia; or
(b) specified property of a deportee that is in Australia.
"(3) Where an application is made for an order under subsection (1), the court may, before considering the application, grant an interim order, being an order of the kind applied for that is expressed to have effect pending the determination of the application.
"(4) An order under subsection (1) has effect for the period specified in the order.
"(5) A court may rescind, vary or discharge an order made by it under this section.
"(6) A court may suspend the operation of an order made by it under this section.
"(7) An order under subsection (1) may be made subject to such conditions as the court thinks fit and, without limiting the generality of this, may make provision for meeting, out of the property or a specified part of the property to which the order relates, either or both of the following:
(a) the deportee's reasonable living expenses (including the reasonable living expenses of the deportee's dependants (if any));
(b) reasonable legal expenses incurred by the deportee in relation to a matter arising under this Act.
"(8) A person shall not, without reasonable excuse, contravene an order under this section.
Penalty: $5,000 or imprisonment for 2 years, or both.
court means a court of competent jurisdiction.
deportee includes an illegal entrant.
property means real or personal property of every description, whether tangible or intangible, that is situated in Australia, and includes an interest in any such real or personal property.
"21D Secretary may give direction about valuables of deportee or illegal entrant
"(1) This section applies in relation to a person who has been arrested under section 38 or 39 (in this section called the arrested person).
"(2) Where the Secretary is satisfied that:
(a) the arrested person is an illegal entrant or a deportee;
(b) the arrested person is liable, or may, on deportation, become liable, to pay the Commonwealth an amount under section 21A or 21B; and
(c) if the Secretary does not give a notice under this section there is a risk that the Commonwealth will not be able to recover the whole or a part of any amount that the arrested person is, or becomes, liable to pay to the Commonwealth under section 21A or 21B;
the Secretary may, in writing, notify the arrested person that his or her valuables are liable to be taken under this section.
"(3) Where the Secretary gives a notice under subsection (2), subsections (4) to (13) apply.
"(4) The Secretary shall cause a copy of the notice to be served on the arrested person as prescribed.
"(5) At any time after a copy of the notice has been served on the arrested person and while the notice remains in force, the Secretary may take possession of any valuables that the Secretary believes, on reasonable grounds, to belong to the arrested person.
"(6) A copy of the notice may be served on:
(a) any bank;
(b) any other financial institution; or
(c) any other person.
"(7) A bank or other financial institution served with a copy of the notice shall not, while the notice remains in force, without the written consent of the Secretary, process any transaction attempted in relation to any account held by the arrested person, whether alone or jointly with another person or other persons, and whether for his or her own benefit or as a trustee.
"(8) Where a copy of the notice is served on a person, not being a bank or other financial institution, who owes a debt to the arrested person, that first-mentioned person shall not, while the notice remains in force, without the written consent of the Secretary, make any payment to the arrested person in respect of that debt.
"(9) The notice stops being in force at the end of the third working day after it is given unless, before the end of that day, the Secretary has applied to a court for an order confirming the notice.
"(10) A court shall, on application by the Secretary, confirm the notice if and only if it is satisfied:
(a) that the arrested person is an illegal entrant or a deportee;
(b) that the arrested person is liable, or may, on deportation, become liable, to pay the Commonwealth an amount under section 21A or 21B; and
(c) that, if the court does not confirm the notice, there is a risk that the Commonwealth will not be able to recover the whole or a part of any amount that the arrested person is, or becomes, liable to pay to the Commonwealth under section 21A or 21B.
"(11) If the court confirms the notice, the court may make an order directing the Secretary to make provision, whether by returning valuables to which the notice relates or otherwise, for the meeting of either or both of the following:
(a) the arrested person's reasonable living expenses (including the reasonable living expenses of the arrested person's dependants (if any));
(b) reasonable legal expenses incurred by the arrested person in relation to a matter arising under this Act.
"(12) If the notice is confirmed by the court, it remains in force for such period, not exceeding 12 months, as is specified by the court.
"(13) If the court refuses to confirm the notice, it thereupon stops being in force.
"(14) The Secretary may issue to an officer a search warrant in accordance with the prescribed form.
"(15) A search warrant shall be expressed to remain in force for a specified period not exceeding 3 months and stops being in force at the end of that period.
"(16) An officer having with him or her a search warrant that was issued to him or her under subsection (14) and that is in force may, at any time in the day or night, and with such assistance, and using such reasonable force, as the officer thinks necessary:
(a) enter and search any building, premises, vehicle or place in which the officer has reasonable cause to believe there may be found any valuables to which a notice in force under this section relates; and
(b) may seize any such valuables found in the course of such a search.
"(17) An officer who has seized valuables under subsection (16) shall deal with those valuables in accordance with the directions of the Secretary.
"(18) For the purposes of the exercise of his or her powers under subsection (16) an officer may stop any vehicle.
"(19) An officer who, in good faith, on behalf of the Secretary or as a delegate of the Secretary, does any act or thing for the purpose of the exercise of the power under subsection (5) to take possession of valuables is not liable to any civil or criminal action in respect of the doing of that act or thing.
valuables includes:
(a) gold, jewellery, negotiable instruments, travellers cheques and cash; and
(b) bank books and other documentary evidence of debts owed to the arrested person.
"21E Dealing with seized valuables
"(1) Where the Secretary takes possession of valuables pursuant to subsection 21D(5), the provisions of this section have effect.
"(2) The Secretary shall arrange for the valuables to be kept until they are dealt with in accordance with a provision of this section, and shall ensure that all reasonable steps are taken to preserve the valuables while they are so kept.
"(3) The Secretary shall arrange for the valuables to be returned to the person from whom they were taken if:
(a) the authorising notice stops being in force;
(b) the arrested person:
(i) being an illegal entrant who is not a deportee, stops being an illegal entrant;
(ii) being an illegal entrant who is a deportee, stops being a deportee and stops being an illegal entrant; or
(iii) being a deportee who is not an illegal entrant, stops being a deportee without becoming an illegal entrant;
(c) the arrested person is not, when the authorising notice is given, liable to pay an amount to the Commonwealth under section 21A or 21B, and does not, within 6 months after the giving of that notice, becomes so liable; or
(d) all amounts that the arrested person is or becomes liable to pay to the Commonwealth under section 21A or 21B are paid to the Commonwealth.
"(4) If, when the Secretary takes possession of valuables, the arrested person is liable under section 21A or 21B to pay an amount to the Commonwealth, the Secretary shall, unless he or she is required to arrange for the return of the valuables because of paragraph (3)(d):
(a) apply the valuables towards the payment of the amount owed to the Commonwealth; and
(b) return any surplus to the person from whom the valuables were taken.
"(5) If, while valuables are being kept pursuant to subsection (2), the arrested person becomes liable under section 21A or 21B to pay an amount to the Commonwealth, the Secretary shall, unless he or she is required to arrange for the return of the valuables because of paragraph (3)(d):
arrested person means the person to whom the direction under section 21D applied.
authorising notice means the notice pursuant to which the Secretary took possession of the valuables.".
(2) A notice published in the Gazette under subsection 21A(7) of the Principal Act as in force before the commencement of this section shall, after that commencement, for the purposes of section 21B of the Migration Act 1958, be taken to be a notice under subsection 21B(5).
(3) Sections 21C, 21D and 21E of the Migration Act 1958 have effect as if references in those sections to a person being liable to pay an amount to the Commonwealth under section 21A or 21B included references to a person being liable, immediately before the commencement of this section, to pay an amount to the Commonwealth under section 21A of the Principal Act as in force before that commencement.
13 After section 26 of the Principal Act the following section is inserted in Division 4 of Part II:
"26A Carriage of persons to Australia without documentation
"(1) The master, owner, agent, charterer and operator of a vessel on which a non-citizen is brought into Australia on or after 1 November 1979 are each guilty of an offence against this section unless the person, on arrival in Australia:
(a) is in possession of a valid visa applicable to his or her travel to Australia on that occasion;
(b) is, or is included in a class of persons who are, for the time being exempted, by an instrument under subsection 53A(1), from the operation of this section; or
(c) is a person described in paragraph (f) of the definition of exempt non-citizen in subsection 5(1), other than a person in respect of whom a declaration is in force under section 8.
"(2) A person who is guilty of an offence against this section is liable, upon conviction, to a fine not exceeding $5,000.
"(3) In any proceeding for an offence against subsection (1), evidence that a person who arrived in Australia on board a vessel, on arrival, either:
(a) failed to produce to an officer, upon demand by that officer, a passport; or
(b) produced to an officer a passport that was not an Australian passport;
is prima facie evidence that the person was, on arrival, a non-citizen.
"(4) In any proceeding for an offence against subsection (1), evidence that a person who arrived in Australia on board a vessel failed, on arrival, to produce to an officer, upon demand by that officer, a valid visa applicable to that person's travel to Australia on that occasion is prima facie evidence that the person was not, on arrival, in possession of such a visa.
"(5) It is a defence to a prosecution for an offence against subsection (1) in relation to the bringing of a person into Australia on a vessel if it is established:
(a) that the person was, when he or she boarded or last boarded the vessel for travel to Australia, in possession of a visa granted under this Act applicable to his or her travel to Australia on that occasion, being a visa that:
(i) did not appear to have been cancelled; and
(ii) was expressed to continue in force until, or at least until, the date of the person's expected arrival into Australia;
(b) that the master of the vessel had reasonable grounds for believing that, when the person boarded or last boarded the vessel for travel to Australia, the person was, or was included in a class of persons who were, for the time being exempted, by an instrument under subsection 53A(1), from the operation of this section; or
(c) that the vessel entered Australia from overseas only because of:
(i) the illness of a person on board the vessel;
(ii) stress of weather; or
(iii) other circumstances beyond the control of the master.
"(6) In any proceeding for an offence against this section, a certificate signed by the Secretary stating that, at a time, or during a period, specified in the certificate, a specified person was not exempted, by an instrument under subsection 53A(1), from the operation of this section, is prima facie evidence that the person was not so exempted at that time or during that period.
vessel includes an installation.".
14 Offences in relation to entering into or remaining in Australia
"(1) A non-citizen who:
(a) becomes an illegal entrant under subsection 6(1);
(b) becomes an illegal entrant under subsection 6(2) because he or she was previously deported from Australia;
(c) becomes an illegal entrant under subsection 6(2) because of the operation of paragraph 11A(1)(b) or (c) or subsection 11A(2) in relation to dishonest action taken by the person after the commencement of the Migration Amendment Act 1983;
(d) becomes an illegal entrant under subsection 6(3) because the valid entry permit held by the person expires; or
(e) becomes an illegal entrant under subsection 6(4) because the person stops being an exempt non-citizen under paragraph 5E(a), (c), (d) or (f);
is guilty of an offence against this Act punishable, on conviction, by a fine not exceeding $5,000 or imprisonment for a period not exceeding 2 years, or both.";
(b) by omitting from subsection (2) "$1,000 or imprisonment for 6 months" and substituting "$5,000 or imprisonment for 2 years, or both";
(c) by omitting subsections (2AA), (2AB) and (2A) and substituting the following subsections:
"(2A) It is a defence to a prosecution of a non-citizen for an offence under paragraph (1)(c) if the non-citizen satisfies the court that, after he or she became an illegal entrant, he or she again became the holder of a valid entry permit.
"(2B) A non-citizen shall be taken not to be guilty of an offence because of paragraph (1)(d) or (e) if, at the time the non-citizen becomes an illegal entrant as mentioned in the paragraph concerned, a departure prohibition order is in force in respect of the non-citizen.
"(2C) Where:
(a) when a non-citizen becomes an illegal entrant as mentioned in paragraph (1)(d) or (e), a departure prohibition order is in force in respect of the non-citizen;
(b) the departure prohibition order is revoked; and
(c) at the time of the revocation, the non-citizen is an illegal entrant;
the non-citizen is guilty of an offence punishable, on conviction, by a fine not exceeding $5,000 or imprisonment for a period not exceeding 2 years, or both.";
(d) by omitting subsection (4) and substituting the following subsection:
"(4) Where a person is convicted of an offence under this section and appeals against the conviction, the person shall not be released on bail unless he or she finds 2 sureties, each in the sum of $10,000 and each approved by the Secretary, for the person's appearance at the hearing of the appeal.";
(e) by omitting from subsection (5) "to the Department or an officer of the Department authorised by the Secretary to give certificates under subsection 31B (5)";
(f) by omitting from subsection (6) "against subsection (1) by virtue of paragraph (ab) or (b) of that subsection" and substituting "under paragraph (1)(d) or (e)";
(g) by adding at the end the following subsection:
bogus document has the same meaning as in section 11A.
dishonest action, in relation to a person, means:
(a) producing, or causing to be produced, a document that the person knew was a bogus document;
(b) producing, or causing to be produced, a document containing information that the person knew was false or misleading in a material particular; or
(c) making, or causing to be made, a statement that the person knew was false or misleading in a material particular.".
15 Minister may require illegal entrant to leave Australia
"(1) The Minister may, after considering the prescribed matters and no other matters, require a person who is an illegal entrant to leave Australia within the time specified by the Minister, and the person shall comply with that requirement unless, at the end of the time so specified, a departure prohibition order is in force in respect of the person.
Penalty: $5,000 or imprisonment for 2 years, or both.";
(b) by omitting from subsection (2) "to the Department or an officer of the Department authorised by the Secretary to give certificates under subsection 31B(5)".
16 Offences in relation to work
(1) Section 31B of the Principal Act is amended:
"(1) Where a person who is the holder of a valid temporary entry permit that is subject to a condition of the kind referred to in paragraph 11D(4)(c) or 11P(4)(c) contravenes that condition, the person commits an offence against this subsection.";
(c) by omitting from subsection (2) "an authorised officer" and substituting "the Secretary";
(d) by omitting from paragraph (2A)(a) "subsection 11AB" and substituting "section 11ZH";
(e) by omitting from subsection (3) "an authorised officer" and substituting "the Secretary";
(f) by omitting from subsection (4) "$1,000" and substituting "$5,000";
(g) by omitting from subsection (5) "Secretary to the Department, or of an officer of the Department authorised by the Secretary to the Department to give certificates under this subsection—" and substituting "Secretary:".
(h) by omitting from paragraph (5)(a) "by an authorised officer" and substituting "for the purposes of this section";
(j) by omitting from paragraph (5)(b) "by an authorised officer" and substituting "for the purposes of this section".
(2) A person shall not be taken to commit an offence against subsection 31B(2) of the Migration Act 1958 by performing work in Australia after the commencement of this subsection if the person performs that work pursuant to permission, in writing, granted to the person before that commencement by an authorised officer within the meaning of the Principal Act as in force immediately before that commencement.
17 Custody of prohibited entrant during stay of vessel in port
(a) by inserting in subsection (1) "(not being an aircraft)" after "vessel" (first occurring);
(b) by omitting from subsection (1) "he would become a prohibited non-citizen (in this section referred to as the prohibited non-citizen)" and substituting "the person would become an illegal entrant (in this section called the prohibited entrant)";
(c) by omitting from subsection (1A) ", by instrument under the hand of the Minister, from the requirements of Division 1A" and substituting "under subsection 53A(1) from the operation of section 26A";
(d) by inserting in subsection (1A) "(not being an aircraft)" after "vessel" (first occurring);
(e) by omitting from subsection (1A) "he" and substituting "the person";
(f) by inserting after subsection (1A) the following subsections:
"(1B) Where:
(a) a person, not being a person exempted under subsection 53A(1) from the operation of section 26A, has travelled or has been brought to Australia;
(b) the person has not entered Australia;
(c) an authorised officer reasonably believes that the person was on board a vessel (not being an aircraft) when the vessel was used in connection with the commission of an offence against a law of the Commonwealth or of a State or Territory;
(d) the person is not the holder of a valid entry permit; and
(e) the person would, if he or she entered Australia, become an illegal entrant;
the person may, if an authorised officer so directs, be kept in such custody as the authorised officer directs at such place as the authorised officer directs for:
(f) such period, not exceeding 14 days, as is required for:
(i) the making of a decision whether to prosecute the person in connection with the offence referred to in paragraph (c); and
(ii) the institution of any such prosecution; and
(g) if a prosecution is instituted within that period of 14 days—for such further period as is required for the purposes of that prosecution.
"(1C) Without limiting the generality of paragraph (1B)(g), the period that is required for the purposes of a prosecution includes any period required for:
(a) any proceedings in connection with the prosecution;
(b) the serving of any custodial sentence imposed on the person; and
(c) the institution of, and any proceedings in connection with, any appeal from any decision in relation to the prosecution.";
(g) by inserting in subsection (2) "(including an aircraft)" after "another vessel";
(h) by inserting after subsection (2) the following subsection:
"(2A) Where the period for which a person may be kept in custody under subsection (1B) ends:
(a) the person shall, unless he or she is the holder of a valid entry permit, be expeditiously removed from Australia; and
(b) the person may, if an authorised officer so directs, be kept in such custody as the authorised officer directs at such place as the authorised officer directs until the person is so removed.";
(j) by omitting from subsection (3) "non-citizen" (wherever occurring) and substituting "entrant";
(k) by inserting in subsection (3) "or she" after "he";
(m) by inserting in subsection (3) "(including an aircraft)" after "another vessel";
(n) by omitting subsection (4) and substituting the following subsections:
"(4) A person who is taken ashore pursuant to subsection (1), (1A) or (1B) is to be deemed for the purposes of this Act not to enter Australia unless and until the person is granted a valid entry permit.
"(4A) An officer may, without warrant, arrest a person who has escaped from lawful custody in which that person has been kept in accordance with this section, and may return that person to that custody.";
(o) by omitting subsection (5).
18 After section 37 of the Principal Act the following section is inserted:
"37A Searches of persons
"(1) For the purposes set out in subsection (2), a person, and the person's clothing and any property under the immediate control of the person, may, without warrant, be searched if:
(a) the person has been arrested under, or is in custody under, this Act; or
(b) an authorised officer has reasonable grounds for suspecting that, on or after entering Australia, the person:
(i) will become an illegal entrant; or
(ii) will breach a condition subject to which a visa or entry permit was granted to the person.
"(2) The purposes for which a person, and the person's clothing and any property under the immediate control of the person, may be searched under this section are as follows:
(a) to find out whether there is hidden on the person, in the clothing or in the property, a weapon or other thing capable of being used to inflict bodily injury or to help the person to escape from custody;
(b) to find out whether there is hidden on the person, in the clothing or in the property, a document or other thing that is, or may be, evidence that on or after entering Australia, the person:
(i) became or will become an illegal entrant; or
(ii) breached or will breach a condition subject to which a visa or entry permit was granted to the person.
"(3) An authorised officer may detain a person for the purpose of searching the person in accordance with this section.
"(4) If, in the course of a search under this section, a weapon or other thing referred to in paragraph (2)(a), or a document or other thing referred to in paragraph (2)(b), is found, an authorised officer:
(a) may take possession of the weapon, document or other thing; and
(b) may retain the weapon, document or other thing for such time as he or she thinks necessary for the purposes of this Act.
"(5) This section does not authorise an authorised officer, or another person conducting a search pursuant to subsection (6) to remove any of the person's clothing, or to require a person to remove any of his or her clothing.
"(6) A search under this section of a person, and the person's clothing, shall be conducted by:
(a) an authorised officer of the same sex as the person; or
(b) in a case where an authorised officer of the same sex as the person is not available to conduct the search—any other person who is of the same sex and:
(i) is requested by an authorised officer; and
(ii) agrees;
to conduct the search.
"(7) An action or proceeding, whether civil or criminal, does not lie against a person who, at the request of an authorised officer, conducts a search under this section if the person acts in good faith and does not contravene subsection (8).
"(8) An authorised officer or other person who conducts a search under this section shall not use more force, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search.".
19 Arrest of illegal entrant
(a) by omitting subsection (1) and substituting the following subsections:
"(1) An officer may, without warrant, arrest a person whom the officer reasonably supposes to be an illegal entrant.
"(1A) A person arrested under subsection (1) or (7A) may, subject to this section, be kept in the custody of any officer or in such other custody as the Minister or the Secretary directs.";
(b) by omitting from subsection (2) "in pursuance of this section" and substituting "under subsection (1) or (7A)";
(c) by omitting from subsection (2) "him" (wherever occurring) and substituting "the arrested person";
(d) by inserting in subsection (2) "or she" after "he";
(da) by omitting from subsection (3) "a prohibited non-citizen" and substituting "an illegal entrant";
(e) by omitting from subsection (3) "he may, by writing under his hand" and substituting "he or she may, in writing";
(f) by omitting from subsection (3) "for such period as the prescribed authority is satisfied is reasonably required in order to enable the Minister to consider whether that person is a prohibited non-citizen and whether a deportation order should be made in respect of him";
(g) by omitting subsection (3A) and substituting the following subsection:
"(3A) The period for which the prescribed authority may authorise a person to be detained in custody under subsection (3):
(a) if the person proposes to leave Australia voluntarily—is until the person is ready, willing and able so to leave Australia;
(b) where paragraph (a) does not apply—is such period as the prescribed authority is satisfied is reasonably required to enable consideration of whether the person is an illegal entrant and whether he or she should be allowed to remain in Australia; and
(c) in any case—is not more than 7 days from the date of the authorisation or such longer period as the person consents to.";
(h) by omitting subsections (6) and (7) and substituting the following subsections:
"(6) If, while a person is in custody under this section, an officer informs the person (whether before or after the person is brought before a prescribed authority) that a deportation order is in force in relation to the person, the preceding provisions of this section stop applying in relation to the person, and the person shall be taken to have been thereupon arrested under section 39 by:
(a) the officer who has custody of the person; or
(b) if the person is not in the custody of an officer, by the officer who so informs the person.
"(7) In spite of anything else in this section, the Minister or the Secretary may at any time order the release (either unconditionally or subject to specified conditions) of a person who is in custody under this section.
"(7A) An officer may, without warrant, arrest a person who:
(a) has been released from custody under subsection (7) subject to conditions; and
(b) has breached any of those conditions.";
(j) by omitting from subsection (8) "he" and substituting "the person".
(k) by omitting from subsection (8) "a prohibited non-citizen" and substituting "an illegal entrant".
20 Arrest of deportee
"(1) Where an order for the deportation of a person is in force, an officer may, without warrant, arrest a person whom the officer reasonably supposes to be that person.
"(1A) A person arrested under subsection (1) or (7A) may, subject to this section, be kept in custody as a deportee in accordance with subsection (6).";
(b) by omitting from subsection (2) "in accordance with this section" and substituting "under subsection (1) or (7A)";
(c) by inserting in subsection (2) "or her" after "him";
(d) by omitting from subsection (3) "under this section claims, within 48 hours of his arrest and while he is in custody, that he" and substituting "arrested under this section (in this subsection called the arrested person) claims, within 48 hours after the arrest and while the arrested person is in custody, that he or she";
(e) by omitting paragraphs (3)(a) and (b) and substituting the following paragraphs:
"(a) if that last-mentioned person is an officer—ask the arrested person; or
(b) in any other case—cause an officer to ask the arrested person;";
(f) by inserting in subsection (3) "or her" after "him" (third, fourth and last occurring);
(g) by omitting from subsection (6) "an officer" and substituting "the Secretary";
(h) by inserting in subsection (6) "or she" after "he" (wherever occurring);
(j) by omitting from paragraph (6)(c) "her" (wherever occurring) and substituting "its";
(k) by omitting subsection (7) and substituting the following subsections:
(b) has breached any of those conditions.".
"39A Operation of section 39 in relation to deportees held in other custody
"(1) This section applies where a deportation order is made in respect of a person who is, otherwise than under this Act, in the custody of an authority of the Commonwealth, of a State or of a Territory.
"(2) The Secretary may give the person written notice:
(a) stating that the deportation order has been made;
(b) setting out particulars of the deportation order; and
(c) stating that, from the time when the person would otherwise be entitled to be released from the custody referred to in subsection (1) (in this section called the custody transfer time), the person will be kept in custody under this Act.
"(3) Where a person is given notice under subsection (2), this Act (other than subsections 39(1) and (2)) applies in relation to the person as if he or she had been arrested under subsection 39(1) at the custody transfer time.".
22 Division 6 of Part II of the Principal Act is repealed and the following Division is substituted:
"Division 6—Regulation of conduct of third parties in connection with the making of decisions
"46 Offences in relation to false or misleading statements regarding the making of decisions
"(1) A person shall not make a false or misleading statement about:
(a) the person's ability or power; or
(b) the ability or power of another person;
to induce or influence the making of decisions, or of a particular decision, under this Act.
"(2) A person shall not make a false or misleading statement about the effect of:
(a) the person's actions; or
(b) the actions of another person;
on the making of a decision under this Act.
"47 Offence of undertaking, for reward, to cause decisions to be made etc.
"(1) A person shall not enter an arrangement under which he or she undertakes, in return for a payment, that a decision under this Act to a particular effect will be made.
"(2) A person shall not offer, or invite other persons to offer, to enter an arrangement if it would be an offence against subsection (1) to enter into the arrangement.
"48 Effect of contravention of section 46 or 47 on charging for services
"(1) Subsections (2) and (3) apply where:
(a) a person (in this section called the agent) has, after the commencement of this section, entered into an arrangement with another person under which the agent is to perform services in connection with the making of a decision under this Act; and
(b) either:
(i) before the arrangement was entered into, the agent made, or caused or permitted to be made, a statement to the other person in contravention of section 46; or
(ii) the arrangement was entered into in contravention of section 47.
"(2) The agent is not entitled to be paid for performing the services.
"(3) If the agent has been paid for performing the services, the person who paid the agent may recover the amount of the payment as a debt due to the person in a court of competent jurisdiction.
"(4) This section has effect subject to subsection 50(4).
"49 Persons charged for services to be given detailed statement of services
"(1) A person (in this section called the agent) is not entitled to be paid for performing services in connection with the making of a decision under this Act unless the agent gives, to the person who requested the performance of the services, a statement of services in accordance with subsection (2).
"(2) A statement of services shall set out:
(a) particulars of each service performed; and
(b) the charge made in respect of each such service.
(a) a person has paid for the performance of services in connection with the making of a decision under this Act without having received a statement of services as required by subsection (1); and
(b) the person does not receive a statement of services within 28 days after the making of the decision;
the person may recover the amount of the payment as a debt due to the person.
"(4) This section does not apply to services performed in connection with proceedings, or possible proceedings, in a court or the Administrative Appeals Tribunal.
"50 Court may order reparation for loss suffered
(a) a person is convicted by a court of an offence against this Division; and
(b) because of that offence, another person has suffered loss;
the court may, in addition to any penalty imposed on the offender, order the offender to make to the other person such reparation (whether by payment of money or otherwise) as the court thinks fit.
(a) a court makes an order under subsection (1) for the making of reparation by payment of an amount of money;
(b) the clerk, or other appropriate officer, of the court signs a certificate specifying:
(i) the amount ordered to be paid;
(ii) the person by whom the amount is to be paid; and
(iii) the person to whom the amount is to be paid; and
(c) the certificate is filed in a court having civil jurisdiction to the extent of the amount to be paid;
the certificate is enforceable in all respects as a final judgment of the court in which the certificate is filed.
"(3) The court shall not, under subsection (1), order reparation in respect of an amount paid by a person if that amount has been recovered by the person under section 48.
"(4) If an amount paid by a person could be recovered by the person under section 48, the following provisions apply:
(a) if, under subsection (1), a court orders the person to whom the amount was paid to make reparation to the first-mentioned person the court shall state in the order whether the reparation ordered includes reparation for the amount paid;
(b) if a court states in an order under subsection (1) that the reparation ordered includes reparation for the amount paid, the amount is not recoverable under section 48.".
23 Before section 54 of the Principal Act the following section is inserted in Division 7 of Part II:
"53A Exemptions
"(1) The Minister may, by instrument published in the Gazette, exempt:
(a) a person; or
(b) a class of persons;
from the operation of section 26A.
from the operation of subsection 6(1).
"(3) An instrument made under subsection (2) may specify that a person who enters Australia without an entry permit pursuant to an exemption under this section shall not be granted an entry permit while he or she remains in Australia.".
24 Proof of certain matters
(a) by omitting from subsection (1) "proceedings in a court under this Act or in relation to a deportation order—" and substituting "migration proceedings:";
(b) by omitting from subparagraph (1)(b)(i) "to the court";
(c) by inserting after paragraph (1)(b) the following paragraph:
"(ba) a certificate signed by an officer stating that:
(i) at a time, or during a period, specified in the certificate a specified person was, or was not, the holder of, a valid visa or a valid entry permit;
(ii) a specified visa or entry permit was granted subject to specified conditions or to a specified limitation as to time; or
(iii) a specified entry permit was, or was not, endorsed in a specified way under section 11A, or under section 16 of this Act as in force before the commencement of this paragraph;
is prima facie evidence of the matters stated in the certificate;";
migration proceedings means:
(a) proceedings in a court or the Immigration Review Tribunal:
(i) under this Act; or
(ii) in relation to a deportation order; or
(b) proceedings in the Administrative Appeals Tribunal under section 66E.".
25 After section 58 of the Principal Act the following sections are inserted in Part II:
"59 Detention centres
"(1) The Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained.
"(2) The regulations may make provision in relation to the operation and regulation of detention centres.
"(3) Without limiting the generality of subsection (2), regulations under that subsection may deal with the following matters:
(a) the conduct and supervision of detainees;
(b) the powers of persons performing functions in connection with the supervision of detainees.
detention centre means a centre for the detention of persons whose detention in custody is authorised under this Act.
"60 Secretary may issue documents containing information concerning certain persons
"(1) This section applies to a person who:
(a) is a deportee who has not yet been deported; or
(b) has arrived in Australia but has been refused permission to enter Australia.
"(2) Where the Secretary thinks that the issue to a person of a document under subsection (3) relating to another person, being a person to whom this section applies, would facilitate the making of arrangements for the transportation, by aircraft, of the other person from Australia, the Secretary may give the first-mentioned person a document under subsection (3) relating to the other person.
"(3) A document for the purposes of subsection (2):
(a) shall be in the prescribed form;
(b) shall state, to the best of the Secretary's knowledge, the name and nationality of the person concerned; and
(c) may include such other information as the Secretary thinks appropriate.".
26 After Part II of the Principal Act the following Part is inserted:
"Division 1—Review of decisions
"61 Internal review of certain decisions
"(1) The regulations may provide for:
(a) decisions of the Minister to be reviewed;
(b) the review officers who are to conduct such reviews;
(c) the manner and form of applications for such reviews; and
(d) the persons who may apply for such reviews.
"(2) The regulations that may be made under subsection (1) include, but are not limited to, regulations setting out the times at which, or the periods within which, things may be done, or must be done, for the purposes of, or in connection with, the review of decisions under those regulations.
"(3) The regulations made in relation to decisions that are reviewable by a review officer but not by the Tribunal shall not provide a period during which a review of such a decision may be instituted that is longer than:
(a) where the person to whom the decision relates is physically present in Australia—28 days; or
(b) where the person to whom the decision relates is not physically present in Australia—70 days.
"(4) The regulations made in relation to decisions that are reviewable by a review officer and then by the Tribunal shall not provide periods during which the reviews of such a decision may be instituted that are longer in total than:
"(5) Where the Minister thinks that it is in the public interest to do so, the Minister may:
(a) set aside a decision affirmed, varied or made by a review officer under regulations made under subsection (1); and
(b) substitute a decision that is more favourable to the applicant.
(a) set aside a decision reviewed by a review officer under regulations made under subsection (1), being a decision in relation to which the review officer had recommendatory powers; and
(b) substitute a decision that is more favourable to the applicant than the decision recommended by the review officer.
"(7) Where the Minister sets aside a decision under subsection (5) or (6), he or she must cause to be laid before each House of the Parliament a statement that:
(a) sets out the decision set aside; and
(b) where the decision is set aside under subsection (6)—sets out the recommendation of the review officer; and
(c) sets out the decision substituted by the Minister; and
(d) sets out the reasons for the Minister's decision, referring in particular to the Minister's reason for thinking that his or her actions are in the public interest.
"(8) A statement under subsection (7) is not to include:
(a) the name of the applicant; or
(b) where the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person.
"(9) A statement under subsection (7) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) where the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) where the decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
"(10) The Minister does not have a duty to consider whether to exercise the power under subsection (5) or (6) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
"(11) The power under subsection (5) or (6) is not to be exercised to grant an entry permit to a person who is the holder of a visa or temporary entry permit that was granted subject to the condition set out in paragraph 11D(4)(b) or 11P(4)(b).
"62 Applications for review by Tribunal
(a) decisions of the following kinds to be reviewed by the Tribunal:
(i) decisions made by the Minister personally or by delegates of the Minister;
(ii) decisions affirmed, varied or made on review under regulations made under section 61;
(iii) decisions that have been reviewed under regulations made under section 61 where:
(A) the review authorities that reviewed the decisions had recommendatory powers in relation to the decisions; and
(B) no decisions have been made in response to the recommendations of the review authorities within a specified period;
(b) the manner and form of applications for such reviews; and
(c) the persons who may apply for such reviews.
"(3) The regulations made in relation to decisions that are reviewable by the Tribunal but not by a review officer shall not provide a period during which a review of such a decision may be instituted that is longer than:
"63 Powers of review authority
A review authority in relation to a class of reviewable decisions has determinative powers in relation to those decisions unless the regulations state that the review authority has recommendatory powers in relation to those decisions.
"64 Determinative powers
"(1) This section applies in relation to the review of a reviewable decision where the review authority has determinative powers in relation to the reviewable decision.
"(2) The review authority may, for the purposes of the review, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
"(3) In spite of anything else in this Act, a review authority shall not, by varying a decision or setting a decision aside and substituting a new decision, purport to grant an entry permit on humanitarian grounds.
"(4) The review authority may:
(a) affirm the decision;
(b) vary the decision; or
(c) set the decision aside and substitute a new decision.
"(5) If the review authority:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;
the decision as varied or substituted shall (except for the purpose of applications to the Tribunal for review or of appeals from decisions of the Tribunal) be taken to be a decision of the Minister.
"(6) A decision made by a review authority takes effect when the applicant is notified of the decision under section 64S.
"64A Recommendatory powers
Where the regulations specify that a review authority has recommendatory powers in relation to a class of reviewable decisions, the review authority may, in relation to such a decision, recommend to the Minister:
(a) at the decision be affirmed;
(b) that the decision be varied; or
(c) that the decision be set aside and another decision substituted.
"64B Some decisions not reviewable
"(1) The following decisions may not be prescribed by regulations made under section 61 or 62:
(a) a decision made on an application for an entry permit, where the application was able to be made only because the person's circumstances had changed since the person last made an application for an entry permit;
(b) a decision to cancel a visa or entry permit;
(c) a decision to order the deportation of a person;
(d) a decision by the Minister that a person does not have the status of refugee within the meaning of:
(ii) the Protocol relating to the Status of Refugees that was done in New York on 31 January 1967.
(e) a decision made by the Minister under subsection 61(5) or (6) or section 64U.
"(2) A decision shall not be reviewed, or continue to be reviewed, under this Act if the Minister has given a certificate stating that:
(a) it would be contrary to the public interest to change the decision, because any change in the decision would prejudice the security, defence or international relations of Australia; or
(b) it would be contrary to the public interest for the decision to be reviewed because such review would require consideration by the review authority of deliberations or decisions of the Cabinet or of a committee of the Cabinet.
"64C Review authority to consider all possible applications
"(1) This section applies to each review under this Part of a decision (in this section called the original decision) refusing an entry permit to a person where:
(a) the person has entered, and remains in, Australia; and
(b) the review authority concerned has determinative powers in relation to the original decision.
"(2) Where, during the review, it appears to the review authority that the applicant might have grounds for making another application for an entry permit of the same class or an application for an entry permit of a different class, the review authority shall:
(a) notify the applicant accordingly; and
(b) adjourn the review.
"(3) If the applicant does not make any other application for an entry permit within 10 working days after being notified under subsection (2):
(a) the review authority shall resume the review of the original decision; and
(b) section 11S applies to the applicant.
"(4) If the applicant makes any application or applications for an entry permit within 10 working days after being notified under subsection (2):
(a) the review authority shall not resume the review of the original decision until decisions have been made by the Minister on the other application or all the other applications;
(b) the review authority shall then, subject to the wishes of the applicant, review the original decision and such of the other decisions (if any) as are reviewable decisions; and
(c) section 11S applies to the applicant.
"Division 2—Applications for review by Tribunal
"64D Secretary to be notified of application for review
"(1) Where an application for review is made to the Tribunal, the Registrar shall, as soon as practicable, give the Secretary written notice of the making of the application.
"(2) Where the Secretary is notified of an application for review under subsection (1), the Secretary shall, within 10 working days after being so notified, give to the Registrar the prescribed number of copies of:
(a) a statement about the decision under review that:
(i) sets out the findings of fact made by the person who made the decision;
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision; and
(b) each other document or part of a document that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.
"Division 3—Exercise of Tribunal's powers
"64E Tribunal's way of operating
"(1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
"(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case.
"64F Constitution of Tribunal for exercise of powers
"(1) For the purpose of a particular review, the Tribunal shall be constituted, in accordance with a direction under subsection (2), by:
(a) a single member;
(b) 2 members; or
(c) 3 members.
"(2) The Principal Member, or a Senior Member acting in accordance with guidelines under subsection (3), may give a written direction about who is to constitute the Tribunal for the purpose of a particular review.
"(3) The Principal Member may give to the Senior Members written guidelines for the giving of directions by Senior Members about who is to constitute the Tribunal for the purpose of particular reviews.
"64G Reconstitution of Tribunal
"(1) This section applies where a member who constitutes the Tribunal, or who is one of the members who constitute the Tribunal, for the purposes of a particular review (in this section called the unavailable member):
(a) stops being a member; or
(b) for any reason, is not available for the purpose of the review at the place where the review is being conducted.
"(2) If the unavailable member constitutes the Tribunal, the Principal Member shall direct another member or members to constitute the Tribunal for the purpose of finishing the review.
"(3) If the unavailable member is one of the members who constitute the Tribunal, the Principal Member shall either:
(a) direct that the Tribunal is to be constituted for the purposes of finishing the review by the remaining member or members; or
(b) direct that the Tribunal is to be constituted for that purpose by the remaining member or members together with another member or members.
"(4) Where a direction under subsection (2) or (3) is given, the Tribunal as constituted in accordance with the direction shall continue and finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.
"(5) In exercising powers under this section, the Principal Member shall have regard to the objective set out in subsection 64E(1).
"64H Exercise of Tribunal's powers
"(1) Where the Tribunal is constituted for the purpose of a review by 3 members, any question before the Tribunal shall be decided according to the opinion of the majority of those members.
"(2) Where the Tribunal is constituted for the purpose of a review by 2 members, any question to be decided on the review shall be decided:
(a) if the 2 members are of the same opinion—according to that opinion; or
(b) in any other case—according to the opinion of the presiding member.
"64J Presiding member
"(1) This section applies in relation to a review by the Tribunal where the Tribunal is constituted for the purpose of the review by 2 or 3 members.
"(2) If the Principal Member is one of the members of the Tribunal as constituted for the purpose of the review, the Principal Member shall preside at the review.
"(3) If the Tribunal as constituted for the purpose of the review:
(a) does not include the Principal Member; and
(b) includes one, and only one, Senior Member;
the Senior Member shall preside at the review.
"(4) If neither subsection (2) nor (3) applies, the Principal Member shall designate one of the members who constitute the Tribunal for the purposes of the review as the member who is to preside at the review.
"Division 4—Conduct of review
"64K Documents to be given to the Tribunal
"(1) An applicant for review by the Tribunal may give the Tribunal:
(a) a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider; and
(b) written arguments relating to the issues arising in relation to the decision under review.
"(2) The Secretary may give the Tribunal written argument relating to the issues arising in relation to the decision under review.
"64L Review 'on the papers'
"(1) If, after considering the material contained in the documents given to the Registrar pursuant to sections 64D and 64K, the Tribunal is prepared to make the decision or recommendation on the review that is most favourable to the applicant, the Tribunal may make that decision or recommendation without taking oral evidence.
"(2) For the purposes of subsection (1), a decision or recommendation made on a review shall be taken to be the decision or recommendation most favourable to the applicant if there is no other decision or recommendation that:
(a) the Tribunal could make; and
(b) in the Tribunal's opinion, the applicant would prefer the Tribunal to make.
"64M Where review 'on the papers' is not available
"(1) Where section 64L does not apply, the Tribunal:
(a) shall give the applicant an opportunity to appear before it to give evidence; and
(b) may obtain such other evidence as it considers necessary.
"(2) The Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review.
"64N Applicant may request Tribunal to call witnesses
"(1) Where section 64L does not apply, the Tribunal shall notify the applicant:
(a) that he or she is entitled to appear before the Tribunal to give evidence; and
(b) of the effect of subsection (2) of this section.
"(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
"(3) Where the Tribunal is notified by an applicant under subsection (2), the Tribunal:
(a) shall have regard to the applicant's wishes; but
(b) is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.
"64P Powers of the Tribunal etc.
"(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation;
(b) adjourn the review from time to time;
(c) subject to sections 64ZF and 64ZG, give information to the applicant and to the Secretary; or
(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
"(2) The Tribunal may combine the reviews of 2 or more reviewable decisions made in respect of the same person.
"(3) Subject to subsection (4), the presiding member in relation to a review may:
(a) summon a person to appear before the Tribunal to give evidence;
(b) summon a person to produce to the Tribunal such documents as are referred to in the summons;
(c) require a person appearing before the Tribunal to give evidence either to take an oath or to make an affirmation; and
(d) administer an oath or affirmation to a person so appearing.
"(4) The presiding member shall not, for the purposes of a review that is being conducted in Australia, summon a person under paragraph (3)(a) or (b) unless the person is in Australia.
"(5) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence that the person will give will be true.
"(6) A person appearing before the Tribunal to give evidence is not entitled:
(a) to be represented before the Tribunal by any other person; or
(b) to examine or cross-examine any other person appearing before the Tribunal to give evidence.
"(7) Where a person appearing before the Tribunal to give evidence is not proficient in English, the presiding member may direct that communication with that person during his or her appearance proceed through an interpreter.
"64Q Presiding member may authorise another person to take evidence
"(1) The power of the Tribunal under paragraph 64P(1)(a) to take evidence on oath or affirmation for the purpose of a review may be exercised on behalf of the Tribunal by the presiding member or by:
(a) another member;
(b) a person appointed or employed under the Public Service Act 1922; or
(c) another person approved in writing by the Minister for the purposes of this section;
who is authorised in writing by the presiding member.
"(2) The power of the Tribunal may be exercised pursuant to subsection (1):
(a) inside or outside Australia; and
(b) subject to such limitations (if any) as are specified by the presiding member.
"(3) Where a person other than a presiding member is authorised under subsection (1) to take evidence for the purpose of a review:
(a) the person has, for the purpose of taking that evidence:
(i) all the powers of the Tribunal under subsection 64P(1); and
(ii) the power to administer an oath or affirmation to a person appearing before the first-mentioned person to give evidence; and
(b) for the purpose of the exercise of those powers by that person, this Part has effect (except where the context otherwise requires) as if a reference to the Tribunal, or to the presiding member, in relation to the review included a reference to that person.
"(4) Where a person (other than a member of the Tribunal as constituted for the purpose of the review) exercises the power of the Tribunal to take evidence on oath or affirmation for the purpose of a review, the person shall cause a written record of the evidence taken to be made and sent to the presiding member.
"(5) Where the presiding member receives, pursuant to subsection (4), a record of evidence given by the applicant, the Tribunal shall, for the purposes of section 64M, be taken to have given the applicant an opportunity to appear before it to give evidence.
"64R Review to be in public
"(1) Subject to this section, the Tribunal shall take oral evidence in public.
"(2) Where the Tribunal is satisfied that it is in the public interest to do so, the Tribunal may direct that particular oral evidence, or oral evidence for the purposes of a particular review, is to be taken in private.
"(3) Where the Tribunal gives a direction under subsection (2), it may give directions as to the persons who may be present when the oral evidence is given.
"Division 5—Decisions of Tribunal
"64S Tribunal to record its decisions etc. and to notify parties
"(1) Where the Tribunal makes its decision on a review, the Tribunal shall prepare a written statement that:
(a) sets out the decision of the Tribunal on the review;
(b) sets out the reasons for the decision;
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
"(2) The Tribunal shall give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made.
"(3) Where the Tribunal has prepared the written statement, the Tribunal shall:
(a) return to the Secretary any document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
"64T Tribunal decisions to be published
Subject to any direction under section 64ZG, the Registrar shall ensure that statements prepared by the Tribunal pursuant to subsection 64S(1) are published.
"64U Minister may set aside Tribunal's decision etc.
(a) set aside a decision of the Tribunal; and
(a) set aside a decision reviewed by the Tribunal, being a decision in relation to which the Tribunal had recommendatory powers; and
(b) substitute a decision that is more favourable to the applicant than the decision recommended by the Tribunal.
(b) where the decision is set aside under subsection (2)—sets out the recommendation of the Tribunal; and
(d) sets out the reasons for the Minister's decision, referring in particular to the Minister's reasons for thinking that his or her actions are in the public interest.
"(5) A statement under subsection (3) is to be laid before each House of the Parliament within 15 sitting days of that House after the decision concerned is set aside.
"(6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) or (2) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
"(7) The power under subsection (1) or (2) is not to be exercised to grant an entry permit to a person who is the holder of a visa or temporary entry permit that was granted subject to the condition set out in paragraph 11D(4)(b) or 11P(4)(b).
"64V Appeal to Federal Court on question of law
"(1) An appeal lies to the Federal Court, on a question of law, from any decision of the Tribunal made on a review under this Part.
"(2) An appeal may be instituted by:
(a) the applicant for review by the Tribunal; or
(b) the Minister.
"(3) An appeal shall be instituted within 28 days after the appellant is notified under section 64S of the decision concerned.
"(4) The Federal Court shall hear and determine the appeal and may make such order as it thinks appropriate because of its decision.
"(5) Without limiting the generality of subsection (4), the orders that may be made by the Federal Court on an appeal include:
(a) an order affirming or setting aside the decision of the Tribunal; and
(b) an order remitting the matter to be reviewed and decided again, either with or without the taking of further evidence, by the Tribunal in accordance with the directions of the Court.
"64W Operation etc. of decision subject to appeal
(1) Subject to this section, the institution of an appeal to the Federal Court from a decision of the Tribunal does not:
(a) affect the operation of the decision;
(b) prevent the taking of action to implement the decision; or
(c) prevent the taking of action in reliance on the making of the decision.
"(2) Where an appeal is instituted in the Federal Court from a decision of the Tribunal, the Federal Court or a Judge of the Federal Court may make such orders of the kind referred to in subsection (3) as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.
"(3) The orders that may be made under subsection (2) are orders staying, or otherwise affecting the operation or implementation of, either or both of the following:
(a) the decision of the Tribunal or a part of that decision;
(b) the decision to which the proceeding before the Tribunal related or a part of that decision.
"(4) The Federal Court or a Judge of that Court may, by order, vary or revoke an order in force under subsection (2) (including an order that has previously been varied under this subsection).
"(5) An order in force under subsection (2):
(a) is subject to such conditions as are specified in the order; and
(b) has effect until:
(i) where a period for the operation of the order is specified in the order—the end of that period or, if a decision is given on the appeal before the end of that period, the giving of the decision; or
(ii) where no period is so specified—the giving of a decision on the appeal.
"64X Jurisdiction of Federal Court
The Federal Court has jurisdiction with respect to matters arising under sections 64V and 64W, and that jurisdiction is exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court under section 75 of the Constitution.
"Division 6—Offences
"64Y Failure of witness to attend
A person who has been served, as prescribed, with a summons to appear before the Tribunal to give evidence and tendered reasonable expenses shall not, without reasonable excuse:
(a) fail to attend as required by the summons; or
(b) fail to appear and report from day to day unless excused, or released from further attendance, by a member.
Penalty: $1,000 or imprisonment for 6 months, or both.
"64Z Refusal to be sworn or to answer questions etc.
"(1) A person appearing before the Tribunal to give evidence shall not, without reasonable excuse:
(a) when required under section 64P either to take an oath or to make an affirmation—refuse or fail to comply with the requirement; or
(b) refuse or fail to answer a question that the person is required to answer by the presiding member.
"(2) Subject to section 64ZD, a person shall not, without reasonable excuse, refuse or fail to produce a document that a person is required to produce by a summons under section 64P served on the person as prescribed.
"(3) A person appearing before the Tribunal to give evidence shall not knowingly give evidence that is false or misleading in a material particular.
Penalty for a contravention of this subsection:
$2,000 or imprisonment for 12 months, or both.
"64ZA Contempt of Tribunal
A person shall not:
(a) obstruct or hinder the Tribunal or a member in the performance of the functions of the Tribunal; or
(b) disrupt the taking of evidence by the Tribunal.
Penalty: $2,000 or imprisonment for 12 months, or both.
"Division 7—Miscellaneous
"64ZB Protection of members and persons giving evidence
"(1) A member has, in the performance of his or her duties as a member, the same protection and immunity as a Justice of the High Court.
"(2) Subject to this Part, a person summoned to attend, or appearing, before the Tribunal to give evidence has the same protection, and is, in addition to the penalties provided by this Part, subject to the same liabilities, as a witness in proceedings in the High Court.
"64ZC Fees for persons giving evidence
"(1) A person, other than the applicant, summoned to appear before the Tribunal to give evidence is entitled to be paid, in respect of his or her attendance, fees, and allowances for expenses, fixed by or in accordance with the regulations.
"(2) The fees and allowances shall be paid:
(a) where the applicant notifies the Tribunal under subsection 64N(2) that he or she wants the Tribunal to obtain evidence from the person—by the applicant; and
(b) in any other case—by the Commonwealth.
"64ZD Restrictions on disclosure of certain information etc.
In spite of anything else in this Act, the Secretary shall not give to the Tribunal a document, or information, if the Minister certifies, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest:
(a) because it would prejudice the security, defence or international relations of Australia; or
(b) because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet.
"64ZE Tribunal's discretion in relation to disclosure of certain information etc.
"(1) This section applies to a document or information if:
(a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 64ZD(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
"(2) Where, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) shall notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
"(3) Where the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary pursuant to subsection (2), disclose any matter contained in the document, or the information, to the applicant.
"64ZF Disclosure of confidential information
"(1) This section applies to a person who is or has been:
(a) a member of the Tribunal;
(b) a person acting as a member of the Tribunal;
(c) an officer of the Tribunal; or
(d) a person providing interpreting services in connection with a review by the Tribunal.
"(2) This section applies to information or a document if the information or document concerns a person and is obtained by a person to whom this section applies in the course of performing functions or duties or exercising powers under this Act.
"(3) A person to whom this section applies shall not:
(a) make a record of any information to which this section applies; or
(b) divulge or communicate to any person any information to which this section applies;
unless the record is made or the information is divulged or communicated:
(c) for the purposes of this Act; or
(d) for the purposes of, or in connection with, the performance of a function or duty or the exercise of a power under this Act.
"(4) Subsection (3) applies to the divulging or communicating of information whether directly or indirectly.
"(5) A person to whom this section applies shall not be required:
(a) to produce in a court any document to which this section applies; or
(b) to divulge or communicate to any court any information to which this section applies;
except where it is necessary to do so for the purposes of carrying into effect the provisions of this Act.
"(6) Nothing in this section affects a right that a person has under the Freedom of Information Act 1982.
"(7) For the purposes of this section, a person who is providing interpreting services in connection with a review by the Tribunal shall be taken to be performing a function under this Act.
court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
produce includes permit access to.
"64ZG Tribunal may restrict publication of certain matters
"(1) Where the Tribunal is satisfied, in relation to a review, that it is in the public interest that:
(a) any evidence given before the Tribunal;
(b) any information given to the Tribunal; or
(c) the contents of any document produced to the Tribunal;
should not be published, or should not be published except in a particular manner and to particular persons, the Tribunal may give a written direction accordingly.
"(2) Where the Tribunal has given a direction under subsection (1) in relation to the publication of any evidence or information or of the contents of a document, the direction does not:
(a) excuse the Tribunal from its obligations under section 64S; or
(b) prevent a person from communicating to another person a matter contained in the evidence, information or document if the first-mentioned person has knowledge of the matter otherwise than because of the evidence or the information having been given or the document having been produced to the Tribunal.
"(3) A person shall not contravene a direction given by the Tribunal under subsection (1) that is applicable to the person.
"64ZH Sittings of Tribunal
"(1) Sittings of the Tribunal shall be held from time to time as required, in such places in Australia as are convenient.
"(2) The Tribunal constituted by a member or members may sit and exercise the powers of the Tribunal even though the Tribunal constituted by another member or other members is at the same time sitting and exercising those powers.".
27 Before Part IV of the Principal Act the following Part is inserted:
"Division 1—Establishment and Membership of the Immigration Review Tribunal
"64ZJ Establishment of the Immigration Review Tribunal
There is hereby established an Immigration Review Tribunal consisting of:
(a) a Principal Member;
(b) such number (not exceeding the prescribed number) of Senior Members as are appointed in accordance with this Act; and
(c) such number (not exceeding the prescribed number) of other members as are appointed in accordance with this Act.
"64ZK Appointment of members
"(1) The members of the Tribunal shall be appointed by the Governor-General.
"(2) The Principal Member and the Senior Members shall be appointed as full-time members.
"(3) Any other member may be appointed either as a full-time member or as a part-time member.
"64ZL Principal Member
"(1) The Principal Member is the executive officer of the Tribunal and is responsible for the overall operation and administration of the Tribunal.
"(2) The Principal Member shall:
(a) monitor the operations of the Tribunal to ensure that those operations are as fair, just, economical, informal and quick as practicable; and
(b) allocate the work of the Tribunal among the members (including himself or herself) in accordance with guidelines under subsection (3).
"(3) The Principal Member may lay down written guidelines for the allocation of the work of the Tribunal.
"(4) Without limiting the generality of subsection (3), guidelines laid down under that subsection shall provide that cases where a person affected by the decision under review is being held in custody under this Act shall be given priority over other cases.
"64ZM Period of appointment of members
"(1) Subject to this Part, a member holds office for such period, not exceeding 5 years, as is specified in the instrument of appointment.
"(2) A person who has turned 65 shall not be appointed as a member.
"(3) A person shall not be appointed as a member for a period that extends beyond the day on which the person will turn 65.
"64ZN Remuneration and allowances of Principal Member
"(1) The Principal Member shall be paid:
(a) such remuneration as is determined by the Remuneration Tribunal; and
(b) such allowances as are prescribed.
"(2) If no determination of the remuneration of the Principal Member by the Remuneration Tribunal is in operation, the Principal Member shall be paid such remuneration as is prescribed.
"(3) This section has effect subject to the Remuneration Tribunal Act 1973.
"64ZP Remuneration and allowances of other members
"(1) The Senior Members shall be paid remuneration and allowances equal to the remuneration and allowances from time to time payable to the holder of an SES office that has a classification of Senior Executive Level 2.
"(2) The other full-time members shall be paid remuneration and allowances equal to the remuneration and allowances from time to time payable to the holder of an SES office that has a classification of Senior Executive Level 1.
"(3) The part-time members shall be paid remuneration and allowances as are determined by the Minister in writing.
"(4) This section has effect subject to the regulations.
SES office means an office in the Senior Executive Service of the Australian Public Service.
"64ZQ Leave of absence
The Minister may grant leave of absence to a member on such terms and conditions as to remuneration or otherwise as the Minister determines in writing.
"64ZR Other terms and conditions
A member holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Minister in writing.
"64ZS Resignation
A member may resign by writing signed by him or her and sent to the Governor-General.
"64ZT Disclosure of interests
"(1) A member who has a conflict of interest in relation to a review by the Tribunal:
(a) shall disclose the matters giving rise to that conflict to the applicant and:
(i) if the member is the Principal Member—to the Minister; and
(ii) in any other case—to the Principal Member; and
(b) the member shall not take part in the review or exercise any powers in relation to the review unless:
(i) where the member is the Principal Member—the applicant and the Minister consent; or
(ii) in any other case—the applicant and the Principal Member consent.
"(2) For the purposes of this section, a member has a conflict of interest in relation to a review by the Tribunal if the member has any interest, pecuniary or otherwise, that could conflict with the proper performance of the member's functions in relation to that review.
"64ZU Removal from office
"(1) The Governor-General may remove a member from office on the ground of proved misbehaviour or physical or mental incapacity.
"(2) The Governor-General may remove a member from office if:
(a) the member becomes bankrupt;
(b) the member applies to take the benefit of any law for the relief of bankrupt or insolvent debtors;
(c) the member compounds with his or her creditors;
(d) the member makes an assignment of remuneration for the benefit of his or her creditors;
(e) the member has a direct or indirect pecuniary interest in an immigration advisory service;
(f) the member is absent from duty, except on leave of absence granted under section 64ZQ, for 14 consecutive days or 28 days in any 12 months;
(g) the member, being a full-time member, engages in paid employment outside the duties of the office of member without the written consent of the Minister;or
(h) the member fails, without reasonable excuse, to comply with his or her obligations under section 64ZT.
immigration advisory service means a body that provides services in relation to the seeking by non-citizens of permission to enter or remain in Australia.
"64ZV Acting appointments
"(1) The Minister may appoint a person to act in a senior office:
(a) during a vacancy in the office, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the holder of the office is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office.
"(2) Subject to this section, a person appointed to act during a vacancy in a senior office shall not continue to act for more than 12 months.
"(3) Where a person is acting in an office pursuant to subsection (1), the Minister may direct that, for purposes specified in the direction, the person shall be taken to continue to act in the office after the normal terminating event occurs.
"(4) A direction under subsection (3) shall specify the period during which the person is to be taken to continue to act in the office.
"(5) The period specified under subsection (4) may be specified by reference to the happening of a particular event or the existence of particular circumstances.
"(6) A direction under subsection (5):
(a) shall be given only if there is a pending review or other special circumstance justifying the giving of the direction;
(b) may only be given before the normal terminating event occurs;
(c) has effect according to its terms even if the holder of the office is also performing the duties of the office; and
(d) ceases to have effect 12 months after the normal terminating event occurs.
"(7) Where the Tribunal as constituted for the purposes of a review includes a person acting or purporting to act under this section, any decision of, or any direction given or other act done by, the Tribunal as so constituted is not invalid merely because:
(a) the occasion for the appointment had not arisen;
(b) there was a defect or irregularity in connection with the appointment;
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
"(8) Anything done by or in relation to a person acting or purporting to act under an appointment under this section is not invalid merely because:
normal terminating event, in relation to an appointment to act in an office, means:
(a) if the appointment is made under paragraph (1)(a)—the filling of the vacancy in the office; or
(b) if the appointment is made under paragraph (1)(b)—the holder of the office ceasing to be absent or ceasing to be unable to perform the duties of the office.
senior office means the office of Principal Member or an office of Senior Member.
"64ZW Delegation
The Principal Member may, by writing signed by him or her, delegate to a Senior Member all or any of the Principal Member's powers under this Act.
"Division 2—Registries and Officers
"64ZX Registries
"(1) The Minister shall cause such registries of the Tribunal to be established as he or she thinks fit.
"(2) The Minister shall designate one of the registries as the Principal Registry.
"64ZY Officers of Tribunal
"(1) There shall be a Registrar of the Tribunal and such Deputy Registrars and other officers of the Tribunal as are required.
"(2) The Registrar, the Deputy Registrars and the other officers of the Tribunal shall be appointed by the Minister.
"(3) The officers of the Tribunal have:
(a) such duties, powers and functions as are provided by this Act and the regulations; and
(b) such other duties and functions as the Principal Member directs.
"(4) The Registrar, the Deputy Registrar and the other officers of the Tribunal shall be persons appointed or employed under the Public Service Act 1922.
"64ZZ Acting appointments
"(1) The Minister may appoint a person appointed or employed under the Public Service Act 1922 to act in a Tribunal office:
(a) during a vacancy in the office; or
(b) during a period when the holder of the office is absent from duty.
Tribunal office means the office of Registrar of the Tribunal, an office of Deputy Registrar of the Tribunal or the office of any other officer of the Tribunal appointed under section 64ZY.".
"65 Obstructing or deceiving person exercising powers etc. under this Act
A person shall not obstruct, hinder, deceive or mislead any person exercising powers or performing duties under or for the purposes of this Act or the regulations.
Penalty: $1,000 or imprisonment for 6 months.".
29 Repeal of section 66
29A Offences in relation to escaping from custody
Section 66A of the Principal Act is amended by omitting from subsection (3) "or (1A)" and substituting ", (1A) or (1B)".
30 After section 66B of the Principal Act the following section is inserted:
"66BA Conduct of directors, servants and agents
"(1) Where, in proceedings for an offence against this Act or the regulations, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a) the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b) that the director, servant or agent had the state of mind.
"(2) Any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority shall be taken, for the purposes of a prosecution for an offence against this Act or the regulations, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
"(3) Where, in proceedings for an offence against this Act or the regulations, it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a servant or agent of the person within the scope of his or her actual or apparent authority; and
(b) that the servant or agent had the state of mind.
"(4) Any conduct engaged in on behalf of a person other than a body corporate by a servant or agent of the person within the scope of his or her actual or apparent authority shall be taken, for the purposes of a prosecution for an offence against this Act or the regulations, to have been engaged in also by the first-mentioned person unless the first-mentioned person establishes that the first-mentioned person took reasonable precautions and exercised due diligence to avoid the conduct.
(a) a person other than a body corporate is convicted of an offence; and
(b) the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted;
the person is not liable to be punished by imprisonment for that offence.
"(6) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person's reasons for the intention, opinion, belief or purpose.
"(7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.
"(8) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.".
31 Section 66D of the Principal Act is repealed and the following sections are substituted:
"66D Minister may approve forms
The Minister may, in writing, approve a form for the purposes of a provision of this Act in which the expression approved form is used.
"66DA Delegation
"(1) The Minister may, by writing signed by him or her, delegate to a person any of the Minister's powers under this Act.
"(2) The Secretary may, by writing signed by him or her, delegate to a person any of the Secretary's powers under this Act.
"66DB Delegate not required to perform certain administrative tasks
"(1) Where the Minister delegates the power to grant visas or entry permits, the delegation shall not be taken to require the delegate personally to perform any task in connection with the granting of visas or entry permits except the taking of a decision in each case whether a visa or entry permit should be granted.
"(2) Nothing in subsection (1) shall be taken to imply that:
(a) a person on whom a power is conferred by or under this or any other Act; or
(b) a delegate of such a person;
is required personally to perform all administrative and clerical tasks connected with the exercise of the power.
"66DC Exercise of powers under Act
"(1) The powers conferred by or under this Act shall be exercised in accordance with any applicable regulations under this Act.
"(2) Where a power under this Act is to be exercised on application by a person, the person exercising the power:
(a) is entitled to exercise that power on the basis of the information contained in the application only; but
(b) may, at his or her own option, obtain other relevant information and may have regard to that other information for the purpose of exercising the power.
"(3) For the purposes of subsection (2), information shall be taken to be contained in an application if, and only if:
(a) the application was made in the approved form and was duly lodged in accordance with the regulations; and
(b) the information was set out in that approved form or in a document that was attached to the application when it was so lodged.
"(4) Nothing in this section shall be taken to limit the operation of subsection 11E(4).
"66DD Minister may give general policy directions
"(1) A person or body having functions or powers under this Act shall perform those functions, and exercise those powers, in accordance with such general directions (if any) as are given to the person or body by the Minister in writing.
"(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
"(3) The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.".
32 Review of decisions
Section 66E of the Principal Act is amended:
(a) by omitting from subsection (1) "or 48";
(b) by omitting from subsection (2) "in relation to a decision under section 12".
33 Regulations
(aa) by omitting from subsection (1) "in particular—" and substituting "without limiting the generality of the foregoing, may make regulations:";
(a) by omitting paragraph (1)(a) and substituting the following paragraph:
"(a) making provision for and in relation to:
(i) the charging and recovery of fees in respect of any matter under this Act or the regulations, including the fees payable in connection with the review of decisions made under this Act or the regulations, whether or not such review is provided for by or under this Act; or
(ii) the charging and recovery of fees in respect of English language tests conducted by or on behalf of the Department;".
(b) by inserting after subparagraph (1)(ab)(ii) the following word and subparagraph:
"and (iii) persons on board an aircraft arriving at or departing from an airport in Australia, being an aircraft operated by an international air carrier;";
(c) by inserting after paragraph (1)(ab) the following paragraphs:
"(ac) making provision for and in relation to the use that may be made by persons or bodies other than officers of the Department of information collected pursuant to regulations made under paragraph (ab);
(ad) making provision for and in relation to:
(i) the giving of documents to;
(ii) the lodging of documents with; or
(iii) the service of documents on;
the Minister, the Secretary or any other person or body, for the purposes of this Act;
(ae) specifying the procedures to be followed:
(i) in determining whether an illegal entrant is liable to deportation for the purposes of section 17A; or
(ii) in establishing the prescribed matters for the purposes of section 18, 20 or 31A;".
(ca) by omitting from paragraph (1)(ca) "11C" and substituting "26A";
(d) by inserting after subsection (1) the following subsection:
"(1A) The regulations that may be made under paragraph (1)(ad) include, but are not limited to, regulations providing that a document given to, or served on, a person in a specified way shall be taken for all purposes of this Act and the regulations to have been received by the person at a specified or ascertainable time.";
(e) by inserting after subsection (2) the following subsections:
"(2A) An assurance of support given, after the commencement of this subsection, in accordance with regulations under paragraph (1)(c) continues to have effect, and may be enforced, in accordance with such regulations in spite of any change in circumstances whatsoever.
"(2B) In this section:
international air carrier means an air transport enterprise that operates an air service between Australia and a place outside Australia.";
(f) by omitting subsections (3) and (4).
34 Further amendments
The Principal Act is further amended as set out in Schedules 1, 2, 3, 4 and 5.
35 Renumbering and re-lettering of the Migration Act
amended Act means the Migration Act 1958 as amended by this Act (other than this section).
provision includes a paragraph of a section or of a subsection, a subparagraph of a paragraph and a Schedule.
(2) The amended Act is further amended as provided by this section.
(3) The several Parts of the amended Act are renumbered so that they bear consecutive arabic numerals starting with "1".
(4) The several Divisions of each Part of the amended Act are renumbered so that they bear consecutive arabic numerals starting with "1".
(5) The several sections of the amended Act are renumbered in a single series so that they bear consecutive arabic numerals starting with "1".
(6) The several subsections of each section of the amended Act are renumbered so that they bear consecutive arabic numerals enclosed in brackets starting with "(1)".
(7) The several paragraphs of each section, of each subsection, or of each definition, of the amended Act are re-lettered so that they bear lower case letters in alphabetical order enclosed in brackets starting with "(a)" but omitting "(i)" and "(1)".
(8) The several subparagraphs of each paragraph of each section, of each paragraph of each subsection, or of each paragraph of each definition, of the amended Act are renumbered so that they bear consecutive lower case roman numerals enclosed in brackets starting with "(i)".
(9) Each provision of the amended Act that refers to a provision of that Act that has been renumbered or re-lettered under this section is amended by omitting the reference and substituting a reference to the last-mentioned provision as so renumbered or re-lettered.
(10) A reference in a provision of a law of the Commonwealth or of a Territory enacted before the commencement of this section (whether or not that provision has come into operation), or in an instrument or document, to a provision of the Migration Act 1958 that has been renumbered or re-lettered under this section shall be construed as a reference to that provision as so renumbered or re-lettered.
Part 3—Amendment of Migration Amendment Act (No. 2) 1980
36 Principal Act
In this Part, Principal Act means the Migration Amendment Act (No. 2) 1980.
37 Transitional provision
Part 4—Consequential Amendments of other Acts
38 Consequential amendments of other Acts
The Acts specified in Schedule 6 are amended as set out in that Schedule.
Subsection 22(1):
Omit "$1,000", substitute "$5,000".
Section 23:
Omit "$500", substitute "$2,000".
Section 23A:
Section 23B:
Omit "$1,000 or imprisonment for 6 months", substitute "$5,000 or imprisonment for 2 years, or both".
Omit "$2,000", substitute "$10,000".
Subsection 36A(5):
Subsection 4(5):
(a) Omit "him", substitute "the person".
(b) Omit "he", substitute "the person".
Paragraph 5(2)(a):
Insert "or she" after "he".
Paragraph 5(2)(b):
Insert "or she" after "he" (wherever occurring).
Omit "he" (last occurring), substitute "the person".
(a) Omit "he" (first occurring), substitute "the person".
(b) Insert "or she" after "he" (second and third occurring).
(c) Insert "or her" after "his".
Omit "he", substitute "the person".
(a) Omit "he" (second last occurring), substitute "the person".
(b) Insert "or she" after "he" (last occurring).
(a) Omit "he" (first occurring), substitute "the Minister".
(b) Insert "or she" after "he" (second occurring).
(c) Insert "or her" after "him".
(d) Insert "or her" after "his".
Insert "or her" after "his".
(a) Insert "or she" after "he" (wherever occurring).
(b) Insert "or herself" after "himself".
Paragraph 14(8)(a):
Insert "or her" after "or his".
Paragraph 14(8)(c):
Paragraph 14A(3)(a):
Insert "or her" after "him".
Paragraph 21(8)(b):
Omit the paragraph, substitute the following paragraph:
"(c) the deportee was, when he or she came to Australia, the spouse of, and in the company of, the holder of a passport so endorsed in which the deportee was named as the spouse of the holder; or".
Paragraph 21(8)(d):
(a) Insert "or she" after "he" (first occurring).
(b) Omit "he" (last occurring), substitute "the deportee".
Omit "he", substitute "that person".
Paragraph 23(a):
Paragraph 23(d):
Paragraph 23A(a):
Paragraph 23A(d):
(a) Omit "he", substitute "the Minister".
(b) Insert "or her" after "his".
"(a) a person:
(i) enters Australia from a vessel; and
(ii) because he or she is not the holder of a valid entry permit, becomes upon entry an illegal entrant;".
Omit "him", substitute "the stowaway".
Omit "his".
"(a) aid or incite another person to enter or remain in Australia in circumstances in which the other person would become an illegal entrant;".
Omit "by reason only of that he", substitute "merely because the person".
Insert "or herself" after "himself" (wherever occurring).
Omit "his", substitute "the person's".
Omit the subsection, substitute the following subsection:
"(2) A person shall not transfer or part with possession of a document:
(a) with intent that the document be used to help a person, being a person not entitled to use it, to gain entry, or to remain in, Australia; or
(b) where the person has reason to suspect that the document may be so used.".
Omit "his", substitute "the".
Omit "he" (wherever occurring), substitute "the person".
(a) Insert "or her" after "him".
(b) Omit "he", substitute "the defendant".
Omit "by reason only of his having been", substitute "merely because he or she was".
(b) Omit "he" (second occurring), substitute "the person".
(a) Insert "or her" after "him" (wherever occurring).
(b) Omit "he" (wherever occurring), substitute "the officer".
Subsection 39(3A):
Omit "he", substitute "the arrested person".
(a) Omit "he", substitute "the prescribed authority".
(a) Insert "or her" after "his" (wherever occurring).
(b) Insert "or her" after "him".
Omit "he", substitute "the officer".
(a) Omit "she", substitute "it".
(b) Omit "her" (wherever occurring), substitute "it".
Paragraph 55(1)(ba):
Paragraph 55(1)(e):
Paragraph 55(1)(f):
Paragraph 55(1)(g):
(a) Insert "or she" after "he".
(b) Omit "his", substitute "the person's".
(a) Omit "an authorised officer", substitute "the Secretary".
(b) Omit "the authorised officer", substitute "the Secretary".
Omit "An officer", substitute "The Secretary".
Omit "An authorised officer", substitute "The Secretary".
Omit "to the Department".
Omit "the Minister or to an officer" (wherever occurring), substitute "an officer or a person exercising powers or performing functions under this Act".
Omit the subsection.
"(1) The Secretary may, in writing, direct an officer to detain a vessel where, in the Secretary's opinion, the master, owner, agent or charterer of the vessel has been guilty of an offence against this Act.".
Omit "authorised officer", substitute "Secretary".
"(2) In section 12 and subsection 13(1):
permanent resident means a person (including an Australian citizen) whose continued presence in Australia is not subject to any limitation as to time imposed by law, but does not include:
(a) in relation to any period before 2 April 1984—a person who was, during that period, a prohibited immigrant within the meaning of this Act as in force at that time;
(b) in relation to any period starting on or after 2 April 1984 and ending before the commencement of this subsection—a person who was, during that, period a prohibited non-citizen within the meaning of this Act as in force at that time; or
(c) in relation to any period after the commencement of this subsection—a person who is, during that period, an illegal entrant.".
Paragraph 28(b):
"(b) a member of the crew of a vessel referred to in paragraph (d) of the definition of exempt non-citizen in subsection 5(1) becomes an illegal entrant because of the operation of paragraph 5E(c) or (d); or ".
Omit "a prohibited non-citizen", substitute "an illegal entrant".
Paragraph 30(2)(aa):
(a) Omit "a prohibited non-citizen", substitute "an illegal entrant".
(b) Omit "the prohibited non-citizen", substitute "the illegal entrant".
Omit "a prohibited non-citizen" (wherever occurring), substitute "an illegal entrant".
Subparagraph 37(5)(c)(i):
Omit "or".
Subparagraph 37(5)(c)(ii):
Omit the subparagraph, substitute the following subparagraphs:
"(ii) would have become a prohibited non-citizen within the meaning of this Act as in force from time to time after the commencement of the Migration Amendment Act 1983 but before the commencement of section 4 of the Migration Legislation Amendment Act 1989; or
(iii) would have become, or would become, an illegal entrant; or".
Paragraph 37(5)(d)
Omit "prohibited non-citizens", substitute "illegal entrants".
Paragraph 66E(2)(b):
Subsection 5(1) (definition of pre-cleared flight):
Omit "subsection 6AA(6)", substitute "section 11".
Subsection 5(1) (definition of statutory visitor):
Omit "11AB", substitute "11ZH".
Omit ", by instrument under the hand of the Minister, from the requirements of Division 1A, ", substitute "under subsection 53A(1) from the operation of section 26A,".
Omit "an", substitute "a valid".
Omit "38(1)", substitute "38(1A)".
Australian Citizenship Act 1948
Subsection 5(1) (definition of prescribed date):
Omit "the Migration Amendment Act 1983 comes into operation", substitute "section 4 of the Migration Legislation Amendment Act 1989 commences".
Subsection 5(1) (definition of prohibited immigrant):
Omit "the prescribed date", substitute "2 April 1984".
Subsection 5(1) (definition of prohibited non-citizen):
Omit "the prescribed date", substitute "2 April 1984 but before the prescribed date".
Subsection 5(1) (definitions of entry permit and visa):
Omit the definitions.
Insert the following definitions:
"illegal entrant means an illegal entrant within the meaning of the Migration Act 1958 as in force from time to time on or after the prescribed date.
valid entry permit has the same meaning as in the Migration Act 1958.
valid permanent entry permit has the same meaning as in the Migration Act 1958.
valid visa has the same meaning as in the Migration Act 1958;".
Paragraph 5A(1)(a):
Paragraph 5A(1)(b):
Omit "the prescribed date", substitute "2 April 1984 and before the prescribed date".
After paragraph 5A(1)(b):
Insert the following paragraph:
"(ba) in relation to a period on or after the prescribed date during which the person was present in Australia (other than a prescribed Territory), if:
(i) the person's continued presence in Australia (other than a prescribed Territory) was not during that period, subject to any limitation as to time imposed by law;
(ii) the person was not, during that period, an illegal entrant; and
(iii) the person was not, during that period, a person who, if an event of the kind referred to in paragraph 5E(a), (b), (c), (d), (e) or (g) of the Migration Act 1958 as in force from time to time during that period had occurred, would have become an illegal entrant because of subsection 6(4) of that Act as so in force or, in a case where he or she was such a person, he or she was, during that period, a person to whom a declaration in force under subsection (2) applies;".
Sub-subparagraph 5A(1)(d)(i)(A):
Omit "a visa", substitute "a valid visa".
(a) Omit "the prescribed date", substitute "2 April 1984".
(b) Omit "or".
Omit "the prescribed date" substitute "2 April 1984 but before the prescribed date".
Insert the following word and paragraph:
"; or (c) if an event of the kind referred to in paragraph 5E(e) of the Migration Act 1958, as in force from time to time on or after the prescribed date, had occurred, would have become illegal entrants because of subsection 6(4) of that Act as so in force;".
Subsection 5A(5):
Omit "a visa granted under section 11AB of the Migration Act 1958", substitute "a statutory visitor's visa".
"(b) the person is not the holder of a valid permanent entry permit.".
Section 5A:
Add at the end the following subsection:
statutory visitor's visa means:
(a) a visa granted before the prescribed date under section 11AB of the Migration Act 1958 as in force from time to time before the prescribed date; or
(b) a visa granted on or after the prescribed date under section 11ZH of the Migration Act 1958 as in force from time to time on or after the prescribed date.".
"(6) A reference in this section to a permanent resident does not include a reference to a person who is, for the purposes of the Migration Act 1958, an exempt non-citizen.".
Sub-subparagraph 10B(1)(b)(ii)(B):
Insert "as an illegal entrant," after "non-citizen,".
Subparagraph 13(4)(b)(iv):
Subparagraph 23AA(1)(b)(iii):
Insert ", as an illegal entrant" after "non-citizen".
Australian Protective Service Act 1987
Insert "37A," after "sections".
Departure Tax Collection Act 1978
Paragraph 5(1)(c):
"(c) a person referred to in paragraph (b) of the definition of exempt non-citizen in subsection 5(1) of the Migration Act 1958;".
First Home Owners Act 1983
Paragraphs 17(4)(b) and (c):
Omit the paragraphs, substitute the following paragraphs:
"(b) a person who is, within the meaning of the Migration Act 1958, the holder of a valid permanent entry permit;
"(c) a person who has been granted, or who is included in, a return endorsement or a resident return visa in force under the Migration Act 1958; or
"(d) a person who is, for the purposes of the Migration Act 1958, an exempt non-citizen, being a person who the Secretary is satisfied is likely to remain in Australia.".
Health Insurance Act 1973
Subsection 3(1) (paragraph (b) of the definition of Australian resident):
Omit the paragraph, substitute the following paragraphs:
(ba) a person who has been granted, or who is included in, a return endorsement or a resident return visa in force under the Migration Act 1958;".
Subsection 3(1) (subparagraph (e)(i) of the definition of Australian resident):
Omit the subparagraph, substitute the following subparagraph:
"(i) is, within the meaning of the Migration Act 1958, the holder of a valid temporary entry permit; and".
Subsection 3(1) (subparagraph (e)(vi) of the definition of Australian resident):
Omit "under the Migration Act 1958", substitute "within the meaning of section 11ZD of the Migration Act 1958".
Paragraph 35(12)(a):
"(a) a person who is, within the meaning of the Migration Act 1958, the holder of a valid temporary entry permit; or".
Subsection 3(1) (paragraphs (b) and (c) of the definition of Australian resident):
(c) a person who has been granted, or who is included in, a return endorsement, or a resident return visa, in force under the Migration Act 1958; or
(d) a person who is, for the purposes of the Migration Act 1958, an exempt non-citizen, being a person who is likely to remain permanently in Australia;".
Paragraph 129(3)(b):
Veterans' Entitlements Act 1986
Subsection 35(1) (paragraphs (b) and (c) of the definition of Australian resident):
On the day on which this Act receives the Royal Assent:
(a) the heading to section 30 of the Migration Act 1958 is altered by omitting "prohibited non-citizens" and substituting "illegal entrants".
(b) the heading to section 35 of the Migration Act 1958 is altered by omitting "Prohibited non-citizens, &c.," and substituting "Prohibited entrants etc.".
(c) the heading to section 36A of the Migration Act 1958 is altered by omitting "non-citizen" and substituting "entrant".
Notes to the Migration Legislation Amendment Act 1989
The Migration Legislation Amendment Act 1989 as shown in this compilation comprises Act No. 59, 1989 amended as indicated in the Tables below.
Table of Acts
and year
of Assent
Application, saving or transitional provisions
Ss. 1 and 2: Royal Assent
Part 3 (ss. 36, 37): 19 June 1990
S. 27: 1 July 1989 (see Gazette 1989, No. S218)
S. 35: 20 Dec 1989
Remainder: 19 Dec 1989
Migration Legislation Amendment (Consequential Amendments) Act 1989
159, 1989
S. 4: 19 Dec 1989 (see s. 2(2))
Remainder: (a)
Migration Legislation Amendment Act (No. 2) 1989
(a) Subsection 2(1) of the Migration Legislation Amendment (Consequential Amendments) Act 1989 provides as follows:
(1) This Act, other than section 4, commences immediately before the commencement of section 4 of the Migration Legislation Amendment Act 1989.
Section 4 commenced on 19 December 1989.
(b) Subsection 2(1) of the Migration Legislation Amendment Act (No. 2) 1989 provides as follows:
(1) This Act commences, or is to be taken to have commenced, as the case requires, immediately before the commencement of section 26 of the Principal Act.
Section 26 commenced on 19 December 1989.
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
Provision affected
How affected
Ss. 4-6.......................................
am.No. 159, 1989
S. 8............................................
am. No. 159, 1989
S. 10...........................................
S. 10A........................................
ad. No. 159, 1989
Ss. 15-17...................................
Schedule 2.................................