migration act 1958 - lawlex · migration act 1958 act no. 62 of 1958 as amended this compilation...

Migration Act 1958 Act No. 62 of 1958 as amended

This compilation was prepared on 5 December 2008 taking into account amendments up to Act No. 117 of 2008

Volume 1 includes: Table of Contents Sections 1 – 261K The text of any of those amendments not in force on that date is appended in the Notes section The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section Volume 2 includes: Table of Contents Sections 262 – 507 Schedule Note 1 Table of Acts Act Notes Table of Amendments Repeal Table 1 Repeal Table 2 Notes 2 and 3 Table A Renumbering Table 1 Renumbering Table 2 Prepared by the Office of Legislative Drafting and Publishing, Attorney-General’s Department, Canberra

Migration Act 1958 iii

Contents Part 1—Preliminary 1

1 Short title [see Note 1].......................................................................1 2 Commencement [see Note 1].............................................................1 3 Repeal and savings ............................................................................1 3A Act not to apply so as to exceed Commonwealth power ...................2 3B Compensation for acquisition of property .........................................3 4 Object of Act .....................................................................................3 4AA Detention of minors a last resort........................................................4 4A Application of the Criminal Code .....................................................4 5 Interpretation .....................................................................................4 5A Meaning of personal identifier ........................................................25 5B When personal identifier taken not to have been provided..............26 5C Meaning of character concern ........................................................27 5D Limiting the types of identification tests that authorised

officers may carry out......................................................................28 5E Meaning of purported privative clause decision .............................28 6 Effect of limited meaning of enter Australia etc..............................28 7 Act to extend to certain Territories ..................................................29 7A Effect on executive power to protect Australia’s borders ................29 8 Certain resources installations to be part of Australia .....................29 9 Certain sea installations to be part of Australia ...............................30 10 Certain children taken to enter Australia at birth .............................30 11 Visa applicable to 2 or more persons...............................................30 12 Application of Part VA of the Marriage Act....................................31

Part 2—Control of arrival and presence of non-citizens 32 Division 1—Immigration status 32

13 Lawful non-citizens .........................................................................32 14 Unlawful non-citizens .....................................................................32 15 Effect of cancellation of visa on status ............................................32 16 Removal of immigration rights of inhabitant of Protected

Zone.................................................................................................32 17 Pre-cleared flights............................................................................33

Division 2—Power to obtain information and documents about unlawful non-citizens 34

18 Power to obtain information and documents about unlawful non-citizens .....................................................................................34

19 Scales of expenses ...........................................................................34 20 Reasonable compensation................................................................34 21 Failure to comply with section 18 notice.........................................35 24 Information and documents that incriminate a person .....................35

iv Migration Act 1958

25 Copies of documents .......................................................................36 26 Minister may retain documents .......................................................36 27 Division binds the Crown ................................................................36

Division 3—Visas for non-citizens 37 Subdivision A—General provisions about visas 37

28 Interpretation ...................................................................................37 29 Visas................................................................................................37 30 Kinds of visas ..................................................................................38 31 Classes of visas................................................................................38 32 Special category visas......................................................................38 33 Special purpose visas.......................................................................39 34 Absorbed person visas .....................................................................42 35 Ex-citizen visas................................................................................42 36 Protection visas................................................................................43 37 Bridging visas..................................................................................44 37A Temporary safe haven visas ............................................................44 38 Criminal justice visas ......................................................................45 38A Enforcement visas ...........................................................................45 38B Maritime crew visas ........................................................................45 39 Criterion limiting number of visas...................................................46 40 Circumstances for granting visas.....................................................46 41 Conditions on visas..........................................................................49 42 Visa essential for travel ...................................................................49 43 Visa holders must usually enter at a port .........................................51

Subdivision AA—Applications for visas 53 44 Extent of following Subdivisions ....................................................53 45 Application for visa .........................................................................53 45A Visa application charge ...................................................................53 45B Amount of visa application charge ..................................................54 45C Regulations about visa application charge.......................................54 46 Valid visa application ......................................................................55 46A Visa applications by offshore entry persons ....................................58 46B Visa applications by transitory persons ...........................................59 47 Consideration of valid visa application ...........................................60 48 Non-citizen refused a visa or whose visa cancelled may only

apply for particular visas .................................................................61 48A Non-citizen refused a protection visa may not make further

application for protection visa .........................................................61 48B Minister may determine that section 48A does not apply to

non-citizen.......................................................................................63 49 Withdrawal of visa application........................................................64

Migration Act 1958 v

50 Only new information to be considered in later protection visa applications ..............................................................................64

51 Order of consideration.....................................................................64 Subdivision AB—Code of procedure for dealing fairly, efficiently

and quickly with visa applications 65 51A Exhaustive statement of natural justice hearing rule........................65 52 Communication with Minister.........................................................65 54 Minister must have regard to all information in application............66 55 Further information may be given ...................................................66 56 Further information may be sought .................................................66 57 Certain information must be given to applicant...............................67 58 Invitation to give further information or comments.........................67 59 Interviews ........................................................................................68 60 Medical examination .......................................................................68 61 Prescribed periods ...........................................................................69 62 Failure to receive information not require action.............................69 63 When decision about visa may be made ..........................................70 64 Notice that visa application charge is payable .................................70

Subdivision AC—Grant of visas 71 65 Decision to grant or refuse to grant visa ..........................................71 65A Period within which Minister must make decision on

protection visas................................................................................72 66 Notification of decision ...................................................................72 67 Way visa granted .............................................................................73 68 When visa is in effect ......................................................................73 69 Effect of compliance or non-compliance.........................................74

Subdivision AE—Evidence of visas 74 70 Evidence of visa ..............................................................................74 71 Ways of giving evidence .................................................................74

Subdivision AF—Bridging visas 74 72 Interpretation ...................................................................................74 73 Bridging visas..................................................................................76 74 Further applications for bridging visa..............................................76 75 When eligible non-citizen in immigration detention granted

visa ..................................................................................................76 76 Bridging visa not affect visa applications........................................77

Subdivision AG—Other provisions about visas 77 77 Visas held during visa period ..........................................................77 78 Children born in Australia ...............................................................77 79 Effect on visa of leaving Australia ..................................................78 80 Certain persons taken not to leave Australia....................................78 81 Extent of visa authority....................................................................78

vi Migration Act 1958

82 When visas cease to be in effect ......................................................79 83 Certain persons taken to be included in spouse or parent’s

visa ..................................................................................................80 84 Minister may suspend processing of visa applications ....................81

Subdivision AH—Limit on visas 81 85 Limit on visas ..................................................................................81 86 Effect of limit ..................................................................................82 87 Limit does not prevent visas for certain persons..............................82 87A Limit does not prevent the grant of visas to certain people

who are unable to meet health or character requirements before the limit applies because of circumstances beyond their control .....................................................................................82

88 Limit does not affect processing of applications .............................83 89 Determination of limit not to mean failure to decide.......................83 90 Order of dealing with limited visas..................................................83 91 Order of dealing with visas..............................................................84

Subdivision AI—Safe third countries 84 91A Reason for Subdivision....................................................................84 91B Interpretation ...................................................................................84 91C Non-citizens covered by Subdivision ..............................................85 91D Safe third countries..........................................................................85 91E Non-citizens to which this Subdivision applies unable to

make valid applications for certain visas .........................................86 91F Minister may determine that section 91E does not apply to

non-citizen.......................................................................................86 91G Applications made before regulations take effect............................87

Subdivision AJ—Temporary safe haven visas 89 91H Reason for this Subdivision.............................................................89 91J Non-citizens to whom this Subdivision applies...............................89 91K Non-citizens to whom this Subdivision applies are unable to

make valid applications for certain visas .........................................89 91L Minister may determine that section 91K does not apply to a

non-citizen.......................................................................................89 Subdivision AK—Non-citizens with access to protection from

third countries 90 91M Reason for this Subdivision.............................................................90 91N Non-citizens to whom this Subdivision applies...............................91 91P Non-citizens to whom this Subdivision applies are unable to

make valid applications for certain visas .........................................92 91Q Minister may determine that section 91P does not apply to a

non-citizen.......................................................................................93

Migration Act 1958 vii

Subdivision AL—Other provisions about protection visas 94 91R Persecution ......................................................................................94 91S Membership of a particular social group .........................................95 91T Non-political crime..........................................................................95 91U Particularly serious crime ................................................................96 91V Verification of information..............................................................97 91W Documentary evidence of identity, nationality or citizenship..........99 91X Names of applicants for protection visas not to be published

by the High Court, the Federal Court or the Federal Magistrates Court ..........................................................................100

91Y Secretary’s obligation to report to Minister ...................................100 Subdivision B—The “points” system 103

92 Operation of Subdivision...............................................................103 93 Determination of applicant’s score ................................................103 94 Initial application of “points” system ............................................103 95 Applications in pool ......................................................................104 95A Extension of period in pool ...........................................................105 96 Minister may set pool mark and pass mark ...................................105

Subdivision C—Visas based on incorrect information may be cancelled 106

97 Interpretation .................................................................................106 97A Exhaustive statement of natural justice hearing rule......................106 98 Completion of visa application......................................................106 99 Information is answer ....................................................................107 100 Incorrect answers...........................................................................107 101 Visa applications to be correct.......................................................107 102 Passenger cards to be correct.........................................................107 103 Bogus documents not to be given etc. ...........................................107 104 Changes in circumstances to be notified........................................108 105 Particulars of incorrect answers to be given ..................................108 106 Obligations to give etc. information is not affected by other

sources of information ...................................................................108 107 Notice of incorrect applications.....................................................109 107A Possible non-compliances in connection with a previous visa

may be grounds for cancellation of current visa ............................110 108 Decision about non-compliance ....................................................110 109 Cancellation of visa if information incorrect .................................111 110 Cancellation provisions apply whatever source of knowledge

of non-compliance .........................................................................111 111 Cancellation provisions apply whether or not

non-compliance deliberate.............................................................111 112 Action because of one non-compliance not prevent action

because of other non-compliance ..................................................111 113 No cancellation if full disclosure ...................................................112

viii Migration Act 1958

114 Effect of setting aside decision to cancel visa................................112 115 Application of Subdivision............................................................112

Subdivision D—Visas may be cancelled on certain grounds 113 116 Power to cancel .............................................................................113 117 When visa may be cancelled..........................................................114 118 Cancellation powers do not limit or affect each other ...................114

Subdivision E—Procedure for cancelling visas under Subdivision D in or outside Australia 115

118A Exhaustive statement of natural justice hearing rule......................115 119 Notice of proposed cancellation ....................................................115 120 Certain information must be given to visa holder..........................116 121 Invitation to give comments etc.....................................................116 122 Prescribed periods .........................................................................117 123 Failure to accept invitation not require action ...............................118 124 When decision about visa cancellation may be made....................118 125 Application of Subdivision to non-citizen in immigration

clearance........................................................................................118 126 Application of Subdivision to non-citizen in questioning

detention ........................................................................................118 127 Notification of decision .................................................................119

Subdivision F—Other procedure for cancelling visas under Subdivision D outside Australia 119

127A Exhaustive statement of natural justice hearing rule......................119 128 Cancellation of visas of people outside Australia ..........................120 129 Notice of cancellation....................................................................120 130 Prescribed periods .........................................................................120 131 Decision about revocation of cancellation.....................................121 132 Notification of decision about revocation of cancellation .............121 133 Effect of revocation of cancellation...............................................121

Subdivision G—Cancellation of business visas 122 134 Cancellation of business visas .......................................................122 135 Representations concerning cancellation of business visa.............126 136 Review of decisions.......................................................................127 137 Provision of information—holders of business visas.....................127

Subdivision GA—Cancellation of approval as a business sponsor 129 137A Definitions.....................................................................................129 137B Power of Minister to cancel approval as a business sponsor .........129 137C Non-cancellation of approval because of one matter not to

prevent cancellation of approval because of another matter ..........129 137D Notice of decision..........................................................................130 137E What constitutes an appropriate address for delivery of

notice of a decision........................................................................130 137F Effect of compliance......................................................................131

Migration Act 1958 ix

137G Effect of setting aside decision to cancel approval ........................131 137H Provision of information—business sponsors................................131

Subdivision GB—Automatic cancellation of student visas 132 137J Non-complying students may have their visas automatically

cancelled........................................................................................132 137K Applying for revocation of cancellation ........................................133 137L Dealing with the application..........................................................133 137M Notification of decision .................................................................134 137N Minister may revoke cancellation on his or her own initiative ......134 137P Effect of revocation .......................................................................135

Subdivision GC—Cancellation of regional sponsored employment visas 135

137Q Cancellation of regional sponsored employment visas ..................135 137R Representations concerning cancellation etc. ................................136 137S Notice of cancellation....................................................................137 137T Cancellation of other visas ............................................................137

Subdivision H—General provisions on cancellation 137 138 Way visa cancelled or cancellation revoked..................................137 139 Visas held by 2 or more.................................................................138 140 Cancellation of visa results in other cancellation...........................138

Division 3A—Sponsorship 140 Subdivision A—Application of Division 140

140A Division applies to prescribed kinds of visa ..................................140 Subdivision B—Sponsorship system 140

140B Sponsorship as a criterion for prescribed visas..............................140 140C Sponsorship as a criterion for valid visa applications ....................140 140D Approved sponsor..........................................................................141 140E Approving sponsor ........................................................................141 140F Process for approving sponsors .....................................................141 140G Terms of approval as a sponsor .....................................................141 140H Sponsorship undertakings..............................................................142 140I Amounts payable to the Commonwealth.......................................142 140J Cancelling or barring approval as a sponsor if undertakings

breached ........................................................................................143 140K Cancelling or barring approval as a sponsor in other

circumstances ................................................................................144 140L Actions under sections 140J and 140K..........................................144 140M Right to take security under section 269 etc. not affected .............145 140N Process for cancelling or barring approval as a sponsor ................145 140O Waiving a bar ................................................................................145 140P Process for waiving a bar...............................................................146

x Migration Act 1958

140Q Consequences if the visa holder or the sponsor changes status..............................................................................................146

140R Joint and several liability for debts ................................................146 140S Liability to pay other amounts.......................................................147 140T Notice regarding amount of debt or other amount .........................147 140U Liability is in addition to any other liability ..................................147 140V Disclosure of personal information in prescribed

circumstances etc...........................................................................148 140W Other regulation making powers not limited etc............................148

Subdivision C—Application of the sponsorship system to partnerships and unincorporated associations 149

140X Application to partnerships............................................................149 140Y Sponsorship obligations and rights of partnership.........................149 140Z New partners..................................................................................149 140ZA Retiring partners ............................................................................150 140ZB Discharging sponsorship obligations and exercising

sponsorship rights—partnerships...................................................151 140ZC Application to unincorporated associations ...................................151 140ZD Sponsorship obligations and rights of unincorporated

associations....................................................................................151 140ZE New members of committees of management...............................152 140ZF Former members of committees of management...........................153 140ZG Discharging sponsorship obligations and exercising

sponsorship rights—unincorporated associations..........................153 140ZH Definitions.....................................................................................154

Division 4—Criminal justice visitors 155 Subdivision A—Preliminary 155

141 Object of Division .........................................................................155 142 Interpretation .................................................................................155 143 Delegation by Attorney-General....................................................156 144 Authorised officials .......................................................................156

Subdivision B—Criminal justice certificates for entry 157 145 Commonwealth criminal justice entry certificate ..........................157 146 State criminal justice entry certificate............................................157

Subdivision C—Criminal justice certificates etc. staying removal or deportation 158

147 Commonwealth criminal justice stay certificate............................158 148 State criminal justice stay certificate .............................................159 149 Application for visa not to prevent certificate ...............................159 150 Criminal justice stay certificates stay removal or deportation .......159 151 Certain warrants stay removal or deportation ................................159 152 Certain subjects of stay certificates and stay warrants may be

detained etc....................................................................................160

Migration Act 1958 xi

153 Removal or deportation not contempt etc. if no stay certificate or warrant......................................................................160

154 Officer not liable—criminal justice stay certificates or warrants .........................................................................................160

Subdivision D—Criminal justice visas 161 155 Criminal justice visas ....................................................................161 156 Criterion for criminal justice entry visas .......................................161 157 Criterion for criminal justice stay visas .........................................161 158 Criteria for criminal justice visas...................................................161 159 Procedure for obtaining criminal justice visa ................................162 160 Conditions of criminal justice visa ................................................162 161 Effect of criminal justice visas ......................................................162

Subdivision E—Cancellation etc. of criminal justice certificates and criminal justice visas 163

162 Criminal justice certificates to be cancelled ..................................163 163 Stay warrant to be cancelled ..........................................................163 164 Effect of cancellation etc. on criminal justice visa ........................164

Division 4A—Enforcement visas 165 164A Definitions.....................................................................................165 164B Grant of enforcement visas (fisheries matters) ..............................165 164BA Grant of enforcement visas (environment matters)........................168 164C When enforcement visa ceases to be in effect ...............................170 164D Applying for other visas ................................................................171

Division 5—Immigration clearance 172 165 Interpretation .................................................................................172 166 Persons entering to present certain evidence of identity etc. .........172 167 When and where evidence to be presented ....................................174 168 Section 166 not to apply ................................................................175 169 Section 166 not usually apply........................................................176 170 Certain persons to present evidence of identity .............................176 171 Assistance with evidence...............................................................178 172 Immigration clearance ...................................................................178 173 Visa ceases if holder enters in way not permitted..........................180 174 Visa ceases if holder remains without immigration clearance .......180 175 Departing person to present certain evidence etc...........................180 175A Determinations relating to kinds of passports................................182

Division 6—Certain non-citizens to be kept in immigration detention 183

176 Reason for Division.......................................................................183 177 Interpretation .................................................................................183 178 Designated persons to be in immigration detention.......................184

xii Migration Act 1958

179 Beginning of immigration detention of certain designated persons...........................................................................................184

180 Detention of designated person .....................................................184 181 Removal from Australia of designated persons .............................185 182 No immigration detention or removal after certain period ............186 183 Courts must not release designated persons...................................188 185 Effect of Division on status etc......................................................188 186 Division applies despite other laws ...............................................188 187 Evidence ........................................................................................188

Division 7—Detention of unlawful non-citizens 189 Subdivision A—General provisions 189

188 Lawful non-citizen to give evidence of being so ...........................189 189 Detention of unlawful non-citizens................................................190 190 Non-compliance with immigration clearance or section 192

basis of detention...........................................................................191 191 End of certain detention.................................................................192 192 Detention of visa holders whose visas liable to cancellation .........192 192A Authorisation of identification tests in certain cases......................195 193 Application of law to certain non-citizens while they remain

in immigration detention ...............................................................196 194 Detainee to be told of consequences of detention..........................197 195 Detainee may apply for visa ..........................................................198 195A Minister may grant detainee visa (whether or not on

application)....................................................................................198 196 Duration of detention.....................................................................199 197 Effect of escape from immigration detention ................................200

Subdivision B—Residence determinations 201 197AA Persons to whom Subdivision applies ...........................................201 197AB Minister may determine that person is to reside at a specified

place rather than being held in detention centre etc. ......................201 197AC Effect of residence determination ..................................................201 197AD Revocation or variation of residence determination ......................203 197AE Minister not under duty to consider whether to exercise

powers ...........................................................................................203 197AF Minister to exercise powers personally..........................................203 197AG Tabling of information relating to the making of residence

determinations ...............................................................................203 Division 7A—Offences relating to immigration detention 205

197A Detainees must not escape from detention.....................................205 197B Manufacture, possession etc. of weapons by detainees .................205

Division 8—Removal of unlawful non-citizens 206 198 Removal from Australia of unlawful non-citizens.........................206 198A Offshore entry person may be taken to a declared country............209

Migration Act 1958 xiii

198B Power to bring transitory persons to Australia...............................210 198C Certain transitory persons entitled to assessment of refugee

status..............................................................................................210 198D Certificate of non-cooperation.......................................................211 199 Dependants of removed non-citizens.............................................212

Division 9—Deportation 213 200 Deportation of certain non-citizens................................................213 201 Deportation of non-citizens in Australia for less than 10

years who are convicted of crimes.................................................213 202 Deportation of non-citizens upon security grounds .......................213 203 Deportation of non-citizens who are convicted of certain

serious offences .............................................................................215 204 Determination of time for sections 201 and 202............................217 205 Dependants of deportee .................................................................218 206 Deportation order to be executed...................................................218

Division 10—Costs etc. of detention, removal and deportation 219 207 Interpretation .................................................................................219 208 Determination of daily maintenance amount .................................220 209 Detainees liable for costs of detention ...........................................220 210 Removed or deported non-citizen liable for costs of removal

or deportation ................................................................................220 211 Costs of detained spouses and dependants.....................................220 212 Costs of removed or deported spouses and dependants .................221 213 Carriers may be liable for costs of detention, removal and

deportation.....................................................................................222 214 Non-citizens and carriers jointly liable ..........................................223 215 Costs are debts due to the Commonwealth ....................................223 216 Use of existing ticket for removal or deportation ..........................223 217 Vessels required to convey certain removees ................................223 218 Vessels required to convey deportees or other removees ..............224 219 Exemption from complying...........................................................224 220 Waiver of requirement...................................................................225 221 Cost of removal under notice.........................................................225 222 Orders restraining certain non-citizens from disposing etc. of

property .........................................................................................225 223 Secretary may give direction about valuables of detained

non-citizens ...................................................................................227 224 Dealing with seized valuables .......................................................230

Division 11—Duties of masters in relation to crews 232 225 Production of identity documents and mustering of crew..............232 226 Production of identity documents by persons on board

resources installation .....................................................................232 227 Production of identity documents by persons on board sea

installation .....................................................................................233

xiv Migration Act 1958

228 Master to report absences ..............................................................234 Division 12—Offences in relation to entry into, and remaining

in, Australia 236 Subdivision A—General offences 236

228A Application of Subdivision............................................................236 229 Carriage of non-citizens to Australia without documentation........236 230 Carriage of concealed persons to Australia ...................................238 231 Master of vessel to comply with certain requests ..........................239 232 Penalty on master, owner, agent and charterer of vessel ...............239 232A Organising bringing groups of non-citizens into Australia ............241 233 Persons concerned in bringing non-citizens into Australia in

contravention of this Act or harbouring illegal entrants ................241 233A Other offences relating to groups of non-citizens etc. ...................242 233B No discharge of offenders without proceeding to conviction

for certain offences ........................................................................243 233C Mandatory penalties for certain offences.......................................243 234 False papers etc. ............................................................................243 235 Offences in relation to work ..........................................................244 236 Offences relating to visas ..............................................................246

Subdivision B—Offences relating to abuse of laws allowing spouses etc. of Australian citizens or of permanent residents to become permanent residents 247

237 Reason for Subdivision..................................................................247 238 Interpretation .................................................................................247 239 Application of Subdivision............................................................248 240 Offence to arrange marriage to obtain permanent residence..........248 241 Offence to arrange pretended de facto relationship to obtain

permanent residence ......................................................................249 242 Offence to arrange pretended interdependency relationship to

obtain permanent residence ...........................................................249 243 Offences relating to application for permanent residence

because of marriage or de facto relationship .................................249 244 Offences relating to an application for permanent residence

because of interdependency relationship .......................................250 245 Offences of making false or unsupported statements ....................250

Subdivision C—Offences in relation to persons who allow non-citizens to work, or refer non-citizens for work, in certain circumstances 251

245AA Overview .......................................................................................251 245AB Allowing an unlawful non-citizen to work ....................................252 245AC Allowing a non-citizen to work in breach of a visa condition .......253 245AD Referring an unlawful non-citizen for work ..................................253

Migration Act 1958 xv

245AE Referring a non-citizen for work in breach of a visa condition........................................................................................254

245AF Circumstances in which this Subdivision does not apply ..............255 245AG Meaning of work and allows to work ............................................255 245AH Meaning of exploited .....................................................................256 245AI Meaning of other terms..................................................................256 245AJ Geographical jurisdiction ..............................................................256 245AK On a trial for an aggravated offence ..............................................256

Division 12A—Chasing, boarding etc. ships and aircraft 258 245A Definitions.....................................................................................258 245B Request to board a ship..................................................................259 245C Power to chase foreign ships for boarding.....................................263 245D Power to chase Australian ships for boarding................................264 245E Identifying an aircraft and requesting it to land for boarding ........265 245F Power to board and search etc. ships and aircraft ..........................266 245FA Searches of people on certain ships or aircraft ..............................273 245FB Returning persons to ships.............................................................274 245G Boarding of certain ships on the high seas.....................................275 245H Moving or destroying hazardous ships etc.....................................277

Division 12B—Reporting on passengers and crew of aircraft and ships 279

245I Definitions.....................................................................................279 245J Approval of primary reporting systems .........................................280 245K Approval of fall-back reporting systems........................................280 245L Obligation to report on passengers and crew.................................281 245M Approved fall-back reporting systems may be used in certain

circumstances ................................................................................282 245N Offence for failure to comply with reporting obligations ..............283

Division 13—Examination, search and detention 284 246 Appointment of boarding stations .................................................284 247 Vessels to enter ports and be brought to boarding stations ............284 248 Exemption .....................................................................................286 249 Certain persons may be prevented from entering or landing .........286 250 Detention of suspected offenders...................................................287 251 Powers of entry and search............................................................288 252 Searches of persons .......................................................................289 252AA Power to conduct a screening procedure .......................................291 252A Power to conduct a strip search .....................................................292 252B Rules for conducting a strip search................................................294 252C Possession and retention of certain things obtained during a

screening procedure or strip search ...............................................296 252D Authorised officer may apply for a thing to be retained for a

further period.................................................................................297

xvi Migration Act 1958

252E Magistrate may order that thing be retained ..................................298 252F Detainees held in State or Territory prisons or remand

centres ...........................................................................................298 252G Powers concerning entry to a detention centre ..............................299 253 Detention of deportee ....................................................................300 254 Removees and deportees held in other custody .............................302 255 Prescribed authorities ....................................................................303 256 Person in immigration detention may have access to certain

advice, facilities etc. ......................................................................303 257 Persons may be required to answer questions................................304 258 Minister may determine that personal identifiers are not

required..........................................................................................304 258A When non-citizen cannot be required to provide personal

identifier ........................................................................................305 258B Information to be provided—authorised officers carrying out

identification tests..........................................................................305 258C Information to be provided—authorised officers not carrying

out identification tests....................................................................306 258D Regulations may prescribe manner for carrying out

identification tests..........................................................................306 258E General rules for carrying out identification tests..........................307 258F Identification tests not to be carried out in cruel, inhuman or

degrading manner etc.....................................................................307 258G Authorised officer may get help to carry out identification

tests................................................................................................307 259 Detention of vessel for purpose of search......................................308 260 Detention of vessel pending recovery of penalty...........................308 261 Disposal of dilapidated vessels etc. ...............................................309

Division 13AA—Identification of immigration detainees 311 Subdivision A—Provision of personal identifiers 311

261AA Immigration detainees must provide personal identifiers ..............311 261AB Authorised officers must require and carry out identification

tests................................................................................................312 261AC Information to be provided before carrying out identification

tests................................................................................................312 Subdivision B—How identification tests are carried out 313

261AD General rules for carrying out identification tests..........................313 261AE Use of force in carrying out identification tests.............................313 261AF Identification tests not to be carried out in cruel, inhuman or

degrading manner etc.....................................................................315 261AG Authorised officer may get help to carry out identification

tests................................................................................................315 261AH Identification tests to be carried out by authorised officer of

same sex as non-citizen .................................................................315 261AI Independent person to be present...................................................315

Migration Act 1958 xvii

261AJ Recording of identification tests ....................................................316 261AK Retesting........................................................................................316

Subdivision C—Obligations relating to video recordings of identification tests 318

261AKA Definitions.....................................................................................318 261AKB Accessing video recordings ...........................................................319 261AKC Authorising access to video recordings .........................................319 261AKD Providing video recordings............................................................320 261AKE Unauthorised modification of video recordings.............................321 261AKF Unauthorised impairment of video recordings...............................321 261AKG Meanings of unauthorised modification and unauthorised

impairment etc. ..............................................................................322 261AKH Destroying video recordings..........................................................322

Division 13AB—Identification of minors and incapable persons 323 261AL Minors ...........................................................................................323 261AM Incapable persons ..........................................................................324

Division 13A—Automatic forfeiture of things used in certain offences 325

Subdivision A—Automatic forfeiture 325 261A Forfeiture of things used in certain offences..................................325

Subdivision B—Seizure 326 261B Seizure of things used in certain offences......................................326

Subdivision C—Dealing with things seized as automatically forfeited 326

261C Application of this Subdivision .....................................................326 261D Notice of seizure............................................................................326 261E Dealing with thing before it is condemned ....................................327 261F Thing condemned if not claimed in time .......................................328 261G Dealing with claim for thing..........................................................328 261H What happens if thing is claimed...................................................329 261I Dealing with thing after it is condemned.......................................330

Subdivision D—Operation of Division 330 261J Operation of Division ....................................................................330

Subdivision E—Minister’s order that a thing not be condemned as forfeited 331

261K Minister’s order that a thing not be condemned ............................331

Migration Act 1958 1

An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons

Part 1—Preliminary

1 Short title [see Note 1]

This Act may be cited as the Migration Act 1958.

2 Commencement [see Note 1]

The several Parts of this Act shall come into operation on such dates as are respectively fixed by Proclamation.

3 Repeal and savings

(1) The Acts specified in the Schedule to this Act are repealed.

(2) Section 9 of the War Precautions Act Repeal Act 1920-1955 and the heading to that section, and the Schedule to that Act, are repealed.

(3) The War Precautions Act Repeal Act 1920-1955, as amended by this section, may be cited as the War Precautions Act Repeal Act 1920-1958.

(4) Notwithstanding the repeals effected by this section: (a) a certificate of exemption in force under the Immigration Act

1901-1949 immediately before the date of commencement of this Part shall, for all purposes of this Act, be deemed to be a temporary visa granted under this Act to the person specified in the certificate and authorizing that person to remain in Australia for a period ending on the date on which the certificate would have expired if this Act had not been passed.

Part 1 Preliminary Section 3A

2 Migration Act 1958

(5) For the purposes of paragraph (4)(a), where, before the commencement of this Part, a person who had previously entered Australia re-entered Australia and, upon or after the re-entry, a certificate of exemption purported to be issued to the person, the certificate shall be deemed to have been as validly issued as if the person had not previously entered Australia.

3A Act not to apply so as to exceed Commonwealth power

(1) Unless the contrary intention appears, if a provision of this Act: (a) would, apart from this section, have an invalid application;

but (b) also has at least one valid application;

it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.

(2) Despite subsection (1), the provision is not to have a particular valid application if:

(a) apart from this section, it is clear, taking into account the provision’s context and the purpose or object underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth’s legislative power; or

(b) the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth’s legislative power.

(3) Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).

(4) This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section.

(5) In this section:

application means an application in relation to: (a) one or more particular persons, things, matters, places,

circumstances or cases; or

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(b) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases.

invalid application, in relation to a provision, means an application because of which the provision exceeds the Commonwealth’s legislative power.

valid application, in relation to a provision, means an application that, if it were the provision’s only application, would be within the Commonwealth’s legislative power.

3B Compensation for acquisition of property

(1) If: (a) this Act would result in an acquisition of property; and (b) any provision of this Act would not be valid, apart from this

section, because a particular person has not been compensated;

the Commonwealth must pay that person: (c) a reasonable amount of compensation agreed on between the

person and the Commonwealth; or (d) failing agreement—a reasonable amount of compensation

determined by a court of competent jurisdiction.

(2) Any damages or compensation recovered, or other remedy given, in a proceeding begun otherwise than under this section must be taken into account in assessing compensation payable in a proceeding begun under this section and arising out of the same event or transaction.


acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

4 Object of Act

(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

Part 1 Preliminary Section 4AA


(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

(3) To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering.

(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.

4AA Detention of minors a last resort

(1) The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.

(2) For the purposes of subsection (1), the reference to a minor being detained does not include a reference to a minor residing at a place in accordance with a residence determination.

4A Application of the Criminal Code

Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

5 Interpretation

(1) In this Act, unless the contrary intention appears:

absorbed person visa has the meaning given by section 34.

adjacent area means an adjacent area in respect of a State, of the Northern Territory, of the Territory of Ashmore and Cartier Islands, of the Territory of Cocos (Keeling) Islands or of the Territory of Christmas Island, as determined in accordance with section 5 of the Sea Installations Act.

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allowed inhabitant of the Protected Zone means an inhabitant of the Protected Zone, other than an inhabitant to whom a declaration under section 16 (presence declared undesirable) applies.

applicable pass mark, in relation to a visa of a particular class, means the number of points specified as the pass mark for that class in a notice, under section 96, in force at the time concerned.

applicable pool mark, in relation to a visa of a particular class, means the number of points specified as the pool mark for that class in a notice under section 96 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.

approved sponsor, in relation to a visa of a kind (however described) to which Division 3A of Part 2 applies, has the meaning given by section 140D.

area in the vicinity of the Protected Zone means an area in respect of which a notice is in force under subsection (8).

assessed score, in relation to an applicant for a visa, means the total number of points given to the applicant in an assessment under section 93.

Australian passport means a passport issued under the Australian Passports Act 2005.

Australian resources installation means a resources installation that is deemed to be part of Australia because of the operation of section 8.

Australian seabed means so much of the seabed adjacent to Australia (other than the seabed within the Joint Petroleum Development Area) as is:

(a) within the area comprising: (i) the areas described in Schedule 1 to the Offshore

Petroleum and Greenhouse Gas Storage Act 2006; and (ii) the Coral Sea area; and (b) part of: (i) the continental shelf of Australia;

Part 1 Preliminary Section 5


(ii) the seabed beneath the territorial sea of Australia (including the territorial sea adjacent to any island forming part of Australia); or

(iii) the seabed beneath waters of the sea that are on the landward side of the territorial sea of Australia and are not within the limits of a State or Territory.

Australian sea installation means a sea installation that is deemed to be part of Australia because of the operation of section 9.

Australian waters means: (a) in relation to a resources installation—waters above the

Australian seabed; and (b) in relation to a sea installation—waters comprising all of the

adjacent areas and the coastal area.

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. Note: Section 5D can affect the meaning of this term for the purposes of

carrying out identification tests.

authorised system, when used in a provision of this Act, means an automated system authorised in writing by the Minister or the Secretary for the purposes of that provision.

behaviour concern non-citizen means a non-citizen who: (a) has been convicted of a crime and sentenced to death or to

imprisonment, for at least one year; or (b) has been convicted of 2 or more crimes and sentenced to

imprisonment, for periods that add up to at least one year if: (i) any period concurrent with part of a longer period is

disregarded; and (ii) any periods not disregarded that are concurrent with

each other are treated as one period; whether or not: (iii) the crimes were of the same kind; or (iv) the crimes were committed at the same time; or (v) the convictions were at the same time; or (vi) the sentencings were at the same time; or (vii) the periods were consecutive; or

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(c) has been charged with a crime and either: (i) found guilty of having committed the crime while of

unsound mind; or (ii) acquitted on the ground that the crime was committed

while the person was of unsound mind; (d) has been removed or deported from Australia or removed or

deported from another country; or (e) has been excluded from another country in prescribed

circumstances; where sentenced to imprisonment includes ordered to be confined in a corrective institution.

bridging visa has the meaning given by section 37.

brought into physical contact has the same meaning as in the Sea Installations Act.

bypass immigration clearance has the meaning given by subsection 172(4).

certified printout means a printout certified by an authorised officer to be a printout of information kept in the movement records.

character concern has the meaning given by section 5C.

clearance authority has the meaning given by section 165.

clearance officer has the meaning given by section 165.

coastal area has the same meaning as in the Customs Act 1901.

continental shelf has the same meaning as in the Seas and Submerged Lands Act 1973.

Coral Sea area has the same meaning as in section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006.

crime includes any offence.

criminal justice visa has the meaning given by section 38.

data base (except in Part 4A) means a discrete body of information stored by means of a computer. Note: Section 336A defines this term differently for the purposes of Part 4A.



departure prohibition order means an order under subsection 14S(1) of the Taxation Administration Act 1953.

deportation means deportation from Australia.

deportation order means an order for the deportation of a person made under, or continued in force by, this Act.

deportee means a person in respect of whom a deportation order is in force.

detain means: (a) take into immigration detention; or (b) keep, or cause to be kept, in immigration detention;

and includes taking such action and using such force as are reasonably necessary to do so. Note: This definition extends to persons covered by residence

determinations (see section 197AC).

detainee means a person detained. Note: This definition extends to persons covered by residence

determinations (see section 197AC).

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.

enforcement visa has the meaning given by section 38A.

enter includes re-enter.

enter Australia, in relation to a person, means enter the migration zone.

entered includes re-entered.

entry includes re-entry.

environment detention offence means: (a) an offence against the Environment Protection and

Biodiversity Conservation Act 1999, or against regulations made for the purposes of that Act; or

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(b) an offence against section 6 of the Crimes Act 1914 relating to an offence described in paragraph (a).

environment officer means an authorised officer, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999, but does not include a person who is an authorised officer because of subsection 397(3) of that Act.

environment related activity has the same meaning as in the Sea Installations Act.

excised offshore place means any of the following: (a) the Territory of Christmas Island; (b) the Territory of Ashmore and Cartier Islands; (c) the Territory of Cocos (Keeling) Islands; (d) any other external Territory that is prescribed by the

regulations for the purposes of this paragraph; (e) any island that forms part of a State or Territory and is

prescribed for the purposes of this paragraph; (f) an Australian sea installation; (g) an Australian resources installation.

Note: The effect of this definition is to excise the listed places and installations from the migration zone for the purposes of limiting the ability of offshore entry persons to make valid visa applications.

excision time, for an excised offshore place, means: (a) for the Territory of Christmas Island—2 pm on 8 September

2001 by legal time in the Australian Capital Territory; or (b) for the Territory of Ashmore and Cartier Islands—2 pm on

8 September 2001 by legal time in the Australian Capital Territory; or

(c) for the Territory of Cocos (Keeling) Islands—12 noon on 17 September 2001 by legal time in the Australian Capital Territory; or

(d) for any other external Territory that is prescribed by the regulations for the purposes of the definition of excised offshore place—the time when the regulations commence; or

(e) for any island that forms part of a State or Territory and is prescribed by the regulations for the purposes of the definition of excised offshore place—the time when the regulations commence; or



(f) for an Australian sea installation—the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001; or

(g) for an Australian resources installation—the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001.

ex-citizen visa has the meaning given by section 35.

Federal Court means the Federal Court of Australia.

fisheries detention offence means: (a) an offence against section 99, 100, 100A, 100B, 101, 101A,

101AA, 101B, 105E or 105F of the Fisheries Management Act 1991; or

(b) an offence against section 45, 46A, 46B, 46C, 46D, 48, 49, 49A, 51 or 51A of the Torres Strait Fisheries Act 1984; or

(c) an offence against section 6 of the Crimes Act 1914 relating to an offence described in paragraph (a) or (b).

fisheries officer means an officer as defined in the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984.

foreign aircraft (environment matters) means an aircraft, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999, that is not an Australian aircraft (within the meaning of that Act).

foreign boat has the same meaning as in the Fisheries Management Act 1991.

health concern non-citizen means a non-citizen who is suffering from a prescribed disease or a prescribed physical or mental condition.

health criterion, in relation to a visa, means a prescribed criterion for the visa that:

(a) relates to the applicant for the visa, or the members of the family unit of that applicant (within the meaning of the regulations); and

(b) deals with: (i) a prescribed disease; or (ii) a prescribed kind of disease; or

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(iii) a prescribed physical or mental condition; or (iv) a prescribed kind of physical or mental condition; or (v) a prescribed kind of examination; or (vi) a prescribed kind of treatment.

holder, in relation to a visa, means, subject to section 77 (visas held during visa period) the person to whom it was granted or a person included in it.

identification test means a test carried out in order to obtain a personal identifier.

identity document, in relation to a member of the crew of a vessel, means:

(a) an identification card, in accordance with a form approved by the Minister, in respect of the member signed by the master of the vessel; or

(b) a document, of a kind approved by the Minister as an identity document for the purposes of this Act, in respect of the member.

immigration cleared has the meaning given by subsection 172(1).

immigration detention means: (a) being in the company of, and restrained by: (i) an officer; or (ii) in relation to a particular detainee—another person

directed by the Secretary to accompany and restrain the detainee; or

(b) being held by, or on behalf of, an officer: (i) in a detention centre established under this Act; or (ii) in a prison or remand centre of the Commonwealth, a

State or a Territory; or (iii) in a police station or watch house; or (iv) in relation to a non-citizen who is prevented, under

section 249, from leaving a vessel—on that vessel; or (v) in another place approved by the Minister in writing;

but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b). Note 1: See also section 198A, which provides that being dealt with under that

section does not amount to immigration detention.



Note 2: This definition extends to persons covered by residence determinations (see section 197AC).

incapable person means a person who is incapable of understanding the general nature and effect of, and purposes of, a requirement to provide a personal identifier.

independent person means a person (other than an officer or an authorised officer) who:

(a) is capable of representing the interests of a non-citizen who is providing, or is to provide, a personal identifier; and

(b) as far as practicable, is acceptable to the non-citizen who is providing, or is to provide, the personal identifier; and

(c) if the non-citizen is a minor—is capable of representing the minor’s best interests.

inhabitant of the Protected Zone means a person who is a citizen of Papua New Guinea and who is a traditional inhabitant.

in immigration clearance has the meaning given by subsection 172(2).

installation means: (a) a resources installation; or (b) a sea installation.

Joint Petroleum Development Area has the same meaning as in the Petroleum (Timor Sea Treaty) Act 2003.

lawful non-citizen has the meaning given by section 13.

leave Australia, in relation to a person, means, subject to section 80 (leaving without going to other country), leave the migration zone.

maritime crew visa has the meaning given by section 38B.

master, in relation to a vessel, means the person in charge or command of the vessel.

member of the crew means: (a) in relation to a vessel other than an aircraft—the master of

the vessel, or a person whose name is on the articles of the vessel as a member of the crew; or

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(b) in relation to an aircraft—the master of the aircraft, or a person employed by the operator of the aircraft and whose name is included in a list of members of the crew of the aircraft furnished by the master as prescribed.

migration decision means: (a) a privative clause decision; or (b) a purported privative clause decision; or (c) a non-privative clause decision.

Migration Review Tribunal means the Migration Review Tribunal established by section 394.

migration zone means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:

(a) land that is part of a State or Territory at mean low water; and

(b) sea within the limits of both a State or a Territory and a port; and

(c) piers, or similar structures, any part of which is connected to such land or to ground under such sea;

but does not include sea within the limits of a State or Territory but not in a port.

minor means a person who is less than 18 years old.

movement records means information stored in a notified data base.

natural resources means the mineral and other non-living resources of the seabed and its subsoil.

non-citizen means a person who is not an Australian citizen.

non-disclosable information means information or matter: (a) whose disclosure would, in the Minister’s opinion, be

contrary to the national interest because it would: (i) prejudice the security, defence or international relations

of Australia; or (ii) involve the disclosure of deliberations or decisions of

the Cabinet or of a committee of the Cabinet; or



(b) whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or

(c) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;

and includes any document containing, or any record of, such information or matter.

non-privative clause decision has the meaning given by subsection 474(6).

notified data base means a data base declared to be a notified data base under section 489.

offence against this Act includes: (a) an offence against section 6 of the Crimes Act 1914 that

relates to an offence against a provision of this Act; and (b) an ancillary offence (within the meaning of the Criminal

Code) that is, or relates to, an offence against a provision of this Act.

officer means: (a) an officer of the Department, other than an officer specified

by the Minister in writing for the purposes of this paragraph; or

(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; or

(c) a person who is a protective service officer for the purposes of the Australian Federal Police Act 1979, other than such a person specified by the Minister in writing for the purposes of this paragraph; or

(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; or (f) a person who is authorised in writing by the Minister to be an

officer for the purposes of this Act; or

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(g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.

offshore entry person means a person who: (a) entered Australia at an excised offshore place after the

excision time for that offshore place; and (b) became an unlawful non-citizen because of that entry.

old visa means a visa, document, or notation, that: (a) permits a person to travel to Australia; and (b) was issued before 1 September 1994; and (c) has not been cancelled or otherwise stopped being in effect.

passport includes a document of identity issued from official sources, whether in or outside Australia, and having the characteristics of a passport, but does not include a document, which may be a document called or purporting to be a passport, that the regulations declare is not to be taken to be a passport.

permanent visa has the meaning given by subsection 30(1).

personal identifier has the meaning given by section 5A.

port means: (a) a proclaimed port; or (b) a proclaimed airport.

pre-cleared flight means a flight declared under section 17 to be a pre-cleared flight.

prescribed means prescribed by the regulations.

printout means a mechanically or electronically made reproduction of part or all of the movement records.

privative clause decision has the meaning given by subsection 474(2).

proclaimed airport means: (a) an airport appointed under section 15 of the Customs Act

1901; or (b) an airport appointed by the Minister under subsection (5).



proclaimed port means: (a) a port appointed under section 15 of the Customs Act 1901;

or (b) a port appointed by the Minister under subsection (5).

protected area means an area that is: (a) part of the migration zone; and (b) in, or in an area in the vicinity of, the Protected Zone.

Protected Zone means the zone established under Article 10 of the Torres Strait Treaty, being the area bounded by the line described in Annex 9 to that treaty.

purported privative clause decision has the meaning given by section 5E.

questioning detention means detention under section 192.

Refugee Review Tribunal means the Refugee Review Tribunal established by section 457.

Refugees Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951.

Refugees Protocol means the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

refused immigration clearance has the meaning given by subsection 172(3).

remain in Australia, in relation to a person, means remain in the migration zone.

remove means remove from Australia.

removee means an unlawful non-citizen removed, or to be removed, under Division 8 of Part 2.

residence determination has the meaning given by subsection 197AB(1).

resources installation means: (a) a resources industry fixed structure within the meaning of

subsection (10); or

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(b) a resources industry mobile unit within the meaning of subsection (11).

RRT-reviewable decision has the meaning given by section 411.

score, in relation to a visa applicant, means the total number of points given to the applicant under section 93 in the most recent assessment or re-assessment under Subdivision B of Division 3 of Part 2.

sea installation has the same meaning as in the Sea Installations Act.

Sea Installations Act means the Sea Installations Act 1987.

Secretary means the Secretary to the Department.

special category visa has the meaning given by section 32.

special purpose visa has the meaning given by section 33.

student visa has the meaning given by the regulations.

substantive visa means a visa other than: (a) a bridging visa; or (b) a criminal justice visa; or (c) an enforcement visa.

temporary visa has the meaning given by subsection 30(2).

Territory means: (a) an internal Territory; or (b) an external Territory to which this Act extends.

ticket includes a travel document in respect of the conveyance of a person from one place to another place.

Torres Strait Treaty means the Treaty between Australia and the Independent State of Papua New Guinea that was signed at Sydney on 18 December 1978.

traditional activities has the same meaning as in the Torres Strait Treaty.

traditional inhabitants has the same meaning as in the Torres Strait Fisheries Act 1984.



transitory person means: (a) an offshore entry person who was taken to another country

under section 198A; or (b) a person who was taken to a place outside Australia under

paragraph 245F(9)(b); or (c) a person who, while a non-citizen and during the period from

27 August 2001 to 6 October 2001: (i) was transferred to the ship HMAS Manoora from the

ship Aceng or the ship MV Tampa; and (ii) was then taken by HMAS Manoora to another country;

and (iii) disembarked in that other country;

but does not include a person who has been assessed to be a refugee for the purposes of the Refugees Convention as amended by the Refugees Protocol.

unlawful non-citizen has the meaning given by section 14.

vessel includes an aircraft or an installation.

vessel (environment matters) means a vessel, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999.

visa has the meaning given by section 29 and includes an old visa.

visa applicant means an applicant for a visa and, in relation to a visa, means the applicant for the visa.

visa application charge means the charge payable under section 45A.

visa application charge limit is the amount determined under the Migration (Visa Application) Charge Act 1997.

visa holder means the holder of a visa and, in relation to a visa, means the holder of the visa.

visa period, in relation to a visa, means the period: (a) beginning when the visa is granted; and (b) ending: (i) in the case of a visa other than a bridging visa—when

the visa ceases to be in effect; or

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(ii) in the case of a bridging visa—when the visa ceases to be in effect otherwise than under subsection 82(3).

working day, in relation to a place, means any day that is not a Saturday, a Sunday or a public holiday in that place.

(1A) The Minister has power to give authorisations as provided by paragraphs (f) and (g) of the definition of officer in subsection (1) and, if such an authorisation is given:

(a) the Minister is to cause notice of the authorisation to be published in the Gazette; but

(b) without affecting the obligation of the Minister to cause a notice to be so published:

(i) the authorisation takes effect when it is given; and (ii) the validity of the authorisation is not affected if such a

notice is not published.

(1B) The Minister or the Secretary has the power to give authorisations as provided by the definition of authorised system.

(2) For the purposes of this Act, a person has functional English at a particular time if:

(a) the person passes a test that: (i) is approved in writing by the Minister for the purposes

of this subsection; and (ii) is conducted by a person, or organisation, approved for

the purposes of this subsection by the Minister by notice in the Gazette; or

(b) the person provides the Minister with prescribed evidence of the person’s English language proficiency.

(3) Any power that may be exercised by an authorized officer or by an officer under this Act may also be exercised by the Minister.

(4) Where, in any provision of this Act, reference is made to the exercise of a power by an authorized officer or by an officer and that power is a power which, by virtue of subsection (3), may also be exercised by the Minister, that reference shall be construed as including a reference to the exercise of that power by the Minister.

(4A) A reference in the definition of independent person in subsection (1) of this section, in sections 258 to 258G or in Division 13AB of Part 2 to a non-citizen includes a reference to a



person whom an officer, in the course of exercising or considering the exercising of his or her powers under section 188, reasonably suspects is a non-citizen.

(5) The Minister may, by notice published in the Gazette: (a) appoint ports in an external Territory to which this Act

extends as proclaimed ports for the purposes of this Act and fix the limits of those ports; and

(b) appoint airports in an external Territory to which this Act extends as proclaimed airports for the purposes of this Act and fix the limits of those airports.

(6) For the purposes of this Act, where a resources installation that has been brought into Australian waters from a place outside the outer limits of Australian waters becomes attached to the Australian seabed:

(a) the installation shall be deemed to have entered Australia at the time when it becomes so attached;

(b) any person on board the installation at the time when it becomes so attached shall be deemed to have travelled to Australia on board that installation, to have entered Australia at that time and to have been brought into Australia at that time.

(7) For the purposes of this Act, where a sea installation that has been brought into Australian waters from a place outside the outer limits of Australian waters is installed in an adjacent area or in a coastal area:

(a) the installation shall be deemed to have entered Australia at the time that it becomes so installed; and

(b) any person on board the installation at the time that it becomes so installed shall be deemed to have travelled to Australia on board that installation, to have entered Australia at that time and to have been brought into Australia at that time.

(8) The Minister may, by notice published in the Gazette, declare an area adjacent to the Protected Zone and to the south of the line described in Annex 5 to the Torres Strait Treaty to be an area in the vicinity of the Protected Zone for the purposes of this Act.

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(9) 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 5 or 7; or

(b) a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.

(10) A reference in this Act to a resources industry fixed structure shall be read as a reference to a structure (including a pipeline) that:

(a) is not able to move or be moved as an entity from one place to another; and

(b) is used or is to be used off-shore in, or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources.

(11) A reference in this Act to a resources industry mobile unit shall be read as a reference to:

(a) a vessel that is used or is to be used wholly or principally in: (i) exploring or exploiting natural resources by drilling the

seabed or its subsoil with equipment on or forming part of the vessel or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind; or

(ii) operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (i); or

(b) a structure (not being a vessel) that: (i) is able to float or be floated; (ii) is able to move or be moved as an entity from one place

to another; and (iii) is used or is to be used off-shore wholly or principally

in: (A) exploring or exploiting natural resources by

drilling the seabed or its subsoil with equipment on or forming part of the structure or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind; or



(B) operations or activities associated with, or incidental to, activities of the kind referred to in sub-subparagraph (A).

(12) A vessel of a kind referred to in paragraph (11)(a) or a structure of a kind referred to in paragraph (11)(b) shall not be taken not to be a resources industry mobile unit by reason only that the vessel or structure is also used or to be used in, or in any operations or activities associated with, or incidental to, exploring or exploiting resources other than natural resources.

(13) The reference in subparagraph (11)(a)(ii) to a vessel that is used or is to be used wholly or principally in operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (11)(a)(i) shall be read as not including a reference to a vessel that is used or is to be used wholly or principally in:

(a) transporting persons or goods to or from a resources installation; or

(b) manoeuvring a resources installation, or in operations relating to the attachment of a resources installation to the Australian seabed.

(14) A resources installation shall be taken to be attached to the Australian seabed if:

(a) the installation: (i) is in physical contact with, or is brought into physical

contact with, a part of the Australian seabed; and (ii) is used or is to be used, at that part of the Australian

seabed, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources; or

(b) the installation: (i) is in physical contact with, or is brought into physical

contact with, another resources installation that is taken to be attached to the Australian seabed by virtue of the operation of paragraph (a); and

(ii) is used or is to be used, at the place where it is brought into physical contact with the other installation, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources.

Preliminary Part 1

Section 5


(15) Subject to subsection (17), for the purposes of this Act, a sea installation shall be taken to be installed in an adjacent area if:

(a) the installation is in, or is brought into, physical contact with a part of the seabed in the adjacent area; or

(b) the installation is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in the adjacent area because of paragraph (a).

(16) For the purposes of this Act, a sea installation shall be taken to be installed in an adjacent area at a particular time if the whole or part of the installation:

(a) is in that adjacent area at that time; and (b) has been in a particular locality: (i) that is circular and has a radius of 20 nautical miles; and (ii) the whole or part of which is in that adjacent area; for: (iii) a continuous period, of at least 30 days, that

immediately precedes that time; or (iv) one or more periods, during the 60 days that

immediately precede that time, that in sum amount to at least 40 days.

(17) Where a sea installation, being a ship or an aircraft: (a) is brought into physical contact with a part of the seabed in

an adjacent area; or (b) is in, or is brought into, physical contact with another sea

installation that is to be taken to be installed in an adjacent area;

for less than: (c) in the case of a ship, or an aircraft, registered under the law

of a foreign country—30 days; or (d) in any other case—5 days;

it shall not be taken to be installed in that adjacent area under subsection (15).

(18) A sea installation shall not be taken to be installed in an adjacent area for the purposes of this Act unless it is to be taken to be so installed under this section.



(19) Subject to subsection (21), for the purposes of this Act, a sea installation shall be taken to be installed in a coastal area if:

(a) the installation is in, or is brought into, physical contact with a part of the seabed in the coastal area; or

(b) the installation is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in the coastal area because of paragraph (a).

(20) For the purposes of this Act, a sea installation (other than an installation installed in an adjacent area) shall be taken to be installed at a particular time in a coastal area if the whole or part of the installation:

(a) is in that coastal area at that time; and (b) has been in a particular locality: (i) that is circular and has a radius of 20 nautical miles; and (ii) the whole or part of which is in that coastal area; for: (iii) a continuous period, of at least 30 days, that

immediately precedes that time; or (iv) one or more periods, during the 60 days that

immediately precede that time, that in sum amount to at least 40 days.

(21) Where a sea installation, being a ship or an aircraft: (a) is brought into physical contact with a part of the seabed in a

coastal area; or (b) is in, or is brought into, physical contact with another sea

installation that is to be taken to be installed in a coastal area; for less than:

(c) in the case of a ship, or an aircraft, registered under the law of a foreign country—30 days; or

(d) in any other case—5 days; it shall not be taken to be installed in that coastal area under subsection (19).

(22) A sea installation shall not be taken to be installed in a coastal area for the purposes of this Act unless it is to be taken to be so installed under this section.

Preliminary Part 1

Section 5A


(23) To avoid doubt, in this Act is taken, when followed by the infinitive form of a verb, has the same force and effect as is deemed when followed by the infinitive form of that verb.

5A Meaning of personal identifier

(1) In this Act:

personal identifier means any of the following (including any of the following in digital form):

(a) fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies);

(b) a measurement of a person’s height and weight; (c) a photograph or other image of a person’s face and shoulders; (d) an audio or a video recording of a person (other than a video

recording under section 261AJ); (e) an iris scan; (f) a person’s signature; (g) any other identifier prescribed by the regulations, other than

an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.

(2) Before the Governor-General makes regulations for the purposes of paragraph (1)(g) prescribing an identifier, the Minister must be satisfied that:

(a) obtaining the identifier would not involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914; and

(b) the identifier is an image of, or a measurement or recording of, an external part of the body; and

(c) obtaining the identifier will promote one or more of the purposes referred to in subsection (3).

(3) The purposes are: (a) to assist in the identification of, and to authenticate the

identity of, any person who can be required under this Act to provide a personal identifier; and

(b) to assist in identifying, in the future, any such person; and (c) to improve the integrity of entry programs, including

passenger processing at Australia’s border; and

Part 1 Preliminary Section 5B


(d) to facilitate a visa-holder’s access to his or her rights under this Act or the regulations; and

(e) to improve the procedures for determining visa applications; and

(f) to improve the procedures for determining claims for protection under the Refugees Convention as amended by the Refugees Protocol; and

(g) to enhance the Department’s ability to identify non-citizens who have a criminal history, who are of character concern or who are of national security concern; and

(h) to combat document and identity fraud in immigration matters; and

(i) to detect forum shopping by applicants for visas; and (j) to ascertain whether: (i) an applicant for a protection visa; or (ii) an offshore entry person who makes a claim for

protection under the Refugees Convention as amended by the Refugees Protocol;

had sufficient opportunity to avail himself or herself of protection before arriving in Australia; and

(k) to complement anti-people smuggling measures; and (l) to inform the governments of foreign countries of the identity

of non-citizens who are, or are to be, removed or deported from Australia.

5B When personal identifier taken not to have been provided

A person is taken, for the purposes of sections 40, 46, 166, 170, 175, 188 and 192, not to have provided a personal identifier if:

(a) the personal identifier that is provided is unusable; or (b) an authorised officer or an officer is not satisfied: (i) about the integrity of the personal identifier that is

provided; or (ii) about the procedure followed to obtain the personal

identifier; or (c) in a case to which subsection 40(5), 46(2C), 166(8), 170(5),

175(5), 188(7) or 192(2C) applies—the quality of the personal identifier that is provided does not satisfy an officer who uses the personal identifier for the purpose of making a decision under this Act or the regulations.

Preliminary Part 1

Section 5C


5C Meaning of character concern

(1) For the purposes of this Act, a non-citizen is of character concern if:

(a) the non-citizen has a substantial criminal record (as defined by subsection (2)); or

(b) the non-citizen has or has had an association with someone else, or with a group or organisation, who is reasonably suspected of having been or being involved in criminal conduct; or

(c) having regard to either or both of the following: (i) the non-citizen’s past and present criminal conduct; (ii) the non-citizen’s past and present general conduct; the non-citizen is not of good character; or (d) in the event that the non-citizen were allowed to enter or to

remain in Australia, there is a significant risk that the non-citizen would:

(i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in

Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a

segment of that community; or (v) represent a danger to the Australian community or to a

segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

(2) For the purposes of subsection (1), a non-citizen has a substantial criminal record if:

(a) the non-citizen has been sentenced to death; or (b) the non-citizen has been sentenced to imprisonment for life;

or (c) the non-citizen has been sentenced to a term of imprisonment

of 12 months or more; or (d) the non-citizen has been sentenced to 2 or more terms of

imprisonment (whether on one or more occasions), and the total of those terms is 2 years or more; or

Part 1 Preliminary Section 5D


(e) the non-citizen has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.

5D Limiting the types of identification tests that authorised officers may carry out

(1) The Minister or Secretary may, in an instrument authorising an officer as an authorised officer for the purposes of carrying out identification tests under this Act, specify the types of identification tests that the authorised officer may carry out.

(2) Such an authorised officer is not an authorised officer in relation to carrying out an identification test that is not of a type so specified.

5E Meaning of purported privative clause decision

(1) In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:

(a) a failure to exercise jurisdiction; or (b) an excess of jurisdiction;

in the making of the decision.

(2) In this section, decision includes anything listed in subsection 474(3).

6 Effect of limited meaning of enter Australia etc.

To avoid doubt, although subsection 5(1) limits, for the purposes of this Act, the meanings of enter Australia, leave Australia and remain in Australia and as well, because of section 18A of the Acts Interpretation Act 1901, the meaning of parts of speech and grammatical forms of those phrases, this does not mean:

(a) that, for those purposes, the meaning of in Australia, to Australia or any other phrase is limited; or

(b) that this Act does not extend to parts of Australia outside the migration zone; or

(c) that this Act does not apply to persons in those parts.

Preliminary Part 1

Section 7


7 Act to extend to certain Territories

(1) In this section, prescribed Territory means the Coral Sea Islands Territory, the Territory of Cocos (Keeling) Islands, the Territory of Christmas Island and the Territory of Ashmore and Cartier Islands.

(2) This Act extends to a prescribed Territory.

(3) Subject to this Act, a prescribed Territory: (a) shall be deemed to be part of Australia for the purposes of

this Act; and (b) shall be deemed not to be a place outside Australia.

7A Effect on executive power to protect Australia’s borders

The existence of statutory powers under this Act does not prevent the exercise of any executive power of the Commonwealth to protect Australia’s borders, including, where necessary, by ejecting persons who have crossed those borders.

8 Certain resources installations to be part of Australia

(1) For the purposes of this Act, a resources installation that: (a) becomes attached to the Australian seabed after the

commencement of this subsection; or (b) at the commencement of this subsection, is attached to the

Australian seabed; shall, subject to subsection (2), be deemed to be part of Australia and shall be deemed not to be a place outside Australia.

(2) A resources installation that is deemed to be part of Australia by virtue of the operation of this section shall, for the purposes of this Act, cease to be part of Australia if:

(a) the installation is detached from the Australian seabed, or from another resources installation that is attached to the Australian seabed, for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits); or

(b) after having been detached from the Australian seabed otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a



place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits).

9 Certain sea installations to be part of Australia

(1) For the purposes of this Act, a sea installation that: (a) becomes installed in an adjacent area or in a coastal area after

the commencement of this subsection; or (b) at the commencement of this subsection, is installed in an

adjacent area or in a coastal area; shall, subject to subsection (2), be deemed to be part of Australia and shall be deemed not to be a place outside Australia.

(2) A sea installation that is deemed to be part of Australia because of the operation of this section shall, for the purposes of this Act, cease to be part of Australia if:

(a) the installation is detached from its location for the purpose of being taken to a place outside the outer limits of Australian waters; or

(b) after having been detached from its location otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a place outside the outer limits of Australian waters.

10 Certain children taken to enter Australia at birth

A child who: (a) was born in the migration zone; 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.

11 Visa applicable to 2 or more persons

Where: (a) 2 or more persons who are the holders of the same visa travel

to Australia on board the same vessel; and (b) on entering Australia, one of those persons is in possession of

evidence of that visa; each of them shall, for the purposes of this Act, be taken to be in possession of that evidence on entering Australia.

Preliminary Part 1

Section 12


12 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.

Part 2 Control of arrival and presence of non-citizens Division 1 Immigration status Section 13


Part 2—Control of arrival and presence of non-citizens

Division 1—Immigration status

13 Lawful non-citizens

(1) A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.

(2) An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non-citizen.

14 Unlawful non-citizens

(1) A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.

(2) To avoid doubt, a non-citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non-citizen.

15 Effect of cancellation of visa on status

To avoid doubt, subject to subsection 13(2) (certain inhabitants of protected zone), if a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non-citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect.

16 Removal of immigration rights of inhabitant of Protected Zone

The Minister may declare, in writing, that it is undesirable that a specified inhabitant of the Protected Zone continue to be permitted to enter or remain in Australia.

Control of arrival and presence of non-citizens Part 2

Immigration status Division 1

Section 17


17 Pre-cleared flights

(1) 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 this Act.

(2) The Minister may declare, in writing, a specified class of flights conducted by a specified air transport enterprise or by another specified person to be pre-cleared flights for the purposes of this Act.

(3) A particular flight to which a declaration under subsection (1) or (2) applies is not a pre-cleared flight if an authorised officer decides, before the passengers on it disembark in Australia, that it is inappropriate to treat it as such.

Part 2 Control of arrival and presence of non-citizens Division 2 Power to obtain information and documents about unlawful non-citizens Section 18


Division 2—Power to obtain information and documents about unlawful non-citizens

18 Power to obtain information and documents about unlawful non-citizens

(1) If the Minister has reason to believe that a person (in this subsection called the first person) is capable of giving information which the Minister has reason to believe is, or producing documents (including documents that are copies of other documents) which the Minister has reason to believe are, relevant to ascertaining the identity or whereabouts of another person whom the Minister has reason to believe is an unlawful non-citizen, the Minister may, by notice in writing served on the first person, require the first person:

(a) to give to the Minister, within the period and in the manner specified in the notice, any such information; or

(b) to produce to the Minister, within the period and in the manner specified in the notice, any such documents; or

(c) to make copies of any such documents and to produce to the Minister, within the period and in the manner specified in the notice, those copies.

(2) A notice under subsection (1) must set out the effects of section 21 of this Act and sections 137.1 and 137.2 of the Criminal Code.

19 Scales of expenses

The regulations may prescribe scales of expenses to be allowed to persons required to give information or produce documents under this Division.

20 Reasonable compensation

A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a requirement covered by paragraph 18(1)(c).


Power to obtain information and documents about unlawful non-citizens Division 2

Section 21


21 Failure to comply with section 18 notice

(1) A person must not refuse or fail to comply with a notice under subsection 18(1).

(1A) Subsection (1) does not apply: (a) to the extent that the person is not capable of complying with

the notice; or (b) if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matters in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

(2) The following are 2 of the reasonable excuses for refusing or failing to comply with a notice:

(a) the person whom the Minister had reason to believe was an unlawful non-citizen was not an unlawful non-citizen at the time the notice was given;

(b) the information or documents which the Minister had reason to believe were relevant to ascertaining the identity or whereabouts of a person were not relevant to ascertaining the identity or whereabouts of the person.

(3) An offence against subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

Penalty: Imprisonment for 6 months.

24 Information and documents that incriminate a person

A person is not excused from giving information or producing a document or a copy of a document under this Division on the ground that the information or the production of the document or copy might tend to incriminate the person, but:

(a) giving the information or producing the document or copy; or (b) any information, document or thing obtained as a direct or

indirect consequence of giving the information or producing the document or copy;

is not admissible in evidence against the person in any criminal proceedings other than a prosecution for:

(c) an offence against, or arising out of, this Division; or (d) an offence against section 137.1 or 137.2 of the Criminal

Code that relates to this Division.

Part 2 Control of arrival and presence of non-citizens Division 2 Power to obtain information and documents about unlawful non-citizens Section 25


25 Copies of documents

(1) The Minister may inspect a document or copy produced under this Division and may make and retain copies of, or take and retain extracts from, such a document or copy.

(2) The Minister may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 18(1)(c).

26 Minister may retain documents

(1) The Minister may, for the purposes of this Act, take, and retain for as long as is necessary for those purposes, possession of a document produced under this Division.

(2) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Minister to be a true copy.

(3) The certified copy must be received in all courts and tribunals as evidence as if it were the original.

(4) Until a certified copy is supplied, the Minister must, at such times and places as the Minister thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document.

27 Division binds the Crown

(1) This Division binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.

(2) Nothing in this Division permits the Crown in right of the Commonwealth, of a State, of the Australian Capital Territory or of the Northern Territory to be prosecuted for an offence.


Visas for non-citizens Division 3

Section 28


Division 3—Visas for non-citizens

Subdivision A—General provisions about visas

28 Interpretation

In this Division:

specified period includes the period until a specified date.

29 Visas

(1) Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:

(a) travel to and enter Australia; (b) remain in Australia.

Note: A maritime crew visa is generally permission to travel to and enter Australia only by sea (as well as being permission to remain in Australia) (see section 38B).

(2) Without limiting subsection (1), a visa to travel to, enter and remain in Australia may be one to:

(a) travel to and enter Australia during a prescribed or specified period; and

(b) if, and only if, the holder travels to and enters during that period, remain in Australia during a prescribed or specified period or indefinitely.

(3) Without limiting subsection (1), a visa to travel to, enter and remain in Australia may be one to:

(a) travel to and enter Australia during a prescribed or specified period; and

(b) if, and only if, the holder travels to and enters during that period:

(i) remain in it during a prescribed or specified period or indefinitely; and

(ii) if the holder leaves Australia during a prescribed or specified period, travel to and re-enter it during a prescribed or specified period.

Part 2 Control of arrival and presence of non-citizens Division 3 Visas for non-citizens Section 30


(4) Without limiting section 83 (person taken to be included in visa), the regulations may provide for a visa being held by 2 or more persons.

30 Kinds of visas

(1) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.

(2) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain:

(a) during a specified period; or (b) until a specified event happens; or (c) while the holder has a specified status.

31 Classes of visas

(1) There are to be prescribed classes of visas.

(2) As well as the prescribed classes, there are the classes provided for by sections 32, 33, 34, 35, 36, 37, 37A, 38 and 38B.

(3) The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37, 37A or 38B but not by section 33, 34, 35 or 38).

(4) The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.

(5) A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class.

32 Special category visas

(1) There is a class of temporary visas to be known as special category visas.



Section 33


(2) A criterion for a special category visa is that the Minister is satisfied the applicant is:

(a) a non-citizen: (i) who is a New Zealand citizen and holds, and has

presented to an officer or an authorised system, a New Zealand passport that is in force; and

(ii) is neither a behaviour concern non-citizen nor a health concern non-citizen; or

(b) a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or

(c) a person in a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.

(3) A person may comply with subparagraph (2)(a)(i) by presenting a New Zealand passport to an authorised system only if:

(a) the New Zealand passport is of a kind determined under section 175A to be an eligible passport for the purposes of Division 5 of Part 2; and

(c) before the person is granted a special category visa, neither the system nor an officer requires the person to present the passport to an officer.

33 Special purpose visas

(1) There is a class of temporary visas to travel to, enter and remain in Australia, to be known as special purpose visas.

(2) Subject to subsection (3), a non-citizen is taken to have been granted a special purpose visa if:

(a) the non-citizen: (i) has a prescribed status; or (ii) is a member of a class of persons that has a prescribed

status; or (b) the Minister declares, in writing, that: (i) the non-citizen is taken to have been granted a special

purpose visa; or (ii) persons of a class, of which the non-citizen is a member,

are taken to have been granted special purpose visas.



(3) A non-citizen is not taken to have been granted a special purpose visa if a declaration under subsection (9) is in force in relation to the non-citizen or a class of persons of which the non-citizen is a member.

(4) A special purpose visa granted under subsection (2) is granted at the beginning of the later or latest of the following days:

(a) if paragraph (2)(a) applies: (i) the day the non-citizen commences to have the

prescribed status; (ii) the day the class of persons, of which the non-citizen is

a member, commences to have the prescribed status; (iii) the day the non-citizen commences to be a member of

the class of persons that has a prescribed status; (b) if paragraph (2)(b) applies: (i) the day the declaration is made; (ii) if a day is specified in the declaration as the day the visa

comes into effect—that day; (iii) the day the non-citizen commences to be a member of

the class of persons specified in the declaration.

(5) A special purpose visa ceases to be in effect at the end of the earlier or earliest of the following days:

(a) if paragraph (2)(a) applies: (i) if the non-citizen ceases to have a prescribed status—the

day the non-citizen so ceases; (ii) if the non-citizen ceases to be a member of a class of

persons that has a prescribed status—the day the non-citizen so ceases;

(iii) if the Minister makes a declaration under subsection (9) in relation to the non-citizen, or a class of persons of which the non-citizen is a member—the time when that declaration takes effect;

(b) if paragraph (2)(b) applies: (i) if a day is specified in the declaration as the day the visa

ceases to be in effect—that day; (ii) if an event is specified in the declaration as the event

that causes the visa to cease to be in effect—the day the event happens;



Section 33


(iii) if the non-citizen ceases to be a member of a class of persons specified in the declaration—the day the non-citizen so ceases;

(iv) if the declaration is revoked—the day of the revocation; (v) if the Minister makes a declaration under subsection (9)

in relation to the non-citizen, or a class of persons of which the non-citizen is a member—the time when that declaration takes effect.

(5A) For the purposes of subsection (5), the time when a declaration made by the Minister under subsection (9) takes effect is:

(a) if the Minister specifies a time in the declaration (which must be after the time when the declaration is made) as the time the declaration takes effect—the time so specified; or

(b) if the Minister does not specify such a time in the declaration—the end of the day on which the declaration is made.

(6) If the Minister makes a declaration under paragraph (2)(b), he or she is to cause to be laid before each House of the Parliament a statement that:

(a) sets out the contents of the declaration; and (b) sets out the Minister’s reasons for the declaration.

(7) A statement under subsection (6) is not to include: (a) the name of the non-citizen; or (b) if 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.

(8) A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after:

(a) if the declaration is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

(b) if the declaration is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

(9) The Minister may make a written declaration, for the purposes of this section, that it is undesirable that a person, or any persons in a class of persons, travel to and enter Australia or remain in Australia.



(10) Section 43 and Subdivisions AA, AB, AC (other than section 68), AE, AG, AH, C, D, E, F and H do not apply in relation to special purpose visas.

34 Absorbed person visas

(1) There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as absorbed person visas.

(2) A non-citizen in the migration zone who: (a) on 2 April 1984 was in Australia; and (b) before that date, had ceased to be an immigrant; and (c) on or after that date, has not left Australia, where left

Australia has the meaning it had in this Act before 1 September 1994; and

(d) immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied;

is taken to have been granted an absorbed person visa on 1 September 1994.

(3) Subdivisions AA, AB, AC (other than section 68), AE and AH do not apply in relation to absorbed person visas.

35 Ex-citizen visas

(1) There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as ex-citizen visas.

(2) A person who: (a) before 1 September 1994, ceased to be an Australian citizen

while in the migration zone; and (b) did not leave Australia after ceasing to be a citizen and

before that date; is taken to have been granted an ex-citizen visa on that date.

(3) A person who, on or after 1 September 1994, ceases to be an Australian citizen while in the migration zone is taken to have been granted an ex-citizen visa when that citizenship ceases.

(4) Subdivisions AA, AB, AC (other than section 68), AE and AH do not apply in relation to ex-citizen visas.



Section 36


36 Protection visas

(1) There is a class of visas to be known as protection visas. Note: See also Subdivision AL.

(2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied

Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:

(i) is mentioned in paragraph (a); and (ii) holds a protection visa.

Protection obligations

(3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

(4) However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.

(5) Also, if the non-citizen has a well-founded fear that: (a) a country will return the non-citizen to another country; and (b) the non-citizen will be persecuted in that other country for

reasons of race, religion, nationality, membership of a particular social group or political opinion;

subsection (3) does not apply in relation to the first-mentioned country.

Determining nationality

(6) For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.



(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.

37 Bridging visas

There are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF.

37A Temporary safe haven visas

(1) There is a class of temporary visas to travel to, enter and remain in Australia, to be known as temporary safe haven visas. Note: A temporary safe haven visa is granted to a person to give the person

temporary safe haven in Australia.

(2) The Minister may, by notice in the Gazette, extend the visa period of a temporary safe haven visa so that the visa ceases to be in effect on the day specified in the notice.

(3) The Minister may, by notice in the Gazette, shorten the visa period of a temporary safe haven visa so that the visa ceases to be in effect on the day specified in the notice if, in the Minister’s opinion, temporary safe haven in Australia is no longer necessary for the holder of the visa because of changes of a fundamental, durable and stable nature in the country concerned.

(4) If a notice under subsection (3) is published in the Gazette, the Minister must cause a copy of the notice to be laid before each House of the Parliament within 3 sitting days of that House after the publication of the notice, together with a statement that sets out the reasons for the notice, referring in particular to the Minister’s reasons for thinking that changes of a fundamental, durable and stable nature have occurred in the country concerned.

(5) If a notice under subsection (2) or (3) is published in the Gazette and has not been revoked, then the visa ceases to be in effect on the day specified in the notice, despite any other provision of this Act.

(6) The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.



Section 38



country concerned means the country or countries in which the circumstances exist that give rise to the grant of temporary safe haven visas.

38 Criminal justice visas

There is a class of temporary visas, to be known as criminal justice visas, to be granted under Subdivision D of Division 4.

38A Enforcement visas

There is a class of temporary visas to travel to, enter and remain in Australia, to be known as enforcement visas. Note: Division 4A deals with these visas.

38B Maritime crew visas

(1) There is a class of temporary visas to travel to and enter Australia by sea, and to remain in Australia, to be known as maritime crew visas.

(2) Subject to subsection 43(1B), a maritime crew visa held by a non-citizen does not grant the non-citizen permission to travel to or enter Australia by air. Note: However, a non-citizen might also hold another class of visa that

allows the non-citizen to travel to and enter Australia by air.

(3) The Minister may make a written declaration, for the purposes of this section, that it is undesirable that a person, or any persons in a class of persons, travel to and enter Australia, or remain in Australia.

(4) If the Minister makes a declaration under subsection (3) in relation to a person, or a class of persons of which a person is a member, a maritime crew visa held by that person ceases to be in effect:

(a) if the Minister specifies a time in the declaration (which must be after the time when the declaration is made) as the time the declaration takes effect—at the time so specified; or

(b) if the Minister does not specify such a time in the declaration—at the end of the day on which the declaration is made.



Note: A maritime crew visa can also cease to be in effect under other sections (see for example section 82).

(5) If the Minister revokes a declaration made under subsection (4), the Minister is taken never to have made the declaration. Note: Under subsection 33(3) of the Acts Interpretation Act 1901, the

Minister may revoke a declaration made under subsection (4).

(6) Despite subsection (5), any detention of the non-citizen that occurred during any part of the period:

(a) beginning when the Minister made the declaration; and (b) ending at the time of the revocation of the declaration;

is lawful and the non-citizen is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

39 Criterion limiting number of visas

(1) In spite of section 14 of the Legislative Instruments Act 2003, a prescribed criterion for visas of a class, other than protection visas, may be the criterion that the grant of the visa would not cause the number of visas of that class granted in a particular financial year to exceed whatever number is fixed by the Minister, by legislative instrument, as the maximum number of such visas that may be granted in that year (however the criterion is expressed).

(2) For the purposes of this Act, when a criterion allowed by subsection (1) prevents the grant in a financial year of any more visas of a particular class, any outstanding applications for the grant in that year of visas of that class are taken not to have been made.

40 Circumstances for granting visas

(1) The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.

(2) Without limiting subsection (1), the circumstances may be, or may include, that, when the person is granted the visa, the person:

(a) is outside Australia; or (b) is in immigration clearance; or (c) has been refused immigration clearance and has not

subsequently been immigration cleared; or



Section 40


(d) is in the migration zone and, on last entering Australia: (i) was immigration cleared; or (ii) bypassed immigration clearance and had not

subsequently been immigration cleared.

(3) Without limiting subsection (1), if: (a) prescribed circumstances exist; and (b) the Minister has not waived the operation of this subsection

in relation to granting the visa to the person; the circumstances under subsection (1) may be, or may include, that the person has complied with any requirement of an officer to provide one or more personal identifiers in relation to the application for the visa.

(3A) An officer must not require, for the purposes of subsection (3), a person to provide a personal identifier other than:

(a) if the person is an applicant for a protection visa—any of the following (including any of the following in digital form):

(i) fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);

(ii) a photograph or other image of the person’s face and shoulders;

(iii) an audio or a video recording of the person; (iv) an iris scan; (v) the person’s signature; (vi) any other personal identifier contained in the person’s

passport or other travel document; (vii) any other personal identifier of a type prescribed for the

purposes of paragraph (3C)(a); or (b) if the person is an applicant for a temporary safe haven visa

within the meaning of section 37A, or any other visa of a class that the regulations designate as a class of humanitarian visas—any of the following (including any of the following in digital form):





(iii) an iris scan; (iv) the person’s signature; (v) any other personal identifier contained in the person’s

passport or other travel document; (vi) any other personal identifier of a type prescribed for the

purposes of paragraph (3C)(a); or (c) if paragraphs (a) and (b) do not apply—any of the following

(including any of the following in digital form): (i) a photograph or other image of the person’s face and

shoulders; (ii) the person’s signature; (iii) any other personal identifier contained in the person’s

passport or other travel document; (iv) any other personal identifier of a type prescribed for the

purposes of paragraph (3C)(a). Note: Division 13AB sets out further restrictions on the personal identifiers

that minors and incapable persons can be required to provide.

(3B) In requiring, for the purposes of subsection (3), a person to provide a personal identifier, an officer must not contravene regulations made for the purposes of paragraph (3C)(b).

(3C) The regulations: (a) may prescribe other types of personal identifiers; and (b) may provide that a particular personal identifier referred to in

subsection (3A), or a particular combination of such personal identifiers, must not be required except in the circumstances prescribed for the purposes of this paragraph.

(4) A person is taken not to have complied with a requirement referred to in subsection (3) unless the one or more personal identifiers are provided to an authorised officer by way of one or more identification tests carried out by an authorised officer. Note: If the types of identification tests that the authorised officer may carry

out are specified under section 5D, then each identification test must be of a type so specified.

(5) However, subsection (4) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the person:

(a) provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and



Section 41


(b) complies with any further requirements that are prescribed relating to the provision of the personal identifier.

41 Conditions on visas

(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

(2) Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:

(a) a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia; or

(b) a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:

(i) any work; or (ii) work other than specified work; or (iii) work of a specified kind.

(2A) The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).

(3) In addition to any conditions specified under subsection (1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection.

42 Visa essential for travel

(1) Subject to subsections (2), (2A) and (3), a non-citizen must not travel to Australia without a visa that is in effect. Note: A maritime crew visa is generally permission to travel to Australia

only by sea (see section 38B).

(2) Subsection (1) does not apply to an allowed inhabitant of the Protected Zone travelling to a protected area in connection with traditional activities.



(2A) Subsection (1) does not apply to a non-citizen in relation to travel to Australia:

(a) if the travel is by a New Zealand citizen who holds and produces a New Zealand passport that is in force; or

(b) if the travel is by a non-citizen who holds and produces a passport that is in force and is endorsed with an authority to reside indefinitely on Norfolk Island; or

(c) if: (i) the non-citizen is brought to the migration zone under

subsection 245F(9) of this Act or 185(3A) of the Customs Act 1901; and

(ii) the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen; or

(ca) the non-citizen is brought to Australia under section 198B; or (d) if: (i) the non-citizen has been removed under section 198 to

another country but has been refused entry by that country; and

(ii) the non-citizen travels to Australia as a direct result of that refusal; and

(iii) the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen; or

(e) if: (i) the non-citizen has been removed under section 198;

and (ii) before the removal the High Court, the Federal Court or

the Federal Magistrates Court had made an order in relation to the non-citizen, or the Minister had given an undertaking to the High Court, the Federal Court or the Federal Magistrates Court in relation to the non-citizen; and

(iii) the non-citizen’s travel to Australia is required in order to give effect to the order or undertaking; and

(iv) the Minister has made a declaration that this paragraph is to apply in relation to the non-citizen’s travel; and

(v) the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen; or

(f) if: (i) the travel is from Norfolk Island to Australia; and



Section 43


(ii) the Minister has made a declaration that this paragraph is to apply in relation to the non-citizen’s travel; and

(iii) the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen.

(3) The regulations may permit a specified non-citizen or a non-citizen in a specified class to travel to Australia without a visa that is in effect.

(4) Nothing in subsection (2A) or (3) is to be taken to affect the non-citizen’s status in the migration zone as an unlawful non-citizen. Note: Section 189 provides that an unlawful non-citizen in the migration

zone must be detained.

43 Visa holders must usually enter at a port

(1) Subject to subsections (1A) and (3) and the regulations, a visa to travel to and enter Australia that is in effect is permission for the holder to enter Australia:

(a) at a port; or (b) on a pre-cleared flight; or (c) if the holder travels to Australia on a vessel and the health or

safety of a person or a prescribed reason, make it necessary to enter in another way, that way; or

(d) in a way authorised in writing by an authorised officer.

(1A) Subject to the regulations, a maritime crew visa that is in effect is permission for the holder to enter Australia:

(a) at a proclaimed port; or (b) if the health or safety of a person, or a prescribed reason,

make it necessary to enter Australia in another way, that way; or

(c) in a way authorised by an authorised officer.

(1B) Despite subsections 38B(1) and (2): (a) the holder of a maritime crew visa may enter Australia as

mentioned in paragraph (1A)(b) by air; and (b) the authorised officer may, for the purposes of

paragraph (1A)(c), authorise the holder to enter Australia by air.



(2) For the purposes of subsection (1), a holder who travels to and enters Australia on an aircraft is taken to have entered Australia when that aircraft lands.

(3) This section does not apply to: (a) the holder of an enforcement visa; or (b) an Australian resident entering Australia on a foreign boat as

a result of a fisheries officer: (i) making a requirement of the boat’s master under

subparagraph 84(1)(k)(ii) or paragraph 84(1)(l) of the Fisheries Management Act 1991 or paragraph 42(1)(g) of the Torres Strait Fisheries Act 1984; or

(ii) exercising his or her power under paragraph 84(1)(m) of the Fisheries Management Act 1991 or paragraph 42(1)(h) of the Torres Strait Fisheries Act 1984 in relation to the boat;

because a fisheries officer had reasonable grounds to believe that the boat was used, or was intended to be used, in the commission of a fisheries detention offence; or

(c) an Australian resident entering Australia on a vessel (environment matters) as a result of an environment officer, or the person in command of a Commonwealth ship or a Commonwealth aircraft:

(i) exercising his or her power under paragraph 403(3)(a) of the Environment Protection and Biodiversity Conservation Act 1999 in relation to the vessel; or

(ii) making a requirement of the person in charge of the vessel under paragraph 403(3)(b) of the Environment Protection and Biodiversity Conservation Act 1999;

because the environment officer, or person in command, had reasonable grounds to suspect that the vessel had been used or otherwise involved in the commission of an environment detention offence.

Note: Subsection 33(10) also disapplies this section.

(4) In subsection (3):

Australian resident has the same meaning as in the Fisheries Management Act 1991.



Section 44


Commonwealth aircraft has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.

Commonwealth ship has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.

master has the same meaning as in the Fisheries Management Act 1991.

(5) The references in subsection (3) to subparagraph 84(1)(k)(ii) and paragraphs 84(1)(l) and (m) of the Fisheries Management Act 1991 are to those provisions:

(a) as they apply of their own force; and (b) as they apply because of section 87, 87B, 87C or 87D of that

Act.

Subdivision AA—Applications for visas

44 Extent of following Subdivisions

(1) This Subdivision and the later Subdivisions of this Division, other than this section, Subdivision AG and subsection 138(1), do not apply to criminal justice visas.

(2) This Subdivision and the later Subdivisions of this Division, other than this section and Subdivision AG, do not apply to enforcement visas.

45 Application for visa

(1) Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class.

45A Visa application charge

A non-citizen who makes an application for a visa is liable to pay visa application charge if, assuming the charge were paid, the application would be a valid visa application.

Part 2 Control of arrival and presence of non-citizens Division 3 Visas for non-citizens Section 45B


45B Amount of visa application charge

(1) The amount of visa application charge is the amount, not exceeding the visa application charge limit, prescribed in relation to the application. Note: The visa application charge limit is determined under the Migration

(Visa Application) Charge Act 1997.

(2) The amount prescribed in relation to an application may be nil.

(3) The Minister must publish the Contributory Parent Visa Composite Index (within the meaning of the Migration (Visa Application) Charge Act 1997) for a financial year in the Gazette before the start of the financial year. Note: The Contributory Parent Visa Composite Index affects the visa

application charge limit in relation to contributory parent visas (within the meaning of the Migration (Visa Application) Charge Act 1997).

(4) If the Contributory Parent Visa Composite Index for a financial year is not published as required by subsection (3), it is not to be taken, merely because of that fact, to be invalid or to be a figure other than that published by the Australian Government Actuary for the financial year.

45C Regulations about visa application charge

(1) The regulations may: (a) provide that visa application charge may be payable in

instalments; and (b) specify how those instalments are to be calculated; and (c) specify when instalments are payable.

(2) The regulations may also: (a) make provision for and in relation to: (i) the recovery of visa application charge in relation to

visa applications; or (ii) the way, including the currency, in which visa

application charge is to be paid; or (iii) working out how much visa application charge is to be

paid; or (iv) the time when visa application charge is to be paid; or



Section 46


(v) the persons who may be paid visa application charge on behalf of the Commonwealth; or

(b) make provision for the remission, refund or waiver of visa application charge or an amount of visa application charge; or

(c) make provision for exempting persons from the payment of visa application charge or an amount of visa application charge; or

(d) make provision for crediting visa application charge, or an amount of visa application charge, paid in respect of one application against visa application charge payable in respect of another application.

46 Valid visa application

(1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

(a) it is for a visa of a class specified in the application; and (b) it satisfies the criteria and requirements prescribed under this

section; and (ba) subject to the regulations providing otherwise, any visa

application charge that the regulations require to be paid at the time when the application is made, has been paid; and

(c) any fees payable in respect of it under the regulations have been paid; and

(d) it is not prevented by section 48 (visa refused or cancelled earlier), 48A (protection visa), 91E (CPA and safe third countries), 91K (temporary safe haven visa), 91P (non-citizens with access to protection from third countries), 161 (criminal justice), 164D (enforcement visa), 195 (detainees) or 501E (visa refused or cancelled on character grounds).

(1A) Subject to subsection (2), an application for a visa is invalid if: (a) the applicant is in the migration zone; and (b) since last entering Australia, the applicant has held a visa

subject to a condition described in paragraph 41(2)(a); and (c) the Minister has not waived that condition under subsection

41(2A); and



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

(2) Subject to subsection (2A), an application for a visa is valid if: (a) it is an application for a visa of a class prescribed for the

purposes of this subsection; and (b) under the regulations, the application is taken to have been

validly made.

(2A) An application for a visa is invalid if: (a) prescribed circumstances exist; and (aa) the Minister has not waived the operation of this subsection

in relation to the application for the visa; and (ab) the applicant has been required by an officer to provide one

or more personal identifiers in relation to the application; and (b) the applicant has not complied with the requirement.

Note: An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3).

(2AA) An officer must not require, for the purposes of paragraph (2A)(ab), a person to provide a personal identifier other than:

(a) if the person is an applicant for a protection visa—any of the following (including any of the following in digital form):



(iii) an audio or a video recording of the person; (iv) an iris scan; (v) the person’s signature; (vi) any other personal identifier contained in the person’s

passport or other travel document; (vii) any other personal identifier of a type prescribed for the

purposes of paragraph (2AC)(a); or (b) if the person is an applicant for a temporary safe haven visa

within the meaning of section 37A, or any other visa of a class that the regulations designate as a class of humanitarian



Section 46


visas—any of the following (including any of the following in digital form):



(iii) an iris scan; (iv) the person’s signature; (v) any other personal identifier contained in the person’s

passport or other travel document; (vi) any other personal identifier of a type prescribed for the

purposes of paragraph (2AC)(a); or (c) if paragraphs (a) and (b) do not apply—any of the following

(including any of the following in digital form): (i) a photograph or other image of the person’s face and

shoulders; (ii) the person’s signature; (iii) any other personal identifier contained in the person’s

passport or other travel document; (iv) any other personal identifier of a type prescribed for the

purposes of paragraph (2AC)(a). Note: Division 13AB sets out further restrictions on the personal identifiers


(2AB) In requiring, for the purposes of paragraph (2A)(ab), a person to provide a personal identifier, an officer must not contravene regulations made for the purposes of paragraph (2AC)(b).

(2AC) The regulations: (a) may prescribe other types of personal identifiers; and (b) may provide that a particular personal identifier referred to in

subsection (2AA), or a particular combination of such personal identifiers, must not be required except in the circumstances prescribed for the purposes of this paragraph.

(2B) The applicant is taken not to have complied with a requirement referred to in paragraph (2A)(ab) unless the one or more personal identifiers are provided by way of one or more identification tests carried out by an authorised officer.

Part 2 Control of arrival and presence of non-citizens Division 3 Visas for non-citizens Section 46A


Note: If the types of identification tests that the authorised officer may carry out are specified under section 5D, then each identification test must be of a type so specified.

(2C) However, subsection (2B) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the applicant:



(3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.

(4) Without limiting subsection (3), the regulations may also prescribe: (a) the circumstances that must exist for an application for a visa

of a specified class to be a valid application; and (b) how an application for a visa of a specified class must be

made; and (c) where an application for a visa of a specified class must be

made; and (d) where an applicant must be when an application for a visa of

a specified class is made.

46A Visa applications by offshore entry persons

(1) An application for a visa is not a valid application if it is made by an offshore entry person who:

(a) is in Australia; and (b) is an unlawful non-citizen.

(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.

(3) The power under subsection (2) may only be exercised by the Minister personally.

(4) If the Minister makes a determination under subsection (2), the Minister must cause to be laid before each House of the Parliament a statement that:



Section 46B


(a) sets out the determination; and (b) sets out the reasons for the determination, referring in

particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.

(5) A statement under subsection (4) must not include: (a) the name of the offshore entry person; or (b) any information that may identify the offshore entry person;

or (c) if 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 or any information that may identify that other person.

(6) A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:

(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

(7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.

46B Visa applications by transitory persons

(1) An application for a visa is not a valid application if it is made by a transitory person who:

(a) is in Australia; and (b) is an unlawful non-citizen.

(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a transitory person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.




(4) If the Minister makes a determination under subsection (2), the Minister must cause to be laid before each House of the Parliament a statement that:


particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.

(5) A statement under subsection (4) must not include: (a) the name of the transitory person; or (b) any information that may identify the transitory person; or (c) if the Minister thinks that it would not be in the public


(6) A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:



(7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any transitory person whether the Minister is requested to do so by the transitory person or by any other person, or in any other circumstances.

47 Consideration of valid visa application

(1) The Minister is to consider a valid application for a visa.

(2) The requirement to consider an application for a visa continues until:

(a) the application is withdrawn; or (b) the Minister grants or refuses to grant the visa; or (c) the further consideration is prevented by section 39 (limiting

number of visas) or 84 (suspension of consideration).

(3) To avoid doubt, the Minister is not to consider an application that is not a valid application.



Section 48


(4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.

48 Non-citizen refused a visa or whose visa cancelled may only apply for particular visas

(1) A non-citizen in the migration zone who: (a) does not hold a substantive visa; and (b) either: (i) after last entering Australia, was refused a visa, other

than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or

(ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.

(2) For the purposes of this section, a non-citizen who: (a) has been removed from the migration zone under

section 198; and (b) is again in the migration zone as a result of travel to Australia

that is covered by paragraph 42(2A)(d) or (e); is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a). Note: Paragraphs 42(2A)(d) and (e) cover limited situations where people

are returned to Australia despite their removal under section 198.

48A Non-citizen refused a protection visa may not make further application for protection visa

(1) Subject to section 48B, a non-citizen who, while in the migration zone, has made:

(a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or



(b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);

may not make a further application for a protection visa while in the migration zone.

(1A) For the purposes of this section, a non-citizen who: (a) has been removed from the migration zone under

section 198; and (b) is again in the migration zone as a result of travel to Australia

that is covered by paragraph 42(2A)(d) or (e); is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a). Note: Paragraphs 42(2A)(d) and (e) cover limited situations where people

are returned to Australia despite their removal under section 198.

(1B) Subject to section 48B, a non-citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone.


application for a protection visa includes: (aa) an application for a visa, a criterion for which is that the

applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and

(ab) an application for a visa, a criterion for which is that the applicant is a non-citizen in Australia who is the spouse or a dependant of a non-citizen in Australia:

(i) to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and

(ii) who holds a protection visa; and (a) an application for a visa, or entry permit (within the meaning

of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; and



Section 48B


(b) an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and

(c) an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.

48B Minister may determine that section 48A does not apply to non-citizen

(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.


(3) If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:


particular to the Minister’s reasons for thinking that his or her actions are in the public interest.

(4) A statement under subsection (3) is not to include: (a) the name of the non-citizen; or (b) any information that may identify the non-citizen; or (c) if the Minister thinks that it would not be in the public


(5) A statement under subsection (3) is to laid before each House of the Parliament within 15 sitting days of that House after:






49 Withdrawal of visa application

(1) An applicant for a visa may, by written notice given to the Minister, withdraw the application.

(2) An application that is withdrawn is taken to have been disposed of.

(3) For the purposes of sections 48 and 48A, the Minister is not taken to have refused to grant the visa if the application is withdrawn before the refusal.

(4) Subject to the regulations, fees payable in respect of an application that is withdrawn are not refundable.

50 Only new information to be considered in later protection visa applications

If a non-citizen who has made: (a) an application for a protection visa, where the grant of the

visa has been refused and the application has been finally determined; or

(b) applications for protection visas, where the grants of the visas have been refused and the applications have been finally determined;

makes a further application for a protection visa, the Minister, in considering the further application:

(c) is not required to reconsider any information considered in the earlier application or an earlier application; and

(d) may have regard to, and take to be correct, any decision that the Minister made about or because of that information.

Note: Section 48A prevents repeat applications for protection visas in most circumstances where the applicant is in the migration zone.

51 Order of consideration

(1) The Minister may consider and dispose of applications for visas in such order as he or she considers appropriate.



Section 51A


(2) The fact that an application has not yet been considered or disposed of although an application that was made later has been considered or disposed of does not mean that the consideration or disposal of the earlier application is unreasonably delayed.

Subdivision AB—Code of procedure for dealing fairly, efficiently and quickly with visa applications

51A Exhaustive statement of natural justice hearing rule

(1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2) Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

52 Communication with Minister

(1) A visa applicant or interested person must communicate with the Minister in the prescribed way.

(2) The regulations may prescribe different ways of communicating and specify the circumstances when communication is to be in a particular way. For this purpose, a way of communicating includes any associated process for authenticating identity.

(3) If the applicant or interested person purports to communicate anything to the Minister in a way that is not the prescribed way, the communication is taken not to have been received unless the Minister in fact receives it.

(3A) A visa applicant must tell the Minister the address at which the applicant intends to live while the application is being dealt with.

(3B) If the applicant proposes to change the address at which he or she intends to live for a period of 14 days or more, the applicant must tell the Minister the address and the period of proposed residence.

(3C) If, in accordance with the regulations, 2 or more non-citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them.



Note 1: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.

Note 2: Section 494D deals with giving documents to a person’s authorised recipient.

(4) In this section, interested person means a person who wants, or who is requested, to give information about the applicant to the Minister.

54 Minister must have regard to all information in application

(1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.

(2) For the purposes of subsection (1), information is in an application if the information is:

(a) set out in the application; or (b) in a document attached to the application when it is made; or (c) given under section 55.

(3) Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.

55 Further information may be given

(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.

(2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.

56 Further information may be sought

(1) In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.



Section 57


(2) Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.

57 Certain information must be given to applicant

(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for refusing to grant a visa; and

(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and

(c) was not given by the applicant for the purpose of the application.

(2) Subject to subsection (3), the Minister must: (a) give particulars of the relevant information to the applicant in

the way that the Minister considers appropriate in the circumstances; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

(c) invite the applicant to comment on it.

(3) This section does not apply in relation to an application for a visa unless:

(a) the visa can be granted when the applicant is in the migration zone; and

(b) this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.

58 Invitation to give further information or comments

(1) If a person is: (a) invited under section 56 to give additional information; or (b) invited under section 57 to comment on information;

the invitation is to specify whether the additional information or the comments may be given:

(c) in writing; or (d) at an interview between the applicant and an officer; or



(e) by telephone.

(2) Subject to subsection (4), if the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

(3) Subject to subsection (5), if the invitation is to give information or comments at an interview, the interview is to take place:

(a) at a place specified in the invitation, being a prescribed place or if no place is prescribed, a reasonable place; and

(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.

(4) If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be made in the extended period.

(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to:

(a) a later time within that period; or (b) a time within that period as extended by the Minister for a

prescribed further period; and then the response is to be made at an interview at the new time.

59 Interviews

(1) An applicant must make every reasonable effort to be available for, and attend, an interview.

(2) Section 58 and this section do not mean that the Minister cannot obtain information from an applicant by telephone or in any other way.

60 Medical examination

(1) If the health or physical or mental condition of an applicant for a visa is relevant to the grant of a visa, the Minister may require the applicant to visit, and be examined by, a specified person, being a



Section 61


person qualified to determine the applicant’s health, physical condition or mental condition, at a specified reasonable time and specified reasonable place.

(2) An applicant must make every reasonable effort to be available for, and attend, an examination.

61 Prescribed periods

If this Subdivision requires or allows the regulations to prescribe a period or other time limit relating to a step in considering an application for a visa, the regulations may prescribe different limits relating to that step and specify when that specified limit is to apply, which, without limiting the generality of the power, may be to:

(a) applications for a visa of a specified class; or (b) applications in specified circumstances; or (c) applicants in a specified class of persons; or (d) applicants in a specified class of persons in specified

circumstances.

62 Failure to receive information not require action

(1) If an applicant for a visa: (a) is invited to give additional information; and (b) does not give the information before the time for giving it has

passed; the Minister may make a decision to grant or refuse to grant the visa without taking any action to obtain the additional information.

(2) If an applicant for a visa: (a) is invited to comment on information; and (b) does not give the comments before the time for giving them

has passed; the Minister may make a decision to grant or refuse to grant the visa without taking any further action to obtain the applicant’s views on the information.



63 When decision about visa may be made

(1) Subject to sections 39 (criterion limiting number of visas), 57 (give applicant information), 84 (no further processing), 86 (effect of limit on visas) and 94 (put aside under points system) and subsections (2) and (3) of this section, the Minister may grant or refuse to grant a visa at any time after the application has been made.

(2) The Minister is not to refuse to grant a visa after inviting the applicant to give information and before whichever of the following happens first:

(a) the information is given; (b) the applicant tells the Minister that the applicant does not

wish to give the information or does not have it; (c) the time in which the information may be given ends.

(3) The Minister is not to refuse to grant a visa after inviting the applicant to comment on information and before whichever of the following happens first:

(a) the comments are given; (b) the applicant tells the Minister that the applicant does not

wish to comment; (c) the time in which the comments are to be given ends.

(4) The Minister is not to refuse to grant a visa after giving a notice under section 64 and before whichever of the following happens first:

(a) the applicant pays the visa application charge; or (b) the applicant tells the Minister that the applicant does not

intend to pay the visa application charge; or (c) the end of the period set out in the notice.

64 Notice that visa application charge is payable

(1) This section applies to a valid application for a visa if the Minister, after considering the application, has made an assessment that:

(a) the health criteria for it (if any) have been satisfied; and (b) the other criteria for it, prescribed by this Act or the

regulations, have been satisfied.



Section 65


(2) If this section applies and an amount of visa application charge is unpaid, the Minister must give the applicant written notice stating that:

(a) an amount of visa application charge is payable within the prescribed period; and

(b) subject to the regulations providing otherwise, a visa cannot be granted unless that amount is paid; and

(c) the Minister may refuse to grant the visa unless that amount is paid within the prescribed period.

(3) If, in accordance with the regulations, 2 or more non-citizens apply for a visa together, the Minister may give notices under this section in the same document.

Subdivision AC—Grant of visas

65 Decision to grant or refuse to grant visa

(1) After considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the

regulations have been satisfied; and (iii) the grant of the visa is not prevented by section 40

(circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv) any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa.

Note: See also section 195A, under which the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister’s power under that section.

(2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).



65A Period within which Minister must make decision on protection visas

(1) If an application for a protection visa: (a) was validly made under section 46; or (b) was remitted by any court or tribunal to the Minister for

reconsideration; then the Minister must make a decision under section 65 within 90 days starting on:

(c) the day on which the application for the protection visa was made or remitted; or

(d) in the circumstances prescribed by the regulations—the day prescribed by the regulations.

(2) Failure to comply with this section does not affect the validity of a decision made under section 65 on an application for a protection visa.

66 Notification of decision

(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.

(2) Notification of a decision to refuse an application for a visa must: (a) if the grant of the visa was refused because the applicant did

not satisfy a criterion for the visa—specify that criterion; and (b) if the grant of the visa was refused because a provision of this

Act or the regulations prevented the grant of the visa—specify that provision; and

(c) unless subsection (3) applies to the application—give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and

(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:

(i) that the decision can be reviewed; and (ii) the time in which the application for review may be

made; and (iii) who can apply for the review; and (iv) where the application for review can be made.



Section 67


(3) This subsection applies to an application for a visa if: (a) the visa is a visa that cannot be granted while the applicant is

in the migration zone; and (b) this Act does not provide, under Part 5 or 7, for an

application for review of a decision to refuse to grant the visa.

(4) Failure to give notification of a decision does not affect the validity of the decision.

(5) This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person. Note: Sections 501C and 501G provide for notification of a decision under

section 501, 501A, 501B or 501F to refuse to grant a visa to a person.

67 Way visa granted

A visa is to be granted by the Minister causing a record of it to be made.

68 When visa is in effect

(1) Subject to subsection (2), a visa has effect as soon as it is granted.

(2) A visa may provide that it comes into effect at the beginning of a day, being a day after its grant:

(a) specified in the visa; or (b) when an event, specified in the visa, happens.

(3) A visa can only be in effect during the visa period for the visa.

(4) A bridging visa (the reactivated bridging visa), held by a non-citizen, that has ceased to be in effect under subsection 82(3), will come into effect again during the visa period for the visa if:

(a) the non-citizen does not hold a substantive visa that is in effect; and

(b) either: (i) the non-citizen does not hold any other bridging visa; or (ii) the reactivated bridging visa is determined, in

accordance with the regulations, to be the most beneficial of the bridging visas held by the applicant.



69 Effect of compliance or non-compliance

(1) Non-compliance by the Minister with Subdivision AA or AB or section 494D in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.

(2) If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it.

Subdivision AE—Evidence of visas

70 Evidence of visa

Subject to the regulations, if a non-citizen is granted a visa, an officer is to give the non-citizen evidence of the visa.

71 Ways of giving evidence

(1) Evidence of a visa is to be given in a way prescribed for giving the evidence.

(2) The regulations may provide that the way in which evidence of a visa or a visa of a class is to be given is to depend on the circumstances in which it is given.

(3) If a regulation provides that evidence of a non-citizen’s visa may be given by endorsing a valid passport or other valid travel document issued to the non-citizen or another non-citizen associated with him or her, the Minister may direct that a specified document is not to be taken to be a passport or travel document for the purposes of the regulation.

Subdivision AF—Bridging visas

72 Interpretation

(1) In this Subdivision:

eligible non-citizen means a non-citizen who: (a) has been immigration cleared; or



Section 72


(b) is in a prescribed class of persons; or (c) the Minister has determined to be an eligible non-citizen.

(2) The Minister may make a determination under paragraph (1)(c) that a non-citizen is an eligible non-citizen if:

(a) the non-citizen was an unlawful non-citizen when he or she entered the migration zone; and

(b) the non-citizen made a valid application for a protection visa after he or she arrived in Australia; and

(c) the non-citizen has been in immigration detention for a period of more than 6 months after the application for a protection visa was made; and

(d) the Minister has not made a primary decision in relation to the application for a protection visa; and

(e) the Minister thinks that the determination would be in the public interest.

(3) The power to make a determination under paragraph (1)(c) may only be exercised by the Minister personally.

(4) If the Minister makes a determination under paragraph (1)(c), he or she is to cause to be laid before each House of the Parliament a statement that:



(5) A statement made under subsection (4) is not to include: (a) the name of any non-citizen who is the subject of the

determination; or (b) any information that may identify the non-citizen; or (c) if 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, or any information that may identify the person.






(7) The Minister does not have a duty to consider whether to make a determination under paragraph (1)(c) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or any other person, or in any other circumstances.

73 Bridging visas

If the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia:

(a) during a specified period; or (b) until a specified event happens.

74 Further applications for bridging visa

(1) Subject to subsection (2), if: (a) an eligible non-citizen who is in immigration detention

makes an application for a bridging visa; and (b) the Minister refuses to grant the visa;

the eligible non-citizen may make a further application for a bridging visa.

(2) Unless the further application for a bridging visa is made in prescribed circumstances, the further application may be made not earlier than 30 days after:

(a) if the eligible non-citizen did not make an application for review of the decision to refuse to grant the visa—the refusal; or

(b) if the eligible non-citizen made an application for such review—the application is finally determined.

75 When eligible non-citizen in immigration detention granted visa

(1) If: (a) an eligible non-citizen who is in immigration detention

makes an application for a bridging visa of a prescribed class; and



Section 76


(b) the Minister does not make a decision, within the prescribed period, to grant or refuse to grant the bridging visa;

the non-citizen is taken to have been granted a bridging visa of the prescribed class on prescribed conditions (if any) at the end of that period.

(2) The period in subsection (1) may be extended in relation to a particular application by agreement between the applicant and the Minister.

76 Bridging visa not affect visa applications

(1) The fact that a non-citizen holds a bridging visa does not prevent or affect:

(a) an application by the non-citizen for a visa of another class; or

(b) the grant of such a visa.

(2) To avoid doubt, the holding by a non-citizen of a bridging visa is not to be taken to be, for the purposes of an application for a visa of another class, the holding of a visa.

Subdivision AG—Other provisions about visas

77 Visas held during visa period

To avoid doubt, for the purposes of this Act, a non-citizen holds a visa at all times during the visa period for the visa.

78 Children born in Australia

(1) If: (a) a child born in Australia is a non-citizen when born; and (b) at the time of the birth: (i) one of the child’s parents holds a visa (other than a

special purpose visa); and (ii) the other parent is, under section 83, included in that

visa or does not hold a visa (other than a special purpose visa);



the child is taken to have been granted, at the time of the birth, a visa of the same kind and class and on the same terms and conditions (if any) as that visa.

(2) If: (a) a child born in Australia is a non-citizen when born; and (b) at the time of the birth, each of the child’s parents holds a

visa (other than a special purpose visa); the child is taken to have been granted, at the time of the birth, visas of the same kind and class and on the same terms and conditions (if any) as each of those visas.

(3) Subdivisions AA, AB, AC (other than section 68), AE and AH do not apply in relation to visas granted under this section.

79 Effect on visa of leaving Australia

If the holder of a visa leaves Australia the holder may only re-enter Australia because of the visa if:

(a) the visa is permission for the re-entry; and (b) the visa is in effect on re-entry.

80 Certain persons taken not to leave Australia

A person is taken not to leave Australia if the person goes outside the migration zone on a vessel and:

(a) does not go (other than for transit purposes) to a foreign country; and

(b) remains a passenger, or a member of the crew, of that vessel while outside the migration zone; and

(c) is outside the migration zone for no longer than the prescribed period.

81 Extent of visa authority

(1) A visa to travel to Australia during a period is not permission to travel to it outside that period.

(2) A visa to enter Australia within a period is not permission to so enter outside that period.



Section 82


(3) A visa to remain in Australia during a period is not permission to so remain outside that period.

82 When visas cease to be in effect

(1) A visa that is cancelled ceases to be in effect on cancellation.

(2) A substantive visa held by a non-citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non-citizen comes into effect.

(2AA) Despite subsection (2): (a) a maritime crew visa held by a non-citizen does not cease to

be in effect if a substantive visa for the non-citizen that is of a class specified by the Minister, by legislative instrument, for the purposes of this subsection comes into effect; and

(b) a substantive visa held by a non-citizen that is of a class specified by the Minister, by legislative instrument, for the purposes of this subsection does not cease to be in effect if a maritime crew visa for the non-citizen comes into effect.

(2A) A temporary visa held by a non-citizen ceases to be in effect if an enforcement visa for the non-citizen comes into effect.

(3) A bridging visa held by a non-citizen ceases to be in effect if another visa (other than a special purpose visa or a maritime crew visa) for the non-citizen comes into effect.

(4) A visa ceases to be in effect when the holder leaves Australia because of a deportation order made under section 200.

(5) A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date unless the holder of the visa:

(a) has entered Australia in that period or on or before that date; and

(b) is in Australia at the end of that period or on that date.

(6) A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect if the holder leaves Australia after that period or date.



(7) A visa to remain in Australia (whether also a visa to travel to and enter Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date.

(8) A visa to remain in, but not re-enter, Australia that is granted to a non-citizen in Australia ceases to be in effect if the holder leaves Australia.

(9) This section does not affect the operation of other provisions of this Act under which a visa ceases to be in effect (such as sections 173 and 174).

(10) For the purposes of subsections (5), (6) and (7), particular date includes:

(a) the date an event, specified in the visa, happens; or (b) the date the holder ceases to have a status specified in the

visa or the regulations.

83 Certain persons taken to be included in spouse or parent’s visa

(1) Where: (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 evidence of which is endorsed on the passport or other document of identity if, and only if, the person’s name is included in the endorsement.

(2) Where: (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 evidence of which is endorsed on the passport or other document of identity if, and only if, the child’s name is included in the endorsement.



Section 84


84 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 act is to be done 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 or dependent child of:

(a) an Australian citizen; or (b) the holder of a permanent visa that is in effect; or (c) a person who is usually resident in Australia and whose

continued presence in Australia is not subject to a limitation as to time imposed by law.

(4) Nothing in this section prevents an act being done to implement a decision to grant or to refuse to grant a visa if the decision had been made before the date of the notice concerned.

(5) For the purposes of this section, a child of a person is a dependent child if the child:

(a) is unmarried; and (b) either: (i) is under 18; or (ii) is 18, 19 or 20 and is dependent on the person for: (A) financial and psychological support; or (B) physical support.


act means an act connected with performing functions or exercising powers under or for the purposes of this Act.

Subdivision AH—Limit on visas

85 Limit on visas

The Minister may, by notice in the Gazette, determine the maximum number of:



(a) the visas of a specified class; or (b) the visas of specified classes;

that may be granted in a specified financial year.

86 Effect of limit

If: (a) there is a determination of the maximum number of visas of a

class or classes that may be granted in a financial year; and (b) the number of visas of the class or classes granted in the year

reaches that maximum number; no more visas of the class or classes may be granted in the year.

87 Limit does not prevent visas for certain persons

(1) Section 86 does not prevent the grant of a visa to a person who applied for it on the ground that he or she is the spouse or dependent child of:

(a) an Australian citizen; or (b) the holder of a permanent visa that is in effect; or (c) a person who is usually resident in Australia and whose

continued presence in Australia is not subject to a limitation as to time imposed by law.

(2) For the purposes of this section, a child of a person is a dependent child if the child:

(a) is unmarried; and (b) either: (i) is under 18; or (ii) is 18, 19 or 20 and is dependent on the person for: (A) financial and psychological support; or (B) physical support.

87A Limit does not prevent the grant of visas to certain people who are unable to meet health or character requirements before the limit applies because of circumstances beyond their control

If:



Section 88


(a) a person has applied, whether before or after the commencement of this section, for the grant of a visa; and

(b) a time was or is reached when the grant of the visa to the person in a particular financial year was or is prevented by section 86; and

(c) the person was requested by the Minister after that time to satisfy requirements for the grant of the visa that relate to health or character; and

(d) after the making of the request referred to in paragraph (c) the person satisfies the requirements referred to in that paragraph in a financial year subsequent to the financial year in which the time referred to in paragraph (b) occurred; and

(e) the grant of the visa to the person at the time when the requirements referred to in paragraph (c) are satisfied would, apart from this section, be prevented by section 86; and

(f) the person was unable to satisfy the requirements referred to in paragraph (c) at a time when, apart from this section, section 86 would not have prevented the grant of the visa to the person; and

(g) the Minister is satisfied that the person’s inability to satisfy the requirements referred to in paragraph (c) at a time mentioned in paragraph (e) was due to circumstances beyond the person’s control;

section 86 does not prevent the grant of the visa to the person.

88 Limit does not affect processing of applications

Section 86’s prevention of the grant of a visa does not prevent any other action related to the application for it.

89 Determination of limit not to mean failure to decide

The fact that the Minister has neither granted nor refused to grant a visa of a class or classes to which a determination under section 85 applies does not mean, for any purpose, that the Minister has failed to make a decision to grant or refuse to grant the visa.

90 Order of dealing with limited visas

The fact that an application for a visa of a class or classes to which a determination under section 85 applies has not been considered



or disposed of although an application for another visa of the class or classes that was made later has been considered or disposed of does not mean, for any purpose, that the consideration or disposal of the earlier application is unreasonably delayed.

91 Order of dealing with visas

If a determination under section 85 applies, or has applied, to visas of a class or classes, the Minister may consider or, subject to section 86, dispose of outstanding and further applications for such visas in such order as he or she considers appropriate.

Subdivision AI—Safe third countries

91A Reason for Subdivision

This Subdivision is enacted because the Parliament considers that certain non-citizens who are covered by the CPA, or in relation to whom there is a safe third country, should not be allowed to apply for a protection visa or, in some cases, any other visa. Any such non-citizen who is an unlawful non-citizen will be subject to removal under Division 8.

91B Interpretation


agreement includes a written arrangement or understanding, whether or not binding.

CPA means the Comprehensive Plan of Action approved by the International Conference on Indo-Chinese Refugees, held at Geneva, Switzerland, from 13 to 14 June 1989.

(2) For the purposes of this Subdivision, if, apart from this section: (a) a colony, overseas territory or protectorate of a foreign

country; or (b) an overseas territory for the international relations of which a

foreign country is responsible; is not a country in its own right, the colony, territory or protectorate is taken to be a country in its own right.



Section 91C


91C Non-citizens covered by Subdivision

(1) This Subdivision applies to a non-citizen at a particular time if: (a) the non-citizen is in Australia at that time; and (b) at that time, the non-citizen is covered by: (i) the CPA; or (ii) an agreement, relating to persons seeking asylum,

between Australia and a country that is, or countries that include a country that is, at that time, a safe third country in relation to the non-citizen (see section 91D); and

(c) the non-citizen is not excluded by the regulations from the application of this Subdivision.

(2) To avoid doubt, a country does not need to be prescribed as a safe third country at the time that the agreement referred to in subparagraph (1)(b)(ii) is made.

91D Safe third countries

(1) A country is a safe third country in relation to a non-citizen if: (a) the country is prescribed as a safe third country in relation to

the non-citizen, or in relation to a class of persons of which the non-citizen is a member; and

(b) the non-citizen has a prescribed connection with the country.

(2) Without limiting paragraph (1)(b), the regulations may provide that a person has a prescribed connection with a country if:

(a) the person is or was present in the country at a particular time or at any time during a particular period; or

(b) the person has a right to enter and reside in the country (however that right arose or is expressed).

(3) The Minister must, within 2 sitting days after a regulation under paragraph (1)(a) is laid before a House of the Parliament, cause to be laid before that House a statement, covering the country, or each of the countries, prescribed as a safe third country by the regulation, about:

(a) the compliance by the country, or each of the countries, with relevant international law concerning the protection of persons seeking asylum; and

Part 2 Control of arrival and presence of non-citizens Division 3 Visas for non-citizens Section 91E


(b) the meeting by the country, or each of the countries, of relevant human rights standards for the persons in relation to whom the country is prescribed as a safe third country; and

(c) the willingness of the country, or each of the countries, to allow any person in relation to whom the country is prescribed as a safe third country:

(i) to go to the country; and (ii) to remain in the country during the period in which any

claim by the person for asylum is determined; and (iii) if the person is determined to be a refugee while in the

country—to remain in the country until a durable solution relating to the permanent settlement of the person is found.

(4) A regulation made for the purposes of paragraph (1)(a) ceases to be in force at the end of 2 years after the regulation commences.

91E Non-citizens to which this Subdivision applies unable to make valid applications for certain visas

Despite any other provision of this Act, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a protection visa then, subject to section 91F:

(a) if the non-citizen has not been immigration cleared at that time—neither that application nor any other application made by the non-citizen for a visa is a valid application; or

(b) if the non-citizen has been immigration cleared at that time—neither that application nor any other application made by the non-citizen for a protection visa is a valid application.

91F Minister may determine that section 91E does not apply to non-citizen

(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine:

(a) that section 91E does not apply to an application for a visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given; or



Section 91G


(b) that section 91G does not apply to an application for a visa made by the non-citizen during the transitional period referred to in that section.











91G Applications made before regulations take effect

(1) Subject to section 91F and subsection (3), if: (a) this Subdivision applies to a non-citizen immediately after a

regulation prescribing a country as a safe third country takes

Part 2 Control of arrival and presence of non-citizens Division 3 Visas for non-citizens Section 91G


effect and did not apply to the non-citizen immediately before that time; and

(b) the regulation prescribes a day as the cut off day; and (c) during the period (the transitional period) from the

beginning of the cut off day until immediately before that regulation takes effect, the non-citizen made an application for a protection visa;

then: (d) if the non-citizen had not been immigration cleared at the

time of making the application—that application, and any other application made by the non-citizen for a visa made during the transitional period, ceases to be a valid application when the regulation takes effect; and

(e) if the non-citizen had been immigration cleared at the time of making the application—that application, and any other application made by the non-citizen for a protection visa made during the transitional period, ceases to be a valid application when the regulation takes effect; and

(f) on and after the regulation takes effect, this Act applies as if the non-citizen had applied for a protection visa immediately after the regulation takes effect.

(2) To avoid doubt: (a) paragraphs (1)(d) and (e) apply even if an application

referred to in the paragraph concerned, or a decision in relation to such an application, is the subject of a review by, or an appeal or application to, the Migration Review Tribunal, the Refugee Review Tribunal, the Administrative Appeals Tribunal, a Federal Court or any other body or court; and

(b) no visa may be granted to the non-citizen as a direct, or indirect, result of such an application.

(3) Subsection (1) does not apply in relation to a non-citizen who, before the regulation referred to in that subsection takes effect, has:

(a) been granted a substantive visa as a result of an application referred to in that subsection; or

(b) been determined under this Act to be a non-citizen who satisfies the criterion mentioned in subsection 36(2).

(4) The cut off day specified in the regulation must not be:



Section 91H


(a) before a day on which the Minister, by notice in the Gazette, announces that he or she intends that such a regulation will be made; or

(b) more than 6 months before the regulation takes effect.

Subdivision AJ—Temporary safe haven visas

91H Reason for this Subdivision

This Subdivision is enacted because the Parliament considers that a non-citizen who holds a temporary safe haven visa, or who has not left Australia since ceasing to hold such a visa, should not be allowed to apply for a visa other than another temporary safe haven visa. Any such non-citizen who ceases to hold a visa will be subject to removal under Division 8. Note: For temporary safe haven visas, see section 37A.

91J Non-citizens to whom this Subdivision applies

This Subdivision applies to a non-citizen in Australia at a particular time if, at that time, the non-citizen:

(a) holds a temporary safe haven visa; or (b) has not left Australia since ceasing to hold a temporary safe

haven visa.

91K Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas

Despite any other provision of this Act but subject to section 91L, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a visa (other than a temporary safe haven visa), then that application is not a valid application.

91L Minister may determine that section 91K does not apply to a non-citizen

(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 91K does not apply to an application for a visa made by the non-citizen in the period starting when the notice

Part 2 Control of arrival and presence of non-citizens Division 3 Visas for non-citizens Section 91M


is given and ending at the end of the seventh working day after the day that the notice is given.











Subdivision AK—Non-citizens with access to protection from third countries

91M Reason for this Subdivision

This Subdivision is enacted because the Parliament considers that a non-citizen who can avail himself or herself of protection from a



Section 91N


third country, because of nationality or some other right to re-enter and reside in the third country, should seek protection from the third country instead of applying in Australia for a protection visa, or, in some cases, any other visa. Any such non-citizen who is an unlawful non-citizen will be subject to removal under Division 8. Note: For protection visas, see section 36.

91N Non-citizens to whom this Subdivision applies

(1) This Subdivision applies to a non-citizen at a particular time if, at that time, the non-citizen is a national of 2 or more countries.

(2) This Subdivision also applies to a non-citizen at a particular time if, at that time:

(a) the non-citizen has a right to re-enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country (the available country) apart from:

(i) Australia; or (ii) a country of which the non-citizen is a national; or (iii) if the non-citizen has no country of nationality—the

country of which the non-citizen is an habitual resident; and

(b) the non-citizen has ever resided in the available country for a continuous period of at least 7 days or, if the regulations prescribe a longer continuous period, for at least that longer period; and

(c) a declaration by the Minister is in effect under subsection (3) in relation to the available country.

(3) The Minister may, after considering any advice received from the Office of the United Nations High Commissioner for Refugees:

(a) declare in writing that a specified country: (i) provides access, for persons seeking asylum, to

effective procedures for assessing their need for protection; and

(ii) provides protection to persons to whom that country has protection obligations; and

(iii) meets relevant human rights standards for persons to whom that country has protection obligations; or

(b) in writing, revoke a declaration made under paragraph (a).

Part 2 Control of arrival and presence of non-citizens Division 3 Visas for non-citizens Section 91P


(4) A declaration made under paragraph (3)(a): (a) takes effect when it is made by the Minister; and (b) ceases to be in effect if and when it is revoked by the

Minister under paragraph (3)(b).

(5) The Minister must cause a copy of a declaration, or of a revocation of a declaration, to be laid before each House of the Parliament within 2 sitting days of that House after the Minister makes the declaration or revokes the declaration.

Determining nationality

(6) For the purposes of this section, the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.

(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.

91P Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas

(1) Despite any other provision of this Act but subject to section 91Q, if:

(a) this Subdivision applies to a non-citizen at a particular time; and

(b) at that time, the non-citizen applies, or purports to apply, for a visa; and

(c) the non-citizen is in the migration zone and has not been immigration cleared at that time;

neither that application, nor any other application the non-citizen makes for a visa while he or she remains in the migration zone, is a valid application.

(2) Despite any other provision of this Act but subject to section 91Q, if:

(a) this Subdivision applies to a non-citizen at a particular time; and

(b) at that time, the non-citizen applies, or purports to apply, for a protection visa; and

(c) the non-citizen is in the migration zone and has been immigration cleared at that time;



Section 91Q


neither that application, nor any other application made by the non-citizen for a protection visa while he or she remains in the migration zone, is a valid application.

91Q Minister may determine that section 91P does not apply to a non-citizen

(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 91P does not apply to an application for a visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given.

(2) For the purposes of subsection (1), the matters that the Minister may consider include information that raises the possibility that, although the non-citizen satisfies the description set out in subsection 91N(1) or (2), the non-citizen might not be able to avail himself or herself of protection from the country, or any of the countries, by reference to which the non-citizen satisfies that description.







Part 2 Control of arrival and presence of non-citizens Division 3 Visas for non-citizens Section 91R






Subdivision AL—Other provisions about protection visas

91R Persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory

conduct.

(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s

capacity to subsist; (e) denial of access to basic services, where the denial threatens

the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the

denial threatens the person’s capacity to subsist.



Section 91S


(3) For the purposes of the application of this Act and the regulations to a particular person:

(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in

the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

91S Membership of a particular social group

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person’s family:

(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and

(b) disregard any fear of persecution, or any persecution, that: (i) the first person has ever experienced; or (ii) any other member or former member (whether alive or

dead) of the family has ever experienced; where it is reasonable to conclude that the fear or persecution

would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

91T Non-political crime

(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1F of the Refugees Convention as amended by the Refugees Protocol has effect as if the reference in that Article to a non-political crime were a reference to a crime where the person’s motives for committing the crime were wholly or mainly non-political in nature.

Part 2 Control of arrival and presence of non-citizens Division 3 Visas for non-citizens Section 91U


(2) Subsection (1) has effect subject to subsection (3).

(3) For the purposes of the application of this Act and the regulations to a particular person, Article 1F of the Refugees Convention as amended by the Refugees Protocol has effect as if the reference in that Article to a non-political crime included a reference to an offence that, under paragraph (a), (b), (c) or (d) of the definition of political offence in section 5 of the Extradition Act 1988, is not a political offence in relation to a country for the purposes of that Act.

91U Particularly serious crime

(1) For the purposes of the application of this Act and the regulations to a particular person, Article 33(2) of the Refugees Convention as amended by the Refugees Protocol has effect as if a reference in that Article to a particularly serious crime included a reference to a crime that consists of the commission of:

(a) a serious Australian offence (as defined by subsection (2)); or (b) a serious foreign offence (as defined by subsection (3)).

(2) For the purposes of this section, a serious Australian offence is an offence against a law in force in Australia, where:

(a) the offence: (i) involves violence against a person; or (ii) is a serious drug offence; or (iii) involves serious damage to property; or (iv) is an offence against section 197A or 197B (offences

relating to immigration detention); and (b) the offence is punishable by: (i) imprisonment for life; or (ii) imprisonment for a fixed term of not less than 3 years;

or (iii) imprisonment for a maximum term of not less than

3 years.

(3) For the purposes of this section, a serious foreign offence is an offence against a law in force in a foreign country, where:

(a) the offence: (i) involves violence against a person; or (ii) is a serious drug offence; or



Section 91V


(iii) involves serious damage to property; and (b) if it were assumed that the act or omission constituting the

offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory, and the Territory offence would have been punishable by:

(i) imprisonment for life; or (ii) imprisonment for a fixed term of not less than 3 years;

or (iii) imprisonment for a maximum term of not less than

3 years.

91V Verification of information

Applicant for protection visa

(1) If an applicant for a protection visa has given information to the Minister or an officer in, or in connection with, the application for the visa, the Minister or an officer may, either orally or in writing, request the applicant to make an oral statement, on oath or affirmation, to the effect that the information is true.

(2) If: (a) the applicant has been given a request under subsection (1);

and (b) the applicant refuses or fails to comply with the request; and (c) when the request was made, the applicant was given a

warning, either orally or in writing, that the Minister may draw an inference unfavourable to the applicant’s credibility in the event that the applicant refuses or fails to comply with the request;

then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant’s credibility.


and (b) the applicant complies with the request; and (c) the Minister has reason to believe that, because of:

Part 2 Control of arrival and presence of non-citizens Division 3 Visas for non-citizens Section 91V


(i) the manner in which the applicant complied with the request; or

(ii) the applicant’s demeanour in relation to compliance with the request;

the applicant was not sincere; then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant’s credibility.

Non-citizen refused immigration clearance

(4) If: (a) either: (i) a non-citizen gave information to an officer when the

non-citizen was in immigration clearance, and the non-citizen is subsequently refused immigration clearance; or

(ii) a non-citizen was refused immigration clearance and subsequently gave information to an officer; and

(b) the information is relevant to the administration or enforcement of this Act or the regulations;

an officer may, either orally or in writing, request the non-citizen to make an oral statement, on oath or affirmation, to the effect that the information is true.

(5) If: (a) the non-citizen has been given a request under subsection (4);

and (b) the non-citizen refuses or fails to comply with the request;

and (c) when the request was made, the non-citizen was given a

warning, either orally or in writing, that the Minister may draw an inference unfavourable to the non-citizen’s credibility in the event that the non-citizen refuses or fails to comply with the request;

then, in making a decision about the non-citizen under this Act or the regulations, the Minister may draw any reasonable inference unfavourable to the non-citizen’s credibility.



Section 91W


(6) If: (a) the non-citizen has been given a request under subsection (4);

and (b) the non-citizen complies with the request; and (c) the Minister has reason to believe that, because of: (i) the manner in which the non-citizen complied with the

request; or (ii) the non-citizen’s demeanour in relation to compliance

with the request; the non-citizen was not sincere;

then, in making a decision about the non-citizen under this Act or the regulations, the Minister may draw any reasonable inference unfavourable to the non-citizen’s credibility.

Officer

(7) A reference in this section to an officer includes a reference to a person who is a clearance officer within the meaning of section 165.

Oaths or affirmations

(8) The Minister or an officer may administer an oath or affirmation for the purposes of this section.

91W Documentary evidence of identity, nationality or citizenship

(1) The Minister or an officer may, either orally or in writing, request an applicant for a protection visa to produce, for inspection by the Minister or the officer, documentary evidence of the applicant’s identity, nationality or citizenship.


and (b) the applicant refuses or fails to comply with the request; and (c) the applicant does not have a reasonable explanation for

refusing or failing to comply with the request; and (d) when the request was made, the applicant was given a

warning, either orally or in writing, that the Minister may draw an inference unfavourable to the applicant’s identity,

Part 2 Control of arrival and presence of non-citizens Division 3 Visas for non-citizens Section 91X


nationality or citizenship in the event that the applicant refuses or fails to comply with the request;

then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant’s identity, nationality or citizenship.

91X Names of applicants for protection visas not to be published by the High Court, the Federal Court or the Federal Magistrates Court

(1) This section applies to a proceeding before the High Court, the Federal Court or the Federal Magistrates Court if the proceeding relates to a person in the person’s capacity as:

(a) a person who applied for a protection visa; or (b) a person who applied for a protection-related bridging visa;

or (c) a person whose protection visa has been cancelled; or (d) a person whose protection-related bridging visa has been

cancelled.

(2) The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person’s name.


application for a protection-related bridging visa means an application for a bridging visa, where the applicant for the bridging visa is, or has been, an applicant for a protection visa.

proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.

protection-related bridging visa means a bridging visa granted as a result of an application for a protection-related bridging visa.

91Y Secretary’s obligation to report to Minister

Secretary must give periodic reports to Minister

(1) The Secretary must give a report under this section to the Minister within 45 days after the end of each of the following periods (each of which is a reporting period):



Section 91Y


(a) the period that started on 1 July 2005 and ends, or ended, on 31 October 2005; and

(b) each subsequent period of 4 months.

Secretary must give additional reports to Minister as required

(2) The Minister may give to the Secretary a notice requiring the Secretary to give to the Minister a report under this section in addition to the reports required under subsection (1). The notice must specify the period to which the report is to relate (also a reporting period).

(3) The Secretary must give the report under subsection (2) to the Minister:

(a) within 45 days after the day on which the reporting period ends; or

(b) within 45 days after the day on which the Minister gives the notice to the Secretary;

whichever is later.

(4) A notice under subsection (2) is not a legislative instrument.

Information that must be included in report

(5) A report under this section relating to a reporting period must include information about each application for a protection visa:

(a) that: (i) an applicant has validly made under section 46; or (ii) a court or tribunal has remitted to the Minister for

reconsideration; and (b) for which: (i) the Minister has made a decision under section 65

during the reporting period, but has not made the decision within the decision period; or

(ii) the Minister has not made a decision under section 65 before or during the reporting period, and the decision period has ended (whether before or during the reporting period).

(6) The report must also include: (a) the date on which each application was made that: (i) was validly made under section 46; and

Part 2 Control of arrival and presence of non-citizens Division 3 Visas for non-citizens Section 91Y


(ii) paragraph (5)(b) applies to; and (b) the reasons why decisions were not made within the decision

period. Note: The reasons mentioned in paragraph (6)(b) may relate to aspects of

processing applications that are beyond the Department’s control.

Information that must not be included in the report

(7) A report under this section must not include: (a) the name of any current or former applicant for a protection

visa; or (b) any information that may identify such an applicant; or (c) the name of any other person connected in any way with any

application for a protection visa made by the applicant mentioned in paragraph (a); or

(d) any information that may identify that other person.

Information that may be included in the report

(8) The report may include any other information that the Secretary thinks appropriate.

Reports to be tabled in Parliament

(9) The Minister must cause a copy of a report under this section to be tabled in each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report from the Secretary.

Definition


decision period for an application for a protection visa means the period of 90 days starting on:

(a) the day on which the application for the protection visa was made or remitted as mentioned in subsection (5); or

(b) in the circumstances prescribed by the regulations—the day prescribed by the regulations.



Section 92


Subdivision B—The “points” system

92 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 qualifying score when assessed as provided by this Subdivision.

93 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.

94 Initial application of “points” system

(1) An applicant whose assessed score is more than or equal to the applicable pass mark at the time when the score is assessed is taken to have received the qualifying score.

(2) An applicant whose assessed score is less than the applicable pool mark at the time when the score is assessed is taken not to have received the qualifying score.

(3) If an applicant’s assessed score is more than or equal to the applicable pool mark, but less than the applicable pass mark, at the time when the score is assessed:

(a) the Minister must, unless the application is withdrawn, put the application aside and deal with it in accordance with section 95; and

(b) if the Minister puts the application aside—the Minister is taken to have put the application into a pool.

(4) 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 to grant or refuse to grant a visa.



95 Applications in pool

When section applies

(1) This section applies if the Minister puts an application into a pool.

How applications to be dealt with

(2) If, within 12 months after the assessment of the applicant’s assessed score, the Minister gives a notice under section 96 varying the applicable pass mark or the applicable pool mark:

(a) the Minister must, without re-assessing that score, compare that score with the applicable pass mark and the applicable pool mark; and

(b) if that score is more than or equal to the applicable pass mark—the applicant is taken to have received the qualifying score; and

(c) if that score is less than the applicable pool mark—the applicant is taken not to have received the qualifying score; and

(d) if that score is more than or equal to the applicable pool mark but less than the applicable pass mark—the application remains in the pool until it is removed from the pool (see subsection (3)).

Removal of applications from pool

(3) An application in the pool is taken to have been removed from the pool at whichever is the earliest of the following times:

(a) the end of 12 months after the assessment of the applicant’s assessed score;

(b) the earliest time (if any) when the applicant is taken to have received the qualifying score as the result of the operation of subsection (2);

(c) the earliest time (if any) when the applicant is taken not to have received the qualifying score as the result of the operation of subsection (2).



Section 95A


Removal from pool under paragraph (3)(a) treated as failure to receive qualifying score

(4) If an application is removed from the pool because of paragraph (3)(a), the applicant is taken not to have received the qualifying score.

Section to be subject to section 95A

(5) This section has effect subject to section 95A.

95A Extension of period in pool

(1) This section applies to an application that: (a) is in the pool at the commencement of this section; or (b) is put in the pool after that commencement.

(2) Section 95 has effect in relation to the application as if references in subsections 95(2) and (3) to 12 months were references to 2 years.

96 Minister may set pool 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 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 and also operates as a variation of the mark specified in the previous notice.

(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.

(5) This Act does not prevent a pool mark and a pass mark from being equal.



(6) This Act does not prevent a pool mark and a pass mark from being varied independently of each other.

Subdivision C—Visas based on incorrect information may be cancelled

97 Interpretation

In this Subdivision:

application form, in relation to a non-citizen, means a form on which a non-citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a) purports to have been, but was not, issued in respect of the person; or

(b) is counterfeit or has been altered by a person who does not have authority to do so; or

(c) was obtained because of a false or misleading statement, whether or not made knowingly.

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).




98 Completion of visa application

A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.



Section 99


99 Information is answer

Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system or a person or Tribunal reviewing a decision under this Act in relation to the non-citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

100 Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

101 Visa applications to be correct

A non-citizen must fill in or complete his or her application form in such a way that:

(a) all questions on it are answered; and (b) no incorrect answers are given or provided.

102 Passenger cards to be correct

A non-citizen must fill in his or her passenger card in such a way that:

(a) all questions on it are answered; and (b) no incorrect answers are given.

103 Bogus documents not to be given etc.

A non-citizen must not give, present or provide to an officer, an authorised system, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented or provided.



104 Changes in circumstances to be notified

(1) If circumstances change so that an answer to a question on a non-citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

(2) If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

(3) If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

(4) Subsection (1) applies despite the grant of any visa.

105 Particulars of incorrect answers to be given

(1) If a non-citizen becomes aware that: (a) an answer given or provided in his or her application form; or (b) an answer given in his or her passenger card; or (c) information given by him or her under section 104 about the

form or card; or (d) a response given by him or her under section 107;

was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

(2) Subsection (1) applies despite the grant of any visa.

106 Obligations to give etc. information is not affected by other sources of information

The requirement for a non-citizen to comply with sections 101, 102, 103, 104 and 105, is not removed or otherwise affected by the fact that the Minister or an officer had, or had access to:

(a) any information given by the non-citizen for purposes unrelated to the non-citizen’s visa application; or

(b) any other information.



Section 107


107 Notice of incorrect applications

(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

(a) giving particulars of the possible non-compliance; and (b) stating that, within a period stated in the notice as mentioned

in subsection (1A), the holder may give the Minister a written response to the notice that:

(i) if the holder disputes that there was non-compliance: (A) shows that there was compliance; and (B) in case the Minister decides under section 108

that, in spite of the statement under sub-subparagraph (A), there was non-compliance—shows cause why the visa should not be cancelled; or

(ii) if the holder accepts that there was non-compliance: (A) give reasons for the non-compliance; and (B) shows cause why the visa should not be

cancelled; and (c) stating that the Minister will consider cancelling the visa: (i) if the holder gives the Minister oral or written notice,

within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii) if the holder gives the Minister a written response within that period—when the response is given; or

(iii) otherwise—at the end of that period; and (d) setting out the effect of sections 108, 109, 111 and 112; and (e) informing the holder that the holder’s obligations under

section 104 or 105 are not affected by the notice under this section; and

(f) requiring the holder: (i) to tell the Minister the address at which the holder is

living; and (ii) if the holder changes that address before the Minister

notifies the holder of the Minister’s decision on whether



there was non-compliance by the holder—to tell the Minister the changed address.

(1A) The period to be stated in the notice under subsection (1) must be: (a) in respect of the holder of a temporary visa—the period

prescribed by the regulations or, if no period is prescribed, a reasonable period; or

(b) otherwise—14 days.

(1B) Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

(a) visas of a stated class; or (b) visa holders in stated circumstances; or (c) visa holders in a stated class of people (who may be visa

holders in a particular place); or (d) visa holders in a stated class of people (who may be visa

holders in a particular place) in stated circumstances.

(2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

107A Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa

The possible non-compliances that: (a) may be specified in a notice by the Minister under

section 107 to a person who is the holder of a visa; and (b) if so specified, can constitute a ground for the cancellation of

that visa under section 109; include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.

108 Decision about non-compliance

The Minister is to: (a) consider any response given by a visa holder in the way

required by paragraph 107(1)(b); and



Section 109


(b) decide whether there was non-compliance by the visa holder in the way described in the notice.

109 Cancellation of visa if information incorrect

(1) The Minister, after: (a) deciding under section 108 that there was non-compliance by

the holder of a visa; and (b) considering any response to the notice about the

non-compliance given in a way required by paragraph 107(1)(b); and

(c) having regard to any prescribed circumstances; may cancel the visa.

(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

110 Cancellation provisions apply whatever source of knowledge of non-compliance

To avoid doubt, sections 107, 108 and 109 apply whether or not the Minister became aware of the non-compliance because of information given by the holder.

111 Cancellation provisions apply whether or not non-compliance deliberate

To avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent.

112 Action because of one non-compliance not prevent action because of other non-compliance

(1) A notice under section 107 to a person because of an instance of possible non-compliance does not prevent another notice under that section to that person because of another instance of possible non-compliance.

(2) The non-cancellation of a visa under section 109 despite an instance of non-compliance does not prevent the cancellation, or



steps for the cancellation, of the visa because of another instance of non-compliance.

113 No cancellation if full disclosure

If the holder of a visa who has been immigration cleared complied with sections 101, 102, 103, 104 and 105 in relation to the visa, it cannot be cancelled under this Subdivision because of any matter that was fully disclosed in so complying.

114 Effect of setting aside decision to cancel visa

(1) If the Federal Court, the Federal Magistrates Court, the Administrative Appeals Tribunal, the Migration Review Tribunal or the Refugee Review Tribunal sets aside a decision under section 109 to cancel a person’s visa, the visa is taken never to have been cancelled.

(2) In spite of subsection (1), any detention of the non-citizen between the purported cancellation of the visa and the decision to set aside the decision to cancel is lawful and the non-citizen is not entitled to make any claim against the Commonwealth or an officer because of the detention.

115 Application of Subdivision

(1) This Subdivision applies to: (a) applications for visas made; and (b) passenger cards filled in;

on or after 1 September 1994.

(2) This Subdivision, other than sections 101 and 102, applies to: (a) applications for visas, or entry permits, within the meaning of

the Migration Act 1958 as in force before 1 September 1994, that under the regulations are taken to be applications for visas and that have not been finally determined before that date; and

(b) passenger cards filled in before 1 September 1994.

(3) This Subdivision applies to a visa granted otherwise than because of an application on or after 1 September 1994 and does so as if:

(a) this Subdivision had applied to:



Section 116


(i) the application for the visa; and (ii) passenger cards filled in before that date; and (b) the application for any other visa, or entry permit, (within the

meaning of the Migration Act 1958 as in force immediately before that date) because of which the visa is held had been the application for the visa; and

(c) for the purposes of sections 107 to 114, non-compliance by the holder of the visa with the sections referred to in section 107 included any action or condition of the holder because of which section 20 of that Act as so in force applied to the holder.

Subdivision D—Visas may be cancelled on certain grounds

116 Power to cancel

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(a) any circumstances which permitted the grant of the visa no longer exist; or

(b) its holder has not complied with a condition of the visa; or (c) another person required to comply with a condition of the

visa has not complied with that condition; or (d) if its holder has not entered Australia or has so entered but

has not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or

(e) the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or

(f) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or

(fa) in the case of a student visa: (i) its holder is not, or is likely not to be, a genuine student;

or (ii) its holder has engaged, is engaging, or is likely to

engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or



(g) a prescribed ground for cancelling a visa applies to the holder.

(1A) The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.

(2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.

(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

117 When visa may be cancelled

(1) Subject to subsection (2), a visa held by a non-citizen may be cancelled under section 116:

(a) before the non-citizen enters Australia; or (b) when the non-citizen is in immigration clearance (see

section 172); or (c) when the non-citizen leaves Australia; or (d) while the non-citizen is in the migration zone.

(2) A permanent visa cannot be cancelled under section 116 if the holder of the visa:

(a) is in the migration zone; and (b) was immigration cleared on last entering Australia.

118 Cancellation powers do not limit or affect each other

The powers to cancel a visa under: (a) section 109 (incorrect information); or (b) section 116 (general power to cancel); or (c) section 128 (when holder outside Australia); or (d) section 134 (cancellation of business visas); or (da) section 137Q (cancellation of regional sponsored

employment visas); or (e) section 140 (consequential cancellation of other visas); or



Section 118A


(ea) section 500A (refusal or cancellation of temporary safe haven visas); or

(f) section 501, 501A or 501B (special power to refuse or cancel);

are not limited, or otherwise affected, by each other.

Subdivision E—Procedure for cancelling visas under Subdivision D in or outside Australia




119 Notice of proposed cancellation

(1) Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:

(a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and

(b) invite the holder to show within a specified time that: (i) those grounds do not exist; or (ii) there is a reason why it should not be cancelled.

(2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.

(3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.

(4) The other provisions of this Subdivision do not apply to a cancellation:



(a) under a provision other than section 116; or (b) to which Subdivision F applies.

120 Certain information must be given to visa holder

(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for cancelling a visa; and

(b) is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and

(c) was not given by the holder; and (d) was not disclosed to the holder in the notification under

section 119.

(2) The Minister must: (a) give particulars of the relevant information to the holder; and (b) ensure, as far as reasonably practicable, that the holder

understands why it is relevant to the cancellation; and (c) invite the holder to comment on it.

(3) The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances.

121 Invitation to give comments etc.

(1) An invitation under paragraph 119(1)(b) or 120(2)(c) is to specify whether the response to the invitation may be given:

(a) in writing; or (b) at an interview between the holder and an officer; or (c) by telephone.

(2) Subject to subsection (4), if the invitation is to respond otherwise than at an interview, the response is to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

(3) Subject to subsection (5), if the invitation is to respond at an interview, the interview is to take place:



Section 122


(a) at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place; and

(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period.

(4) If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be given in the extended period.

(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to:

(a) a later time within that period; or (b) a time within that period as extended by the Minister for a

prescribed further period; and then the response is to be given at an interview at the new time.

(6) This section is subject to sections 125 and 126.


Regulations prescribing a period or other time limit relating to a step in considering the cancellation of a visa may prescribe different limits relating to that step and specify when a particular limit is to apply, which, without limiting the generality of the power, may be to:

(a) visas of a specified class; or (b) visa holders in specified circumstances; or (c) visa holders in a specified class of persons (which may be

visa holders in a specified place); or (d) visa holders in a specified class of persons (which may be

visa holders in a specified place) in specified circumstances.



123 Failure to accept invitation not require action

If a visa holder does not respond to an invitation under paragraph 119(1)(b) or 120(2)(c) before the time for giving it has passed or tells the Minister that the visa holder does not wish to respond, the Minister may make the decision about cancellation without taking any further action about the information.

124 When decision about visa cancellation may be made

(1) Subject to section 120 (give information) and subsection (2), the Minister may cancel a visa at any time after notice about the cancellation has been given under section 119 and after whichever one of the following happens first:

(a) the holder responds to the notice; (b) the holder tells the Minister that the holder does not wish to

respond; (c) the time for responding to the notice passes.

(2) The Minister is not to cancel a visa after inviting the visa holder to comment on information and before whichever one of the following happens first:

(a) the comments are given; (b) the holder tells the Minister that the holder does not wish to

comment; (c) the time for commenting passes.

125 Application of Subdivision to non-citizen in immigration clearance

If a non-citizen in immigration clearance who is not taken into questioning detention is given an invitation under paragraph 119(1)(b) or 120(2)(c), the period within which he or she may respond to the invitation is to end when, or before, he or she ceases to be in immigration clearance.

126 Application of Subdivision to non-citizen in questioning detention

(1) If a non-citizen in questioning detention who is not released before the end of the 4 hours for which he or she may be detained is given an invitation under paragraph 119(1)(b) or 120(2)(c), the period



Section 127


within which he or she may respond to the invitation is to end when, or before, those 4 hours end.

(2) If a non-citizen who has been given an invitation under paragraph 119(1)(b) or 120(2)(c) (whether in immigration clearance or otherwise) is taken into questioning detention and not released before the end of the 4 hours for which he or she may be detained, the period within which he or she is to respond to the invitation is to end when, or before, those 4 hours end.

127 Notification of decision

(1) When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way.

(2) Notification of a decision to cancel a visa must: (a) specify the ground for the cancellation; and (b) state whether the decision is reviewable under Part 5 or 7;

and (c) if the former visa holder has a right to have the decision

reviewed under Part 5 or 7—state: (i) that the decision can be reviewed; and (ii) the time in which the application for review may be

made; and (iii) who can apply for the review; and (iv) where the application for review can be made.


Subdivision F—Other procedure for cancelling visas under Subdivision D outside Australia






128 Cancellation of visas of people outside Australia

If: (a) the Minister is satisfied that: (i) there is a ground for cancelling a visa under section 116;

and (ii) it is appropriate to cancel in accordance with this

Subdivision; and (b) the non-citizen is outside Australia;

the Minister may, without notice to the holder of the visa, cancel the visa.

129 Notice of cancellation

(1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice:

(a) stating the ground on which it was cancelled; and (b) giving particulars of that ground and of the information (not

being non-disclosable information) because of which the ground was considered to exist; and

(c) inviting the former holder to show, within a specified time, being a prescribed time, that:

(i) that ground does not exist; or (ii) there is a reason why the visa should not have been

cancelled; and (d) stating that, if the former holder shows, within the specified

time, that the ground does not exist, the cancellation will be revoked; and

(e) stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked.

(2) The notice is to be given in the prescribed way.



Regulations prescribing a period for the purpose of paragraph 129(1)(c) may prescribe different periods and specify when a



Section 131


particular period is to apply, which, without limiting the generality of the power, may be to:

(a) visas of a specified class; or (b) former visa holders in specified circumstances; or (c) former visa holders in a specified class of persons (which

may be former visa holders in a specified place); or (d) former visa holders in a specified class of persons (which

may be former visa holders in a specified place) in specified circumstances.

131 Decision about revocation of cancellation

(1) Subject to subsection (2), after considering any response to a notice under section 129 of the cancellation of a visa, the Minister:

(a) if not satisfied that there was a ground for the cancellation; or (b) if satisfied that there is another reason why the cancellation

should be revoked; is to revoke the cancellation.

(2) The Minister is not to revoke the cancellation of a visa if there exist prescribed circumstances in which the visa must be cancelled.

132 Notification of decision about revocation of cancellation

When, under section 131, the Minister revokes or does not revoke the cancellation of a visa, he or she is to notify the visa holder or former visa holder of the decision in the prescribed way.

133 Effect of revocation of cancellation

(1) If the cancellation of a visa is revoked, then, without limiting its operation before cancellation, it has effect as if it were granted on the revocation.

(2) Subject to subsection (1), if the cancellation of a visa is revoked, the Minister may vary the time the visa is to be in effect or any period in which, or date until which, the visa permits its holder to travel to, enter and remain in Australia, or to remain in Australia.



Subdivision G—Cancellation of business visas

134 Cancellation of business visas

(1) Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment-linked visa or a family member’s visa), by written notice given to its holder, if the Minister is satisfied that its holder:

(a) has not obtained a substantial ownership interest in an eligible business in Australia; or

(b) is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or

(c) does not intend to continue to: (i) hold a substantial ownership interest in; and (ii) utilise his or her skills in actively participating at a

senior level in the day-to-day management of; an eligible business in Australia.

(2) The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:

(a) has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and

(b) has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and

(c) intends to continue to make such genuine efforts.

(3) Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:

(a) business proposals that the person has developed; (b) the existence of partners or joint venturers for the business

proposals; (c) research that the person has undertaken into the conduct of an

eligible business in Australia; (d) the period or periods during which the person has been

present in Australia;



Section 134


(e) the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;

(f) the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;

(g) business activity that is, or has been, undertaken by the person;

(h) whether the person has failed to comply with a notice under section 137;

(i) if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a day-to-day management of a business:

(i) the length of time that the person held the ownership interest or participated in the management (as the case requires); and

(ii) the reasons why the person no longer holds the interest or participates in the management (as the case requires).

(3A) Subject to section 135, the Minister may cancel an investment-linked visa (other than a family member’s visa), by written notice to its holder, if the Minister is satisfied that the person, or any of the persons, who held the relevant designated investment when the visa was granted has or have ceased, for any reason, to hold that investment within 3 years of that investment being made.

(4) Subject to subsection (5) and to section 135, if: (a) the Minister cancels a person’s business visa under

subsection (1) or (3A); and (b) a business visa is held by another person who is or was a

member of the family unit of the holder of the cancelled visa; and

(c) the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;

the Minister must cancel the other person’s business permit or business visa by giving written notice to that person.

(5) The Minister must not cancel the other person’s business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.



(6) The Minister is taken not to have cancelled a person’s business visa under subsection (4) if the Administrative Appeals Tribunal has set aside the decision of the Minister to cancel the business visa of the relevant person to whom paragraph (4)(a) applied.

(7) If the Minister cancels a business visa under this section, the Minister must include in the notice given to its holder:

(a) the Minister’s reason for the cancellation; and (b) a statement to the effect that the holder may, within 28 days

after receiving the notice, apply to the Administrative Appeals Tribunal for review of the cancellation.

(8) A cancellation under this section has effect on and from: (a) if the person applies to the Administrative Appeals Tribunal

for a review of the decision to cancel the visa—the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or

(b) if: (i) the person’s visa was cancelled under subsection (4);

and (ii) the relevant person to whom paragraph (4)(a) applied

has applied to the Administrative Appeals Tribunal for a review of the decision to cancel that person’s visa;

the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or

(c) the 28th day after the day on which the notice of cancellation is given to the holder of the cancelled visa;

whichever is the latest.

(9) The Minister must not cancel a business visa under subsection (1), (3A) or (4) unless a notice under section 135 was given to its holder within the period of 3 years commencing:

(a) if its holder was in Australia when he or she was first granted a business visa—on the day on which that first visa was granted; or

(b) if its holder was not in Australia when he or she was first granted a business visa—on the day on which its holder first entered Australia after that first visa was granted.



Section 134



business visa means: (a) a visa included in a class of visas, being a class that: (i) has the words “Business Skills” in its title; and (ii) is prescribed for the purposes of this paragraph; or (b) a visa: (i) to which a prescribed provision of the Migration

Reform (Transitional Provisions) Regulations applies; and

(ii) that is of a kind prescribed for the purposes of this paragraph; or

(c) a return visa that is granted to a person who is or was the holder of a business permit or business visa;

that is or was granted on or after 17 February 1992.

designated investment has the meaning given by the regulations.

eligible business means a business that the Minister reasonably believes is resulting or will result in one or more of the following:

(a) the development of business links with the international market;

(b) the creation or maintenance of employment in Australia; (c) the export of Australian goods or services; (d) the production of goods or the provision of services that

would otherwise be imported into Australia; (e) the introduction of new or improved technology to Australia; (f) an increase in commercial activity and competitiveness

within sectors of the Australian economy.

established business in Australia visa means a business visa a criterion for whose grant:

(a) relates to the applicant having an established business in Australia; or

(b) is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).

family member’s visa means a business visa held by a person: (a) who is or was a member of the family unit of another person

who held a business visa; and



(b) who would not have held the business visa if he or she had never been a member of the family unit of the other person.

investment-linked visa means a business visa a criterion for whose grant:

(a) relates to the holding of a designated investment; or (b) is that the applicant is a member of the family unit of the

holder of a visa a criterion for whose grant is as mentioned in paragraph (a).

member of the family unit has the meaning given by the regulations.

ownership interest, in relation to a business, means an interest in the business as:

(a) a shareholder in a company that carries on the business; or (b) a partner in a partnership that carries on the business; or (c) the sole proprietor of the business;

including such an interest held indirectly through one or more interposed companies, partnerships or trusts.

relevant designated investment, in relation to an investment-linked visa (other than a family member’s visa), means the designated investment that was, in deciding to grant the visa, regarded as satisfying the criterion referred to in paragraph (a) of the definition of investment-linked visa.

return visa has the same meaning as in the regulations.

135 Representations concerning cancellation of business visa

(1) Before cancelling a visa under subsection 134(1), (3A) or (4), the Minister must give its holder a written notice:

(a) stating that the Minister proposes to cancel the visa; and (b) inviting its holder to make representations to the Minister

concerning the proposed cancellation within: (i) if the notice is given in Australia—28 days after the

notice is given; or (ii) if the notice is given outside Australia—70 days after

the notice is given.



Section 136


(2) The holder may make such representations to the Minister within the time specified in the notice.

(3) The Minister must give due consideration to any representations.

(4) If: (a) the time specified in the notice ends after the end of the

period referred to in subsection 134(9); and (b) at the end of the period of 90 days commencing at the time

specified in the notice, the Minister has not made a decision on whether to proceed with the cancellation;

the Minister is not to proceed with the cancellation.

(5) If the Minister decides not to proceed with the cancellation, the Minister must give its holder written notice to that effect.

136 Review of decisions

Application may be made to the Administrative Appeals Tribunal for review of a decision of the Minister under subsection 134(1), (3A) or (4).

137 Provision of information—holders of business visas

(1) The Secretary may by written notice require the holder of a business visa to give the Secretary such information as is specified in the notice.

(2) The Secretary may not require information under subsection (1) unless the information is to be used by the Secretary or the Minister for the purpose of the administration of this Act or of regulations made under this Act.

(3) A notice under subsection (1) is only valid in the period of 3 years commencing:

(a) if the holder was in Australia when he or she was first granted a business visa—on the day on which that first visa was granted; or

(b) if the holder was not in Australia when he or she was first granted a business visa—on the day on which the holder first entered Australia after that first visa was granted.



(4) Without limiting the generality of the information that may be required under subsection (1), the Secretary may require the holder to advise the Secretary in writing of any change in the address of the holder during a period specified in the notice.

(5) A notice under subsection (1) must state that the information must be provided within a period of 28 days commencing on a day specified in the notice.

(6) The day specified in the notice may be: (a) the day on which the notice is issued; or (b) a later particular day; or (c) the day on which an event specified in the notice occurs.

(7) A person who fails to comply with a notice under subsection (1) commits an offence at the end of every successive 28 day period that is contained in the period commencing on the day specified in the notice and ending when the person complies with the notice.

(7A) Subsection (7) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in

subsection (7A) (see subsection 13.3(3) of the Criminal Code).

(7B) An offence against subsection (7) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

(8) Subsection 4K(2) of the Crimes Act 1914 does not apply to an offence under subsection (7).


business visa has the same meaning as in section 134.

Penalty: $5,000.



Section 137A


Subdivision GA—Cancellation of approval as a business sponsor

137A Definitions


approval of a person as a business sponsor or approval means an approval (including a renewal of an approval) under the regulations of a person as a business sponsor.

business sponsor means a pre-qualified business sponsor, or a standard business sponsor, under the provisions of the regulations relating to the approval of such sponsors.

137B Power of Minister to cancel approval as a business sponsor

(1) The Minister may cancel an approval of a person as a business sponsor if the Minister is satisfied that a prescribed ground for cancelling the approval applies to the person.

(2) To avoid doubt, a matter may constitute a ground for cancelling an approval of a person as a business sponsor:

(a) whether or not the Minister became aware of the matter because of information given by the person; and

(b) if the matter is an act or omission by the person—whether the act or omission was deliberate or inadvertent.

(3) If the Minister may, under subsection (1), cancel an approval of a person as a business sponsor, the Minister must do so if there exist prescribed circumstances in which the approval must be cancelled.

(4) To avoid doubt, the cancellation under subsection (1) of an approval of a person as a business sponsor terminates the approval in the same way as the revocation of such an approval under the regulations.

137C Non-cancellation of approval because of one matter not to prevent cancellation of approval because of another matter

If:

Part 2 Control of arrival and presence of non-citizens Division 3 Visas for non-citizens Section 137D


(a) a matter constituted a ground for cancelling under section 137B an approval of a person as a business sponsor; and

(b) despite that matter, the approval has not been cancelled; the failure to cancel the approval on the ground constituted by that matter does not prevent the cancellation, or the taking of steps for the cancellation, of the approval on a ground constituted by another matter.

137D Notice of decision

(1) If the Minister decides to cancel under section 137B an approval of a person as a business sponsor, the Minister is to give the person written notice of the decision.

(2) Subject to subsection (3), the notice: (a) is to be addressed to the person; and (b) is to be given by the prescribed method, or, if there is no

prescribed method, by a method that the Minister considers to be appropriate, to an address that, under section 137E, is an appropriate address for delivery of the notice.

(3) Subsection (2) does not prevent the Minister from giving notice of the decision to the person by a method or to an address not mentioned in that subsection provided that the person receives the notice.

(4) Notice of the decision must state the ground for the cancellation.

(5) Failure to give notice of the decision does not affect the validity of the decision.

137E What constitutes an appropriate address for delivery of notice of a decision

(1) Subject to subsection (2), if a person has, whether before or after the commencement of this section, notified the Minister of an address at which the person lives or carries on business, or proposes to live or carry on business for at least 14 days, the address is taken to be an appropriate address for delivery of notice of the decision.



Section 137F


(2) If the person notifies the Minister of an address to which a notice to the person of a decision to cancel the approval may be delivered, subsection (1) does not apply in relation to the person but that address is an appropriate address for delivery of notice of the decision.

(3) If the person has notified the Minister, as mentioned in subsection (1) or (2), of different addresses at different times, references in the subsection concerned to the address are taken to be references to the later or latest such address.

137F Effect of compliance

If the Minister complies with this Subdivision in respect of the cancellation of an approval of a person as a business sponsor, the Minister is not required to take any other action in respect of the cancellation.

137G Effect of setting aside decision to cancel approval

(1) If the Federal Court or the Federal Magistrates Court sets aside a decision under section 137B to cancel an approval, the approval is taken never to have been cancelled.

(2) However, the person is not entitled to make any claim against the Commonwealth or an officer because of the purported cancellation.

137H Provision of information—business sponsors

(1) Subject to subsection (2), the Secretary may, by written notice to a person who has at any time applied for approval as a business sponsor (whether or not the person was approved as a business sponsor), require the person to give the Secretary information about any matters stated in the notice.

(2) The Secretary may not require information under subsection (1) unless the information relates to:

(a) the person’s application for the approval; or (b) any approval of the person as a business sponsor; or (c) anything done as a result of the application or as a result of

such an approval.

Part 2 Control of arrival and presence of non-citizens Division 3 Visas for non-citizens Section 137J


(3) A notice under subsection (1) is to state that the information must be given within a period stated in the notice, being a prescribed period or, if no period is prescribed, a reasonable period.

(4) The Secretary may, at the request of the person to whom a notice under subsection (1) is given, fix a day later than the day stated in the notice and, if a later day is so fixed, the information is to be given by the person on or before the later day.

Subdivision GB—Automatic cancellation of student visas

137J Non-complying students may have their visas automatically cancelled

(1) This section applies if a notice is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non-citizen (even if the non-citizen never receives the notice). Note: Under that section, a registered education provider must send a notice

to a non-citizen who breaches a condition of the non-citizen’s visa that is prescribed by regulations made for the purposes of that Act. The notice must give particulars of the breach and must require the non-citizen to attend before an officer for the purpose of making any submissions about the breach and the circumstances that led to the breach.

(2) The non-citizen’s visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:

(a) the non-citizen complies with the notice; or (b) the non-citizen, while attending in person at an office of

Immigration (within the meaning of the regulations) that is either:

(i) in Australia; or (ii) approved for the purposes of this paragraph by the

Minister by notice in the Gazette; makes himself or herself available to an officer for the stated

purpose of making any submissions about the breach and the circumstances that led to the breach.



Section 137K


137K Applying for revocation of cancellation

(1) A non-citizen whose visa has been cancelled under section 137J may apply in writing to the Minister for revocation of the cancellation.

(2) A non-citizen who is in the migration zone cannot apply for revocation at a time when, because of section 82, the visa would no longer have been in effect anyway had the visa not been cancelled under section 137J.

(3) In addition to the restriction in subsection (2), a non-citizen who is in the migration zone and who has been detained under section 189 cannot apply for revocation later than:

(a) 2 working days after the day on which section 194 was complied with in relation to his or her detention; or

(b) if he or she informs an officer in writing within those 2 days of his or her intention to so apply—within the next 5 working days after those 2 working days.

(4) A non-citizen who is outside the migration zone cannot apply for revocation later than 28 days after the day of the cancellation.

(5) In any case, a non-citizen cannot apply for revocation if he or she has previously made such an application in respect of the same cancellation.

137L Dealing with the application

(1) On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:

(a) that the non-citizen did not in fact breach the relevant visa condition or conditions; or

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

(c) of any other matter prescribed in the regulations.

(2) However, the Minister must not revoke the cancellation on the ground that the non-citizen was unaware of the notice or of the effect of section 137J.

(3) A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.

Part 2 Control of arrival and presence of non-citizens Division 3 Visas for non-citizens Section 137M


137M Notification of decision

(1) When the Minister decides whether to revoke a cancellation under section 137L, he or she must give the non-citizen written notice of the decision.

(2) Notice of a decision not to revoke a cancellation must: (a) specify the grounds for the decision; and (b) state: (i) that if the non-citizen was in the migration zone when

the decision was made, the decision is reviewable under Part 5; and

(ii) the time in which the application for review may be made; and

(iii) who may apply for the review; and (iv) where the application for review may be made.

(3) Failure to notify of a decision whether to revoke a cancellation does not affect the validity of the decision.

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

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

(2) The Minister must give the relevant non-citizen written notice of a decision under subsection (1) to revoke a cancellation.

(3) The power in subsection (1) may only be exercised by the Minister personally.

(4) The Minister does not have a duty to consider whether to exercise the power in subsection (1), whether or not the non-citizen or anyone else requests him or her to do so, or in any other circumstances.

(5) A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.



Section 137P


137P Effect of revocation

(1) If the cancellation of a visa is revoked under section 137L or 137N, the visa is taken never to have been cancelled under section 137J.

(2) If the revocation is under section 137L and the decision is made wholly or partly on the ground that paragraph 137L(1)(a) or (b) applies to the breach that was alleged in the notice mentioned in section 137J, then that breach cannot be a ground for cancelling the visa under section 116.

(3) However, a revocation under section 137L or 137N does not otherwise limit or affect any other power to cancel the visa under this Act.

(4) In particular, a different or later breach of a condition of the visa can be a ground for cancelling the visa under section 116.

(5) Despite subsection (1), any detention of the non-citizen that occurred during any part of the period:

(a) beginning when the visa was cancelled under section 137J; and

(b) ending at the time of the revocation of the cancellation; is lawful and the non-citizen is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

Subdivision GC—Cancellation of regional sponsored employment visas

137Q Cancellation of regional sponsored employment visas

Employment does not commence

(1) The Minister may cancel a regional sponsored employment visa held by a person if:

(a) the Minister is satisfied that the person has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations; and

Part 2 Control of arrival and presence of non-citizens Division 3 Visas for non-citizens Section 137R


(b) the person does not satisfy the Minister that he or she has made a genuine effort to commence that employment within that period.

Employment terminates within 2 years

(2) The Minister may cancel a regional sponsored employment visa held by a person if:

(a) the Minister is satisfied that: (i) the person commenced the employment referred to in

the relevant employer nomination (whether or not within the period prescribed by the regulations); and

(ii) the employment terminated within the period (the required employment period) of 2 years starting on the day the person commenced that employment; and

(b) the person does not satisfy the Minister that he or she has made a genuine effort to be engaged in that employment for the required employment period.

Regional sponsored employment visa


regional sponsored employment visa means a visa of a kind that: (a) is included in a class of visas that has the words “Employer

Nomination” in its title; and (b) is prescribed by the regulations for the purposes of this

definition.

137R Representations concerning cancellation etc.

(1) Before cancelling a person’s visa under section 137Q, the Minister must give the person a written notice:

(a) stating that the Minister proposes to cancel the visa; and (b) inviting the person to make representations to the Minister

concerning the proposed cancellation within: (i) if the notice is given in Australia—28 days after the

notice is given; or (ii) if the notice is given outside Australia—70 days after

the notice is given.



Section 137S


(2) The Minister must consider any representations received within that period.

(3) If the Minister decides not to proceed with the cancellation, the Minister must give the person written notice of the decision.

137S Notice of cancellation

(1) If the Minister decides to cancel a person’s visa under section 137Q, he or she must give the person written notice of the decision. The notice must:

(a) specify the reasons for the cancellation; and (b) state whether or not the decision to cancel the visa is

reviewable under Part 5; and (c) if the decision to cancel the visa is reviewable under Part 5—

state the period within which an application for review can be made, who can apply for the review and where the application for review can be made.

(2) Failure to give notice of the decision does not affect the validity of the decision.

137T Cancellation of other visas

(1) If a person’s visa is cancelled under section 137Q, a visa held by another person because of being a member of the family unit of the person is also cancelled.

(2) The cancellation under subsection (1) of this section is set aside if the cancellation of the person’s visa under section 137Q is set aside under Part 5.


member of the family unit has the meaning given by the regulations.

Subdivision H—General provisions on cancellation

138 Way visa cancelled or cancellation revoked

(1) A visa is cancelled by the Minister causing a record of it to be made.



(1A) Subsection (1) does not apply to a cancellation under section 137J.

(2) The cancellation of a visa is revoked under section 131 by the Minister causing a record of the revocation to be made.

139 Visas held by 2 or more

If a visa is held by 2 or more non-citizens: (a) Subdivisions C, D, E and F and this Subdivision apply as if

each of them were the holder of the visa; and (b) to avoid doubt, if the visa is cancelled because of one

non-citizen being its holder, it is cancelled so that all those non-citizens cease to hold the visa.

140 Cancellation of visa results in other cancellation

(1) If a person’s visa is cancelled under section 109 (incorrect information), 116 or 128 or 137J (student visas), a visa held by another person because of being a member of the family unit of the person (within the meaning of the regulations) is also cancelled.

(2) If: (a) a person’s visa is cancelled under section 109 (incorrect

information), 116 or 128 or 137J (student visas); and (b) another person to whom subsection (1) does not apply holds

a visa only because the person whose visa is cancelled held a visa;

the Minister may, without notice to the other person, cancel the other person’s visa.

(3) If: (a) a person’s visa (the cancelled visa) is cancelled under any

provision of this Act; and (b) the person is a parent of another person; and (c) the other person holds a particular visa (the other visa), that

was granted under section 78 (child born in Australia) because the parent held the cancelled visa;

the other visa is also cancelled.



Section 140


(4) If: (a) a visa is cancelled under subsection (1), (2) or (3) because

another visa is cancelled; and (b) the cancellation of the other visa is revoked under

section 131, 137L or 137N; the cancellation under subsection (1), (2) or (3) is revoked.

Part 2 Control of arrival and presence of non-citizens Division 3A Sponsorship Section 140A


Division 3A—Sponsorship

Subdivision A—Application of Division

140A Division applies to prescribed kinds of visa

This Division applies to visas of a prescribed kind (however described).

Subdivision B—Sponsorship system

140B Sponsorship as a criterion for prescribed visas

(1) The regulations may provide that sponsorship by an approved sponsor is a criterion for a visa of a prescribed kind (however described).

(2) A criterion prescribed under subsection (1) is in addition to any other criteria for the visa that:

(a) may be prescribed under any other provision of this or any other Act; or

(b) are set out in this or any other Act.

140C Sponsorship as a criterion for valid visa applications

(1) The regulations may provide that it is a criterion for a valid application for a visa of a prescribed kind (however described) that the applicant is sponsored by an approved sponsor.

(2) The regulations may provide that it is a criterion for a valid application for a visa of a prescribed kind (however described) that the applicant’s proposed sponsor has applied to be an approved sponsor at, or before, the time the application for the visa is made.

(3) A criterion prescribed under subsection (1) or (2) is in addition to any other criteria for a valid application for the visa that:

(a) may be prescribed under any other provision of this or any other Act; or

(b) are set out in this or any other Act.


Sponsorship Division 3A

Section 140D


140D Approved sponsor

A person is an approved sponsor of another person for a visa at a particular time if:

(a) the first person has consented in writing to sponsor the second person for the visa and that consent has not been withdrawn by notice in writing to the Minister; and

(b) the first person has been approved by the Minister before that time as a sponsor of the second person for the visa, whether the second person is named in the approval or otherwise described; and

(c) the approval has not been cancelled by the Minister before that time; and

(d) a bar of a kind mentioned in paragraph 140L(c) or (d) that would affect the sponsorship of the second person is not in force at that time; and

(e) the terms on which the sponsorship was approved are satisfied at that time.

140E Approving sponsor

(1) The Minister must approve a person as a sponsor if prescribed criteria are satisfied.

(2) Different criteria may be prescribed for different kinds of visa (however described).

140F Process for approving sponsors

(1) The regulations may establish a process for the Minister to approve a person as a sponsor.

(2) Different processes may be prescribed for different kinds of visa (however described).

140G Terms of approval as a sponsor

(1) An approval as a sponsor may be on terms specified in the approval.

(2) The terms must be of a kind prescribed by the regulations.

Part 2 Control of arrival and presence of non-citizens Division 3A Sponsorship Section 140H


Note: The following are examples of the kinds of terms that might be set out in the regulations:

(a) the number of people whom the approved sponsor may sponsor under the approval;

(b) the duration of the approval.

(3) Different kinds of terms may be prescribed for different kinds of visa (however described).

140H Sponsorship undertakings

(1) The regulations may require an applicant for approval as a sponsor of a person for a visa to make prescribed undertakings. Note: The following are examples of the kinds of undertakings that might be

set out in the regulations:

(a) to pay debts for medical or hospital treatment incurred by a visa holder sponsored by the sponsor;

(b) to pay to the Commonwealth the costs of locating, detaining and removing from Australia a visa holder sponsored by the sponsor;

(c) to pay the costs of the departure from Australia of a visa holder sponsored by the sponsor;

(d) to comply with the Department’s requirements to provide information to the Department;

(e) to notify the Department of changes in the circumstances of the sponsor or of a visa holder sponsored by the sponsor;

(f) to cooperate with the Department’s monitoring of the sponsor or of a visa holder sponsored by the sponsor.

(2) The undertakings only have effect if the applicant consents in writing to sponsor that person. The applicant’s consent may be given either at the time the application for approval is made, or at a later date.

(3) The undertakings do not have effect until the visa is granted.

(4) Different undertakings may be prescribed for different kinds of visa (however described).

140I Amounts payable to the Commonwealth

(1) Without limiting the generality of subsection 140H(1), the regulations may prescribe an undertaking to pay to the Commonwealth:



Section 140J


(a) an amount of a kind prescribed in the regulations; or (b) an amount in relation to the costs of the Commonwealth

worked out in accordance with a method prescribed by reference to a determination by the Minister.

(2) The Minister may make a determination for the purposes of paragraph (1)(b) by notice in the Gazette.

(3) An undertaking to pay an amount to the Commonwealth is not enforceable against the person who made it to the extent that the amount which the person has undertaken to pay exceeds the costs of the Commonwealth in relation to which the undertaking is made.

(4) If a person (the sponsor) makes an undertaking in relation to the costs of the Commonwealth in locating and detaining another person, the undertaking is not enforceable against the sponsor to the extent that the amount which the sponsor has undertaken to pay in relation to those costs exceeds a limit prescribed in the regulations, as in force when the undertaking is made.

140J Cancelling or barring approval as a sponsor if undertakings breached

(1) This section applies if: (a) an approved sponsor of a person for a temporary visa

breaches an undertaking; or (b) a person who is no longer an approved sponsor of a person

for a temporary visa, but remains bound by an undertaking, breaches the undertaking.

(2) The regulations may prescribe: (a) circumstances in which the Minister may take one or more of

the actions mentioned in section 140L (cancelling or barring approval as a sponsor) as a result of the breach of the undertaking; and

(b) the criteria to be taken into account by the Minister in determining what action to take under that section.

(3) The regulations may prescribe circumstances in which the Minister must take one or more of the actions mentioned in section 140L (cancelling or barring approval as a sponsor) as a result of the breach of the undertaking.

Part 2 Control of arrival and presence of non-citizens Division 3A Sponsorship Section 140K


(4) Different circumstances and different criteria may be prescribed for different kinds of temporary visa (however described).

(5) This section does not deal with the cancellation of approval as a business sponsor (as defined in section 137A). Note: The cancellation of that kind of approval is dealt with by Subdivision

GA of Division 3.

140K Cancelling or barring approval as a sponsor in other circumstances

(1) The regulations may prescribe: (a) other circumstances in which the Minister may take one or

more of the actions mentioned in section 140L (cancelling or barring approval as a sponsor); and

(b) the criteria to be taken into account by the Minister in determining what action to take under that section.

(2) The regulations may prescribe other circumstances in which the Minister must take one or more of the actions mentioned in section 140L (cancelling or barring approval as a sponsor).

(3) No action is to be taken in relation to a person under regulations made under this section unless the person is:

(a) an approved sponsor of a person for a temporary visa; or (b) a former approved sponsor of a person for a temporary visa.


(5) This section does not deal with the cancellation of approval as a business sponsor (as defined in section 137A). Note: The cancellation of that kind of approval is dealt with by Subdivision

GA of Division 3.

140L Actions under sections 140J and 140K

The actions the Minister may (or must) take under section 140J or 140K in relation to a person (the sponsor) are:

(a) cancelling the approval of the sponsor for specified kinds of temporary visas (however described);



Section 140M


(b) cancelling the approval of the sponsor for all temporary visas;

(c) barring the sponsor, for a specified period, from sponsoring more people under the terms of one or more existing specified approvals for temporary visas;

(d) barring the sponsor, for a specified period, from sponsoring more people under the terms of all existing approvals for temporary visas;

(e) barring the sponsor, for a specified period, from making future applications for approval as a sponsor for specified kinds of temporary visa (however described) for which sponsorship is a criterion;

(f) barring the sponsor, for a specified period, from making future applications for approval as a sponsor for all temporary visas for which sponsorship is a criterion;

(g) barring the sponsor, for a specified period, from nominating a person or activity in relation to a temporary visa where the sponsor would otherwise be entitled to make the nomination under the regulations.

140M Right to take security under section 269 etc. not affected

Nothing in section 140J or 140K affects the right to require or take security under section 269, or the right to enforce such a security.

140N Process for cancelling or barring approval as a sponsor

(1) The regulations may establish a process for the Minister to cancel the approval of a person as a sponsor under section 140J or 140K.

(2) The regulations may establish a process for the Minister to place a bar on a person under section 140J or 140K.

(3) Different processes may be prescribed for different kinds of temporary visa (however described).

140O Waiving a bar

(1) This section applies to temporary visas of a prescribed kind (however described).

Part 2 Control of arrival and presence of non-citizens Division 3A Sponsorship Section 140P


(2) The Minister may, in prescribed circumstances, waive a bar placed on a person under section 140J or 140K in relation to a visa to which this section applies.

(3) The regulations may prescribe the criteria to be taken into account by the Minister in determining whether to waive the bar.


140P Process for waiving a bar

(1) The regulations may establish a process for the Minister to waive a bar placed on a person under section 140J or 140K.

(2) Different processes may be prescribed for different kinds of temporary visa (however described).

140Q Consequences if the visa holder or the sponsor changes status

(1) The regulations may prescribe the circumstances in which, and for how long, an undertaking arising out of the sponsorship of a particular temporary visa holder remains enforceable against the sponsor concerned if:

(a) the visa holder ceases to hold the visa for which he or she was sponsored; or

(b) the sponsor ceases to be an approved sponsor of the visa holder for the visa (whether because the approval is cancelled or for any other reason).

(2) Different circumstances and periods may be prescribed for different kinds of temporary visa (however described).

140R Joint and several liability for debts

(1) This section applies if: (a) an approved sponsor for a temporary visa is bound by an

undertaking to pay debts of another person (the primary debtor) that are of a kind specified in the undertaking; or

(b) a person who is no longer an approved sponsor for a temporary visa remains bound by an undertaking to pay debts of another person (the primary debtor) that are of a kind specified in the undertaking.



Section 140S


(2) The person bound by the undertaking is jointly and severally liable to pay the debts with the primary debtor.

(3) Without limiting any other provision of this Act, debts payable to a person under the undertaking may be recovered by the person as a debt due to the person in a court of competent jurisdiction.

140S Liability to pay other amounts

(1) This section does not apply to a debt dealt with in section 140R.

(2) Subject to subsection (1), this section applies if: (a) an approved sponsor for a temporary visa is bound by an

undertaking to pay an amount of a kind specified in the undertaking; or

(b) a person who is no longer an approved sponsor for a temporary visa remains bound by an undertaking to pay an amount of a kind specified in the undertaking.

(3) Without limiting any other provision of this Act, amounts payable to a person under the undertaking may be recovered by the person as a debt due to the person in a court of competent jurisdiction.

140T Notice regarding amount of debt or other amount

(1) Where a debt, or other amount, that a person has undertaken to pay to the Commonwealth becomes payable, the Minister may issue a notice in writing stating the amount of the debt or other amount.

(2) In any proceedings a notice under this section is prima facie evidence that the amount of the debt or other amount is that stated in the notice.

140U Liability is in addition to any other liability

Any liability created under this Division is in addition to any liability created under:

(a) this or any other Act; or (b) regulations made under this or any other Act.

Part 2 Control of arrival and presence of non-citizens Division 3A Sponsorship Section 140V


140V Disclosure of personal information in prescribed circumstances etc.

(1) The Minister may disclose to an approved sponsor or former approved sponsor personal information of a prescribed kind about a visa holder or former visa holder sponsored.

(2) The regulations may prescribe circumstances in which the Minister may disclose the personal information.

(3) The regulations may prescribe circumstances in which the approved sponsor, or former approved sponsor, may use or disclose personal information disclosed under subsection (1).

(4) If the Minister discloses personal information about a visa holder or former visa holder under subsection (1), the Minister must notify him or her in writing of the disclosure and of the details of the personal information disclosed.


personal information has the same meaning as in the Privacy Act 1988.

140W Other regulation making powers not limited etc.

(1) Regulations made for the purposes of this Division do not limit the power to make regulations under any other provision of this or any other Act.

(2) To avoid doubt, nothing in this Division is intended to affect: (a) regulations in force before or after the commencement of this

Division that were or are made under any other provision of this or any other Act; or

(b) anything done under those regulations.

(3) Nothing in paragraph (2)(a) affects the power to amend or repeal regulations mentioned in that paragraph.



Section 140X


Subdivision C—Application of the sponsorship system to partnerships and unincorporated associations

140X Application to partnerships

Subdivision B, and regulations made under it, apply to a partnership as if it were a person, but with the changes set out in sections 140Y to 140ZB.

140Y Sponsorship obligations and rights of partnership

(1) Subject to section 140ZA, a sponsorship obligation that would otherwise be imposed on a partnership is instead imposed on each person who is a partner:

(a) where the obligation arises before the sponsorship is approved—at the time the obligation arises; or

(b) where the obligation arises at any other time—at the time the sponsorship is approved.

(2) Subject to section 140ZA, a sponsorship right that would otherwise be exercisable by a partnership is instead a right exercisable by each person who is a partner:

(a) where the right arises before the sponsorship is approved—at the time the right arises; or

(b) where the right arises at any other time—at the time the sponsorship is approved.

(3) Subject to sections 140Z and 140ZA, the following persons are jointly and severally liable to pay an amount that would otherwise be payable by a partnership in relation to sponsorship or as a result of sponsorship:

(a) where the liability arises before the sponsorship is approved—each person who is a partner at the time the obligation arises;

(b) where the liability arises at any other time—each person who is a partner at the time the sponsorship is approved.

140Z New partners

(1) If a person becomes a partner in a partnership after it is approved as a sponsor, the new partner may elect to accept each sponsorship obligation that:

Part 2 Control of arrival and presence of non-citizens Division 3A Sponsorship Section 140ZA


(a) would, but for subsection 140Y(1) or any previous application of this section, be imposed on the partnership; and

(b) arises after the new partner makes the election.

(2) If the new partner accepts an obligation: (a) the obligation is imposed on the new partner instead of on the

partnership; and (b) the obligation is imposed on the new partner regardless of

whether it is also imposed on any other partner or retired partner.

(3) If: (a) a sponsorship right would, but for subsection 140Y(2) or any

previous application of this section, be exercisable by a partnership; and

(b) the right arises after the new partner makes an election under subsection (1) and does not arise because of a sponsorship obligation that existed before the election was made;

the right is: (c) exercisable by the new partner instead of by the partnership;

and (d) exercisable by the new partner regardless of whether it is also

exercisable by any other partner or retired partner.

(4) If: (a) a new partner accepts a sponsorship obligation by election

under subsection (1); and (b) a liability to pay an amount arises from the obligation;

then the new partner is jointly and severally liable to pay the amount together with:

(c) any other partner on whom the liability is also imposed under this section or section 140Y; and

(d) any retired partner who remains liable for the amount under section 140ZA.

140ZA Retiring partners

(1) If a partner leaves a partnership after it is approved as a sponsor, then, despite section 140Y, the regulations may prescribe:



Section 140ZB


(a) the circumstances in which, and for how long, a sponsorship obligation remains enforceable against the retiring partner; and

(b) the circumstances in which, and for how long, a sponsorship right is exercisable by the retiring partner; and

(c) which debts remain payable by the retiring partner.

(2) Different matters may be prescribed for different kinds of visa (however described).

140ZB Discharging sponsorship obligations and exercising sponsorship rights—partnerships

(1) A sponsorship obligation may be discharged by any of the partners in a partnership on whom the obligation is imposed under this Subdivision.

(2) A sponsorship right exercised by one of the partners in a partnership is taken to have been exercised on behalf of all of the partners who are entitled to exercise the right under this Subdivision.

140ZC Application to unincorporated associations

Subdivision B, and regulations made under it, apply to an unincorporated association as if it were a person, but with the changes set out in sections 140ZD to 140ZG.

140ZD Sponsorship obligations and rights of unincorporated associations

(1) Subject to section 140ZF, a sponsorship obligation that would otherwise be imposed on an unincorporated association is instead imposed on each person who is a member of the association’s committee of management:

(a) where the obligation arises before the sponsorship is approved—at the time the obligation arises; or

(b) where the obligation arises at any other time—at the time the sponsorship is approved.

(2) Subject to section 140ZF, a sponsorship right that would otherwise be exercisable by an unincorporated association is instead a right

Part 2 Control of arrival and presence of non-citizens Division 3A Sponsorship Section 140ZE


exercisable by each person who is a member of the association’s committee of management:

(a) where the right arises before the sponsorship is approved—at the time the right arises; or

(b) where the right arises at any other time—at the time the sponsorship is approved.

(3) Subject to sections 140ZE and 140ZF, the following persons are jointly and severally liable to pay an amount that would otherwise be payable by an unincorporated association in relation to sponsorship or as a result of sponsorship:

(a) where the liability arises before the sponsorship is approved—each person who is a member of the association’s committee of management at the time the obligation arises;

(b) where the liability arises at any other time—each person who is a member of the association’s committee of management at the time the sponsorship is approved.

140ZE New members of committees of management

(1) If a person becomes a member of the committee of management of an unincorporated association after it is approved as a sponsor, the new member may elect to accept each sponsorship obligation that:

(a) would, but for subsection 140ZD(1) or any previous application of this section, be imposed on the association; and

(b) arises after the new member makes the election.

(2) If the new member accepts an obligation: (a) the obligation is imposed on the new member instead of on

the association’s committee of management; and (b) the obligation is imposed on the new member regardless of

whether it is also imposed on any other member or former member.

(3) If: (a) a sponsorship right would, but for subsection 140ZD(2) or

any previous application of this section, be exercisable by an unincorporated association; and

(b) the right arises after the new member makes an election under subsection (1) and does not arise because of a



Section 140ZF


sponsorship obligation that existed before the election was made;

the right is: (c) exercisable by the new member instead of by the

association’s committee of management; and (d) exercisable by the new member regardless of whether it is

also exercisable by any other member or former member.

(4) If: (a) a new member of the committee of management of an

unincorporated association accepts a sponsorship obligation by election under subsection (1); and

(b) a liability to pay an amount arises from the obligation; then the new member is jointly and severally liable to pay the amount together with:

(c) any other member on whom the liability is also imposed under this section or section 140ZD; and

(d) any former member who remains liable for the amount under section 140ZF.

140ZF Former members of committees of management

(1) If a member of the committee of management of an unincorporated association leaves the committee after the association is approved as a sponsor, then, despite section 140ZD, the regulations may prescribe:

(a) the circumstances in which, and for how long, a sponsorship obligation remains enforceable against the former member; and

(b) the circumstances in which, and for how long, a sponsorship right is exercisable by the former member; and

(c) which debts remain payable by the former member.

(2) Different matters may be prescribed for different kinds of visa (however described).

140ZG Discharging sponsorship obligations and exercising sponsorship rights—unincorporated associations

(1) A sponsorship obligation may be discharged by any of the members of the committee of management of an unincorporated

Part 2 Control of arrival and presence of non-citizens Division 3A Sponsorship Section 140ZH


association on whom the obligation is imposed under this Subdivision.

(2) A sponsorship right exercised by one of the members of the committee of management of an unincorporated association is taken to have been exercised on behalf of all of the members who are entitled to exercise the right under this Subdivision.

140ZH Definitions


committee of management of an unincorporated association means a body (however described) that governs, manages or conducts the affairs of the association.

sponsorship obligation means an obligation in relation to sponsorship or as a result of sponsorship.

sponsorship right means a right in relation to sponsorship or as a result of sponsorship.


Criminal justice visitors Division 4

Section 141


Division 4—Criminal justice visitors

Subdivision A—Preliminary

141 Object of Division

This Division is enacted so that, if the administration of criminal justice requires the presence in Australia of a non-citizen, that non-citizen may be brought to, or allowed to stay in, Australia for the purposes of that administration.

142 Interpretation

In this Division:

administration of criminal justice means: (a) an investigation to find out whether an offence has been

committed; or (b) the prosecution of a person for an offence; or (c) the punishment by way of imprisonment of a person for the

commission of an offence.

Australia means the migration zone.

authorised official, in relation to a State, means a person authorised under section 144 to be an authorised official for that State.

criminal justice certificate means: (a) a criminal justice entry certificate; or (b) a criminal justice stay certificate.

criminal justice entry certificate means: (a) a certificate given under section 145; or (b) a certificate given under subsection 146(1) and endorsed

under subsection 146(2).

criminal justice entry visa has the meaning given by section 155.

criminal justice stay certificate means a certificate given under section 147 or 148.

Part 2 Control of arrival and presence of non-citizens Division 4 Criminal justice visitors Section 143


criminal justice stay visa has the meaning given by section 155.

criminal justice stay warrant means a warrant described in section 151.

criminal justice visa has the meaning given by section 38.

State includes Territory.

143 Delegation by Attorney-General

(1) The Attorney-General may, in writing, delegate any of his or her powers under this Division to:

(a) the Secretary to the Attorney-General’s Department; or (b) an SES employee, or acting SES employee, in that

Department.

(2) Subject to subsection (3), the Attorney-General may, in writing, delegate his or her power under section 147 to a commissioned police officer (within the meaning of the Australian Federal Police Act 1979).

(3) A delegation under subsection (2) must provide that: (a) the power may only be exercised in relation to a person at a

port; and (b) any certificate that is issued by the member is to remain in

force for no longer than 5 days.

(4) The Attorney-General may, at any time, by written notice, revoke a certificate issued by a person exercising a power delegated under subsection (2).

144 Authorised officials

The Attorney-General may, in writing, appoint as an authorised official for a State for the purposes of this Division:

(a) the Attorney-General of the State; or (b) a person holding an office under a law of the State that is like

the office of the Director of Public Prosecutions; or (c) the highest ranking member of the police force of the State.



Section 145


Subdivision B—Criminal justice certificates for entry

145 Commonwealth criminal justice entry certificate

If the Attorney-General considers that: (a) the temporary presence in Australia of a non-citizen who is

outside Australia is required for the purposes of: (i) the Extradition Act 1988; or (ia) the International War Crimes Tribunals Act 1995; or (ib) the International Criminal Court Act 2002; or (ii) the Mutual Assistance in Criminal Matters Act 1987; or (iii) the administration of criminal justice in relation to an

offence against a law of the Commonwealth; and (b) the presence of the non-citizen in Australia for the relevant

purposes would not hinder the national interest in any way to such an extent that the non-citizen should not be present in Australia; and

(c) satisfactory arrangements have been made to make sure that the person or organisation who wants the non-citizen for the relevant purposes or the non-citizen or both will meet the cost of bringing the non-citizen to, keeping the non-citizen in, and removing the non-citizen from, Australia;

the Attorney-General may give a certificate that the presence of the non-citizen in Australia is required for the administration of criminal justice.

146 State criminal justice entry certificate

(1) If an authorised official for a State considers that: (a) the temporary presence in Australia of a non-citizen who is

outside Australia is required for the purposes of the administration of criminal justice in relation to an offence against a law of the State; and

(b) satisfactory arrangements have been made to make sure that the person or organisation who wants the non-citizen for those purposes or the non-citizen or both will meet the cost of bringing the non-citizen to, keeping the non-citizen in, and removing the non-citizen from, Australia;



the official may give a certificate that the presence of the non-citizen in Australia is required for the administration of criminal justice by the State.

(2) If: (a) a certificate has been given under subsection (1) about a

non-citizen; and (b) the Attorney-General considers that the temporary presence

of the non-citizen in Australia in order to advance the administration of criminal justice by the State would not hinder the national interest in any way to such an extent that the non-citizen should not be present in Australia;

the Attorney-General may endorse the certificate with a statement that it is to be a criminal justice certificate for the purposes of this Division.

Subdivision C—Criminal justice certificates etc. staying removal or deportation

147 Commonwealth criminal justice stay certificate

If: (a) an unlawful non-citizen is to be, or is likely to be, removed or

deported; and (b) the Attorney-General considers that the non-citizen should

remain in Australia temporarily for the purposes of: (i) the Extradition Act 1988; or (ia) the International War Crimes Tribunals Act 1995; or (ib) the International Criminal Court Act 2002; or (ii) the Mutual Assistance in Criminal Matters Act 1987; or (iii) the administration of criminal justice in relation to an

offence against a law of the Commonwealth; and (c) the Attorney-General considers that satisfactory

arrangements have been made to make sure that the person or organisation who wants the non-citizen for the relevant purposes or the non-citizen or both will meet the cost of keeping the non-citizen in Australia;

the Attorney-General may give a certificate that the stay of the non-citizen’s removal or deportation is required for the administration of criminal justice.



Section 148


148 State criminal justice stay certificate

If: (a) an unlawful non-citizen is to be, or is likely to be, removed or

deported; and (b) an authorised official for a State considers that the

non-citizen should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to an offence against a law of the State; and

(c) that authorised official considers that satisfactory arrangements have been made to make sure that the person or organisation who wants the non-citizen for those purposes or the non-citizen or both will meet the cost of keeping the non-citizen in Australia;

the official may give a certificate that the stay of the non-citizen’s removal or deportation is required for the administration of criminal justice by the State.

149 Application for visa not to prevent certificate

A criminal justice stay certificate for a non-citizen may be given even though an application for a visa for the non-citizen has been made but not finalised.

150 Criminal justice stay certificates stay removal or deportation

If a criminal justice stay certificate about a non-citizen is in force, the non-citizen is not to be removed or deported.

151 Certain warrants stay removal or deportation

(1) If an unlawful non-citizen is to be, or is likely to be, removed or deported, this Act does not prevent a court issuing for the purposes of the administration of criminal justice in relation to an offence against a law a warrant to stay the removal or deportation.

(2) If a criminal justice stay warrant about a non-citizen is in force, the non-citizen is not to be removed or deported.

(3) If a court issues a criminal justice stay warrant about a non-citizen, the applicant for the warrant is responsible for the costs of any



maintenance, accommodation or immigration detention of the non-citizen while the warrant is in force.

152 Certain subjects of stay certificates and stay warrants may be detained etc.

If: (a) a criminal justice stay certificate or a criminal justice stay

warrant about a non-citizen is in force; and (b) the non-citizen does not have a visa to remain in Australia;

the certificate or warrant does not limit any power under this Act relating to the detention of the non-citizen.

153 Removal or deportation not contempt etc. if no stay certificate or warrant

(1) Subject to subsection (2), if: (a) this Act requires the removal or deportation of a non-citizen;

and (b) there is no criminal justice stay certificate or criminal justice

stay warrant about the non-citizen; any other law, or anything done under any other law, of the Commonwealth or a State (whether passed or made before or after the commencement of this section), not being an Act passed after that commencement expressed to be exempt from this section, does not prevent the removal or deportation.

(2) Subsection (1) does not permit the removal or deportation of a non-citizen if that removal or deportation would be in breach of an order of the High Court, the Federal Court or the Federal Magistrates Court.

154 Officer not liable—criminal justice stay certificates or warrants

An officer is not liable to any civil or criminal action for doing in good faith, or failing in good faith to do, any act or thing for the purpose of exercising a power under this Act to keep a person who is the subject of a criminal justice stay certificate or criminal justice stay warrant in immigration detention.



Section 155


Subdivision D—Criminal justice visas

155 Criminal justice visas

(1) A criminal justice visa may be a visa permitting a non-citizen to travel to and enter, and remain temporarily in, Australia, to be known as a criminal justice entry visa.

(2) A criminal justice visa may be a visa permitting a non-citizen to remain temporarily in Australia, to be known as a criminal justice stay visa.

156 Criterion for criminal justice entry visas

A criterion for a criminal justice entry visa for a non-citizen is that a criminal justice entry certificate about the non-citizen is in force.

157 Criterion for criminal justice stay visas

A criterion for a criminal justice stay visa for a non-citizen is that either:

(a) a criminal justice stay certificate about the non-citizen is in force; or

(b) a criminal justice stay warrant about the non-citizen is in force.

158 Criteria for criminal justice visas

The criteria for a criminal justice visa for a non-citizen are, and only are:

(a) the criterion required by section 156 or 157; and (b) the criterion that the Minister, having had regard to: (i) the safety of individuals and people generally; and (ii) in the case of a criminal justice entry visa, arrangements

to ensure that if the non-citizen enters Australia, the non-citizen can be removed; and

(iii) any other matters that the Minister considers relevant; has decided, in the Minister’s absolute discretion, that it is appropriate for the visa to be granted.



159 Procedure for obtaining criminal justice visa

(1) If a criminal justice certificate, or a criminal justice stay warrant, in relation to a non-citizen is in force, the Minister may consider the grant of a criminal justice visa for the non-citizen.

(2) If the Minister, after considering the grant of a criminal justice visa for a non-citizen, is satisfied that the criteria for it have been met, the Minister may, in his or her absolute discretion:

(a) grant it by causing a record of it to be made; and (b) give such evidence of it as the Minister considers

appropriate.

160 Conditions of criminal justice visa

(1) The regulations may provide that criminal justice visas are subject to specified conditions.

(2) It is a condition of a criminal justice entry visa for a non-citizen that the non-citizen must not do any work in Australia, whether for reward or otherwise.

(3) In subsection (2):

work, in relation to a non-citizen, does not include work for the purposes for which there is a criminal justice certificate or criminal justice stay warrant about the non-citizen, including, if those purposes are or include the imprisonment of the non-citizen, work as a prisoner.

161 Effect of criminal justice visas

(1) A criminal justice entry visa for a non-citizen is permission for the non-citizen to travel to and enter and remain in Australia while it is in effect.

(2) A criminal justice stay visa for a non-citizen: (a) is permission for the non-citizen to remain in Australia while

it is in effect; and (b) if the non-citizen is in immigration detention, entitles the

non-citizen to be released from that detention.



Section 162


(3) A criminal justice visa for a person does not prevent the non-citizen leaving Australia.

(4) Subsection (3) does not limit the operation of any order or warrant of a court.

(5) The holder of a criminal justice entry visa may not apply for a visa other than a protection visa.

(6) If a non-citizen who has held a criminal justice entry visa remains in Australia when the visa is cancelled, the non-citizen may not make an application for a visa other than a protection visa.

Subdivision E—Cancellation etc. of criminal justice certificates and criminal justice visas

162 Criminal justice certificates to be cancelled

(1) If the presence in Australia of a non-citizen in respect of whom a criminal justice certificate has been given is no longer required for the purposes for which it was given, then:

(a) if it was given under section 145 or 147, the Attorney-General; or

(b) if it was given under section 146 or 148—an authorised official;

is to cancel it.

(2) Before cancelling the certificate, the Attorney-General or authorised official is, an adequate time before doing so, to tell the Secretary:

(a) when it is to be cancelled; and (b) the expected whereabouts of the non-citizen when it is

cancelled; and (c) the arrangements for the non-citizen’s departure from

Australia.

163 Stay warrant to be cancelled

(1) If: (a) the presence in Australia of a non-citizen in respect of whom

a criminal justice stay warrant has been given is no longer required for the purposes for which it was given; and



(b) if the warrant is to expire at a certain time—that time has not been reached;

a person entitled to apply for the warrant’s cancellation must apply to the court for the cancellation.

(2) The applicant for a criminal justice stay warrant in respect of a non-citizen is to tell the Secretary a reasonable time before the warrant expires:

(a) the time it will expire; and (b) the expected whereabouts of the non-citizen at the time of

expiry; and (c) the arrangements for the non-citizen’s departure from

Australia.

(3) An applicant for the cancellation of a criminal justice stay warrant is to tell the Secretary, as soon as practicable:

(a) the time of cancellation for which application will be made; and

(b) if the time of cancellation is different from that applied for, the time of cancellation; and

(c) the expected whereabouts of the non-citizen at the expected time, and, if paragraph (b) applies, the time of cancellation; and

(d) the arrangements for the non-citizen’s departure from Australia.

164 Effect of cancellation etc. on criminal justice visa

If: (a) a criminal justice certificate is cancelled; or (b) a criminal justice stay warrant is cancelled or expires;

any criminal justice visa granted because of the certificate or warrant is cancelled and the Minister is to make a record of the cancellation.


Enforcement visas Division 4A

Section 164A


Division 4A—Enforcement visas

164A Definitions

In this Division:

Commonwealth aircraft has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.

Commonwealth ship has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.

enforcement visa (environment matters) means an enforcement visa that is granted by section 164BA.

enforcement visa (fisheries matters) means an enforcement visa that is granted by section 164B.

environment detention means detention under Schedule 1 to the Environment Protection and Biodiversity Conservation Act 1999.

fisheries detention means detention under: (a) Schedule 1A to the Fisheries Management Act 1991; or (b) Schedule 2 to the Torres Strait Fisheries Act 1984.

master has the same meaning as in the Fisheries Management Act 1991.

164B Grant of enforcement visas (fisheries matters)

Non-citizen on foreign boat outside migration zone

(1) A non-citizen on a foreign boat outside the migration zone is granted an enforcement visa when, because a fisheries officer has reasonable grounds to believe that the boat has been used, is being used or is intended to be used in the commission of a fisheries detention offence, a fisheries officer:

(a) makes a requirement of the boat’s master under subparagraph 84(1)(k)(ii) or paragraph 84(1)(l) of the Fisheries Management Act 1991 or paragraph 42(1)(g) of the Torres Strait Fisheries Act 1984; or

Part 2 Control of arrival and presence of non-citizens Division 4A Enforcement visas Section 164B


(b) exercises his or her power under paragraph 84(1)(m) of the Fisheries Management Act 1991 or paragraph 42(1)(h) of the Torres Strait Fisheries Act 1984 in relation to the boat;

whichever occurs first. Note 1: Under subparagraph 84(1)(k)(ii) and paragraph 84(1)(l) of the

Fisheries Management Act 1991, a fisheries officer may require the master of a boat to bring or take the boat into the migration zone. Under paragraph 84(1)(m) of that Act, a fisheries officer may bring a boat into the migration zone.

Note 2: Under paragraph 42(1)(g) of the Torres Strait Fisheries Act 1984, a fisheries officer may require the master of a boat to bring or take the boat into the migration zone. Under paragraph 42(1)(h) of that Act, a fisheries officer may bring a boat into the migration zone.

Note 3: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)).

Extended operation of subsection (1)

(1A) The references in subsection (1) to subparagraph 84(1)(k)(ii) and paragraphs 84(1)(l) and (m) of the Fisheries Management Act 1991 are to those provisions:

(a) as they apply of their own force; and (b) as they apply because of section 87, 87B, 87C or 87D of that

Act.

Non-citizen in migration zone

(2) A non-citizen in the migration zone who does not already hold an enforcement visa is granted an enforcement visa when he or she is detained by a fisheries officer under Schedule 1A to the Fisheries Management Act 1991 or Schedule 2 to the Torres Strait Fisheries Act 1984. Note: The grant of an enforcement visa effectively cancels any temporary

visa that the non-citizen may have held (see subsection 82(2A)).

Non-citizen in prescribed circumstances

(3) An enforcement visa is granted to a non-citizen (who does not already hold an enforcement visa) when a fisheries officer exercises under the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984 a prescribed power in prescribed circumstances in relation to the non-citizen. The visa is granted at the time the power is exercised.



Section 164B


Note: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)).

Non-citizen on foreign boat in prescribed circumstances

(4) An enforcement visa is granted to a non-citizen (who does not already hold an enforcement visa) who was on a foreign boat when a fisheries officer exercises under the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984 a prescribed power in prescribed circumstances in relation to the boat. The visa is granted at the time the power is exercised. Note: The grant of an enforcement visa effectively cancels any temporary


Enforcement visas granted by force of this section

(5) To avoid doubt, an enforcement visa is granted by force of this section. Note: No administrative action under this Act is necessary to grant the visa.

Exception if Minister’s declaration in force

(6) Despite subsections (1), (2), (3) and (4), a non-citizen is not granted an enforcement visa if a declaration under subsection (7) is in force in relation to:

(a) the non-citizen; or (b) a class of persons of which the non-citizen is a member.

Declaration


Section does not apply to Australian residents

(8) This section does not apply to non-citizens who are Australian residents as defined in the Fisheries Management Act 1991.

Part 2 Control of arrival and presence of non-citizens Division 4A Enforcement visas Section 164BA


164BA Grant of enforcement visas (environment matters)

Non-citizen on vessel (environment matters) outside migration zone

(1) A non-citizen on a vessel (environment matters) outside the migration zone is granted an enforcement visa when, because an environment officer, or the person in command of a Commonwealth ship or a Commonwealth aircraft, has reasonable grounds to suspect that the vessel has been used or otherwise involved in the commission of an environment detention offence, the environment officer or person in command:

(a) exercises his or her power under paragraph 403(3)(a) of the Environment Protection and Biodiversity Conservation Act 1999 in relation to the vessel; or

(b) makes a requirement of the person in charge of the vessel under paragraph 403(3)(b) of the Environment Protection and Biodiversity Conservation Act 1999;

whichever occurs first. Note 1: Under paragraph 403(3)(a) of the Environment Protection and

Biodiversity Conservation Act 1999, an environment officer, or the person in command of a Commonwealth ship or a Commonwealth aircraft, may bring a vessel into the migration zone. Under paragraph 403(3)(b) of that Act, an environment officer, or the person in command of a Commonwealth ship or a Commonwealth aircraft, may require the person in charge of a vessel to bring the vessel into the migration zone.

Note 2: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)).

Non-citizen in migration zone

(2) A non-citizen in the migration zone who does not already hold an enforcement visa is granted an enforcement visa when he or she is detained by an environment officer under Schedule 1 to the Environment Protection and Biodiversity Conservation Act 1999. Note: The grant of an enforcement visa effectively cancels any temporary


Non-citizen in prescribed circumstances

(3) An enforcement visa is granted to a non-citizen (who does not already hold an enforcement visa) when an environment officer exercises under the Environment Protection and Biodiversity



Section 164BA


Conservation Act 1999 a prescribed power in prescribed circumstances in relation to the non-citizen. The visa is granted at the time the power is exercised. Note: The grant of an enforcement visa effectively cancels any temporary


Non-citizen on vessel or aircraft in prescribed circumstances

(4) An enforcement visa is granted to a non-citizen (who does not already hold an enforcement visa) who was on a vessel (environment matters) or a foreign aircraft (environment matters) when an environment officer exercises under the Environment Protection and Biodiversity Conservation Act 1999 a prescribed power in prescribed circumstances in relation to the vessel or aircraft. The visa is granted at the time the power is exercised. Note: The grant of an enforcement visa effectively cancels any temporary


Enforcement visas granted by force of this section

(5) To avoid doubt, an enforcement visa is granted by force of this section. Note: No administrative action under this Act is necessary to grant the visa.

Exception if Minister’s declaration in force

(6) Despite subsections (1), (2), (3) and (4), a non-citizen is not granted an enforcement visa if a declaration under subsection (7) is in force in relation to:

(a) the non-citizen; or (b) a class of persons of which the non-citizen is a member.

Declaration


Part 2 Control of arrival and presence of non-citizens Division 4A Enforcement visas Section 164C


Section does not apply to Australian residents

(8) This section does not apply to non-citizens who are Australian residents as defined in Schedule 1 to the Environment Protection and Biodiversity Conservation Act 1999.

164C When enforcement visa ceases to be in effect

Enforcement visa (fisheries matters)—non-citizen in fisheries detention

(1) The enforcement visa (fisheries matters) of a non-citizen who is in fisheries detention ceases to be in effect:

(a) at the time the non-citizen is released, or escapes, from fisheries detention; or

(b) at the time the Minister makes a declaration under subsection 164B(7) in relation to the non-citizen, or a class of persons of which the non-citizen is a member; or

(c) on the occurrence of a prescribed event; whichever occurs first.

Enforcement visa (fisheries matters)—non-citizen not in fisheries detention

(2) The enforcement visa (fisheries matters) of a non-citizen who is not in fisheries detention ceases to be in effect:

(a) at the time a decision is made not to charge the non-citizen with a fisheries detention offence; or

(b) at the time the Minister makes a declaration under subsection 164B(7) in relation to the non-citizen, or a class of persons of which the non-citizen is a member; or


Enforcement visa (environment matters)—non-citizen in environment detention

(3) The enforcement visa (environment matters) of a non-citizen who is in environment detention ceases to be in effect:

(a) at the time the non-citizen is released, or escapes, from environment detention; or



Section 164D


(b) at the time the Minister makes a declaration under subsection 164BA(7) in relation to the non-citizen, or a class of persons of which the non-citizen is a member; or


Enforcement visa (environment matters)—non-citizen not in environment detention

(4) The enforcement visa (environment matters) of a non-citizen who is not in environment detention ceases to be in effect:

(a) at the time a decision is made not to charge the non-citizen with an environment detention offence; or

(b) at the time the Minister makes a declaration under subsection 164BA(7) in relation to the non-citizen, or a class of persons of which the non-citizen is a member; or


164D Applying for other visas

(1) The holder of an enforcement visa may not apply for a visa other than a protection visa while he or she is in Australia.

(2) While a non-citizen who has held an enforcement visa remains in Australia when the visa ceases to be in effect, the non-citizen may not apply for a visa other than a protection visa.

Part 2 Control of arrival and presence of non-citizens Division 5 Immigration clearance Section 165


Division 5—Immigration clearance

165 Interpretation

In this Division:

clearance authority means: (a) a clearance officer; or (b) an authorised system.

clearance officer means an officer, or other person, authorised by the Minister to perform duties for the purposes of this Division.

eligible passport means a passport of a kind specified in a determination under section 175A.

on-port, in relation to a person, means a port in Australia to which the person will travel after entering Australia at another port.

overseas vessel means: (a) a vessel on which persons travel from outside Australia to a

port and then to an on-port or ports; or (b) a vessel on which persons travel from a port to another port

or ports and then to a place outside Australia.

166 Persons entering to present certain evidence of identity etc.

Requirement to be immigration cleared

(1) A person, whether a citizen or a non-citizen, who enters Australia must, without unreasonable delay:

(a) present the following evidence (which might include a personal identifier referred to in subsection (5)) to a clearance authority:

(i) if the person is a citizen (whether or not the person is also the national of a country other than Australia)—the person’s Australian passport or prescribed other evidence of the person’s identity and Australian citizenship;


Immigration clearance Division 5

Section 166


(ii) if the person is a non-citizen—evidence of the person’s identity and of a visa that is in effect and is held by the person; and

(b) provide to a clearance authority any information (including the person’s signature, but not any other personal identifier) required by this Act or the regulations; and

(c) if the person is a non-citizen and prescribed circumstances exist—comply with any requirement, made by a clearance authority before an event referred to in subparagraph 172(1)(a)(iii) or (b)(iii) or paragraph 172(1)(c) occurs, to provide one or more personal identifiers referred to in subsection (5) of this section to a clearance officer.

Note: A person might be taken to have complied with this section under subsection 167(3) or (4) or might not be required to comply under section 168 or 169.

Who may use an authorised system

(2) A person may comply with a requirement referred to in subsection (1) to present evidence, or provide information, to an authorised system only if:

(a) the person holds an eligible passport; and (c) either: (i) before an event referred to in subparagraph

172(1)(a)(iii) or (b)(iii) or paragraph 172(1)(c) occurs, neither the system nor a clearance officer requires the person to present or provide evidence, information or personal identifiers referred to in subsection (1) of this section (other than a passenger card) to a clearance officer; or

(ii) if subparagraph (i) of this paragraph applies—a clearance officer determines that the person has complied with subsection (1) of this section.

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

(3) Subject to section 167, a person is to comply with paragraphs (1)(a) and (b) of this section in a prescribed way.

(4) A person is taken to have complied with subparagraph (1)(a)(i) if a clearance officer knows or reasonably believes that the person is an Australian citizen.



(5) Under paragraphs (1)(a) and (c), a person may only be required to present or provide (including in digital form) one or more of the following personal identifiers:

(a) a photograph or other image of the person’s face and shoulders;

(b) the person’s signature; (c) any other personal identifier contained in the person’s

passport or other travel document; (d) any other personal identifier of a type prescribed for the

purposes of this paragraph. Note: Division 13AB sets out further restrictions on the personal identifiers


Complying with paragraph (1)(c)

(6) Paragraph (1)(c) does not limit a clearance authority’s power under subparagraph (1)(a)(ii) to require a non-citizen to present to the authority evidence (which might include a personal identifier) of the non-citizen’s identity.

(7) A non-citizen is taken not to have complied with a requirement referred to in paragraph (1)(c) unless the one or more personal identifiers are provided by way of one or more identification tests carried out by an authorised officer. Note: If the types of identification tests that the authorised officer may carry


(8) However, subsection (7) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the non-citizen:



167 When and where evidence to be presented

(1) Subject to this section, a person required to comply with section 166 who enters Australia at a port must comply:

(a) if paragraph (b) or (c) does not apply—at that port; or



Section 168


(b) if the person is required by an officer to comply at a particular on-port—at that on-port; or

(c) if the person is allowed by an officer to comply at the port or a particular on-port—at either of them.

(2) Subject to subsection (4), a person required to comply with section 166 who enters Australia otherwise than at a port must comply at a prescribed place within a prescribed period after entering.

(3) If: (a) a person proposes to enter Australia; and (b) with the permission of a clearance officer, complies with

paragraphs 166(1)(a), (b) and (c) on the vessel on which the person travels to Australia and before entering Australia;

the person is taken to have complied with section 166.

(4) A person who travels to Australia on a pre-cleared flight: (a) must comply with paragraphs 166(1)(a) and (b) before

beginning the flight; and (b) if he or she so complies, is taken to have complied with

section 166.

168 Section 166 not to apply

(1) An allowed inhabitant of the Protected Zone who enters a protected area in connection with the performance of traditional activities is not required to comply with section 166.

(2) If an allowed inhabitant of the Protected Zone: (a) enters a protected area in connection with the performance of

traditional activities; and (b) goes from the protected area to a part of the migration zone

outside that area; he or she must comply with section 166 at a prescribed place within a prescribed period.

(3) A person in a prescribed class is not required to comply with section 166.



169 Section 166 not usually apply

If: (a) a person goes outside the migration zone; and (b) under section 80 is not taken to leave Australia;

the person is not, on re-entering the migration zone, taken to enter Australia for the purposes of section 166 but may be directed by a clearance officer to comply with that section.

170 Certain persons to present evidence of identity

Persons on overseas vessels may be required to present evidence of identity

(1) A person, whether a citizen or a non-citizen, who travels, or appears to intend to travel, on an overseas vessel from a port to another port may be required by a clearance officer at either port or by officers at both ports:

(a) to present to the officer or an authorised system prescribed evidence (which might include a personal identifier referred to in subsection (2A)) of the person’s identity; and

(b) to provide to the officer or an authorised system any information (including the person’s signature, but not any other personal identifier) required by this Act or the regulations.

Certain persons to provide personal identifiers

(2) If prescribed circumstances exist, a non-citizen who travels, or appears to intend to travel, on an overseas vessel from a port to another port must be required by a clearance authority at either or both ports to provide one or more personal identifiers referred to in subsection (2A) to a clearance officer.


(2AA) A person may comply with a requirement referred to in subsection (1) to present evidence, or provide information, to an authorised system only if:

(a) the person holds an eligible passport; and



Section 170


(c) either: (i) before the person leaves the port at which the

requirement is made, neither the system nor a clearance officer requires the person to present or provide evidence, information or personal identifiers referred to in subsection (1) or (2) (other than a passenger card) to a clearance officer; or

(ii) if subparagraph (i) applies—a clearance officer determines that the person has complied with the requirement referred to in subsection (1).

Complying with subsection (2)

(2A) Under paragraph (1)(a) and subsection (2), a person may only be required to present or provide (including in digital form) one or more of the following personal identifiers:






(3) Subsection (2) does not limit a clearance officer’s power under paragraph (1)(a) to require a non-citizen to present to the officer or an authorised system evidence (which might include a personal identifier) of the non-citizen’s identity.

(4) A non-citizen is taken not to have complied with a requirement referred to in subsection (2) unless the one or more personal identifiers are provided by way of one or more identification tests carried out by an authorised officer. Note: If the types of identification tests that the authorised officer may carry







171 Assistance with evidence

If a person: (a) cannot comply with section 166 by presenting evidence; and (b) requests the Department to assist him or her to obtain that

evidence; that assistance may be given but only on payment of, or agreement to pay, a prescribed fee to meet the cost of doing so.

172 Immigration clearance

When a person is immigration cleared

(1) A person is immigration cleared if, and only if: (a) the person: (i) enters Australia at a port; and (ii) complies with section 166; and (iii) leaves the port at which the person complied and so

leaves with the permission of a clearance authority and otherwise than in immigration detention; or

(b) the person: (i) enters Australia otherwise than at a port; and (ii) complies with section 166; and (iii) leaves the prescribed place at which the person

complied and so leaves with the permission of a clearance authority and otherwise than in immigration detention; or

(c) the person is refused immigration clearance, or bypasses immigration clearance, and is subsequently granted a substantive visa.



Section 172


When a person is in immigration clearance

(2) A person is in immigration clearance if the person: (a) is with an officer or at an authorised system for the purposes

of section 166; and (b) has not been refused immigration clearance.

When a person is refused immigration clearance

(3) A person is refused immigration clearance if the person: (a) is with a clearance officer for the purposes of section 166;

and (b) satisfies one or more of the following subparagraphs: (i) the person has his or her visa cancelled; (ii) the person refuses, or is unable, to present to a clearance

officer evidence referred to in paragraph 166(1)(a); (iii) the person refuses, or is unable, to provide to a

clearance officer information referred to in paragraph 166(1)(b);

(iv) the person refuses, or is unable, to comply with any requirement referred to in paragraph 166(1)(c) to provide one or more personal identifiers to a clearance officer.

When a person bypasses immigration clearance

(4) A person, other than a person who is refused immigration clearance, bypasses immigration clearance if:

(a) the person: (i) enters Australia at a port; and (ii) is required to comply with section 166; and (iii) leaves that port without complying; or (b) the person: (i) enters Australia otherwise than at a port; and (ii) is required to comply with section 166; and (iii) does not comply within the prescribed period for doing

so.



173 Visa ceases if holder enters in way not permitted

(1) If the holder of a visa enters Australia in a way that contravenes section 43, the visa ceases to be in effect.

(1A) A maritime crew visa held by a non-citizen does not cease to be in effect under subsection (1) if:

(a) the non-citizen travels to and enters Australia by air; and (b) at the time the non-citizen travels to and enters Australia, the

non-citizen holds another class of visa that is in effect.

174 Visa ceases if holder remains without immigration clearance

If the holder of a visa: (a) is required to comply with section 166; and (b) does not comply;

the visa ceases to be in effect.

175 Departing person to present certain evidence etc.

Departing persons may be required to present evidence etc.

(1) A clearance officer may require a person who is on board, or about to board, a vessel that is to leave Australia (whether or not after calling at places in Australia) to:

(a) present the following evidence (which might include a personal identifier referred to in subsection (2A)) to the officer or an authorised system:

(i) if the person is a citizen (whether or not the person is also the national of a country other than Australia)—the person’s Australian passport or prescribed other evidence of the person’s identity and Australian citizenship;

(ii) if the person is a non-citizen—evidence of the person’s identity and permission to remain in Australia; and

(b) provide to the officer or an authorised system any information (including the person’s signature, but not any other personal identifier) required by this Act or the regulations.



Section 175



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


(2AA) A person may comply with a requirement referred to in subsection (1) to present evidence, or provide information, to an authorised system only if:

(a) the person holds an eligible passport; and (c) either: (i) before the vessel leaves Australia, neither the system

nor a clearance officer requires the person to present or provide evidence, information or personal identifiers referred to in subsection (1) or (2) (other than a passenger card) to a clearance officer; or

(ii) if subparagraph (i) applies—a clearance officer determines that the person has complied with the requirement referred to in subsection (1).

Complying with paragraph (1)(a) and subsection (2)

(2A) Under paragraph (1)(a) and subsection (2), a person may only be required to present or provide (including in digital form) one or more of the following personal identifiers:






(3) Subsection (2) does not limit a clearance officer’s power under subparagraph (1)(a)(ii) to require a non-citizen to present to the

Part 2 Control of arrival and presence of non-citizens Division 5 Immigration clearance Section 175A


officer or an authorised system evidence (which might include a personal identifier) of the non-citizen’s identity.

(4) A non-citizen is taken not to have complied with a requirement referred to in subsection (2) unless the one or more personal identifiers are provided by way of one or more identification tests carried out by an authorised officer. Note: If the types of identification tests that the authorised officer may carry





175A Determinations relating to kinds of passports

For the purposes of this Division, the Minister or the Secretary may, by legislative instrument, determine that a specified kind of passport is an eligible passport.


Certain non-citizens to be kept in immigration detention Division 6

Section 176


Division 6—Certain non-citizens to be kept in immigration detention

176 Reason for Division

This Division is enacted because the Parliament considers that it is in the national interest that each non-citizen who is a designated person should be kept in immigration detention until he or she:

(a) leaves Australia; or (b) is given a visa.

177 Interpretation

In this Division:

boat means a vessel of any description, but does not include an aircraft.

commencement means the commencement of this Division.

designated person means a non-citizen who: (a) has been on a boat in the territorial sea of Australia after

19 November 1989 and before 1 September 1994; and (b) has not presented a visa; and (c) is in the migration zone; and (d) has not been granted a visa; and (e) is a person to whom the Department has given a designation

by: (i) determining and recording which boat he or she was on;

and (ii) giving him or her an identifier that is not the same as an

identifier given to another non-citizen who was on that boat;

and includes a non-citizen born in Australia whose mother is a designated person.

Part 2 Control of arrival and presence of non-citizens Division 6 Certain non-citizens to be kept in immigration detention Section 178


entry application, in relation to a person, means an application for: (a) a determination by the Minister that the person is a refugee;

or (b) a visa for the person.

178 Designated persons to be in immigration detention

(1) Subject to subsection (2), after commencement, a designated person must be kept in immigration detention.

(2) A designated person is to be released from immigration detention if, and only if, he or she is:

(a) removed from Australia under section 181; or (b) granted a visa under section 65, 351, 391, 417 or 454.

(3) This section is subject to section 182.

(4) To avoid doubt and despite section 182, if subsection 181(3) applies to a designated person, the person must be kept in immigration detention until the person is removed from Australia under that subsection.

179 Beginning of immigration detention of certain designated persons

(1) If, immediately after commencement, a designated person is in a place described in paragraph 11(a) (as in force at that time) or a processing area, he or she then begins to be in immigration detention for the purposes of section 178.

(2) If, immediately after commencement, a designated person is in the company of, and restrained by, a person described in paragraph 11(b) (as in force at that time), the designated person then begins to be in immigration detention for the purposes of section 178.

180 Detention of designated person

(1) If a designated person is not in immigration detention immediately after commencement, an officer may, without warrant:

(a) detain the person; and (b) take reasonable action to ensure that the person is kept in

immigration detention for the purposes of section 178.



Section 181


(2) Without limiting the generality of subsection (1), that subsection even applies to a designated person who was held in a place described in paragraph 11(a) (as in force at that time) or a processing area before commencement and whose release was ordered by a court.

(3) If a designated person escapes from immigration detention after commencement, an officer may, without warrant:

(a) detain the person; and (b) take reasonable action to ensure that the person is kept in

immigration detention for the purposes of section 178.

181 Removal from Australia of designated persons

(1) An officer must remove a designated person from Australia as soon as practicable if the designated person asks the Minister, in writing, to be removed.

(2) An officer must remove a designated person from Australia as soon as practicable if:

(a) the person has been in Australia for at least 2 months or, if a longer period is prescribed, at least that prescribed period; and

(b) there has not been an entry application for the person.

(3) An officer must remove a designated person from Australia as soon as practicable if:

(a) there has been an entry application for the person; and (b) the grant of the visa has been refused; and (c) all appeals against, or reviews of, the refusal (if any) have

been finalised.

(4) If: (a) 2 designated persons are liable to be removed from Australia

under this section; and (b) they are the parents of another designated person in Australia

who is under 18; the other designated person is to be removed from Australia.

(5) If: (a) a designated person is liable to be removed from Australia

under this section; and



(b) he or she is the only parent in Australia of another designated person in Australia who is under 18;

the other designated person is to be removed from Australia.

(6) If: (a) 2 designated persons are liable to be removed from Australia

under this section; and (b) they have the care and control of another designated person

in Australia who: (i) is under 18; and (ii) does not have a parent who is a designated person;


(7) If: (a) a designated person is liable to be removed from Australia

under this section; and (b) he or she is the only person who has the care and control of

another designated person in Australia who: (i) is under 18; and (ii) does not have a parent who is a designated person;


(8) This section is subject to section 182.

182 No immigration detention or removal after certain period

(1) Sections 178 and 181 cease to apply to a designated person who was in Australia on 27 April 1992 if the person has been in application immigration detention after commencement for a continuous period of, or periods whose sum is, 273 days.

(2) Sections 178 and 181 cease to apply to a designated person who was not in Australia on 27 April 1992, if:

(a) there has been an entry application for the person; and (b) the person has been in application immigration detention,

after the making of the application, for a continuous period of, or periods whose sum is, 273 days.

(3) For the purposes of this section, a person is in application immigration detention if:

(a) the person is in immigration detention; and



Section 182


(b) an entry application for the person is being dealt with; unless one of the following is happening:

(c) the Department is waiting for information relating to the application to be given by a person who is not under the control of the Department;

(d) the dealing with the application is at a stage whose duration is under the control of the person or of an adviser or representative of the person;

(e) court or tribunal proceedings relating to the application have been begun and not finalised;

(f) continued dealing with the application is otherwise beyond the control of the Department.

(4) To avoid doubt, an entry application that has been refused is not being dealt with within the meaning of paragraph (3)(b) because only there could be an appeal against, or an application for the review of, the refusal.

(5) If: (a) an entry application for a designated person has been refused;

and (b) because of a direction or decision of a court or tribunal, the

application is required to be considered further; whichever of subsection (1) or (2) applies to the designated person so applies as if the reference in it to 273 days were a reference to that number of days increased by 90 as well as by any number by which it has been increased under this subsection in relation to that entry application before.

(6) If: (a) an entry application for a designated person has been refused;

and (b) apart from this subsection, section 178 would cease to apply

to the person; and (c) the person begins court or tribunal proceedings in relation to

the refusal; that section applies to the person during both these proceedings and the period of 90 days after they end, whether or not this subsection has applied to that entry application before.



183 Courts must not release designated persons

A court is not to order the release from immigration detention of a designated person.

185 Effect of Division on status etc.

(1) This Division does not affect the other status that a designated person has under this Act except so far as the status is inconsistent with section 178, 179, 180, 181 or 183.

(2) This Division does not affect the rights of a designated person under this Act except so far as they, or their exercise, are inconsistent with section 178, 179, 180, 181 or 183.

(3) This Division does not affect any application made by a designated person under this Act except so far as the application, or the success of the application, is inconsistent with section 178, 179, 180, 181 or 183.

186 Division applies despite other laws

If this Division is inconsistent with another provision of this Act or with another law in force in Australia, whether written or unwritten, other than the Constitution:

(a) this Division applies; and (b) the other law only applies so far as it is capable of operating

concurrently with this Division.

187 Evidence

A statement by an officer, on oath or affirmation, that the Department has given a particular person a designation described in paragraph (e) of the definition of designated person in section 177 is conclusive evidence that the Department has given that person that designation.


Detention of unlawful non-citizens Division 7

Section 188


Division 7—Detention of unlawful non-citizens

Subdivision A—General provisions

188 Lawful non-citizen to give evidence of being so

Officer may require evidence

(1) An officer may require a person whom the officer knows or reasonably suspects is a non-citizen to:

(a) present to the officer evidence (which might include a personal identifier referred to in subsection (4A)) of being a lawful non-citizen; or

(b) present to the officer evidence (which might include a personal identifier referred to in subsection (4A)) of the person’s identity.

(2) The person must comply with the requirement within a period specified by the officer, being a prescribed period or such further period as the officer allows.

(3) Regulations prescribing a period for compliance may prescribe different periods and the circumstances in which a particular prescribed period is to apply which may be:

(a) when the requirement is oral; or (b) when the requirement is in writing.


(4) If prescribed circumstances exist, the officer must require the person to provide one or more personal identifiers referred to in subsection (4A) to an officer.

Complying with subsections (1) and (4)

(4A) Under subsections (1) and (4), a person may only be required to present or provide (including in digital form) one or more of the following personal identifiers:


(b) the person’s signature;

Part 2 Control of arrival and presence of non-citizens Division 7 Detention of unlawful non-citizens Section 189


(c) any other personal identifier contained in the person’s passport or other travel document;

(d) any other personal identifier of a type prescribed for the purposes of this paragraph.

Note: Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.

(5) Subsection (4) does not limit the officer’s power under subsection (1) to require the person to present to the officer evidence (which might include a personal identifier) of the person’s identity or evidence of the person being a lawful non-citizen.

(6) A person is taken not to have complied with a requirement referred to in subsection (4) unless the one or more personal identifiers are provided by way of one or more identification tests carried out by an authorised officer. Note: If the types of identification tests that the authorised officer may carry


(7) However, subsection (6) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the person:



189 Detention of unlawful non-citizens

(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

(2) If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a) is seeking to enter the migration zone (other than an excised offshore place); and

(b) would, if in the migration zone, be an unlawful non-citizen; the officer must detain the person.



Section 190


(3) If an officer knows or reasonably suspects that a person in an excised offshore place is an unlawful non-citizen, the officer may detain the person.

(4) If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a) is seeking to enter an excised offshore place; and (b) would, if in the migration zone, be an unlawful non-citizen;

the officer may detain the person.

(5) In subsections (3) and (4) and any other provisions of this Act that relate to those subsections, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force. Note: See Subdivision B for the Minister’s power to determine that people

who are required or permitted by this section to be detained may reside at places not covered by the definition of immigration detention in subsection 5(1).

190 Non-compliance with immigration clearance or section 192 basis of detention

(1) For the purposes of section 189, an officer suspects on reasonable grounds that a person in Australia is an unlawful non-citizen if, but not only if, the officer knows, or suspects on reasonable grounds, that the person:

(a) was required to comply with section 166; and (b) did one or more of the following: (i) bypassed, attempted to bypass, or appeared to attempt to

bypass, immigration clearance; (ii) went to a clearance authority but was not able to

present, or otherwise did not present, evidence required by section 166 to be presented;

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

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



(2) For the purposes of section 189, an officer suspects on reasonable grounds that a person in Australia is an unlawful non-citizen if, but not only if, that person fails to provide a personal identifier, under subsection 192(2A), of a type or types prescribed.

191 End of certain detention

(1) A person detained because of section 190 must be released from immigration detention if:

(a) the person gives evidence of his or her identity and Australian citizenship; or

(b) an officer knows or reasonably believes that the person is an Australian citizen; or

(c) the person complies with section 166 and either: (i) presents to a clearance officer evidence of being a

lawful non-citizen; or (ii) is granted a visa.

(2) A person detained because of subsection 190(2) must be released from immigration detention if:

(a) the person provides to an authorised officer one or more personal identifiers of the type or types prescribed, and the officer is satisfied that the person is not an unlawful non-citizen; or

(b) the person gives evidence of his or her identity and Australian citizenship; or

(c) an officer knows or reasonably believes that the person is an Australian citizen; or

(d) the officer becomes aware that the non-citizen’s visa is not one that may be cancelled under Subdivision C, D or G of Division 3 or section 501 or 501A.

192 Detention of visa holders whose visas liable to cancellation

(1) Subject to subsection (2), if an officer knows or reasonably suspects that a non-citizen holds a visa that may be cancelled under Subdivision C, D or G of Division 3 or section 501 or 501A, the officer may detain the non-citizen.



Section 192


(2) An officer must not detain an immigration cleared non-citizen under subsection (1) unless the officer reasonably suspects that if the non-citizen is not detained, the non-citizen would:

(a) attempt to evade the officer and other officers; or (b) otherwise not co-operate with officers in their inquiries about

the non-citizen’s visa and matters relating to the visa.

(2A) If a non-citizen is detained under subsection (1) and prescribed circumstances exist, the non-citizen must be required by an officer to provide one or more personal identifiers.

(2AA) An officer must not require, for the purposes of subsection (2A), a person to provide a personal identifier other than any of the following (including any of the following in digital form):






(2B) A non-citizen is taken not to have complied with a requirement referred to in subsection (2A) unless the one or more personal identifiers are provided by way of one or more identification tests carried out by an authorised officer. Note: If the types of identification tests that the authorised officer may carry


(2C) However, subsection (2B) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the non-citizen:



(3) An officer may question a non-citizen detained because of this section about the visa and matters relevant to the visa.



(4) A non-citizen detained under subsection (1) must be released from questioning detention if the officer becomes aware that the non-citizen’s visa is not one that may be cancelled under Subdivision C, D or G of Division 3 or section 501 or 501A.

(5) A non-citizen detained under subsection (1) must be released from detention within 4 hours after being detained, unless the non-citizen is detained under section 189 because of subsection 190(2).

(6) If the non-citizen has been detained because of subsection (1) more than once in any period of 48 hours, the 4 hours provided for by subsection (5) is reduced by so much of the earlier period of detention as occurred within that 48 hours.

(7) In finding out whether 4 hours have passed since a non-citizen was detained, the following times are to be disregarded:

(a) if the detainee is detained at a place that is inappropriate for questioning the detainee, the time that is reasonably required to take the detainee from that place to the nearest place that is appropriate;

(b) any time during which the questioning is suspended or delayed to allow the detainee, or someone else on the detainee’s behalf, to communicate with a legal practitioner, friend, relative, guardian, interpreter or consular representative of the country of which the detainee is a citizen;

(c) any time during which the questioning is suspended or delayed to allow a person so communicated with or an interpreter required by an officer to arrive at the place where the questioning is to take place;

(d) any time during which the questioning is suspended or delayed to allow the detainee to receive medical attention;

(e) any time during which the questioning is suspended or delayed because of the detainee’s intoxication;

(f) any reasonable time during which the questioning is suspended or delayed to allow the detainee to rest or recuperate.

(8) In paragraph (7)(b), guardian includes a person who is responsible, under a parenting order (within the meaning of the



Section 192A


Family Law Act 1975), for the detainee’s long-term care, welfare and development.

192A Authorisation of identification tests in certain cases

Requests that authorisation be obtained

(1) If a person is required, under section 188 or 192, to provide one or more personal identifiers, he or she may request that an authorisation be obtained under this section. If the person makes such a request, he or she cannot be taken not to have complied with the requirement unless the authorisation is obtained.

(2) If a minor or an incapable person is required, under section 188 or 192, to provide one or more personal identifiers:

(a) a parent or guardian of the minor or incapable person; or (b) if no parent or guardian of the minor or incapable person is

readily available—an independent person; may request that an authorisation be obtained under this section. If the parent, guardian or independent person makes such a request, the minor or incapable person cannot be taken not to have complied with the requirement unless the authorisation is obtained.

Applications for authorisation

(3) If, under subsection (1) or (2), a request has been made that an authorisation be obtained under this section, an authorised officer or officer must apply to a senior authorising officer for an authorisation relating to the person required to provide one or more personal identifiers.

(4) The senior authorising officer to whom the application is made must not be the authorised officer or officer who is requiring the person to provide one or more personal identifiers.

Authorisation

(5) The senior authorising officer must give the authorisation if he or she is reasonably satisfied that the person is:

(a) a person whom an officer, in the course of exercising or considering the exercising of his or her powers under section 188, knows or reasonably suspects is a non-citizen; or

(b) detained for questioning detention under section 192.



(6) An authorisation under subsection (5): (a) may be given by telephone, fax or other electronic means;

and (b) must be recorded in writing, and signed by the person giving

the authorisation, within one business day after it is given.

(7) A failure to comply with paragraph (6)(b) does not affect the validity of an identification test carried out on the basis of that authorisation.

(8) The power to give an authorisation under subsection (5) cannot be delegated to any other person.

Definition


senior authorising officer means an officer whom the Secretary has authorised, or who is included in a class of officers whom the Secretary has authorised, to perform the functions of a senior authorising officer under this section.

193 Application of law to certain non-citizens while they remain in immigration detention

(1) Sections 194 and 195 do not apply to a person: (a) detained under subsection 189(1): (i) on being refused immigration clearance; or (ii) after bypassing immigration clearance; or (iii) after being prevented from leaving a vessel under

section 249; or (iv) because of a decision the Minister has made personally

under section 501, 501A or 501B to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; or

(b) detained under subsection 189(1) who: (i) has entered Australia after 30 August 1994; and (ii) has not been immigration cleared since last entering; or (c) detained under subsection 189(2), (3) or (4); or



Section 194


(d) detained under section 189 who: (i) held an enforcement visa that has ceased to be in effect;

and (ii) has not been granted a substantive visa since the

enforcement visa ceased to be in effect.

(2) Apart from section 256, nothing in this Act or in any other law (whether written or unwritten) requires the Minister or any officer to:

(aa) give a person covered by subsection (1) an application form for a visa; or

(a) advise a person covered by subsection (1) as to whether the person may apply for a visa; or

(b) give a person covered by subsection (1) any opportunity to apply for a visa; or

(c) allow a person covered by subsection (1) access to advice (whether legal or otherwise) in connection with applications for visas.

(3) If: (a) a person covered by subsection (1) has not made a complaint

in writing to the Human Rights and Equal Opportunity Commission, paragraph 20(6)(b) of the Human Rights and Equal Opportunity Commission Act 1986 does not apply to the person; and

(c) a person covered by subsection (1) has not made a complaint to the Postal Industry Ombudsman, paragraph 7(3)(b) of the Ombudsman Act 1976 (as that paragraph applies because of section 19R of that Act) does not apply to the person.

(4) This section applies to a person covered by subsection (1) for as long as the person remains in immigration detention.

194 Detainee to be told of consequences of detention

As soon as reasonably practicable after an officer detains a person under section 189, the officer must ensure that the person is made aware of:

(a) the provisions of sections 195 and 196; and (b) if a visa held by the person has been cancelled under

section 137J—the provisions of section 137K.



195 Detainee may apply for visa

(1) A detainee may apply for a visa: (a) within 2 working days after the day on which section 194

was complied with in relation to his or her detention; or (b) if he or she informs an officer in writing within those

2 working days of his or her intention to so apply—within the next 5 working days after those 2 working days.

(2) A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.

195A Minister may grant detainee visa (whether or not on application)

Persons to whom section applies

(1) This section applies to a person who is in detention under section 189.

Minister may grant visa

(2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

(3) In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.

Minister not under duty to consider whether to exercise power

(4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

Minister to exercise power personally




Section 196


Tabling of information relating to the granting of visas

(6) If the Minister grants a visa under subsection (2), he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (7)):

(a) states that the Minister has granted a visa under this section; and

(b) sets out the Minister’s reasons for granting the visa, referring in particular to the Minister’s reasons for thinking that the grant is in the public interest.

(7) A statement under subsection (6) in relation to a decision to grant a visa is not to include:

(a) the name of the person to whom the visa is granted; or (b) any information that may identify the person to whom the

visa is granted; or (c) if 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 grant of the visa—the name of that other person or any information that may identify that other person.


(a) if the decision to grant the visa is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

(b) if the decision to grant the visa is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

196 Duration of detention

(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:

(a) removed from Australia under section 198 or 199; or (b) deported under section 200; or (c) granted a visa.

(2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.

(3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than



for removal or deportation) unless the non-citizen has been granted a visa.

(4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.

(4A) Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.

(5) To avoid doubt, subsection (4) or (4A) applies: (a) whether or not there is a real likelihood of the person

detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and

(b) whether or not a visa decision relating to the person detained is, or may be, unlawful.

(5A) Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.

(6) This section has effect despite any other law.


visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).

197 Effect of escape from immigration detention

If a non-citizen: (a) was in immigration detention; and (b) escaped from that detention; and (c) was taken back into that detention;

then, for the purposes of sections 194 and 195, the non-citizen is taken not to have ceased to be in immigration detention.



Section 197AA


Subdivision B—Residence determinations

197AA Persons to whom Subdivision applies

This Subdivision applies to a person who is required or permitted by section 189 to be detained, or who is in detention under that section.

197AB Minister may determine that person is to reside at a specified place rather than being held in detention centre etc.

(1) If the Minister thinks that it is in the public interest to do so, the Minister may make a determination (a residence determination) to the effect that one or more specified persons to whom this Subdivision applies are to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).

(2) A residence determination must: (a) specify the person or persons covered by the determination

by name, not by description of a class of persons; and (b) specify the conditions to be complied with by the person or

persons covered by the determination.

(3) A residence determination must be made by notice in writing to the person or persons covered by the determination.

197AC Effect of residence determination

Act and regulations apply as if person were in detention in accordance with section 189

(1) While a residence determination is in force, this Act and the regulations apply (subject to subsection (3)) to a person who is covered by the determination and who is residing at the place specified in the determination as if the person were being kept in immigration detention at that place in accordance with section 189.

(2) If: (a) a person covered by a residence determination is temporarily

staying at a place other than the place specified in the determination; and

Part 2 Control of arrival and presence of non-citizens Division 7 Detention of unlawful non-citizens Section 197AC


(b) the person is not breaching any condition specified in the determination by staying there;

then, for the purposes of subsection (1), the person is taken still to be residing at the place specified in the determination.

Certain provisions do not apply to people covered by residence determinations

(3) Subsection (1): (a) does not apply for the purposes of section 197 or 197A, or

any of sections 252AA to 252E; and (b) does not apply for the purposes of any other provisions of

this Act or the regulations that are specified in regulations made for the purposes of this paragraph.

What constitutes release from immigration detention?

(4) If: (a) a residence determination is in force in relation to a person;

and (b) a provision of this Act requires the person to be released

from immigration detention, or this Act no longer requires or permits the person to be detained;

then, at the time when paragraph (b) becomes satisfied, the residence determination, so far as it covers the person, is revoked by force of this subsection and the person is, by that revocation, released from immigration detention. Note: Because the residence determination is revoked, the person is no

longer subject to the conditions specified in the determination.

(5) If a person is released from immigration detention by operation of subsection (4), the Secretary must, as soon as possible, notify the person that he or she has been so released.

Secretary must ensure section 256 complied with

(6) The Secretary must ensure that a person covered by a residence determination is given forms and facilities as and when required by section 256.



Section 197AD


197AD Revocation or variation of residence determination

(1) If the Minister thinks that it is in the public interest to do so, the Minister may, at any time, revoke or vary a residence determination in any respect (subject to subsection (2)). Note 1: If a person covered by a residence determination does not comply

with a condition specified in the determination, the Minister may (subject to the public interest test) decide to revoke the determination, or to vary the determination by altering the conditions, whether by omitting or amending one or more existing conditions or by adding one or more additional conditions.

Note 2: If the Minister revokes a residence determination (without making a replacement determination) and a person covered by the determination is a person whom section 189 requires to be detained, the person will then have to be taken into detention at a place that is covered by the definition of immigration detention in subsection 5(1).

(2) Any variation of a residence determination must be such that the determination, as varied, will comply with subsections 197AB(1) and (2).

(3) A revocation or variation of a residence determination must be made by notice in writing to the person or persons covered by the determination.

197AE Minister not under duty to consider whether to exercise powers

The Minister does not have a duty to consider whether to exercise the power to make, vary or revoke a residence determination, whether he or she is requested to do so by any person, or in any other circumstances.

197AF Minister to exercise powers personally

The power to make, vary or revoke a residence determination may only be exercised by the Minister personally.

197AG Tabling of information relating to the making of residence determinations

(1) If the Minister makes a residence determination, he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (2)):

Part 2 Control of arrival and presence of non-citizens Division 7 Detention of unlawful non-citizens Section 197AG


(a) states that the Minister has made a determination under this section; and

(b) sets out the Minister’s reasons for making the determination, referring in particular to the Minister’s reasons for thinking that the determination is in the public interest.

(2) A statement under subsection (1) in relation to a residence determination is not to include:

(a) the name of any person covered by the determination; or (b) any information that may identify any person covered by the

determination; or (c) the address, name or location of the place specified in the

determination; or (d) any information that may identify the address, name or

location of the place specified in the determination; or (e) if 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 determination—the name of that other person or any information that may identify that other person.


(a) if the residence determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

(b) if the residence determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.


Offences relating to immigration detention Division 7A

Section 197A


Division 7A—Offences relating to immigration detention

197A Detainees must not escape from detention

A detainee must not escape from immigration detention.

Penalty: Imprisonment for 5 years.

197B Manufacture, possession etc. of weapons by detainees

(1) A detainee is guilty of an offence if he or she manufactures, possesses, uses or distributes a weapon.



weapon includes: (a) a thing made or adapted for use for inflicting bodily injury;

or (b) a thing where the detainee who has the thing intends or

threatens to use the thing, or intends that the thing be used, to inflict bodily injury.

Part 2 Control of arrival and presence of non-citizens Division 8 Removal of unlawful non-citizens Section 198


Division 8—Removal of unlawful non-citizens

198 Removal from Australia of unlawful non-citizens

(1) An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.

(1A) In the case of an unlawful non-citizen who has been brought to Australia under section 198B for a temporary purpose, an officer must remove the person as soon as reasonably practicable after the person no longer needs to be in Australia for that purpose (whether or not the purpose has been achieved).

(2) An officer must remove as soon as reasonably practicable an unlawful non-citizen:

(a) who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); and

(b) who has not subsequently been immigration cleared; and (c) who either: (i) has not made a valid application for a substantive visa

that can be granted when the applicant is in the migration zone; or

(ii) has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.

(2A) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a) the non-citizen is covered by subparagraph 193(1)(a)(iv); and (b) since the Minister’s decision (the original decision) referred

to in subparagraph 193(1)(a)(iv), the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and

(c) in a case where the non-citizen has been invited, in accordance with section 501C, to make representations to the Minister about revocation of the original decision—either:

(i) the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or


Removal of unlawful non-citizens Division 8

Section 198


(ii) the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the original decision.

Note: The only visa that the non-citizen could apply for is a protection visa or a visa specified in regulations under section 501E.

(3) The fact that an unlawful non-citizen is eligible to apply for a substantive visa that can be granted when the applicant is in the migration zone but has not done so does not prevent the application of subsection (2) or (2A) to him or her.

(5) An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen:

(a) is a detainee; and (b) was entitled to apply for a visa in accordance with

section 195, to apply under section 137K for revocation of the cancellation of a visa, or both, but did neither.

(6) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a) the non-citizen is a detainee; and (b) the non-citizen made a valid application for a substantive

visa that can be granted when the applicant is in the migration zone; and

(c) one of the following applies: (i) the grant of the visa has been refused and the

application has been finally determined; (iii) the visa cannot be granted; and (d) the non-citizen has not made another valid application for a

substantive visa that can be granted when the applicant is in the migration zone.


(a) the non-citizen is a detainee; and (b) Subdivision AI of Division 3 of this Part applies to the

non-citizen; and (c) either: (i) the non-citizen has not been immigration cleared; or



(ii) the non-citizen has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(d) either: (i) the Minister has not given a notice under paragraph

91F(1)(a) to the non-citizen; or (ii) the Minister has given such a notice but the period

mentioned in that paragraph has ended and the non-citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.


(a) the non-citizen is a detainee; and (b) Subdivision AJ of Division 3 of this Part applies to the

non-citizen; and (c) either: (i) the Minister has not given a notice under subsection

91L(1) to the non-citizen; or (ii) the Minister has given such a notice but the period

mentioned in that subsection has ended and the non-citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.


(a) the non-citizen is a detainee; and (b) Subdivision AK of Division 3 of this Part applies to the

non-citizen; and (c) either: (i) the non-citizen has not been immigration cleared; or (ii) the non-citizen has not made a valid application for a

substantive visa that can be granted when the applicant is in the migration zone; and

(d) either: (i) the Minister has not given a notice under subsection

91Q(1) to the non-citizen; or



Section 198A


(ii) the Minister has given such a notice but the period mentioned in that subsection has ended and the non-citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.

(10) For the purposes of subsections (6) to (9), a valid application under section 137K for revocation of the cancellation of a visa is treated as though it were a valid application for a substantive visa that can be granted when the applicant is in the migration zone.

198A Offshore entry person may be taken to a declared country

(1) An officer may take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3).

(2) The power under subsection (1) includes the power to do any of the following things within or outside Australia:

(a) place the person on a vehicle or vessel; (b) restrain the person on a vehicle or vessel; (c) remove the person from a vehicle or vessel; (d) use such force as is necessary and reasonable.

(3) The Minister may: (a) declare in writing that a specified country: (i) provides access, for persons seeking asylum, to

effective procedures for assessing their need for protection; and

(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and

(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and

(iv) meets relevant human rights standards in providing that protection; and

(b) in writing, revoke a declaration made under paragraph (a).

(4) An offshore entry person who is being dealt with under this section is taken not to be in immigration detention (as defined in subsection 5(1)).

Part 2 Control of arrival and presence of non-citizens Division 8 Removal of unlawful non-citizens Section 198B


(5) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.

198B Power to bring transitory persons to Australia

(1) An officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia.

(2) The power under subsection (1) includes the power to do any of the following things within or outside Australia:

(a) place the person on a vehicle or vessel; (b) restrain the person on a vehicle or vessel; (c) remove the person from a vehicle or vessel; (d) use such force as is necessary and reasonable.

(3) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.

198C Certain transitory persons entitled to assessment of refugee status

(1) If a transitory person is brought to Australia under section 198B and remains in Australia for a continuous period of 6 months, then the person is entitled to make a request under this section.

(2) The person may make a request to the Refugee Review Tribunal for an assessment of whether the person is covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol.

(3) On receiving such a request, the Tribunal must notify the Secretary. The Tribunal cannot commence the assessment earlier than 14 days after notifying the Secretary.

(4) The Tribunal cannot commence, or continue, the assessment at any time when a certificate by the Secretary is in force under section 198D.

(5) Divisions 4, 6, 7 and 7A of Part 7 apply for the purposes of the assessment in the same way as they apply to a review by the Tribunal under Part 7.



Section 198D


(6) Subject to section 441G, the Tribunal must notify the person and the Minister of its decision on the request.

(7) The decision of the Tribunal is final and cannot be challenged in any court. However, this is not intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

(8) If the Tribunal decides that the person is covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol:

(a) the Minister must determine a class of visa in relation to the person for the purposes of this subsection; and

(b) if the person later makes an application for a visa of that class, then section 46B does not apply to the application.

(9) A person who has made a request under this section is not entitled to make any further request under this section while the person remains in Australia.

198D Certificate of non-cooperation

(1) If the Secretary is satisfied that a transitory person has engaged in uncooperative conduct, either before or after the person was brought to Australia, then the Secretary may issue a certificate to that effect to the Tribunal.

(2) A decision of the Secretary to issue, revoke or vary a certificate is final and cannot be challenged in any court. However, this is not intended to affect the jurisdiction of the High Court under section 75 of the Constitution. Note: Subsection 33(3) of the Acts Interpretation Act 1901 allows the

certificate to be revoked or varied.


uncooperative conduct means refusing or failing to cooperate with relevant authorities in connection with any of the following:

(a) attempts to return the person to a country where the person formerly resided;

(b) attempts to facilitate the entry or stay of the person in another country;

(c) the detention of the person in a country in respect of which a declaration is in force under subsection 198A(3).



199 Dependants of removed non-citizens

(1) If: (a) an officer removes, or is about to remove, an unlawful

non-citizen; and (b) the spouse of that non-citizen requests an officer to also be

removed from Australia; an officer may remove the spouse as soon as reasonably practicable.

(2) If: (a) an officer removes, or is about to remove an unlawful

non-citizen; and (b) the spouse of that non-citizen requests an officer to also be

removed from Australia with a dependent child or children of that non-citizen;

an officer may remove the spouse and dependent child or children as soon as reasonably practicable.

(3) If: (a) an officer removes, or is about to remove, an unlawful

non-citizen; and (b) that non-citizen requests an officer to remove a dependent

child or children of the non-citizen from Australia; an officer may remove the dependent child or children as soon as reasonably practicable.


Deportation Division 9

Section 200


Division 9—Deportation

200 Deportation of certain non-citizens

The Minister may order the deportation of a non-citizen to whom this Division applies.

201 Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes

Where: (a) a person who is a non-citizen has, either before or after the

commencement of this section, been convicted in Australia of an offence;

(b) when the offence was committed the person was a non-citizen who:

(i) had been in Australia as a permanent resident: (A) for a period of less than 10 years; or (B) for periods that, when added together, total less

than 10 years; or (ii) was a citizen of New Zealand who had been in Australia

as an exempt non-citizen or a special category visa holder:

(A) for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or

(B) for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and

(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;

section 200 applies to the person.

202 Deportation of non-citizens upon security grounds

(1) Where: (a) it appears to the Minister that the conduct (whether in

Australia or elsewhere and either before or after the

Part 2 Control of arrival and presence of non-citizens Division 9 Deportation Section 202


commencement of this subsection) of a non-citizen referred to in paragraph 201(b) constitutes, or has constituted, a threat to security; and

(b) the Minister has been furnished with an adverse security assessment in respect of the non-citizen by the Organisation, being an assessment made for the purposes of this subsection;

then, subject to this section, section 200 applies to the non-citizen.

(2) Where: (a) subsection (1) applies in relation to a non-citizen; (b) the adverse security assessment made in respect of the

non-citizen is not an assessment to which a certificate given in accordance with paragraph 38(2)(a) of the Australian Security Intelligence Organisation Act 1979 applies; and

(c) the non-citizen applies to the Tribunal for a review of the security assessment before the end of 30 days after the receipt by the non-citizen of notice of the assessment and the Tribunal, after reviewing the assessment, finds that the security assessment should not have been an adverse security assessment;

section 200 does not apply to the non-citizen.

(3) Where: (a) subsection (1) applies in relation to a non-citizen; (b) the adverse security assessment made in respect of the

non-citizen is an assessment to which a certificate given in accordance with paragraph 38(2)(a) of the Australian Security Intelligence Organisation Act 1979 applies; and

(c) the Attorney-General has, in accordance with section 65 of that Act, required the Tribunal to review the assessment;

section 200 does not apply to the non-citizen unless, following the receipt by the Attorney-General of the findings of the Tribunal, the Attorney-General advises the Minister that the Tribunal has confirmed the assessment.

(4) A notice given by the Minister pursuant to subsection 38(1) of the Australian Security Intelligence Organisation Act 1979 informing a person of the making of an adverse security assessment, being an assessment made for the purposes of subsection (1) of this section, shall contain a statement to the effect that the assessment was made



Section 203


for the purposes of subsection (1) of this section and that the person may be deported under section 200 because of section 202.

(5) Despite subsection 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal must not extend beyond the period of 28 days referred to in subsection 29(2) of that Act the time within which a person may apply to the Tribunal for a review of an adverse security assessment made for the purposes of subsection (1) of this section.


adverse security assessment, security assessment and Tribunal have the same meanings as they have in Part IV of the Australian Security Intelligence Organisation Act 1979.

Organisation means the Australian Security Intelligence Organisation.

security has the meaning given by section 4 of the Australian Security Intelligence Organisation Act 1979.

203 Deportation of non-citizens who are convicted of certain serious offences

(1) Where: (a) a person who is a non-citizen has, either before or after the

commencement of this subsection, been convicted in Australia of an offence;

(b) at the time of the commission of the offence the person was not an Australian citizen; and

(c) the offence is: (i) an offence against section 24AA, 24AB, 25 or 26 of the

Crimes Act 1914; or (ia) an offence against Division 80 of the Criminal Code; or (ii) an offence against section 6 of the Crimes Act 1914 that

relates to an offence mentioned in subparagraph (i) or (ia) of this paragraph; or

(iia) an offence against section 11.1 or 11.5 of the Criminal Code that relates to an offence mentioned in subparagraph (i) or (ia) of this paragraph; or



(iii) an offence against a law of a State or of any internal or external Territory that is a prescribed offence for the purposes of this subparagraph;

then, subject to this section, section 200 applies to the non-citizen.

(2) Section 200 does not apply to a non-citizen because of this section unless the Minister has first served on the non-citizen a notice informing the non-citizen that he or she proposes to order the deportation of the non-citizen, on the ground specified in the notice, unless the non-citizen requests, by notice in writing to the Minister, within 30 days after receipt by him or her of the Minister’s notice, that his or her case be considered by a Commissioner appointed for the purposes of this section.

(3) If a non-citizen on whom a notice is served by the Minister under subsection (2) duly requests, in accordance with the notice, that his or her case be considered by a Commissioner appointed for the purposes of this section, the Minister may, by notice in writing, summon the non-citizen to appear before a Commissioner specified in the notice at the time and place specified in the notice.

(4) A Commissioner for the purposes of this section shall be appointed by the Governor-General and shall be a person who is or has been a Judge of a Federal Court or of the Supreme Court of a State or Territory, or a barrister or solicitor of the High Court or of the Supreme Court of a State or Territory of not less than 5 years’ standing.

(5) The Commissioner shall, after investigation in accordance with subsection (6), report to the Minister whether he or she considers that the ground specified in the notice under subsection (2) has been established.

(6) The Commissioner shall make a thorough investigation of the matter with respect to which he or she is required to report, without regard to legal forms, and shall not be bound by any rules of evidence but may inform himself or herself on any relevant matter in such manner as he or she thinks fit.

(7) Where a notice has been served on a non-citizen under subsection (2), section 200 does not apply to the non-citizen because of this section unless:



Section 204


(a) the non-citizen does not request, in accordance with the notice, that his or her case be considered by a Commissioner;

(b) the non-citizen, having been summoned under this section to appear before a Commissioner, fails so to appear at the time and place specified in the summons; or

(c) a Commissioner reports under this section in relation to the non-citizen that he or she considers that the ground specified in the notice has been established.

204 Determination of time for sections 201 and 202

(1) Where a person has been convicted of any offence (other than an offence the conviction in respect of which was subsequently quashed) the period (if any) for which the person was confined in a prison for that offence shall be disregarded in determining, for the purposes of section 201 and subsection 202(1), the length of time that that person has been present in Australia as a permanent resident or as an exempt non-citizen or a special category visa holder.

(2) In section 201 and subsection 202(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; or

(b) in relation to any period starting on or after 2 April 1984 and ending on or before 19 December 1989—the person who was, during that period, a prohibited non-citizen within the meaning of this Act as in force in that period; or

(c) in relation to any period starting on or after 20 December 1989 and ending before the commencement of section 7 of the Migration Reform Act 1992—the person who was, during that period, an illegal entrant within the meaning of this Act as in force in that period; or

(d) in relation to any later period—the person who is, during that later period, an unlawful non-citizen.



(3) For the purposes of this section: (a) a reference to a prison includes a reference to any custodial

institution at which a person convicted of an offence may be required to serve the whole or a part of any sentence imposed upon him or her by reason of that conviction; and

(b) a reference to a period during which a person was confined in a prison includes a reference to a period:

(i) during which the person was an escapee from a prison; or

(ii) during which the person was undergoing a sentence of periodic detention in a prison.

205 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, remove:

(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, remove a dependent child or children of the person.

206 Deportation order to be executed

(1) Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly.

(2) The validity of an order for the deportation of a person shall not be affected by any delay in the execution of that order.


Costs etc. of detention, removal and deportation Division 10

Section 207


Division 10—Costs etc. of detention, removal and deportation

207 Interpretation

In this Division:

carrier, in relation to an unlawful non-citizen, means a controller of the vessel on which the non-citizen was last brought to Australia.

controller, in relation to a vessel, means the master, owner, agent or charterer of the vessel.

costs means: (a) in relation to a non-citizen’s detention: (i) the cost to the Commonwealth of transporting the

non-citizen and a custodian of the non-citizen between a place where the non-citizen is detained and:

(A) another place where the non-citizen is to be detained; or

(B) a place from which the non-citizen is to be removed or deported; or

(C) a place at which the non-citizen is to be released from detention (whether or not the person is to be arrested, or taken into custody, under another law); or

(ii) the daily maintenance amount for each day of the non-citizen’s detention; or

(b) in relation to a non-citizen’s removal or deportation, the fares and other costs to the Commonwealth of transporting the non-citizen and a custodian of the non-citizen from Australia to the place outside Australia to which the non-citizen is removed or deported.

Part 2 Control of arrival and presence of non-citizens Division 10 Costs etc. of detention, removal and deportation Section 208


daily maintenance amount, in relation to a non-citizen and a day and place, means the amount determined under section 208 as the daily maintenance amount for non-citizens detained at that place in the period in which the day falls.

208 Determination of daily maintenance amount

(1) The Minister may determine in writing a daily amount for the maintenance of a non-citizen detained at a specified place in a specified period.

(2) An amount determined is to be no more than the cost to the Commonwealth of detaining a person at that place in that period.

209 Detainees liable for costs of detention

Subject to section 211, a non-citizen who is detained is liable to pay the Commonwealth the costs of his or her detention.

210 Removed or deported non-citizen liable for costs of removal or deportation

Subject to section 212, a non-citizen who is removed or deported, other than an unlawful non-citizen who came to Australia on a criminal justice visa, is liable to pay the Commonwealth the costs of his or her removal or deportation.

211 Costs of detained spouses and dependants

(1) If: (a) 2 non-citizens are the spouses of each other within the

meaning of the regulations; and (b) they are both detained at the same time;

each of them is liable to pay the Commonwealth the costs of their detentions.

(2) If: (a) 2 non-citizens are the spouses of each other within the

meaning of the regulations; and (b) they are both detained at the same time; and (c) their dependent child, or dependent children, within the

meaning of the regulations are detained at that time;



Section 212


then: (d) the child or children are not liable to pay the Commonwealth

the costs of the child’s or children’s detention; and (e) the unlawful non-citizens are liable to pay the

Commonwealth those costs.

(3) If: (a) a non-citizen is detained at a particular time; and (b) the non-citizen either: (i) does not have a spouse within the meaning of the

regulations; or (ii) does not have such a spouse who is detained at that

time; and (c) the non-citizen has a dependent child, or dependent children,

within the meaning of the regulations detained at that time; then:

(d) the child or children are not liable to pay the Commonwealth the costs of their detention; and

(e) the non-citizen is liable to pay to the Commonwealth those costs.

212 Costs of removed or deported spouses and dependants

(1) If: (a) 2 persons are the spouses of each other within the meaning of

the regulations; and (b) either: (i) they are both removed or deported; or (ii) one of them is deported and the other is removed;

each of them is liable to pay the Commonwealth the costs of their removals, their deportations, or the deportation and removal.

(2) If: (a) 2 persons are the spouses of each other within the meaning of

the regulations; and (b) either: (i) they are both removed or deported; or (ii) one is deported and the other is removed; and



(c) their dependent child, or dependent children, within the meaning of the regulations are also removed;

then: (d) the child or children are not liable to pay the Commonwealth

the costs of the child’s or children’s removal; and (e) the persons are liable to pay the Commonwealth those costs.

(3) If: (a) a non-citizen is removed or deported; and (b) the non-citizen either: (i) does not have a spouse within the meaning of the

regulations; or (ii) does not have such a spouse who is deported or

removed; and (c) the non-citizen has a dependent child, or dependent children,

within the meaning of the regulations who are removed; then:

(d) the child or children are not liable to pay the Commonwealth the costs of their removal; and

(e) the non-citizen is liable to pay the Commonwealth those costs.

213 Carriers may be liable for costs of detention, removal and deportation

(1) If a non-citizen who enters Australia: (a) is required to comply with section 166 (immigration

clearance); and (b) either: (i) does not comply; or (ii) on complying, is detained under section 189 as an

unlawful non-citizen; then, as soon as practicable after the Secretary becomes aware that paragraphs (a) and (b) apply to the non-citizen, the Secretary may give a carrier of the non-citizen a written notice requiring the carriers of the non-citizen to pay:

(c) if the non-citizen is detained—the costs of the non-citizen’s detention; and



Section 214


(d) if the non-citizen is removed or deported from Australia, the costs of the non-citizen’s removal or deportation.

(2) The notice is to: (a) give particulars of the calculation of the costs; and (b) state that an account for the costs will be given to at least one

of the carriers of the non-citizen when they have been incurred.

(3) If a notice is given, each carrier of the non-citizen is liable to pay the Commonwealth the costs described in the notice and for which an account is given.

214 Non-citizens and carriers jointly liable

If, under this Division, 2 or more persons are liable to pay the Commonwealth the costs of a non-citizen’s detention, removal or deportation they are jointly and severally liable to pay those costs.

215 Costs are debts due to the Commonwealth

Without limiting any other provision of this Act, costs payable by a person to the Commonwealth under this Division may be recovered by the Commonwealth as a debt due to the Commonwealth in a court of competent jurisdiction.

216 Use of existing ticket for removal or deportation

If: (a) a non-citizen is to be removed or deported; and (b) the non-citizen or another person holds a ticket for the

conveyance of the non-citizen from a place within Australia to a place outside Australia;

the Secretary may, on behalf of the ticket holder arrange (with or without the ticket holder’s consent) for the ticket to be applied for or towards the conveyance of the non-citizen.

217 Vessels required to convey certain removees

(1) If a person covered by subsection 193(1) is to be removed, the Secretary may give the controller of the vessel on which the person



travelled to and entered Australia written notice requiring the controller to transport the person from Australia.

(2) Subject to section 219, the controller must comply with the notice within 72 hours of the giving of the notice or such further time as the Secretary allows.

Penalty: 100 penalty units.


218 Vessels required to convey deportees or other removees

(1) Subject to section 217, if a person is to be removed or deported, the Secretary may give the controller of a vessel or vessels a written notice requiring the controller to transport the person from Australia to a destination of the vessel or one of the vessels specified in the notice.

(2) Subject to sections 219 and 220, the controller must comply with the notice within 72 hours of the giving of the notice or such further time as the Secretary allows.



219 Exemption from complying

It is a defence to a prosecution for an offence against section 217 or 218 of failing to comply with a notice to transport a non-citizen if the defendant proves:

(a) that the defendant was prevented from complying with the notice because of stress of weather or other reasonable cause; or

(b) the defendant gave reasonable notice to the Secretary of the person’s willingness to receive the non-citizen on board a specified vessel at a specified port on a specified day within 72 hours of the giving of the notice for removal or deportation, but the non-citizen was not made available at that port on that date for boarding the vessel.



Section 220


Note: A defendant bears a legal burden in relation to the matters in this section (see section 13.4 of the Criminal Code).

220 Waiver of requirement

(1) If: (a) a notice has been given under section 218 requiring the

transport of an unlawful non-citizen to a country; and (b) the government of that country notifies the Minister that the

non-citizen would not be permitted to enter that country; the Minister is to give the controller written notice revoking the notice under that section.

(2) The revocation of a notice does not prevent another notice under section 218 or affect any liability for costs.

221 Cost of removal under notice

(1) If: (a) the controller of a vessel is given a notice under section 218

to transport a non-citizen; and (b) the controller was a carrier of the non-citizen; and (c) paragraphs 213(1)(a) and (b) apply to the non-citizen;

then the Commonwealth is not liable for the costs of transporting the non-citizen.

(2) If: (a) the controller of a vessel is given a notice under section 218

to transport a non-citizen; and (b) subsection (1) does not apply;

then: (c) the Commonwealth is liable to pay the controller’s costs of

the transport; and (d) sections 210 to 216 apply to the transport and those costs.

222 Orders restraining certain non-citizens from disposing etc. of property

(1) Where, on an application by the Secretary relating to property of a non-citizen, a court is satisfied that:



(a) the non-citizen is liable, or may, on deportation or removal, become liable, to pay the Commonwealth an amount under section 209, 210, 211 or 212; 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 non-citizen is, or becomes, liable to pay to the Commonwealth under section 209, 210, 211 or 212;

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 non-citizen’s property that is in Australia; or (b) specified property of a non-citizen 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 non-citizen’s reasonable living expenses (including the reasonable living expenses of the non-citizen’s dependants (if any));

(b) reasonable legal expenses incurred by the non-citizen in relation to a matter arising under this Act.

(8) A person shall not contravene an order under this section.



Section 223






court means a court of competent jurisdiction.

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.

223 Secretary may give direction about valuables of detained non-citizens

(1) This section applies in relation to a person who has been detained.

(2) Where the Secretary is satisfied that: (a) the detainee is an unlawful non-citizen or a deportee; (b) the detainee is liable, or may, on deportation or removal,

become liable, to pay the Commonwealth an amount under section 209, 210, 211 or 212; 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 detainee is, or becomes, liable to pay to the Commonwealth under section 209, 210, 211 or 212;

the Secretary may, in writing, notify the detainee 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 detainee as prescribed.

(5) At any time after a copy of the notice has been served on the detainee 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 detainee.



(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 detainee, whether alone or jointly with another person or other persons, and whether for his or her own benefit or as a trustee.

Penalty: $30,000.

(7A) An offence against subsection (7) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

(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 detainee, that first-mentioned person shall not, while the notice remains in force, without the written consent of the Secretary, make any payment to the detainee 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 detainee is an unlawful non-citizen or a deportee; (b) that the detainee is liable, or may, on deportation or removal,

become liable, to pay the Commonwealth an amount under section 209, 210, 211 or 212; 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 detainee is, or becomes, liable to pay to the Commonwealth under section 209, 210, 211 or 212.

(11) If the court confirms the notice, the court may make an order directing the Secretary to make provision, whether by returning



Section 223


valuables to which the notice relates or otherwise, for the meeting of either or both of the following:

(a) the detainee’s reasonable living expenses (including the reasonable living expenses of the detainee’s dependants (if any));

(b) reasonable legal expenses incurred by the detainee 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, vessel 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 or vessel.

(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.




court means a court of competent jurisdiction.

valuables includes: (a) gold, jewellery, negotiable instruments, travellers cheques

and cash; and (b) bank books and other documentary evidence of debts owed

to the detainee.

224 Dealing with seized valuables

(1) Where the Secretary takes possession of valuables pursuant to subsection 223(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 notified detainee: (i) is granted a visa; or (ii) stops being a deportee; (c) the notified detainee is not, when the authorising notice is

given, liable to pay an amount to the Commonwealth under section 209, 210, 211 or 212, and does not, within 6 months after the giving of that notice, becomes so liable; or

(d) all amounts that the notified detainee is or becomes liable to pay to the Commonwealth under section 209, 210, 211 or 212 are paid to the Commonwealth.

(4) If, when the Secretary takes possession of valuables, the notified detainee is liable under section 209, 210, 211 or 212 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



Section 224


(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 notified detainee becomes liable under section 209, 210, 211 or 212 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.


notified detainee means the person served with the notice under section 223.

authorising notice means the notice pursuant to which the Secretary took possession of the valuables.

Part 2 Control of arrival and presence of non-citizens Division 11 Duties of masters in relation to crews Section 225


Division 11—Duties of masters in relation to crews

225 Production of identity documents and mustering of crew

(1) This section applies to a vessel, other than a vessel of the regular armed forces of a government recognised by the Commonwealth, which has entered Australia from overseas.

(2) On the arrival of a vessel at a port, an officer may require the master of the vessel to muster the vessel’s crew in the presence of the officer.

(3) An officer may require the master of a vessel to muster the vessel’s crew in the presence of the officer before the vessel departs from a port.

(4) An officer may require a member of the crew of a vessel to produce his or her identity documents to the officer for inspection.

(5) A person must not fail to comply with a requirement made under this section.

Penalty: $4,000.

(6) Subsection (5) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in

subsection (6) (see subsection 13.3(3) of the Criminal Code).


226 Production of identity documents by persons on board resources installation

(1) This section applies to a resources installation that has been brought into Australian waters from a place outside the outer limits of Australian waters for the purpose of being attached to the Australian seabed.


Duties of masters in relation to crews Division 11

Section 227


(2) On the arrival of a resources installation at the place where it is to be attached to the Australian seabed, an officer may require the person in charge of the installation to muster, in the presence of the officer, all of the people on board the installation.

(3) An officer may require the person in charge of a resources installation to muster, in the presence of the officer, all of the people on board the installation before the installation is detached from the Australian seabed for the purpose of being taken to a place outside the outer limits of Australian waters.

(4) An officer may require a person on board a resources installation that is attached to the Australian seabed or to another resources installation that is so attached to produce to the officer for inspection the person’s identity documents.


Penalty: $4,000.




227 Production of identity documents by persons on board sea installation

(1) This section applies to a sea installation that has been brought into Australian waters from a place outside the outer limits of Australian waters for the purpose of being installed in an adjacent area or in a coastal area.

(2) On the arrival of a sea installation at its proposed location, an officer may require the person in charge of the installation to muster, in the presence of the officer, all of the people on board the installation.

(3) An officer may require the person in charge of a sea installation to muster, in the presence of the officer, all of the people on board the

Part 2 Control of arrival and presence of non-citizens Division 11 Duties of masters in relation to crews Section 228


installation before the installation is detached from its location for the purpose of being taken to a place outside the outer limits of Australian waters.

(4) An officer may require a person on board a sea installation that is installed in an adjacent area or in a coastal area to produce to the officer for inspection the person’s identity documents.


Penalty: $4,000.




228 Master to report absences

(1) Where a member of the crew of a vessel, other than a vessel of the regular armed forces of a government recognized by the Commonwealth, that has entered Australia from overseas was on board the vessel at the time of its arrival at a port and is absent from the vessel at the time of its departure from the port, the master of the vessel shall, at that departure, deliver to an officer a written report:

(a) specifying the name of the member; and (b) stating: (i) that the member was a member of the crew of the vessel

on board the vessel at the time of its arrival at that port; and

(ii) that the member is absent from the vessel at the time of its departure from that port; and

(c) stating whether the member left the vessel at that port with leave or without leave.

Penalty: $4,000.


Duties of masters in relation to crews Division 11

Section 228



Part 2 Control of arrival and presence of non-citizens Division 12 Offences in relation to entry into, and remaining in, Australia Section 228A


Division 12—Offences in relation to entry into, and remaining in, Australia

Subdivision A—General offences

228A Application of Subdivision

This Subdivision applies in and outside Australia.

229 Carriage of non-citizens 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 if the non-citizen, when entering Australia:

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

(b) does not hold a special purpose visa; and (c) is not eligible for a special category visa; and (d) does not hold an enforcement visa; and (e) is a person to whom subsection 42(1) applies.

(1A) A person commits an offence if: (a) the person is a master, owner, agent, charterer or operator of

an aircraft; and (b) the person brings a non-citizen into Australia by air on the

aircraft; and (c) the non-citizen is the holder of a maritime crew visa that is in

effect.

(2) A person who is guilty of an offence against this section is liable, upon conviction, to a fine not exceeding $10,000.

(3) An offence against subsection (1) or (1A) is an offence of absolute liability. Note: For absolute liability, see section 6.2 of the Criminal Code.

(4) For the purposes of subsection (1), the defendant bears an evidential burden in relation to establishing that subsection 42(1)


Offences in relation to entry into, and remaining in, Australia Division 12

Section 229


does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3). Note: For evidential burden, see section 13.3 of the Criminal Code.

(5) It is a defence to a prosecution for an offence against subsection (1) in relation to the bringing of a non-citizen into Australia on a vessel if it is established:

(a) that the non-citizen was, when he or she boarded or last boarded the vessel for travel to Australia, in possession of evidence of a visa that was in effect and that permitted him or her to travel to and enter Australia, being a visa that:

(i) did not appear to have been cancelled; and (ii) was expressed to continue in effect until, or at least

until, the date of the non-citizen’s expected entry into Australia;

(b) that the master of the vessel had reasonable grounds for believing that, when the non-citizen boarded or last boarded the vessel for travelling to and entering Australia, the non-citizen:

(i) was eligible for a special category visa; or (ii) was the holder of a special purpose visa; or (iii) would, when entering Australia, be the holder of a

special purpose visa; or (iv) was the holder of an enforcement visa; or (v) would, when entering Australia, be the holder of an

enforcement visa; 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.

(5A) It is a defence to a prosecution for an offence against subsection (1A) in relation to the bringing of a non-citizen into Australia on an aircraft if it is established that:

(a) the non-citizen was, when he or she boarded or last boarded the aircraft for travel to Australia, in possession of evidence of another class of visa that was in effect and that permitted him or her to travel to and enter Australia, being a visa that:

(i) did not appear to have been cancelled; and

Part 2 Control of arrival and presence of non-citizens Division 12 Offences in relation to entry into, and remaining in, Australia Section 230


(ii) was expressed to continue in effect until, or at least until, the date of the non-citizen’s expected entry into Australia; or

(b) the aircraft entered Australia from overseas only because of: (i) the illness of a person on board the aircraft; or (ii) stress of weather; or (iii) other circumstances beyond the control of the master.

(6) A defendant bears a legal burden in relation to the matters in subsection (5) or (5A).

230 Carriage of concealed persons to Australia

(1) The master, owner, agent and charterer of a vessel are each guilty of an offence against this section if an unlawful non-citizen is concealed on the vessel when it arrives in the migration zone.

(1A) The master, owner, agent and charterer of a vessel are each guilty of an offence against this section if:

(a) a person is concealed on the vessel when it arrives in Australia; and

(b) the person would, if in the migration zone, be an unlawful non-citizen.

(1B) An offence against subsection (1) or (1A) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

(2) Subsection (1) does not apply if the master of the vessel: (a) as soon as it arrives in the migration zone, gives notice to an

officer that the non-citizen is on board; and (b) prevents the non-citizen from landing without an officer

having had an opportunity to question the non-citizen. Note: A defendant bears an evidential burden in relation to the matters in


(2A) Subsection (1A) does not apply if the master of the vessel: (a) as soon as it arrives in Australia, gives notice to an officer

that the person is on board; and



Section 231


(b) prevents the person from leaving the vessel without an officer having had an opportunity to question the person.

Penalty: $10,000. Note: A defendant bears an evidential burden in relation to the matters in


231 Master of vessel to comply with certain requests

(1) The master of a vessel arriving in Australia must comply with any request by an authorised officer to:

(a) give the authorised officer a list of all persons on the vessel and prescribed particulars of each of them; or

(b) gather together those persons or such of them as are specified by the officer; or

(c) make sure of the disembarkation from the vessel of those persons or such of them as are specified by the officer.

(2) If: (a) a person is on a vessel that has arrived in Australia; and (b) that person’s name is not on a list of persons on the vessel

given under subsection (1); the person is taken, for the purposes of section 230, to have been concealed on the vessel when it arrived.

232 Penalty on master, owner, agent and charterer of vessel

(1) Where: (a) a non-citizen: (i) enters Australia on a vessel; and (ii) because he or she is not the holder of a visa that is in

effect, or because of section 173, becomes upon entry an unlawful non-citizen; and

(iii) is a person to whom subsection 42(1) applies; or (b) a removee or deportee who has been placed on board a vessel

for removal or deportation leaves the vessel in Australia otherwise than in immigration detention under this Act;

the master, owner, agent and charterer of the vessel shall each be deemed to be guilty of an offence against this Act punishable by a fine not exceeding 100 penalty units.



(1A) An offence against subsection (1) is an offence of absolute liability. Note: For absolute liability, see section 6.2 of the Criminal Code.

(1B) For the purposes of paragraph (1)(a), the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3). Note: For evidential burden, see section 13.3 of the Criminal Code.

(2) It is a defence to a prosecution for an offence against subsection (1) in relation to the entry of a non-citizen to Australia on a vessel if it is established:

(a) that the non-citizen was, when he or she boarded or last boarded the vessel for travel to Australia, in possession of evidence of a visa that was in effect and that permitted him or her to travel to and enter Australia, being a visa that:

(i) did not appear to have been cancelled; and (ii) was expressed to continue in effect until, or at least

until, the date of the non-citizen’s expected entry into Australia; or

(b) that the master of the vessel had reasonable grounds for believing that, when the non-citizen boarded or last boarded the vessel for travelling to and entering Australia, the non-citizen:

(i) was eligible for a special category visa; or (ii) was the holder of a special purpose visa; or (iii) would, when entering Australia, be the holder of a

special purpose visa; or (iv) was the holder of an enforcement visa; or (v) would, when entering Australia, be the holder of an

enforcement visa; or (c) that the vessel entered Australia from overseas only because

of: (i) the illness of a person on board the vessel; or (ii) stress of weather; or (iii) other circumstances beyond the control of the master.

(3) A defendant bears a legal burden in relation to the matters in subsection (2).



Section 232A


232A Organising bringing groups of non-citizens into Australia

(1) A person who: (a) organises or facilitates the bringing or coming to Australia, or

the entry or proposed entry into Australia, of a group of 5 or more people to whom subsection 42(1) applies; and

(b) does so reckless as to whether the people had, or have, a lawful right to come to Australia;

is guilty of an offence punishable, on conviction, by imprisonment for 20 years or 2,000 penalty units, or both. Note: Sections 233B and 233C limit conviction and sentencing options for

offences under this section.

(2) For the purposes of subsection (1), the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3). Note: For evidential burden, see section 13.3 of the Criminal Code.

233 Persons concerned in bringing non-citizens into Australia in contravention of this Act or harbouring illegal entrants

(1) A person shall not take any part in: (a) the bringing or coming to Australia of a non-citizen under

circumstances from which it might reasonably have been inferred that the non-citizen intended to enter Australia in contravention of this Act;

(b) the concealing of a non-citizen with intent to enter Australia in contravention of this Act; or

(c) the concealing of an unlawful non-citizen or a deportee with intent to prevent discovery by an officer.

(1A) Strict liability applies to the element of an offence against paragraph (1)(a) that the bringing or coming to Australia of the relevant non-citizen was under circumstances from which it might reasonably have been inferred that the non-citizen intended to enter Australia in contravention of this Act. Note: For strict liability, see section 6.1 of the Criminal Code.

(2) A person is guilty of an offence if: (a) the person harbours another person; and

Part 2 Control of arrival and presence of non-citizens Division 12 Offences in relation to entry into, and remaining in, Australia Section 233A


(b) the other person is an unlawful non-citizen, a removee or a deportee.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

233A Other offences relating to groups of non-citizens etc.

(1) A person must not, in connection with: (a) the entry or proposed entry into Australia, or the immigration

clearance, of a group of 5 or more non-citizens (which may include that person), or of any member of such a group; or

(b) an application for a visa or a further visa permitting a group of 5 or more non-citizens (which may include that person), or any member of such a group, to remain in Australia;

do any of the following: (c) present, or cause to be presented, to an officer or a person

exercising powers or performing functions under this Act a document that the person knows is forged or false;

(d) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that the person knows is false or misleading in a material particular;

(e) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished, for official purposes of the Commonwealth, a document containing a statement or information that the person knows is false or misleading in a material particular.

(2) A person must not transfer or part with possession of a document or documents:

(a) with the intention that the document or documents be used to help a group of 5 or more people, none of whom are entitled to use the document or documents, or any member of such a group, to gain entry into or remain in Australia, or to be immigration cleared; or

(b) if the person has reason to suspect that the document or documents may be so used.




Section 233B


Note: Sections 233B and 233C limit conviction and sentencing options for offences under this section.

233B No discharge of offenders without proceeding to conviction for certain offences

The court may not make an order under section 19B of the Crimes Act 1914 in respect of a charge for an offence under section 232A or 233A, unless it is established on the balance of probabilities that the person charged was aged under 18 years at the time when the offence was alleged to have been committed.

233C Mandatory penalties for certain offences

(1) This section applies if a person is convicted of an offence under section 232A or 233A, unless it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed.

(2) The court must impose a sentence of imprisonment of at least: (a) 8 years, if the conviction is for a repeat offence; or (b) 5 years, in any other case.

(3) The court must also set a non-parole period of at least: (a) 5 years, if the conviction is for a repeat offence; or (b) 3 years, in any other case.

(4) In this section: (a) non-parole period has the same meaning as it has in Part IB

of the Crimes Act 1914; and (b) a person’s conviction for an offence is for a repeat offence if,

on a previous occasion after the commencement of this section, a court:

(i) has convicted the person of another offence, being an offence against section 232A or 233A; or

(ii) has found, without recording a conviction, that the person had committed another such offence.

234 False papers etc.

(1) A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person



himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:

(a) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;

(b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person’s knowledge, is false or misleading in a material particular; or

(c) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.

(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 to be immigration cleared; or

(b) where the person has reason to suspect that the document may be so used.


235 Offences in relation to work

(1) If: (a) the temporary visa held by a non-citizen is subject to a

prescribed condition restricting the work that the non-citizen may do in Australia; and

(b) the non-citizen contravenes that condition; the non-citizen commits an offence against this section. Note: Subdivision C of this Division also contains offences relating to work

by a non-citizen in breach of a visa condition.

(2) For the purposes of subsection (1), a condition restricts the work that a non-citizen may do if, but not only if, it prohibits the non-citizen doing:



Section 235


(a) any work; or (b) work other than specified work; or (c) specified work.

(3) An unlawful non-citizen who performs work in Australia whether for reward or otherwise commits an offence against this subsection. Note: Subdivision C of this Division also contains offences relating to work

by an unlawful non-citizen.

(4) If: (a) there is a criminal justice certificate or a criminal justice stay

warrant about a non-citizen; and (b) the person does any work within the meaning of

subsection 160(2), in Australia, whether for reward or otherwise;

then without limiting the operation of any other provision of this Act, the person commits an offence against this subsection.

(4A) Subsection (4) does not apply to a non-citizen who holds a criminal justice stay visa, but this subsection does not affect the operation of subsection (1). Note: A defendant bears an evidential burden in relation to the matters in


(4B) An offence against subsection (1), (3) or (4) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

(5) The penalty for an offence against subsection (1), (3) or (4) is a fine not exceeding $10,000.

(6) For the purposes of this section, a reference in a visa, and the reference in subsection (3), to the performance of any work in Australia by a person, shall each be read as not including a reference to the performance by the person of any work of a prescribed kind or of work in prescribed circumstances.

(7) To avoid doubt, for the purposes of this section, a reference in a visa, and the reference in subsection (3), to the performance of any work in Australia by a person, does not refer to engaging in:

(a) an activity in which a person who is a detainee in immigration detention voluntarily engages where the activity



is of a kind approved in writing by the Secretary for the purposes of this paragraph; or

(b) an activity in which a person who is a prisoner in a prison or remand centre of the Commonwealth, a State or a Territory engages as a prisoner; or

(c) an activity in which a person engages in compliance with: (i) a sentence passed, or an order made, under subsection

20AB(1) of the Crimes Act 1914 (community service orders etc.); or

(ii) a community service order, a work order, a sentence of periodic detention, an attendance centre order, a sentence of weekend detention, an attendance order, or a similar sentence or order, passed or made under the law of a State or Territory.

236 Offences relating to visas

(1) A person is guilty of an offence if: (a) the person uses a visa with the intention of: (i) travelling to Australia; or (ii) remaining in Australia; or (iii) identifying himself or herself; and (b) the visa is a visa that was granted to another person.


(2) A person is guilty of an offence if: (a) the person has a visa in his or her possession or under his or

her control; and (b) the visa is a visa that was not granted to the person.




(4) The fault element for paragraph (2)(a) is intention.



Section 237


Note: Section 5.2 of the Criminal Code defines intention.

Subdivision B—Offences relating to abuse of laws allowing spouses etc. of Australian citizens or of permanent residents to become permanent residents

237 Reason for Subdivision

This Subdivision was enacted because: (a) under the regulations, a person satisfies a criterion for certain

visas that give, or might lead to, authorisation for the person’s permanent residence in Australia if the person is married to, or is the de facto spouse of, and has a genuine and continuing marital relationship with, either an Australian citizen or a permanent resident of Australia; and

(b) under the regulations, a person satisfies a criterion for certain other visas that give, or might lead to, authorisation for the person’s permanent residence in Australia if the person has an interdependency relationship with either an Australian citizen or a permanent resident of Australia that is genuine and will continue; and

(c) some persons attempt to get permanent residence under the regulations by:

(i) entering into a marriage that is not intended to result in a genuine and continuing marital relationship; or

(ii) pretending to be a de facto spouse; or (iii) pretending to have an interdependency relationship.

238 Interpretation


criterion includes part of a criterion.

interdependency relationship means a relationship: (a) between 2 persons who are not: (i) spouses, or other relatives, of each other under any of

the regulations; or (ii) members of the same family unit under any of the

regulations otherwise than because of an agreement to marry; and



(b) that is acknowledged by both; and (c) that involves: (i) residing together; and (ii) being closely interdependent; and (iii) having a continuing commitment to mutual emotional

and financial support.

preliminary visa, means a visa that is usually applied for by persons applying, or intending to apply, for a permanent visa.

stay visa means: (a) a permanent visa; or (b) a preliminary visa.

239 Application of Subdivision

(1) This Subdivision applies in and outside Australia.

(2) This Subdivision applies to marriages solemnized outside Australia as well as those solemnized in Australia.

240 Offence to arrange marriage to obtain permanent residence

(1) A person must not arrange a marriage between other persons with the intention of assisting one of those other persons to get a stay visa by satisfying a criterion for the visa because of the marriage.

(2) Subsection (1) applies whether or not the intention is achieved.

(3) It is a defence to an offence against subsection (1) if the defendant proves that, although one purpose of the marriage was to assist a person to get a stay visa, the defendant believed on reasonable grounds that the marriage would result in a genuine and continuing marital relationship.

Penalty: $100,000 or imprisonment for 10 years, or both. Note: A defendant bears a legal burden in relation to the matter in

subsection (3) (see section 13.4 of the Criminal Code).



Section 241


241 Offence to arrange pretended de facto relationship to obtain permanent residence

(1) If a person knows or believes on reasonable grounds that 2 other persons are not de facto spouses of each other for the purposes of the regulations, the person must not make arrangements that make, or help to make, it look as if those other persons are such spouses with the intention of assisting one of those other persons to get a stay visa by appearing to satisfy a criterion for the visa because of being such spouses.


Penalty: $100,000 or imprisonment for 10 years, or both.

242 Offence to arrange pretended interdependency relationship to obtain permanent residence

(1) If a person knows or believes on reasonable grounds that there is no interdependency relationship between 2 other persons, the person must not make arrangements to make, or help to make, it look as if there is such a relationship between those other persons with the intention of assisting one of those other persons to get a stay visa by appearing to satisfy a criterion for the visa because of the relationship.


Penalty: $100,000 or imprisonment for 10 years, or both.

243 Offences relating to application for permanent residence because of marriage or de facto relationship

(1) A person must not apply for a stay visa on the basis of satisfying a criterion for the visa because of being married to, or being, for the purposes of the regulations, the de facto spouse of, another person if, at the time of the application, the applicant does not intend to live permanently with the other person in a genuine and continuing marital relationship.

(2) A non-citizen in Australia convicted of an offence under subsection (1) becomes an unlawful non-citizen.



(3) A person must not nominate an applicant for a stay visa on the basis of the applicant satisfying a criterion for the visa because of being married to, or being, for the purposes of the regulations, the de facto spouse of, the person if, at the time of the application, the person does not intend to live permanently with the applicant in a genuine and continuing marital relationship.


244 Offences relating to an application for permanent residence because of interdependency relationship

(1) A person must not apply for a stay visa on the basis of satisfying a criterion for the visa because of having an interdependency relationship with another person if, at the time of the application, the applicant does not intend to have such a relationship with the other person that is genuine and will continue.

(2) A non-citizen in Australia convicted of an offence under subsection (1) becomes an unlawful non-citizen.

(3) A person must not nominate an applicant for a stay visa on the basis of the applicant satisfying a criterion for the visa because of an interdependency relationship between them if, at the time of the application, the person does not intend to have such a relationship with the applicant that is genuine and will continue.


245 Offences of making false or unsupported statements

(1) A person must not make a statement, or give information, in writing, to an officer in relation to the consideration for the purposes of this Act or the regulations of any of the following questions:

(a) whether or not other persons have a genuine and continuing marital relationship between them;

(b) whether or not other persons lived together on a genuine domestic basis as spouses without being married to each other;

(c) whether or not there is an interdependency relationship between 2 other persons;



Section 245AA


if: (d) the person knows that the statement or information is false or

misleading in a material particular; and (e) the statement is made, or the information is given, in a

document that describes, and shows the penalty for, an offence against this subsection.


(3) A person must not make a statement, or give information, in writing, to an officer in relation to the consideration for the purposes of this Act or the regulations of any of the following questions:

(a) whether or not other persons have a genuine and continuing marital relationship between them;

(b) whether or not other persons lived together on a genuine domestic basis as spouses without being married to each other;

(c) whether or not there is an interdependency relationship between 2 other persons;

if: (d) the statement or information is false or misleading in a

material particular; and (e) the person making the statement, or giving the information,

did not make appropriate inquiries to satisfy himself or herself that the statement or information was neither false nor misleading; and

(f) the statement is made, or the information is given, in a document that describes, and shows the penalty for, an offence against this subsection.

Penalty: $12,000.

Subdivision C—Offences in relation to persons who allow non-citizens to work, or refer non-citizens for work, in certain circumstances

245AA Overview

(1) This Subdivision creates offences to deal with the following situations:

Part 2 Control of arrival and presence of non-citizens Division 12 Offences in relation to entry into, and remaining in, Australia Section 245AB


(a) where a person allows an unlawful non-citizen to work, or refers an unlawful non-citizen for work;

(b) where a person allows a non-citizen to work, or refers a non-citizen for work, in breach of the non-citizen’s visa conditions.

(2) The offences make use of a number of terms that are defined in the following sections:

(a) section 14 (defines unlawful non-citizen); (b) section 245AG (defines work and allows to work); (c) section 245AH (defines exploited); (d) section 245AI (defines other terms).

(3) To avoid doubt, section 245AF sets out some circumstances in which this Subdivision does not apply.

(4) Section 235 also contains offences relating to work by an unlawful non-citizen and a non-citizen in breach of a visa condition.

245AB Allowing an unlawful non-citizen to work

(1) A person commits an offence if: (a) the person allows, or continues to allow, a person (the

worker) to work; and (b) the worker is an unlawful non-citizen; and (c) the person knows that, or is reckless as to whether, the

worker is an unlawful non-citizen.

(2) An offence against subsection (1) is an aggravated offence if the worker is being exploited and the person knows of, or is reckless as to, that circumstance.

(3) An offence against this section is punishable on conviction by whichever of the following applies:

(a) in the case of an aggravated offence—imprisonment for 5 years;

(b) in any other case—imprisonment for 2 years.



Section 245AC


245AC Allowing a non-citizen to work in breach of a visa condition

(1) A person commits an offence if: (a) the person allows, or continues to allow, a person (the

worker) to work; and (b) the worker is a non-citizen and the person knows of, or is

reckless as to, that circumstance; and (c) the worker holds a visa that is subject to a condition

restricting the work that the worker may do in Australia, and the person knows of, or is reckless as to, that circumstance; and

(d) the worker is in breach of the condition and the person knows of, or is reckless as to, that circumstance.

(2) An offence against subsection (1) is an aggravated offence if the worker is being exploited and the person knows of, or is reckless as to, that circumstance.




245AD Referring an unlawful non-citizen for work

(1) A person commits an offence if: (a) the person operates a service, whether for reward or

otherwise, referring one person to another for work; and (b) the person refers a person (the prospective worker) to another

for work; and (c) at the time of the referral, the prospective worker is an

unlawful non-citizen and the person knows of, or is reckless as to, that circumstance.

(2) An offence against subsection (1) is an aggravated offence if: (a) the prospective worker will be exploited in doing the work in

relation to which he or she is referred, or in doing any other work for the person to whom he or she is referred; and

(b) the person operating the referral service knows of, or is reckless as to, that circumstance.

Part 2 Control of arrival and presence of non-citizens Division 12 Offences in relation to entry into, and remaining in, Australia Section 245AE





245AE Referring a non-citizen for work in breach of a visa condition

(1) A person commits an offence if: (a) the person operates a service, whether for reward or

otherwise, referring one person to another for work; and (b) the person refers a person (the prospective worker) to another

for work; and (c) at the time of the referral; (i) the prospective worker is a non-citizen and the person

knows of, or is reckless as to, that circumstance; and (ii) the prospective worker holds a visa that is subject to a

condition restricting the work that the prospective worker may do in Australia, and the person knows of, or is reckless as to, that circumstance; and

(iii) the prospective worker will, in doing the work in relation to which he or she was referred, be in breach of the condition and the person knows of, or is reckless as to, that circumstance.

(2) An offence against subsection (1) is an aggravated offence if: (a) the prospective worker will be exploited in doing the work in

relation to which he or she is referred, or in doing any other work for the person to whom he or she is referred; and

(b) the person operating the referral service knows of, or is reckless as to, that circumstance.






Section 245AF


245AF Circumstances in which this Subdivision does not apply

To avoid doubt, this Subdivision does not apply where: (a) a detainee in immigration detention voluntarily engages in an

activity of a kind approved in writing by the Secretary for the purposes of this paragraph; or

(b) a prisoner in a prison or remand centre of the Commonwealth, a State or a Territory engages in an activity as a prisoner; or

(c) a person engages in an activity in compliance with: (i) a sentence passed, or an order made, under subsection

20AB(1) of the Crimes Act 1914 (community service orders etc.); or

(ii) a community service order, a work order, a sentence of periodic detention, an attendance centre order, a sentence of weekend detention, an attendance order, or a similar sentence or order, passed or made under the law of a State or Territory.

245AG Meaning of work and allows to work


work means any work, whether for reward or otherwise.

(2) In this Subdivision, a person allows a person to work if, and only if:

(a) the first person employs the second person under a contract of service; or

(b) the first person engages the second person, other than in a domestic context, under a contract for services; or

(c) the first person bails or licenses a chattel to the second person or another person with the intention that the second person will use the chattel to perform a transportation service; or

(d) the first person leases or licenses premises, or a space within premises, to the second person or another person with the intention that the second person will use the premises or space to perform sexual services.

Part 2 Control of arrival and presence of non-citizens Division 12 Offences in relation to entry into, and remaining in, Australia Section 245AH


(3) In paragraph (2)(d):

premises means: (a) an area of land or any other place, whether or not it is

enclosed or built on; or (b) a building or other structure; or (c) a vehicle or vessel.

245AH Meaning of exploited

For the purposes of this Subdivision, a person is being exploited if the person is in a condition of forced labour, sexual servitude or slavery in Australia.

245AI Meaning of other terms


forced labour has the same meaning as in section 73.2 of the Criminal Code.

sexual service means the commercial use or display of the body of the person providing the service for the sexual gratification of others.

sexual servitude has the meaning given by section 270.4 of the Criminal Code.

slavery has the meaning given by section 270.1 of the Criminal Code.

245AJ Geographical jurisdiction

Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against sections 245AB, 245AC, 245AD and 245AE.

245AK On a trial for an aggravated offence

(1) If, on a trial for an offence against section 245AB or 245AC, the prosecution intends to prove an aggravated offence, the charge must allege that the worker has been exploited.



Section 245AK


(2) If, on a trial for an offence against section 245AD or 245AE, the prosecution intends to prove an aggravated offence, the charge must allege either that:

(a) the prospective worker has been or will be exploited in doing the work in relation to which he or she was referred; or

(b) the prospective worker has been or will be exploited in doing other work for the person to whom he or she was referred.

(3) If, on a trial for an aggravated offence against section 245AB, 245AC, 245AD or 245AE, the trier of fact is not satisfied that the defendant is guilty of an aggravated offence, but is otherwise satisfied that he or she is guilty of an offence against that section, it may find the defendant not guilty of the aggravated offence but guilty of an offence against that section.

Part 2 Control of arrival and presence of non-citizens Division 12A Chasing, boarding etc. ships and aircraft Section 245A


Division 12A—Chasing, boarding etc. ships and aircraft

245A Definitions

In this Division, unless the contrary intention appears:

aircraft includes aeroplanes, seaplanes, airships, balloons or any other means of aerial locomotion.

Australian aircraft means an aircraft that: (a) is an Australian aircraft as defined in the Civil Aviation Act

1988; or (b) is not registered under the law of a foreign country and is

either wholly owned by, or solely operated by: (i) one or more residents of Australia; or (ii) one or more Australian nationals; or (iii) one or more residents of Australia and one or more

Australian nationals. For the purposes of this definition, Australian national and resident of Australia have the same meanings as in the Shipping Registration Act 1981.

Australian ship means a ship that: (a) is an Australian ship as defined in the Shipping Registration

Act 1981; or (b) is not registered under the law of a foreign country and is

either wholly owned by, or solely operated by: (i) one or more residents of Australia; or (ii) one or more Australian nationals; or (iii) one or more residents of Australia and one or more

Australian nationals. For the purposes of this definition, Australian national and resident of Australia have the same meanings as in the Shipping Registration Act 1981.


Chasing, boarding etc. ships and aircraft Division 12A

Section 245B


Commonwealth aircraft means an aircraft that is in the service of the Commonwealth and displaying the ensign or insignia prescribed for the purposes of the definition of Commonwealth aircraft in subsection 4(1) of the Customs Act 1901.

Commonwealth ship means a ship that is in the service of the Commonwealth and flying the ensign prescribed for the purposes of the definition of Commonwealth ship in subsection 4(1) of the Customs Act 1901.

contiguous zone, in relation to Australia, has the same meaning as in the Seas and Submerged Lands Act 1973.

foreign ship means a ship that is not an Australian ship.

goods includes a document.

ship means any vessel used in navigation, other than air navigation, and includes:

(a) an off-shore industry mobile unit; and (b) a barge, lighter or any other floating vessel.

territorial sea, in relation to Australia, has the same meaning as in the Seas and Submerged Lands Act 1973.

this Act includes regulations made under this Act.

UNCLOS means the United Nations Convention on the Law of the Sea. Note: The text of the Convention is set out in Australian Treaty Series 1994

No. 31.

245B Request to board a ship

General power to request to board

(1) In the circumstances described in subsection (2), (3), (4), (5), (6) or (7), the commander of a Commonwealth ship or Commonwealth aircraft may request the master of a ship to permit the commander, a member of the commander’s crew or an officer to board the master’s ship. Note: Sections 245F and 245G give power to board the master’s ship if a

request is made under this section.

Part 2 Control of arrival and presence of non-citizens Division 12A Chasing, boarding etc. ships and aircraft Section 245B


Foreign ships in Australian waters

(2) The commander may make the request if the master’s ship is a foreign ship that is on the landward side of the outer edge of Australia’s territorial sea. However, the request must be made for the purposes of this Act.

Australian ships outside territorial seas of other countries

(3) The commander may make the request if: (a) the master’s ship is an Australian ship; and (b) the master’s ship is outside the territorial sea of any foreign

country. The commander must not make the request under this subsection if it may be made under subsection (7).

Foreign ships in contiguous zone or near installations

(4) The commander may make the request if: (a) the master’s ship is a foreign ship; and (b) the master’s ship is either: (i) in the contiguous zone of Australia; or (ii) within 500 metres of an Australian resources installation

or Australian sea installation; and (c) the commander: (i) wishes to establish the identity of the master’s ship; or (ii) reasonably suspects that the master’s ship is, will be or

has been involved in a contravention, or an attempted contravention, in Australia of this Act.

Mother ships on high seas supporting contraventions in Australia

(5) The commander may make the request if: (a) the master’s ship is a foreign ship; and (b) the master’s ship is: (i) outside the outer edge of the contiguous zone of

Australia; and (ii) not within 500 metres of an Australian resources

installation or Australian sea installation; and (iii) outside the territorial sea of a foreign country; and



Section 245B


(c) the commander reasonably suspects that the master’s ship is being or was used in direct support of, or in preparation for, a contravention in Australia of this Act, where the contravention involves another ship (whether a foreign ship or an Australian ship); and

(d) the request is made as soon as practicable after the contravention happens.

Foreign ships on high seas and covered by an agreement etc.

(6) The commander may make the request if: (a) the master’s ship is: (i) outside the outer edge of the contiguous zone of

Australia; and (ii) outside the territorial sea of a foreign country; and (b) the commander reasonably suspects that the master’s ship is

a foreign ship that is entitled to fly the flag of a country; and (c) Australia has an agreement or arrangement with that country

which enables the exercise of Australian jurisdiction over ships of that country.

The commander must not make the request under this subsection if it may be made under subsection (5).

Ships without nationality on high seas

(7) The commander may make the request if: (a) the master’s ship is: (i) outside the outer edge of the contiguous zone of

Australia; and (ii) outside the territorial sea of a foreign country; and (b) any of the following applies: (i) the master’s ship is not flying a flag of a country; (ii) the master’s ship is flying a flag of a country and the

commander reasonably suspects that the master’s ship is not entitled to fly that flag;

(iii) the commander reasonably suspects that the master’s ship is not entitled to fly the flag of a country or has been flying the flag of more than one country; and

(c) the Commander wishes to establish the identity of the master’s ship.

Part 2 Control of arrival and presence of non-citizens Division 12A Chasing, boarding etc. ships and aircraft Section 245B


The commander must not make the request under this subsection if it may be made under subsection (5) or (6).

Means of making request

(8) The commander of a Commonwealth ship or Commonwealth aircraft may use any reasonable means to make a request under this section.

Request still made even if no master on the ship etc.

(9) To avoid doubt, a request is still made under this section even if: (a) there was no master on board the ship to receive the request;

or (b) the master did not receive or understand the request.

Master must comply with request

(10) The master of a ship must comply with a request made under this section (other than subsection (7)).

Penalty: Imprisonment for 2 years. Note: The master’s ship can still be boarded under section 245F or 245G

even though the master has not complied with a request to board under this section.

(11) Subsection (10) does not apply if the master has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in



commander, in relation to a Commonwealth ship or Commonwealth aircraft, includes a reference to the following:

(a) a commissioned officer of the Australian Defence Force; (b) the most senior officer of Customs on board the ship or

aircraft.

commissioned officer of the Australian Defence Force means an officer within the meaning of the Defence Act 1903.

member of the commander’s crew includes, in relation to a commander of a Commonwealth ship or Commonwealth aircraft



Section 245C


who is a commissioned officer of the Australian Defence Force, a person acting under the command of the commissioned officer.

245C Power to chase foreign ships for boarding

Generally, foreign ships may be chased if request to board is made

(1) To enable the boarding of a foreign ship whose master has not complied with a request to board under section 245B (other than subsection 245B(7)), the commander of a Commonwealth ship or Commonwealth aircraft may use it to chase, or continue the chase of, the foreign ship to any place outside the territorial sea of a foreign country. Note: Subsection 245B(7) is about requests to board ships without

nationality that are on the high seas. Section 245G allows those ships to be boarded, even though the master of the ship has not complied with the request to board.

Using different Commonwealth ships or aircraft to continue chase

(2) To avoid doubt, a Commonwealth ship or Commonwealth aircraft may be used in the chase even if its commander did not make the request under section 245B.

When foreign ships may be chased without a request being made

(3) The commander of a Commonwealth ship or Commonwealth aircraft may use it to chase, or continue the chase of, a foreign ship to a place outside the territorial sea of a foreign country to enable the boarding of the foreign ship if, immediately before the start of the chase, the commander could have made a request to board the foreign ship under subsection 245B(5).

Chase may continue even if the foreign ship is out of sight

(4) A chase under this section may continue even if the crew of all of the Commonwealth ships and Commonwealth aircraft involved in the chase lose sight of the chased ship or lose trace of it from radar or other sensing devices.

Chase may not continue after interruption

(5) The commander of a Commonwealth ship or Commonwealth aircraft must not use it to chase, or continue the chase of, a ship

Part 2 Control of arrival and presence of non-citizens Division 12A Chasing, boarding etc. ships and aircraft Section 245D


under this section if the chase is interrupted (within the meaning of Article 111 of UNCLOS) at a place outside the outer edge of the contiguous zone. This subsection has effect despite subsections (1), (3) and (4).

Means that may be used to enable boarding of the foreign ship

(6) Anywhere outside the territorial sea of a foreign country, the commander of a Commonwealth ship or Commonwealth aircraft chasing a ship under this section may use any reasonable means consistent with international law to enable boarding of the chased ship, including:

(a) using necessary and reasonable force; and (b) where necessary and after firing a gun as a signal, firing at or

into the chased ship to disable it or compel it to be brought to for boarding.

245D Power to chase Australian ships for boarding

Australian ships may be chased

(1) To enable the boarding of an Australian ship, the commander of a Commonwealth ship or Commonwealth aircraft may use it to chase, or continue the chase of, the Australian ship to any place outside the territorial sea of a foreign country.

Chase may continue even if the Australian ship is out of sight

(2) A chase under this section may continue even if the crew of all of the Commonwealth ships and Commonwealth aircraft involved in the chase lose sight of the chased ship or lose trace of it from radar or other sensing devices.

Means that may be used to enable boarding of the Australian ship

(3) Anywhere outside the territorial sea of a foreign country, the commander of a Commonwealth ship or Commonwealth aircraft chasing a ship under this section may use any reasonable means to enable boarding of the chased ship, including:

(a) using necessary and reasonable force; and



Section 245E


(b) where necessary and after firing a gun as a signal, firing at or into the chased ship to disable it or compel it to be brought to for boarding.

245E Identifying an aircraft and requesting it to land for boarding

Application of section

(1) This section allows the commander of a Commonwealth aircraft to make requests of the pilot of another aircraft that:

(a) if the other aircraft is an Australian aircraft—is over anywhere except a foreign country; and

(b) if the other aircraft is not an Australian aircraft—is over Australia.

Requesting information to identify an aircraft

(2) If the commander cannot identify the other aircraft, the commander may:

(a) use his or her aircraft to intercept the other aircraft in accordance with the practices recommended in Annex 2 (headed “Rules of the Air”) to the Convention on International Civil Aviation done at Chicago on 7 December 1944 (that was adopted in accordance with that Convention); and

(b) request the pilot of the other aircraft to disclose to the commander:

(i) the identity of the other aircraft; and (ii) the identity of all persons on the other aircraft; and (iii) the flight path of the other aircraft; and (iv) the flight plan of the other aircraft.

Requesting aircraft to land for boarding

(3) The commander may request the pilot of the other aircraft to land it at the nearest proclaimed airport, or at the nearest suitable landing field, in Australia for boarding for the purposes of this Act if:

(a) the pilot does not comply with a request under subsection (2); or

Part 2 Control of arrival and presence of non-citizens Division 12A Chasing, boarding etc. ships and aircraft Section 245F


(b) the commander reasonably suspects that the other aircraft is or has been involved in a contravention, or attempted contravention, of this Act.

Note: Section 245F gives power to board the aircraft and search it once it has landed.

Means of making request

(4) Any reasonable means may be used to make a request under this section.

Request still made even if pilot did not receive etc. request

(5) To avoid doubt, a request is still made under this section even if the pilot did not receive or understand the request.

Pilot must comply with request

(6) The pilot of the other aircraft must comply with a request made under this section.


(7) Subsection (6) does not apply if the pilot has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in


245F Power to board and search etc. ships and aircraft

Application of section to ships

(1) This section applies to a ship that is outside the territorial sea of a foreign country if:

(a) a request to board the ship has been made under section 245B; or

(b) the ship is a foreign ship described in subsection 245C(3) (which allows foreign ships on the high seas to be chased); or

(c) the ship is an Australian ship. However, this section does not apply to a ship if a request to board the ship has been made under subsection 245B(6) or (7) (certain ships on the high seas), unless an officer is satisfied under subsection 245G(3) that the ship is an Australian ship.



Section 245F


Note: Section 245G deals with the boarding of ships where a request has been made under subsection 245B(6) or (7).

Application of section to aircraft

(2) This section applies to an aircraft that has landed in Australia for boarding as a result of a request made under section 245E.

Officer’s powers

(3) An officer may: (a) board and search the ship or aircraft; and (b) search and examine any goods found on the ship or aircraft;

and (c) secure any goods found on the ship or aircraft; and (d) require all persons found on the ship or aircraft to answer

questions, and produce any documents in their possession, in relation to the following:

(i) the ship or aircraft, its voyage or flight and its cargo, stores, crew and passengers;

(ii) the identity and presence of those persons on the ship or aircraft;

(iii) a contravention, an attempted contravention or an involvement in a contravention or attempted contravention, either in or outside Australia, of this Act; and

(e) copy, or take extracts from, any document: (i) found on the ship or aircraft; or (ii) produced by a person found on the ship or aircraft as

required under paragraph (d); and (f) arrest without warrant any person found on the ship or

aircraft if: (i) in the case of a person found on a ship or aircraft that is

in Australia—the officer reasonably suspects that the person has committed, is committing or attempting to commit, or is involved in the commission of, an offence, either in or outside Australia, against this Act; and

(ii) in the case of a person found on a ship that is outside Australia—the officer reasonably suspects that the person has committed, is committing or attempting to



commit, or is involved in the commission of, an offence in Australia against this Act.

(4) Any exercise of the power of arrest referred to in subsection (3) in the contiguous zone in relation to Australia is subject to the obligations of Australia under international law, including obligations under any treaty, convention or other agreement or arrangement between Australia and another country or other countries.

Help to search

(5) Without limiting the generality of paragraph (3)(a), an officer may use a dog to assist in searching the ship or aircraft.

Help to examine goods

(6) In the exercise of the power under paragraph (3)(b) to examine goods, the officer may do, or arrange for another officer or other person having the necessary experience to do, whatever is reasonably necessary to permit the examination of the goods.

Examples of examining goods

(7) Without limiting the generality of subsection (6), examples of what may be done in the examination of goods include the following:

(a) opening any package in which goods are or may be contained;

(b) using a device, such as an X-ray machine or ion scanning equipment, on the goods;

(c) if the goods are a document—reading the document either directly or with the use of an electronic device;

(d) using a dog to assist in examining the goods.

Power to detain and move ship or aircraft

(8) An officer may detain the ship or aircraft and bring it, or cause it to be brought, to a port, or to another place (including a place within the territorial sea or the contiguous zone in relation to Australia), that he or she considers appropriate if:

(a) in the case of a ship or aircraft that is in Australia—the officer reasonably suspects that the ship or aircraft is or has



Section 245F


been involved in a contravention, either in or outside Australia, of this Act; and

(b) in the case of an Australian ship that is outside Australia—the officer reasonably suspects that the ship is, will be or has been involved in a contravention, either in or outside Australia, of this Act; and

(c) in the case of a foreign ship that is outside Australia—the officer reasonably suspects that the ship is, will be or has been involved in a contravention in Australia of this Act.

However, a ship need not be brought to a port or other place if the Secretary makes a direction in relation to the ship under section 245H.

(8AA) To avoid doubt, subsection (8) allows an officer to bring a ship, or cause it to be brought, to a place even if it is necessary for the ship to travel on the high seas to reach the place.

People on detained ships or aircraft

(8A) If an officer detains a ship or aircraft under this section, any restraint on the liberty of any person found on the ship or aircraft that results from the detention of the ship or aircraft is not unlawful, and proceedings, whether civil or criminal, in respect of that restraint may not be instituted or continued in any court against the Commonwealth, the officer or any person assisting the officer in detaining the ship or aircraft.

Jurisdiction of High Court

(8B) Nothing in subsection (8A) is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

Powers of officers in respect of people found on detained ships or aircraft

(9) If an officer detains a ship or aircraft under this section, the officer may:

(a) detain any person found on the ship or aircraft and bring the person, or cause the person to be brought, to the migration zone; or

(b) take the person, or cause the person to be taken, to a place outside Australia.



Powers to move people

(9A) For the purpose of moving a person under subsection (9), an officer may, within or outside Australia:

(a) place the person on a ship or aircraft; or (b) restrain the person on a ship or aircraft; or (c) remove the person from a ship or aircraft.

Protection if officers etc. act in good faith

(9B) Proceedings, whether civil or criminal, may not be instituted or continued, in respect of any action taken under subsection (9A), against the Commonwealth, an officer or any person assisting an officer if the officer or person who took the action acted in good faith and used no more force than was authorised by subsection (10).

Use of necessary and reasonable force

(10) An officer may use such force as is necessary and reasonable in the exercise of a power under this section.

Limit on use of force to board and search ships or aircraft

(11) In boarding and searching the ship or aircraft and searching or examining goods found on the ship or aircraft, an officer must not damage the ship, aircraft or goods by forcing open a part of the ship, aircraft or goods unless:

(a) the person (if any) apparently in charge of the ship or aircraft has been given a reasonable opportunity to open that part or the goods; or

(b) it is not reasonably practicable to give that person such an opportunity.

This subsection has effect despite paragraphs (3)(a) and (b) and subsection (10).

Limit on use of force to arrest or detain person on ships or aircraft

(12) In arresting or detaining a person found on the ship or aircraft, an officer:

(a) must not use more force, or subject the person to greater indignity, than is necessary and reasonable to make the arrest



Section 245F


or detention, or to prevent the person escaping after the arrest or detention; and

(b) must not do anything likely to cause the person grievous bodily harm unless the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury of another person (including the officer).

This subsection has effect despite paragraph (3)(f) and subsection (10).

Limit on use of force to arrest fleeing person

(13) In arresting a person found on the ship or aircraft who is fleeing to escape arrest, an officer must not do anything likely to cause the person grievous bodily harm unless:

(a) the person has, if practicable, been called on to surrender and the officer believes on reasonable grounds that the person cannot be apprehended in any other way; or

(b) the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury of another person (including the officer).

This subsection applies in addition to subsection (12) and has effect despite paragraph (3)(f) and subsection (10).

If ship covered by agreement, officer may exercise other powers

(14) If: (a) an officer is satisfied that the ship is a foreign ship that is

entitled to fly the flag of a country; and (b) Australia has an agreement or arrangement with that country

which enables the exercise of Australian jurisdiction over ships of that country;

then the officer may exercise any powers prescribed by the regulations consistently with the agreement or arrangement in relation to the ship or persons found on the ship.

Complying with requirement by officer

(15) A person must not refuse or fail to comply with a requirement made by an officer under this section.







Evidence may be used in prosecutions etc.

(16) To avoid doubt, if, when exercising powers under this section, an officer obtains evidence of the commission of an offence against a law of the Commonwealth, a State or a Territory, then that evidence may be used, or given to another body for use, in:

(a) investigating the offence; or (b) proceedings for the prosecution for the offence.

However, this subsection does not override or limit the operation of a law of a State about the evidence that may be used in proceedings for the prosecution for an offence against a law of that State.

Section not to limit officer’s other powers

(17) This section does not limit the use by an officer of any other powers under this Act.

Definition of officer

(18) In this section, officer means an officer within the meaning of section 5, and includes:

(a) any person who is in command, or a member of the crew, of: (i) the ship or aircraft from which the relevant request

under section 245B or 245E was made; or (ii) a ship or aircraft that was used under section 245C or

245D to chase the ship in relation to which this section applies; and

(b) a member of the Australian Defence Force.



Section 245FA


Interpretation

(19) In this section: (a) a reference to a person found on the ship or aircraft includes

a reference to a person suspected on reasonable grounds by an officer of having landed from or left the ship or aircraft; and

(b) a reference to goods found on the ship or aircraft includes a reference to goods suspected on reasonable grounds by an officer of having been removed from the ship or aircraft.

245FA Searches of people on certain ships or aircraft

(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 the person:

(a) is on a ship or aircraft that has been detained under subsection 245F(8); or

(b) has been placed on a ship or aircraft under subsection 245F(9A).

Note: Division 13 of Part 2 provides search powers in respect of persons who are in immigration detention.

(2) The purpose 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 is to find out whether the person is carrying, or 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.

(3) If, in the course of a search under this section, a weapon or other thing referred to in subsection (2) is found, an officer:

(a) may take possession of the weapon or other thing; and (b) may retain the weapon or other thing for such time as he or

she thinks necessary for the purposes of this Act.

(4) This section does not authorise an officer, or another person conducting a search pursuant to subsection (5), to remove any of the person’s clothing, or to require a person to remove any of his or her clothing, except the person’s outer garments (including but not limited to the person’s overcoat, coat, jacket, gloves, shoes and head covering).

Part 2 Control of arrival and presence of non-citizens Division 12A Chasing, boarding etc. ships and aircraft Section 245FB


(5) A search under this section of a person, and the person’s clothing, must be conducted by:

(a) an officer of the same sex as the person; or (b) in a case where an 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 officer; and (ii) agrees; to conduct the search.

(6) An action or proceeding, whether civil or criminal, does not lie against a person who, at the request of an officer, conducts a search under this section if the person acts in good faith and does not contravene subsection (7).

(7) An officer or other person who conducts a search under this section must not use more force, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search.

(8) In this section, officer has the same meaning as it has in section 245F.

245FB Returning persons to ships

(1) An officer, or a person assisting an officer, may return to a ship that is detained under section 245F a person who:

(a) was on the ship when it was initially detained under section 245F; and

(b) later leaves the ship. For this purpose, reasonable means, including reasonable force, may be used by the officer or another person.

(2) A person may only be returned to a ship under subsection (1) if the officer or person assisting is satisfied that it is safe to return the person to the ship.

(3) In this section, officer has the same meaning as it has in section 245F.



Section 245G


245G Boarding of certain ships on the high seas


(1) This section applies to a ship if: (a) a request has been made under: (i) subsection 245B(6) (request to board a ship of a country

with which Australia has an agreement); or (ii) subsection 245B(7) (request to board a ship without

nationality); and (b) the ship is: (i) outside the outer edge of the contiguous zone of

Australia; and (ii) outside the territorial sea of any country (including

Australia).

Powers to establish the identity of the ship

(2) An officer may: (a) board the ship; and (b) ask all persons found on the ship questions about: (i) the identity of the ship; and (ii) the voyage of the ship; and (c) require all persons found on the ship to produce documents

relevant to: (i) finding out the identity of the ship; or (ii) the voyage of the ship; and (d) require the master or a member of the master’s crew to show

the commander or a member of the commander’s crew readings of the ship’s navigation instruments relating to the voyage of the ship.

Officer discovers that the ship is an Australian ship

(3) If, after exercising the powers in subsection (2), the officer is satisfied that the ship is an Australian ship, then section 245F applies to the ship. Note: If section 245F applies to a ship, then the officer will be able to

exercise all of the powers under that section in relation to the ship.

Part 2 Control of arrival and presence of non-citizens Division 12A Chasing, boarding etc. ships and aircraft Section 245G


Officer confirms that the ship is covered by an agreement etc.

(4) If: (a) after exercising the powers in subsection (2), the officer is

satisfied that the ship is a foreign ship that is entitled to fly the flag of a country; and

(b) Australia has an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over ships of that country;

then the officer may exercise the powers prescribed by the regulations consistently with that agreement or arrangement.

Officer discovers that the ship is not covered by an agreement etc.

(5) If: (a) after exercising the powers in subsection (2), the officer is

satisfied that the ship is a foreign ship that is entitled to fly the flag of a country; and

(b) Australia does not have an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over ships of that country;

then the officer must leave the ship as soon as is practicable.

Officer confirms that the ship is without nationality

(6) If, after exercising the powers in subsection (2), the officer is satisfied that the ship is a foreign ship that:

(a) is not entitled to fly the flag of a country; or (b) has been flying the flag of a country that it is not entitled to

fly; or (c) has been flying the flag of more than one country;

then the officer may search the ship.

Definition of officer

(7) In this section, officer means an officer within the meaning of section 5, and includes any person who is in command, or a member of the crew, of:

(a) the ship or aircraft from which the relevant request under section 245B or 245E was made; or



Section 245H


(b) a ship or aircraft that was used under section 245C to chase the ship in relation to which this section applies.

245H Moving or destroying hazardous ships etc.

Application of section to ships in Australia

(1) This section applies to a ship that is in Australia and that an officer reasonably suspects is or has been involved in a contravention or an attempted contravention, either in or outside Australia, of this Act.

Application of section to ships outside Australia

(2) This section also applies to a ship that is outside Australia if: (a) an officer has detained it under subsection 245F(8); and (b) in the case of an Australian ship—the officer reasonably

suspects it is or has been involved in a contravention or an attempted contravention, either in or outside Australia, of this Act; and

(c) in the case of a foreign ship—the officer reasonably suspects it is or has been involved in a contravention in Australia of this Act.

When the ship may be destroyed or moved

(3) The Secretary may direct an officer to move, destroy, or move and destroy the ship, or cause such thing to be done, if the Secretary has reasonable grounds to believe any of the following:

(a) that the ship is unseaworthy; (b) that the ship poses a serious risk to navigation, quarantine,

safety or public health; (c) that the ship poses a serious risk of damage to property or the

environment.

Giving of notice after the ship has been destroyed

(4) As soon as practicable, but not later than 7 days after the ship has been destroyed, the Secretary must give a written notice to:

(a) the owner of the ship; or

Part 2 Control of arrival and presence of non-citizens Division 12A Chasing, boarding etc. ships and aircraft Section 245H


(b) if the owner cannot be identified after reasonable inquiry—the person in whose possession or under whose control the ship was when it was detained or located.

(5) The notice must state: (a) that the ship has been destroyed under subsection (3); and (b) the reason for the destruction; and (c) that compensation may be payable under section 3B.

Note: A person may be paid compensation under section 3B if the destruction of the ship results in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution).

Failure to give notice not to affect validity

(6) A failure to give a notice under this section does not affect the validity of the ship’s destruction.

Section to override certain other provisions

(7) This section applies despite sections 260 and 261 and Subdivisions B and C of Division 13A.

(8) In this section, officer means an officer within the meaning of section 5, and includes:

(a) a member of the Australian Defence Force; and (b) any other person who is an officer within the meaning of

section 245F in relation to the ship concerned.


Reporting on passengers and crew of aircraft and ships Division 12B

Section 245I


Division 12B—Reporting on passengers and crew of aircraft and ships

245I Definitions

(1) In this Division:

approved fall-back reporting system means a system approved under section 245K.

approved primary reporting system means a system approved under section 245J.

approved primary reporting system for crew, for an aircraft or ship of a kind to which this Division applies, means the system approved under section 245J for reporting on crew on an aircraft or ship of that kind.

approved primary reporting system for passengers, for an aircraft or ship of a kind to which this Division applies, means the system approved under section 245J for reporting on passengers on an aircraft or ship of that kind.

arrival means: (a) in relation to an aircraft—the aircraft coming to a stop after

landing; or (b) in relation to a ship—the securing of the ship for the loading

or unloading of passengers, cargo or ship’s stores.

kind of aircraft or ship to which this Division applies means a kind of aircraft or ship specified in the regulations as a kind of aircraft or ship to which this Division applies. Note: Kind has a meaning affected by subsection (2).

operator of an aircraft or ship for a particular flight or voyage means:

(a) the airline or shipping line responsible for the operation of the aircraft or ship for the flight or voyage; or

(b) if there is no such airline or shipping line, or no such airline or shipping line that is represented by a person in Australia—the pilot of the aircraft or the master of the ship.

Part 2 Control of arrival and presence of non-citizens Division 12B Reporting on passengers and crew of aircraft and ships Section 245J


(2) For the purposes of this Division (and of regulations and approvals made for the purposes of provisions of this Division), a kind of aircraft or ship may be identified by reference to matters including all or any of the following:

(a) the type, size or capacity of the aircraft or ship; (b) the kind of operation or service the aircraft or ship is engaged

in on the flight or voyage to Australia; (c) other circumstances related to the aircraft or ship or its use,

or related to the operator of the aircraft or ship.

245J Approval of primary reporting systems

(1) The Secretary must, for each kind of aircraft or ship to which this Division applies, by legislative instrument, approve a system for the purposes of reporting under this Division. The system may be an electronic system or a system requiring reports to be provided in documentary form. Note 1: An approval under this subsection can be varied or revoked under

subsection 33(3) of the Acts Interpretation Act 1901.

Note 2: It is anticipated that, ultimately, documentary systems will be phased out and all approved systems will be electronic systems.

(2) Under subsection (1), the Secretary may, for a kind of aircraft or ship, approve a single system for reporting on both passengers and crew or may approve one system for reporting on passengers, and another system for reporting on crew.

(3) The instrument of approval of a system for reporting on passengers or crew must also specify the information about passengers or crew that is to be reported by that system.

245K Approval of fall-back reporting systems

(1) The Secretary must, by legislative instrument, approve one or more systems as fall-back reporting systems. A system may be an electronic system or a system requiring reports to be provided in documentary form. Note: An approval under this subsection can be varied or revoked under

subsection 33(3) of the Acts Interpretation Act 1901.



Section 245L


(2) The instrument of approval of a system must also specify the information about passengers or crew that is to be reported by that system.

245L Obligation to report on passengers and crew

Aircraft and ships to which section applies

(1) This section applies to an aircraft or ship of a kind to which this Division applies that is due to arrive at an airport or port in Australia from a place outside Australia.

Obligation to report on passengers and crew

(2) The operator of the aircraft or ship must, in accordance with this section:

(a) report to the Department, using the approved primary reporting system for passengers, on the passengers who will be on board the aircraft or ship at the time of its arrival at the airport or port; and

(b) report to the Department, using the approved primary reporting system for crew, on the crew who will be on board the aircraft or ship at the time of its arrival at the airport or port.

Note 1: This obligation (and the obligation in subsection (6)) must be complied with even if the information concerned is personal information (as defined in the Privacy Act 1988).

Note 2: Section 245N contains an offence for failure to comply with this subsection.

Information to be reported

(3) A report on passengers or crew under subsection (2) must include the information relating to those passengers or crew that is specified, as mentioned in subsection 245J(3), in relation to the relevant approved primary reporting system.

Deadline for reporting—aircraft

(4) A report on passengers or crew on an aircraft must be given not later than:

Part 2 Control of arrival and presence of non-citizens Division 12B Reporting on passengers and crew of aircraft and ships Section 245M


(a) if the flight from the last airport outside Australia is likely to take not less than 3 hours—3 hours before the aircraft’s likely time of arrival at the airport in Australia; or

(b) if the flight from the last airport outside Australia is likely to take less than 3 hours—one hour before the aircraft’s likely time of arrival at the airport in Australia.

Deadline for reporting—ships

(5) A report on passengers or crew on a ship must be given not later than:

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

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

Obligation to pass information on to Australian Customs Service

(6) As soon as practicable after information is reported under this section, the Department must provide the information to the Australian Customs Service.

Purpose for which information obtained

(7) Information obtained by the Department: (a) under this section; or (b) under subsection 64ACA(11) or 64ACB(8) of the Customs

Act 1901; is taken to be obtained by the Department for the purposes of the administration of this Act, the Customs Act 1901, and any other law of the Commonwealth prescribed by regulations for the purposes of this subsection.

245M Approved fall-back reporting systems may be used in certain circumstances

(1) This section applies if: (a) the approved primary reporting system for reporting on

passengers or crew on an aircraft or ship is an electronic system; and



Section 245N


(b) either: (i) the operator of the aircraft or ship cannot report on some

or all of the passengers or crew (the relevant passengers or crew) using the approved primary reporting system because the system is not working; or

(ii) the Secretary permits the operator of the aircraft or ship to report on some or all of the passengers or crew (the relevant passengers or crew) using an approved fall-back reporting system.

(2) Section 245L applies in relation to the relevant passengers or crew as if:

(a) the reference in paragraph 245L(2)(a) or (b) to the approved primary reporting system for passengers, or the approved primary reporting system for crew, were instead a reference to an approved fall-back reporting system; and

(b) the reference in subsection 245L(3) to the information that is specified, as mentioned in subsection 245J(3), in relation to the relevant approved primary reporting system were instead a reference to the information that is specified, as mentioned in subsection 245K(2), in relation to the approved fall-back reporting system that the operator uses in relation to the relevant passengers or crew.

245N Offence for failure to comply with reporting obligations

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

(2) An operator of an aircraft or ship who contravenes subsection 245L(2) commits an offence punishable, on conviction, by a penalty not exceeding 60 penalty units.


Part 2 Control of arrival and presence of non-citizens Division 13 Examination, search and detention Section 246


Division 13—Examination, search and detention

246 Appointment of boarding stations

(1) The Governor-General may, by Proclamation, appoint a place in a port to be the boarding station for that port for the purposes of this Act.

(2) Where a boarding station for a port is for the time being appointed or continued under the Customs Act 1901-1957, that boarding station shall be deemed to be appointed under this section as the boarding station for that port for the purposes of this Act.

247 Vessels to enter ports and be brought to boarding stations

(1) The master of a vessel which has entered Australia from overseas shall not suffer the vessel to enter any place other than a port.


(2) The master of a vessel (other than an aircraft) from overseas bound to or calling at a port:

(a) shall, if so required by the Secretary, bring the vessel (other than an aircraft) to for boarding under this Act at the boarding station appointed for that port; and

(b) shall not move the vessel (other than an aircraft) from that boarding station until permitted to do so by the Secretary.


(2A) Subsection (2) does not apply if the master moves the vessel from the boarding station with the intention of leaving the port. Note: A defendant bears an evidential burden in relation to the matter in


(3) The master of an aircraft from overseas arriving in Australia shall not suffer the aircraft to land at any other proclaimed airport until the aircraft has first landed:

(a) at such proclaimed airport for which a boarding station is appointed as is nearest to the place at which the aircraft entered Australia; or


Examination, search and detention Division 13

Section 247


(b) at such other airport for which a boarding station is appointed as has been approved by the Secretary, in writing, as an airport at which that aircraft, or a class of aircraft in which that aircraft is included, may land on arriving in Australia from overseas.


(4) The master of an aircraft which is engaged on an air service or flight from a place overseas to a place in Australia:

(a) shall not suffer the aircraft to land at a proclaimed airport for which a boarding station is not appointed;

(b) shall, as soon as practicable after the aircraft lands at a proclaimed airport, bring the aircraft for boarding to the boarding station appointed for that airport; and

(c) shall not move the aircraft from that boarding station until permitted to do so by the Secretary.


(5) It is a defence to a prosecution for an offence against subsection (1), (3) or (4) if the person charged proves that he or she was prevented from complying with the subsection by stress of weather or other reasonable cause. Note: A defendant bears a legal burden in relation to the matters in

subsection (5) (see section 13.4 of the Criminal Code).

(5A) An offence against any of subsections (1) to (4) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

(6) While a vessel is at a boarding station, an officer may go and remain on board the vessel for the purposes of this Act.

(7) The master of a vessel shall do all things reasonably required by an officer to facilitate the boarding of the vessel under this section and the performance by the officer of duties for the purposes of this Act.

Penalty for any contravention of this subsection: 100 penalty units.




248 Exemption

Where the Minister is satisfied that it is no longer necessary for the purposes of this Act that a provision of section 247 should continue to apply in relation to a vessel, the Minister shall, by writing under his or her hand, exempt the master of that vessel from liability to comply with that provision.

249 Certain persons may be prevented from entering or landing

(1) An officer may: (a) prevent a person whom the officer reasonably suspects to be

an unlawful non-citizen from leaving a vessel on which the person arrived in Australia; or

(b) prevent a removee or deportee from leaving a vessel on which he or she has been placed;

and may take such action and use such force as are necessary for that purpose.

(1AA) An officer may prevent a person from leaving a vessel on which the person arrived in Australia if the officer reasonably suspects that the person:

(a) is seeking to enter the migration zone; and (b) would, if in the migration zone, be an unlawful non-citizen.

(1A) To avoid doubt, and without limiting the generality of subsections (1) and (1AA), if a person of a kind referred to in paragraph (1)(a) or subsection (1AA) is on board a vessel (other than an aircraft), the actions that may be taken by an officer under subsections (1) and (1AA) include:

(a) requiring the vessel to travel to a port; and (b) requiring the person to remain on the vessel until it arrives at

the port.

(2) The master of a vessel may, in relation to persons on board the vessel, do all things which an officer is, under subsections (1) and (1AA), authorized to do.



Section 250


250 Detention of suspected offenders


suspect means a non-citizen who: (a) travelled, or was brought, to the migration zone; and (b) is believed by an authorised officer on reasonable grounds to

have been on board a vessel (not being an aircraft) when it was used in connection with the commission of an offence against a law in force in the whole or any part of Australia.

(2) For the purposes of section 189, an officer has a suspicion described in that section about a person if, but not only if, the person is a suspect.

(3) A non-citizen detained because of subsection (2) may be kept in immigration detention for:

(a) such period as is required for: (i) the making of a decision whether to prosecute the

suspect in connection with the offence concerned; or (ii) instituting such a prosecution; and (b) if such a prosecution is instituted within that period—such

further period as is required for the purposes of the prosecution.

(4) Without limiting the generality of paragraph (3)(b), the period that is required for the purposes of a prosecution includes any period required for:

(a) any proceedings in connection with the prosecution; and (b) the serving of any custodial sentence imposed because of the

prosecution; and (c) the institution of, and any proceedings in connection with,

any appeal from any decision in relation to the prosecution.

(5) If the period for which a person may be kept in immigration detention under subsection (3) ends, he or she:

(a) must, unless he or she has become the holder of a visa, that is in effect, to remain in Australia, be expeditiously removed from Australia under section 198; and

(b) may, at the direction of an authorised officer, continue to be detained under section 189 until so removed.



251 Powers of entry and search

(1) An officer may at any time board and search a vessel if: (a) section 245F does not apply to the vessel; and (b) the officer reasonably suspects there is on board the vessel: (i) an unlawful non-citizen; or (ii) a person seeking to enter the migration zone who would,

if in the migration zone, be an unlawful non-citizen.

(2) The master of a vessel shall do all things reasonably required by an officer to facilitate the boarding and searching of the vessel by the officer under subsection (1).

Penalty: $10,000.


(3) A reference in subsection (1) or (2) to a vessel includes a reference to an Australian resources installation and to an Australian sea installation.

(4) The Secretary may issue to an officer a search warrant in accordance with the prescribed form.

(5) A search warrant shall be expressed to remain in force for a specified period not exceeding 3 months and ceases to be in force at the expiration of the specified period.

(6) An officer having with him or her a search warrant issued to him or her under this section and remaining in force may, at any time in the day or night with such assistance as the officer thinks necessary, enter and search any building, premises, vessel, vehicle or place in which the officer has reasonable cause to believe there may be found:

(a) an unlawful non-citizen, a removee or a deportee; (b) a person to whom a temporary visa has been issued subject to

a condition with respect to the work that is to be performed by that person;

(c) any document, book or paper relating to the entry or proposed entry into Australia of a person in circumstances in which that person:



Section 252


(i) would have become a prohibited immigrant within the meaning of this Act as in force from time to time before the commencement of the Migration Amendment Act 1983; or

(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 been an illegal entrant within the meaning of the Act as in force from time to time after the commencement of section 4 of the Migration Legislation Amendment Act 1989 but before 1 September 1994; or

(iv) would have become, or would become, an unlawful non-citizen; or

(d) any passport or document of identity of, or any ticket for the conveyance from a place within Australia to a place outside Australia of an unlawful non-citizen, a removee or a deportee;

and may seize any such document, book, paper, passport, document of identity or ticket, as the case may be, and impound and detain it for such time as the officer thinks necessary.

(7) For the purposes of the exercise of his or her powers under this section an officer may stop any vessel or vehicle.

(8) An officer may use such reasonable force as is necessary for the exercise of his or her powers under this section.

252 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 is detained: (i) in Australia; or (ii) on an Australian ship (within the meaning of

section 245A) that is outside the territorial sea of any country (including Australia); or



(b) the person is a non-citizen who has not been immigration cleared and an authorised officer has reasonable grounds for suspecting there are reasonable grounds for cancelling the person’s visa.

(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 immigration detention;

(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 for grounds for cancelling the person’s visa.

(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;



Section 252AA


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.

(9) To avoid doubt, a search of a person may be conducted under this section irrespective of whether a screening procedure is conducted in relation to the person under section 252AA or a strip search of the person is conducted under section 252A.

252AA Power to conduct a screening procedure

(1) A screening procedure in relation to a detainee, other than a detainee to whom section 252F applies, may be conducted by an authorised officer, without warrant, to find out whether there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon, or other thing, capable of being used:

(a) to inflict bodily injury; or (b) to help the detainee, or any other detainee, to escape from

immigration detention.

(2) An authorised officer who conducts a screening procedure under this section must not use greater force, or subject the detainee to greater indignity, than is reasonably necessary in order to conduct the screening procedure.

(3) This section does not authorise an authorised officer to remove any of the detainee’s clothing, or to require a detainee to remove any of his or her clothing.

(4) To avoid doubt, a screening procedure may be conducted in relation to a detainee under this section irrespective of whether a search of the detainee is conducted under section 252 or 252A.

Part 2 Control of arrival and presence of non-citizens Division 13 Examination, search and detention Section 252A



conducting a screening procedure, in relation to a detainee, means:

(a) causing the detainee to walk, or to be moved, through screening equipment; or

(b) passing hand-held screening equipment over or around the detainee or around things in the detainee’s possession; or

(c) passing things in the detainee’s possession through screening equipment or examining such things by X-ray.

screening equipment means a metal detector or similar device for detecting objects or particular substances.

252A Power to conduct a strip search

(1) A strip search of a detainee, other than a detainee to whom section 252F applies, may be conducted by an authorised officer, without warrant, to find out whether there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon, or other thing, capable of being used:

(a) to inflict bodily injury; or (b) to help the detainee, or any other detainee, to escape from

immigration detention. Note: Section 252B sets out rules for conducting a strip search under this

section.

(2) A strip search of a detainee means a search of the detainee, of his or her clothing or of a thing in his or her possession. It may include:

(a) requiring the detainee to remove some or all of his or her clothing; and

(b) an examination of that clothing and of the detainee’s body (but not of the detainee’s body cavities).

(3) A strip search of a detainee may be conducted by an authorised officer only if:

(a) an officer suspects on reasonable grounds that there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon or other thing described in subsection (1); and



Section 252A


(b) the officer referred to in paragraph (a) suspects on reasonable grounds that it is necessary to conduct a strip search of the detainee to recover that weapon or other thing; and

(c) the strip search is authorised as follows: (i) if the detainee is at least 18—the Secretary, or an SES

Band 3 employee in the Department (who is not the officer referred to in paragraphs (a) and (b) nor the authorised officer conducting the strip search), authorises the strip search because he or she is satisfied that there are reasonable grounds for those suspicions;

(ii) if the detainee is at least 10 but under 18—a magistrate orders the strip search because he or she is satisfied that there are reasonable grounds for those suspicions.

(3A) An officer may form a suspicion on reasonable grounds for the purposes of paragraph (3)(a) on the basis of:

(a) a search conducted under section 252 (whether by that officer or another officer); or

(b) a screening procedure conducted under section 252AA (whether by that officer or another officer); or

(c) any other information that is available to the officer.

(4) An authorisation of a strip search given for the purposes of paragraph (3)(c):

(a) may be given by telephone, fax or other electronic means; and

(b) must be recorded in writing, and signed by the person giving the authorisation, within one business day after it is given.

(5) A failure to comply with paragraph (4)(b) does not affect the validity of a strip search conducted on the basis of that authorisation.

(6) The power to authorise a strip search under paragraph (3)(c) cannot be delegated to any other person.

(6A) A power conferred on a magistrate by this section is conferred on the magistrate in a personal capacity and not as a court or a member of a court.

(6B) The magistrate need not accept the power conferred.

Part 2 Control of arrival and presence of non-citizens Division 13 Examination, search and detention Section 252B


(6C) A magistrate exercising a power under this section has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.

(7) To avoid doubt, a strip search of a detainee may be conducted under this section irrespective of whether a search of the detainee is conducted under section 252 or a screening procedure is conducted in relation to the detainee under section 252AA.


business day means a day that is not a Saturday, Sunday or public holiday in the place where the authorisation is given.

SES Band 3 employee means an SES employee with a classification of Senior Executive Band 3, and includes an SES employee who has been temporarily assigned duties that have been allocated a classification of Senior Executive Band 3.

SES employee has the meaning given by the Public Service Act 1999.

252B Rules for conducting a strip search

(1) A strip search of a detainee under section 252A: (a) must not subject the detainee to greater indignity than is

reasonably necessary to conduct the strip search; and (b) must be conducted in a private area; and (c) must be conducted by an authorised officer of the same sex

as the detainee; and (d) subject to subsections (2), (3) and (5), must not be conducted

in the presence or view of a person who is of the opposite sex to the detainee; and

(e) subject to subsections (2), (3) and (5), must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the strip search; and

(f) must not be conducted on a detainee who is under 10; and (g) if the detainee is at least 10 but under 18, or is incapable of

managing his or her affairs—must be conducted in the presence of:



Section 252B


(i) the detainee’s parent or guardian if that person is in immigration detention with the detainee and is readily available at the same place; or

(ii) if that is not acceptable to the detainee or subparagraph (i) does not apply—another person (other than an authorised officer) who is capable of representing the detainee’s interests and who, as far as is practicable in the circumstances, is acceptable to the detainee; and

(h) subject to subsection (4), if the detainee is at least 18, and is not incapable of managing his or her affairs—must be conducted in the presence of another person (if any) nominated by the detainee, if that other person is readily available at the same place as the detainee, and willing to attend the strip search within a reasonable time; and

(i) must not involve a search of the detainee’s body cavities; and (j) must not involve the removal of more items of clothing, or

more visual inspection, than the authorised officer conducting the search believes on reasonable grounds to be necessary to determine whether there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon or other thing described in subsection 252A(1); and

(k) must not be conducted with greater force than is reasonably necessary to conduct the strip search.

(2) Paragraphs (1)(d) and (e) do not apply to a parent or guardian, or person present because of subparagraph (1)(g)(ii), if the detainee has no objection to that person being present.

(3) Paragraphs (1)(d) and (e) do not apply to a person nominated by the detainee under paragraph (1)(h) to attend the strip search.

(4) Neither: (a) a detainee’s refusal or failure to nominate a person under

paragraph (1)(h) within a reasonable time; nor (b) a detainee’s inability to nominate a person under that

paragraph who is readily available at the same place as the detainee and willing to attend the strip search within a reasonable time;

prevents a strip search being conducted.

Part 2 Control of arrival and presence of non-citizens Division 13 Examination, search and detention Section 252C


(5) A strip search of a detainee may be conducted with the assistance of another person if the authorised officer conducting the strip search considers that to be necessary for the purposes of conducting it. That person must not be of the opposite sex to the detainee unless:

(a) the person is a medical practitioner; and (b) a medical practitioner of the same sex as the detainee is not

available within a reasonable time.

(6) An action or proceeding, whether civil or criminal, does not lie against a person who, at the request of an authorised officer, assists in conducting a strip search if the person acts in good faith and does not contravene this section.

(7) A detainee must be provided with adequate clothing if during or as a result of a strip search any of his or her clothing is:

(a) damaged or destroyed; or (b) retained under section 252C.

252C Possession and retention of certain things obtained during a screening procedure or strip search

(1) An authorised officer may take possession of and retain a thing found in the course of conducting a screening procedure under section 252AA or conducting a strip search under section 252A if the thing:

(a) might provide evidence of the commission of an offence against this Act; or

(b) is forfeited or forfeitable to the Commonwealth.

(2) A weapon or other thing described in subsection 252AA(1) or 252A(1) that is found in the course of conducting a screening procedure under section 252AA or a strip search under section 252A is forfeited to the Commonwealth.

(3) An authorised officer must not return a thing that is forfeited or forfeitable to the Commonwealth. Instead, the authorised officer must, as soon as practicable, give the thing to a constable (within the meaning of the Crimes Act 1914).

(4) An authorised officer must take reasonable steps to return any other thing retained under subsection (1) to the person from whom



Section 252D


it was taken, or to the owner if that person is not entitled to possess it, if one of the following happens:

(a) it is decided that the thing is not to be used in evidence; (b) the period of 60 days after the authorised officer takes

possession of the thing ends.

(5) However, the authorised officer does not have to take those steps if:

(a) in a paragraph (4)(b) case: (i) proceedings in respect of which the thing might provide

evidence have been instituted before the end of the 60 day period and have not been completed (including an appeal to a court in relation to those proceedings); or

(ii) the authorised officer may retain the thing because of an order under section 252E; or

(b) in any case—the authorised officer is otherwise authorised (by a law, or an order of a court or a tribunal, of the Commonwealth or a State or Territory) to retain, destroy or dispose of the thing.

252D Authorised officer may apply for a thing to be retained for a further period

(1) This section applies if an authorised officer has taken possession of a thing referred to in subsection 252C(4) and proceedings in respect of which the thing might provide evidence have not commenced before the end of:

(a) 60 days after the authorised officer takes possession of the thing; or

(b) a period previously specified in an order of a magistrate under section 252E.

(2) The authorised officer may apply to a magistrate for an order that the officer may retain the thing for a further period.

(3) Before making the application, the authorised officer must: (a) take reasonable steps to discover which persons’ interests

would be affected by the retention of the thing; and (b) if it is practicable to do so, notify each person who the

authorised officer believes to be such a person of the proposed application.

Part 2 Control of arrival and presence of non-citizens Division 13 Examination, search and detention Section 252E


252E Magistrate may order that thing be retained

(1) The magistrate may order that the authorised officer who made an application under section 252D may retain the thing if the magistrate is satisfied that it is necessary for the authorised officer to do so:

(a) for the purposes of an investigation as to whether an offence has been committed; or

(b) to enable evidence of an offence to be secured for the purposes of a prosecution.

(2) The order must specify the period for which the authorised officer may retain the thing.

(3) A power conferred on a magistrate by this section is conferred on the magistrate in a personal capacity and not as a court or a member of a court.

(4) The magistrate need not accept the power conferred.

(5) A magistrate exercising a power under this section has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.

252F Detainees held in State or Territory prisons or remand centres

(1) This section applies to a detainee if: (a) he or she is held in immigration detention in a prison or

remand centre of a State or Territory; and (b) a law of that State or Territory confers a power to search

persons, or things in the possession of persons, serving sentences or being held in the prison or remand centre.

(2) To the extent that the State or Territory law confers that power, or affects the exercise of that power, it applies to the detainee as though it were a law of the Commonwealth.

(3) Sections 252AA and 252A of this Act do not apply to a detainee to whom this section applies.



Section 252G


252G Powers concerning entry to a detention centre

(1) An officer may request that a person about to enter a detention centre established under this Act do one or more of the following:

(a) walk through screening equipment; (b) allow an officer to pass hand-held screening equipment over

or around the person or around things in the person’s possession;

(c) allow things in the person’s possession to pass through screening equipment or to be examined by X-ray.

(2) Screening equipment means a metal detector or similar device for detecting objects or particular substances.

(3) If an authorised officer suspects on reasonable grounds that a person about to enter a detention centre established under this Act has in his or her possession a thing that might:

(a) endanger the safety of the detainees, staff or other persons at the detention centre; or

(b) disrupt the order or security arrangements at the detention centre;

the authorised officer may request that the person do some or all of the things in subsection (4) for the purpose of finding out whether the person has such a thing. A request may be made whether or not a request is also made to the person under subsection (1).

(4) An authorised officer may request that the person do one or more of the following:

(a) allow the authorised officer to inspect the things in the person’s possession;

(b) remove some or all of the person’s outer clothing such as a coat, jacket or similar item;

(c) remove items from the pockets of the person’s clothing; (d) open a thing in the person’s possession, or remove the thing’s

contents, to allow the authorised officer to inspect the thing or its contents;

(e) leave a thing in the person’s possession, or some or all of its contents, in a place specified by the authorised officer if he or she suspects on reasonable grounds that the thing or its contents are capable of concealing something that might:



(i) endanger the safety of the detainees, staff or other persons at the detention centre; or

(ii) disrupt the order or security arrangements at the detention centre.

(5) A person who leaves a thing (including any of its contents) in a place specified by an authorised officer is entitled to its return when the person leaves the detention centre.

(6) However, if possession of the thing, or any of those contents, by the person is unlawful under a Commonwealth law or in the State or Territory in which the detention centre is located:

(a) the thing or the contents must not be returned to the person; and

(b) an authorised officer must, as soon as practicable, give the thing or the contents to a constable (within the meaning of the Crimes Act 1914).

(7) A person who is about to enter a detention centre established under this Act may be refused entry if he or she does not comply with a request under this section.

253 Detention of deportee

(1) Where an order for the deportation of a person is in force, an officer may, without warrant, detain a person whom the officer reasonably supposes to be that person.

(2) A person detained under subsection (1) or (10) may, subject to this section, be kept in immigration detention or in detention as a deportee in accordance with subsection (8).

(3) Where an officer detains a person under subsection (1) or (10), the officer shall forthwith inform the person of the reason for the detention and shall, if that person so requests, furnish to him or her, as soon as practicable, particulars of the deportation order.

(4) If a person detained under this section (in this subsection called the detained person) claims, within 48 hours after the detention and while the detained person is detention, that he or she is not the person in respect of whom the deportation order is in force, the person to whom the claim is made shall:



Section 253


(a) if that last-mentioned person is an officer—ask the detained person; or

(b) in any other case—cause an officer to ask the detained person;

to make a statutory declaration to that effect, and, if the person detained makes such a declaration, the officer who asked him or her to make the declaration shall take him or her before a prescribed authority within 48 hours after the making of the declaration, or, if it is not practicable to take him or her before a prescribed authority within that time, as soon as practicable after the expiration of that period.

(5) If a detained person who is required under subsection (4) to be brought before a prescribed authority within a particular period, is not so brought before a prescribed authority, the person shall be released.

(6) Where a person is brought before a prescribed authority under this section, the prescribed authority shall inquire into the question whether there are reasonable grounds for supposing that that person is a deportee and, if the prescribed authority is satisfied that there are such reasonable grounds, the prescribed authority shall, by writing under his or her hand, declare accordingly.

(7) Where a prescribed authority makes a declaration in accordance with subsection (6), the detained person may be held in detention as a deportee in accordance with subsection (8), but otherwise the prescribed authority shall direct the release of that person and he or she shall be released accordingly.

(8) A deportee may be kept in immigration detention or such detention as the Minister or the Secretary directs:

(a) pending deportation, until he or she is placed on board a vessel for deportation;

(b) at any port or place in Australia at which the vessel calls after he or she has been placed on board; or

(c) on board the vessel until its departure from its last port or place of call in Australia.

(9) 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 detention under this section.



(10) An officer may, without warrant, detain a person who: (a) has been released from detention under subsection (9) subject

to conditions; and (b) has breached any of those conditions.

(11) Nothing contained in, or done under, this section prevents the Supreme Court of a State or Territory or the High Court from ordering the release from detention of a person held in detention under this section where the Court finds that there is no valid deportation order in force in relation to that person.

254 Removees and deportees held in other custody

(1) This section applies if a person is a removee or a deportee and is in the custody of an authority of the Commonwealth, a State or a Territory, otherwise than under this Act.

(2) The Secretary may give the person written notice: (a) if the person is a deportee: (i) stating that a deportation order has been made; and (ii) setting out particulars of the deportation order; and (b) if the person is a removee—stating that the person is to be

removed; and (c) in any case—stating that, from the time when the person

would otherwise be entitled to be released from the custody referred to in subsection (1) (the custody transfer time), the person will be kept in immigration detention.

(2A) If a removee is given notice under subsection (2): (a) the authority who has custody of the removee immediately

before the custody transfer time is taken from the custody transfer time to be an officer for the purposes of the application of Division 7 of Part 2 in relation to the removee; and

(b) the removee is taken from the custody transfer time to be detained by the authority in the capacity of such an officer in the exercise of the powers conferred by that Division.

(3) If a deportee is given notice under subsection (2): (a) the authority who has custody of the deportee immediately

before the custody transfer time is taken from the custody transfer time to be an officer for the purposes of the



Section 255


application of subsection 253(1) in relation to the deportee; and

(b) the deportee is taken from the custody transfer time to be detained by the authority in the capacity of such an officer in the exercise of the powers conferred by subsection 253(1); and

(c) subsection 253(3) does not apply in relation to the deportee.

255 Prescribed authorities

(1) The Minister may appoint as a prescribed authority for the purposes of section 253 a person who is or has been a Judge of a Federal Court or of the Supreme Court of a State or Territory or a barrister or solicitor of the High Court or of the Supreme Court of a State of not less than 5 years’ standing.

(2) The Governor-General may arrange with the Governor-in-Council of a State for the performance by persons who hold office as Police, Stipendiary or Special Magistrates in that State of the functions of a prescribed authority under section 253.

(3) Notice of an arrangement under subsection (2) shall be published in the Gazette.

(4) Where an arrangement under subsection (2) is in force, a person who holds an office specified in the arrangement is a prescribed authority for the purposes of section 253.

(5) A person who holds office as a Police, Stipendiary or Special Magistrate of a Territory is a prescribed authority for the purposes of section 253.

(6) A prescribed authority shall make a thorough investigation of the matter which he or she is required to inquire into, without regard to legal forms, and shall not be bound by any rules of evidence but may inform himself or herself on any relevant matter in such manner as he or she thinks fit.

256 Person in immigration detention may have access to certain advice, facilities etc.

Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the



request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.

257 Persons may be required to answer questions

(1) For the purpose of determining whether a person who is in immigration detention under this Act is an unlawful non-citizen, a removee or a deportee, an officer may put to that person such questions as the officer considers necessary and may move that person from place to place.

(2) Where an officer puts a question to a person in accordance with subsection (1) after having informed that person that he or she is required to answer the question, that person shall not:

(a) refuse or fail to answer the question; or (b) in answer to the question, make a statement which is false or

misleading in a material particular.



(3) Where subsection (2) is applicable in relation to a question put to a person, that person is not excused from answering the question on the ground that the answer might tend to incriminate him or her, but the answer to the question shall not be used as evidence against that person in any proceedings other than proceedings under that subsection.

258 Minister may determine that personal identifiers are not required

The Minister may, for the purposes of section 40, 46, 166, 170, 175, 188 or 192 or for the purposes of more than one of those sections, determine, by legislative instrument, any one or more of the following:

(a) one or more specified classes of non-citizens referred to in that section or those sections who cannot be required to



Section 258A


provide personal identifiers for the purposes of that section or those sections;

(b) one or more specified types of personal identifiers that one or more specified classes of non-citizens referred to in that section or those sections cannot be required to provide under that section, or those sections;

(c) one or more specified circumstances in which non-citizens referred to in that section or those sections cannot be required to provide personal identifiers under that section or those sections;

(d) one or more specified types of personal identifiers that, in one or more specified circumstances, non-citizens referred to in that section or those sections cannot be required to provide under that section or those sections.

258A When non-citizen cannot be required to provide personal identifier

A person cannot be required under section 40, 46, 166, 170, 175, 188 or 192 to provide a personal identifier if:

(a) the person is in immigration detention (but not only because he or she is detained for questioning detention (see section 192)); and

(b) the person has, during that detention, provided a personal identifier of that type under Division 13AA.

258B Information to be provided—authorised officers carrying out identification tests

(1) Before carrying out an identification test on a non-citizen for the purposes of section 40, 46, 166, 170, 175, 188 or 192, the authorised officer must:

(a) if the non-citizen: (i) is a person whom an officer, in the course of exercising

or considering the exercising of his or her powers under section 188, knows or reasonably suspects is a non-citizen; or

(ii) is detained for questioning detention (see section 192); inform the non-citizen that the non-citizen may request that

an authorisation be obtained under section 192A; and

Part 2 Control of arrival and presence of non-citizens Division 13 Examination, search and detention Section 258C


(b) in any case—inform the non-citizen of such other matters as are prescribed.

(2) For the purposes of subsection (1), the authorised officer informs the non-citizen of a matter if the authorised officer informs the non-citizen of the matter, through an interpreter if necessary, in a language (including sign language or braille) in which the non-citizen is able to communicate with reasonable fluency.

(3) The authorised officer may comply with this section by giving to the non-citizen, in accordance with the regulations, a form setting out the information specified in the regulations. However, the information must be in a language (including braille) in which the non-citizen is able to communicate with reasonable fluency.

258C Information to be provided—authorised officers not carrying out identification tests

(1) Before requiring a non-citizen to provide a personal identifier in circumstances to which subsection 40(5), 46(2C), 166(8), 170(5), 175(5), 188(7) or 192(2C) applies, the non-citizen must be informed, in the prescribed manner, of such matters as are prescribed.

(2) The manner in which the non-citizen is informed of the matters need not involve an officer or authorised officer informing the non-citizen of the matters.

258D Regulations may prescribe manner for carrying out identification tests

(1) The regulations may prescribe the manner in which the authorised officer is to carry out identification tests on the non-citizen under section 40, 46, 166, 170, 175, 188 or 192.

(2) The regulations may prescribe the procedure and requirements that apply if a personal identifier is provided under those sections by the non-citizen otherwise than by way of an identification test carried out by an authorised officer.



Section 258E


258E General rules for carrying out identification tests

An identification test that an authorised officer carries out under section 40, 46, 166, 170, 175, 188 or 192:

(a) must be carried out in circumstances affording reasonable privacy to the non-citizen; and

(b) must not be carried out in the presence or view of a person whose presence is not necessary for the purposes of the identification test or required or permitted by another provision of this Act; and

(c) must not involve the removal of more clothing than is necessary for carrying out the test; and

(d) must not involve more visual inspection than is necessary for carrying out the test; and

(e) unless the authorised officer has reasonable grounds to believe that the non-citizen is not a minor or an incapable person—must be carried out in accordance with the additional requirements of Division 13AB.

258F Identification tests not to be carried out in cruel, inhuman or degrading manner etc.

For the purposes of this Act, the carrying out of an identification test (by an authorised officer or otherwise) under section 40, 46, 166, 170, 175, 188 or 192 is not of itself taken:

(a) to be cruel, inhuman or degrading; or (b) to be a failure to treat a person with humanity and with

respect for human dignity. However, nothing in this Act authorises the carrying out of the identification test in a cruel, inhuman or degrading manner, or in a manner that fails to treat a person with humanity and with respect for human dignity.

258G Authorised officer may get help to carry out identification tests

An authorised officer may ask another authorised officer or an officer to help him or her to carry out the identification test, and the other person may give that help.



259 Detention of vessel for purpose of search

(1) The Secretary may, by notice in writing to the master of a vessel which has arrived in Australia not more than one month before the date of the notice, order that the vessel remain at a port or place for a reasonable time specified in the notice for the purpose of enabling a search of the vessel to be made in order to ascertain whether there are on the vessel any unlawful non-citizens or any persons seeking to enter Australia in circumstances in which they would become unlawful non-citizens.

(2) The master of a vessel in respect of which an order is in force under this section shall not, during the time specified in the order, move the vessel without the consent of the Secretary.

Penalty: $20,000.


260 Detention of vessel pending recovery of penalty

(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.

(2) Where a direction is given under subsection (1): (a) the officer specified in the direction may detain the vessel at

the place where it is found or cause it to be brought to another place specified by the Secretary and detain it at that place; and

(b) the Secretary shall forthwith give notice of the detention to the master, owner, charterer or agent of the vessel.

(3) For the purposes of the detention and other lawful dealings with the vessel, the officer specified in the direction is entitled to obtain such seizure warrant issued under Division 1 of Part XII of the Customs Act 1901 or other aid as may be obtained under the law relating to the Customs with respect to the seizure of vessels or goods.



Section 261


(4) The detention of a vessel under this section shall cease if a bond with 2 sufficient sureties to the satisfaction of the Secretary is given by the master, owner, agent or charterer of the vessel for the payment of any penalties that may be imposed in respect of the alleged offence.

(5) If, while the vessel is detained under this section, default is made in payment of any penalties imposed in respect of an offence against this Act by the master, owner, agent or charterer of the vessel, the Secretary may seize the vessel, and the like proceedings shall thereupon be taken for forfeiting and condemning the vessel as in the case of a vessel seized for breach of the law relating to the Customs, and the vessel shall be sold.

(6) The proceeds of the sale shall be applied firstly in payment of the penalties referred to in subsection (5) and of all costs awarded in connexion with the proceedings in which the penalties were imposed or incurred in and about the sale and the proceedings leading to the sale, and the balance shall be payable to the owner and other persons having interests in the vessel before the condemnation and sale.

(7) Division 13A does not limit the operation of this section.

261 Disposal of dilapidated vessels etc.

(1) If a non-citizen who enters Australia: (a) is required to comply with section 166 (immigration

clearance); and (b) either: (i) does not comply; or (ii) on complying, is detained under section 189;

the Secretary may, in writing, direct an officer to seize the vessel on which the non-citizen came to Australia.

(2) If: (a) a vessel is seized under subsection (1) or section 261B; and (b) the vessel has not been forfeited and condemned under

section 260 or condemned as forfeited under Division 13A; and

(c) the vessel has not been ordered by a court to be delivered to a person or otherwise dealt with; and



(d) the Secretary is satisfied that the vessel is in such a poor condition that its custody or maintenance involves expense out of proportion to its value; and

(e) a person other than the Commonwealth does not meet, or make arrangements that the Secretary considers are satisfactory to meet, that expense;

the Secretary may in writing, direct an officer to sell, destroy or otherwise dispose of the vessel.

(3) The officer must comply with the direction.

(4) The proceeds of a sale are to be applied firstly in payment of costs incurred by the Commonwealth in the custody or maintenance of the vessel, and in selling or disposing of the vessel, and, subject to subsection (5), the balance is to be paid to the owner and any other persons with interests in the vessel before its sale.

(5) If: (a) a person owes a debt to the Commonwealth under this Act;

and (b) an amount by way of the balance of the proceeds of a sale

(the balance amount) is payable to the person under subsection (4);

the Commonwealth may apply the balance amount in payment of the debt, and the debt is reduced accordingly. The amount applied must not exceed the amount of the debt.

(6) Division 13A does not limit the operation of this section.


Identification of immigration detainees Division 13AA

Section 261AA


Division 13AA—Identification of immigration detainees

Subdivision A—Provision of personal identifiers

261AA Immigration detainees must provide personal identifiers

(1) A non-citizen who is in immigration detention must (other than in the prescribed circumstances) provide to an authorised officer one or more personal identifiers.

(1A) An authorised officer must not require, for the purposes of subsection (1), a person to provide a personal identifier other than any of the following (including any of the following in digital form):

(a) fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);

(b) a measurement of the person’s height and weight; (c) a photograph or other image of the person’s face and

shoulders; (d) the person’s signature; (e) any other personal identifier of a type prescribed for the



(2) The one or more personal identifiers are to be provided by way of one or more identification tests carried out by the authorised officer in accordance with this Division. Note: Subject to certain restrictions, section 261AE allows reasonable force

to be used to carry out identification tests under this Division.

(3) However, this Division does not apply to a non-citizen who: (a) is in immigration detention only because he or she is detained

under section 192; and (b) has provided a personal identifier in accordance with a

requirement under that section.

Part 2 Control of arrival and presence of non-citizens Division 13AA Identification of immigration detainees Section 261AB


261AB Authorised officers must require and carry out identification tests

(1) The authorised officer must, other than in the circumstances prescribed for the purposes of subsection 261AA(1):

(a) require the non-citizen to provide one or more personal identifiers, of the type or types prescribed, by way of one or more identification tests carried out by the authorised officer; and

(b) carry out the one or more identification tests on the non-citizen.

(2) However: (a) if the types of identification tests that the authorised officer

may carry out is specified under section 5D—each identification test must be of a type so specified; and

(b) each identification test must be carried out in accordance with Subdivision B; and

(c) unless the authorised officer has reasonable grounds to believe that the non-citizen is not a minor or an incapable person—each identification test must be carried out in accordance with the additional requirements of Division 13AB.

261AC Information to be provided before carrying out identification tests

(1) Before carrying out an identification test, the authorised officer must:

(a) inform the non-citizen that the non-citizen may ask that an independent person be present while the identification test is carried out and that the test be carried out by a person of the same sex as the non-citizen; and

(b) inform the non-citizen of such other matters as are specified in the regulations.

(2) For the purposes of subsection (1), the authorised officer informs the non-citizen of a matter if the authorised officer informs the non-citizen of the matter, through an interpreter if necessary, in a language (including sign language or braille) in which the non-citizen is able to communicate with reasonable fluency.



Section 261AD


(3) The authorised officer may comply with this section by giving to the non-citizen, in accordance with the regulations, a form setting out the information specified in the regulations. However, the information must be in a language (including braille) in which the non-citizen is able to communicate with reasonable fluency.

Subdivision B—How identification tests are carried out

261AD General rules for carrying out identification tests

An identification test under this Division: (a) must be carried out in circumstances affording reasonable

privacy to the non-citizen; and (b) if the non-citizen so requests and it is practicable to comply

with the request—must not be carried out in the presence or view of a person who is of the opposite sex to the non-citizen; and

(c) must not be carried out in the presence or view of a person whose presence is not necessary for the purposes of the identification test or is not required or permitted by another provision of this Act; and

(d) must not involve the removal of more clothing than is necessary for carrying out the test; and

(e) must not involve more visual inspection than is necessary for carrying out the test; and

(f) if the test is one of 2 or more identification tests to be carried out on the non-citizen—must be carried out at the same time as the other identification tests, if it is practicable to do so.

261AE Use of force in carrying out identification tests

When use of force is permitted

(1) Subject to subsection (2) and section 261AF, an authorised officer, or a person authorised under section 261AG to help the authorised officer, may use reasonable force:

(a) to enable the identification test to be carried out; or (b) to prevent the loss, destruction or contamination of any

personal identifier or any meaningful identifier derived from the personal identifier.

Part 2 Control of arrival and presence of non-citizens Division 13AA Identification of immigration detainees Section 261AE


However, this section does not authorise the use of force against a minor or an incapable person, or if the personal identifier in question is a person’s signature.

(2) The officer or person must not use force unless: (a) the non-citizen required to provide the personal identifier in

question has refused to allow the identification test to be carried out; and

(b) all reasonable measures to carry out the identification test without the use of force have been exhausted; and

(c) use of force in carrying out the identification test is authorised under subsection (4).

Applications for authorisation to use force

(3) An authorised officer may apply to a senior authorising officer (who is not an officer referred to in subsection (1)) for an authorisation to use force in carrying out the identification test.

Authorisation to use force

(4) The senior authorising officer may authorise the use of force in carrying out the identification test if he or she is reasonably satisfied that:

(a) the non-citizen required to provide the personal identifier in question has refused to allow the identification test to be carried out; and

(b) all reasonable measures to carry out the identification test without the use of force have been exhausted.








Section 261AF


Definition


senior authorising officer means an officer whom the Secretary has authorised, or who is included in a class of officers whom the Secretary has authorised, to perform the functions of a senior authorising officer under this section.

261AF Identification tests not to be carried out in cruel, inhuman or degrading manner etc.

For the purposes of this Act, the carrying out of the identification test is not of itself taken:

(a) to be cruel, inhuman or degrading; or (b) to be a failure to treat a person with humanity and with

respect for human dignity. However, nothing in this Act authorises the carrying out of the identification test in a cruel, inhuman or degrading manner, or in a manner that fails to treat a person with humanity and with respect for human dignity.

261AG Authorised officer may get help to carry out identification tests

An authorised officer may ask another authorised officer or an officer to help him or her to carry out the identification test, and the other person may give that help.

261AH Identification tests to be carried out by authorised officer of same sex as non-citizen

If the non-citizen requests that the identification test be carried out by an authorised officer of the same sex as the non-citizen, the test must only be carried out by an authorised officer of the same sex as the non-citizen.

261AI Independent person to be present

The identification test must be carried out in the presence of an independent person if:

(a) force is used in carrying out the identification test; or

Part 2 Control of arrival and presence of non-citizens Division 13AA Identification of immigration detainees Section 261AJ


(b) both of the following apply: (i) the non-citizen requests that an independent person be

present while the identification test is being carried out; (ii) an independent person is readily available at the same

place as the non-citizen and is willing to attend the test within a reasonable time.

261AJ Recording of identification tests

(1) An authorised officer may video record the carrying out of the identification test.

(2) If the carrying out of the identification test is not video recorded, the authorised officer may decide that the identification test must be carried out in the presence of an independent person.

261AK Retesting

When retesting is permitted

(1) If: (a) an authorised officer has carried out an identification test (the

earlier test) on a non-citizen in accordance with this Division (including a test authorised under subsection (4)); and

(b) either: (i) a personal identifier that is provided as a result of the

earlier test being carried out is unusable; or (ii) an authorised officer or an officer is not satisfied about

the integrity of that personal identifier; the officer who carried out the earlier test or another officer may require the non-citizen to provide the personal identifier again, and may carry out the test again in accordance with this Division, if:

(c) the requirement is made while the earlier test is being carried out or immediately after it was carried out; or

(d) carrying out the test again is authorised under subsection (4).

(2) If the non-citizen is required under subsection (1) to provide the personal identifier again, the non-citizen is taken, for the purposes of this Division, not to have provided the personal identifier as a result of the earlier test being carried out.



Section 261AK


Applications for authorisation to retest

(3) An authorised officer may apply for an authorisation to carry out the test again. The application is to be made to:

(a) if the earlier test was not a test authorised under subsection (4)—a senior authorising officer (who is not an officer referred to in subsection (1)); or

(b) if the earlier test was a test authorised under subsection (4) by a senior authorising officer—the Secretary or an SES Band 3 employee in the Department (who is not an officer referred to in subsection (1)).

Authorisation to retest

(4) The senior authorising officer, Secretary or SES Band 3 employee (as the case requires) may authorise the test to be carried out again if:

(a) he or she is reasonably satisfied that the personal identifier that is provided as a result of the earlier test being carried out is unusable; or

(b) he or she is not reasonably satisfied about the integrity of that personal identifier.






Use of force

(8) An authorisation under subsection (4) does not authorise the use of force in carrying out an identification test. Note: See section 261AE on the use of force in carrying out identification

tests.

Part 2 Control of arrival and presence of non-citizens Division 13AA Identification of immigration detainees Section 261AKA


Effect of refusing to authorise retesting

(9) If an application for an authorisation to carry out an identification test again on a non-citizen is refused, the non-citizen is taken, for the purposes of this Act, to have complied with any requirement under this Act to provide the personal identifier in question.

Definitions


senior authorising officer means an officer (other than an SES Band 3 employee in the Department) whom the Secretary has authorised, or who is included in a class of officers whom the Secretary has authorised, to perform the functions of a senior authorising officer under this section.

SES Band 3 employee means an SES employee with a classification of Senior Executive Band 3, and includes an SES employee who has been temporarily assigned duties that have been allocated a classification of Senior Executive Band 3.

SES employee has the meaning given by the Public Service Act 1999.

Subdivision C—Obligations relating to video recordings of identification tests

261AKA Definitions

In this Subdivision, unless the contrary intention appears:

permitted provision, of a video recording, has the meaning given by subsection 261AKD(2).

provide, in relation to a video recording, includes provide access to the recording.

related document means a document that contains information, derived from a video recording made under section 261AJ or from a copy of such a recording, from which the identity of the individual on whom the identification test in question was carried out is apparent or can reasonably be ascertained.



Section 261AKB


video recording means a video recording made under section 261AJ or a copy of such a recording, and includes a related document.

261AKB Accessing video recordings

(1) A person commits an offence if: (a) the person accesses a video recording; and (b) the person is not authorised under section 261AKC to access

the video recording for the purpose for which the person accessed it.

Penalty: Imprisonment for 2 years, or 120 penalty units, or both.

(2) This section does not apply if the access is through the provision of a video recording that is a permitted provision. Note: A defendant bears an evidential burden in relation to the matter in


261AKC Authorising access to video recordings

(1) The Secretary may, in writing, authorise a specified person, or any person included in a specified class of persons, to access:

(a) all video recordings; or (b) a specified video recording, or video recordings of a

specified kind.

(2) The Secretary must specify in an authorisation under this section, as the purpose or purposes for which access is authorised, one or more of the following purposes:

(a) providing a video recording to another person in accordance with this Subdivision;

(b) administering or managing the storage of video recordings; (c) making a video recording available to the person to whom it

relates; (d) modifying related documents in order to correct errors or

ensure compliance with appropriate standards; (e) any purpose connected with determining whether a civil or

criminal liability has arisen from a person carrying out or helping to carry out an identification test under this Act;

Part 2 Control of arrival and presence of non-citizens Division 13AA Identification of immigration detainees Section 261AKD


(f) complying with laws of the Commonwealth or the States or Territories.

(3) However, the Secretary must not specify as a purpose for which access is authorised a purpose that will include or involve the purpose of:

(a) investigating an offence against a law of the Commonwealth or a State or Territory (other than an offence involving whether an identification test was carried out lawfully); or

(b) prosecuting a person for such an offence; if the identifying information in question relates to a personal identifier of a prescribed type.

261AKD Providing video recordings

(1) A person commits an offence if: (a) the person’s conduct causes a video recording to be provided

to another person; and (b) the provision of the recording is not a permitted provision of

the recording.


(2) A permitted provision of a video recording is a provision of the recording that:

(a) is for the purpose of administering or managing the storage of video recordings; or

(b) is for the purpose of making the video recording in question available to the non-citizen to whom it relates; or

(c) is for the purpose of a proceeding, before a court or tribunal, relating to the non-citizen to whom the video recording in question relates; or

(d) is for any purpose connected with determining whether a civil or criminal liability has arisen from a person carrying out or helping to carry out an identification test under this Act; or

(e) is for the purpose of an investigation by the Privacy Commissioner or the Ombudsman relating to carrying out an identification test; or



Section 261AKE


(f) is made to a prescribed body or agency for the purpose of the body or agency inquiring into the operation of provisions of this Act relating to carrying out an identification test; or

(g) takes place with the written consent of the non-citizen to whom the video recording in question relates.

(3) However, a provision of a video recording is not a permitted provision of the recording if:

(a) it constitutes a disclosure of identifying information relating to a personal identifier of a prescribed type; and

(b) it is for the purpose of: (i) investigating an offence against a law of the

Commonwealth or a State or Territory (other than an offence involving whether an identification test was carried out lawfully); or

(ii) prosecuting a person for such an offence.

261AKE Unauthorised modification of video recordings

A person commits an offence if: (a) the person causes any unauthorised modification of a video

recording; and (b) the person intends to cause the modification; and (c) the person knows that the modification is unauthorised.


261AKF Unauthorised impairment of video recordings

A person commits an offence if: (a) the person causes any unauthorised impairment of: (i) the reliability of a video recording; or (ii) the security of the storage of a video recording; or (iii) the operation of a system by which a video recording is

stored; and (b) the person intends to cause the impairment; and (c) the person knows that the impairment is unauthorised.


Part 2 Control of arrival and presence of non-citizens Division 13AA Identification of immigration detainees Section 261AKG


261AKG Meanings of unauthorised modification and unauthorised impairment etc.

(1) In this Subdivision: (a) modification of a video recording; or (b) impairment of the reliability of a video recording; or (c) impairment of the security of the storage of a video

recording; or (d) impairment of the operation of a system by which a video

recording is stored; by a person is unauthorised if the person is not entitled to cause that modification or impairment.

(2) Any such modification or impairment caused by the person is not unauthorised merely because he or she has an ulterior purpose for causing it.

(3) For the purposes of an offence under this Subdivision, a person causes any such unauthorised modification or impairment if the person’s conduct substantially contributes to it.

(4) For the purposes of subsection (1), if: (a) a person causes any modification or impairment of a kind

mentioned in that subsection; and (b) the person does so under a warrant issued under the law of

the Commonwealth, a State or a Territory; the person is entitled to cause that modification or impairment.

261AKH Destroying video recordings

A person commits an offence if: (a) the person is the person who has day-to-day responsibility for

the system under which a video recording is stored; and (b) the person fails physically to destroy the recording, and all

copies of the recording, within 10 years after it was made.



Identification of minors and incapable persons Division 13AB

Section 261AL


Division 13AB—Identification of minors and incapable persons

261AL Minors

Minors less than 15 years old

(1) A non-citizen who is less than 15 years old must not be required under this Act to provide a personal identifier other than a personal identifier consisting of:

(a) a measurement of the non-citizen’s height and weight; or (b) the non-citizen’s photograph or other image of the

non-citizen’s face and shoulders.

Consent

(2) A non-citizen who is a minor must not be required under section 40, 46, 188 or 192 to provide a personal identifier by way of an identification test carried out by an authorised officer unless:

(a) subject to subsection (3), a parent or guardian of the minor consents to the minor providing the personal identifier; or

(b) if no parent or guardian of the minor is readily available, or the Minister is the minor’s guardian—an independent person consents to the minor providing the personal identifier.

(3) If the Minister is the minor’s guardian, the Minister cannot consent to the minor providing the personal identifier.

(4) Before obtaining the consent of a parent or guardian, or the independent person, an officer or authorised officer must inform the parent, guardian or independent person of the matters of which the minor must be informed under section 258B.

Persons present while identification test is carried out

(5) If a non-citizen who is a minor provides a personal identifier, in accordance with a requirement under this Act, by way of an identification test carried out by an authorised officer, the test must be carried out in the presence of:

(a) a parent or guardian of the minor; or

Part 2 Control of arrival and presence of non-citizens Division 13AB Identification of minors and incapable persons Section 261AM


(b) an independent person.

(6) However, if the Minister is the minor’s guardian, the test must be carried out in the presence of an independent person other than the Minister.

261AM Incapable persons

Incapable persons

(1) A non-citizen who is an incapable person must not be required under this Act to provide a personal identifier other than a personal identifier consisting of:

(a) a measurement of the non-citizen’s height and weight; or (b) the non-citizen’s photograph or other image of the

non-citizen’s face and shoulders.

Consent

(2) A non-citizen (other than a minor) who is an incapable person must not be required under section 40, 46, 188 or 192 to provide a personal identifier by way of an identification test carried out by an authorised officer unless:

(a) a parent or guardian of the incapable person consents to the incapable person providing the personal identifier; or

(b) if no parent or guardian of the incapable person is readily available—an independent person consents to the incapable person providing the personal identifier.

(3) Before obtaining the consent of a parent or guardian, or the independent person, an officer or authorised officer must inform the parent, guardian or independent person of the matters of which the incapable person must be informed under section 258B.

Persons present while identification test is carried out

(4) If a non-citizen who is an incapable person provides a personal identifier, in accordance with a requirement under this Act, by way of an identification test carried out by an authorised officer, the test must be carried out in the presence of:

(a) a parent or guardian of the incapable person; or (b) an independent person.


Automatic forfeiture of things used in certain offences Division 13A

Section 261A


Division 13A—Automatic forfeiture of things used in certain offences

Subdivision A—Automatic forfeiture

261A Forfeiture of things used in certain offences

(1) The following things are forfeited to the Commonwealth: (a) a vessel used or involved in a contravention of this Act

(where the contravention occurred in Australia), if the contravention involved:

(i) the bringing or coming to Australia of one or more persons who were, or upon entry into Australia became, unlawful non-citizens; or

(ii) the entry or proposed entry into Australia of one or more such persons;

(b) a vehicle or equipment: (i) on a vessel described in paragraph (a) at the time of the

contravention mentioned in that paragraph; or (ii) used or involved in the contravention referred to in that

paragraph.

(2) Despite subsection (1), a vessel that: (a) was used or involved in a contravention of this Act of a kind

referred to in that subsection; and (b) at the time of the contravention, was being used in the course

of a regular public transport operation; is not forfeited to the Commonwealth if both the master and the owner of the vessel:

(c) did not know; and (d) could not reasonably be expected to have known;

that it was used or involved in the contravention.

Part 2 Control of arrival and presence of non-citizens Division 13A Automatic forfeiture of things used in certain offences Section 261B



regular public transport operation, in relation to a vessel, means an operation of the vessel for the purpose of a service that:

(a) is provided for a fee payable by persons using the service; and

(b) is conducted in accordance with fixed schedules to or from fixed terminals over specific routes; and

(c) is available to the general public on a regular basis.

Subdivision B—Seizure

261B Seizure of things used in certain offences

(1) An authorised officer may seize a thing in Australia, or may order an officer to seize a thing in Australia, if:

(a) the thing is forfeited under section 261A; or (b) the authorised officer reasonably suspects that the thing is

forfeited under section 261A.

(2) If an officer is ordered by an authorised officer to seize a thing under subsection (1), the officer may seize the thing.

Subdivision C—Dealing with things seized as automatically forfeited

261C Application of this Subdivision

This Subdivision sets out rules about a thing that an officer seizes under section 261B.

261D Notice of seizure

(1) The officer must give written notice of the seizure of the thing to the owner of the thing. However, if the owner cannot be identified after reasonable inquiry, the officer must give the notice to the person in whose possession or custody or under whose control the thing was immediately before it was seized.

(2) If the officer cannot conveniently give the notice to the person referred to in subsection (1) in person, the officer may give written



Section 261E


notice of the seizure of the thing by fixing the notice to a prominent part of the thing.

(3) The notice must: (a) identify the thing; and (b) state that the thing has been seized; and (c) specify the reason for the seizure; and (d) state that the thing will be condemned as forfeited unless: (i) the owner of the thing, or the person who had

possession, custody or control of the thing immediately before it was seized, gives the Secretary, within 21 days, a claim for the thing; or

(ii) within 21 days, the Minister gives a written order that the thing is not to be condemned as forfeited; and

(e) specify the address of the Secretary. Note: Section 261F condemns the thing if it is not claimed within 21 days,

unless the Minister gives an order that the thing is not to be condemned as forfeited. Section 261H condemns the thing if a claim is made, but the claimant does not get a court order supporting the claim, unless the Minister gives an order that the thing is not to be condemned as forfeited.

(4) A claim under subparagraph (3)(d)(i) must: (a) be in writing; and (b) be in English; and (c) state an address for service on the person making the claim.

261E Dealing with thing before it is condemned

(1) The Secretary may, on behalf of the Commonwealth, cause the thing to be disposed of or destroyed if:

(a) its custody or maintenance creates serious difficulties; or (b) the expenses of its custody or maintenance between its

seizure and condemnation are likely to be greater than its value.

(2) If the Secretary causes the thing to be disposed of, the Secretary may cause the disposal to be subject to specified conditions.

Part 2 Control of arrival and presence of non-citizens Division 13A Automatic forfeiture of things used in certain offences Section 261F


261F Thing condemned if not claimed in time

(1) By force of this subsection, the thing is condemned as forfeited to the Commonwealth 21 days after notice of seizure of the thing has been given under section 261D, unless:

(a) the following conditions are satisfied: (i) within the 21 days, the owner of the thing or the person

who had possession, custody or control of it immediately before it was seized gives the Secretary a written claim for the thing;

(ii) the claim is in English; (iii) the claim sets out an address for service on the person

making the claim; or (b) within the 21 days, the Minister gives a written order that the

thing is not to be condemned as forfeited. Note: Section 261I requires things condemned as forfeited to be dealt with

in accordance with the Secretary’s directions.

(2) A person may claim the thing even if it is disposed of or destroyed before or after the claim.

261G Dealing with claim for thing

(1) If the thing is claimed under section 261F: (a) an officer may retain possession of the thing whether or not

any proceedings for the condemnation of the thing have been instituted; and

(b) the Minister may give a written order that the thing is not condemned as forfeited; and

(c) unless an order has already been made under paragraph (b), the Secretary may give the claimant a written notice stating that the thing will be condemned as forfeited unless:

(i) the claimant institutes proceedings against the Commonwealth within one month to recover the thing, or for a declaration that the thing is not forfeited; or

(ii) within one month, the Minister gives a written order that the thing is not condemned as forfeited.

Note 1: An officer may retain possession even if the Secretary does not give notice. If so, the claimant will be able to recover the thing only if a court orders its release to the claimant.



Section 261H


Note 2: If the Secretary does give the notice and the claimant institutes proceedings, whether the claimant recovers the thing will depend on the outcome of the proceedings.

(2) The Secretary may give the notice to the claimant by posting it prepaid as a letter to the last address of the claimant that is known to the Secretary. If the Secretary does so, the letter is taken to be properly addressed for the purposes of section 29 of the Acts Interpretation Act 1901.

(3) Subsection (2) does not limit the ways in which the notice may be given. Note: Sections 28A and 29 of the Acts Interpretation Act 1901 explain how

a notice can be given, and when it is taken to be given.

261H What happens if thing is claimed

(1) This section applies if the Secretary gives the claimant a notice under section 261G about instituting proceedings:

(a) to recover the thing; or (b) for a declaration that the thing is not forfeited.

(2) If, within the period of one month after the notice is given: (a) the claimant does not institute such proceedings; and (b) the Minister does not give a written order that the thing is not

to be condemned as forfeited; the thing is condemned as forfeited to the Commonwealth immediately after the end of that period.

(3) If the claimant institutes such proceedings within the period of one month after the notice is given, the thing is condemned as forfeited to the Commonwealth unless:

(a) before the end of the proceedings, the Minister gives a written order that the thing is not to be condemned as forfeited; or

(b) at the end of the proceedings, there is: (i) an order for the claimant to recover the thing; or (ii) if the thing has been sold or disposed of—an order for

the Commonwealth to pay the claimant an amount in respect of the thing; or

(iii) a declaration that the thing is not forfeited.

Part 2 Control of arrival and presence of non-citizens Division 13A Automatic forfeiture of things used in certain offences Section 261I


(4) For the purposes of subsection (3), if the proceedings go to judgment, they end:

(a) if no appeal against the judgment is lodged within the period for lodging such an appeal—at the end of that period; or

(b) if an appeal against the judgment is lodged within that period—when the appeal lapses or is finally determined.

(5) Proceedings relating to the thing may be instituted or continued even if it is disposed of or destroyed.

(6) If the court hearing the proceedings decides that it would have ordered that the thing be delivered to a person apart from the fact that the thing had been disposed of or destroyed, the court may make such orders as the court considers appropriate, including an order that the Commonwealth pay the person an amount equal to:

(a) if the thing has been sold before the end of the proceedings—the proceeds of the sale of the thing, less such costs incurred by the Commonwealth in respect of the thing as the court considers appropriate; or

(b) if the thing has been disposed of (except by sale) or destroyed before the end of the proceedings—the market value of the thing at the time it was disposed of or destroyed, less such costs incurred by the Commonwealth in respect of the thing as the court considers appropriate.

261I Dealing with thing after it is condemned

If the thing is condemned as forfeited to the Commonwealth, the thing must be dealt with or disposed of in accordance with the directions of the Secretary.

Subdivision D—Operation of Division

261J Operation of Division

Sections 245G, 260 and 261 do not limit the operation of this Division.



Section 261K


Subdivision E—Minister’s order that a thing not be condemned as forfeited

261K Minister’s order that a thing not be condemned

(1) A power of the Minister under this Division to give a written order that a thing is not to be condemned as forfeited must be exercised by the Minister personally.

(2) The Minister does not have a duty to consider whether to exercise such a power in respect of any thing, whether the Minister is requested to do so by any person, or in any other circumstances.

(3) If the Minister makes an order under this Division that a thing is not to be condemned as forfeited, he or she must cause to be laid before each House of the Parliament a statement that sets out:

(a) the order; and (b) the Minister’s reasons for making the order.


(a) if the order is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

(b) if the order is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

Migration Act 1958 Act No. 62 of 1958 as amended

This compilation was prepared on 5 December 2008 taking into account amendments up to Act No. 117 of 2008

Volume 2 includes: Table of Contents Sections 262 – 507 Schedule Note 1 Table of Acts Act Notes Table of Amendments Repeal Table 1 Repeal Table 2 Notes 2 and 3 Table A Renumbering Table 1 Renumbering Table 2

The text of any of those amendments not in force on that date is appended in the Notes section

The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section

Migration Act 1958 iii

Contents Part 2—Control of arrival and presence of non-citizens 1

Division 14—Recovery of costs from certain persons 1 262 Liability to the Commonwealth for the cost of keeping,

maintaining and removing certain persons because of section 250.........................................................................................1

263 Secretary able to issue notice of debt.................................................1 264 Garnishee notice ................................................................................2 265 Debt from failure to comply with garnishee notice ...........................3 266 Future debts .......................................................................................4 267 Secretary may freeze amounts to secure future debts ........................4 268 Application of Division to the Crown................................................5

Division 14A—Monitoring compliance with student visa conditions 6

Subdivision A—Preliminary 6 268AA Definitions.........................................................................................6 268AB Division binds the Crown ..................................................................7 268AD Powers conferred on magistrates in their personal capacity ..............7

Subdivision B—Notices requiring information and documents 7 268BA Production notices .............................................................................7 268BB Contents of the production notice......................................................8 268BC Serving production notices ................................................................8 268BD Attendance notices.............................................................................9 268BE Contents of attendance notice............................................................9 268BF Scales of expenses ...........................................................................10 268BG Reasonable compensation for giving copies....................................10 268BH Offence: failing to comply with a notice .........................................10 268BI Offence: giving false or misleading information .............................10 268BJ Offence: giving false or misleading document ................................11 268BK Information and documents that incriminate a person .....................11 268BL Copies of documents .......................................................................11 268BM Officer may retain documents .........................................................12 268BN Owner of document must be given copy .........................................12 268BO Retaining documents .......................................................................12 268BP Officer may apply to magistrate or tribunal member for a

further period...................................................................................13 268BQ Magistrate or tribunal member may order retention for

further period...................................................................................13

iv Migration Act 1958

Subdivision C—Searching education providers’ premises 14 268CA Authorised officer may enter premises for a visa monitoring

purpose ............................................................................................14 268CB Being on premises with consent ......................................................14 268CC Consent............................................................................................15 268CD Authorised officer may apply for monitoring warrant .....................15 268CE Magistrate or tribunal member may issue monitoring warrant ........15 268CF Magistrate or tribunal member may require more

information ......................................................................................15 268CG Contents of monitoring warrant.......................................................16 268CH Use of reasonable force and assistance............................................16 268CI Monitoring powers of authorised officers........................................16 268CJ Authorised officer on premises with consent may ask

questions..........................................................................................18 268CK Authorised officer on premises under warrant may ask

questions..........................................................................................18 268CL Offence: failure to answer question .................................................19 268CM Offence: giving false or misleading information .............................19 268CN Offence: giving or showing documents that are false or

misleading in material particulars....................................................19 268CO Use of electronic equipment in exercising monitoring powers........20 268CP Use of electronic equipment by experts...........................................20 268CQ Extension of period..........................................................................21 268CR Powers without warrant in emergency situations ............................21 268CS Retaining seized things....................................................................22 268CT Authorised officer may apply for a thing to be retained for a

further period...................................................................................22 268CU Magistrate or tribunal member may order that thing be

retained............................................................................................23 268CV Occupier to provide authorised officer with all facilities and

assistance.........................................................................................23 268CW Announcement before entry ............................................................23 268CX Copy of monitoring warrant to be given to occupier before

entry.................................................................................................24 268CY Compensation for damage to electronic equipment or data .............24 268CZ Occupier entitled to be present during execution of

monitoring warrant ..........................................................................25 268CZA Identity cards ...................................................................................25 268CZB Authorised officer must produce identity card on request ...............26 268CZC Officer may apply for warrants by telephone etc.............................26 268CZD Magistrate or tribunal member may grant warrant by

telephone etc....................................................................................26 268CZE Procedure for issuing warrant by telephone etc. ..............................27 268CZF Procedure after telephone warrant ceases or is executed .................27 268CZG Form of warrant authorises exercise of power.................................28

Migration Act 1958 v

268CZH Court to assume that exercise of power not authorised by telephone etc. warrant......................................................................28

Division 15—General 29 269 Securities .........................................................................................29 270 Reports of absences of crews of vessels ..........................................30 271 Proof of certain matters ...................................................................30 272 Migrant centres................................................................................33 273 Detention centres .............................................................................34 274 Secretary may issue documents containing information

concerning certain persons ..............................................................34 Part 3—Migration agents and immigration assistance 36

Division 1—Preliminary 36 275 Interpretation ...................................................................................36 276 Immigration assistance ....................................................................37 277 Immigration legal assistance ...........................................................39 278 Relation by employment..................................................................40 279 Part VIIC of the Crimes Act 1914 to apply to this Part....................41

Division 2—Restrictions on giving of immigration assistance and making of immigration representations 42

280 Restrictions on giving of immigration assistance ............................42 281 Restriction on charging fees for immigration assistance .................43 282 Restriction on charging fees for immigration representations .........44 283 False representation that a person is a registered migration

agent ................................................................................................45 284 Restriction on self-advertising of the giving of immigration

assistance.........................................................................................45 285 Restriction on other advertising of immigration assistance .............46

Division 3—Registration of migration agents 47 286 Individuals may be registered as migration agents ..........................47 287 Register of Migration Agents ..........................................................47 288 Application for registration .............................................................48 288A Publishing requirement....................................................................49 288B Requiring applicants to make statutory declarations or to

answer questions..............................................................................50 289 Registration .....................................................................................51 289A Applicant must not be registered if does not satisfy

registration requirements .................................................................51 290 Applicant must not be registered if not a person of integrity

or not fit and proper.........................................................................52 290A Applicant for repeat registration must not be registered if he

or she has not done continuing professional development...............53 290B Applicant must not be registered if any unpaid registration

status charge ....................................................................................53

vi Migration Act 1958

291 Applicant must not be registered if registration refused in past year...........................................................................................53

291A Applicant must not be registered if suspension would be in effect................................................................................................54

292 Applicant must not be registered if registration cancelled in past 5 years ......................................................................................54

292A Applicant must not be registered if any barring period has not ended .........................................................................................55

292B Applicant must not be registered unless he or she holds appropriate professional indemnity insurance .................................55

293 Applicant under 18 must not be registered ......................................55 294 Applicant must not be registered if not an Australian citizen,

permanent resident or New Zealander with special visa..................55 295 Notice of refusal of application .......................................................55 299 Period of registration .......................................................................56 300 Automatic continuation of registration ............................................56 301 Migration Agents Registration Authority must warn of

expiry...............................................................................................58 302 Automatic deregistration .................................................................58 303 Disciplining registered migration agents .........................................58 304 Period of suspension........................................................................59 304A Conditions for lifting cautions .........................................................59 305 Notice of disciplinary decision ........................................................59 305A Making disciplinary details publicly available ................................60 305B Providing disciplinary details to clients...........................................60 305C Requiring registered migration agents to give information or

documents........................................................................................61 306 Review by the Administrative Appeals Tribunal.............................62 306AA Stay orders.......................................................................................62

Division 3AA—Disciplining registered migration agents for engaging in vexatious activity 63

Subdivision A—Definitions 63 306AB Definitions.......................................................................................63

Subdivision B—Referral of registered migration agents for disciplinary action 63

306AC Minister may refer registered migration agent to the Migration Agents Registration Authority ........................................63

306AD Ministerial determinations...............................................................65 306AE Registered migration agent may make submissions ........................66 306AF Notice of referral decision under section 306AC.............................66 306AG Migration Agents Registration Authority’s decision after a

referral under section 306AC...........................................................67 306AGAAMinister may refer agent again if Migration Agents

Registration Authority takes no disciplinary action.........................69

Migration Act 1958 vii

306AGABNotice of referral decision under section 306AG ..........................70 306AGACMigration Agents Registration Authority’s disciplinary

decision after a referral under section 306AGAA............................70 306AGA Cautions or suspensions...................................................................72

Subdivision D—Review 72 306AJ Review by the Administrative Appeals Tribunal.............................72 306AK Stay orders.......................................................................................73

Subdivision E—Making disciplinary details available 73 306AL Making disciplinary details publicly available ................................73 306AM Providing disciplinary details to clients...........................................74

Division 3A—Documents relating to clients of inactive migration agents and deceased migration agents 75

306A Objects of this Division ...................................................................75 306B Inactive migration agents.................................................................75 306C Clients .............................................................................................76 306D Power to obtain documents from inactive migration agent..............77 306E Power to obtain documents from representative of deceased

inactive migration agent ..................................................................78 306F Power to obtain documents from representative of deceased

registered migration agent ...............................................................79 306G Reasonable compensation................................................................80 306H Failure to comply with notice ..........................................................80 306J Self-incrimination............................................................................80 306K Migration Agents Registration Authority to give client

documents to clients ........................................................................80 306L Compensation—constitutional safety-net........................................81

Division 4—Investigations and decision-making by the Migration Agents Registration Authority 83

308 Requiring registered migration agents to give information .............83 309 Persons may make submissions.......................................................84 310 Persons may appear before Migration Agents Registration

Authority .........................................................................................84 311 Migration Agents Registration Authority not bound by legal

forms etc. .........................................................................................84 Division 4A—Disciplining former registered migration agents 86

Subdivision A—Complaints about provision of immigration assistance 86

311A Barring former registered migration agents from being registered for up to 5 years ..............................................................86

311B Notice of disciplinary decision ........................................................86 311C Making disciplinary details publicly available ................................87 311D Former registered migration agent may make a submission

etc. ...................................................................................................87

viii Migration Act 1958

311E Authority not bound by legal forms etc. ..........................................88 311EA Requiring former registered migration agents to give

information or documents................................................................88 311F Review by the Administrative Appeals Tribunal.............................89

Subdivision B—Engaging in vexatious activity 90 311G Definitions.......................................................................................90 311H Minister may refer former registered migration agent for

disciplinary action ...........................................................................90 311J Former registered migration agent may make submissions .............90 311K Notice of referral decision ...............................................................91 311L Taking of disciplinary action ...........................................................92 311M Review by the Administrative Appeals Tribunal.............................93 311P Making disciplinary details publicly available ................................93

Division 5—Obligations of registered migration agents 95 312 Notification obligations ...................................................................95 312A Notification of giving of immigration assistance to visa

applicants.........................................................................................96 312B Notification of giving of immigration assistance to review

applicants.........................................................................................96 313 Persons charged for services to be given detailed statement

of services........................................................................................97 314 Code of Conduct for migration agents.............................................97

Division 6—Migration Agents Registration Authority 98 315 Appointing the Migration Institute of Australia Limited as

the Migration Agents Registration Authority ..................................98 316 Functions of Migration Agents Registration Authority ...................98 317 General powers of the Migration Agents Registration

Authority .........................................................................................99 318 Power to refer people to mediation..................................................99 319 Power to refer lawyers’ conduct to other authorities .......................99 319A Institute may delegate powers and functions .................................100 320 Minister may delegate powers and functions.................................100 321 Disclosure of personal information to the Migration Agents

Registration Authority ...................................................................101 321A Disclosure of personal information by the Migration Agents

Registration Authority ...................................................................102 322 Annual report.................................................................................102

Division 6A—Registration application fees and registration status charges 103

332A Collection of registration status charge..........................................103 332B Payments to Migration Institute of Australia Limited ...................103

Migration Act 1958 ix

Division 7—Other things 104 332C Removing disciplinary details—registered migration agents ........104 332D Removing disciplinary details—former registered migration

agents.............................................................................................104 332E Protection from civil proceedings..................................................104 332F Disclosure of personal information by the Secretary .....................106 332G Disclosure of personal information by a review authority .............106 332H Giving of notices under this Part ...................................................107

Part 4—Offences relating to decisions under Act 109 334 Offences in relation to false or misleading statements

regarding the making of decisions .................................................109 335 Offence of undertaking, for reward, to cause decisions to be

made etc.........................................................................................109 336 Court may order reparation for loss suffered .................................110

Part 4A—Obligations relating to identifying information 111 Division 1—Preliminary 111

336A Definitions.....................................................................................111 336B Application ....................................................................................112

Division 2—Accessing identifying information 113 336C Accessing identifying information.................................................113 336D Authorising access to identifying information...............................113

Division 3—Disclosing identifying information 115 336E Disclosing identifying information................................................115 336F Authorising disclosure of identifying information to foreign

countries etc...................................................................................117 336FA Disclosure of certain personal identifiers to selected

individuals .....................................................................................119 336FB Disclosure of other relevant information to selected

individuals .....................................................................................119 336FC Disclosure of certain personal identifiers to the general

public.............................................................................................120 336FD Disclosure of other relevant information to the general public......121

Division 4—Modifying and impairing identifying information 123 336G Unauthorised modification of identifying information ..................123 336H Unauthorised impairment of identifying information ....................123 336J Meanings of unauthorised modification and unauthorised

impairment etc. ..............................................................................123 Division 5—Destroying identifying information 125

336K Destroying identifying information ...............................................125 336L Identifying information that may be indefinitely retained .............126

x Migration Act 1958

Part 5—Review of decisions 127 Division 1—Interpretation 127

337 Interpretation .................................................................................127 Division 2—Decisions reviewable by Migration Review Tribunal 128

338 Decisions reviewable by Migration Review Tribunal ...................128 339 Conclusive certificates...................................................................130

Division 3—Review of decisions by Migration Review Tribunal 131 347 Application for review by Migration Review Tribunal .................131 348 Migration Review Tribunal must review decisions .......................132 349 Powers of Migration Review Tribunal ..........................................132 350 Review of assessments made under section 93..............................133 351 Minister may substitute more favourable decision ........................134 352 Secretary to be notified of application for review by

Migration Review Tribunal ...........................................................135 Division 4—Exercise of Tribunal’s powers 136

353 Tribunal’s way of operating ..........................................................136 353A Principal Member may give directions..........................................136 354 Constitution of Tribunal for exercise of powers ............................136 355 Reconstitution of Tribunal—unavailability of member .................137 355A Reconstitution of Tribunal for efficient conduct of review............138 356 Exercise of Tribunal’s powers .......................................................139 357 Presiding member..........................................................................139

Division 5—Conduct of review 140 357A Exhaustive statement of natural justice hearing rule......................140 358 Documents to be given to the Tribunal..........................................140 359 Tribunal may seek additional information.....................................140 359AA Information and invitation given orally by Tribunal while

applicant appearing........................................................................141 359A Information and invitation given in writing by Tribunal ...............141 359B Requirements for written invitation etc. ........................................142 359C Failure to give additional information, comments or response

in response to written invitation ....................................................143 360 Tribunal must invite applicant to appear .......................................144 360A Notice of invitation to appear ........................................................144 361 Applicant may request Tribunal to call witness and obtain

written material..............................................................................145 362 Applicant may request Tribunal to call witnesses..........................145 362A Applicant entitled to have access to written material before

Tribunal .........................................................................................146 362B Failure of applicant to appear before Tribunal...............................146 363 Powers of the Tribunal etc.............................................................147

Migration Act 1958 xi

363A Tribunal does not have power to permit a person to do something he or she is not entitled to do........................................147

364 Presiding member may authorise another person to take evidence.........................................................................................148

365 Review to be in public ...................................................................149 366 Oral evidence by telephone etc......................................................149 366A Applicant may be assisted by another person while appearing

before Tribunal ..............................................................................149 366B Other persons not to be assisted or represented while

appearing before Tribunal .............................................................150 366C Interpreters ....................................................................................150 366D Examination and cross-examination not permitted........................151 367 Certain decisions to be made within prescribed period..................151

Division 6—Decisions of Tribunal 152 368 Tribunal to record its decisions etc. ...............................................152 368A Notifying parties of Tribunal’s decision (decision not given

orally) ............................................................................................152 368D Notifying parties when Tribunal gives an oral decision ................153 369 Certain Tribunal decisions to be published....................................153

Division 7—Offences 154 370 Failure of witness to attend............................................................154 371 Refusal to be sworn or to answer questions etc. ............................154 372 Contempt of Tribunal ....................................................................155

Division 8—Miscellaneous 156 373 Protection of members and persons giving evidence.....................156 374 Fees for persons giving evidence...................................................156 375 Restrictions on disclosure of certain information etc.....................156 375A Certain information only to be disclosed to Tribunal ....................157 376 Tribunal’s discretion in relation to disclosure of certain

information etc. .............................................................................157 377 Disclosure of confidential information ..........................................158 378 Tribunal may restrict publication of certain matters ......................159 379 Sittings of Tribunal........................................................................160

Division 8A—Giving and receiving review documents etc. 161 379AA Giving documents by Tribunal where no requirement to do

so by section 379A or 379B method..............................................161 379A Methods by which Tribunal gives documents to a person

other than the Secretary .................................................................161 379B Methods by which Tribunal gives documents to the

Secretary........................................................................................164 379C When a person other than the Secretary is taken to have

received a document from the Tribunal .........................................165 379D When the Secretary is taken to have received a document

from the Tribunal...........................................................................166

xii Migration Act 1958

379E Tribunal may give copies of documents ........................................167 379EA Giving documents by Tribunal—combined applications...............167 379F Giving documents etc. to the Tribunal...........................................168 379G Authorised recipient ......................................................................168

Division 9—Referral of decisions to Administrative Appeals Tribunal 170

380 Interpretation .................................................................................170 381 Referral of decisions to Administrative Appeals Tribunal.............170 382 Administrative Appeals Tribunal may accept or decline

referral ...........................................................................................171 383 Modification of definition of member in section 3 of the

AAT Act........................................................................................171 384 Modification of section 21 of the AAT Act...................................172 385 Certain sections of the AAT Act do not apply to

MRT-reviewable decisions............................................................172 386 Modification of section 25 of the AAT Act...................................173 387 Modification of section 30 of the AAT Act...................................173 388 Modification of section 37 of the AAT Act...................................173 389 Modification of section 38 of the AAT Act...................................174 390 Modification of section 43 of the AAT Act...................................174 391 Minister may substitute more favourable decision ........................175 392 Provision of material to which section 376 applies .......................176 393 Section 9 of AAT Act not to apply to Principal Member ..............176

Part 6—Migration Review Tribunal 177 Division 1—Establishment and membership of the Migration

Review Tribunal 177 394 Establishment of the Migration Review Tribunal..........................177 395 Membership of Migration Review Tribunal ..................................177 396 Appointment of members ..............................................................177 397 Principal Member ..........................................................................177 398 Period of appointment of members................................................178 399 Remuneration and allowances of members ...................................178 400 Other terms and conditions............................................................178 401 Resignation....................................................................................179 402 Disclosure of interests ...................................................................179 403 Removal from office......................................................................179 404 Acting appointments......................................................................180 405 Delegation .....................................................................................182

Division 2—Registries and officers 183 406 Registries.......................................................................................183 407 Officers of Tribunal.......................................................................183 408 Acting appointments......................................................................183

Migration Act 1958 xiii

Part 7—Review of protection visa decisions 184 Division 1—Interpretation 184

410 Interpretation .................................................................................184 Division 2—Review of decisions by Refugee Review Tribunal 185

411 Decisions reviewable by Refugee Review Tribunal ......................185 412 Application for review by the Refugee Review Tribunal ..............186 413 Refugee Review Tribunal to deal with the backlog of review

applications....................................................................................186 414 Refugee Review Tribunal must review decisions..........................188 414A Period within which Refugee Review Tribunal must review

decision on protection visas...........................................................188 415 Powers of Refugee Review Tribunal .............................................189 416 Only new information to be considered in later applications

for review ......................................................................................189 417 Minister may substitute more favourable decision ........................190 418 Secretary to be notified of application for review by Refugee

Review Tribunal ............................................................................191 419 Certain decisions made by members of the Tribunal in their

capacity as delegates of the Minister to be treated as decisions of the Tribunal for certain purposes ...............................191

Division 3—Exercise of Refugee Review Tribunal’s powers 193 420 Refugee Review Tribunal’s way of operating ...............................193 420A Principal Member may give directions..........................................193 421 Constitution of Refugee Review Tribunal for exercise of

powers ...........................................................................................193 422 Reconstitution of Refugee Review Tribunal—unavailability

of member .....................................................................................194 422A Reconstitution of Tribunal for efficient conduct of review............194

Division 4—Conduct of review 196 422B Exhaustive statement of natural justice hearing rule......................196 423 Documents to be given to the Refugee Review Tribunal...............196 424 Tribunal may seek additional information.....................................196 424AA Information and invitation given orally by Tribunal while

applicant appearing........................................................................197 424A Information and invitation given in writing by Tribunal ...............197 424B Requirements for written invitation etc. ........................................198 424C Failure to give additional information, comments or response

in response to written invitation ....................................................199 425 Tribunal must invite applicant to appear .......................................200 425A Notice of invitation to appear ........................................................200 426 Applicant may request Refugee Review Tribunal to call

witnesses........................................................................................200 426A Failure of applicant to appear before Tribunal...............................201

xiv Migration Act 1958

427 Powers of the Refugee Review Tribunal etc..................................201 428 Tribunal member may authorise another person to take

evidence.........................................................................................202 429 Review to be in private..................................................................203 429A Oral evidence by telephone etc......................................................203

Division 5—Decisions of Refugee Review Tribunal 204 430 Refugee Review Tribunal to record its decisions etc.....................204 430A Notifying parties of Tribunal’s decision (decision not given

orally) ............................................................................................204 430D Notifying parties when Tribunal gives an oral decision ................205 431 Certain Tribunal decisions to be published....................................205

Division 6—Offences 206 432 Failure of witness to attend............................................................206 433 Refusal to be sworn or to answer questions etc. ............................206 434 Contempt of Tribunal ....................................................................207

Division 7—Miscellaneous 208 435 Protection of members and persons giving evidence.....................208 436 Fees for persons giving evidence...................................................208 437 Restrictions on disclosure of certain information etc.....................208 438 Refugee Review Tribunal’s discretion in relation to

disclosure of certain information etc. ............................................209 439 Disclosure of confidential information ..........................................210 440 Refugee Review Tribunal may restrict publication or

disclosure of certain matters ..........................................................211 440A Principal Member’s obligation to report to Minister .....................212 441 Sittings of the Refugee Review Tribunal.......................................214

Division 7A—Giving and receiving review documents etc. 215 441AA Giving documents by Tribunal where no requirement to do

so by section 441A or 441B method..............................................215 441A Methods by which Tribunal gives documents to a person

other than the Secretary .................................................................215 441B Methods by which Tribunal gives documents to the

Secretary........................................................................................218 441C When a person other than the Secretary is taken to have

received a document from the Tribunal .........................................219 441D When the Secretary is taken to have received a document

from the Tribunal...........................................................................220 441E Tribunal may give copies of documents ........................................221 441EA Giving documents by Tribunal—combined applications...............221 441F Giving documents etc. to the Tribunal...........................................221 441G Authorised recipient ......................................................................222

Migration Act 1958 xv

Division 8—Referral of decisions to Administrative Appeals Tribunal 223

442 Interpretation .................................................................................223 443 Referral of decisions to Administrative Appeals Tribunal.............223 444 Administrative Appeals Tribunal may accept or decline

referral ...........................................................................................224 445 Modification of definition of member in section 3 of the

AAT Act........................................................................................224 446 Modification of section 21 of the AAT Act...................................224 447 Certain sections of the AAT Act do not apply to

RRT-reviewable decisions.............................................................225 448 Modification of section 25 of the AAT Act...................................225 449 Modification of section 30 of the AAT Act...................................226 450 Modification of section 37 of the AAT Act...................................226 451 Modification of section 38 of the AAT Act...................................226 452 Modification of section 43 of the AAT Act...................................227 453 Only new information to be considered in later applications

for review ......................................................................................227 454 Minister may substitute more favourable decision ........................228 455 Provision of material to which section 438 applies .......................229 456 Section 9 of AAT Act not to apply to Principal Member ..............229

Division 9—Establishment and membership of the Refugee Review Tribunal 230

457 Establishment of the Refugee Review Tribunal ............................230 458 Membership of Refugee Review Tribunal.....................................230 459 Appointment of members ..............................................................230 460 Principal Member ..........................................................................230 461 Period of appointment of members................................................231 462 Remuneration and allowances of members ...................................231 464 Leave of absence ...........................................................................231 465 Other terms and conditions............................................................232 466 Resignation....................................................................................232 467 Disclosure of interests ...................................................................232 468 Removal from office......................................................................232 469 Acting appointments......................................................................233 470 Delegation .....................................................................................235

Division 10—Registry and officers 236 471 Registry .........................................................................................236 472 Officers of Tribunal.......................................................................236 473 Acting appointments......................................................................236

xvi Migration Act 1958

Part 7A—Statutory agency for purposes of Public Service Act 237 473A Statutory agency for purposes of Public Service Act.....................237

Part 8—Judicial review 238 Division 1—Privative clause 238

474 Decisions under Act are final ........................................................238 Division 2—Jurisdiction and procedure of courts 242

475 This Division not to limit section 474 ...........................................242 476 Jurisdiction of the Federal Magistrates Court ................................242 476A Limited jurisdiction of the Federal Court ......................................243 476B Remittal by the High Court ...........................................................243 477 Time limits on applications to the Federal Magistrates Court .......244 477A Time limits on applications to the Federal Court...........................244 478 Persons who may make application...............................................245 479 Parties to review ............................................................................245 480 Intervention by Attorney-General..................................................245 481 Operation etc. of decision..............................................................246 482 Changing person holding, or performing the duties of, an

office .............................................................................................246 483 Section 44 of the Administrative Appeals Tribunal Act 1975 ........246 484 Exclusive jurisdiction of High Court, Federal Court and

Federal Magistrates Court .............................................................246 Part 8A—Restrictions on court proceedings 248

486A Time limit on applications to the High Court for judicial review............................................................................................248

486AA Intervention by Attorney-General..................................................248 486AB Operation etc. of decision..............................................................249 486B Multiple parties in migration litigation..........................................249 486C Persons who may commence or continue proceedings in the

Federal Magistrates Court or the Federal Court.............................250 486D Disclosing other judicial review proceedings ................................251

Part 8B—Costs orders where proceedings have no reasonable prospect of success 253

486E Obligation where there is no reasonable prospect of success ........253 486F Cost orders.....................................................................................253 486G Person must be given reasonable opportunity to argue

against costs order .........................................................................254 486H Limited waiver of legal professional privilege ..............................254 486I Lawyer’s certification....................................................................255 486J Part does not limit other powers to order costs against third

parties ............................................................................................255 486K Definitions.....................................................................................255

Migration Act 1958 xvii

Part 8C—Reports on persons in detention for more than 2 years 257

486L What is the detention reporting start time for a person?................257 486M What is a detention reporting time for a person?...........................257 486N Secretary’s obligation to report to Commonwealth

Ombudsman ..................................................................................257 486O Commonwealth Ombudsman to give Minister assessment of

detention arrangements..................................................................258 486P Minister to table statement from Commonwealth

Ombudsman ..................................................................................259 486Q Application of Ombudsman Act 1976............................................259

Part 9—Miscellaneous 260 487 Liability for identification tests .....................................................260 488 Tampering with movements records..............................................260 488A Giving information to other relevant agencies...............................262 488B Authorisation to disclose information to an officer .......................262 489 Notified data bases ........................................................................263 490 Identification card to be deemed to continue to be in a form

approved by the Minister...............................................................263 492 Commencement of prosecutions....................................................263 493 Conduct of directors, servants and agents......................................264 494 Jurisdiction of courts .....................................................................265 494AA Bar on certain legal proceedings relating to offshore entry

persons...........................................................................................266 494AB Bar on certain legal proceedings relating to transitory

persons...........................................................................................266 494A Giving documents by Minister where no requirement to do

so by section 494B method............................................................267 494B Methods by which Minister gives documents to a person .............268 494C When a person is taken to have received a document from

the Minister ...................................................................................270 494D Authorised recipient ......................................................................271 495 Minister may approve forms..........................................................273 495A Minister may arrange for use of computer programs to make

decisions etc. .................................................................................273 495B Minister may substitute more favourable decisions for

certain computer-based decisions ..................................................274 496 Delegation .....................................................................................274 497 Delegate not required to perform certain administrative tasks.......275 498 Exercise of powers under Act........................................................275 499 Minister may give directions .........................................................276 500 Review of decision ........................................................................276 500A Refusal or cancellation of temporary safe haven visas ..................282 501 Refusal or cancellation of visa on character grounds.....................285

xviii Migration Act 1958

501A Refusal or cancellation of visa—setting aside and substitution of non-adverse decision under subsection 501(1) or (2)..............................................................................................288

501B Refusal or cancellation of visa—setting aside and substitution of adverse decision under subsection 501(1) or (2) ..................................................................................................290

501C Refusal or cancellation of visa—revocation of decision under subsection 501(3) or 501A(3)..............................................291

501D Refusal or cancellation of visa—method of satisfying Minister that person passes the character test ................................292

501E Refusal or cancellation of visa—prohibition on applying for other visas......................................................................................293

501F Refusal or cancellation of visa—refusal of other visa applications and cancellation of other visas...................................293

501G Refusal or cancellation of visa—notification of decision ..............294 501H Refusal or cancellation of visa—miscellaneous provisions ...........295 501HA Application of sections 501 to 501H to transitional

(permanent) visas and transitional (temporary) visas ....................295 501J Refusal or cancellation of protection visa—Minister may

substitute more favourable decision ..............................................296 501K Identity of applicants for protection visas not to be published

by the Administrative Appeals Tribunal........................................297 502 Minister may decide in the national interest that certain

persons are to be excluded persons................................................298 503 Exclusion of certain persons from Australia..................................298 503A Protection of information supplied by law enforcement

agencies or intelligence agencies...................................................299 503B Protection of confidential information disclosed to the

Federal Court or the Federal Magistrates Court—permanent non-disclosure orders.....................................................................302

503C Protection of confidential information disclosed to the Federal Court or the Federal Magistrates Court—interim non-disclosure orders.....................................................................307

503D Details of gazetted agency to be treated as protected information ....................................................................................309

504 Regulations....................................................................................310 505 Regulations about visa criteria.......................................................313 506 Regulations about passenger cards ................................................314 507 Marital status .................................................................................314

The Schedule—Acts relating to immigration and deportation repealed 315

Notes 317


Recovery of costs from certain persons Division 14

Section 262


Part 2—Control of arrival and presence of non-citizens

Division 14—Recovery of costs from certain persons

262 Liability to the Commonwealth for the cost of keeping, maintaining and removing certain persons because of section 250

A person who: (a) is in immigration detention because of subsection 250(2); and (b) while in that immigration detention, is convicted of an

offence against this Act or against a prescribed law in force in the Commonwealth or in a State or Territory, being a law relating to the control of fishing;

and the master, owner, agent and charterer of the vessel on which the person travelled to Australia, are, jointly and severally, liable to pay the Commonwealth:

(c) a fair amount for the cost of keeping and maintaining the person while the person is in immigration detention; and

(d) the cost of transporting the person, and a person holding the person, from the vessel to the place of immigration detention; and

(e) the cost of transporting the person, and a person holding the person, between places of immigration detention; and

(f) if the person is returned to the vessel or another vessel—the cost of transporting the person, and a person holding the person, from the place of immigration detention to the vessel or that other vessel; and

(g) if the person is, or is to be, removed from Australia at the expense of the Commonwealth—the cost of that removal (including the cost of transporting a person holding the person).

263 Secretary able to issue notice of debt

If: (a) a person is liable to pay to the Commonwealth an amount

under section 262; and

Part 2 Control of arrival and presence of non-citizens Division 14 Recovery of costs from certain persons Section 264


(b) the Secretary gives written notice to the person giving particulars of the liability and stating that the Secretary requires payment of a specified amount not exceeding that amount;

the specified amount is a debt recoverable by the Commonwealth from the person:

(c) in a court of competent jurisdiction; or (d) by garnishee notice under section 264.

264 Garnishee notice

(1) If an amount (debt) is a debt recoverable from a person (debtor) by the Commonwealth under section 263 or 265, the Secretary may by written notice given to another person:

(a) from whom any money is due or accruing, or may become due, to the debtor; or

(b) who holds, or may later hold, money for or on account of the debtor; or

(c) who holds, or may later hold, money on account of some other person for payment to the debtor; or

(d) who has authority from some other person to pay money to the debtor;

require the person to whom the notice is given to pay to the Commonwealth:

(e) an amount specified in the notice, not exceeding the debt or the amount of the relevant money; or

(f) such amount as is specified in the notice out of each payment that the person becomes liable from time to time to make to the debtor until that debt is paid.

(2) The time for making a payment in compliance with a notice under subsection (1) is such time as is specified in it, not being a time before:

(a) the relevant money becomes due or is held; or (b) the end of the period of 14 days after the notice is given.

(3) If the debtor is in Australia when the Secretary gives the notice, the Secretary must give a copy of the notice to the debtor.



Section 265


(4) A person who makes a payment to the Commonwealth in compliance with the notice is taken to have made the payment under the authority of the person who owes the debt to the Commonwealth and of any other person concerned.

(5) If, after the notice is given to a person, an amount is paid by another person in reduction or satisfaction of the debt, the Secretary must notify the person given the notice accordingly, and the amount specified in the notice is taken to be reduced by the amount paid.

(6) If money is not due, or repayable, to a person on demand unless a condition is fulfilled, the money is taken, for the purposes of this section, to be due or repayable on demand, even though the condition has not been fulfilled.

265 Debt from failure to comply with garnishee notice

(1) If a person (garnishee debtor): (a) is given a notice under section 264 in respect of a debt; and (b) fails to comply with the notice to the extent that the garnishee

debtor is capable of complying with it; then the amount of the debt outstanding is recoverable from the garnishee debtor by the Commonwealth by:

(c) legal proceedings in a court of competent jurisdiction; or (d) a garnishee notice under section 264.

(2) The reference in subsection (1) to the amount of the debt outstanding is a reference to whichever is the lesser of:

(a) as much of the amount required by the notice under section 264 to be paid by the garnishee debtor as the garnishee debtor was able to pay; or

(b) as much of the debt due at the time when the notice was given as remains due from time to time.

(3) If the Commonwealth recovers: (a) the whole or a part of the debt due by the garnishee debtor; or

Part 2 Control of arrival and presence of non-citizens Division 14 Recovery of costs from certain persons Section 266


(b) the whole or a part of the debt due by the debtor (within the meaning of section 264);

then: (c) both debts are reduced by the amount that the

Commonwealth has so recovered; and (d) the amount specified in the notice under section 264 is taken

to be reduced by the amount so recovered.

266 Future debts

For the purposes of this Division, an amount is a future debt in relation to a person if the Secretary believes on reasonable grounds that the person will, under section 262, become liable to pay the amount to the Commonwealth.

267 Secretary may freeze amounts to secure future debts

(1) If there is a future debt in relation to a person (future debtor), the Secretary may by written notice given to another person:

(a) from whom any money is due or accruing, or may become due, to the future debtor; or

(b) who holds, or may later hold, money for or on account of the future debtor; or

(c) who holds, or may later hold, money on account of some other person for payment to the future debtor; or

(d) who has authority from some other person to pay money to the future debtor;

require the other person to retain for the period, not exceeding 28 days, specified in that notice:

(e) an amount specified in the notice, not exceeding the future debt or the amount of the relevant money; or

(f) such amount as is specified in the notice out of each payment that the person becomes liable from time to time to make to the future debtor until that debt is paid.

(2) If the future debtor is in Australia when the Secretary gives the notice, the Secretary must give a copy of the notice to the future debtor.

(3) If, after the notice is given to a person, an amount is paid by another person in respect of the future debt, the Secretary must



Section 268


notify the person given the notice accordingly, and the amount specified in the notice is taken to be reduced by the amount paid.

(4) If money is not due, or repayable, to a person on demand unless a condition is fulfilled, the money is taken, for the purposes of this section, to be due or repayable on demand even though the condition has not been fulfilled.

268 Application of Division to the Crown

(1) This Division binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.

(2) For the purposes of this Division, a notice may be given to the Commonwealth, a State or Territory by giving it to a person employed by the Commonwealth, State or Territory, respectively, being a person who, under a law of the Commonwealth, State or Territory, respectively, has a duty of disbursing public money, and a notice so given is taken, for the purposes of this section, to have been given to the Commonwealth, the State or the Territory, as the case may be.

Part 2 Control of arrival and presence of non-citizens Division 14A Monitoring compliance with student visa conditions Section 268AA


Division 14A—Monitoring compliance with student visa conditions

Subdivision A—Preliminary

268AA Definitions

In this Division:

attendance notice means a notice given under section 268BD.

document includes copy of a document.

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

monitoring warrant means a warrant issued under section 268CE or 268CZD.

occupier: (a) in relation to premises comprising a vehicle or vessel—

means the person apparently in charge of the vehicle or vessel; and

(b) in any case—includes a person who apparently represents the occupier.

premises means: (a) an area of land or any other place, whether or not it is

enclosed or built on; or (b) a building or other structure; or (c) a vehicle or vessel;

and includes a part of any such premises.

production notice means a notice given under section 268BA.

tribunal member means a member of the Administrative Appeals Tribunal.

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


Monitoring compliance with student visa conditions Division 14A

Section 268AB


268AB Division binds the Crown

(1) This Division binds the Crown in each of its capacities.

(2) However, nothing in this Division makes the Crown in any capacity liable to be prosecuted for an offence.

268AD Powers conferred on magistrates in their personal capacity

(1) A power conferred on a magistrate by section 268BQ, 268CE, 268CU or 268CZD is conferred on the magistrate in a personal capacity and not as a court or a member of a court.

(2) The magistrate need not accept the power conferred.

(3) A magistrate exercising a power mentioned in subsection (1) has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.

Subdivision B—Notices requiring information and documents

268BA Production notices

(1) This section applies if the Secretary reasonably believes that an individual specified in subsection (4) has, or has access to, information or documents that are relevant to a visa monitoring purpose.

(2) The Secretary may give the individual a written notice requiring him or her to:

(a) give any information or documents relevant to the visa monitoring purpose to an authorised officer; or

(b) show any such documents to an authorised officer; or (c) make copies of any such documents and give the copies to an

authorised officer. Note: The Secretary may also give the individual an attendance notice: see

section 268BD.

(3) If the information or documents are in a particular form then the production notice may require the information or documents to be given in that form.

Part 2 Control of arrival and presence of non-citizens Division 14A Monitoring compliance with student visa conditions Section 268BB


(4) The individuals who may be given a production notice are: (a) an officer or employee of an education provider; or (b) a consultant to an education provider; or (c) a partner in an education provider; or (d) an individual trading as an education provider.

(5) A production notice under this section may be given even if any relevant student visa is no longer in effect or the holder of any such visa is no longer enrolled in a course provided by the education provider.

268BB Contents of the production notice

(1) A production notice must: (a) state that it is given under section 268BA; and (b) set out the effects of sections 268BH, 268BI and 268BJ; and (c) state how and by when the information or documents must be

given or shown.

(2) In so far as the notice covers information or documents: (a) that relate to any extent to the calendar year in which the

notice is given; and (b) that are required to be given or shown on the premises where

they are currently located; the time mentioned in paragraph (1)(c) must be at least 24 hours after the notice is given.

(3) In so far as the notice covers any other information or documents, the time mentioned in paragraph (1)(c) must be at least 72 hours after the notice is given.

268BC Serving production notices

(1) The Secretary must give a production notice to an individual: (a) by delivering it to the individual personally; or (b) by: (i) leaving it at the address of the individual’s place of

residence or business last known to the Secretary; and (ii) taking reasonably practicable action to draw the

individual’s attention to the notice; or



Section 268BD


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

(2) However, if the Secretary uses the method in paragraph (1)(c), the time mentioned in paragraph 268BB(1)(c) must be at least 14 days after the notice is given (instead of at least 24 hours or 72 hours). Note: Section 29 of the Acts Interpretation Act 1901 sets out when the notice

is taken to have been given if the notice is posted to the individual.

268BD Attendance notices

(1) This section applies if the Secretary reasonably believes that an individual specified in subsection (3) has, or has access to, information or documents that are relevant to a visa monitoring purpose.

(2) The Secretary may give the individual written notice requiring the individual to attend before an authorised officer and answer questions about the matter. Note: The Secretary may also give the individual a production notice: see

section 268BA.

(3) The individuals who may be given an attendance notice are: (a) an officer or employee of an education provider; or (b) a consultant to an education provider; or (c) a partner in an education provider; or (d) an individual trading as an education provider.

(4) An attendance notice under this section may be given even if any relevant student visa is no longer in effect or the holder of any such visa is no longer enrolled in a course provided by the education provider.

268BE Contents of attendance notice

(1) An attendance notice must: (a) state that it is given under section 268BD; and (b) set out the effects of sections 268BH, 268BI and 268BJ; and (c) state where and when the individual is to attend.

The time mentioned in paragraph (c) must be at least 14 days after the notice is given.

Part 2 Control of arrival and presence of non-citizens Division 14A Monitoring compliance with student visa conditions Section 268BF


(2) An attendance notice may be included in the same document as a production notice, if the notices are being given to the same individual.

268BF Scales of expenses

The regulations may prescribe scales of expenses to be allowed to persons required to give information or documents under this Subdivision.

268BG Reasonable compensation for giving copies

A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a requirement covered by paragraph 268BA(2)(c) (copies of documents given under production notices).

268BH Offence: failing to comply with a notice

(1) A person who refuses or fails to comply with a production or attendance notice is guilty of an offence.

Maximum penalty: Imprisonment for 6 months.

(2) However, a person is not guilty of an offence in relation to a production notice if the person complied with the notice to the extent that it was practicable to do so within the period allowed by the notice. Note: A defendant bears an evidential burden in relation to the matter in

subsection (2): see subsection 13.3(3) of the Criminal Code.


268BI Offence: giving false or misleading information

A person who gives false or misleading information in the course of complying or purporting to comply with a production or attendance notice is guilty of an offence.




Section 268BJ


268BJ Offence: giving false or misleading document

(1) A person who gives or shows a document that is false or misleading in a material particular, in the course of complying or purporting to comply with a production or attendance notice, is guilty of an offence.


(2) However, the person is not guilty of the offence if the document is accompanied by a written statement signed by the person:

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

(b) setting out or referring to the material particular. Note: A defendant bears an evidential burden in relation to the matter in


268BK Information and documents that incriminate a person

(1) A person is not excused from the requirement to comply with a production or attendance notice on the ground that doing so might tend to incriminate the person or expose the person to a penalty.

(2) However, if the person is an individual: (a) the information, document or answer to the question; or (b) any other information, document or thing obtained as a direct

or indirect result of complying with a notice; is not admissible in evidence against the individual in any criminal proceedings other than proceedings under, or arising out of, section 268BI or 268BJ.

268BL Copies of documents

An authorised officer, or another officer with an authorised officer’s permission, may:

(a) inspect a document given or shown to the authorised officer under this Subdivision; and

(b) make and retain copies of, or take and retain extracts from, such a document; and

(c) retain a copy of a document given to the authorised officer in accordance with a requirement covered by paragraph

Part 2 Control of arrival and presence of non-citizens Division 14A Monitoring compliance with student visa conditions Section 268BM


268BA(2)(c) (copies of documents given under production notices).

268BM Officer may retain documents

(1) An authorised officer, or another officer with an authorised officer’s permission, may retain a document given to the authorised officer under this Subdivision:

(a) for the purposes of this Act; or (b) for the purposes of an investigation as to whether an offence

has been committed; or (c) to enable evidence of an offence to be secured for the

purposes of a prosecution.

(2) However, the document must not be retained for longer than 60 days after the authorised officer was given the document. Note: The authorised officer may apply to retain the document for a further

period: see section 268BP.

268BN Owner of document must be given copy

(1) If an officer retains a document under section 268BM, then the Secretary must as soon as practicable:

(a) certify a copy of the document to be a true copy; and (b) give the copy to the person (the owner) otherwise entitled to

possession of the document.

(2) The certified copy must be received in all courts and tribunals as evidence as if it had been the original.

(3) Until the certified copy is given, the owner, or a person authorised by the owner, may inspect and make copies of, or take and retain extracts from, the original document at the times and places that the Secretary thinks appropriate.

268BO Retaining documents

(1) This section applies 60 days after a document is given to an authorised officer under this Subdivision.

(2) The authorised officer must take reasonable steps to return the document to the person who gave the officer the document or to the owner if that person is not entitled to possess it.



Section 268BP



(a) the authorised officer may retain the document because of an order under section 268BQ; or

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

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

(1) An authorised officer given a document under this Subdivision, or another officer who is currently retaining such a document, may apply to a magistrate or tribunal member for an order that the officer may retain the document for a further period.

(2) The application must be made before the end of: (a) 60 days after the document was given to the authorised

officer; or (b) a period previously specified in an order of a magistrate or

tribunal member under section 268BQ.

(3) Before making the application, the officer must: (a) take reasonable steps to discover which persons’ interests

would be affected by the retention of the document; and (b) if it is practicable to do so, notify each person who the officer

believes to be such a person of the proposed application.

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

(1) The magistrate or tribunal member may order that the officer who made the application under section 268BP may retain the document if the magistrate or tribunal member is satisfied that it is necessary for the officer to retain it:

(a) for the purposes of this Act; or (b) for the purposes of an investigation as to whether an offence

has been committed; or (c) to enable evidence of an offence to be secured for the

purposes of a prosecution.

Part 2 Control of arrival and presence of non-citizens Division 14A Monitoring compliance with student visa conditions Section 268CA


(2) The order must specify the period for which the officer may retain the document.

Subdivision C—Searching education providers’ premises

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

(1) An authorised officer may for a visa monitoring purpose: (a) enter any premises: (i) occupied by an education provider for the purposes of

providing courses of education or of training; or (ii) at which it is reasonable to believe there might be a

thing belonging to or possessed by an education provider, or an activity conducted by or with the consent of the provider, that is relevant to a visa monitoring purpose (whether or not those premises are occupied by the provider); and

(b) exercise the monitoring powers set out in section 268CI.

(2) An authorised officer is not authorised to enter premises under subsection (1) unless:

(a) the occupier of the premises has consented to the entry and the officer has shown his or her identity card if requested by the occupier; or Note: Section 268CC sets out the requirements for obtaining the

occupier’s consent. (b) the entry is made under a monitoring warrant.

Note: Monitoring warrants are issued under section 268CE or 268CZD.

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

268CB Being on premises with consent

(1) An authorised officer may enter premises under section 268CA with the consent of the occupier of the premises at any reasonable time of the day or night.



Section 268CC


(2) However, the authorised officer must leave the premises if the occupier asks the officer to do so.

268CC Consent

(1) Before obtaining the consent of a person for the purposes of paragraph 268CA(2)(a), the authorised officer must inform the person that he or she may refuse consent.

(2) An entry of an authorised officer with the consent of a person is not lawful unless the person voluntarily consents to the entry.

268CD Authorised officer may apply for monitoring warrant

(1) An authorised officer may apply to a magistrate or tribunal member for a monitoring warrant in relation to premises mentioned in subsection 268CA(1). Note: Monitoring warrants may also be obtained by telephone, fax or other

electronic means in urgent circumstances: see section 268CZD.

(2) The officer must give the magistrate or tribunal member an information on oath or affirmation that sets out the grounds for seeking the warrant.

268CE Magistrate or tribunal member may issue monitoring warrant

The magistrate or tribunal member may issue a monitoring warrant if he or she is satisfied that it is reasonably necessary that one or more authorised officers have access to the premises mentioned in subsection 268CA(1) for a visa monitoring purpose.

268CF Magistrate or tribunal member may require more information

(1) The magistrate or tribunal member may require an authorised officer or other person to give the magistrate or tribunal member further information on oath or affirmation concerning the grounds on which the monitoring warrant is being sought before issuing it.

(2) The information may be given either orally or by affidavit.

Part 2 Control of arrival and presence of non-citizens Division 14A Monitoring compliance with student visa conditions Section 268CG


(3) The magistrate or tribunal member must not issue the warrant until the officer or other person has given the required information.

268CG Contents of monitoring warrant

(1) A monitoring warrant must: (a) authorise one or more authorised officers: (i) to enter the premises; and (ii) to exercise the powers under section 268CI in relation to

the premises; and (b) state whether the entry is authorised at any time of the day or

night or during specified hours of the day or night; and (c) state the day and time at which it ceases to have effect (which

must be no later than 7 days after it is issued); and (d) state the purpose for which the warrant is issued; and (e) state that the warrant is issued under section 268CE.

(2) The authorised officers do not have to be named in the warrant.

268CH Use of reasonable force and assistance

An authorised officer may use such assistance and force as is necessary and reasonable in entering the premises under a monitoring warrant and exercising the powers under section 268CI.

268CI Monitoring powers of authorised officers

(1) For the purposes of this Subdivision, the following are the monitoring powers that an authorised officer may exercise in relation to premises under section 268CA:

(a) to search the premises, and any receptacle on the premises, for any thing on the premises belonging to or possessed by the education provider that might be relevant to a visa monitoring purpose;

(b) to examine any such thing; (c) to examine any activity that is conducted on the premises by,

or with the consent of, the education provider that might be relevant to a visa monitoring purpose;

(d) to take photographs or make video or audio recordings or sketches on the premises of any such activity or thing;



Section 268CI


(e) to inspect any document on the premises belonging to or possessed by the education provider that might be relevant to a visa monitoring purpose;

(f) to take extracts from or make copies of any such document; (g) to take onto the premises any equipment and materials that

the authorised officer requires for the purpose of exercising powers in relation to the premises;

(h) the powers in subsections (2), (3) and (5).

(2) For the purposes of this Subdivision, the monitoring powers include the power to operate equipment that is on the premises to see whether:

(a) the equipment; or (b) a disk, tape or other storage device that: (i) is on the premises; and (ii) can be used with the equipment or is associated with it;

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

(3) For the purposes of this Division, the monitoring powers include the following powers in relation to information described in subsection (2) that is found in the exercise of the power under that subsection:

(a) to operate facilities that are on the premises to put the information in documentary form and remove the documents so produced;

(b) to operate such facilities to transfer the information to a disk, tape or other storage device that:

(i) is brought to the premises for the exercise of the power; or

(ii) is on the premises and the use of which for that purpose has been agreed to in writing by the education provider or occupier (as appropriate);

(c) to remove from the premises a disk, tape or other storage device to which the information has been transferred in exercise of the power under paragraph (b).

(4) The powers mentioned in subsections (2) and (3) must be exercised in accordance with sections 268CO, 268CP and 268CQ.

Part 2 Control of arrival and presence of non-citizens Division 14A Monitoring compliance with student visa conditions Section 268CJ


(5) If an authorised officer, during a search of premises, reasonably believes that there is on the premises a thing that might afford evidence of the commission of an offence against this Act or the regulations, the Crimes Act 1914 or the Criminal Code, the monitoring powers include securing the thing pending the obtaining of a warrant to seize it.

268CJ Authorised officer on premises with consent may ask questions

An authorised officer who is only authorised to enter premises because the occupier of the premises consented to the entry may:

(a) ask the occupier to: (i) answer any questions that are relevant to a visa

monitoring purpose; and (ii) give or show the officer any document requested by the

officer that is relevant to the matter; or (b) ask any person on the premises to answer any questions that

may facilitate the exercise of monitoring powers in relation to the premises.

Note: A person could be guilty of an offence if, under this section, the person gives false or misleading information or shows a document that is false or misleading in a material particular: see sections 268CM and 268CN.

268CK Authorised officer on premises under warrant may ask questions

An authorised officer who is authorised to enter premises by a monitoring warrant may:

(a) require the occupier of the premises to: (i) answer any questions that are relevant to a visa

monitoring purpose; and (ii) give or show the officer any document requested by the

officer that is relevant to a visa monitoring purpose; or (b) require any person on the premises to answer any questions

that may facilitate the exercise of monitoring powers in relation to the premises.

Note 1: A person could be guilty of an offence if the person fails to comply with a requirement under this section: see section 268CL.



Section 268CL


Note 2: A person could be guilty of an offence if, under this section, the person gives false or misleading information or shows a document that is false or misleading in a material particular: see sections 268CM and 268CN.

268CL Offence: failure to answer question

(1) A person is guilty of an offence if the person refuses or fails to comply with a requirement under section 268CK (officer on premises under warrant may ask questions).


(2) However, a person is not guilty of an offence if answering the question or giving or showing the document might tend to incriminate the person or expose the person to a penalty. Note: A defendant bears an evidential burden in relation to the matter in



268CM Offence: giving false or misleading information

A person who gives false or misleading information in the course of complying or purporting to comply with a request under section 268CJ or a requirement under section 268CK is guilty of an offence.


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

(1) A person who gives or shows a document that is false or misleading in a material particular, in the course of complying or purporting to comply with a request under section 268CJ or a requirement under section 268CK, is guilty of an offence.


Part 2 Control of arrival and presence of non-citizens Division 14A Monitoring compliance with student visa conditions Section 268CO


(2) However, the person is not guilty of an offence if the document is accompanied by a written statement signed by the person:

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

(b) setting out or referring to the material particular. Note: A defendant bears an evidential burden in relation to the matter in


268CO Use of electronic equipment in exercising monitoring powers

In order to exercise monitoring powers, an authorised officer or a person assisting may operate electronic equipment on the premises if he or she reasonably believes that this can be done without damaging the equipment or data recorded on the equipment. Note: Compensation may be payable in certain circumstances if the

equipment or data is damaged: see section 268CY.

268CP Use of electronic equipment by experts

(1) This section applies if the authorised officer or a person assisting reasonably believes that:

(a) there is on the premises information belonging to the education provider concerned:

(i) that is relevant to a visa monitoring purpose; and (ii) that might be accessible by operating electronic

equipment that is on the premises; and (b) expert assistance is required to operate the equipment; and (c) if he or she does not take action under subsection (2), the

information might be destroyed, altered or otherwise interfered with.

(2) The authorised officer or person assisting may do whatever is necessary to secure the equipment.

(3) Before doing so, the authorised officer or person assisting must give notice to the occupier of the premises of:

(a) his or her intention to secure equipment; and (b) the fact that the equipment may be secured for up to 24

hours.



Section 268CQ


(4) The equipment may only be secured until the earlier of: (a) 24 hours later; or (b) the equipment being operated by the expert.

268CQ Extension of period

(1) If an authorised officer or a person assisting reasonably believes that the expert assistance will not be available within 24 hours, he or she may apply to a magistrate or tribunal member for an extension of the period.

(2) The authorised officer or a person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension. The occupier is entitled to be heard in relation to that application.

(3) The provisions of this Subdivision relating to the issue of monitoring warrants apply, with such modifications as are necessary, to the issue of an extension.

268CR Powers without warrant in emergency situations

(1) This section applies when an authorised officer is on premises under section 268CA if the officer reasonably suspects that:

(a) a thing relevant to an offence against this Act or the regulations, the Crimes Act 1914 or the Criminal Code is on the premises; and

(b) it is necessary to exercise a power under subsection (2) in order to prevent the thing from being concealed, lost or destroyed; and

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

(2) The authorised officer may: (a) search the premises, and any receptacle on the premises, for

the thing; and (b) seize the thing if he or she finds it there; and (c) exercise the powers mentioned in subsections 268CI(2) and

(3) in relation to the thing.

Part 2 Control of arrival and presence of non-citizens Division 14A Monitoring compliance with student visa conditions Section 268CS


268CS Retaining seized things

(1) This section applies to an authorised officer when one of the following happens in respect of a thing seized under section 268CR:

(a) the reason for the thing’s seizure no longer exists or it is decided that the thing is not to be used in evidence; or

(b) the period of 60 days after the thing’s seizure ends.

(2) The authorised officer must take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it.


(a) in a paragraph (1)(b) case: (i) proceedings in respect of which the thing might afford

evidence have been instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or

(ii) the authorised officer may retain the thing because of an order under section 268CU; or

(b) in any case—the authorised officer is otherwise authorised (by a law, or an order of a court or a tribunal, of the Commonwealth or a State) to retain, destroy or dispose of the thing; or

(c) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

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

(1) This section applies if an authorised officer has seized a thing under section 268CR and proceedings in respect of which the thing might afford evidence have not commenced before the end of:

(a) 60 days after the seizure; or (b) a period previously specified in an order of a magistrate or

tribunal member under section 268CU.

(2) The authorised officer may apply to a magistrate or tribunal member for an order that the officer may retain the thing for a further period.



Section 268CU


(3) Before making the application, the authorised officer must: (a) take reasonable steps to discover which persons’ interests

would be affected by the retention of the thing; and (b) if it is practicable to do so, notify each person who the officer

believes to be such a person of the proposed application.

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

(1) The magistrate or tribunal member may order that the authorised officer who made an application under section 268CT may retain the thing if the magistrate or tribunal member is satisfied that it is necessary for the officer to do so:

(a) for the purposes of an investigation as to whether an offence has been committed; or

(b) to enable evidence of an offence to be secured for the purposes of a prosecution.

(2) The order must specify the period for which the officer may retain the thing.

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

(1) The occupier of the premises to which a monitoring warrant relates must provide the authorised officer executing the warrant and any person assisting that officer with all reasonable facilities and assistance for the effective exercise of their powers.

(2) A person is guilty of an offence if the person contravenes subsection (1).

Maximum penalty: 10 penalty units.

268CW Announcement before entry

An authorised officer executing a monitoring warrant must, before entering premises under the warrant:

(a) announce that he or she is authorised to enter the premises; and

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

Part 2 Control of arrival and presence of non-citizens Division 14A Monitoring compliance with student visa conditions Section 268CX


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

(1) If a monitoring warrant is being executed on premises and the occupier of the premises is present, the authorised officer must make a copy of the warrant available to the occupier.

(2) The authorised officer must identify himself or herself to that person.

268CY Compensation for damage to electronic equipment or data

(1) This section applies if: (a) damage is caused to equipment as a result of it being

operated as mentioned in section 268CO; or (b) the data recorded on the equipment is damaged or programs

associated with its use are damaged or corrupted; because:

(c) insufficient care was exercised in selecting the person who was to operate the equipment; or

(d) insufficient care was exercised by the person operating the equipment.

(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as they agree on.

(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court for such reasonable amount of compensation as the Court determines.

(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises and his or her employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

(5) Compensation is payable out of money appropriated by the Parliament.

(6) For the purposes of subsection (1), damage to data includes damage by erasure of data or addition of other data.



Section 268CZ


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

(1) If a monitoring warrant is being executed at premises and the occupier of the premises is present, the occupier is entitled to observe the execution of the warrant.

(2) The right to observe the execution of the warrant ceases if the occupier impedes that execution.

(3) This section does not prevent the execution of the warrant in 2 or more areas of the premises at the same time.

268CZA Identity cards

(1) For the purposes of this Subdivision, an authorised officer’s identity card must be in a form approved by the Secretary. It must contain a recent photograph of the authorised officer.

(2) A person is guilty of an offence if: (a) the person holds or held an identity card for the purposes of

this Subdivision; and (b) the person ceases to be an authorised officer for all purposes

under this Act; and (c) the person does not, as soon as is practicable after so ceasing,

return the identity card to the Secretary.

Maximum penalty: 1 penalty unit.

(3) This offence is one of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

(4) However, the person is not guilty of the offence if the identity card was lost or destroyed. Note: A defendant bears an evidential burden in relation to the matter in


(5) An authorised officer must carry an identity card at all times when exercising powers under this Subdivision.

Part 2 Control of arrival and presence of non-citizens Division 14A Monitoring compliance with student visa conditions Section 268CZB


268CZB Authorised officer must produce identity card on request

An authorised officer is not entitled to exercise any powers under this Subdivision in relation to premises if:

(a) the occupier of the premises requests the authorised officer to show his or her identity card to the occupier; and

(b) the authorised officer fails to comply with the request.

268CZC Officer may apply for warrants by telephone etc.

(1) An authorised officer may apply to a magistrate or tribunal member for a warrant under section 268CE by telephone, fax or other electronic means if the officer thinks it necessary to do so because of urgent circumstances.

(2) The magistrate or tribunal member may require communication by voice to the extent that it is practicable in the circumstances.

(3) Before making the application, the authorised officer must prepare an information that sets out the grounds for seeking the warrant.

(4) However, the officer may make the application before the information has been sworn or affirmed, if necessary.

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

(1) Before issuing the warrant the magistrate or tribunal member must: (a) consider the information prepared under subsection

268CZC(3); and (b) receive any further information that the magistrate or tribunal

member may require about the grounds on which the warrant is being sought.

(2) The magistrate or tribunal member may issue the warrant if the magistrate or tribunal member is satisfied:

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

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



Section 268CZE


268CZE Procedure for issuing warrant by telephone etc.

(1) If the magistrate or tribunal member issues a monitoring warrant under section 268CZD, the magistrate or tribunal member must complete and sign a warrant that is the same as the monitoring warrant that the magistrate or tribunal member would have issued if the application had been made under section 268CD.

(2) The magistrate or tribunal member must also: (a) inform the authorised officer of: (i) the terms of the warrant; and (ii) the day and time when it was signed; and (iii) the time at which it ceases to have effect (which must be

no later than 48 hours after it is signed); and (b) record on the warrant the reasons for issuing it.

(3) The authorised officer must: (a) complete a form of warrant in the terms given to the

authorised officer by the magistrate or tribunal member; and (b) write on it the magistrate’s or tribunal member’s name and

the day and time when the warrant was signed.

268CZF Procedure after telephone warrant ceases or is executed

(1) An authorised officer who completes a form of warrant under section 268CZE must send the magistrate or tribunal member who signed the monitoring warrant:

(a) the form of warrant completed by the authorised officer; and (b) the information duly sworn or affirmed in connection with

the warrant.

(2) The form of warrant and information must be sent by the end of the day after the earlier of:

(a) the day on which the warrant ceases to have effect; or (b) the day on which the warrant is executed.

(3) The magistrate or tribunal member must: (a) attach the monitoring warrant signed by the magistrate or

tribunal member under section 268CZE to the form of warrant and information; and

Part 2 Control of arrival and presence of non-citizens Division 14A Monitoring compliance with student visa conditions Section 268CZG


(b) deal with the documents in the same way that the magistrate or tribunal member would have dealt with them if the application for the warrant had been made under section 268CD.

268CZG Form of warrant authorises exercise of power

The form of warrant completed under section 268CZE is authority for any exercise of a power that the monitoring warrant issued under section 268CZD is authority for, if the form of warrant is in accordance with the terms of the monitoring warrant.

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

A court must assume (unless the contrary is proved) that an exercise of power was not authorised by a monitoring warrant if the monitoring warrant signed by the magistrate or tribunal member under section 268CZE is not produced in evidence.


General Division 15

Section 269


Division 15—General

269 Securities

(1) An authorized officer may require and take security for compliance with the provisions of this Act or the regulations or with any condition imposed in pursuance of, or for the purposes of, this Act or the regulations:

(a) by a deposit of cash, Treasury Bonds or negotiable instruments, together with a memorandum of deposit in a form approved by the Minister; or

(b) in accordance with a form of security approved by the Minister.

(2) A security given in accordance with a form approved by the Minister shall, without sealing, bind its subscribers as if it were sealed and, unless otherwise provided in the security, jointly and severally and for the full amount.

(3) Whenever a security under this Act is put in suit, the production of the security without further proof shall entitle the Commonwealth to judgment for their stated liabilities against the persons appearing to have executed the security unless the defendants prove compliance with the conditions of the security or that the security was not executed by them or release or satisfaction.

(4) If it appears to the court that a non-compliance with a condition of a security under this Act has occurred, the security shall not be deemed to have been discharged or invalidated, and the subscribers shall not be deemed to have been released or discharged from liability, by reason of:

(a) an extension of time or other concession; (b) any consent to, or acquiescence in, a previous

non-compliance with a condition; or (c) any failure to bring suit against the subscribers upon the

occurrence of a previous non-compliance with the condition.

Part 2 Control of arrival and presence of non-citizens Division 15 General Section 270


270 Reports of absences of crews of vessels

(1) Where, at or after the departure from a port in Australia of a vessel that has entered Australia from overseas, the master, owner, charterer or agent of the vessel reports in writing to an officer that a specified person was a member of the crew of the vessel on board the vessel at the time of its arrival at that port and is or was absent from the vessel at the time of its departure from that port, and states in the report whether that member left the vessel at that port with leave or without leave, that report is, for the purposes of proceedings under or in relation to this Act, evidence of the matters contained in the report and:

(a) if the report states that the member left the vessel with leave—that the member entered Australia, with leave, from the vessel during the vessel’s stay at that port and remained in Australia after the vessel left that port; or

(b) if the report states that the member left the vessel without leave—that the member entered Australia, without leave, from the vessel during the vessel’s stay at that port.

(2) Where, during the stay at a port in Australia of a vessel that has entered Australia from overseas, the master of the vessel reports in writing to an officer that a specified person was included in the complement of the vessel, or a member of the crew of the vessel, on board the vessel at the time of its arrival at that port and:

(a) at any time during the vessel’s stay at that port, left the vessel without leave; or

(b) at any time during the vessel’s stay at that port, left the vessel with leave, but has become absent without leave;

the report is, for the purposes of proceedings under or in relation to this Act, evidence of the matters contained in the report.

271 Proof of certain matters

(1) In migration proceedings: (a) official documents of the Commonwealth or of a State or

Territory, and letters and telegrams, or copies of letters and telegrams, and affidavits produced out of official custody and purporting to have been sent or made by an officer, are, if they contain information or statements upon matters relevant to the proceedings, admissible as evidence of that information or of the matters stated;


General Division 15

Section 271


(b) 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 visa that was in effect; or

(ii) a specified visa was granted subject to specified conditions or to a specified limitation as to period;

is prima facie evidence of the matters stated in the certificate; (c) the production out of official custody of a document

purporting to be a report made by the master, owner, charterer or agent of a vessel to an officer as to a matter relevant to the operation of this Act is evidence that the document is such a report;

(d) a list of passengers in a vessel, or a passenger card relating to a passenger in a vessel, furnished in accordance with the regulations, is prima facie evidence that the person named on the list or card as the operator of the vessel is the operator of the vessel;

(e) a notation in a person’s passport specifying a proclaimed airport and date (being a notation made by an authorised officer in a form approved by the Minister) is prima facie evidence that the person was immigration cleared on that date;

(f) a notation in a person’s passport to the effect that the person departed on a specified pre-cleared flight from a specified foreign country on a specified date (being a notation made by an authorised officer in a form approved by the Minister) is prima facie evidence that the person entered Australia on that pre-cleared flight;

(g) for the purpose of proving that a person entered Australia on, or left Australia in, an aircraft (whether or not the person travelled to Australia on a pre-cleared flight), a certified printout of the relevant movement records is prima facie evidence of the matters contained in the printout;

(h) for the purpose of proving that a person entered Australia on, or left Australia on, a vessel, a list of any passengers on that vessel, or a passenger card relating to a passenger on that vessel, furnished in accordance with the regulations is admissible in evidence, and production of such a list or passenger card bearing a name that is the same as the name of that person shall be deemed to be proof that that person entered Australia on, or left Australia on, that vessel on the



voyage in respect of which the list or passenger card was furnished, unless the contrary is proved; and

(i) for the purpose of proving that a person has, in a place outside Australia, been convicted of a particular crime (including an attempt to commit a crime) and has been sentenced to a particular sentence in respect of the conviction, fingerprint records, photographs and documents or copies thereof, and certificates in relation to any fingerprint records, photographs or documents or copies thereof, are admissible in the evidence if they:

(i) are produced out of the custody of a police or prison officer of the Commonwealth or of a State or Territory; and

(ii) purport to be certified or given under the hand of a police or prison officer, or like authority, of a place outside Australia;

and any such certificate is evidence of the matters stated in the certificate; and

(j) evidence that a person who travelled to and entered Australia on board a vessel, when entering, either:

(i) failed to produce to an officer, upon demand by that officer, a passport; or

(ii) produced to an officer a passport that was not an Australian passport;

is prima facie evidence that the person was, when entering, a non-citizen; and

(k) evidence that a non-citizen who entered Australia on board a vessel failed, when entering, to produce to an officer, upon demand by that officer, evidence of a visa:

(i) that is in effect; and (ii) that permits the non-citizen to travel to and enter

Australia; is prima facie evidence that the non-citizen did not, when

entering, hold such a visa; and (l) a certificate signed by an officer stating whether or not a

specified computer program was functioning correctly: (i) at a specified time or during a specified period; and (ii) in relation to specified outcomes from the operation of

that program under an arrangement made under subsection 495A(1);


General Division 15

Section 272


is prima facie evidence of the matters stated in the certificate. Note: Functioning correctly is defined in subsection (5).

(2) In subsection (1), the reference to official documents of a Territory shall be read, in the case of the Territory of Christmas Island, as including official documents of that Territory that were in existence at the commencement of this subsection.

(3) In subsection (1), the reference to official documents of a Territory shall be read, in the case of the Coral Sea Islands Territory or the Territory of Cocos (Keeling) Islands, as including official documents of that Territory that were in existence at the commencement of this subsection.


migration proceedings means: (a) proceedings in a court (including criminal proceedings) or

the Migration Review Tribunal: (i) under this Act or in relation to an offence against this

Act; or (ii) in relation to a deportation order; or (b) proceedings in the Refugee Review Tribunal under this Act;

or (c) proceedings in the Administrative Appeals Tribunal under

this Act. Note: For offence against this Act, see subsection 5(1).

(5) For the purposes of paragraph 271(1)(l), a computer program is functioning correctly if:

(a) outcomes from its operation comply with this Act and the regulations; and

(b) those outcomes would be valid if they were made by the Minister otherwise than by the operation of the computer program.

272 Migrant centres

(1) The Minister may, on behalf of the Commonwealth, cause to be established and maintained premises and places (in this section referred to as migrant centres) for the reception, accommodation or training of non-citizens.



(2) Non-citizens may be admitted to migrant centres in such circumstances, on such terms and conditions, and subject to the payment of such charges, as the Minister approves.

(3) The regulations may make provision for and in relation to the regulation of migrant centres, including provision with respect to the establishment and operation of canteen services in migrant centres, the conduct or control of persons in migrant centres and the removal of persons from migrant centres.

(4) Nothing in this section shall be deemed to affect any arrangements made or to be made in relation to, or the carrying on of the business of, the company known as Commonwealth Hostels Limited.

273 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 is authorised under this Act.

274 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) is a removee who has not yet been removed; or (c) has been refused immigration clearance and has not

subsequently been immigration cleared.


General Division 15

Section 274


(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.

Part 3 Migration agents and immigration assistance Division 1 Preliminary Section 275


Part 3—Migration agents and immigration assistance

Division 1—Preliminary

275 Interpretation

In this Part, unless the contrary intention appears:

cancellation review applicant means an applicant for: (a) review of a decision to cancel a visa held by the applicant; or (b) revocation under section 137L of the cancellation of a visa

held by the applicant; or (c) review of a decision under that section not to revoke such a

cancellation.

cancellation review application, in relation to a cancellation review applicant, means the application by the applicant.

high visa refusal rate, in relation to a visa of a particular class, has the meaning given by section 306AC.

Institute means the Migration Institute of Australia Limited (A.C.N. 003 409 390).

lawyer means: (a) a barrister; or (b) a solicitor; or (c) a barrister and solicitor; or (d) a legal practitioner;

of the High Court or of the Supreme Court of a State or Territory.

Migration Agents Registration Authority means: (a) if an appointment of the Institute is in force under

section 315—the Institute; or (b) otherwise—the Minister.

migration procedure means the law, and administrative practice, relating to immigration.

Migration agents and immigration assistance Part 3

Preliminary Division 1

Section 276


official means: (a) a person appointed or engaged under the Public Service Act

1999; or (c) a member of the public service of a State or Territory; or (d) a member of the staff of a Parliamentarian.

parliamentarian means: (a) a Senator; or (b) a Member of the House of Representatives; or (c) a member of the Parliament of a State; or (d) a member of the Legislative Assembly of a Territory.

Register means the Register of Migration Agents kept under section 287.

registered migration agent means an individual registered as a migration agent under section 286.

registration application means an application to be registered as a migration agent.

registration application fee means charge imposed by section 4 of the Migration Agents Registration Application Charge Act 1997 on a registration application.

registration status charge means charge imposed by section 10 of the Migration Agents Registration Application Charge Act 1997.

review authority means: (a) the Migration Review Tribunal; or (b) the Refugee Review Tribunal.

276 Immigration assistance

(1) For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:

(a) preparing, or helping to prepare, the visa application or cancellation review application; or



(b) advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or

(c) preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or

(d) representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.

(2) For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:

(a) preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or

(b) advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or

(c) representing the other person in proceedings before a court or review authority that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.

(2A) For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:

(a) preparing, or helping to prepare, a request to the Minister to exercise his or her power under section 351, 391, 417, 454 or 501J in respect of a decision (whether or not the decision relates to the other person); or

(aa) preparing, or helping to prepare, a request to the Minister to exercise a power under section 195A, 197AB or 197AD (whether or not the exercise of the power would relate to the other person); or

(b) advising the other person about making a request referred to in paragraph (a) or (aa).



Section 277


(3) Despite subsections (1), (2) and (2A), a person does not give immigration assistance if he or she merely:

(a) does clerical work to prepare (or help prepare) an application or other document; or

(b) provides translation or interpretation services to help prepare an application or other document; or

(c) advises another person that the other person must apply for a visa; or

(d) passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.

(4) A person also does not give immigration assistance in the circumstances prescribed by the regulations.

277 Immigration legal assistance

(1) For the purposes of this Part, a lawyer gives immigration legal assistance if the lawyer:

(a) acts for a visa applicant or cancellation review applicant in preparing for proceedings before a court in relation to the visa application or cancellation review application; or

(b) represents or otherwise acts for a visa applicant or cancellation review applicant in proceedings before a court in relation to the visa application or cancellation review application; or

(c) gives advice to a visa applicant or cancellation review applicant in relation to the visa application or cancellation review application that is not advice for the purpose of any of the following:

(i) the preparation or lodging of the visa application or cancellation review application;

(ii) proceedings before a review authority in relation to the visa application or cancellation review application;

(iii) the review by a review authority of a decision relating to the visa application or cancellation review application.

(2) For the purposes of this Part, a lawyer also gives immigration legal assistance if the lawyer:

(a) represents or otherwise acts for a person in proceedings (or in preparing for proceedings) before a court that relate to the



visa for which the person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations; or

(b) gives advice to a person about nominating or sponsoring a visa applicant for the purposes of the regulations (except advice described in subsection (3)).

(3) A lawyer does not give immigration legal assistance in giving advice to a person about nominating or sponsoring a visa applicant for the purposes of the regulations if the advice is for the purpose of:

(a) the preparation or lodging of an approved form putting forward the name of a visa applicant; or

(b) the preparation or lodging of an approved form undertaking sponsorship; or

(c) proceedings before a review authority that relate to the visa for which the person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant); or

(d) the review by a review authority of a decision relating to the visa for which the person was nominating or sponsoring the visa applicant (or seeking to nominate or sponsor the visa applicant).

(4) A lawyer does not give immigration legal assistance in giving advice to another person that is for the purpose of the preparation or making of a request to the Minister to exercise his or her power under section 351, 391, 417, 454 or 501J in respect of a decision (whether or not the decision relates to the other person).

(5) A lawyer does not give immigration legal assistance in giving advice to another person that is for the purpose of the preparation or making of a request to the Minister to exercise a power under section 195A, 197AB or 197AD (whether or not the exercise of the power would relate to the other person).

278 Relation by employment

(1) For the purposes of this Part, an individual is related by employment to another individual if:

(a) one individual is an employee of the other; or (b) they are executive officers of the same corporation; or



Section 279


(c) they are members of the same partnership; or (d) one individual is an employee of a corporation and the other

is: (i) an employee of the corporation; or (ii) an executive officer of the corporation; or (e) one individual is an employee of a partnership and the other

is: (i) an employee of the partnership; or (ii) a member of the partnership.

Regulations

(2) For the purposes of this Part, an individual is also related by employment to another individual in any other prescribed circumstance.

Expanded meaning of employee


employee includes a person engaged as a consultant or as an independent contractor.

279 Part VIIC of the Crimes Act 1914 to apply to this Part

(1) Despite paragraph 85ZZH(d) of the Crimes Act 1914, Part VIIC of that Act applies to this Part.

(2) Division 3 of Part VIIC of the Crimes Act 1914 applies in relation to the Migration Agents Registration Authority as if it were a Commonwealth authority for the purposes of that Division.

Part 3 Migration agents and immigration assistance Division 2 Restrictions on giving of immigration assistance and making of immigration representations Section 280


Division 2—Restrictions on giving of immigration assistance and making of immigration representations

280 Restrictions on giving of immigration assistance

(1) Subject to this section, a person who is not a registered migration agent must not give immigration assistance.

Penalty: 60 penalty units. Note: See also paragraph 504(1)(ja) (which deals with the payment of

penalties as an alternative to prosecution).


(2) This section does not prohibit a parliamentarian from giving immigration assistance. Note: A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the Criminal Code).

(3) This section does not prohibit a lawyer from giving immigration legal assistance. Note: A defendant bears an evidential burden in relation to the matter in this


(4) This section does not prohibit an official from giving immigration assistance in the course of his or her duties as an official. Note: A defendant bears an evidential burden in relation to the matter in this


(5) This section does not prevent an individual from giving immigration assistance of a kind covered by subsection 276(2A) if the assistance is not given for a fee or other reward. Note: A defendant bears an evidential burden in relation to the matter in this


(5A) This section does not prevent a close family member of a person from giving immigration assistance to the person. Note: A defendant bears an evidential burden in relation to the matter in this



Restrictions on giving of immigration assistance and making of immigration representations Division 2

Section 281


(5B) This section does not prevent a person nominating a visa applicant for the purposes of the regulations from giving immigration assistance to the applicant. Note: A defendant bears an evidential burden in relation to the matter in this


(5C) This section does not prevent a person sponsoring a visa applicant for the purposes of the regulations from giving immigration assistance to the applicant. Note: A defendant bears an evidential burden in relation to the matter in this


(6) This section does not prohibit an individual from giving immigration assistance in his or her capacity as:

(a) a member of a diplomatic mission; or (b) a member of a consular post; or (c) a member of an office of an international organisation.

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).


close family member has the meaning given by the regulations.

member of a consular post means a person who is a member of a consular post for the purposes of the Consular Privileges and Immunities Act 1972.

member of a diplomatic mission means a person who is a member of a mission for the purposes of the Diplomatic Privileges and Immunities Act 1967.

member of an office of an international organisation means the holder of an office in, an employee of, or a voluntary worker for, a body that, under section 3 of the International Organisations (Privileges and Immunities) Act 1963, is an international organisation within the meaning of that Act.

281 Restriction on charging fees for immigration assistance

(1) Subject to subsection (3), a person who is not a registered migration agent must not ask for or receive any fee or other reward for giving immigration assistance.




(2) Subject to subsection (3), a person must not ask for or receive any fee or other reward for the giving of immigration assistance by another person who is not a registered migration agent.


(3) This section does not prohibit: (a) a lawyer from asking for or receiving a fee for giving

immigration legal assistance; or (b) a person from asking for or receiving a fee for the giving of

immigration legal assistance by a lawyer. Note: A defendant bears an evidential burden in relation to the matter in this


(4) A person is not entitled to sue for, recover or set off any fee or other reward that the person must not ask for or receive because of subsection (1).

282 Restriction on charging fees for immigration representations

(1) A person who is not a registered migration agent must not ask for or receive any fee or other reward for making immigration representations.


(2) A person must not ask for or receive any fee or other reward for the making of immigration representations by another person who is not a registered migration agent.


(3) A person is not entitled to sue for, recover or set off any fee or other reward that the person must not ask for or receive because of subsection (1).

(4) For the purposes of this section, a person makes immigration representations if he or she makes representations to, or otherwise communicates with, the Minister, a member of the Minister’s staff or the Department:

(a) on behalf of a visa applicant about the application for the visa; or


Restrictions on giving of immigration assistance and making of immigration representations Division 2

Section 283


(b) on behalf of a cancellation review applicant about the cancellation review application; or

(c) on behalf of a person nominating (or seeking to nominate) a visa applicant for the purposes of the regulations, about the nomination; or

(d) on behalf of a person sponsoring (or seeking to sponsor) a visa applicant for the purposes of the regulations, about the sponsorship; or

(e) on behalf of a person who has made (or is proposing to make) a request to the Minister to exercise his or her power under section 351, 391, 417, 454 or 501J in respect of a decision (whether or not the decision relates to that person), about the request; or

(f) on behalf of a person who has made (or is proposing to make) a request to the Minister to exercise a power under section 195A, 197AB or 197AD (whether or not the exercise of the power would relate to the other person), about the request.

(5) A person does not make immigration representations in the circumstances prescribed by the regulations.

283 False representation that a person is a registered migration agent

(1) A person who is not a registered migration agent must not directly or indirectly represent that he or she is such an agent.

(2) A person must not directly or indirectly represent that another person who is not a registered migration agent is such an agent.


284 Restriction on self-advertising of the giving of immigration assistance

(1) Subject to this section, a person who is not a registered migration agent must not advertise that he or she gives immigration assistance.




(2) This section does not prohibit a parliamentarian from advertising that he or she gives immigration assistance. Note: A defendant bears an evidential burden in relation to the matter in this


(3) This section does not prohibit a lawyer from advertising that he or she gives immigration legal assistance. Note: A defendant bears an evidential burden in relation to the matter in this


(4) This section does not prohibit an official from advertising that he or she gives immigration assistance in the course of acting as an official. Note: A defendant bears an evidential burden in relation to the matter in this


285 Restriction on other advertising of immigration assistance

(1) Subject to this section, a person must not directly or indirectly advertise that another person who is not a registered migration agent gives immigration assistance.


(2) This section does not prohibit a person from advertising that another person who is a parliamentarian gives immigration assistance. Note: A defendant bears an evidential burden in relation to the matter in this


(3) This section does not prohibit a person from advertising that another person who is a lawyer gives immigration legal assistance. Note: A defendant bears an evidential burden in relation to the matter in this


(4) This section does not prohibit a person from advertising that another person who is an official gives immigration assistance in the course of the official acting as an official. Note: A defendant bears an evidential burden in relation to the matter in this



Registration of migration agents Division 3

Section 286


Division 3—Registration of migration agents

286 Individuals may be registered as migration agents

Individuals may be registered as migration agents in accordance with this Part.

287 Register of Migration Agents

(1) The Migration Agents Registration Authority must keep a register, to be known as the Register of Migration Agents, listing individuals who are registered as migration agents.

(2) The Register is to show in respect of each registered migration agent:

(a) the agent’s full name; and (b) any business names of the agent or the agent’s employer; and (c) a business address for the agent; and (d) a telephone number for contacting the agent; and (e) the date on which the agent was registered most recently; and (g) particulars of any suspension of the agent’s registration; and (h) particulars of any caution given to the agent; and (i) particulars of any other prescribed matter.

(3) The Migration Agents Registration Authority must keep records to show:

(a) what was in the Register from time to time; and (b) particulars of any cancellation or suspension of a registered

migration agent’s registration or of any caution given to such an agent.

(3A) The Authority may publish, in the prescribed way, a list of the names of former registered migration agents, their former migration agent registration numbers and the date they ceased to be registered. The Authority must remove a person’s details from the list at the end of the prescribed period.

(4) The Migration Agents Registration Authority must make the Register available, in a suitable form and at reasonable times, for inspection by any person.

Part 3 Migration agents and immigration assistance Division 3 Registration of migration agents Section 288


Removal of disciplinary details

(5) The Authority must remove from the Register the following details:

(a) particulars of any suspension of a registered migration agent’s registration (if the suspension is no longer in effect);

(b) particulars of any caution given to such an agent (if the caution is no longer in effect).

Time for removal

(6) The Authority must remove the details within the period worked out in accordance with the regulations.

(7) The regulations may prescribe different periods in relation to details about suspensions or cautions.

288 Application for registration

(1) An individual may apply to the Migration Agents Registration Authority to be registered as a registered migration agent.

Publishing requirement

(2) The individual must satisfy 1 of 2 publishing options set out in section 288A (unless he or she has been registered at some time in the 12 months immediately before making the application).

Form of application

(3) A registration application is to be in a form approved in writing by the Authority and contain such information relevant to the application as is required by the form. Note: The applicant may be required to make a statutory declaration, or to

answer questions, in relation to the application: see section 288B.

Time of application

(4) The day on which a registration application is taken to have been made is the day worked out in accordance with the regulations.



Section 288A


Registration application fee

(5) The Authority must not consider a registration application unless the applicant has paid the registration application fee (if any) on the application.

Evidence of publication

(6) If the applicant is required under this section to satisfy 1 of 2 publishing options, the Authority must not consider the application unless the applicant has:

(a) satisfied one of those options; and (b) given the Authority evidence of the publication concerned.

Proceedings finalised about previous registration

(6A) If: (a) the applicant has been registered at some time before making

the application; and (b) the Authority made a decision to suspend or cancel the

applicant’s registration; and (c) the applicant made an application (the review application)

for review of the decision under the Administrative Appeals Tribunal Act 1975 or for judicial review of the decision;

then the Authority must not consider the registration application unless it is satisfied that all proceedings (including any appeals) resulting from the review application have been finalised.

Withdrawal of application

(7) The applicant may withdraw an application by giving notice in writing to the Authority. However, the applicant is not entitled to a refund of the registration application fee paid in relation to the application.

288A Publishing requirement

(1) For the purposes of subsection 288(2), this section sets out an individual’s 2 publishing options.

Part 3 Migration agents and immigration assistance Division 3 Registration of migration agents Section 288B


Individual publication

(2) The first option is for the individual to publish in the prescribed way a notice:

(a) stating his or her intention to apply for registration; and (b) stating that anyone may give the Migration Agents

Registration Authority a written objection to his or her registration within the period of 30 days after publication of the notice (or 30 days after the day on which the notice is last published, if it must be published more than once).

Joint publication

(3) The second option is for the individual and one or more other individuals, who are all employees of the same employer and who all intend to apply for registration, to publish in the prescribed way a single notice:

(a) stating their intention to apply for registration; and (b) stating that anyone may give the Migration Agents

Registration Authority a written objection to registration of any one or more of them within the period of 30 days after publication of the notice (or 30 days after the day on which the notice is last published, if it must be published more than once).

288B Requiring applicants to make statutory declarations or to answer questions

(1) The Migration Agents Registration Authority may require an applicant who, on the day the application is taken to have been made, is not a registered migration agent:

(a) to make a statutory declaration in relation to information or documents provided by the applicant in relation to the application; or

(b) to appear before one or more individuals specified by the Authority and to answer questions in relation to the application.

(2) If an applicant is required under this section to make a statutory declaration or to answer questions, the Authority must not further consider the application until the applicant does so.



Section 289


289 Registration

(1) The Migration Agents Registration Authority must register an applicant by entering his or her name in the Register, unless this Part prohibits registration of the applicant. Note: If the Migration Agents Registration Authority is considering refusing

a registration application, it must give the applicant a chance to make a further submission supporting the application. See sections 309 and 310.

(2) The Migration Agents Registration Authority must do so as soon as possible.

(3) However, if the applicant was required under section 288 to satisfy 1 of 2 publishing options:

(a) the Authority must not register the applicant before the end of the time for objections that was specified in the notice concerned; and

(b) the Authority must consider any objection received within that time when deciding whether to register the applicant.

(4) Subject to subsection 300(6), if the Migration Agents Registration Authority enters in the Register the name of an applicant who is already registered, the later registration takes effect at the end of the existing registration (unless the existing registration is cancelled before it would end under section 299).

289A Applicant must not be registered if does not satisfy registration requirements

An applicant: (a) who has never been registered; or (b) who is applying to be registered more than 12 months after

the end of his or her previous registration; must not be registered unless the Migration Agents Registration Authority is satisfied that he or she:

(c) has completed a prescribed course within the prescribed period and has passed a prescribed exam within the prescribed period; or

(d) holds the prescribed qualifications.



290 Applicant must not be registered if not a person of integrity or not fit and proper

(1) An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:

(a) the applicant is not a fit and proper person to give immigration assistance; or

(b) the applicant is not a person of integrity; or (c) the applicant is related by employment to an individual who

is not a person of integrity and the applicant should not be registered because of that relationship.

(2) In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:

(a) the extent of the applicant’s knowledge of migration procedure; and

(c) any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not:

(i) a fit and proper person to give immigration assistance; or

(ii) a person of integrity; (except a conviction that is spent under Part VIIC of the

Crimes Act 1914); and (d) any criminal proceedings that the applicant is the subject of

and that the Authority considers relevant to the application; and

(e) any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and

(f) any disciplinary action that is being taken, or has been taken, against the applicant that the Authority considers relevant to the application; and

(g) any bankruptcy (present or past) of the applicant; and (h) any other matter relevant to the applicant’s fitness to give

immigration assistance.

(3) In considering whether it is satisfied that an individual to whom the applicant is related by employment is not a person of integrity, the Migration Agents Registration Authority must take into account each of the following matters, so far as the Authority considers it



Section 290A


relevant to the question whether the individual is not a person of integrity:

(a) any conviction of the individual of a criminal offence (except a conviction that is spent under Part VIIC of the Crimes Act 1914);

(b) any criminal proceedings that the individual is the subject of; (c) any inquiry or investigation that the individual is or has been

the subject of; (d) any disciplinary action that is being taken, or has been taken,

against the individual; (e) any bankruptcy (present or past) of the individual.

(4) To avoid doubt, this section applies to all applicants (not just first time applicants).

290A Applicant for repeat registration must not be registered if he or she has not done continuing professional development

If the applicant has been registered at some time in the 12 months before making the application, he or she must not be registered if the Migration Agents Registration Authority is satisfied that the applicant has not met, within the prescribed period, the requirements prescribed by the regulations for continuing professional development of registered migration agents.

290B Applicant must not be registered if any unpaid registration status charge

An applicant must not be registered if any registration status charge payable by him or her remains unpaid after the time when it becomes due for payment.

291 Applicant must not be registered if registration refused in past year

(1) An applicant must not be registered if he or she has been refused registration as a migration agent within 12 months before his or her application.


Part 3 Migration agents and immigration assistance Division 3 Registration of migration agents Section 291A


291A Applicant must not be registered if suspension would be in effect

If: (a) an applicant has been registered (the previous registration) at

some time before making the application; and (b) the Migration Agents Registration Authority decided to

suspend the previous registration (whether or not that decision was stayed); and

(c) the previous registration ended on or after the suspension decision;

then the applicant must not be registered during a period in which the previous registration would have been suspended had the previous registration not already ended. Example 1: A registered migration agent’s registration is suspended for a period.

The agent is deregistered under section 302 so the suspension of the registration ends. The agent cannot be re-registered until the suspension period ends.

Example 2: The Migration Agents Registration Authority suspends a registered migration agent’s registration. The agent applies for review of the decision and a stay order is made in relation to the decision. The agent continues to practise, while the stay order is in force, until the agent’s registration ends. Subsection 288(6A) prevents the agent from being re-registered until the review proceedings are finalised. The agent cannot be re-registered if the suspension decision is affirmed on review and the suspension would not have ended (had the registration continued).

Example 3: Under section 300, a registered migration agent’s registration is continued after the expiry day of the agent’s registration. The Migration Agents Registration Authority makes a decision to suspend the agent’s registration until the agent complies with a condition, and so the registration ends because of subsection 300(4). The agent cannot be re-registered until the agent complies with the condition.

292 Applicant must not be registered if registration cancelled in past 5 years

An applicant whose registration has been cancelled under section 303, 306AG or 306AGAC must not be registered within 5 years of the cancellation.



Section 292A


292A Applicant must not be registered if any barring period has not ended

An applicant must not be registered if: (a) the Migration Agents Registration Authority has made a

decision under subsection 311A(1) or 311L(1) to bar him or her from being a registered migration agent for a particular period; and

(b) the period has not ended.

292B Applicant must not be registered unless he or she holds appropriate professional indemnity insurance

(1) An applicant must not be registered unless the Migration Agents Registration Authority is satisfied that he or she has professional indemnity insurance of a kind prescribed by the regulations.


293 Applicant under 18 must not be registered

An applicant must not be registered if he or she is under 18.

294 Applicant must not be registered if not an Australian citizen, permanent resident or New Zealander with special visa

(1) An applicant must not be registered unless he or she is: (a) an Australian citizen; or (b) an Australian permanent resident (within the meaning of the

regulations); or (c) a New Zealand citizen who holds a special category visa.


295 Notice of refusal of application

If the Migration Agents Registration Authority decides not to register an applicant, the Authority must give the applicant written notice of the decision and of the reasons for it.



Note: The applicant may apply to the Administrative Appeals Tribunal for review of the decision. See section 306 of this Act. (Section 27A of the Administrative Appeals Tribunal Act 1975 requires that people whose interests are affected by the Authority’s decision be given notice of their rights to seek review of the decision.)

299 Period of registration

(1) Subject to sections 300, 302, 303, 306AG and 306AGAC and subsection (3), the registration of a registered migration agent lasts for 12 months after the registration.

(3) If the registration of a registered migration agent is suspended for a period, the current period of the agent’s registration is extended by a period equal to that period of suspension.

300 Automatic continuation of registration

When agent’s registration is automatically continued

(1) Subsection (4) applies to continue a registered migration agent’s registration beyond the last day (the expiry day) of the agent’s registration if, before the end of the expiry day:

(a) the agent made a registration application; and (b) the agent paid the registration application fee (if any) in

respect of the application; and (c) the Migration Agents Registration Authority had not decided

the application.

Exception—suspension

(2) However, subsection (4) does not apply to continue the agent’s registration if, before the end of the expiry day, the Authority made a decision to suspend the agent’s registration, unless:

(a) the suspension had been completed before the end of the expiry day; or

(b) there was a decision (other than a stay order) of the Administrative Appeals Tribunal or a court in force, immediately before the end of the expiry day, to the effect that the agent’s registration is not suspended or cancelled.



Section 300


Exception—cancellation

(3) Subsection (4) also does not apply to continue the agent’s registration if, before the end of the expiry day, the Authority made a decision to cancel the agent’s registration, unless:

(a) there was a decision (other than a stay order) of the Administrative Appeals Tribunal or a court in force, immediately before the end of the expiry day, to the effect that the agent’s registration is not suspended or cancelled; or

(b) there was a decision of the Administrative Appeals Tribunal or a court in force to the effect that the agent’s registration is suspended, and the suspension had been completed before the end of the expiry day.

Period of continuation of registration

(4) The agent’s registration is taken to continue after the expiry day until the earliest of the following:

(a) the Authority decides the application; (b) the Authority decides to suspend the agent’s registration; (c) the Authority decides to cancel the agent’s registration; (d) the end of the period of 10 months beginning on the day after

the expiry day.

Application granted if no decision within a certain period

(5) If, before the end of the period of 10 months beginning on the day after the expiry day, the Authority has not:

(a) decided the registration application; and (b) decided to suspend the agent’s registration; and (c) decided to cancel the agent’s registration;

then the application is taken to have been granted at the end of that period.

When registration takes effect

(6) If the Authority grants the registration application, or the registration application is taken to have been granted under subsection (5), the registration is treated as having taken effect at the end of the expiry day.



Example: An agent’s registration is due to end on 31 October (the expiry day). On 20 October the agent applies to be registered again. The Authority has not decided the application by the end of 31 October.

The agent’s registration continues automatically past 31 October until the Authority decides the application.

On 15 November the Authority grants the application. The new 12 month registration is treated as having taken effect at the end of 31 October.

When Authority makes decision

(7) For the purposes of this section, the Authority is taken to have made a decision even if the decision is later stayed.

301 Migration Agents Registration Authority must warn of expiry

At least 30 days before the period for which a registered migration agent is registered will end under section 299, the Migration Agents Registration Authority must give the agent a written notice stating when the period will end.

302 Automatic deregistration

(1) The Migration Agents Registration Authority must deregister a registered migration agent by removing his or her name from the Register if:

(a) he or she requests the Authority, in writing, to do so; or (d) he or she dies.

303 Disciplining registered migration agents

(1) The Migration Agents Registration Authority may: (a) cancel the registration of a registered migration agent by

removing his or her name from the register; or (b) suspend his or her registration; or (c) caution him or her;

if it becomes satisfied that: (d) the agent’s application for registration was known by the

agent to be false or misleading in a material particular; or (e) the agent becomes bankrupt; or (f) the agent is not a person of integrity or is otherwise not a fit

and proper person to give immigration assistance; or



Section 304


(g) an individual related by employment to the agent is not a person of integrity; or

(h) the agent has not complied with the Code of Conduct prescribed under section 314.

Note 1: The Authority is required to caution a registered migration agent or cancel or suspend a registered migration agent’s registration in certain circumstances: see Division 3AA.

Note 2: If the Authority is considering making a decision under this section, it must invite the registered migration agent to make a submission: see sections 309 and 310.

Unpaid registration status charge

(2) The Authority may also suspend the registration of a registered migration agent if any registration status charge payable by him or her remains unpaid after the time when it becomes due for payment.

304 Period of suspension

(1) If the Migration Agents Registration Authority suspends the registration of a registered migration agent under section 303, the Migration Agents Registration Authority may:

(a) set a period of suspension of not more than 5 years; or (b) set a condition or conditions for the lifting of the suspension.

(2) If 2 or more conditions are set under paragraph (1)(b), one of them may be that at least a set period of suspension has ended.

304A Conditions for lifting cautions

The Migration Agents Registration Authority may set one or more conditions for the lifting of a caution it gives to a registered migration agent. Note: Particulars of cautions are shown on the Register: see section 287.

305 Notice of disciplinary decision

Notice to agent

(1) The Migration Agents Registration Authority must give a registered migration agent written notice of a decision made under section 303 in relation to the agent.

Part 3 Migration agents and immigration assistance Division 3 Registration of migration agents Section 305A


(2) The notice must set out the reasons for the decision.

When decision takes effect

(3) The decision takes effect at the time the agent is given written notice of it. Note: Section 332H sets out when the agent is taken to have been given the

notice.

305A Making disciplinary details publicly available

(1) If a registered migration agent is given notice of a decision under section 303, then the Migration Agents Registration Authority:

(a) must as soon as possible make available in the prescribed way a statement that sets out the decision and specifies the grounds for the decision; and

(b) may prepare a statement about the decision and make it available to one or more groups of persons, or to one or more persons, in any way the Authority thinks fit.

This subsection applies even if a stay order is made in relation to the decision.

Content of statement

(3) A statement under this section need not set out the findings on material questions of fact and need not refer to the evidence or other material on which those findings were based.

Protection from civil proceedings

(4) No action or other proceeding for damages lies against a person for publishing in good faith:

(a) a copy of; or (b) an extract from; or (c) a summary of;

a statement under this section.

305B Providing disciplinary details to clients

(1) If the Migration Agents Registration Authority makes a decision under section 303 in relation to a registered migration agent, the



Section 305C


Authority or the Secretary may inform one or more of the clients of the agent about any one or more of the following:

(a) the making of the decision; (b) whether or not the agent has applied for review of the

decision; (c) the status of any such review.


client has the meaning given by section 306C.

305C Requiring registered migration agents to give information or documents

(1) This section applies if the Migration Agents Registration Authority is considering:

(a) refusing a registration application from a registered migration agent; or

(b) making a decision under section 303 to cancel or suspend such an agent’s registration or to caution such an agent.

(2) The Authority may, by written notice given to the agent, require him or her to provide the Authority with prescribed information or prescribed documents within the specified period and in the specified manner.

(3) A period specified in a notice under this section must end at least 14 days after the notice was given. Note: Section 332H sets out when the agent is taken to have been given the

notice.

Offence

(4) A person commits an offence if: (a) the person is subject to a requirement under this section; and (b) the person contravenes the requirement.





Self-incrimination

(6) A person is not excused from giving information or providing a document on the ground that the information or provision of the document may tend to incriminate the person.

(7) However: (a) any information or document provided in response to a

requirement under subsection (2); and (b) any information or thing (including any document) obtained

as a direct or indirect result of information or a document provided in response to a requirement under subsection (2);

is not admissible in evidence against the person in any criminal proceedings (except proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).

306 Review by the Administrative Appeals Tribunal

Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority made under this Division.

306AA Stay orders

If the Administrative Appeals Tribunal or a court orders a stay of a decision under section 303 to cancel or suspend a registered migration agent’s registration, it is taken to be a condition of the order that the prescribed supervisory requirements apply in relation to the agent during the period of the order.


Disciplining registered migration agents for engaging in vexatious activity Division 3AA

Section 306AB


Division 3AA—Disciplining registered migration agents for engaging in vexatious activity

Subdivision A—Definitions

306AB Definitions

In this Division:

mandatory decision means a decision of the Migration Agents Registration Authority under paragraph 306AG(1)(a), (b) or (c) or subsection 306AGAC(1).

referral decision means a decision of the Minister under subsection 306AC(1) or 306AGAA(8).

Subdivision B—Referral of registered migration agents for disciplinary action

306AC Minister may refer registered migration agent to the Migration Agents Registration Authority

Referral

(1) The Minister may refer a registered migration agent to the Migration Agents Registration Authority if the agent has a high visa refusal rate in relation to a visa of a particular class. Note 1: If the Minister is considering doing so, the Minister must invite the

agent to make a submission on the matter and must consider any submission that is made: see section 306AE.

Note 2: If the Minister refers an agent, the Authority must consider whether to discipline the agent: see section 306AG.

Note 3: The Minister’s decision and any decision of the Authority to discipline the agent are reviewable by the Administrative Appeals Tribunal: see section 306AJ.

Part 3 Migration agents and immigration assistance Division 3AA Disciplining registered migration agents for engaging in vexatious activity Section 306AC


High visa refusal rate

(2) This is how to work out if the agent has a high visa refusal rate in relation to a visa of a particular class:

Method statement

Step 1. Work out the number of:

(a) valid applications for a visa of that class; and

(b) applications for review by a review authority of a decision to refuse to grant a visa of that class;

made during a period determined by the Minister under this Division in respect of which the agent has given immigration assistance to the applicants concerned.

Note: Subsections (3) and (4) provide for certain applications not to be counted.

Step 2. Work out if the number at step 1 is equal to or greater than the number determined by the Minister under this Division.

Step 3. If it is, work out in respect of the applications covered by step 1 the number of decisions to refuse to grant a visa that are standing at the end of all the proceedings (including any appeals) resulting from such decisions.

Step 4. The agent has a high visa refusal rate in relation to a visa of that class once the number at step 3 expressed as a percentage of the number at step 1 is equal to or greater than the percentage determined by the Minister under this Division in relation to that class of visa.

Immigration assistance at visa application stage and review stage

(3) If: (a) the agent gives immigration assistance to a person in respect

of a valid application by the person for a visa of a particular class; and



Section 306AD


(b) the agent later gives immigration assistance to the person in respect of an application (the review application) by the person for review by a review authority of a decision to refuse to grant that visa;

then the review application is not to be counted for the purposes of step 1 of the method statement.

Immigration assistance in a prescribed capacity

(4) An application of a kind covered by step 1 of the method statement is not to be counted if the agent gave the immigration assistance in a prescribed capacity.

Minister to have regard to any matter prescribed by the regulations

(5) In deciding whether or not to refer a registered migration agent to the Migration Agents Registration Authority under this section, the Minister must have regard to any matter prescribed by the regulations.

306AD Ministerial determinations

Period for making applications

(1) The Minister may, by legislative instrument, determine a period for the purposes of step 1 of the method statement in section 306AC.

Minimum number of applications

(2) The Minister may, by legislative instrument, determine a number for the purposes of step 2 of that method statement.

Refusal percentage

(3) The Minister may, by legislative instrument, determine a percentage for a specified class of visa for the purposes of step 4 of that method statement.

Part 3 Migration agents and immigration assistance Division 3AA Disciplining registered migration agents for engaging in vexatious activity Section 306AE


306AE Registered migration agent may make submissions

(1) If the Minister is considering referring a registered migration agent to the Migration Agents Registration Authority under section 306AC, the Minister must give the agent a written notice:

(a) stating that the Minister is considering making such a decision and the reasons for it; and

(b) inviting the agent to make a written submission to the Minister:

(i) on the reasons for the agent having a high visa refusal rate in relation to the class of visa concerned; and

(ia) on the disciplinary action that may be taken against the agent if the Minister decides to refer the agent; and

(ii) on any other matter the agent considers relevant; and (c) stating that any submission must be made within the period

(the objection period) of 21 days after the notice is given.

Extension

(2) Before the end of the objection period, the agent may, by notice in writing, request an extension of that period.

(3) The Minister must grant an extension of 14 days if the notice contains reasons for the request.

Minister to consider any submission

(4) The Minister must consider any written submission received within the objection period (or that period as extended).

306AF Notice of referral decision under section 306AC

Notice to Migration Agents Registration Authority

(1) The Minister must give the Migration Agents Registration Authority written notice of a decision under section 306AC to refer a registered migration agent to the Authority.

(2) The notice must be given to the Authority by one of the methods specified in section 494B. The notice must specify the grounds for the referral.



Section 306AG


(2A) The notice must be accompanied by a copy of any submission made to the Minister under subsection 306AE(1).

Notice to agent

(3) The Minister must give the registered migration agent written notice of the decision to refer him or her to the Authority.

(4) The notice must be given to the agent on the same day that notice of the referral is given to the Authority.

(5) The notice given to the agent must set out the grounds for the referral.

306AG Migration Agents Registration Authority’s decision after a referral under section 306AC

(1) If the Minister refers a registered migration agent to the Migration Agents Registration Authority under section 306AC, the Authority must:

(a) caution the agent; or (b) suspend the agent’s registration; or (c) cancel the agent’s registration; or (d) decide not to discipline the agent if the Authority is satisfied

that there are special circumstances that justify it making the decision.

Findings of fact

(2) In making its decision under subsection (1), the Authority must take the findings of fact made by the Minister in relation to the decision to refer the agent to be correct.

Matters Authority must take into account

(3) The Authority must take only the following matters into account in making its decision under subsection (1):

(a) any written submission made to the Minister under subsection 306AE(1) by the agent;

(b) the findings of fact made by the Minister in relation to the decision to refer the agent;

Part 3 Migration agents and immigration assistance Division 3AA Disciplining registered migration agents for engaging in vexatious activity Section 306AG


(c) the grounds given by the Minister for the decision to refer the agent.

Natural justice hearing rule

(4) This section, section 306AE and sections 494A to 494D are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the decision the Authority is required to make under subsection (1) of this section. Note: Section 306AE requires the Minister to give the agent an opportunity

to make a submission before the Minister refers the agent. Sections 494A to 494D relate to the giving of documents by the Minister under this Act.

Time of decision

(5) The Authority must make its decision under subsection (1) as soon as possible, but not later than 28 days, after receiving notice of the referral. Note: Section 494C sets out when the Authority is taken to have received

notice of the referral.

Notice to agent

(6) The Authority must give the agent written notice of its decision. The notice must set out the reasons for the decision.


notice.

Decision to take no disciplinary action

(8) If the Authority decides not to discipline the agent, the Authority must give the Minister written notice of its decision. The notice must set out the reasons for the decision. It must be given to the Minister on the same day that notice of the decision is given to the agent.



Section 306AGAA


306AGAA Minister may refer agent again if Migration Agents Registration Authority takes no disciplinary action

(1) If the Migration Agents Registration Authority decides not to discipline a registered migration agent under section 306AG, the Minister must decide whether or not to refer the agent to the Authority for disciplinary action under section 306AGAC.

Minister to consider Authority’s reasons

(2) In making his or her decision, the Minister must consider the reasons given by the Authority for its decision not to discipline the agent.

Minister must invite and consider submissions from agent

(3) If the Minister is considering referring the agent to the Authority for disciplinary action, the Minister must give the agent a written notice:


(b) inviting the agent to make a written submission to the Minister:

(i) in relation to the reasons given by the Authority for its decision not to discipline the agent; and

(ii) on the disciplinary action to be taken against the agent if the Minister decides to refer the agent; and

(iii) on any other matter the agent considers relevant; and (c) stating that any submission must be made within the period

(the objection period) of 14 days after the notice is given.

(4) Before the end of the objection period, the agent may, by notice in writing, request an extension of that period.



(7) The Minister must also consider any written submission made to him or her under subsection 306AE(1) in relation to his or her decision to refer the agent to the Authority under section 306AC.

Part 3 Migration agents and immigration assistance Division 3AA Disciplining registered migration agents for engaging in vexatious activity Section 306AGAB


Minister’s decision to refer agent

(8) After considering the matters mentioned in subsections (2), (6) and (7), the Minister may refer the agent to the Authority for disciplinary action. Note 1: If the Minister refers the agent, the Authority must discipline the

agent: see section 306AGAC.

Note 2: The Minister’s decision and the Authority’s decision are reviewable by the Administrative Appeals Tribunal: see section 306AJ.

306AGAB Notice of referral decision under section 306AG


(1) The Minister must give the Migration Agents Registration Authority written notice of a decision under section 306AGAA to refer a registered migration agent to the Authority for disciplinary action.


(3) The notice must be accompanied by a copy of any submission made to the Minister under subsection 306AGAA(3).

Notice to agent

(4) The Minister must give the agent written notice of the decision to refer him or her to the Authority for disciplinary action.

(5) The notice must be given to the agent on the same day that notice of the referral is given to the Authority.

(6) The notice given to the agent must set out the grounds for the referral.

306AGAC Migration Agents Registration Authority’s disciplinary decision after a referral under section 306AGAA

(1) If the Minister refers a registered migration agent to the Migration Agents Registration Authority under section 306AGAA for disciplinary action, the Authority must:



Section 306AGAC


(a) caution the agent; or (b) suspend the agent’s registration; or (c) cancel the agent’s registration.

Findings of fact

(2) In making its decision, the Authority must take the findings of fact made by the Minister in relation to the following decisions (the referral decisions) to be correct:

(a) the decision to refer the agent under section 306AC; (b) the decision to refer the agent under section 306AGAA.



(a) any written submission made to the Minister under subsection 306AE(1) or 306AGAA(3) by the agent;

(b) the findings of fact made by the Minister in relation to the referral decisions;

(c) the grounds given by the Minister for the referral decisions.


(4) This section, section 306AGAA and sections 494A to 494D are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the decision the Authority is required to make under subsection (1) of this section. Note: Section 306AGAA requires the Minister to give the agent an

opportunity to make a submission before the Minister refers the agent for disciplinary action. Sections 494A to 494D relate to the giving of documents by the Minister under this Act.

Time of decision



Part 3 Migration agents and immigration assistance Division 3AA Disciplining registered migration agents for engaging in vexatious activity Section 306AGA


Notice to agent

(6) The Authority must give the agent written notice of its decision. The notice must set out the reasons for the decision.


notice.

306AGA Cautions or suspensions

Cautions

(1) If the Migration Agents Registration Authority cautions a registered migration agent under section 306AG or 306AGAC, the Authority may set one or more conditions for the lifting of the caution. Note: Particulars of cautions are shown on the Register: see section 287.

Suspensions

(2) If the Authority suspends a registered migration agent’s registration under section 306AG or 306AGAC, the Authority may:

(a) set a period of suspension of not more than 5 years; or (b) set a condition or conditions for the lifting of the suspension.

(3) If 2 or more conditions are set under paragraph (2)(b), one of them may be that at least a set period of suspension has ended.

Subdivision D—Review

306AJ Review by the Administrative Appeals Tribunal

(1) An application may be made to the Administrative Appeals Tribunal for review of a referral decision or a mandatory decision.

Timing rules for review of a referral decision

(2) However, an application for review of a referral decision may only be made:



Section 306AK


(a) if a mandatory decision is made as a result of the referral decision; and

(b) within the period within which an application for review of the mandatory decision may be made.

(3) Accordingly, paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975 does not apply to an application for review of a referral decision.

306AK Stay orders

If the Administrative Appeals Tribunal or a court orders a stay of a decision under section 306AG or 306AGAC to cancel or suspend a registered migration agent’s registration, it is taken to be a condition of the order that the prescribed supervisory requirements apply in relation to the agent during the period of the order.

Subdivision E—Making disciplinary details available

306AL Making disciplinary details publicly available

(1) If a registered migration agent is given notice of a mandatory decision, then the Migration Agents Registration Authority:

(a) must as soon as possible make available in the prescribed way a statement that:

(i) sets out the mandatory decision; and (ii) sets out the referral decision to which the mandatory

decision relates; and (iii) specifies the grounds for the referral decision; and (b) may prepare a statement about the mandatory decision and

the referral decision and make it available to one or more groups of persons, or to one or more persons, in any way the Authority thinks fit.

This subsection applies even if a stay order is made in relation to the mandatory decision or the referral decision.



Part 3 Migration agents and immigration assistance Division 3AA Disciplining registered migration agents for engaging in vexatious activity Section 306AM






306AM Providing disciplinary details to clients

(1) If the Migration Agents Registration Authority makes a mandatory decision in relation to a registered migration agent, the Authority or the Secretary may inform one or more of the clients of the agent about any one or more of the following:

(a) the making of the mandatory decision; (b) the making of the referral decision that resulted in the making

of the mandatory decision; (c) whether or not the agent has applied for review of the referral

decision or the mandatory decision; (d) the status of any such review.


client has the meaning given by section 306C.


Documents relating to clients of inactive migration agents and deceased migration agents Division 3A

Section 306A


Division 3A—Documents relating to clients of inactive migration agents and deceased migration agents

306A Objects of this Division

The objects of this Division are: (a) to ensure that clients of inactive migration agents are not

unduly disadvantaged by the agent becoming inactive; and (b) to ensure that clients of deceased migration agents are not

unduly disadvantaged by the death of the agent; by empowering the Migration Agents Registration Authority to:

(c) obtain originals or copies of client documents from inactive migration agents or from the legal personal representatives of deceased migration agents; and

(d) give the originals or copies to the clients concerned. Note: An agent becomes inactive as a result of expiry of registration,

deregistration, cancellation of registration, suspension of registration, or incapacity (see section 306B).

306B Inactive migration agents

For the purposes of this Division: (a) if a person ceases to be a registered migration agent because

the person’s period of registration expires under section 299: (i) the person becomes an inactive migration agent at the

time of the cessation; and (ii) the person remains an inactive migration agent until the

end of the period of 2 years after the cessation or until the person again becomes a registered migration agent, whichever happens first; and

(b) if, at a person’s request, the Migration Agents Registration Authority deregisters the person under section 302:

(i) the person becomes an inactive migration agent at the time of the deregistration; and

(ii) the person remains an inactive migration agent until the end of the period of 2 years after the deregistration or until the person again becomes a registered migration agent, whichever happens first; and

Part 3 Migration agents and immigration assistance Division 3A Documents relating to clients of inactive migration agents and deceased migration agents Section 306C


(c) if the Migration Agents Registration Authority cancels a person’s registration under section 303, 306AG or 306AGAC:

(i) the person becomes an inactive migration agent at the time of the cancellation; and

(ii) the person remains an inactive migration agent for 2 years; and

(d) if the Migration Agents Registration Authority suspends a person’s registration under section 303, 306AG or 306AGAC:

(i) the person becomes an inactive migration agent at the time of the suspension; and

(ii) the person remains an inactive migration agent for the period of the suspension; and

(e) if, while a person is a registered migration agent, the person becomes physically or mentally incapable, for a continuous period of not less than 14 days, of giving immigration assistance:

(i) the person becomes an inactive migration agent at the end of that period of 14 days; and

(ii) the person remains an inactive migration agent until the person ceases to be physically or mentally incapable of giving immigration assistance.

306C Clients

For the purposes of this Division, if a registered migration agent gave, or anticipated giving, immigration assistance to another person:

(a) the other person is a client of the registered migration agent and, if the registered migration agent dies, the other person remains a client of the deceased registered migration agent; and

(b) if the registered migration agent becomes an inactive migration agent—the other person remains a client of the inactive migration agent and, if the inactive migration agent dies, the other person remains a client of the deceased inactive migration agent.



Section 306D


306D Power to obtain documents from inactive migration agent

(1) This section applies to a person who is an inactive migration agent if the Migration Agents Registration Authority has reason to believe that:

(a) before becoming an inactive migration agent and while the person was a registered migration agent, the person gave, or anticipated giving, immigration assistance to one or more clients; and

(b) the inactive migration agent has in his or her possession or control documents that:

(i) are or were connected with the giving, or anticipated giving, of that immigration assistance to those clients; and

(ii) relate to the affairs of those clients.

(2) The Migration Agents Registration Authority may, by written notice given to the inactive migration agent, require him or her:

(a) to make copies of any such documents and to produce those copies to the Authority within the specified period and in the specified manner; or

(b) to produce to the Authority, within the specified period and in the specified manner, any such documents that are owned by those clients or that were provided to the agent by, or on behalf of, those clients.

Note: An example of a document provided to a registered migration agent is a client’s passport.

(3) A notice under subsection (2) must set out the effect of sections 306G and 306H.

(4) A notice under subsection (2) need not identify any particular client or clients.

(5) A period specified in a notice under subsection (2) must end at least 14 days after the notice was given. Note: Section 332H sets out when the inactive migration agent is taken to

have been given the notice.

Part 3 Migration agents and immigration assistance Division 3A Documents relating to clients of inactive migration agents and deceased migration agents Section 306E


306E Power to obtain documents from representative of deceased inactive migration agent

(1) This section applies to the legal personal representative of a deceased person if the deceased person was an inactive migration agent at the time of death and the Migration Agents Registration Authority has reason to believe that:

(a) before becoming an inactive migration agent and while the deceased person was a registered migration agent, the deceased person gave, or anticipated giving, immigration assistance to one or more clients; and

(b) the legal personal representative has in his or her possession or control documents that:



(2) The Migration Agents Registration Authority may, by written notice given to the legal personal representative, require the legal personal representative:


(b) to produce to the Authority, within the specified period and in the specified manner, any such documents that are owned by those clients or that were provided to the registered migration agent by, or on behalf of, those clients.




(5) A period specified in a notice under subsection (2) must end at least 14 days after the notice was given. Note: Section 332H sets out when the legal personal representative is taken

to have been given the notice.



Section 306F


306F Power to obtain documents from representative of deceased registered migration agent

(1) This section applies to the legal personal representative of a deceased person if the deceased person was a registered migration agent at the time of death and the Migration Agents Registration Authority has reason to believe that:

(a) while the deceased person was a registered migration agent, the deceased person gave, or anticipated giving, immigration assistance to one or more clients; and

(b) the legal personal representative has in his or her possession or control documents that:



(2) The Migration Agents Registration Authority may, by written notice given to the legal personal representative, require the legal personal representative:


(b) to produce to the Authority, within the specified period and in the specified manner, any such documents that are owned by those clients or that were provided to the registered migration agent by, or on behalf of, those clients.




(5) A period specified in a notice under subsection (2) must end at least 14 days after the notice was given. Note: Section 332H sets out when the legal personal representative is taken

to have been given the notice.

Part 3 Migration agents and immigration assistance Division 3A Documents relating to clients of inactive migration agents and deceased migration agents Section 306G


306G Reasonable compensation

A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a notice under section 306D, 306E or 306F.

306H Failure to comply with notice

(1) A person is guilty of an offence if: (a) the person is subject to a requirement under section 306D,

306E or 306F; and (b) the person contravenes the requirement.



306J Self-incrimination

(1) An individual is not excused from producing a document under section 306D, 306E or 306F on the ground that the production of the document may tend to incriminate the individual or expose the individual to a penalty.

(2) However: (a) any document so produced; and (b) any information or thing (including any document) obtained

as a direct or indirect result of a document so produced; is not admissible in evidence against the individual in any criminal proceedings (except proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).

306K Migration Agents Registration Authority to give client documents to clients

(1) If: (a) a document is given to the Migration Agents Registration

Authority under section 306D by an inactive migration agent; and



Section 306L


(b) the document relates to the affairs of a particular client of the inactive migration agent;

then, as soon as practicable, the Migration Agents Registration Authority must:

(c) give the document to: (i) the client; or (ii) if the client has, by written notice given to the

Authority, nominated a person to receive such documents—that person; and

(d) give the client information about how to contact other registered migration agents.

(2) If: (a) a document is given to the Migration Agents Registration

Authority under section 306E or 306F by the legal personal representative of:

(i) a deceased inactive migration agent; or (ii) a deceased registered migration agent; and (b) the document relates to the affairs of a particular client of the

deceased migration agent; then, as soon as practicable, the Migration Agents Registration Authority must:

(c) give the document to: (i) the client; or (ii) if the client has, by written notice given to the

Authority, nominated a person to receive such documents—that person; and

(d) give the client information about how to contact other registered migration agents.

306L Compensation—constitutional safety-net

(1) If: (a) apart from this section, the operation of this Division would

result in the acquisition of property from a person otherwise than on just terms; and

(b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;

Part 3 Migration agents and immigration assistance Division 3A Documents relating to clients of inactive migration agents and deceased migration agents Section 306L


the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.

(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

(3) A provision of this Act (other than this Division) that provides for compensation for the acquisition of property does not apply to this Division.



just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.


Investigations and decision-making by the Migration Agents Registration Authority Division 4

Section 308


Division 4—Investigations and decision-making by the Migration Agents Registration Authority

308 Requiring registered migration agents to give information

(1) The Migration Agents Registration Authority may require a registered migration agent:

(a) to make a statutory declaration in answer to questions in writing by the Authority; or

(b) to appear before an individual or individuals specified by the Authority and to answer questions; or

(c) to provide the Authority with specified documents or records relevant to the agent’s continued registration.

(2) If a registered migration agent appears before one individual to answer questions, that individual must record the questions and answers and give the record to the Authority.

(2A) If a registered migration agent appears before 2 or more individuals to answer questions, one of them must record the questions and answers and give the record to the Authority.

(3) A registered migration agent is not excused from giving information or providing a document on the ground that the information or provision of the document may tend to incriminate the person.




is not admissible in evidence against the registered migration agent in any criminal proceedings (except proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).

Part 3 Migration agents and immigration assistance Division 4 Investigations and decision-making by the Migration Agents Registration Authority Section 309


309 Persons may make submissions

(1) If the Migration Agents Registration Authority is considering refusing a registration application, it must inform the applicant of that fact and the reasons for it and invite the applicant to make a further submission in support of his or her application.

(2) If the Migration Agents Registration Authority is considering making a decision under section 303 to cancel or suspend a registered migration agent’s registration, or to caution such an agent, it must inform the agent of that fact and the reasons for it and invite the agent to make a submission on the matter.


submission means: (a) a statutory declaration; or (b) a written argument.

310 Persons may appear before Migration Agents Registration Authority

(1) This section applies where the Migration Agents Registration Authority has invited a submission on a matter under section 309.

(2) If the Migration Agents Registration Authority does not receive a submission, it may decide the matter on the information before it.

(3) If the Migration Agents Registration Authority receives a submission, it may:

(a) decide the matter; or (b) give the person who made the submission the opportunity to

appear before it and then decide the matter.

311 Migration Agents Registration Authority not bound by legal forms etc.

The Migration Agents Registration Authority, in considering a registration application or a possible disciplinary action under section 303:

(a) is not bound by technicalities, legal forms or rules of evidence; and


Investigations and decision-making by the Migration Agents Registration Authority Division 4

Section 311


(b) must act according to substantial justice and the merits of the case.

Part 3 Migration agents and immigration assistance Division 4A Disciplining former registered migration agents Section 311A


Division 4A—Disciplining former registered migration agents

Subdivision A—Complaints about provision of immigration assistance

311A Barring former registered migration agents from being registered for up to 5 years

(1) The Migration Agents Registration Authority may decide to bar a former registered migration agent from being a registered migration agent for a period if, after investigating a complaint about him or her in relation to his or her provision of immigration assistance while he or she was a registered migration agent, it is satisfied that the subject matter of the complaint is made out. Note: Before making such a decision, the Authority must invite the former

registered migration agent to make a submission: see section 311D.

(2) The period must not be more than 5 years starting on the day of the Authority’s decision.

311B Notice of disciplinary decision

Notice to former agent

(1) The Migration Agents Registration Authority must give a former registered migration agent written notice of a decision made under section 311A in relation to the former agent.

(2) The notice must set out the reasons for the decision and the period that the former agent is barred from being a registered migration agent.

When decision takes effect

(3) The decision takes effect at the time the former agent is given written notice of it. Note: Section 332H sets out when the former agent is taken to have been

given the notice.


Disciplining former registered migration agents Division 4A

Section 311C


311C Making disciplinary details publicly available

(1) If a former registered migration agent is given notice of a decision under section 311A, then the Migration Agents Registration Authority:

(a) must as soon as possible make available in the prescribed way a statement that sets out the decision and specifies the grounds for the decision; and

(b) may prepare a statement about the decision and make it available to one or more groups of persons, or to one or more persons, in any way the Authority thinks fit.

This subsection applies even if a stay order is made in relation to the decision.







311D Former registered migration agent may make a submission etc.

Invitation to make submission

(1) Before making a decision under subsection 311A(1), the Migration Agents Registration Authority must give the former registered migration agent a written notice:

(a) stating that the Authority proposes to make such a decision and the reasons for it; and

Part 3 Migration agents and immigration assistance Division 4A Disciplining former registered migration agents Section 311E


(b) inviting him or her to make a written submission to the Authority on the matter within 28 days after the notice is given.

Note: Section 332H sets out when the former agent is taken to have been given the notice.

Authority to consider any submission

(2) The Authority must consider any written submission received within that period.

No submission received

(3) If the Authority does not receive a written submission, it may decide the matter on the information before it.

Submission received

(4) If the Authority receives a written submission, it may: (a) decide the matter; or (b) give the former registered migration agent the opportunity to

appear before it and then decide the matter.

311E Authority not bound by legal forms etc.

In considering making a decision under subsection 311A(1), the Migration Agents Registration Authority:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case.

311EA Requiring former registered migration agents to give information or documents

(1) This section applies if the Migration Agents Registration Authority is considering making a decision under section 311A to bar a former registered migration agent from being a registered migration agent for a period.

(2) The Authority may, by written notice given to the former agent, require him or her to provide the Authority with prescribed



Section 311F


information or prescribed documents within the specified period and in the specified manner.

(3) A period specified in a notice under this section must end at least 14 days after the notice was given. Note: Section 332H sets out when the former agent is taken to have been

given the notice.

Offence

(4) A person commits an offence if: (a) the person is subject to a requirement under this section; and (b) the person contravenes the requirement.



Self-incrimination

(6) A person is not excused from giving information or providing a document on the ground that the information or provision of the document may tend to incriminate the person.




is not admissible in evidence against the person in any criminal proceedings (except proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).

311F Review by the Administrative Appeals Tribunal

Subject to the Administrative Appeals Tribunal Act 1975, an application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority under subsection 311A(1).

Part 3 Migration agents and immigration assistance Division 4A Disciplining former registered migration agents Section 311G


Subdivision B—Engaging in vexatious activity

311G Definitions


mandatory decision means a decision of the Migration Agents Registration Authority under section 311L.

referral decision means a decision of the Minister under section 311H.

311H Minister may refer former registered migration agent for disciplinary action

(1) The Minister may refer a former registered migration agent to the Migration Agents Registration Authority for disciplinary action if, in relation to his or her provision of immigration assistance while he or she was a registered migration agent, he or she had a high visa refusal rate in relation to a visa of a particular class. Note 1: If the Minister is considering doing so, the Minister must invite the

former agent to make a submission on the matter and must consider any submission that is made: see section 311J.

Note 2: If the Minister does refer a former agent, the Authority must discipline the former agent: see section 311L.

Note 3: The Minister’s decision and the Authority’s decision are reviewable by the Administrative Appeals Tribunal: see section 311M.

(2) In deciding whether or not to refer a former registered migration agent to the Migration Agents Registration Authority for disciplinary action, the Minister must have regard to any matter prescribed by the regulations.

311J Former registered migration agent may make submissions

(1) If the Minister is considering referring a former registered migration agent to the Migration Agents Registration Authority for disciplinary action, the Minister must give the former agent a written notice:


(b) inviting the former agent to make a written submission to the Minister:



Section 311K


(i) on the reasons for the former agent having a high visa refusal rate in relation to the class of visa concerned; and

(ia) on the period the former agent is to be barred from being a registered migration agent if the Minister decides to refer the former agent; and

(ii) on any other matter the former agent considers relevant; and

(c) stating that any submission must be made within the period (the objection period) of 21 days after the notice is given.

Extension

(2) Before the end of the objection period, the former agent may, by notice in writing, request an extension of that period.


Minister to consider any submission


311K Notice of referral decision


(1) The Minister must give the Migration Agents Registration Authority written notice of a decision to refer a former registered migration agent to the Authority for disciplinary action.


(2A) The notice must be accompanied by a copy of any submission made to the Minister under subsection 311J(1).

Notice to former agent

(3) The Minister must give the former registered migration agent written notice of the decision to refer him or her to the Authority for disciplinary action.

Part 3 Migration agents and immigration assistance Division 4A Disciplining former registered migration agents Section 311L


(4) The notice must be given to the former agent on the same day that notice of the referral is given to the Authority.

(5) The notice given to the former agent must set out the grounds for the referral.

311L Taking of disciplinary action

(1) If the Minister refers a former registered migration agent to the Migration Agents Registration Authority for disciplinary action, the Authority must bar him or her from being a registered migration agent for a period of not more than 5 years starting on the day that the Authority’s decision takes effect.

Findings of fact

(2) In making its decision, the Authority must take the findings of fact made by the Minister in relation to the referral decision to be correct.



(a) any written submission made to the Minister under subsection 311J(1) by the former agent;

(b) the findings of fact made by the Minister in relation to the referral decision;

(c) the grounds given by the Minister for the referral decision.


(4) This section, section 311J and sections 494A to 494D are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the decision the Authority is required to make under subsection (1) of this section. Note: Section 311J requires the Minister to give the former agent an

opportunity to make a submission before the Minister refers the former agent for disciplinary action. Sections 494A to 494D relate to the giving of documents by the Minister under this Act.



Section 311M


Time of decision



Notice to agent

(6) The Authority must give the former agent written notice of its decision. The notice must set out the reasons for the decision.

(7) The decision takes effect at the time the former agent is given written notice of it. Note: Section 332H sets out when the former agent is taken to have been

given the notice.

311M Review by the Administrative Appeals Tribunal

An application may be made to the Administrative Appeals Tribunal for review of a referral decision or a mandatory decision.

311P Making disciplinary details publicly available

(1) If a former registered migration agent is given notice of a mandatory decision, then the Migration Agents Registration Authority:

(a) must as soon as possible make available in the prescribed way a statement that:

(i) sets out the mandatory decision; and (ii) sets out the referral decision to which the mandatory

decision relates; and (iii) specifies the grounds for the referral decision; and (b) may prepare a statement about the mandatory decision and

the referral decision and make it available to one or more groups of persons, or to one or more persons, in any way the Authority thinks fit.

This subsection applies even if a stay order is made in relation to the mandatory decision or the referral decision.

Part 3 Migration agents and immigration assistance Division 4A Disciplining former registered migration agents Section 311P









Obligations of registered migration agents Division 5

Section 312


Division 5—Obligations of registered migration agents

312 Notification obligations

(1) A registered migration agent must notify the Migration Agents Registration Authority in writing within 14 days after any of the following events occurs:

(a) he or she becomes bankrupt; (b) he or she applies to take the benefit of any law for the relief

of bankrupt or insolvent debtors; (c) he or she compounds with his or her creditors; (d) he or she makes an assignment of remuneration for the

benefit of his or her creditors; (e) he or she is convicted of an offence under a law of the

Commonwealth or of a State or Territory; (ea) if he or she paid, in relation to his or her current period of

registration, the charge payable under regulation 5 of the Migration Agents Registration Application Charge Regulations 1998—he or she begins to give immigration assistance:

(i) on a commercial, or for-profit, basis; or (ii) as a member of, or a person associated with, an

organisation that operates on a commercial, or for-profit, basis;

(f) he or she becomes an employee, or becomes the employee of a new employer, and will give immigration assistance in that capacity;

(fa) he or she becomes a member of a partnership and will give immigration assistance in that capacity;

(g) if he or she is a member or an employee of a partnership and gives immigration assistance in that capacity—a member of the partnership becomes bankrupt;

(h) if he or she is an executive officer or an employee of a corporation and gives immigration assistance in that capacity:

(i) a receiver of its property or part of its property is appointed; or

(iii) it begins to be wound up.

Part 3 Migration agents and immigration assistance Division 5 Obligations of registered migration agents Section 312A




(3) The day on which the event mentioned in paragraph (1)(ea) occurs is to be worked out in accordance with the Migration Agents Registration Application Charge Regulations 1998.

312A Notification of giving of immigration assistance to visa applicants

(1) If: (a) a registered migration agent gives immigration assistance to a

visa applicant in relation to the visa application; and (b) the agent gives the assistance after having agreed to represent

the applicant; the agent must notify the Department in accordance with the regulations and within the period worked out in accordance with the regulations.



312B Notification of giving of immigration assistance to review applicants

(1) If: (a) a registered migration agent gives immigration assistance to a

person in respect of a review application made by the person; and

(b) the agent gives the assistance after having agreed to represent the person;

the agent must notify the review authority concerned in accordance with the regulations and within the period worked out in accordance with the regulations.



Obligations of registered migration agents Division 5

Section 313




review application means an application for review by a review authority of a decision to refuse to grant a person a visa.

313 Persons charged for services to be given detailed statement of services

(1) A registered migration agent is not entitled to be paid a fee or other reward for giving immigration assistance to another person (the assisted person) unless the agent gives the assisted person a statement of services.

(2) A statement of services must set out: (a) particulars of each service performed; and (b) the charge made in respect of each such service.

(3) An assisted person may recover the amount of a payment as a debt due to him or her if he or she:

(a) made the payment to a registered migration agent for giving immigration assistance; and

(b) did not receive a statement of services before making the payment; and

(c) does not receive a statement of services within the period worked out in accordance with the regulations.

(4) This section does not apply to the giving of immigration legal assistance by a lawyer.

314 Code of Conduct for migration agents

(1) The regulations may prescribe a Code of Conduct for migration agents.

(2) A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct.

Part 3 Migration agents and immigration assistance Division 6 Migration Agents Registration Authority Section 315


Division 6—Migration Agents Registration Authority

315 Appointing the Migration Institute of Australia Limited as the Migration Agents Registration Authority

(1) The Minister may make a written instrument appointing the Institute for the purposes of the definition of Migration Agents Registration Authority in section 275. Note: The Minister may also revoke the appointment. See subsection 33(3)

of the Acts Interpretation Act 1901.

(2) An appointment or revocation of an appointment does not affect an earlier exercise of a power, or performance of a function, of the Migration Agents Registration Authority. Anything done by, or in relation to, the person who was the Authority before the appointment or revocation, is taken to have been done by, or in relation to, the person who is the Authority afterwards.

316 Functions of Migration Agents Registration Authority

(1) The functions of the Migration Agents Registration Authority are: (a) to deal with registration applications in accordance with this

Part; and (b) to monitor the conduct of registered migration agents in their

provision of immigration assistance and of lawyers in their provision of immigration legal assistance; and

(c) to investigate complaints in relation to the provision of immigration assistance by registered migration agents; and

(d) to take appropriate disciplinary action against registered migration agents or former registered migration agents; and

(e) to investigate complaints about lawyers in relation to their provision of immigration legal assistance, for the purpose of referring appropriate cases to professional associations for possible disciplinary action; and

(f) to inform the appropriate prosecuting authorities about apparent offences against this Part or Part 4; and

(g) to monitor the adequacy of any Code of Conduct; and (h) such other functions as are conferred on the Authority by this

Part.

Migration agents and immigration assistance Part 3 Migration Agents Registration Authority Division 6

Section 317


(1A) In performing its function under paragraph (1)(c), the Authority may start, or complete, an investigation of a complaint about a person at a time when he or she is no longer a registered migration agent.

(1B) However, the Authority can investigate a complaint about a former registered migration agent only if the complaint is received within 12 months after he or she ceased to be a registered migration agent.

(2) So long as the Institute is appointed under section 315, the Migration Agents Registration Authority also has the function of advising the Minister on the adequacy of any Code of Conduct.

317 General powers of the Migration Agents Registration Authority

The Migration Agents Registration Authority has power to do all things necessarily or conveniently done for, or in connection with, the performance of its functions.

318 Power to refer people to mediation

If the Migration Agents Registration Authority is investigating a complaint about a person who is or was a registered migration agent, the Authority may refer the complainant and the person to a mediator to resolve the matter complained of.

319 Power to refer lawyers’ conduct to other authorities

(1) The Migration Agents Registration Authority may refer to an authority responsible for disciplining lawyers the conduct of a registered migration agent, or a former registered migration agent, who holds a practising certificate (however described) entitling him or her to practise as a lawyer.

Conduct of registered migration agents

(2) If the Migration Agents Registration Authority refers the conduct of a registered migration agent, it may not take action against the agent under section 303 on the basis of that conduct. Note: Section 303 allows the Migration Agents Registration Authority to

caution a registered migration agent or suspend or cancel a registered migration agent’s registration.

Part 3 Migration agents and immigration assistance Division 6 Migration Agents Registration Authority Section 319A


Conduct of former registered migration agents

(3) If the Migration Agents Registration Authority refers the conduct of a former registered migration agent, it may not take action against him or her under subsection 311A(1) on the basis of that conduct. Note: Subsection 311A(1) allows the Authority to bar a former registered

migration agent from being a registered migration agent for a period of not more than 5 years starting on the day of its decision.

319A Institute may delegate powers and functions

(1) While the Institute is appointed under section 315, the Institute may, by writing, delegate any or all of the Migration Agents Registration Authority’s functions or powers under this Part to:

(a) a committee of the Institute; or (b) an officer of the Institute; or (c) an employee of the Institute.

Directions

(2) In performing a delegated function or exercising a delegated power, a delegate must comply with any written directions given by the Institute.

How committee to perform function or exercise power

(3) A function or power so delegated to a committee may be performed or exercised by a majority of the members of the committee and may not otherwise be performed or exercised under the delegation.

320 Minister may delegate powers and functions

(1) The Minister may delegate any of the Migration Agents Registration Authority’s powers or functions under this Part to a person in the Department who is appointed or engaged under the Public Service Act 1999, for any period when the Institute is not appointed under section 315.

(2) A delegation must be in writing signed by the Minister.

Migration agents and immigration assistance Part 3 Migration Agents Registration Authority Division 6

Section 321


(3) If the Minister delegates a power or function of the Migration Agents Registration Authority, the Minister may disclose to the delegate personal information (as defined in the Privacy Act 1988) to help the delegate exercise the power or perform the function.

321 Disclosure of personal information to the Migration Agents Registration Authority

Overview

(1) This section authorises certain disclosures of personal information (as defined by the Privacy Act 1988) for the purpose of facilitating or expediting the exercise of the powers, or performance of the functions, of the Migration Agents Registration Authority.

Disclosure by the Department to the Authority

(2) The Department may make a disclosure to the Migration Agents Registration Authority.

Disclosure by the Minister

(3) If the Minister appoints the Institute under section 315, the Minister may make a disclosure to the Institute or an officer or employee of the Institute. Note: Section 315 lets the Minister appoint the Institute for the purposes of

the definition of Migration Agents Registration Authority in section 275.

Preliminary disclosure to the Institute

(4) The Department or the Minister may make a disclosure to the Institute or an officer or employee of the Institute at a time when the Minister has made an instrument appointing the Institute under section 315 but the instrument has not taken effect.

Section not limited to information obtained after commencement

(5) The Department or the Minister may disclose information whether it was obtained before or after the commencement of this section.

Part 3 Migration agents and immigration assistance Division 6 Migration Agents Registration Authority Section 321A


321A Disclosure of personal information by the Migration Agents Registration Authority

(1) The Migration Agents Registration Authority may disclose personal information about a registered migration agent, or an inactive migration agent, to any of the following (the recipient):

(a) the Secretary or an authorised officer; (b) a review authority.

(2) However, the Authority may do so only in the prescribed circumstances.

(3) The regulations may prescribe circumstances in which the recipient may use or disclose personal information disclosed under subsection (1).


inactive migration agent has the meaning given by section 306B.


322 Annual report

(1) If an appointment of the Institute under section 315 is in force at the end of a financial year, the Institute must give a report on the administration of this Part during the financial year to the Minister for presentation to the Parliament. Note: Section 34C of the Acts Interpretation Act 1901 explains when the

Institute must give the report to the Minister, and when the Minister must cause the report to be tabled in each House of the Parliament.

(2) If an appointment of the Institute under section 315 is not in force at the end of the financial year, the Minister must cause to be tabled in each House of the Parliament a report on the administration of this Part during the financial year, before the end of the 15th sitting day of that House after the 31 December immediately following the financial year.


Registration application fees and registration status charges Division 6A

Section 332A


Division 6A—Registration application fees and registration status charges

332A Collection of registration status charge

When charge due and payable

(1) Registration status charge is due and payable at the time worked out in accordance with a determination made, by legislative instrument, by the Migration Agents Registration Authority.

Recovery of charge

(3) Registration status charge that has become due for payment may be recovered by the Migration Agents Registration Authority, on behalf of the Commonwealth, as a debt due to the Commonwealth.

332B Payments to Migration Institute of Australia Limited

(1) There is payable to the Institute out of the Consolidated Revenue Fund an amount equal to the sum of registration application fees collected while an instrument under section 315 appointing the Institute is in force.

(1A) There is payable to the Institute out of the Consolidated Revenue Fund an amount equal to the sum of registration status charges collected (including amounts recovered under section 332A) while an instrument under section 315 appointing the Institute is in force.

(2) The Consolidated Revenue Fund is appropriated for the purposes of this section.

Part 3 Migration agents and immigration assistance Division 7 Other things Section 332C


Division 7—Other things

332C Removing disciplinary details—registered migration agents

(1) The Migration Agents Registration Authority must remove any of the following details that are made available by electronic means under this Part:

(a) any statement relating to the cancellation or suspension of a registered migration agent’s registration;

(b) any statement about the cautioning of such an agent.

Time for removal

(2) The Authority must remove the details within the period worked out in accordance with the regulations.

(3) The regulations may prescribe different periods in relation to details about cancellations, suspensions or cautions.

332D Removing disciplinary details—former registered migration agents

(1) The Migration Agents Registration Authority must remove any statement that is made available by electronic means under section 311C or 311P.

(2) The Authority must remove the statement within the period worked out in accordance with the regulations.

332E Protection from civil proceedings

Complaints about registered migration agents

(1) No action or other proceeding for damages lies against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:

(a) the making of a complaint to the Migration Agents Registration Authority in relation to the provision of immigration assistance by a registered migration agent;


Other things Division 7

Section 332E


(b) the making of a statement to, or the giving of a document or information to, the Authority in connection with the investigation of such a complaint.

Complaints about persons who are not registered migration agents

(2) No action or other proceeding for damages lies against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:

(a) the making of a complaint to the Department in relation to the provision of immigration assistance by a person who is not a registered migration agent;

(b) the making of a statement to, or the giving of a document or information to, the Department in connection with the investigation of such a complaint;

(c) the investigation of such a complaint.

Institute etc.

(3) The Institute, or an officer or employee of the Institute, is not liable to an action or other proceeding for damages for or in relation to any of the following acts done in good faith:

(a) the performance or purported performance of any function conferred on the Migration Agents Registration Authority under this Part;

(b) the exercise or purported exercise of any power conferred on the Authority under this Part.

Commonwealth etc.

(4) None of the following: (a) the Commonwealth; (b) the Minister; (c) an officer; (d) any other person;

is liable to an action or other proceeding for damages for or in relation to any of the following acts done in good faith:

(e) the performance or purported performance of any function conferred on the Minister under this Part;

(f) the exercise or purported exercise of any power conferred on the Minister under this Part.

Part 3 Migration agents and immigration assistance Division 7 Other things Section 332F


332F Disclosure of personal information by the Secretary

(1) The Secretary may disclose personal information about a registered migration agent, or an inactive migration agent, to a review authority.

(2) However, the Secretary may do so only in the prescribed circumstances.

(3) The regulations may prescribe circumstances in which the review authority may use or disclose personal information disclosed under subsection (1).




332G Disclosure of personal information by a review authority

Discretionary disclosure

(1) A review authority may disclose personal information about a registered migration agent, or an inactive migration agent, to the Secretary or an authorised officer.

(2) However, a review authority may do so only in the prescribed circumstances.

(3) The regulations may prescribe circumstances in which the Secretary or authorised officer may use or disclose personal information disclosed under subsection (1).

Mandatory disclosure

(4) If a registered migration agent notifies a review authority that the agent has given immigration assistance to a person in respect of a review application made by the person, the review authority must notify the Department, in accordance with the regulations, that the agent has given immigration assistance to the person in respect of the review application.


Other things Division 7

Section 332H


Definitions




review application means an application for review by a review authority of a decision to refuse to grant a person a visa.

332H Giving of notices under this Part

(1) If a provision of this Part requires or permits the Migration Agents Registration Authority to give a notice to a person (the recipient):

(a) the Authority must give the notice to the recipient by 1 of the 4 methods set out in the following table; and

(b) the time at which the recipient is taken to have been given the notice is the time set out in the table.

Giving of notices under this Part Item Methods of giving notices Timing rule 1 Handing the notice to the recipient When it is handed to the recipient 2 Handing the notice to another person

who: (a) is at the last residential or business

address provided to the Authority by the recipient for the purposes of receiving notices; and

(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and

(c) appears to be at least 16 years of age

When it is handed to the other person

Part 3 Migration agents and immigration assistance Division 7 Other things Section 332H


Giving of notices under this Part Item Methods of giving notices Timing rule 3 Dating the notice, and then

dispatching it: (a) within 3 working days (in the

place of dispatch) of the date of the notice; and

(b) by prepaid post or by other prepaid means; and

(c) to: (i) the last address for service

provided to the Authority by the recipient for the purposes of receiving notices; or

(ii) the last residential or business address provided to the Authority by the recipient for the purposes of receiving notices

(a) if the notice was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the notice; or

(b) in any other case—21 days after the date of the notice

4 Transmitting the notice by: (a) fax; or (b) e-mail; or (c) other electronic means; to the last fax number, e-mail address or other electronic address, as the case may be, provided to the Authority by the recipient for the purposes of receiving notices

At the end of the day on which the notice is transmitted

(2) This section has effect despite any provision in the Electronic Transactions Act 1999.

Offences relating to decisions under Act Part 4

Section 334


Part 4—Offences relating to decisions under Act

334 Offences in relation to false or misleading statements regarding the making of decisions

(1) A person is guilty of an offence if: (a) the person makes a statement; and (b) the statement is about: (i) the person’s ability or power; or (ii) another person’s ability or power; to induce or influence the making of decisions, or of a

particular decision, under this Act; and (c) the statement is false or misleading.

(2) A person is guilty of an offence if: (a) the person makes a statement; and (b) the statement is about the effect of: (i) the person’s actions; or (ii) another person’s actions; on the making of a decision under this Act; and (c) the statement is false or misleading.


335 Offence of undertaking, for reward, to cause decisions to be made etc.

A person must not enter an arrangement under which he or she undertakes, in return for a payment or other reward, that a decision under this Act to a particular effect will be made.


Part 4 Offences relating to decisions under Act Section 336


336 Court may order reparation for loss suffered

(1) Where: (a) a person is convicted by a court of an offence against this

Part; 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.

(2) Where: (a) a court makes an order for the making of reparation by

payment of an amount of money; and (b) the clerk, or other appropriate officer, of the court signs a

certificate specifying: (i) the amount ordered to be paid; and (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 may 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 313.

(4) If an amount paid by a person could be recovered by the person under section 313, 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 person, the court must 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 is or includes reparation for the amount paid, the amount is not recoverable under section 313.

Obligations relating to identifying information Part 4A


Section 336A


Part 4A—Obligations relating to identifying information

Division 1—Preliminary

336A Definitions

In this Part:

data base means a discrete body of information stored by electronic means, containing:

(a) indexes of persons who have provided personal identifiers in accordance with a requirement under this Act; and

(b) their identifying information.

destroy, in relation to identifying information, has the meaning given by subsection 336K(4).

disclose, in relation to identifying information that is a personal identifier provided under section 40, 46, 166, 170, 175, 188, 192 or 261AA, includes provide unauthorised access to the personal identifier. Note: Section 336D deals with authorised access to identifying information.

identifying information means the following: (a) any personal identifier provided under section 40, 46, 166,

170, 175, 188, 192 or 261AA; (b) any meaningful identifier derived from any such personal

identifier; (c) any record of a result of analysing any such personal

identifier or any meaningful identifier derived from any such personal identifier;

(d) any other information, derived from any such personal identifier, from any meaningful identifier derived from any such personal identifier or from any record of a kind referred to in paragraph (c), that could be used to discover a particular person’s identity or to get information about a particular person.

Part 4A Obligations relating to identifying information Division 1 Preliminary Section 336B


permitted disclosure has the meaning given by subsections 336E(2) and (3).

unauthorised impairment has the meaning given by section 336J.

unauthorised modification has the meaning given by section 336J.

336B Application

Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to all offences against this Part.


Accessing identifying information Division 2

Section 336C


Division 2—Accessing identifying information

336C Accessing identifying information

(1) A person commits an offence if: (a) the person accesses identifying information; and (b) the person is not authorised under section 336D to access the

identifying information for the purpose for which the person accessed it.


(1A) This section does not apply if the person believes on reasonable grounds that the access is necessary to prevent or lessen a serious and imminent threat to the life or health of the person or of any other person. Note: A defendant bears an evidential burden in relation to the matter in


(2) This section does not apply if the access is through a disclosure that is a permitted disclosure. Note: A defendant bears an evidential burden in relation to the matter in


336D Authorising access to identifying information

(1) The Secretary may, in writing, authorise a specified person, or any person included in a specified class of persons, to access identifying information of the kind specified in the authorisation.

(2) The Secretary must specify in an authorisation under this section, as the purpose or purposes for which access is authorised, one or more of the following purposes:

(a) one or more of the purposes set out in subsection 5A(3); (b) disclosing identifying information in accordance with this

Part; (c) administering or managing the storage of identifying

information; (d) making identifying information available to the person to

whom it relates;

Part 4A Obligations relating to identifying information Division 2 Accessing identifying information Section 336D


(e) modifying identifying information to enable it to be matched with other identifying information;

(f) modifying identifying information in order to correct errors or ensure compliance with appropriate standards;

(g) the purposes of this Act or the regulations or of the Australian Citizenship Act 2007 or the regulations made under that Act;

(h) complying with laws of the Commonwealth or the States or Territories.

(3) However, the Secretary must not specify as a purpose for which access is authorised a purpose that will include or involve the purpose of:

(a) investigating an offence against a law of the Commonwealth or a State or Territory; or

(b) prosecuting a person for such an offence; if the identifying information in question relates to a personal identifier of a prescribed type.


Disclosing identifying information Division 3

Section 336E


Division 3—Disclosing identifying information

336E Disclosing identifying information

(1) A person commits an offence if: (a) the person’s conduct causes disclosure of identifying

information; and (b) the disclosure is not a permitted disclosure.


(1A) This section does not apply if the person believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the person or of any other person. Note: A defendant bears an evidential burden in relation to the matter in


(2) A permitted disclosure is a disclosure that: (a) is for the purpose of data-matching in order to: (i) identify, or authenticate the identity of, a person; or (ii) facilitate the processing of persons entering or departing

from Australia; or (iii) identify non-citizens who have a criminal history, who

are of character concern or who are of national security concern; or

(iv) combat document and identity fraud in immigration matters; or

(v) ascertain whether an applicant for a protection visa had sufficient opportunity to avail himself or herself of protection before arriving in Australia; or

(vi) inform the governments of foreign countries of the identity of non-citizens who are, or are to be, removed or deported from Australia; or

(b) is for the purpose of administering or managing the storage of identifying information; or

(c) is authorised under section 336F and is for the purpose, or one or more of the purposes, for which the disclosure is authorised; or

Part 4A Obligations relating to identifying information Division 3 Disclosing identifying information Section 336E


(d) is for the purpose of making the identifying information in question available to the person to whom it relates; or

(da) is to an agency of the Commonwealth or of a State or Territory in order to verify that a person is an Australian citizen or holds a visa of a particular class; or

(e) takes place under an arrangement entered into with an agency of the Commonwealth, or with a State or Territory or an agency of a State or Territory, for the exchange of identifying information; or

(ea) is reasonably necessary for the enforcement of the criminal law of the Commonwealth or of a State or Territory; or

(eb) is required by or under a law of the Commonwealth or of a State or Territory; or

(f) is for the purpose of a proceeding, before a court or tribunal, relating to the person to whom the identifying information in question relates; or

(g) is for the purpose of an investigation by the Privacy Commissioner or the Ombudsman relating to action taken by the Department; or

(ga) is for the purpose of facilitating or expediting the exercise of powers, or performance of functions, of the Migration Agents Registration Authority; or

(h) is made to a prescribed body or agency for the purpose of the body or agency inquiring into the operation of provisions of this Act relating to:

(i) carrying out an identification test; or (ii) requiring the provision of a personal identifier; or (ha) is a disclosure of an audio or a video recording for the

purposes of: (i) this Act or the regulations or the Australian Citizenship

Act 2007 or the regulations made under that Act; and (ii) transcribing or translating the recording, or conducting

language analysis or accent analysis of the recording; or (i) takes place with the written consent of the person to whom

the identifying information in question relates; or (j) is authorised by section 336FA; or (k) is authorised by section 336FC.



Section 336F


(3) However, a disclosure is not a permitted disclosure if: (a) it is a disclosure of identifying information relating to a

personal identifier of a prescribed type; and (b) it is for the purpose of: (i) investigating an offence against a law of the

Commonwealth or a State or Territory; or (ii) prosecuting a person for such an offence.

336F Authorising disclosure of identifying information to foreign countries etc.

(1) The Secretary may, in writing, authorise a specified officer, or any officer included in a specified class of officers, to disclose identifying information of the kind specified in the authorisation to one or more of the following:

(a) one or more specified foreign countries; (b) one or more specified bodies each of which is: (i) a police force or police service of a foreign country; or (ii) a law enforcement body of a foreign country (including

a war crimes tribunal); or (iii) a border control body of a foreign country; (c) one or more specified international organisations, or

specified organisations of foreign countries, that are responsible for the registration of people as part of refugee or humanitarian programs;

(d) one or more prescribed bodies of a foreign country, of the Commonwealth or of a State or Territory;

(e) one or more prescribed international organisations.

(2) The Secretary must specify in the authorisation, as the purpose or purposes for which disclosure is authorised, one or more of the purposes set out in subsection 5A(3).

(3) A disclosure is taken not to be authorised under this section if: (a) the person to whom the identifying information relates is: (i) an applicant for a protection visa; or (ii) an offshore entry person who makes a claim for

protection under the Refugees Convention as amended by the Refugees Protocol; and

Part 4A Obligations relating to identifying information Division 3 Disclosing identifying information Section 336F


(b) the disclosure is to a foreign country in respect of which the application or claim is made, or a body of such a country.

(4) A disclosure is taken not to be authorised under this section if: (a) the person to whom the identifying information relates is: (i) an applicant for a protection visa; or (ii) an offshore entry person who makes a claim for

protection under the Refugees Convention as amended by the Refugees Protocol; and

(b) the officer making the disclosure is not reasonably satisfied that the country or body to which the disclosure is made will not disclose the identifying information to a foreign country in respect of which the application or claim is made, or a body of such a country.

(5) However, if: (a) the person to whom the identifying information relates has

requested or agreed to return to the foreign country in respect of which the application or claim is made; or

(b) the person is an applicant for a protection visa, and the application has been refused and finally determined; or

(c) the person is an offshore entry person: (i) who makes a claim for protection under the Refugees

Convention as amended by the Refugees Protocol; and (ii) who, following assessment of his or her claim, is found

not to be a person to whom Australia owes obligations under the Refugees Convention as amended by the Refugees Protocol;

then: (d) subsection (3) does not apply to a disclosure to that country

or to a body of that country; and (e) subsection (4) does not apply to a disclosure to a body or

country that may disclose the identifying information to that foreign country or to a body of that country.

Note: See subsection 5(9) for when an application is finally determined.



Section 336FA


336FA Disclosure of certain personal identifiers to selected individuals

(1) For the purposes of paragraph 336E(2)(j), this section authorises the disclosure, by an officer, of identifying information that relates to a person (the subject) if:

(a) the information disclosed is a personal identifier within the meaning of paragraph (b), (c), (d) or (f) of the definition of personal identifier in subsection 5A(1); and

(b) the disclosure is made to an individual; and (c) the disclosure is for the purpose of obtaining the individual’s

help to do one or more of the following in connection with the administration of this Act:

(i) identify, authenticate the identity of, or locate, the subject;

(ii) refer the officer to another person who might be able to help identify, authenticate the identity of, or locate, the subject; and

(d) the officer has reasonable grounds to believe that the individual might be able to provide the help that is the purpose of the officer’s disclosure; and

(e) the officer is satisfied that it is reasonably necessary to make the disclosure to the individual in order to obtain that help.

Note: The personal identifiers covered by this section are measurements of a person’s height and weight, photographs or other images of a person’s face and shoulders, audio or video recordings of a person (other than video recordings under section 261AJ) and signatures.

(2) Nothing in subsection (1) prevents an officer from disclosing the personal identifier to more than one individual at the same time, as long as the requirements of subsection (1) are met in relation to each one of those individuals.

336FB Disclosure of other relevant information to selected individuals

(1) An officer may disclose, to an individual, personal information (within the meaning of the Privacy Act 1988) about a person (the subject) if:

Part 4A Obligations relating to identifying information Division 3 Disclosing identifying information Section 336FC


(a) the officer is disclosing, to the individual, a personal identifier of the subject and the disclosure is authorised by section 336FA; and

(b) the personal information is disclosed together with the personal identifier; and

(c) paragraphs 336FA(1)(b), (c), (d) and (e) are met in relation to the personal information as well as the personal identifier.

(2) This section does not apply to personal information that is identifying information.

(3) Nothing in subsection (1) prevents an officer from disclosing the personal information to more than one individual at the same time, as long as the requirements of paragraphs 336FA(1)(b), (c), (d) and (e) are met in relation to each one of those individuals.

336FC Disclosure of certain personal identifiers to the general public

(1) For the purposes of paragraph 336E(2)(k), this section authorises the disclosure of identifying information that relates to a person (the subject) who is not a minor, if:

(a) the information disclosed is a personal identifier within the meaning of paragraph (b), (c), (d) or (f) of the definition of personal identifier in subsection 5A(1); and

(b) the disclosure is for the purpose of obtaining the public’s help to identify, authenticate the identity of, or locate, the subject, in connection with the administration of this Act; and

(c) the Secretary has authorised, in writing, disclosure of the personal identifier.

Note: The personal identifiers covered by this section are measurements of a person’s height and weight, photographs or other images of a person’s face and shoulders, audio or video recordings of a person (other than video recordings under section 261AJ) and signatures.

(2) The Secretary must not authorise disclosure of the personal identifier unless:

(a) the Secretary is satisfied that other reasonable steps have been taken to identify, authenticate the identity of, or locate, the subject; and

(b) either:



Section 336FD


(i) the Secretary is satisfied that the subject has been informed of the proposed disclosure (including the personal identifier that is to be disclosed and the manner in which the disclosure is to be made) and the Secretary has either considered the subject’s views in relation to the proposed disclosure or been satisfied that the subject has no views in relation to it; or

(ii) the Secretary is satisfied that the subject cannot be found; and

(c) the Secretary has considered the sensitivity of the personal identifier that is to be disclosed; and

(d) the Secretary is satisfied that it is reasonably necessary to authorise disclosure in order to identify, authenticate the identity of, or locate, the subject; and

(e) if personal information (within the meaning of the Privacy Act 1988) that is not identifying information is to be disclosed together with the personal identifier—the Secretary is satisfied that it is reasonably necessary to disclose the personal information together with the personal identifier in order to identify, authenticate the identity of, or locate, the subject.

(3) For the purposes of subparagraph (2)(b)(i), if the subject does not express a view in relation to the proposed disclosure within a reasonable time of being informed of it, the Secretary is entitled to be satisfied that the subject has no views in relation to it.

(4) If the Secretary authorises disclosure of a personal identifier under paragraph (1)(c), the authority covers all disclosures of the identifier made for the purpose mentioned in paragraph (1)(b).

(5) An authority under paragraph (1)(c) is not a legislative instrument.

336FD Disclosure of other relevant information to the general public

(1) For the purposes of: (a) paragraph (1)(d) of Information Privacy Principle 11 in

section 14 of the Privacy Act 1988; and (b) paragraph 2.1(g) of National Privacy Principle 2 in

Schedule 3 to the Privacy Act 1988;

Part 4A Obligations relating to identifying information Division 3 Disclosing identifying information Section 336FD


the disclosure by a person of personal information (within the meaning of the Privacy Act 1988) about another person (the subject) is taken to be a disclosure that is authorised by law if:

(c) the person is disclosing a personal identifier of the subject and the disclosure is authorised by section 336FC; and

(d) the personal information is disclosed together with the personal identifier; and

(e) the disclosure of the personal information is for the purpose mentioned in paragraph 336FC(1)(b).

(2) This section does not apply to personal information that is identifying information.


Modifying and impairing identifying information Division 4

Section 336G


Division 4—Modifying and impairing identifying information

336G Unauthorised modification of identifying information

A person commits an offence if: (a) the person causes any unauthorised modification of

identifying information; and (b) the person intends to cause the modification; and (c) the person knows that the modification is unauthorised.


336H Unauthorised impairment of identifying information

A person commits an offence if: (a) the person causes any unauthorised impairment of: (i) the reliability of identifying information; or (ii) the security of the storage of identifying information; or (iii) the operation of a system by which identifying

information is stored; and (b) the person intends to cause the impairment; and (c) the person knows that the impairment is unauthorised.


336J Meanings of unauthorised modification and unauthorised impairment etc.

(1) In this Part: (a) modification of identifying information; or (b) impairment of the reliability of identifying information; or (c) impairment of the security of the storage of identifying

information; or (d) impairment of the operation of a system by which identifying

information is stored; by a person is unauthorised if the person is not entitled to cause that modification or impairment.

Part 4A Obligations relating to identifying information Division 4 Modifying and impairing identifying information Section 336J


(2) Any such modification or impairment caused by the person is not unauthorised merely because he or she has an ulterior purpose for causing it.

(3) For the purposes of an offence under this Part, a person causes any such unauthorised modification or impairment if the person’s conduct substantially contributes to it.

(4) For the purposes of subsection (1), if: (a) a person causes any modification or impairment of a kind

mentioned in that subsection; and (b) the person does so under a warrant issued under the law of

the Commonwealth, a State or a Territory; the person is entitled to cause that modification or impairment.


Destroying identifying information Division 5

Section 336K


Division 5—Destroying identifying information

336K Destroying identifying information

(1) A person commits an offence if: (a) the person is the responsible person for identifying

information; and (b) the identifying information is not of a kind that may, under

section 336L, be indefinitely retained; and (c) the person fails to destroy the identifying information as soon

as practicable after the person is no longer required under the Archives Act 1983 to keep the identifying information.

Penalty: Imprisonment for 2 years, or 120 penalty units, or both. Note: See section 24 of the Archives Act 1983 (particularly paragraphs

24(2)(b) and (c)) on the obligation to keep the identifying information.

(2) This section does not apply if the identifying information is: (a) a personal identifier that is any of the following: (i) a measurement of a person’s height and weight; (ii) a photograph or other image of a person’s face and

shoulders; (iii) a person’s signature; or (b) identifying information derived from or relating to such a

personal identifier. Note: A defendant bears an evidential burden in relation to the matters in


(3) For the purposes of this section, the responsible person for identifying information is:

(a) if the identifying information is stored on a database—the person who has day-to-day control of the database; or

(b) otherwise—the person who has day-to-day responsibility for the system under which the identifying information is stored.

(4) Identifying information is destroyed if: (a) in the case of identifying information that is a personal

identifier—it is physically destroyed; and (b) in any other case—any means of identifying it with the

person to whom it relates is destroyed.

Part 4A Obligations relating to identifying information Division 5 Destroying identifying information Section 336L


336L Identifying information that may be indefinitely retained

(1) Identifying information may be indefinitely retained if the non-citizen to whom it relates:

(a) is, or has ever been, in immigration detention; or (b) has ever had an application for a visa refused, or has ever had

a visa cancelled; or (c) has ever: (i) entered Australia on a temporary visa; and (ii) since its expiry, remained in Australia as an unlawful

non-citizen; or (d) has ever been convicted of an offence against this Act or the

regulations; or (e) has ever been subject to action taken under this Act or the

regulations for the purpose of: (i) deporting the non-citizen; or (ii) removing the non-citizen from Australia; or (f) is a person in respect of whom the Minister has issued a

conclusive certificate under subsection (4).

(2) Paragraph (1)(a) does not apply in relation to detention that occurs only because the non-citizen is, or was, detained for questioning detention (see section 192). However, this subsection does not apply if the detention leads to detention under section 189 because of the application of subsection 190(2).

(3) Paragraph (1)(b) does not apply if the decision to refuse the application for the visa, or to cancel the visa, was set aside on a review.

(4) The Minister may issue a conclusive certificate in respect of a non-citizen if the Minister is satisfied that:

(a) the non-citizen is a threat to the security of the Commonwealth or of a State or Territory; or

(b) it is in the public interest to do so.


Review of decisions Part 5

Interpretation Division 1

Section 337


Part 5—Review of decisions

Division 1—Interpretation

337 Interpretation

In this Part:

Australian permanent resident means an Australian permanent resident within the meaning of the regulations.

company includes any body or association (whether or not it is incorporated), but does not include a partnership.

Deputy Principal Member means the Deputy Principal Member of the Tribunal.

member means a member of the Tribunal.

MRT-reviewable decision has the meaning given in Division 2.

nominated has the same meaning as in the regulations.

presiding member, in relation to a review by the Tribunal, means: (a) if the Tribunal is, for the purposes of review, constituted by 2

or 3 members—the member who, in accordance with section 357, is to preside at the review; or

(b) if the Tribunal is, for the purpose of the review, constituted by one member—that member.

Principal Member means the Principal Member of the Tribunal.

Registrar means the Registrar of the Tribunal.

sponsored has the same meaning as in the regulations.

Senior Member means a Senior Member of the Tribunal.

Tribunal means the Migration Review Tribunal.

Part 5 Review of decisions Division 2 Decisions reviewable by Migration Review Tribunal Section 338


Division 2—Decisions reviewable by Migration Review Tribunal

338 Decisions reviewable by Migration Review Tribunal

(1) A decision is an MRT-reviewable decision if this section so provides, unless:

(a) the Minister has issued a conclusive certificate under section 339 in relation to the decision; or

(b) the decision is an RRT-reviewable decision; or (c) the decision is to refuse to grant, or to cancel, a temporary

safe haven visa.

(2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is an MRT-reviewable decision if:

(a) the visa could be granted while the non-citizen is in the migration zone; and

(b) the non-citizen made the application for the visa while in the migration zone; and

(c) the decision was not made when the non-citizen: (i) was in immigration clearance; or (ii) had been refused immigration clearance and had not

subsequently been immigration cleared; and (d) where it is a criterion for the grant of the visa that the

non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

(i) the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

(ii) an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.


Decisions reviewable by Migration Review Tribunal Division 2

Section 338


(3) A decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation is an MRT-reviewable decision unless the decision:

(a) is covered by subsection (4); or (b) is made at a time when the non-citizen was in immigration

clearance; or (c) was made under subsection 134(1), (3A) or (4) or

section 501.

(3A) A decision under section 137L not to revoke the cancellation of a non-citizen’s visa is an MRT-reviewable decision if the non-citizen was in the migration zone when the decision was made.

(4) The following decisions are MRT-reviewable decisions: (a) a decision to refuse to grant a bridging visa to a non-citizen

who is in immigration detention because of that refusal; (b) a decision to cancel a bridging visa held by a non-citizen who

is in immigration detention because of that cancellation.

(5) A decision to refuse to grant a non-citizen a visa is an MRT-reviewable decision if:

(a) the visa is a visa that could not be granted while the non-citizen is in the migration zone; and

(b) the non-citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:

(i) an Australian citizen; or (ii) a company that operates in the migration zone; or (iii) a partnership that operates in the migration zone; or (iv) the holder of a permanent visa; or (v) a New Zealand citizen who holds a special category

visa.



(b) a criterion for the grant of the visa is that the non-citizen has been an Australian permanent resident; and

(c) a parent, spouse, child, brother or sister of the non-citizen is an Australian citizen or an Australian permanent resident.

Part 5 Review of decisions Division 2 Decisions reviewable by Migration Review Tribunal Section 339




(b) a criterion for the grant of the visa is that the non-citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, child, brother or sister of the non-citizen; and

(c) particulars of the relative concerned are included in the application.

(7A) A decision to refuse to grant a non-citizen a permanent visa is an MRT-reviewable decision if:

(a) the non-citizen made the application for the visa at a time when the non-citizen was outside the migration zone; and

(b) the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone.

(8) A decision, under section 93, as to the assessed score of an applicant for a visa is an MRT-reviewable decision if:

(a) the visa is a visa that could not be granted while the applicant is in the migration zone; and

(b) the applicant, as required by a criterion for the grant of the visa, was sponsored or nominated by:

(i) an Australian citizen; or (ii) the holder of a permanent visa; or (iii) a New Zealand citizen who holds a special category

visa; and (c) the Minister has not refused to grant the visa.

(9) A decision that is prescribed for the purposes of this subsection is an MRT-reviewable decision.

339 Conclusive certificates

The Minister may issue a conclusive certificate in relation to a decision if the Minister believes that:

(a) it would be contrary to the national interest to change the decision; or

(b) it would be contrary to the national interest for the decision to be reviewed.


Review of decisions by Migration Review Tribunal Division 3

Section 347


Division 3—Review of decisions by Migration Review Tribunal

347 Application for review by Migration Review Tribunal

(1) An application for review of an MRT-reviewable decision must: (a) be made in the approved form; and (b) be given to the Tribunal within the prescribed period, being a

period ending not later than: (i) if the MRT-reviewable decision is covered by

subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or

(ii) if the MRT-reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or

(iii) if the MRT-reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and

(c) be accompanied by the prescribed fee (if any).

(2) An application for review may only be made by: (a) if the MRT-reviewable decision is covered by subsection

338(2), (3), (3A), (4) or (7A)—the non-citizen who is the subject of that decision; or

(b) if the MRT-reviewable decision is covered by subsection 338(5) or (8)—the sponsor or nominator referred to in the subsection concerned; or

(c) if the MRT-reviewable decision is covered by subsection 338(6) or (7)—the relative referred to in the subsection concerned; or

(d) if the MRT-reviewable decision is covered by subsection 338(9)—the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection.

Part 5 Review of decisions Division 3 Review of decisions by Migration Review Tribunal Section 348


(3) If the MRT-reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.

(3A) If the primary decision was covered by subsection 338(7A), an application for review may only be made by a non-citizen who:

(a) was physically present in the migration zone at the time when the decision was made; and

(b) is physically present in the migration zone when the application for review is made.

(4) If the MRT-reviewable decision was covered by subsection 338(4), the approved form for an application for review must include a statement advising the applicant that the applicant may:

(a) request the opportunity to appear before the Tribunal; and (b) request the Tribunal to obtain oral evidence from a specified

person or persons. A request must be made in the approved form and must accompany the application for review.

(5) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of MRT-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).

348 Migration Review Tribunal must review decisions

(1) Subject to subsection (2), if an application is properly made under section 347 for review of an MRT-reviewable decision, the Tribunal must review the decision.

(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339.

349 Powers of Migration Review Tribunal

(1) The Tribunal may, for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.



Section 350


(2) The Tribunal may: (a) affirm the decision; or (b) vary the decision; or (c) if the decision relates to a prescribed matter—remit the

matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

(d) set the decision aside and substitute a new decision.

(3) If the Tribunal: (a) varies the decision; or (b) sets aside the decision and substitutes a new decision;

the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

350 Review of assessments made under section 93

(1) In reviewing an assessment of the Minister under section 93, the only regulations for the purpose of that section which the Tribunal is to have regard to are whichever of the following are more favourable to the applicant:

(a) the regulations for that purpose that were in force at the time the assessment was made by the Minister;

(b) the regulations for that purpose that are in force at the time the decision was made by the Tribunal about the assessment.

(2) In determining whether the regulations mentioned in paragraph (1)(a) or (1)(b) are more favourable to the applicant, the only applicable pass mark and applicable pool mark that the Tribunal may have regard to are:

(a) in relation to regulations covered by paragraph (1)(a)—the applicable pass mark and the applicable pool mark that applied at the time the assessment was made by the Minister; and

(b) in relation to regulations covered by paragraph (1)(b)—the applicable pass mark and the applicable pool mark that

Part 5 Review of decisions Division 3 Review of decisions by Migration Review Tribunal Section 351


applied at the time the decision is made by the Tribunal about the assessment.

351 Minister may substitute more favourable decision

(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

(2) In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.


(4) If the Minister substitutes a decision under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:

(a) sets out the decision of the Tribunal; and (b) sets out the decision substituted by the Minister; and (c) sets out the reasons for the Minister’s decision, referring in


(5) A statement made under subsection (4) is not to include: (a) the name of the applicant; or (b) if the Minister thinks that it would not be in the public



(a) if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

(b) if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether



Section 352


he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

352 Secretary to be notified of application for review by Migration Review Tribunal

(1) If an application for review is made to the Migration Review Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.

(2) Subject to subsection (3), the Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:

(a) sets out the findings of fact made by the person who made the decision; and

(b) refers to the evidence on which those findings were based; and

(c) gives the reasons for the decision.

(3) If the application is for review of an MRT-reviewable decision covered by subsection 338(4), the Secretary must comply with the requirements of subsection (2) within 2 working days after being notified of the application.

(4) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar 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.

Part 5 Review of decisions Division 4 Exercise of Tribunal’s powers Section 353


Division 4—Exercise of Tribunal’s powers

353 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.

353A Principal Member may give directions

(1) The Principal Member may, in writing, give directions, not inconsistent with this Act or the regulations, as to:

(a) the operation of the Tribunal; and (b) the conduct of reviews by the Tribunal.

(2) In particular, the directions may relate to the application of efficient processing practices to the conduct of reviews by the Tribunal.

(3) The Tribunal should, as far as practicable, comply with the directions. However, non-compliance by the Tribunal with any direction does not mean that the Tribunal’s decision on a review is an invalid decision.

(4) If the Tribunal deals with a review of a decision in a way that complies with the directions, the Tribunal is not required to take any other action in dealing with the review.

354 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


Exercise of Tribunal’s powers Division 4

Section 355


(c) 3 members.

(2) The following members may give a written direction about who is to constitute the Tribunal for the purpose of a particular review:

(a) the Principal Member; (b) the Deputy Principal Member acting in accordance with

guidelines under subsection (3); (c) a Senior Member acting in accordance with guidelines under

subsection (3).

(3) The Principal Member may give written guidelines to the Deputy Principal Member and the Senior Members for the giving of directions about who is to constitute the Tribunal for the purpose of particular reviews.

355 Reconstitution of Tribunal—unavailability of member

(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

Part 5 Review of decisions Division 4 Exercise of Tribunal’s powers Section 355A


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 353(1).

355A Reconstitution of Tribunal for efficient conduct of review

(1) The Principal Member may direct that the Tribunal constituted for the purpose of a particular review be reconstituted by either or both of the following:

(a) adding one or more members to the Tribunal as previously constituted for the purpose of the review;

(b) removing one or more members from the Tribunal as so constituted;

if the Principal Member thinks the reconstitution is in the interests of achieving the efficient conduct of the review in accordance with the objective set out in subsection 353(1).

(2) However, the Principal Member must not give such a direction unless:

(a) the Tribunal’s decision on the review has not been recorded in writing or given orally; and

(b) the Principal Member has consulted: (i) the member, or each member, who constitutes the

Tribunal; and (ii) a Senior Member who is not the member, or one of the

members, who constitutes the Tribunal; and (c) either: (i) the Principal Member is satisfied that there is

insufficient material before the Tribunal for the Tribunal to reach a decision on the review; or

(ii) a period equal to or longer than the period prescribed for the purposes of this subparagraph has elapsed since the Tribunal was constituted.

(3) If a direction under this section is given, the Tribunal as constituted in accordance with the direction is to 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.


Exercise of Tribunal’s powers Division 4

Section 356


356 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.

357 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.

(2A) If the Tribunal as constituted for the purpose of the review: (a) does not include the Principal Member; and (b) includes the Deputy Principal Member;

the Deputy Principal Member is to preside at the review.

(3) If the Tribunal as constituted for the purpose of the review: (a) does not include the Principal Member or the Deputy

Principal Member; and (b) includes one, and only one, Senior Member;

the Senior Member shall preside at the review.

(4) If none of subsections (2), (2A) and (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.

Part 5 Review of decisions Division 5 Conduct of review Section 357A


Division 5—Conduct of review


(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3) In applying this Division, the Tribunal must act in a way that is fair and just.

358 Documents to be given to the Tribunal

(1) An applicant for review by the Tribunal may give the Tribunal: (a) a written statement 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.

359 Tribunal may seek additional information

(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.

(3) If an invitation is given to a person other than the Secretary, the invitation must be given:

(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or


Conduct of review Division 5

Section 359AA


(b) if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.

359AA Information and invitation given orally by Tribunal while applicant appearing

If an applicant is appearing before the Tribunal because of an invitation under section 360:

(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) if the Tribunal does so—the Tribunal must: (i) ensure, as far as is reasonably practicable, that the

applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii) orally invite the applicant to comment on or respond to the information; and

(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

359A Information and invitation given in writing by Tribunal

(1) Subject to subsections (2) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers

appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

Part 5 Review of decisions Division 5 Conduct of review Section 359B


(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c) invite the applicant to comment on or respond to it.

(2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies—by one of the methods

specified in section 379A; or (b) if the applicant is in immigration detention—by a method

prescribed for the purposes of giving documents to such a person.

(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

(4) This section does not apply to information: (a) that is not specifically about the applicant or another person

and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application for review; or

(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c) that is non-disclosable information.

359B Requirements for written invitation etc.

(1) If a person is: (a) invited under section 359 to give additional information; or (b) invited under section 359A to comment on or respond to

information; the invitation is to specify the way in which the additional information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.



Section 359C


(2) If the invitation is to give additional information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

(3) If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:

(a) at the place specified in the invitation; and (b) at a time specified in the invitation, being a time within a

prescribed period or, if no period is prescribed, a reasonable period.

(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.

(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:

(a) a later time within that period; or (b) a time within that period as extended by the Tribunal for a


359C Failure to give additional information, comments or response in response to written invitation

(1) If a person: (a) is invited under section 359 to give additional information;

and (b) does not give the information before the time for giving it has

passed; the Tribunal may make a decision on the review without taking any further action to obtain the additional information.

(2) If the applicant: (a) is invited under section 359A to comment on or respond to

information; and (b) does not give the comments or the response before the time

for giving them has passed;

Part 5 Review of decisions Division 5 Conduct of review Section 360


the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

360 Tribunal must invite applicant to appear

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the

applicant’s favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review

without the applicant appearing before it; or (c) subsection 359C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

360A Notice of invitation to appear

(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

(2) The notice must be given to the applicant: (a) except where paragraph (b) applies—by one of the methods



(4) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

(5) The notice must contain a statement of the effect of section 362B.



Section 361


361 Applicant may request Tribunal to call witness and obtain written material

(1) In the notice under section 360A, the Tribunal shall notify the applicant:

(a) that he or she is invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review; and

(b) of the effect of subsections (2) and (2A) 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.

(2A) 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:

(a) written evidence from a person or persons named in the notice; or

(b) other written material relating to the issues arising in relation to the decision under review.

(3) If the Tribunal is notified by an applicant under subsection (2) or (2A), the Tribunal must have regard to the applicant’s notice but is not required to comply with it.

(4) This section does not apply to the review of a decision covered by subsection 338(4).

362 Applicant may request Tribunal to call witnesses

(1) This section applies to the review of a decision covered by subsection 338(4) if:

(a) the applicant, in a request in the approved form that accompanied the application, requested the Tribunal to:

(i) give the applicant the opportunity to appear before it; or (ii) obtain oral evidence from a specified person or persons;

and (b) the applicant has been invited to appear before the Tribunal

in relation to the decision under review.

Part 5 Review of decisions Division 5 Conduct of review Section 362A


(2) If this section applies, the Tribunal: (a) must have regard to the applicant’s request; but (b) is not required to obtain evidence (oral or otherwise) from a

person named in the applicant’s request.

(3) To avoid doubt, nothing in this Division requires the Tribunal to adjourn the review or to delay making a decision so that:

(a) the applicant may give evidence (oral or otherwise); or (b) the Tribunal may obtain evidence (oral or otherwise) from

any other person.

362A Applicant entitled to have access to written material before Tribunal

(1) Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.

(2) This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information.

(3) This section does not apply if the Tribunal has given the applicant a copy of the statement required by subsection 368(1).

362B Failure of applicant to appear before Tribunal

(1) If the applicant: (a) is invited under section 360 to appear before the Tribunal;

and (b) does not appear before the Tribunal on the day on which, or

at the time and place at which, the applicant is scheduled to appear;

the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

(2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.



Section 363


363 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 377 and 378, 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.

363A Tribunal does not have power to permit a person to do something he or she is not entitled to do

If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.

Part 5 Review of decisions Division 5 Conduct of review Section 364


364 Presiding member may authorise another person to take evidence

(1) The power of the Tribunal under paragraph 363(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 engaged under the Public Service Act

1999; 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 363(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.



Section 365


(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 360, be taken to have given the applicant an opportunity to appear before it to give evidence.

365 Review to be in public

(1) Subject to this section, any oral evidence that the Tribunal takes while a person is appearing before it must be taken 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) If the Tribunal is satisfied that it is impracticable to take particular oral evidence in public, the Tribunal may direct that the evidence is to be taken in private.

(4) Where the Tribunal gives a direction under subsection (2) or (3), it may give directions as to the persons who may be present when the oral evidence is given.

366 Oral evidence by telephone etc.

(1) For the purposes of the review of a decision, the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:

(a) telephone; or (b) closed-circuit television; or (c) any other means of communication.

(2) If, when a review is in public, a person appears or gives evidence by a means allowed under subsection (1), the Tribunal must take such steps as are reasonably necessary to ensure the public nature of the review is preserved.

366A Applicant may be assisted by another person while appearing before Tribunal

(1) The applicant is entitled, while appearing before the Tribunal, to have another person (the assistant) present to assist him or her.

Part 5 Review of decisions Division 5 Conduct of review Section 366B


(2) The assistant is not entitled to present arguments to the Tribunal, or to address the Tribunal, unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so.

(3) Except as provided in this section, the applicant is not entitled, while appearing before the Tribunal, to be represented by another person.

(4) This section does not affect the entitlement of the applicant to engage a person to assist or represent him or her otherwise than while appearing before the Tribunal.

366B Other persons not to be assisted or represented while appearing before Tribunal

(1) A person, other than the applicant, is not entitled, while appearing before the Tribunal, to:

(a) have another person present to assist him or her; or (b) be represented by another person.

(2) This section does not affect the entitlement of the person to engage a person to assist or represent him or her otherwise than while appearing before the Tribunal.

366C Interpreters

(1) A person appearing before the Tribunal to give evidence may request the Tribunal to appoint an interpreter for the purposes of communication between the Tribunal and the person.

(2) The Tribunal must comply with a request made by a person under subsection (1) unless it considers that the person is sufficiently proficient in English.

(3) If the Tribunal considers that a person appearing before it to give evidence is not sufficiently proficient in English, the Tribunal must appoint an interpreter for the purposes of communication between the Tribunal and the person, even though the person has not made a request under subsection (1).



Section 366D


366D Examination and cross-examination not permitted

A person is not entitled to examine or cross-examine any person appearing before the Tribunal to give evidence.

367 Certain decisions to be made within prescribed period

(1) Subject to subsection (2), if the application is for review of an MRT-reviewable decision covered by subsection 338(4), the Tribunal must make its decision on review, and notify the applicant of the decision, within the prescribed period.

(2) The Tribunal may, with the agreement of the applicant, extend the period in subsection (1) for the purposes of a particular application.

Part 5 Review of decisions Division 6 Decisions of Tribunal Section 368


Division 6—Decisions of Tribunal

368 Tribunal to record its decisions etc.

(1) Where the Tribunal makes its decision on a review, the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), 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) A decision on a review (other than an oral decision) is taken to have been made on the date of the written statement.

(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.

368A Notifying parties of Tribunal’s decision (decision not given orally)

(1) The Tribunal must notify the applicant of a decision on a review (other than an oral decision) by giving the applicant a copy of the written statement prepared under subsection 368(1). The copy must be given to the applicant:

(a) within 14 days after the day on which the decision is taken to have been made; and

(b) by one of the methods specified in section 379A.

(2) A copy of that statement must also be given to the Secretary: (a) within 14 days after the day on which the decision is taken to

have been made; and (b) by one of the methods specified in section 379B.


Decisions of Tribunal Division 6

Section 368D


(3) A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.

368D Notifying parties when Tribunal gives an oral decision

If the Tribunal gives an oral decision on an application for review, the Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection 368(1) within 14 days after the decision concerned is made. The applicant is taken to be notified of the decision on the day on which the decision is made.

369 Certain Tribunal decisions to be published

Subject to any direction under section 378, the Registrar must ensure the publication of any statements prepared under subsection 368(1) that the Principal Member thinks are of particular interest.

Part 5 Review of decisions Division 7 Offences Section 370


Division 7—Offences

370 Failure of witness to attend

(1) 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:

(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.





(2) To avoid doubt, an invitation under section 360 to appear before the Tribunal is not a summons to appear before the Tribunal to give evidence.

371 Refusal to be sworn or to answer questions etc.

(1) A person appearing before the Tribunal to give evidence shall not: (a) when required under section 363 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.





Offences Division 7

Section 372


(2) Subject to section 375, a person shall not, refuse or fail to produce a document that a person is required to produce by a summons under section 363 served on the person as prescribed.




(2B) An offence against subsection (1) or (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

(3) A person appearing before the Tribunal to give evidence shall not intentionally give evidence that is false or misleading in a material particular.

Penalty for a contravention of this subsection: Imprisonment for 12 months.

372 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.


Part 5 Review of decisions Division 8 Miscellaneous Section 373


Division 8—Miscellaneous

373 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 member of the Administrative Appeals Tribunal.

(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 Administrative Appeals Tribunal.

374 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

361(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.

375 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.


Miscellaneous Division 8

Section 375A


375A Certain information only to be disclosed to Tribunal

(1) This section applies to a document or information if the Minister: (a) has certified, in writing, that the disclosure, otherwise than to

the Tribunal, of any matter contained in the document, or 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 375(a) or (b)); and

(b) has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.

(2) If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:

(a) the Secretary must notify the Tribunal in writing that this section applies to the document or information; and

(b) the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.

376 Tribunal’s discretion in relation to disclosure of certain information etc.

(1) This section applies to a document or information if: (a) the Minister: (i) has certified, in writing, that the disclosure of any

matter contained in the document, or 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 375(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; and

(ii) has not included a statement in the certificate that the document or information must only be disclosed to the Tribunal; 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 and section 375A does not apply to the document or information.

(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 or to any other person who has given oral or written evidence to the Tribunal.

377 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



Section 378


(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.

378 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 368; 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.


379 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.


Giving and receiving review documents etc. Division 8A

Section 379AA


Division 8A—Giving and receiving review documents etc.

379AA Giving documents by Tribunal where no requirement to do so by section 379A or 379B method

(1) If: (a) a provision of this Act or the regulations requires or permits

the Tribunal to give a document to a person; and (b) the provision does not state that the document must be given: (i) by one of the methods specified in section 379A or

379B; or (ii) by a method prescribed for the purposes of giving

documents to a person in immigration detention; the Tribunal may give the document to the person by any method that it considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section). Note 1: If 2 or more persons apply for a review of a decision together, a

document given to a person is taken to be given to each of them, see section 379EA.

Note 2: Under section 379G an applicant may give the Tribunal the name of an authorised recipient who is to receive documents on the applicant’s behalf.

(2) If a person is a minor, the Tribunal may give a document to an individual who is at least 18 years of age if a member, the Registrar, a Deputy Registrar or another officer of the Tribunal reasonably believes that:

(a) the individual has day-to-day care and responsibility for the minor; or

(b) the individual works in or for an organisation that has day-to-day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor.

(2A) However, subsection (2) does not apply if section 379EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.

(3) If the Tribunal gives a document to an individual, as mentioned in subsection (2), the Tribunal is taken to have given the document to

Part 5 Review of decisions Division 8A Giving and receiving review documents etc. Section 379A


the minor. However, this does not prevent the Tribunal giving the minor a copy of the document.

379A Methods by which Tribunal gives documents to a person other than the Secretary

Coverage of section

(1) For the purposes of provisions of this Part or the regulations that: (a) require or permit the Tribunal to give a document to a person

(the recipient); and (b) state that the Tribunal must do so by one of the methods

specified in this section; the methods are as follows.

(1A) If a person is a minor, the Tribunal may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor):

(a) who is at least 18 years of age; and (b) who a member, the Registrar, a Deputy Registrar or another

officer of the Tribunal reasonably believes: (i) has day-to-day care and responsibility for the minor; or (ii) works in an or for organisation that has day-to-day care

and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.

Note: If the Tribunal gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 379C in respect of that method.

(1B) However, subsection (1A) does not apply if section 379EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.

Giving by hand

(2) One method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the recipient.



Section 379A


Handing to a person at last residential or business address

(3) Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to another person who:

(a) is at the last residential or business address provided to the Tribunal by the recipient in connection with the review; and


(c) appears to be at least 16 years of age.

Dispatch by prepaid post or by other prepaid means

(4) Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, dating the document, and then dispatching it:

(a) within 3 working days (in the place of dispatch) of the date of the document; and

(b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Tribunal by

the recipient in connection with the review; or (ii) the last residential or business address provided to the

Tribunal by the recipient in connection with the review; or

(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the member, Registrar, Deputy Registrar or other officer.

Transmission by fax, e-mail or other electronic means

(5) Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, transmitting the document by:

(a) fax; or (b) e-mail; or (c) other electronic means;

to:

Part 5 Review of decisions Division 8A Giving and receiving review documents etc. Section 379B


(d) the last fax number, e-mail address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or

(e) if the recipient is a minor—the last fax number, e-mail address or other electronic address, as the case may be, for a carer of the minor that is known by the member, Registrar, Deputy Registrar or other officer.

Documents given to a carer

(6) If the Tribunal gives a document to a carer of a minor, the Tribunal is taken to have given the document to the minor. However, this does not prevent the Tribunal giving the minor a copy of the document.

379B Methods by which Tribunal gives documents to the Secretary

Coverage of section

(1) For the purposes of provisions of this Part or the regulations that: (a) require or permit the Tribunal to give a document to the

Secretary; and (b) state that the Tribunal must do so by one of the methods


Giving by hand

(2) One method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the Secretary or to an authorised officer.

Dispatch by post or by other means

(3) Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, dating the document, and then dispatching it:


(b) by post or by other means; and



Section 379C


(c) to an address, notified to the Tribunal in writing by the Secretary, to which such documents can be dispatched.


(4) Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, transmitting the document by:


to the last fax number, e-mail address or other electronic address notified to the Tribunal in writing by the Secretary for the purpose.

379C When a person other than the Secretary is taken to have received a document from the Tribunal

(1) This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 379A (including in a case covered by section 379AA).

Giving by hand

(2) If the Tribunal gives a document to a person by the method in subsection 379A(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.


(3) If the Tribunal gives a document to a person by the method in subsection 379A(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.


(4) If the Tribunal gives a document to a person by the method in subsection 379A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

Part 5 Review of decisions Division 8A Giving and receiving review documents etc. Section 379D


(a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or

(b) in any other case—21 days after the date of the document.


(5) If the Tribunal gives a document to a person by the method in subsection 379A(5) (which involves transmitting the document by fax, e-mail or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

(6) Subsection (5) applies despite section 14 of the Electronic Transactions Act 1999.

Document not given effectively

(7) If: (a) the Tribunal purports to give a document to a person in

accordance with a method specified in section 379A (including in a case covered by section 379AA) but makes an error in doing so; and

(b) the person nonetheless receives the document or a copy of it; then the person is taken to have received the document at the times mentioned in this section as if the Tribunal had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.

379D When the Secretary is taken to have received a document from the Tribunal

(1) This section applies if the Tribunal gives a document to the Secretary by one of the methods specified in section 379B (including in a case covered by section 379AA).

Giving by hand

(2) If the Tribunal gives a document to the Secretary by the method in subsection 379B(2) (which involves handing the document to the Secretary or to an authorised officer), the Secretary is taken to have



Section 379E


received the document when it is handed to the Secretary or to the authorised officer.


(3) If the Tribunal gives a document to the Secretary by the method in subsection 379B(3) (which involves dispatching the document by post or by other means), the Secretary is taken to have received the document:




(4) If the Tribunal gives a document to the Secretary by the method in subsection 379B(4) (which involves transmitting the document by fax, e-mail or other electronic means), the Secretary is taken to have received the document at the end of the day on which the document is transmitted.


379E Tribunal may give copies of documents

If a provision of this Act requires or permits the Tribunal to give a document to a person, the Tribunal may instead give a copy of the document to the person by the same means as the Tribunal could give the document itself.

379EA Giving documents by Tribunal—combined applications

If 2 or more persons apply for a review of a decision together, documents given to any of them in connection with the review are taken to be given to each of them. Note 1: If the Tribunal gives a person a document by a method specified in

section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.

Note 2: Section 379G deals with giving documents to a person’s authorised recipient.

Part 5 Review of decisions Division 8A Giving and receiving review documents etc. Section 379F


379F Giving documents etc. to the Tribunal

(1) If, in relation to the review of an MRT-reviewable decision, a person is required or permitted to give a document or thing to the Tribunal, the person must do so:

(a) by giving the document or thing to the Registrar, a Deputy Registrar or another officer of the Tribunal; or

(b) by a method set out in directions under section 353A; or (c) if the regulations set out a method for doing so—by that

method.

(2) Directions under section 353A may make provision for a person to give a copy of a document, rather than the document itself, to the Tribunal.

379G Authorised recipient

(1) If: (a) a person (the applicant) applies for review of an

MRT-reviewable decision; and (b) the applicant gives the Tribunal written notice of the name

and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;

the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. Note: If the Tribunal gives a person a document by a method specified in


(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.

(3) The applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant’s authorised recipient.



Section 379G


(4) The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication.

(5) This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.

Part 5 Review of decisions Division 9 Referral of decisions to Administrative Appeals Tribunal Section 380


Division 9—Referral of decisions to Administrative Appeals Tribunal

380 Interpretation

In this Division:

AAT Act means the Administrative Appeals Tribunal Act 1975.

381 Referral of decisions to Administrative Appeals Tribunal

(1) The Principal Member of the Migration Review Tribunal may, if the Principal Member considers that an MRT-reviewable decision involves an important principle, or issue, of general application, refer the decision to the President of the Administrative Appeals Tribunal.

(2) A referral under subsection (1) may be made at any time: (a) after the receipt by the Migration Review Tribunal of an

application for a review of the decisions; and (b) before that Tribunal makes a decision on the application.

(3) Subject to paragraph 375A(2)(b), the following material must be sent with the referral:

(a) a request for a review by the Administrative Appeals Tribunal of that decision;

(b) a statement of the Principal Member’s reasons for concluding that the decision involves an important principle, or issue, of general application;

(c) any documents or other records that the Principal Member considers relevant.

(4) The Principal Member must give written notice of the making of a referral under subsection (1) to the applicant and the Secretary.


Referral of decisions to Administrative Appeals Tribunal Division 9

Section 382


(5) The Migration Review Tribunal must not commence any action in relation to the proceeding before it with respect to the decision, or, if it has commenced such action, must cease that action until notified by the President of the Administrative Appeals Tribunal in accordance with section 382.

(6) If the President of the Administrative Appeals Tribunal directs that the Administrative Appeals Tribunal will accept the referral, the review by the Migration Review Tribunal is taken to be closed.

382 Administrative Appeals Tribunal may accept or decline referral

(1) The President of the Administrative Appeals Tribunal must consider a request under section 381 and either:

(a) direct that the Administrative Appeals Tribunal will accept the referral of the decision; or

(b) direct that the Administrative Appeals Tribunal will decline the referral of the decision.

(2) The President must notify the Principal Member of the direction made under subsection (1).

(3) If the President accepts the referral of an MRT-reviewable decision:

(a) the application to the Migration Review Tribunal is taken to have been properly made to the Administrative Appeals Tribunal by the applicant to the Migration Review Tribunal; and

(b) the AAT Act applies to the review of the MRT-reviewable decision subject to the modifications in this Division.

383 Modification of definition of member in section 3 of the AAT Act

Section 3 of the AAT Act applies in relation to an MRT-reviewable decision as if the definition of member were omitted and the following definition substituted:

“member means a presidential member, a senior member, or any other member of the Tribunal and includes the Principal Member of the Migration Review Tribunal.”.



384 Modification of section 21 of the AAT Act

Section 21 of the AAT Act applies in relation to an MRT-reviewable decision as if:

(a) subsection (1) were omitted and the following subsections substituted:

“(1) Subject to subsection (1AA), the Tribunal is, for the purposes of the exercise of its powers in relation to a matter, to be constituted by:

(a) a presidential member who is a Judge, the Principal Member of the Migration Review Tribunal and one other member (not being a Judge); or

(b) a Deputy President, the Principal Member of the Migration Review Tribunal and one non-presidential member.

“(1AA) If the Principal Member of the Migration Review Tribunal had constituted that Tribunal, in whole or in part, for the review by the Migration Review Tribunal of the MRT-reviewable decision that is the subject of a matter, the Tribunal in relation to proceedings for the purposes of the exercise of its power in relation to that matter, is to be constituted by:

(a) a presidential member who is a Judge and two other members (not being Judges or the Principal Member of the Migration Review Tribunal); or

(b) a Deputy President and two non-presidential members (not being the Principal Member of the Migration Review Tribunal).”; and

(b) subsections (2), (3) and (4) were omitted.

385 Certain sections of the AAT Act do not apply to MRT-reviewable decisions

Sections 21A, 27, 28 and 29 of the AAT Act do not apply in relation to MRT-reviewable decisions.



Section 386



Section 25 of the AAT Act applies in relation to an MRT-reviewable decision as if subsections (6) and (6A) were omitted.


Section 30 of the AAT Act applies in relation to an MRT-reviewable decision as if paragraphs (1)(a) and (b) were omitted and the following paragraphs substituted:

“(a) the person who, under section 382 of the Migration Act 1958, is taken to have applied to the Tribunal for review of the decision; and

(b) the person who is the Minister for the purposes of the Migration Act 1958; and”.


Section 37 of the AAT Act applies in relation to an MRT-reviewable decision as if:

(a) subsections (1) to (1D) (inclusive) were omitted and the following subsection substituted:

“(1) Subject to paragraph 375A(2)(b) of the Migration Act 1958, the Principal Member of the Migration Review Tribunal must forward to the Administrative Appeals Tribunal all documents and other records relating to the proceeding before the Migration Review Tribunal with respect to the MRT-reviewable decision within 14 days after receiving notice of the acceptance of the referral of the decision to the Administrative Appeals Tribunal.

“(1A) Documents provided under subsection 381(3) of the Migration Act 1958 are taken to have been provided in accordance with subsection (1) of this section.”; and

(b) subsection (4) were omitted.




Section 38 of the AAT Act applies in relation to an MRT-reviewable decision as if the reference in that section to a statement referred to in paragraph 37(1)(a) that is lodged by a person with the Tribunal were a reference to a statement that was lodged with the Migration Review Tribunal by a person under section 352 of the Migration Act 1958.


Section 43 of the AAT Act applies in relation to an MRT-reviewable decision as if subsection (1) were omitted and the following subsections were substituted:

“(1) The Tribunal may, for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by the Migration Act 1958 on the person who made the decision.

“(1A) The Tribunal may: (a) affirm the decision; or (b) vary the decision; or (c) if the decision relates to a matter prescribed for the

purposes of paragraph 349(2)(c) of the Migration Act 1958—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations under that Act; or

(d) set the decision aside and substitute a new decision. “(1B) If the Tribunal: (a) varies the decision; or (b) sets aside the decision and substitutes a new decision;




Section 391


“(1C) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Migration Act 1958 or the regulations under that Act.”.


(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Administrative Appeals Tribunal in relation to an MRT-reviewable decision another decision, being a decision that is more favourable to the applicant, whether or not the Administrative Appeals Tribunal had the power to make that other decision.




(a) sets out the decision of the Administrative Appeals Tribunal; and

(b) sets out the decision substituted by the Minister; and (c) sets out the reasons for the Minister’s decision, referring in









(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) 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.

392 Provision of material to which section 376 applies

If the Migration Review Tribunal gives to the Administrative Appeals Tribunal a document or information to which section 376 of this Act applies, the Migration Review Tribunal must give the Administrative Appeals Tribunal written notice of the application of that section.

393 Section 9 of AAT Act not to apply to Principal Member

In spite of anything in this Act or in any other enactment, section 9 of the AAT Act does not apply to the Principal Member of the Migration Review Tribunal.

Migration Review Tribunal Part 6

Establishment and membership of the Migration Review Tribunal Division 1

Section 394


Part 6—Migration Review Tribunal

Division 1—Establishment and membership of the Migration Review Tribunal

394 Establishment of the Migration Review Tribunal

A Migration Review Tribunal is established.

395 Membership of Migration Review Tribunal

The Migration Review Tribunal consists of: (a) a Principal Member; and (aa) if a person is appointed as a Deputy Principal Member—a

Deputy Principal Member; and (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.

396 Appointment of members

(1) Subject to subsection (1A), the members of the Tribunal are to be appointed by the Governor-General.

(1A) The Governor-General may appoint a person as the Deputy Principal Member.

(2) The Principal Member and the Senior Members are to 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.

397 Principal Member

(1) The Principal Member is the executive officer of the Tribunal and is responsible for its overall operation and administration.

Part 6 Migration Review Tribunal Division 1 Establishment and membership of the Migration Review Tribunal Section 398


(2) The Principal Member is responsible for: (a) monitoring the operations of the Tribunal to ensure that those

operations are as fair, just, economical, informal and quick as practicable; and

(b) allocating the work of the Tribunal among the members (including himself or herself) in accordance with guidelines under subsection (3).

(3) The Principal Member may determine, in writing, guidelines for the allocation of the work of the Tribunal.

(4) Without limiting the scope of subsection (3), guidelines determined under that subsection must provide that cases where a person affected by the decision under review is being held in immigration detention must be given priority over other cases.

398 Period of appointment of members

Subject to this Part, a member holds office for such period, not exceeding 5 years, as is specified in the instrument of appointment, but is eligible for reappointment.

399 Remuneration and allowances of members

(1) A member is to be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination of that remuneration is in operation, the member is to be paid such remuneration as is prescribed.

(2) A member is to be paid such allowances as are prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

400 Other terms and conditions

A member holds office on such terms and conditions in respect of matters not provided for by this Act as are determined by the Minister in writing.



Section 401


401 Resignation

A member may resign by writing signed by him or her and sent to the Governor-General.

402 Disclosure of interests

(1) A member who has a conflict of interest in relation to a review by the Tribunal:

(a) must disclose the matters giving rise to that conflict to the applicant and:

(i) if the member is the Principal Member—to the Minister; or

(ii) in any other case—to the Principal Member; and (b) the member must not take part in the review or exercise any

powers in relation to the review unless: (i) if 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.

403 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; or (b) the member applies to take the benefit of any law for the

relief of bankrupt or insolvent debtors; or (c) the member compounds with his or her creditors; or (d) the member makes an assignment of remuneration for the

benefit of his or her creditors; or (e) the member has a direct or indirect pecuniary interest in an

immigration advisory service; or



(f) the member, being a full-time member, is absent from duty, except on leave of absence granted in accordance with the terms and conditions determined under section 400, for 14 consecutive days or 28 days in any 12 months; or

(g) the member, being a full-time member, engages in paid employment outside the duties of the office of member without the Minister’s written consent; or

(h) the member fails, without reasonable excuse, to comply with his or her obligations under section 402.


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.

404 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 must not continue to act for more than 12 months.

(3) If a person is acting in an office, the Minister may direct that, for the purposes specified in the direction, the person is to be taken to continue to act in the office after the normal terminating event occurs.

(4) A direction under subsection (3) must 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.



Section 404


(6) A direction under subsection (3): (a) is to be given only if there is a pending review or other

special circumstance justifying the giving of the direction; and

(b) may only be given before the normal terminating event occurs; and

(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) If 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; or (b) there was a defect or irregularity in connection with the

appointment; or (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:



(a) the office of Principal Member; or (b) the office of Deputy Principal Member; or (c) an office of Senior Member.

405 Delegation

The Principal Member may, by writing, signed by him or her, delegate to the Deputy Principal Member or a Senior Member all or any of the Principal Member’s powers under this Act other than the power under section 381 to refer decisions to the Administrative Appeals Tribunal.

Migration Review Tribunal Part 6 Registries and officers Division 2

Section 406


Division 2—Registries and officers

406 Registries

(1) The Minister is to establish such registries of the Tribunal as the Minister thinks fit.

(2) The Minister must designate one of the registries as the Principal Registry.

407 Officers of Tribunal

(1) There is to 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 are to 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 are to be persons engaged under the Public Service Act 1999.


(1) The Minister may appoint a person engaged under the Public Service Act 1999 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 407.

Part 7 Review of protection visa decisions Division 1 Interpretation Section 410


Part 7—Review of protection visa decisions

Division 1—Interpretation

410 Interpretation

In this Part:

Deputy Principal Member means the Deputy Principal Member of the Tribunal.

member means a member of the Tribunal.

Principal Member means the Principal Member of the Tribunal.

Registrar means the Registrar of the Tribunal.

Tribunal means the Refugee Review Tribunal.

Review of protection visa decisions Part 7

Review of decisions by Refugee Review Tribunal Division 2

Section 411


Division 2—Review of decisions by Refugee Review Tribunal

411 Decisions reviewable by Refugee Review Tribunal

(1) Subject to subsection (2), the following decisions are RRT-reviewable decisions:

(a) a decision, made before 1 September 1994, that a non-citizen is not a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made after a review by the Minister of an earlier decision that the person was not such a refugee);

(b) a decision, made before 1 September 1994, to refuse to grant, or to cancel, a visa, or entry permit (within the meaning of this Act as in force immediately before that date), a criterion for which is that the applicant for it is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made under the Migration (Review) (1993) Regulations or under the repealed Part 2A of the Migration (Review) Regulations);

(c) a decision to refuse to grant a protection visa; (d) a decision to cancel a protection visa.

(2) The following decisions are not RRT-reviewable decisions: (a) decisions made in relation to a non-citizen who is not

physically present in the migration zone when the decision is made;

(b) decisions in relation to which the Minister has issued a conclusive certificate under subsection (3).

(3) The Minister may issue a conclusive certificate in relation to a decision if the Minister believes that:

(a) it would be contrary to the national interest to change the decision; or

(b) it would be contrary to the national interest for the decision to be reviewed.

Part 7 Review of protection visa decisions Division 2 Review of decisions by Refugee Review Tribunal Section 412


412 Application for review by the Refugee Review Tribunal

(1) An application for review of an RRT-reviewable decision must: (a) be made in the approved form; and (b) be given to the Tribunal within the period prescribed, being a

period ending not later than 28 days after the notification of the decision; and

(c) be accompanied by the prescribed fee (if any).

(2) An application for review may only be made by the non-citizen who is the subject of the primary decision.

(3) An application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.

(4) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of RRT-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).

413 Refugee Review Tribunal to deal with the backlog of review applications

(1) This section applies to an RRT-reviewable decision covered by paragraph 411(1)(a) or (b) if:

(a) an application was made before 1 July 1993 for review of the RRT-reviewable decision; and

(b) if, at the time when the application was made, there were in force regulations dealing with applications for review of such a decision—the application was made in accordance with those regulations; and

(c) any of the following subparagraphs applies: (i) no decision on the review was made before the

commencement of this section; (ii) all of the following sub-subparagraphs apply: (A) a decision (the initial review decision) on the

review was made before the commencement of this section;



Section 413


(B) the initial review decision was quashed or set aside by a court before the commencement of this section;

(C) the matter to which the initial review decision relates was referred by the court for further consideration;

(D) no decision on that further consideration was made before the commencement of this section;

(iii) all of the following sub-subparagraphs apply: (A) a decision (the initial review decision) on the


(B) the initial review decision is quashed or set aside by a court after the commencement of this section;

(C) the matter to which the initial review decision relates is referred by the court for further consideration;

(iv) all of the following sub-subparagraphs apply: (A) a decision (the initial review decision) on the


(B) an application for judicial review (the judicial review application) of the initial review decision was made before the commencement of this section;

(C) before the judicial review application was or is determined by the court, the Minister agreed or agrees, in writing, to reconsider the initial review decision;

(D) no decision on that reconsideration was made before the commencement of this section;

(v) all of the following sub-subparagraphs apply: (A) a decision (the initial review decision) on the


(B) an application for judicial review (the judicial review application) of the initial review decision is made after the commencement of this section;



(C) before the judicial review application is determined by the court, the Minister agrees in writing to reconsider the initial review decision.

(2) A valid application is taken to have been made under section 412 for review of the RRT-reviewable decision.

(3) No action is to be taken to review the RRT-reviewable decision otherwise than under this Part.

(4) This section has effect despite any other provision of this Act or the regulations.

(5) A reference in this section (other than sub-subparagraphs (1)(c)(iv)(B) or (1)(c)(v)(B)) to review does not include a reference to judicial review.

414 Refugee Review Tribunal must review decisions

(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.

(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).

414A Period within which Refugee Review Tribunal must review decision on protection visas

(1) If an application for review of an RRT-reviewable decision: (a) was validly made under section 412; or (b) was remitted by any court to the Refugee Review Tribunal

for reconsideration; then the Refugee Review Tribunal must review the decision under section 414 and record its decision under section 430 within 90 days starting on the day on which the Secretary gave the Registrar the documents that subsection 418(2) requires the Secretary to give to the Registrar.

(2) Failure to comply with this section does not affect the validity of a decision made under section 415 on an application for review of an RRT-reviewable decision.



Section 415


415 Powers of Refugee Review Tribunal

(1) The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

(2) The Tribunal may: (a) affirm the decision; or (b) vary the decision; or (c) if the decision relates to a prescribed matter—remit the

matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

(d) set the decision aside and substitute a new decision.

(3) If the Tribunal: (a) varies the decision; or (b) sets aside the decision and substitutes a new decision;


(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

416 Only new information to be considered in later applications for review

If a non-citizen who has made: (a) an application for review of an RRT-reviewable decision that

has been determined by the Tribunal or the Administrative Appeals Tribunal; or

(b) applications for reviews of RRT-reviewable decisions that have been determined by the Tribunal or the Administrative Appeals Tribunal;

makes a further application for review of an RRT-reviewable decision, the Tribunal, in considering the further application:

(c) is not required to consider any information considered in the earlier application or an earlier application; and



(d) may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information.


(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

(2) In exercising the power under subsection (1) on or after 1 September 1994, the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.


(4) If the Minister substitutes a decision under subsection (1), he or she must cause to be laid before each House of the Parliament a statement that:

(a) sets out the decision of the Tribunal; and (b) sets out the decision substituted by the Minister; and (c) sets out the reasons for the Minister’s decision, referring in


(5) A statement made under subsection (4) is not to include: (a) the name of the applicant; or (b) any information that may identify the applicant; or (c) if the Minister thinks that it would not be in the public






Section 418




418 Secretary to be notified of application for review by Refugee Review Tribunal

(1) If an application for review is made to the Refugee Review Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.

(2) The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:

(a) sets out the findings of fact made by the person who made the decision; and

(b) refers to the evidence on which those findings were based; and

(c) gives the reasons for the decision.

(3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar 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.

419 Certain decisions made by members of the Tribunal in their capacity as delegates of the Minister to be treated as decisions of the Tribunal for certain purposes

(1) This section applies to a decision under section 22AA if the decision was made:

(a) by a member in his or her capacity as a delegate of the Minister; and

(b) after 30 June 1993 and before the commencement of this section.



(2) Despite anything in section 411, the decision is not an RRT-reviewable decision.

(3) For the purposes of sections 416 and 417: (a) the decision is taken to be a decision of the Tribunal made

under section 415 by way of the determination of an application for review of an RRT-reviewable decision; and

(b) the applicant in relation to the decision is taken to have made that application for review.


Exercise of Refugee Review Tribunal’s powers Division 3

Section 420


Division 3—Exercise of Refugee Review Tribunal’s powers

420 Refugee Review Tribunal’s way of operating

(1) The Tribunal, in carrying out its functions under this Act, is to 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) must act according to substantial justice and the merits of the

case.

420A Principal Member may give directions

(1) The Principal Member may, in writing, give directions, not inconsistent with this Act or the regulations as to:

(a) the operations of the Tribunal; and (b) the conduct of reviews by the Tribunal.

(2) In particular, the directions may relate to the application of efficient processing practices to the conduct of reviews by the Tribunal.

(3) The Tribunal should, as far as practicable, comply with the directions. However, non-compliance by the Tribunal with any direction does not mean that the Tribunal’s decision on a review is an invalid decision.

(4) If the Tribunal deals with a review of a decision in a way that complies with the directions, the Tribunal is not required to take any other action in dealing with the review.

421 Constitution of Refugee Review Tribunal for exercise of powers

(1) For the purpose of a particular review, the Tribunal is to be constituted, in accordance with a direction under subsection (2), by a single member.

Part 7 Review of protection visa decisions Division 3 Exercise of Refugee Review Tribunal’s powers Section 422


(2) The Principal Member may give a written direction about who is to constitute the Tribunal for the purpose of a particular review.

422 Reconstitution of Refugee Review Tribunal—unavailability of member

(1) If the member who constitutes the Tribunal for the purposes of a particular review:

(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; the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.

(2) If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to 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.

(3) In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 420(1).

422A Reconstitution of Tribunal for efficient conduct of review

(1) The Principal Member may direct that: (a) the member constituting the Tribunal for a particular review

be removed; and (b) another member constitute the Tribunal for the purposes of

that review; if the Principal Member thinks the reconstitution is in the interests of achieving the efficient conduct of the review in accordance with the objective set out in subsection 420(1).

(2) However, the Principal Member must not give such a direction unless:

(a) the Tribunal’s decision on the review has not been recorded in writing or given orally; and

(b) the Principal Member has consulted: (i) the member constituting the Tribunal; and (ii) a Senior Member who is not the member constituting

the Tribunal; and


Exercise of Refugee Review Tribunal’s powers Division 3

Section 422A


(c) either: (i) the Principal Member is satisfied that there is

insufficient material before the Tribunal for the Tribunal to reach a decision on the review; or

(ii) a period equal to or longer than the period prescribed for the purposes of this subparagraph has elapsed since the Tribunal was constituted.

(3) If a direction under this section is given, the member constituting the Tribunal in accordance with the direction is to continue and finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the member who previously constituted the Tribunal.

Part 7 Review of protection visa decisions Division 4 Conduct of review Section 422B


Division 4—Conduct of review

422B Exhaustive statement of natural justice hearing rule

(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3) In applying this Division, the Tribunal must act in a way that is fair and just.

423 Documents to be given to the Refugee Review Tribunal

(1) An applicant for review by the Tribunal may give the Registrar: (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 Registrar written argument relating to the issues arising in relation to the decision under review.

424 Tribunal may seek additional information

(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.

(3) The invitation must be given to the person: (a) except where paragraph (b) applies—by one of the methods

specified in section 441A; or



Section 424AA


(b) if the person is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

424AA Information and invitation given orally by Tribunal while applicant appearing

If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) if the Tribunal does so—the Tribunal must: (i) ensure, as far as is reasonably practicable, that the

applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii) orally invite the applicant to comment on or respond to the information; and

(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

424A Information and invitation given in writing by Tribunal

(1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers

appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

Part 7 Review of protection visa decisions Division 4 Conduct of review Section 424B


(c) invite the applicant to comment on or respond to it.

(2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies—by one of the methods



(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3) This section does not apply to information: (a) that is not specifically about the applicant or another person

and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application for review; or

(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c) that is non-disclosable information.

424B Requirements for written invitation etc.

(1) If a person is: (a) invited under section 424 to give additional information; or (b) invited under section 424A to comment on or respond to

information; the invitation is to specify the way in which the additional information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.

(2) If the invitation is to give additional information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.



Section 424C


(3) If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:

(a) at the place specified in the invitation; and (b) at a time specified in the invitation, being a time within a

prescribed period or, if no period is prescribed, a reasonable period.

(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.

(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:

(a) a later time within that period; or (b) a time within that period as extended by the Tribunal for a


424C Failure to give additional information, comments or response in response to written invitation

(1) If a person: (a) is invited under section 424 to give additional information;

and (b) does not give the information before the time for giving it has

passed; the Tribunal may make a decision on the review without taking any further action to obtain the additional information.

(2) If the applicant: (a) is invited under section 424A to comment on or respond to

information; and (b) does not give the comments or the response before the time

for giving them has passed; the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

Part 7 Review of protection visa decisions Division 4 Conduct of review Section 425


425 Tribunal must invite applicant to appear

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the

applicant’s favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review

without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

425A Notice of invitation to appear

(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

(2) The notice must be given to the applicant: (a) except where paragraph (b) applies—by one of the methods



(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

(4) The notice must contain a statement of the effect of section 426A.

426 Applicant may request Refugee Review Tribunal to call witnesses

(1) In the notice under section 425A, the Tribunal must notify the applicant:

(a) that he or she is invited to appear before the Tribunal to give evidence; and

(b) of the effect of subsection (2) of this section.



Section 426A


(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) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.

426A Failure of applicant to appear before Tribunal

(1) If the applicant: (a) is invited under section 425 to appear before the Tribunal;

and (b) does not appear before the Tribunal on the day on which, or

at the time and place at which, the applicant is scheduled to appear;

the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

(2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.

427 Powers of the Refugee Review Tribunal etc.

(1) For the purpose of the review of a decision, the Tribunal may: (a) take evidence on oath or affirmation; or (b) adjourn the review from time to time; or (c) subject to sections 438 and 440, 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 must combine the reviews of 2 or more RRT-reviewable decisions made in respect of the same non-citizen.

Part 7 Review of protection visa decisions Division 4 Conduct of review Section 428


(3) Subject to subsection (4), the Tribunal in relation to a review may: (a) summon a person to appear before the Tribunal to give

evidence; and (b) summon a person to produce to the Tribunal such documents

as are referred to in the summons; and (c) require a person appearing before the Tribunal to give

evidence either to take an oath or affirmation; and (d) administer an oath or affirmation to a person so appearing.

(4) The Tribunal must not 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) If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.

428 Tribunal member may authorise another person to take evidence

(1) The power of the Tribunal under paragraph 427(1)(a) to take evidence on oath or affirmation for the purpose of a review may be exercised by the Tribunal or on behalf of the Tribunal by:

(a) a person appointed or engaged under the Public Service Act 1999; or

(b) another person approved in writing by the Minister for the purposes of this section;

who is authorised in writing by the Tribunal.

(2) The power of the Tribunal may be exercised under subsection (1): (a) inside or outside Australia; and



Section 429


(b) subject to such limitations (if any) as are specified by the Tribunal.

(3) If a person other than the Tribunal 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 427(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 included a reference to that person.

(4) If a person (other than 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 must cause a written record of the evidence taken to be made and sent to the Tribunal.

(5) If the Tribunal receives, under subsection (4), a record of evidence given by the applicant, the Tribunal, for the purposes of section 425, is taken to have given the applicant an opportunity to appear before it to give evidence.

429 Review to be in private

The hearing of an application for review by the Tribunal must be in private.

429A Oral evidence by telephone etc.

For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:

(a) telephone; or (b) closed-circuit television; or (c) any other means of communication.

Part 7 Review of protection visa decisions Division 5 Decisions of Refugee Review Tribunal Section 430


Division 5—Decisions of Refugee Review Tribunal

430 Refugee Review Tribunal to record its decisions etc.

(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (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) A decision on a review (other than an oral decision) is taken to have been made on the date of the written statement.

(3) Where the Tribunal has prepared the written statement, the Tribunal must:

(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.

430A Notifying parties of Tribunal’s decision (decision not given orally)

(1) The Tribunal must notify the applicant of a decision on a review (other than an oral decision) by giving the applicant a copy of the written statement prepared under subsection 430(1). The copy must be given to the applicant:

(a) within 14 days after the day on which the decision is taken to have been made; and

(b) by one of the methods specified in section 441A.

(2) A copy of that statement must also be given to the Secretary: (a) within 14 days after the day on which the decision is taken to

have been made; and (b) by one of the methods specified in section 441B.


Decisions of Refugee Review Tribunal Division 5

Section 430D


(3) A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.

430D Notifying parties when Tribunal gives an oral decision

If the Tribunal gives an oral decision on an application for review, the Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection 430(1) within 14 days after the decision concerned is made. The applicant is taken to be notified of the decision on the day on which the decision is made.

431 Certain Tribunal decisions to be published

(1) Subject to subsection (2), and to any direction under section 440, the Registrar must ensure the publication of any statements prepared under subsection 430(1) that the Principal Member thinks are of particular interest.

(2) The Tribunal must not publish any statement which may identify an applicant or any relative or other dependent of an applicant.

Part 7 Review of protection visa decisions Division 6 Offences Section 432


Division 6—Offences

432 Failure of witness to attend

(1) A person who has been served, as prescribed, with a summons, under subsection 427(3), to appear before the Tribunal to give evidence and tendered reasonable expenses must not:

(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 the Tribunal.





(2) To avoid doubt, an invitation under section 425 to appear before the Tribunal is not a summons to appear before the Tribunal to give evidence.

433 Refusal to be sworn or to answer questions etc.

(1) A person appearing before the Tribunal to give evidence must not: (a) when required under section 427 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 Tribunal.





Offences Division 6

Section 434


(2) Subject to section 437, a person must not refuse or fail to produce a document that a person is required to produce by a summons under section 427 served on the person as prescribed.




(2B) An offence against subsection (1) or (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

(3) A person appearing before the Tribunal to give evidence must not intentionally give evidence that is false or misleading in a material particular.

Penalty for a contravention of this subsection: Imprisonment for 12 months.

434 Contempt of Tribunal

A person must 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.


Part 7 Review of protection visa decisions Division 7 Miscellaneous Section 435


Division 7—Miscellaneous

435 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 member of the Administrative Appeals Tribunal.

(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 Administrative Appeals Tribunal.

436 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 must be paid: (a) if the applicant notifies the Tribunal under subsection 426(2)

that he or she wants the Tribunal to obtain evidence from the person—by the applicant; or

(b) in any other case—by the Commonwealth.

437 Restrictions on disclosure of certain information etc.

In spite of anything else in this Act, the Secretary must 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.



Section 438


438 Refugee Review 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 437(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) If, in compliance with 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) must 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) If 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 under subsection (2), disclose any matter contained in the document, or the information, to the applicant.

(4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.



439 Disclosure of confidential information

(1) This section applies to a person who is or has been: (a) a member of the Tribunal; or (b) a person acting as a member of the Tribunal; or (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 must 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 communication of information whether directly or indirectly.

(5) A person to whom this section applies must not be required to produce any document, or to divulge or communicate any information, to which this section applies to or in:

(a) a court; or (b) a tribunal; or (c) a House of the Parliament of the Commonwealth, of a State

or of a Territory; or (d) a committee of a House, or the Houses, of the Parliament of

the Commonwealth, of a State or of a Territory; or (e) any other authority or person having power to require the

production of documents or the answering of questions;



Section 440


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 is taken to be performing a function under this Act.


produce includes permit access to.

440 Refugee Review Tribunal may restrict publication or disclosure of certain matters

(1) If the Tribunal is satisfied, in relation to a review, that it is in the public interest that:

(a) any evidence given before the Tribunal; or (b) any information given to the Tribunal; or (c) the contents of any document produced to the Tribunal;

should not be published or otherwise disclosed, or should not be published or otherwise disclosed except in a particular manner and to particular persons, the Tribunal may give a written direction accordingly.

(2) If 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 430; 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 must not contravene a direction given by the Tribunal under subsection (1) that is applicable to the person.


Part 7 Review of protection visa decisions Division 7 Miscellaneous Section 440A


440A Principal Member’s obligation to report to Minister

Principal Member must give periodic reports to Minister

(1) The Principal Member must give a report under this section to the Minister within 45 days after the end of each of the following periods (each of which is a reporting period):

(a) the period that started on 1 July 2005 and ends, or ended, on 31 October 2005; and

(b) each subsequent period of 4 months.

Principal Member must give additional reports to Minister as required

(2) The Minister may give to the Principal Member a notice requiring the Principal Member to give to the Minister a report under this section in addition to the reports required under subsection (1). The notice must specify the period to which the report is to relate (also a reporting period).

(3) The Principal Member must give the report under subsection (2) to the Minister:

(a) within 45 days after the day on which the reporting period ends; or

(b) within 45 days after the day on which the Minister gives the notice to the Principal Member;

whichever is later.

(4) A notice under subsection (2) is not a legislative instrument.

Information that must be included in report

(5) A report under this section relating to a reporting period must include information about each application for a review of an RRT-reviewable decision:

(a) that: (i) an applicant has validly made under section 412; or (ii) a court has remitted to the Refugee Review Tribunal for

reconsideration; and (b) for which: (i) the Refugee Review Tribunal has reviewed the decision

under section 414 and has recorded its decision under



Section 440A


section 430 during the reporting period, but has not done so within the decision period; or

(ii) the Refugee Review Tribunal has not reviewed the decision under section 414 and has not recorded its decision under section 430 before or during the reporting period, and the decision period has ended (whether before or during the reporting period).

(6) The report must also include: (a) the date on which each application was made that: (i) was validly made under section 412; and (ii) paragraph (5)(b) applies to; and (b) the reasons why decisions were not reviewed within the

decision period. Note: The reasons mentioned in paragraph (6)(b) may relate to aspects of

processing applications for review that are beyond the Refugee Review Tribunal’s control.

Information that must not be included in the report

(7) A report under this section must not include: (a) the name of any current or former applicant for review of an

RRT-reviewable decision; or (b) any information that may identify such an applicant; or (c) the name of any other person connected in any way with any

application for review of an RRT-reviewable decision made by the applicant mentioned in paragraph (a); or

(d) any information that may identify that other person.

Information that may be included in the report

(8) The report may include any other information that the Principal Member thinks appropriate.

Reports to be tabled in Parliament

(9) The Minister must cause a copy of a report under this section to be tabled in each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report from the Principal Member.



Definition


decision period for an application for review of an RRT-reviewable decision means the period of 90 days starting on the day on which the Secretary has given to the Registrar the documents required to be given by subsections 418(2) and 418(3).

441 Sittings of the Refugee Review Tribunal

(1) Sittings of the Tribunal are to be held from time to time as required, in such places in Australia as are convenient.

(2) The Tribunal constituted by a member may sit and exercise the powers of the Tribunal even though the Tribunal constituted by another member is at the same time sitting and exercising those powers.



Section 441AA


Division 7A—Giving and receiving review documents etc.

441AA Giving documents by Tribunal where no requirement to do so by section 441A or 441B method


the Tribunal to give a document to a person; and (b) the provision does not state that the document must be given: (i) by one of the methods specified in section 441A or

441B; or (ii) by a method prescribed for the purposes of giving

documents to a person in immigration detention; the Tribunal may give the document to the person by any method that it considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section). Note 1: If 2 or more persons apply for a review of a decision together, a

document given to a person is taken to be given to each of them, see section 441EA.

Note 2: Under section 441G an applicant may give the Tribunal the name of an authorised recipient who is to receive documents on the applicant’s behalf.

(2) If a person is a minor, the Tribunal may give a document to an individual who is at least 18 years of age if a member, the Registrar or an officer of the Tribunal reasonably believes that:



(2A) However, subsection (2) does not apply if section 441EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.

(3) If the Tribunal gives a document to an individual, as mentioned in subsection (2), the Tribunal is taken to have given the document to

Part 7 Review of protection visa decisions Division 7A Giving and receiving review documents etc. Section 441A


the minor. However, this does not prevent the Tribunal giving the minor a copy of the document.

441A Methods by which Tribunal gives documents to a person other than the Secretary

Coverage of section

(1) For the purposes of provisions of this Part or the regulations that: (a) require or permit the Tribunal to give a document to a person

(the recipient); and (b) state that the Tribunal must do so by one of the methods


(1A) If a person is a minor, the Tribunal may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor):

(a) who is at least 18 years of age; and (b) who a member, the Registrar or an officer of the Tribunal

reasonably believes: (i) has day-to-day care and responsibility for the minor; or (ii) works in or for an organisation that has day-to-day care

and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.

Note: If the Tribunal gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 441C in respect of that method.

(1B) However, subsection (1A) does not apply if section 441EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.

Giving by hand

(2) One method consists of a member, the Registrar or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the recipient.



Section 441A



(3) Another method consists of a member, the Registrar or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to another person who:

(a) is at the last residential or business address provided to the Tribunal by the recipient in connection with the review; and




(4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:


(b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Tribunal by

the recipient in connection with the review; or (ii) the last residential or business address provided to the

Tribunal by the recipient in connection with the review; or

(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the member, Registrar or other officer.


(5) Another method consists of a member, the Registrar or an officer of the Tribunal, transmitting the document by:


to: (d) the last fax number, e-mail address or other electronic

address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or

(e) if the recipient is a minor—the last fax number, e-mail address or other electronic address, as the case may be, for a

Part 7 Review of protection visa decisions Division 7A Giving and receiving review documents etc. Section 441B


carer of the minor that is known by the member, Registrar or other officer.


(6) If the Tribunal gives a document to a carer of a minor, the Tribunal is taken to have given the document to the minor. However, this does not prevent the Tribunal giving the minor a copy of the document.

441B Methods by which Tribunal gives documents to the Secretary

Coverage of section

(1) For the purposes of provisions of this Part or the regulations that: (a) require or permit the Tribunal to give a document to the

Secretary; and (b) state that the Tribunal must do so by one of the methods


Giving by hand

(2) One method consists of a member, the Registrar or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the Secretary or to an authorised officer.


(3) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:


(b) by post or by other means; and (c) to an address, notified to the Tribunal in writing by the

Secretary, to which such documents can be dispatched.


(4) Another method consists of a member, the Registrar or an officer of the Tribunal, transmitting the document by:

(a) fax; or



Section 441C


(b) e-mail; or (c) other electronic means;

to the last fax number, e-mail address or other electronic address notified to the Tribunal in writing by the Secretary for the purpose.

441C When a person other than the Secretary is taken to have received a document from the Tribunal

(1) This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 441A (including in a case covered by section 441AA).

Giving by hand

(2) If the Tribunal gives a document to a person by the method in subsection 441A(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.


(3) If the Tribunal gives a document to a person by the method in subsection 441A(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.


(4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:




(5) If the Tribunal gives a document to a person by the method in subsection 441A(5) (which involves transmitting the document by fax, e-mail or other electronic means), the person is taken to have

Part 7 Review of protection visa decisions Division 7A Giving and receiving review documents etc. Section 441D


received the document at the end of the day on which the document is transmitted.



(7) If: (a) the Tribunal purports to give a document to a person in

accordance with a method specified in section 441A (including in a case covered by section 441AA) but makes an error in doing so; and

(b) the person nonetheless receives the document or a copy of it; then the person is taken to have received the document at the times mentioned in this section as if the Tribunal had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.

441D When the Secretary is taken to have received a document from the Tribunal

(1) This section applies if the Tribunal gives a document to the Secretary by one of the methods specified in section 441B (including in a case covered by section 441AA).

Giving by hand

(2) If the Tribunal gives a document to the Secretary by the method in subsection 441B(2) (which involves handing the document to the Secretary or to an authorised officer), the Secretary is taken to have received the document when it is handed to the Secretary or to the authorised officer.


(3) If the Tribunal gives a document to the Secretary by the method in subsection 441B(3) (which involves dispatching the document by post or by other means), the Secretary is taken to have received the document:



Section 441E





(4) If the Tribunal gives a document to the Secretary by the method in subsection 441B(4) (which involves transmitting the document by fax, e-mail or other electronic means), the Secretary is taken to have received the document at the end of the day on which the document is transmitted.


441E Tribunal may give copies of documents

If a provision of this Act requires or permits the Tribunal to give a document to a person, the Tribunal may instead give a copy of the document to the person by the same means as the Tribunal could give the document itself.

441EA Giving documents by Tribunal—combined applications

If 2 or more persons apply for a review of a decision together, documents given to any of them in connection with the review are taken to be given to each of them. Note 1: If the Tribunal gives a person a document by a method specified in


Note 2: Section 441G deals with giving documents to a person’s authorised recipient.

441F Giving documents etc. to the Tribunal

(1) If, in relation to the review of an RRT-reviewable decision, a person is required or permitted to give a document or thing to the Tribunal, the person must do so:

(a) by giving the document or thing to the Registrar or an officer of the Tribunal; or

(b) by a method set out in directions under section 420A; or

Part 7 Review of protection visa decisions Division 7A Giving and receiving review documents etc. Section 441G


(c) if the regulations set out a method for doing so—by that method.

(2) Directions under section 420A may make provision for a person to give a copy of a document, rather than the document itself, to the Tribunal.

441G Authorised recipient

(1) If: (a) a person (the applicant) applies for review of an

RRT-reviewable decision; and (b) the applicant gives the Tribunal written notice of the name

and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;

the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. Note: If the Tribunal gives a person a document by a method specified in


(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.

(3) The applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant’s authorised recipient.

(4) The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication.

(5) This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.



Section 442


Division 8—Referral of decisions to Administrative Appeals Tribunal

442 Interpretation

In this Division:

AAT Act means the Administrative Appeals Tribunal Act 1975.

443 Referral of decisions to Administrative Appeals Tribunal

(1) The Principal Member of the Refugee Review Tribunal may, if the Principal Member considers that a RRT-reviewable decision involves an important principle, or issue, of general application, refer the decision to the President of the Administrative Appeals Tribunal.

(2) A referral under subsection (1) may be made at any time: (a) after the receipt by the Refugee Review Tribunal of an

application for a review of the decision; and (b) before that Tribunal makes a decision on the application.

(3) The following material must be sent with the referral: (a) a request for a review by the Administrative Appeals

Tribunal of that decision; (b) a statement of the Principal Member’s reasons for concluding

that the decision involves an important principle, or issue, of general application;

(c) any documents or other records that the Principal Member considers relevant.

(4) The Principal Member must give written notice of the making of a referral under subsection (1) to the applicant and the Secretary.

(5) The Refugee Review Tribunal must not commence any action in relation to the proceeding before it with respect to the decision, or, if it has commenced such action, must cease that action until notified by the President of the Administrative Appeals Tribunal in accordance with section 444.

Part 7 Review of protection visa decisions Division 8 Referral of decisions to Administrative Appeals Tribunal Section 444


(6) If the President of the Administrative Appeals Tribunal directs that the Administrative Appeals Tribunal will accept the referral, the review by the Refugee Review Tribunal is taken to be closed.

444 Administrative Appeals Tribunal may accept or decline referral

(1) The President of the Administrative Appeals Tribunal must consider a request under section 443 and either:

(a) direct that the Administrative Appeals Tribunal will accept the referral of the decision; or

(b) direct that the Administrative Appeals Tribunal will decline the referral of the decision.

(2) The President must notify the Principal Member of the direction made under subsection (1).

(3) If the President accepts the referral of an application for review of an RRT-reviewable decision:

(a) the application to the Refugee Review Tribunal is taken to have been properly made to the Administrative Appeals Tribunal by the applicant to the Refugee Review Tribunal; and

(b) the AAT Act applies to the review of the RRT-reviewable decision subject to the modifications in this Division.

445 Modification of definition of member in section 3 of the AAT Act

Section 3 of the AAT Act applies in relation to an RRT-reviewable decision as if the definition of member were omitted and the following definition substituted:

“member means a presidential member, a senior member or any other member of the Tribunal and includes the Principal Member of the Refugee Review Tribunal.”.


Section 21 of the AAT Act applies in relation to an RRT-reviewable decision as if:

(a) Subsection (1) were omitted and the following subsections substituted:



Section 447


“(1) Subject to subsection (1AA), the Tribunal is, for the purposes of the exercise of its powers in relation to a matter, to be constituted by:

(a) a presidential member who is a Judge, the Principal Member of the Refugee Review Tribunal and one other member (not being a Judge); or

(b) a Deputy President, the Principal Member of the Refugee Review Tribunal and one non-presidential member.

“(1AA) If the Principal Member of the Refugee Review Tribunal had constituted that Tribunal for the review by the Refugee Review Tribunal of the RRT-reviewable decision that is the subject of a matter, the Tribunal in relation to proceedings for the purposes of the exercise of its power in relation to that matter, is to be constituted by:

(a) a presidential member who is a Judge and two other members (not being Judges or the Principal Member of the Refugee Review Tribunal); or

(b) a Deputy President and two non-presidential members (not being the Principal Member of the Refugee Review Tribunal).”; and

(b) subsections (2), (3) and (4) were omitted.

447 Certain sections of the AAT Act do not apply to RRT-reviewable decisions

Sections 21A, 27, 28 and 29 of the AAT Act do not apply in relation to RRT-reviewable decisions.


Section 25 of the AAT Act applies in relation to an RRT-reviewable decision as if subsections (6) and (6A) were omitted.




Section 30 of the AAT Act applies in relation to an RRT-reviewable decision as if paragraphs (1)(a) and (b) were omitted and the following paragraphs substituted:

“(a) the person who, under section 444 of the Migration Act 1958, is taken to have applied to the Tribunal for review of the decision; and

(b) the person who is the Minister for the purposes of the Migration Act 1958; and”.


Section 37 of the AAT Act applies in relation to an RRT-reviewable decision as if:

(a) subsections (1) to (1D) (inclusive) were omitted and the following subsections substituted:

“(1) The Principal Member of the Refugee Review Tribunal must forward to the Administrative Appeals Tribunal all documents and other records relating to the proceeding before the Refugee Review Tribunal with respect to the RRT-reviewable decision within 14 days after receiving notice of the acceptance of the referral of the decision to the Administrative Appeals Tribunal.

“(1A) Documents provided under subsection 443(3) of the Migration Act 1958 are taken to have been provided in accordance with subsection (1) of this section.”; and

(b) subsection (4) were omitted.


Section 38 of the AAT Act applies in relation to an RRT-reviewable decision as if the reference in that section to a statement referred to in paragraph 37(1)(a) that is lodged by a person with the Tribunal were a reference to a statement that was lodged with the Refugee Review Tribunal by a person under section 418 of the Migration Act 1958.



Section 452



Section 43 of the AAT Act applies in relation to an RRT-reviewable decision as if subsection (1) were omitted and the following subsections were substituted:

“(1) The Tribunal may, for the purposes of the review of a RRT-reviewable decision, exercise all the powers and discretions that are conferred by the Migration Act 1958 on the person who made the decision.

“(1A) The Tribunal may: (a) affirm the decision; or (b) vary the decision; or (c) if the decision relates to a matter prescribed for the

purposes of paragraph 415(2)(c) of the Migration Act 1958—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations under that Act; or

(d) set the decision aside and substitute a new decision. “(1B) If the Tribunal: (a) varies the decision; or (b) sets aside the decision and substitutes a new decision;


“(1C) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Migration Act 1958 or the regulations under that Act.”.

453 Only new information to be considered in later applications for review

If a non-citizen who has made: (a) an application for review of an RRT-reviewable decision that

has been determined by the Administrative Appeals Tribunal or the Refugee Review Tribunal; or

(b) applications for reviews of RRT-reviewable decisions that have been determined by the Administrative Appeals Tribunal, or the Refugee Review Tribunal;



makes a further application for review of an RRT-reviewable decision, the Administrative Appeals Tribunal, in considering the further application:

(c) is not required to consider any information considered in the earlier application or an earlier application; and

(d) may have regard to, and take to be correct, any decision that the Administrative Appeals Tribunal or the Refugee Review Tribunal made about or because of that information.


(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Administrative Appeals Tribunal in relation to an RRT-reviewable decision another decision, being a decision that is more favourable to the applicant, whether or not the Administrative Appeals Tribunal had the power to make that other decision.

(2) In exercising the power under subsection (1) on or after 1 September 1994, the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.










Section 455






455 Provision of material to which section 438 applies

If the Refugee Review Tribunal gives to the Administrative Appeals Tribunal a document or information to which section 438 of this Act applies, the Refugee Review Tribunal must give the Administrative Appeals Tribunal written notice of the application of that section.

456 Section 9 of AAT Act not to apply to Principal Member

In spite of anything in this Act or in any other enactment, section 9 of the AAT Act does not apply to the Principal Member of the Refugee Review Tribunal.

Part 7 Review of protection visa decisions Division 9 Establishment and membership of the Refugee Review Tribunal Section 457


Division 9—Establishment and membership of the Refugee Review Tribunal

457 Establishment of the Refugee Review Tribunal

A Refugee Review Tribunal is established.

458 Membership of Refugee Review Tribunal

(1) The Refugee Review Tribunal consists of: (a) a Principal Member; and (b) if a person is appointed as a Deputy Principal Member—a

Deputy Principal Member; and (c) such number of Senior Members and other members as are

appointed in accordance with this Act.

(2) The total number of persons appointed under paragraphs (1)(b) and (1)(c) must not exceed the prescribed number.

459 Appointment of members

(1) Subject to subsection (1A), the members of the Tribunal are to be appointed by the Governor-General.

(1A) The Governor-General may appoint a person as the Deputy Principal Member.

(2) The Principal Member is to be appointed as a full-time member.

(3) Any other member may be appointed either as a full-time member or as a part-time member.

460 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 is responsible for:


Establishment and membership of the Refugee Review Tribunal Division 9

Section 461


(a) monitoring the operations of the Tribunal to ensure that those operations are as fair, just, economical, informal and quick as practicable; and

(b) allocating 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 must provide that cases where a person affected by the decision under review is being held in immigration detention must be given priority over other cases.

461 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, but is eligible for re-appointment.

462 Remuneration and allowances of members

(1) A member is to be paid such remuneration as is determined by the Remuneration Tribunal but if no determination of that remuneration is in operation, the member is to be paid such remuneration as is prescribed.

(2) A member is to be paid such allowances as are prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

464 Leave of absence

The Minister may grant leave of absence to a full-time member on such terms and conditions as to remuneration or otherwise as the Minister determines in writing.



465 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.

466 Resignation

A member may resign by writing signed by him or her and sent to the Governor-General.

467 Disclosure of interests

(1) A member who has a conflict of interest in relation to a review by the Tribunal:

(a) must 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 must not take part in the review or exercise any

powers in relation to the review unless: (i) if 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.

468 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; or (b) the member applies to take the benefit of any law for the

relief of bankrupt or insolvent debtors; or (c) the member compounds with his or her creditors; or



Section 469


(d) the member makes an assignment of remuneration for the benefit of his or her creditors; or

(e) the member has a direct or indirect pecuniary interest in an immigration advisory service; or

(f) the member, being a full-time member, is absent from duty, except on leave of absence granted under section 464, for 14 consecutive days or 28 days in any 12 months; or

(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 467.


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.


(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 must not continue to act for more than 12 months.

(3) If a person is acting in an office, the Minister may direct that, for the purposes specified in the direction, the person is to be taken to continue to act in the office after the normal terminating event occurs.

(4) A direction under subsection (3) must specify the period during which the person is to be taken to continue to act in the office concerned.

(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 (3): (a) is to be given only if there is a pending review or other

special circumstances justifying the giving of the direction; and

(b) may only be given before the normal terminating event occurs; and

(c) has effect according to its terms even if the holder of the office concerned is also performing the duties of the office; and

(d) ceases to have effect 12 months after the normal terminating event occurs.

(7) If the Tribunal is constituted for the purposes of a review by a person acting or purporting to act under this section, any decision of, or any direction given or other acts done by, the Tribunal as so constituted is not invalid merely because:



(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.



Section 470


senior office means the office of Principal Member, the office of Deputy Principal Member or an office of Senior Member.

470 Delegation

The Principal Member may, by writing signed by him or her, delegate to a member all or any of the Principal Member’s powers under this Act other than the power under section 443 to refer decisions to the AAT.

Part 7 Review of protection visa decisions Division 10 Registry and officers Section 471


Division 10—Registry and officers

471 Registry

The Minister is to cause a Registry of the Tribunal to be established.

472 Officers of Tribunal

(1) There is to be a Registrar of the Tribunal and such other officers of the Tribunal as are required.

(2) The Registrar and the other officers of the Tribunal are to 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 and the other officers of the Tribunal are to be persons engaged under the Public Service Act 1999.


(1) The Minister may appoint a person engaged under the Public Service Act 1999 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 the Registrar of the Tribunal, or the office of any other officer of the Tribunal appointed under section 472.

Statutory agency for purposes of Public Service Act Part 7A

Section 473A


Part 7A—Statutory agency for purposes of Public Service Act

473A Statutory agency for purposes of Public Service Act

For the purposes of the Public Service Act 1999: (a) the Principal Member of the Refugee Review Tribunal and

the persons mentioned in subsections 407(4) and 472(4) together constitute a Statutory Agency; and

(b) the Principal Member of the Refugee Review Tribunal is the Head of that Statutory Agency.

Part 8 Judicial review Division 1 Privative clause Section 474


Part 8—Judicial review

Division 1—Privative clause

474 Decisions under Act are final

(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed

or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction,

declaration or certiorari in any court on any account.


privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

(3) A reference in this section to a decision includes a reference to the following:

(a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;

(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;

(d) imposing, or refusing to remove, a condition or restriction; (e) making or revoking, or refusing to make or revoke, a

declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; (g) doing or refusing to do any other act or thing; (h) conduct preparatory to the making of a decision, including

the taking of evidence or the holding of an inquiry or investigation;

Judicial review Part 8

Privative clause Division 1

Section 474


(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;

(j) a failure or refusal to make a decision.

(4) For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:

Decisions that are not privative clause decisions Item Provision Subject matter of provision 1 section 213 Liability for the costs of detention, removal

or deportation 2 section 217 Conveyance of removees 3 section 218 Conveyance of deportees etc. 4 section 222 Orders restraining non-citizens from

disposing of property 5 section 223 Valuables of detained non-citizens 6 section 224 Dealing with seized valuables 7 section 252 Searches of persons 8 section 259 Detention of vessels for search 9 section 260 Detention of vessels/dealing with detained

vessels 10 section 261 Disposal of certain vessels 11 Division 14 of Part 2 Recovery of costs 12 section 269 Taking of securities 13 section 272 Migrant centres 14 section 273 Detention centres 15 Part 3 Migration agents registration scheme 16 Part 4 Court orders about reparation 17 section 353A Directions by Principal Member 18 section 354 Constitution of Migration Review Tribunal 19 section 355 Reconstitution of Migration Review

Tribunal 20 section 355A Reconstitution of Migration Review

Tribunal for efficient conduct of review 21 section 356 Exercise of powers of Migration Review

Tribunal

Part 8 Judicial review Division 1 Privative clause Section 474


Decisions that are not privative clause decisions Item Provision Subject matter of provision 22 section 357 Presiding member 23 Division 7 of Part 5 Offences 24 Part 6 Establishment and membership of Migration

Review Tribunal 25 section 421 Constitution of Refugee Review Tribunal 26 section 422 Reconstitution of Refugee Review Tribunal 27 section 422A Reconstitution of Refugee Review Tribunal

for efficient conduct of review 28 Division 6 of Part 7 Offences 29 Division 9 of Part 7 Establishment and membership of Refugee

Review Tribunal 30 Division 10 of Part 7 Registry and officers 31 regulation 5.35 Medical treatment of persons in detention

(5) The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, is not a privative clause decision.

(6) A decision mentioned in subsection 474(4), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection 474(5), is a non-privative clause decision.

(7) To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection 474(2):

(a) a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 195A, 197AB, 197AD, 351, 391, 417 or 454 or subsection 503A(3);

(b) a decision of the Principal Member of the Migration Review Tribunal or of the Principal Member of the Refugee Review Tribunal to refer a matter to the Administrative Appeals Tribunal;

(c) a decision of the President of the Administrative Appeals Tribunal to accept, or not to accept, the referral of a decision under section 382 or 444;


Privative clause Division 1

Section 474


(d) a decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited.

Part 8 Judicial review Division 2 Jurisdiction and procedure of courts Section 475


Division 2—Jurisdiction and procedure of courts

475 This Division not to limit section 474

This Division is not to be taken to limit the scope or operation of section 474.

476 Jurisdiction of the Federal Magistrates Court

(1) Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

(2) The Federal Magistrates Court has no jurisdiction in relation to the following decisions:

(a) a primary decision; (b) a privative clause decision, or purported privative clause

decision, of the Administrative Appeals Tribunal on review under section 500;

(c) a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;

(d) a privative clause decision or purported privative clause decision mentioned in subsection 474(7).

(3) Nothing in this section affects any jurisdiction the Federal Magistrates Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.


primary decision means a privative clause decision or purported privative clause decision:

(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or

(b) that would have been so reviewable if an application for such review had been made within a specified period.


Jurisdiction and procedure of courts Division 2

Section 476A


476A Limited jurisdiction of the Federal Court

(1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

(a) the Federal Magistrates Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Magistrates Act 1999; or

(b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or

(c) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C; or

(d) the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.

Note: Only non-privative clause decisions can be taken to the Federal Court under subsection 44(3) of the Administrative Appeals Tribunal Act 1975 (see section 483).

(2) Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.

476B Remittal by the High Court

(1) Subject to subsection (3), the High Court must not remit a matter, or any part of a matter, that relates to a migration decision to any court other than the Federal Magistrates Court.

(2) The High Court must not remit a matter, or any part of a matter, that relates to a migration decision to the Federal Magistrates Court unless that court has jurisdiction in relation to the matter, or that part of the matter, under section 476.

(3) The High Court may remit a matter, or part of a matter, that relates to a migration decision in relation to which the Federal Court has jurisdiction under paragraph 476A(1)(b) or (c) to that court.



(4) Subsection (1) has effect despite section 44 of the Judiciary Act 1903.

477 Time limits on applications to the Federal Magistrates Court

(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.

(2) The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:

(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and

(b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.

(3) Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.

(4) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.

477A Time limits on applications to the Federal Court

(1) An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.

(2) The Federal Court may, by order, extend that 28 day period by up to 56 days if:


(b) the Federal Court is satisfied that it is in the interests of the administration of justice to do so.



Section 478


(3) Except as provided by subsection (2), the Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.


478 Persons who may make application

An application referred to in section 477 or 477A may only be made by the Minister, or where appropriate the Secretary, and:

(a) if the migration decision concerned is made on review under Part 5 or 7 or section 500—the applicant in the review by the relevant Tribunal; or

(b) in any other case—the person who is the subject of the decision; or

(c) in any case—a person prescribed by the regulations.

479 Parties to review

The parties to a review of a migration decision resulting from an application referred to in section 477 or 477A are the Minister, or where appropriate the Secretary, and:

(a) if the migration decision concerned is made on review under Part 5 or 7 or section 500—the applicant in the review by the relevant Tribunal; or

(b) in any other case—the person who is the subject of the migration decision; or

(c) in any case—a person prescribed by the regulations.

480 Intervention by Attorney-General

(1) The Attorney-General may, on behalf of the Commonwealth, intervene in a proceeding resulting from an application referred to in section 477 or 477A.

(2) If the Attorney-General intervenes in such a proceeding, the Federal Magistrates Court or Federal Court (as the case requires) may make such orders as to costs against the Commonwealth as the court thinks fit.



(3) If the Attorney-General intervenes in such a proceeding, he or she is taken to be a party to the proceeding.

481 Operation etc. of decision

The making of an application referred to in section 477 or 477A does not:

(a) affect the operation of the decision; or (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.

482 Changing person holding, or performing the duties of, an office

If: (a) a person has, in the performance of the duties of an office,

made a migration decision; and (b) the person no longer holds, or, for whatever reason, is not

performing the duties of, that office; this Part has effect as if the decision had been made by:

(c) the person for the time being holding or performing the duties of that office; or

(d) if there is no person for the time being holding or performing the duties of that office or that office no longer exists—such person as the Minister specifies.

483 Section 44 of the Administrative Appeals Tribunal Act 1975

Section 44 of the Administrative Appeals Tribunal Act 1975 does not apply to privative clause decisions or purported privative clause decisions.

484 Exclusive jurisdiction of High Court, Federal Court and Federal Magistrates Court

(1) Only the High Court, the Federal Court and the Federal Magistrates Court have jurisdiction in relation to migration decisions.

(2) To avoid doubt, subsection (1) is not intended to confer jurisdiction on the High Court, the Federal Court or the Federal Magistrates



Section 484


Court, but to exclude other courts from jurisdiction in relation to migration decisions.

(3) To avoid doubt, despite section 67C of the Judiciary Act 1903, the Supreme Court of the Northern Territory does not have jurisdiction in relation to migration decisions.

(4) To avoid doubt, jurisdiction in relation to migration decisions is not conferred on any court under the Jurisdiction of Courts (Cross-vesting) Act 1987.

Part 8A Restrictions on court proceedings Section 486A


Part 8A—Restrictions on court proceedings

486A Time limit on applications to the High Court for judicial review

(1) An application to the High Court for a remedy to be granted in exercise of the court’s original jurisdiction in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.

(1A) The High Court may, by order, extend that 28 day period by up to 56 days if:


(b) the High Court is satisfied that it is in the interests of the administration of justice to do so.

(2) Except as provided by subsection (1A), the High Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.


486AA Intervention by Attorney-General

(1) The Attorney-General may, on behalf of the Commonwealth, intervene in a proceeding resulting from an application referred to in subsection 486A(1).

(2) If the Attorney-General intervenes in such a proceeding, the High Court may make such orders as to costs against the Commonwealth as the court thinks fit.

(3) If the Attorney-General intervenes in such a proceeding, he or she is taken to be a party to the proceeding.

Restrictions on court proceedings Part 8A

Section 486AB


486AB Operation etc. of decision

The making of an application referred to in section 486A does not: (a) affect the operation of the decision; or (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.

486B Multiple parties in migration litigation


(1) This section applies to all proceedings (migration proceedings) in the High Court, the Federal Court or the Federal Magistrates Court that raise an issue in connection with visas (including if a visa is not granted or has been cancelled), deportation, or removal of unlawful non-citizens.

Consolidation of proceedings

(2) Consolidation of any migration proceeding with any other migration proceeding is not permitted unless the court is satisfied that:

(a) the consolidation would otherwise be permitted under other relevant laws (including Rules of Court); and

(b) the consolidation is desirable for the efficient conduct of the proceedings.

(3) No appeal lies from a decision by the court not to consolidate proceedings under subsection (2).

Other joint proceedings etc.

(4) The following are not permitted in or by a migration proceeding: (a) representative or class actions; (b) joinder of plaintiffs or applicants or addition of parties; (c) a person in any other way (but not including as a result of

consolidation under subsection (2)) being a party to the proceeding jointly with, on behalf of, for the benefit of, or representing, one or more other persons, however this is described.

Part 8A Restrictions on court proceedings Section 486C


Relationship with other laws

(5) This section has effect despite any other law, including in particular:

(a) Part IVA of the Federal Court of Australia Act 1976; and (b) any Rules of Court.

(6) However, this section does not apply to a provision of an Act if the provision:

(a) commences after this section commences; and (b) specifically states that this section does not apply.

Exceptions to general rules

(7) This section does not prevent the following persons from being involved in a migration proceeding:

(a) the applicants in the proceeding and any persons they represent, if:

(i) the regulations set out a definition of family for the purposes of this paragraph; and

(ii) all of those applicants and other persons are members of the same family as so defined;

(b) a person who becomes a party to the proceeding in performing the person’s statutory functions;

(c) the Attorney-General of the Commonwealth or of a State or Territory;

(d) any other person prescribed in the regulations.

486C Persons who may commence or continue proceedings in the Federal Magistrates Court or the Federal Court

(1) Only the persons mentioned in this section may commence or continue a proceeding in the Federal Magistrates Court or the Federal Court that raises an issue:

(a) in connection with visas (including if a visa is not granted or has been cancelled), deportation, or removal of unlawful non-citizens; and

(b) that relates to the validity, interpretation or effect of a provision of this Act or the regulations;

(whether or not the proceeding raises any other issue).

Restrictions on court proceedings Part 8A

Section 486D


(2) Those persons are: (a) a party to a review mentioned in section 479; or (b) the Attorney-General of the Commonwealth or of a State or a

Territory; or (c) a person who commences or continues the proceeding in

performing the person’s statutory functions; or (d) any other person prescribed by the regulations.

(3) This section applies to proceedings within the Federal Magistrates Court’s jurisdiction under section 476 of this Act, section 44 of the Judiciary Act 1903, section 32AB of the Federal Court of Australia Act 1976 or any other law.

(3A) This section applies to proceedings transferred to the Federal Court under section 39 of the Federal Magistrates Act 1999 and proceedings in which the Federal Court has jurisdiction under paragraph 476A(1)(b) or (c).

(4) To avoid doubt, nothing in this section allows a person to commence or continue a proceeding that the person could not otherwise commence or continue.

Relationship with other laws

(5) This section has effect despite any other law.

(6) However, subsection (5) does not apply to a provision of an Act if the provision:

(a) commences after this section commences; and (b) specifically states that it applies despite this section.

486D Disclosing other judicial review proceedings

(1) A person must not commence a proceeding in the Federal Magistrates Court in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.

(2) A person must not commence a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding

Part 8A Restrictions on court proceedings Section 486D


already brought by the person in that or any other court in relation to that decision.

(3) A person must not commence a proceeding in the High Court seeking the exercise of the court’s original jurisdiction in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.

(4) Proceedings required to be disclosed under subsection (1), (2) or (3) include proceedings brought before the commencement of this section.


judicial review proceeding, in relation to a tribunal decision, means:

(a) a proceeding in the Federal Magistrates Court in relation to the tribunal decision; or

(b) a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision; or

(c) a proceeding in the High Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision.

tribunal decision means a privative clause decision, or purported privative clause decision, made on review by a Tribunal under Part 5 or 7 or section 500.

Costs orders where proceedings have no reasonable prospect of success Part 8B

Section 486E


Part 8B—Costs orders where proceedings have no reasonable prospect of success

486E Obligation where there is no reasonable prospect of success

(1) A person must not encourage another person (the litigant) to commence or continue migration litigation in a court if:

(a) the migration litigation has no reasonable prospect of success; and

(b) either: (i) the person does not give proper consideration to the

prospects of success of the migration litigation; or (ii) a purpose in commencing or continuing the migration

litigation is unrelated to the objectives which the court process is designed to achieve.

(2) For the purposes of this section, migration litigation need not be: (a) hopeless; or (b) bound to fail;

for it to have no reasonable prospect of success.

(3) This section applies despite any obligation that the person may have to act in accordance with the instructions or wishes of the litigant.

486F Cost orders

(1) If a person acts in contravention of section 486E, the court in which the migration litigation is commenced or continued may make one or more of the following orders:

(a) an order that the person pay a party to the migration litigation (other than the litigant), the costs incurred by that party because of the commencement or continuation of the migration litigation;

(b) an order that the person repay to the litigant any costs already paid by the litigant to another party to the migration litigation, because of the commencement or continuation of the migration litigation;

Part 8B Costs orders where proceedings have no reasonable prospect of success Section 486G


(c) where the person is a lawyer who has acted for the litigant in the migration litigation:

(i) an order that costs incurred by the litigant in the commencement or continuation of the migration litigation, are not payable to the lawyer;

(ii) an order that the lawyer repay the litigant costs already paid by the litigant to the lawyer in relation to the commencement or continuation of the migration litigation.

(2) If the court, at the time of giving judgment on the substantive issues in the migration litigation, finds that the migration litigation had no reasonable prospect of success, the court must consider whether an order under this section should be made.

(3) An order under this section may be made: (a) on the motion of the court; or (b) on the application of a party to the migration litigation.

(4) The motion or application must be considered at the time the question of costs in the migration litigation is decided.

(5) A person is not entitled to demand or recover from the litigant any part of an amount which the person is directed to pay under an order made under this section.

486G Person must be given reasonable opportunity to argue against costs order

The court must not make an order under section 486F unless the person has been given a reasonable opportunity to argue why the order should not be made.

486H Limited waiver of legal professional privilege

(1) If, in proceedings to determine whether an order under section 486F should be made:

(a) a person wishes to produce a document, record or information for the purpose of arguing why an order under section 486F should not be made; and

(b) to do so would, but for this section, deny legal professional privilege to any person entitled to claim it;

Costs orders where proceedings have no reasonable prospect of success Part 8B

Section 486I


the person may produce the document, record or information for that purpose.

(2) However: (a) the document, record or information does not cease to be

subject to legal professional privilege for any other purpose, or in any other circumstances; and

(b) the court must make any orders necessary to ensure that legal professional privilege is protected for other purposes and in other circumstances.

(3) Nothing in this section prevents a person who is entitled to claim legal professional privilege in relation to the document, record or information, from waiving that privilege.


legal professional privilege includes privilege (however described) under any provision of Division 1 of Part 3.10 of the Evidence Act 1995.

486I Lawyer’s certification

(1) A lawyer must not file a document commencing migration litigation, unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success.

(2) A court must refuse to accept a document commencing migration litigation if it is a document that, under subsection (1), must be certified and it has not been.

486J Part does not limit other powers to order costs against third parties

This Part does not limit any power a court may otherwise have to make costs orders against a person who is not a party to proceedings.

486K Definitions

In this Part:

lawyer has the same meaning as in Part 3.

Part 8B Costs orders where proceedings have no reasonable prospect of success Section 486K


migration litigation means a court proceeding in relation to a migration decision.

Reports on persons in detention for more than 2 years Part 8C

Section 486L


Part 8C—Reports on persons in detention for more than 2 years

486L What is the detention reporting start time for a person?

For the purposes of this Part, the detention reporting start time for a person is whichever of the following times (if any) applies to the person:

(a) if the person is in immigration detention on the commencement of this Part and has been in immigration detention before then for a period of at least 2 years, or for periods that total at least 2 years—the time when this Part commences; or

(b) otherwise—the time after the commencement of this Part when the person has been in immigration detention for a period of 2 years, or for periods that total at least 2 years (some of which detention may have occurred before the commencement of this Part).

486M What is a detention reporting time for a person?

For the purposes of this Part, a detention reporting time for a person is:

(a) the detention reporting start time for the person; or (b) the end of each successive period of 6 months after that time

at the end of which the person is in immigration detention.

486N Secretary’s obligation to report to Commonwealth Ombudsman

(1) The Secretary must give the Commonwealth Ombudsman a report relating to the circumstances of the person’s detention. The report must be given:

(a) if the detention reporting time is the time when this Part commences—as soon as practicable, and in any event within 6 months, after that commencement; or

(b) otherwise—within 21 days after the detention reporting time.

Part 8C Reports on persons in detention for more than 2 years Section 486O


(2) Without limiting subsection (1), the report must include any matters specified in regulations made for the purposes of this subsection.

(3) The Secretary must give the report to the Commonwealth Ombudsman even if the person has, since the detention reporting time, ceased to be in immigration detention.

486O Commonwealth Ombudsman to give Minister assessment of detention arrangements

Commonwealth Ombudsman to give Minister assessment of appropriateness of detention arrangements

(1) As soon as practicable after the Commonwealth Ombudsman receives a report under section 486N, he or she is to give the Minister an assessment of the appropriateness of the arrangements for the person’s detention.

Assessment may include recommendations

(2) The assessment may include any recommendations the Commonwealth Ombudsman considers appropriate.

(3) Without limiting subsection (2), the kinds of recommendations the Ombudsman may make include the following:

(a) a recommendation for the continued detention of a person; (b) a recommendation that another form of detention would be

more appropriate for a person (for example, residing at a place in accordance with a residence determination);

(c) a recommendation that a person be released into the community on a visa;

(d) general recommendations relating to the Department’s handling of its detainee caseload.

(4) The Minister is not bound by any recommendations the Commonwealth Ombudsman makes.

Assessment to include statement for tabling in Parliament

(5) The assessment must also include a statement, for the purpose of tabling in Parliament, that sets out or paraphrases so much of the content of the assessment as the Commonwealth Ombudsman

Reports on persons in detention for more than 2 years Part 8C

Section 486P


considers can be tabled without adversely affecting the privacy of any person.

Assessment to be given even if person no longer in detention

(6) The Commonwealth Ombudsman must give the assessment to the Minister even if the person has, since the detention reporting time, ceased to be in immigration detention.

486P Minister to table statement from Commonwealth Ombudsman

The Minister must cause the statement included in an assessment as mentioned in subsection 486O(5) to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the assessment.

486Q Application of Ombudsman Act 1976

(1) Subject to this Part, the Ombudsman Act 1976 applies in relation to the Commonwealth Ombudsman’s preparation of an assessment under section 486O (including his or her consideration of the report under section 486N to which the assessment relates), as if the preparation of the assessment were an investigation under that Act.

(2) The Commonwealth Ombudsman’s functions include the functions conferred on the Commonwealth Ombudsman by this Part.

Part 9 Miscellaneous Section 487


Part 9—Miscellaneous

487 Liability for identification tests

No civil or criminal liability is incurred, by a person who carries out or helps to carry out an identification test under this Act, in respect of a thing done by the person if:

(a) it was properly and necessarily done in good faith in carrying out or helping to carry out the identification test; and

(b) the person believed on reasonable grounds that the identification test was carried out in accordance with this Act.

Note: This section does not provide any protection in respect of action taken maliciously.

488 Tampering with movements records

(1) A person must not: (a) read; or (b) examine; or (c) reproduce by any means; or (d) use; or (e) disclose by any means;

any part of the movement records, otherwise than in accordance with an authority given under subsection (2).


(2) The Minister may: (a) authorise an officer to perform for the purposes of one or

more of the following: (i) this Act; (ii) the Family Law Act 1975; (iii) a law relating to customs or excise; (iv) a law relating to quarantine or health; (v) law enforcement; (vi) the Education Services for Overseas Students Act 2000;

Miscellaneous Part 9

Section 488


(vii) prescribed Commonwealth, State or Territory legislation;

one or more of the actions prohibited by subsection (1); or (aa) authorise an officer, for the purpose of making a movement

record available to, and for the use of: (i) the person to whom the record relates; or (ii) the duly appointed agent of that person; to perform one or more of those actions; or (b) authorise an officer of the Attorney-General’s Department to

perform for the purposes of the Family Law Act 1975 one or more of those actions; or

(c) authorise an officer of Customs, within the meaning of the Customs Act 1901, to perform for the purposes of a law relating to customs or excise one or more of those actions; or

(d) authorise a quarantine officer, within the meaning of the Quarantine Act 1908, to perform for the purposes of a law relating to quarantine or health one or more of those actions; or

(e) authorise a member of the Australian Federal Police to perform for the purposes of law enforcement one or more of those actions; or

(f) authorise an employee of the Department whose Minister administers the Education Services for Overseas Students Act 2000 to perform for the purposes of that Act one or more of those actions; or

(g) authorise a prescribed employee of a prescribed agency of the Commonwealth, or of a State or Territory, to perform for prescribed purposes one or more of those actions.

(3) Authority under subsection (2) to disclose any part of the movement records may be limited to authority to so disclose to a specified person, a person in a specified class, or a specified organisation, only.

(4) A person (other than an authorised officer carrying out duties or performing functions under or for the purposes of this Act) shall not:

(a) delete, alter or add to any part of the movement records; (b) alter any computer program connected with making,

transferring or keeping movement records; or

Part 9 Miscellaneous Section 488A


(c) in any other way tamper with a notified data base.


488A Giving information to other relevant agencies

(1) For the purposes of: (a) assisting with the regulation of providers; or (b) promoting compliance with the conditions of a particular

student visa or visas, or of student visas generally; the Secretary may give information obtained or received for the purposes of this Act to an agency of the Commonwealth, or of a State or Territory, that is responsible for or otherwise concerned with the regulation of providers.

(2) However, subsection (1) does not override section 488. Note: Section 488 prohibits the disclosure etc. of movement records except

in limited circumstances.


provider has the same meaning as in the Education Services for Overseas Students Act 2000.

488B Authorisation to disclose information to an officer

(1) An airline operator, a shipping operator, a travel agent or a prescribed organisation may, for any purpose that is likely to facilitate the administration or enforcement of this Act or the regulations, disclose to an officer information about any matter relating to travel:

(a) that has been, is being, or is proposed to be, undertaken by any person on the way (directly or indirectly) to the migration zone; or

(b) that has been, is being, or is proposed to be, undertaken and that involves the departure from the migration zone of any person;

even if the information is personal information (as defined in the Privacy Act 1988).

(2) To avoid doubt, this section does not: (a) require anyone to disclose information; or


Section 489


(b) affect a requirement of, or under, a provision of this Act or the regulations for a person to disclose information (whether by answering a question, by providing a document or by other means).


officer includes a person who is a clearance officer within the meaning of section 165.

organisation has the same meaning as in the Privacy Act 1988.

travel agent includes an organisation that is involved in arranging or facilitating travel.

489 Notified data bases

The Minister may, by notice in the Gazette, declare a data base containing information kept for the purposes of this Act in relation to the entry of persons into, and departure of persons from, Australia to be a notified data base for the purposes of this section.

490 Identification card to be deemed to continue to be in a form approved by the Minister

Where the Minister revokes the approval of a form of identification card in relation to members of the crews of vessels, an identification card in accordance with that form signed by the master of a vessel not later than 3 months after the date of that revocation shall, notwithstanding that revocation, be deemed, for the purposes of this Act, to continue to be an identification card in accordance with a form approved by the Minister.

492 Commencement of prosecutions

(1) Subject to this section, a prosecution for an offence against this Act or the regulations may be instituted at any time within 5 years after the commission of that offence.

(2) A prosecution of a person for an offence against section 234, 236, 243 or 244 that is alleged to have been committed after the commencement of this subsection may be instituted at any time.



(3) A prosecution of a person for an offence against section 232A, 233 or 233A that is alleged to have been committed after the commencement of this subsection may be instituted at any time.

493 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.


Section 494


(5) Where: (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.

494 Jurisdiction of courts

(1) A provision of the Judiciary Act 1903 by which a court of a State is invested with jurisdiction with respect to offences against the laws of the Commonwealth has effect, in relation to offences against this Act, as if that jurisdiction were so invested without limitation as to locality other than the limitation imposed by section 80 of the Constitution.

(2) Subject to section 80 of the Constitution, where a person has committed an offence against a provision of this Act outside a Territory and is found in, or brought into, the Territory, a court of the Territory has the same jurisdiction in respect of the offence as it would have if the offence had been committed in the Territory.

(3) The trial of an offence against a provision of this Act not committed within a State may be held by a court of competent jurisdiction at any place where the court may sit.

Part 9 Miscellaneous Section 494AA


494AA Bar on certain legal proceedings relating to offshore entry persons

(1) The following proceedings against the Commonwealth may not be instituted or continued in any court:

(a) proceedings relating to an offshore entry by an offshore entry person;

(b) proceedings relating to the status of an offshore entry person as an unlawful non-citizen during any part of the ineligibility period;

(c) proceedings relating to the lawfulness of the detention of an offshore entry person during the ineligibility period, being a detention based on the status of the person as an unlawful non-citizen;

(d) proceedings relating to the exercise of powers under section 198A.

(2) This section has effect despite anything else in this Act or any other law.

(3) Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.


Commonwealth includes: (a) an officer of the Commonwealth; and (b) any other person acting on behalf of the Commonwealth.

ineligibility period means the period from the time of the offshore entry until the time when the person next ceases to be an unlawful non-citizen.

offshore entry means an entry into Australia that occurs: (a) at an excised offshore place; and (b) after the excision time for the offshore place concerned.

494AB Bar on certain legal proceedings relating to transitory persons

(1) The following proceedings against the Commonwealth may not be instituted or continued in any court:


Section 494A


(a) proceedings relating to the exercise of powers under section 198B;

(b) proceedings relating to the status of a transitory person as an unlawful non-citizen during any part of the ineligibility period;

(c) proceedings relating to the detention of a transitory person who is brought to Australia under section 198B, being a detention based on the status of the person as an unlawful non-citizen;

(d) proceedings relating to the removal of a transitory person from Australia under this Act.

(2) This section has effect despite anything else in this Act or any other law.

(3) Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.


Commonwealth includes: (a) an officer of the Commonwealth; and (b) any other person acting on behalf of the Commonwealth.

ineligibility period means the period from the time when the transitory person was brought to Australia under section 198B until the time when the person next ceases to be an unlawful non-citizen.

494A Giving documents by Minister where no requirement to do so by section 494B method


the Minister to give a document to a person; and (b) the provision does not state that the document must be given: (i) by one of the methods specified in section 494B; or (ii) by a method prescribed for the purposes of giving

documents to a person in immigration detention; the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).

Part 9 Miscellaneous Section 494B


Note: Section 494D deals with giving documents to a person’s authorised recipient.

(2) If a person is a minor, the Minister may give a document to an individual who is at least 18 years of age if the Minister reasonably believes that:



(3) However, subsection (2) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.

(4) If the Minister gives a document to an individual, as mentioned in subsection (2), the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.

494B Methods by which Minister gives documents to a person

Coverage of section

(1) For the purposes of provisions of this Act or the regulations that: (a) require or permit the Minister to give a document to a person

(the recipient); and (b) state that the Minister must do so by one of the methods


(1A) If a person is a minor, the Minister may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor):

(a) who is at least 18 years of age; and (b) who the Minister reasonably believes: (i) has day-to-day care and responsibility for the minor; or (ii) works in or for an organisation that has day-to-day care

and responsibility for the minor and whose duties,


Section 494B


whether alone or jointly with another person, involve care and responsibility for the minor.

Note: If the Minister gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 494C in respect of that method.

(1B) However, subsection (1A) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.

Giving by hand

(2) One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.


(3) Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:

(a) is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and




(4) Another method consists of the Minister dating the document, and then dispatching it:


(b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Minister by

the recipient for the purposes of receiving documents; or (ii) the last residential or business address provided to the

Minister by the recipient for the purposes of receiving documents; or

(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the Minister.

Part 9 Miscellaneous Section 494C



(5) Another method consists of the Minister transmitting the document by:


to: (d) the last fax number, e-mail address or other electronic

address, as the case may be, provided to the Minister for the purposes of receiving documents; or

(e) if the recipient is a minor—the last fax number, e-mail address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.

When the Minister hands a document by way of an authorised officer

(6) For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer.


(7) If the Minister gives a document to a carer of a minor, the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.

494C When a person is taken to have received a document from the Minister

(1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).

Giving by hand

(2) If the Minister gives a document to a person by the method in subsection 494B(2) (which involves handing the document to the


Section 494C


person), the person is taken to have received the document when it is handed to the person.


(3) If the Minister gives a document to a person by the method in subsection 494B(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.


(4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:




(5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, e-mail or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.



(7) If: (a) the Minister purports to give a document to a person in

accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and

(b) the person nonetheless receives the document or a copy of it; then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document

Part 9 Miscellaneous Section 494D


to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.

494D Authorised recipient

(1) If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person. Note: If the Minister gives a person a document by a method specified in

section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.

(2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.

(3) The first person may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person’s authorised recipient.

(4) The Minister may communicate with the first person by means other than giving a document to the first person, provided the Minister gives the authorised recipient notice of the communication.

(5) The Minister need not comply with subsection (1), or the requirement in subsection (4) to give a notice, if:

(a) the authorised recipient is not a registered migration agent (within the meaning of Part 3); and

(b) the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part); and

(c) the Minister has given the first person a notice, by one of the methods specified in section 494B, stating that he or she does


Section 495


not intend to give the authorised recipient documents as mentioned in subsection (1).

495 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.

495A Minister may arrange for use of computer programs to make decisions etc.

(1) The Minister may arrange for the use, under the Minister’s control, of computer programs for any purposes for which the Minister may, or must, under the designated migration law:

(a) make a decision; or (b) exercise any power, or comply with any obligation; or (c) do anything else related to making a decision, exercising a

power, or complying with an obligation.

(2) The Minister is taken to have: (a) made a decision; or (b) exercised a power, or complied with an obligation; or (c) done something else related to the making of a decision, the

exercise of a power, or the compliance with an obligation; that was made, exercised, complied with, or done (as the case requires) by the operation of a computer program under an arrangement made under subsection (1).

(3) For the purposes of this section, the following provisions are the designated migration law:

(a) Subdivisions A, AA, AB and AC of Division 3 of Part 2 (other than section 48B);

(b) any provision of this Act or of the regulations that the Minister, by legislative instrument, determines to be part of the designated migration law.



495B Minister may substitute more favourable decisions for certain computer-based decisions

(1) The Minister may substitute a decision (the substituted decision) for a decision (the initial decision) made by the operation of a computer program under an arrangement made under subsection 495A(1) if:

(a) a certificate under paragraph 271(1)(l) relates to the computer program and to the initial decision; and

(b) the certificate states that the computer program was not functioning correctly; and

(c) the substituted decision could have been made under the same provision of the designated migration law as the initial decision; and

(d) the substituted decision is more favourable to the applicant.


(3) Subsection (1) has effect despite: (a) any law of the Commonwealth; or (b) any rule of common law;

to the contrary effect.

496 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.

(1A) The delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Minister.

(2) The Secretary may, by writing signed by him or her, delegate to a person any of the Secretary’s powers under this Act.

(3) If an application for a visa that has a health criterion is made, the Minister may:

(a) delegate to a person the power to consider and decide whether that criterion is satisfied; and


Section 497


(b) consider and decide, or delegate to another person the power to consider and decide, all other aspects of the application.

(4) To avoid doubt, if there is a delegation described in paragraph (3)(a) in relation to an application for a visa:

(a) Subdivision AB of Division 3 of Part 2 has effect accordingly; and

(b) for the purposes of subsection 65(1), the Minister is satisfied or not satisfied that the health criterion for the visa has been satisfied if the delegate who was given that delegation is so satisfied or not so satisfied, as the case may be.

(5) Subsection (1A) does not limit subsection 499(1).

497 Delegate not required to perform certain administrative tasks

(1) If the Minister delegates the power to grant or refuse to grant visas, the delegation does not require the delegate personally to perform any task in connection with the grant or refusal, except the taking of a decision in each case whether or not a visa should be granted.

(2) If the Minister delegates the power to cancel visas, the delegation does not require the delegate personally to perform any task in connection with the cancellation, except the taking of a decision in each case whether a visa should be cancelled.

(3) Nothing in subsection (1) or (2) 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.

498 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) Nothing in this section shall be taken to limit the operation of subsection 29(4).



499 Minister may give directions

(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a) the performance of those functions; or (b) the exercise of those powers.

(1A) For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A) A person or body must comply with a direction under subsection (1).

(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.

(4) Subsection (1) does not limit subsection 496(1A).

500 Review of decision

(1) Applications may be made to the Administrative Appeals Tribunal for review of:

(a) decisions of the Minister under section 200 because of circumstances specified in section 201; or

(b) decisions of a delegate of the Minister under section 501; or (c) a decision to refuse to grant a protection visa, or to cancel a

protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2);

other than decisions to which a certificate under section 502 applies.

(2) A person is not entitled to make an application under paragraph (1)(a) unless:

(a) the person is an Australian citizen; or


Section 500


(b) the person is a lawful non-citizen whose continued presence in Australia is not subject to any limitation as to time imposed by law.

(3) A person is not entitled to make an application under subsection (1) for review of a decision referred to in paragraph (1)(b) or (c) unless the person would be entitled to seek review of the decision under Part 5 or 7 if the decision had been made on another ground.

(4) The following decisions are not reviewable under Part 5 or 7: (a) a decision under section 200 because of circumstances

specified in section 201; (b) a decision under section 501; (c) a decision to refuse to grant a protection visa, or to cancel a

protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2).

(5) In giving a direction under the Administrative Appeals Tribunal Act 1975 as to the persons who are to constitute the Tribunal for the purposes of a proceeding for review of a decision referred to in subsection (1), the President must have regard to:

(a) the degree of public importance or complexity of the matters to which that proceeding relates; and

(b) the status of the position or office held by the person who made the decision that is to be reviewed by the Tribunal; and

(c) the degree to which the matters to which that proceeding relates concern the security, defence or international relations of Australia; and

(d) if: (i) the person to whom the decision relates has been

convicted of, or sentenced for, an offence; and (ii) that conviction or sentence is relevant to the matters to

which that proceeding relates; the seriousness of that offence; and



(e) if: (i) the person to whom the decision relates has been

acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; and

(ii) that acquittal is relevant to the matters to which that proceeding relates;

the seriousness of that offence; and must not have regard to any other matters.

(5A) Section 23B of the Administrative Appeals Tribunal Act 1975 does not apply in relation to a proceeding for review of a decision referred to in subsection (1) of this section.

(6) Where an application has been made to the Tribunal for the review of a decision under section 200 ordering the deportation of a person, the order for the deportation of the person shall not be taken for the purposes of section 253 to have ceased or to cease to be in force by reason only of any order that has been made by:

(a) the Tribunal; or (b) a presidential member under section 41 of the Administrative

Appeals Tribunal Act 1975; or (c) the Federal Court of Australia or a Judge of that Court under

section 44A of that Act; or (d) the Federal Magistrates Court or a Federal Magistrate under

section 44A of that Act.

(6A) If a decision under section 501 of this Act relates to a person in the migration zone, section 28 of the Administrative Appeals Tribunal Act 1975 does not apply to the decision.

(6B) If a decision under section 501 of this Act relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.

(6C) If a decision under section 501 relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be accompanied by, or by a copy of:


Section 500


(a) the document notifying the person of the decision in accordance with subsection 501G(1); and

(b) one of the sets of documents given to the person under subsection 501G(2) at the time of the notification of the decision.

(6D) If: (a) an application is made to the Tribunal for a review of a

decision under section 501 of this Act; and (b) the decision relates to a person in the migration zone;

section 37 of the Administrative Appeals Tribunal Act 1975 does not apply in relation to the decision.

(6E) If: (a) an application is made to the Tribunal for a review of a


the Registrar, a District Registrar or a Deputy Registrar of the Tribunal must notify the Minister, within the period and in the manner specified in the regulations, that the application has been made. Accordingly, subsection 29(11) of the Administrative Appeals Tribunal Act 1975 does not apply in relation to the application.

(6F) If: (a) an application is made to the Tribunal for a review of a


then: (c) the Minister must lodge with the Tribunal, within 14 days

after the day on which the Minister was notified that the application had been made, 2 copies of every document, or part of a document, that:

(i) is in the Minister’s possession or under the Minister’s control; and

(ii) was relevant to the making of the decision; and (iii) contains non-disclosable information; and (d) the Tribunal may have regard to that non-disclosable

information for the purpose of reviewing the decision, but



must not disclose that non-disclosable information to the person making the application.

(6G) If: (a) an application is made to the Tribunal for a review of a


the Tribunal must not: (c) hold a hearing (other than a directions hearing); or (d) make a decision under section 43 of the Administrative

Appeals Tribunal Act 1975; in relation to the decision under review until at least 14 days after the day on which the Minister was notified that the application had been made.

(6H) If: (a) an application is made to the Tribunal for a review of a

decision under section 501; and (b) the decision relates to a person in the migration zone;

the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

(6J) If: (a) an application is made to the Tribunal for a review of a

decision under section 501; and (b) the decision relates to a person in the migration zone;

the Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or Tribunal under subsection 501G(2) or subsection (6F) of this section.

(6K) If: (a) an application is made to the Tribunal for a review of a

decision under section 501 of this Act; and (b) the decision relates to a person in the migration zone; and


Section 500


(c) the Tribunal is of the opinion that particular documents, or documents included in a particular class of documents, may be relevant in relation to the decision under review;

then: (d) the Tribunal may cause to be served on the Minister a notice

in writing stating that the Tribunal is of that opinion and requiring the Minister to lodge with the Tribunal, within a time specified in the notice, 2 copies of each of those documents that is in the Minister’s possession or under the Minister’s control; and

(e) the Minister must comply with any such notice.

(6L) If: (a) an application is made to the Tribunal for a review of a

decision under section 501 of this Act; and (b) the decision relates to a person in the migration zone; and (c) the Tribunal has not made a decision under section 42A, 42B,

42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);

the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review.

(7) In this section, decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.


business day means a day that is not: (a) a Saturday; or (b) a Sunday; or (c) a public holiday in the Australian Capital Territory; or (d) a public holiday in the place concerned.



500A Refusal or cancellation of temporary safe haven visas

Refusal or cancellation of temporary safe haven visas

(1) The Minister may refuse to grant to a person a temporary safe haven visa, or may cancel a person’s temporary safe haven visa if, in the Minister’s opinion:

(a) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

(b) having regard to either or both of the following: (i) the person’s past and present criminal conduct; (ii) the person’s past and present general conduct; the person is not of good character; or (c) in the event the person were allowed to enter or to remain in

Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in

Australia (see subsection (2)); or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a


segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or

(d) the person is a threat to national security; or (e) the person’s presence in Australia would prejudice

Australia’s international relations.

(2) For the purposes of subsection (1), conduct may amount to harassment or molestation of a person even though:

(a) it does not involve violence, or threatened violence, to the person; or

(b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.


Section 500A


Refusal or cancellation of temporary safe haven visas

(3) The Minister may refuse to grant to a person a temporary safe haven visa, or may cancel a person’s temporary safe haven visa if:

(a) the person has been sentenced to death (see subsection (4)); or

(b) the person has been sentenced to imprisonment for life (see subsection (4)); or

(c) the person has been sentenced to a term of imprisonment of 12 months or more (see subsections (4) and (5)).

(4) For the purposes of subsection (3), a sentence imposed on a person is to be disregarded if:

(a) the conviction concerned has been quashed or otherwise nullified; or

(b) the person has been pardoned in relation to the conviction concerned.

(5) For the purposes of subsection (3), if a person has been convicted of an offence and the court orders the person to participate in:

(a) a residential drug rehabilitation scheme; or (b) a residential program for the mentally ill;

the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.

Minister to exercise power personally

(6) The powers under subsections (1) and (3) may only be exercised by the Minister personally.

Minister to table decision

(7) If the Minister makes a decision under subsection (1) or (3) to refuse to grant, or to cancel, a temporary safe haven visa, the Minister is to cause to be laid before each House of the Parliament a statement that:

(a) sets out the decision; and (b) sets out the reasons for the decision.

(8) A statement under subsection (7) is not to include: (a) the name of the non-citizen; or



(b) any information that may identify the non-citizen; or (c) if the Minister thinks that it would not be in the public




(b) if the decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

Minister to notify person of decision

(10) If the Minister makes a decision under subsection (1) or (3) to refuse to grant a person a temporary safe haven visa, or to cancel a person’s temporary safe haven visa, the Minister must notify the person of the decision. However, failure to do so does not affect the validity of the decision.

Natural justice and code of procedure not to apply to decision

(11) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (1) or (3).

Automatic refusal to grant visa to an immediate family member

(12) If the Minister refuses to grant a person a temporary safe haven visa under subsection (1) or (3), then the Minister is also taken to have refused to grant a temporary safe haven visa to each immediate family member of the person. The immediate family member need not be notified of the refusal.

Automatic cancellation of immediate family member’s visa

(13) If a person’s temporary safe haven visa is cancelled under subsection (1) or (3), then a temporary safe haven visa held by each immediate family member of the person is also cancelled. The immediate family member need not be notified of the cancellation.


Section 501


Definitions


court includes: (a) the Australian Military Court; and (b) a court martial or similar military tribunal of another country.

immediate family member of a person means another person who is a member of the immediate family of the person (within the meaning of the regulations).

imprisonment includes any form of punitive detention in a facility or institution.

sentence includes any form of determination of the punishment for an offence.

501 Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Note: Character test is defined by subsection (6).

(2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not

pass the character test; and (b) the person does not satisfy the Minister that the person passes

the character test.

Decision of Minister—natural justice does not apply

(3) The Minister may: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person;

if: (c) the Minister reasonably suspects that the person does not

pass the character test; and



(d) the Minister is satisfied that the refusal or cancellation is in the national interest.


(5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).

Character test

(6) For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by subsection (7)); or

(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

(c) having regard to either or both of the following: (i) the person’s past and present criminal conduct; (ii) the person’s past and present general conduct; the person is not of good character; or (d) in the event the person were allowed to enter or to remain in

Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in

Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a


segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Otherwise, the person passes the character test.


Section 501


Substantial criminal record

(7) For the purposes of the character test, a person has a substantial criminal record if:

(a) the person has been sentenced to death; or (b) the person has been sentenced to imprisonment for life; or (c) the person has been sentenced to a term of imprisonment of

12 months or more; or (d) the person has been sentenced to 2 or more terms of

imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or

(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.

Periodic detention

(8) For the purposes of the character test, if a person has been sentenced to periodic detention, the person’s term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.

Residential schemes or programs

(9) For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in:

(a) a residential drug rehabilitation scheme; or (b) a residential program for the mentally ill;

the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.

Pardons etc.

(10) For the purposes of the character test, a sentence imposed on a person is to be disregarded if:

(a) the conviction concerned has been quashed or otherwise nullified; or

(b) the person has been pardoned in relation to the conviction concerned.



Conduct amounting to harassment or molestation

(11) For the purposes of the character test, conduct may amount to harassment or molestation of a person even though:

(a) it does not involve violence, or threatened violence, to the person; or

(b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.

Definitions


court includes: (a) the Australian Military Court; and (b) a court martial or similar military tribunal of another country.

imprisonment includes any form of punitive detention in a facility or institution.

sentence includes any form of determination of the punishment for an offence. Note 1: Visa is defined by section 5 and includes, but is not limited to, a

protection visa.

Note 2: For notification of decisions under subsection (1) or (2), see section 501G.

Note 3: For notification of decisions under subsection (3), see section 501C.

501A Refusal or cancellation of visa—setting aside and substitution of non-adverse decision under subsection 501(1) or (2)

(1) This section applies if: (a) a delegate of the Minister; or (b) the Administrative Appeals Tribunal;

makes a decision (the original decision): (c) not to exercise the power conferred by subsection 501(1) to

refuse to grant a visa to the person; or (d) not to exercise the power conferred by subsection 501(2) to

cancel a visa that has been granted to a person; whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or


Section 501A


Tribunal reasonably suspects that the person does not pass the character test.

Action by Minister—natural justice applies

(2) The Minister may set aside the original decision and: (a) refuse to grant a visa to the person; or (b) cancel a visa that has been granted to the person;


pass the character test (as defined by section 501); and (d) the person does not satisfy the Minister that the person passes

the character test; and (e) the Minister is satisfied that the refusal or cancellation is in

the national interest.

Action by Minister—natural justice does not apply



pass the character test (as defined by section 501); and (d) the Minister is satisfied that the refusal or cancellation is in


(4) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).

(4A) Under subsection (2) or (3), the Minister may cancel a visa that has been granted to a person even if the original decision under subsection (1) was a decision not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person.

Minister’s exercise of power

(5) The power under subsection (2) or (3) may only be exercised by the Minister personally.



(6) The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.

Decision not reviewable under Part 5 or 7

(7) A decision under subsection (2) or (3) is not reviewable under Part 5 or 7. Note 1: For notification of decisions under subsection (2), see section 501G.

Note 2: For notification of decisions under subsection (3), see section 501C.

501B Refusal or cancellation of visa—setting aside and substitution of adverse decision under subsection 501(1) or (2)

(1) This section applies if a delegate of the Minister makes a decision (the original decision) under subsection 501(1) or (2) to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.



pass the character test (as defined by section 501); and (d) the person does not satisfy the Minister that the person passes

the character test; and (e) the Minister is satisfied that the refusal or cancellation is in



(4) A decision under subsection (2) is not reviewable under Part 5 or 7.

(5) To avoid doubt, the Minister may set aside the original decision in accordance with subsection (2) even if the original decision is the subject of an application for review by the Administrative Appeals Tribunal. Note: For notification of decisions under this section, see section 501G.


Section 501C


501C Refusal or cancellation of visa—revocation of decision under subsection 501(3) or 501A(3)

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3) or 501A(3) to:

(a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person.

(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for making the original decision; and

(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3) As soon as practicable after making the original decision, the Minister must:

(a) give the person, in the way that the Minister considers appropriate in the circumstances:

(i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) except in a case where the person is not entitled to make

representations about revocation of the original decision (see subsection (10))—invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the

invitation; and (b) the person satisfies the Minister that the person passes the

character test (as defined by section 501).


(6) If the Minister revokes the original decision, the original decision is taken not to have been made. This subsection has effect subject to subsection (7).

Part 9 Miscellaneous Section 501D


(7) Any detention of the person that occurred during any part of the period:

(a) beginning when the original decision was made; and (b) ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(8) If the Minister makes a decision (the subsequent decision) to revoke, or not to revoke, the original decision, the Minister must cause notice of the making of the subsequent decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the subsequent decision was made.

(9) If the person does not make representations in accordance with the invitation, the Minister must cause notice of that fact to be laid before each House of the Parliament within 15 sitting days of that House after the last day on which the representations could have been made.

(10) The regulations may provide that, for the purposes of this section: (a) a person; or (b) a person included in a specified class of persons;

is not entitled to make representations about revocation of an original decision unless the person is a detainee.

(11) A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

501D Refusal or cancellation of visa—method of satisfying Minister that person passes the character test

The regulations may provide that, in determining for the purposes of section 501, 501A or 501B, whether:

(a) a person; or (b) a person included in a specified class of persons;

satisfies the Minister that the person passes the character test (as defined by section 501), any information or material submitted by or on behalf of the person must not be considered by the Minister unless the information or material is submitted within the period, and in the manner, ascertained in accordance with the regulations.


Section 501E


501E Refusal or cancellation of visa—prohibition on applying for other visas

(1) A person is not allowed to make an application for a visa at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if:

(a) at an earlier time during that period, the Minister made a decision under section 501, 501A or 501B to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; and

(b) the decision was neither set aside nor revoked before the application time.

(2) Subsection (1) does not prevent a person, at the application time, from making an application for:

(a) a protection visa; or (b) a visa specified in the regulations for the purposes of this

subsection. Note: The person may however be prevented from applying for a protection

visa because of section 48A.

501F Refusal or cancellation of visa—refusal of other visa applications and cancellation of other visas

(1) This section applies if the Minister makes a decision under section 501, 501A or 501B to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.

(2) If: (a) the person has made another visa application that has neither

been granted nor refused; and (b) the visa applied for is neither a protection visa nor a visa

specified in the regulations for the purposes of this subsection;

the Minister is taken to have decided to refuse that other application.

(3) If: (a) the person holds another visa; and (b) that other visa is neither a protection visa nor a visa specified

in the regulations for the purposes of this subsection;

Part 9 Miscellaneous Section 501G


the Minister is taken to have decided to cancel that other visa.

(4) If the decision referred to in subsection (1) is set aside or revoked, the decision that the Minister is taken to have made under subsection (2) or (3) is also set aside or revoked, as the case may be.

(5) A decision that the Minister is taken to have made under subsection (2) or (3) is not reviewable under Part 5 or 7. Note: For notification of decisions under this section, see section 501G.

501G Refusal or cancellation of visa—notification of decision

(1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to:

(a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person;

the Minister must give the person a written notice that: (c) sets out the decision; and (d) specifies the provision under which the decision was made

and sets out the effect of that provision; and (e) sets out the reasons (other than non-disclosable information)

for the decision; and (f) if the decision was made by a delegate of the Minister under

subsection 501(1) or (2) and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:

(i) states that the decision can be reviewed by the Tribunal; and

(ii) states the time in which the application for review may be made; and

(iii) states who can apply to have the decision reviewed; and (iv) states where the application for review can be made;

and (v) in a case where the decision relates to a person in the

migration zone—sets out the effect of subsections 500(6A) to (6L) (inclusive); and

(vi) sets out such additional information (if any) as is prescribed.


Section 501H


(2) If the decision referred to in subsection (1): (a) was made by a delegate of the Minister under subsection

501(1) or (2); and (b) is reviewable by the Administrative Appeals Tribunal; and (c) relates to a person in the migration zone;

the notice under subsection (1) that relates to the decision must be accompanied by 2 copies of every document, or part of a document, that:

(d) is in the delegate’s possession or under the delegate’s control; and

(e) was relevant to the making of the decision; and (f) does not contain non-disclosable information.

(3) A notice under subsection (1) must be given in the prescribed manner.

(4) A failure to comply with this section in relation to a decision does not affect the validity of the decision.

501H Refusal or cancellation of visa—miscellaneous provisions

Additional powers

(1) A power under section 501, 501A or 501B to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.

Cross-references to decisions under section 501

(2) A reference in Part 5 to a decision made under section 501 includes a reference to a decision made under section 501A, 501B, 501C or 501F.

501HA Application of sections 501 to 501H to transitional (permanent) visas and transitional (temporary) visas

If, under the Migration Reform (Transitional Provisions) Regulations, a person:

Part 9 Miscellaneous Section 501J


(a) held a permanent return visa, permanent entry permit or permanent visa that continues in effect as a transitional (permanent) visa; or

(b) held a temporary entry permit or temporary visa that continues in effect as a transitional (temporary) visa; or

(c) is taken to hold a transitional (permanent) visa; the person is also taken, for the purposes of sections 501 to 501H, to have been granted a visa.

501J Refusal or cancellation of protection visa—Minister may substitute more favourable decision

(1) If the Minister thinks that it is in the public interest to do so, the Minister may set aside an AAT protection visa decision and substitute another decision that is more favourable to the applicant in the review, whether or not the Administrative Appeals Tribunal had the power to make that other decision.

(2) For the purposes of this section, an AAT protection visa decision is a decision of the Administrative Appeals Tribunal in relation to an application for, or the cancellation of, a protection visa.



(5) If the Minister substitutes a decision under subsection (1), the Minister must cause to be laid before each House of the Parliament a statement that:




(6) A statement made under subsection (5) is not to include: (a) the name of the applicant; or (b) any information that may identify the applicant; or


Section 501K


(c) if 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 or any information that may identify that other person.





501K Identity of applicants for protection visas not to be published by the Administrative Appeals Tribunal

(1) This section applies to a review by the Administrative Appeals Tribunal if the review relates to a person in the person’s capacity as:

(a) a person who applied for a protection visa; or (b) a person who applied for a protection-related bridging visa;

or (c) a person whose protection visa has been cancelled; or (d) a person whose protection-related bridging visa has been

cancelled.

(2) The Administrative Appeals Tribunal must not publish (in electronic form or otherwise), in relation to the review, any information which may identify:

(a) the person; or (b) any relative or other dependant of the person.


application for a protection-related bridging visa means an application for a bridging visa, where the applicant for the bridging visa is, or has been, an applicant for a protection visa.



protection-related bridging visa means a bridging visa granted as a result of an application for a protection-related bridging visa.

502 Minister may decide in the national interest that certain persons are to be excluded persons

(1) If: (a) the Minister, acting personally, intends to make a decision: (i) under section 200 because of circumstances specified in

section 201; or (iii) to refuse to grant a protection visa, or to cancel a

protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2);

in relation to a person; and (b) the Minister decides that, because of the seriousness of the

circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person;

the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person.

(2) A decision under subsection (1) must be taken by the Minister personally.

(3) If the Minister makes a decision under subsection (1), the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the decision was made.

503 Exclusion of certain persons from Australia

(1) A person in relation to whom a decision has been made: (a) under section 200 because of circumstances specified in

section 201; or (b) under section 501, 501A or 501B; or (c) to refuse to grant a protection visa, or to cancel a protection

visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2);

is not entitled to enter Australia or to be in Australia at any time during the period determined under the regulations.


Section 503A


(2) The period referred to in subsection (1) commences, in the case of a person who has been deported or removed from Australia, when the person is so deported or removed.

(3) Different periods may be prescribed under subsection (1) in relation to different situations.

(4) This section does not apply to a holder of a criminal justice visa.

503A Protection of information supplied by law enforcement agencies or intelligence agencies

(1) If information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C:

(a) the officer must not divulge or communicate the information to another person, except where:

(i) the other person is the Minister or an authorised migration officer; and

(ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C; and

(b) an authorised migration officer to whom information has been communicated in accordance with paragraph (a) or this paragraph must not divulge or communicate the information to another person, except where:

(i) the other person is the Minister or an authorised migration officer; and

(ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C.

Note: Authorised migration officer and gazetted agency are defined by subsection (9).

(2) If: (a) information is communicated to an authorised migration

officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C; or



(b) information is communicated to the Minister or an authorised migration officer in accordance with paragraph (1)(a) or (b);

then: (c) the Minister or officer must not be required to divulge or

communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person; and

(d) if the information was communicated to an authorised migration officer—the officer must not give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or person.

(3) The Minister may, by writing, declare that subsection (1) or (2) does not prevent the disclosure of specified information in specified circumstances to a specified Minister, a specified Commonwealth officer, a specified court or a specified tribunal. However, before making the declaration, the Minister must consult the gazetted agency from which the information originated. Note: Commonwealth officer is defined by subsection (9).

(3A) The Minister does not have a duty to consider whether to exercise the Minister’s power under subsection (3).

(4) If a person divulges or communicates particular information to a Commonwealth officer in accordance with a declaration under subsection (3), the officer must comply with such conditions relating to the disclosure by the officer of the information as are specified in the declaration.

(4A) If a person divulges or communicates particular information to a Commonwealth officer in accordance with a declaration under subsection (3):

(a) the officer must not be required to divulge or communicate the information to the Federal Court or the Federal Magistrates Court; and

(b) the officer must not give the information in evidence before the Federal Court or the Federal Magistrates Court.

The information may only be considered by the Federal Court or the Federal Magistrates Court if a fresh disclosure of the information is made in accordance with:

(c) a declaration under subsection (3); or (d) subsection 503B(6).


Section 503A


(5) If a person divulges or communicates particular information to a tribunal in accordance with a declaration under subsection (3), the member or members of the tribunal must not divulge or communicate the information to any person (other than the Minister or a Commonwealth officer).

(5A) If a person divulges or communicates particular information to a tribunal in accordance with a declaration under subsection (3):

(a) the member or members of the tribunal must not be required to divulge or communicate the information to the Federal Court or the Federal Magistrates Court; and

(b) the member or members of the tribunal must not give the information in evidence before the Federal Court or the Federal Magistrates Court.

The information may only be considered by the Federal Court or the Federal Magistrates Court if a fresh disclosure of the information is made in accordance with:

(c) a declaration under subsection (3); or (d) subsection 503B(6).

(6) This section has effect despite anything in: (a) any other provision of this Act (other than sections 503B and

503C); and (b) any law (whether written or unwritten) of a State or a

Territory.

(7) To avoid doubt, if information is divulged or communicated: (a) in accordance with paragraph (1)(a) or (b); or (b) in accordance with a declaration under subsection (3);

the divulging or communication, as the case may be, is taken, for the purposes of the Information Privacy Principles set out in section 14 of the Privacy Act 1988, to be authorised by law.

(8) If any Act (whether passed before or after the commencement of this section) provides for information to be given, that Act has effect subject to this section unless that Act expressly provides otherwise. Note: This section is specified in Schedule 3 to the Freedom of Information

Act 1982 with the effect that documents containing information protected from disclosure by this section are exempt documents under that Act.




Australian law enforcement or intelligence body means a body, agency or organisation that is responsible for, or deals with, law enforcement, criminal intelligence, criminal investigation, fraud or security intelligence in, or in a part of, Australia.

authorised migration officer means a Commonwealth officer whose duties consist of, or include, the performance of functions, or the exercise of powers, under this Act.

Commonwealth officer has the same meaning as in section 70 of the Crimes Act 1914. Note: A Minister is not a Commonwealth officer.

foreign law enforcement body means a body, agency or organisation that is responsible for, or deals with, law enforcement, criminal intelligence, criminal investigation, fraud or security intelligence in a foreign country or a part of a foreign country.

gazetted agency means: (a) in the case of an Australian law enforcement or intelligence

body—a body specified in a notice published by the Minister in the Gazette; or

(b) in the case of a foreign law enforcement body—a body in a foreign country, or a part of a foreign country, that is a foreign country, or part of a foreign country, specified in a notice published by the Minister in the Gazette; or

(c) a war crimes tribunal established by or under international arrangements or international law.

Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 or subsection 46(3) of the Acts Interpretation Act 1901.

503B Protection of confidential information disclosed to the Federal Court or the Federal Magistrates Court—permanent non-disclosure orders

Court may make non-disclosure orders

(1) If: (a) either:


Section 503B


(i) information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C; or

(ii) information is communicated to the Minister or an authorised migration officer in accordance with paragraph 503A(1)(a) or (b); and

(b) the information is relevant to proceedings (the substantive proceedings) before the Federal Court or the Federal Magistrates Court that relate to section 501, 501A, 501B or 501C; and

(c) no declaration is in force under subsection 503A(3) authorising the disclosure of the information to the Federal Court or the Federal Magistrates Court for the purposes of the substantive proceedings;

the Federal Court or the Federal Magistrates Court may, on application by the Minister, make such orders as the Federal Court or the Federal Magistrates Court considers appropriate for the purpose of ensuring that, in the event that such a declaration comes into force and the information is disclosed to the Federal Court or the Federal Magistrates Court, the information is not divulged or communicated to:

(d) the applicant in relation to the substantive proceedings; or (e) the legal representative of the applicant in relation to the

substantive proceedings; or (f) any other member of the public.

(2) The Federal Court’s or Federal Magistrates Court’s orders under subsection (1) include:

(a) an order that some or all of the members of the public are to be excluded during the whole or a part of the hearing of the substantive proceedings; or

(b) an order that no report of the whole of, or a specified part of, or relating to, the substantive proceedings is to be published; or

(c) an order for ensuring that no person, without the consent of the Federal Court or the Federal Magistrates Court, has access to a file or a record of the Federal Court or the Federal Magistrates Court that contains the information.



(3) Subsection (2) does not limit subsection (1).

(4) The powers of the Federal Court under this section are to be exercised by a single Judge, and the powers of the Federal Magistrates Court under this section are to be exercised by a single Federal Magistrate.

Criteria for making non-disclosure order

(5) In exercising its powers under subsection (1), the Federal Court or the Federal Magistrates Court must have regard to all of the following matters:

(a) the fact that the information was communicated, or originally communicated, to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information;

(b) Australia’s relations with other countries; (c) the need to avoid disruption to national and international

efforts relating to law enforcement, criminal intelligence, criminal investigation and security intelligence;

(d) in a case where the information was derived from an informant—the protection and safety of informants and of persons associated with informants;

(e) the protection of the technologies and methods used (whether in or out of Australia) to collect, analyse, secure or otherwise deal with, criminal intelligence or security intelligence;

(f) Australia’s national security; (g) the fact that the disclosure of information may discourage

gazetted agencies and informants from giving information in the future;

(h) the effectiveness of the investigations of official inquiries and Royal Commissions;

(i) the interests of the administration of justice; (j) such other matters (if any) as are specified in the regulations;

and must not have regard to any other matters.

Disclosure of information for the purposes of deciding whether or not to make a non-disclosure order

(6) If an application is made under subsection (1) in relation to particular information, subsections 503A(1) and (2) do not prevent


Section 503B


the disclosure of the information to the Federal Court or the Federal Magistrates Court for the purposes of enabling the Federal Court or the Federal Magistrates Court to make a decision on the application.

(7) If information is disclosed to the Federal Court or the Federal Magistrates Court under subsection (6):

(a) the information is not to be treated as having been disclosed to the Federal Court or the Federal Magistrates Court for the purposes of the substantive proceedings; and

(b) the information may only be considered by the Federal Court or the Federal Magistrates Court for the purposes of the substantive proceedings if a fresh disclosure of the information is made in accordance with a declaration under subsection 503A(3).

Variation or revocation of non-disclosure order

(8) The Federal Court or the Federal Magistrates Court may, by order, vary or revoke an order made by it under subsection (1) if both:

(a) the Minister; and (b) the applicant in relation to the substantive proceedings;

consent to the variation or revocation.

Withdrawal of application for non-disclosure order

(9) The Minister may withdraw an application under subsection (1) at any time.

Declarations under subsection 503A(3)

(10) This section does not prevent the Minister from making a declaration at any time under subsection 503A(3) authorising the disclosure of the information to the Federal Court or the Federal Magistrates Court for the purposes of the substantive proceedings, even if that time occurs while the Federal Court or the Federal Magistrates Court is considering whether to make an order under subsection (1).

(11) To avoid doubt, the Minister may refuse to make a declaration under subsection 503A(3) even if the Federal Court or the Federal Magistrates Court has made an order under subsection (1) of this section in relation to the information concerned.



Offence

(12) A person is guilty of an offence if: (a) an order is in force under subsection (1); and (b) the person engages in conduct; and (c) the person’s conduct contravenes the order.


Relationship to other laws

(13) This section has effect despite anything in: (a) any other provision of this Act; or (b) any other law of the Commonwealth.

Applicant

(14) For the purposes of this section, the table has effect:

Applicant Item In the case of these proceedings... the applicant is... 1 Proceedings within the Federal

Magistrates Court’s jurisdiction under section 476 of this Act, including proceedings arising from: (a) a remittal under section 44 of the

Judiciary Act 1903; or (b) a transfer under section 32AB of

the Federal Court of Australia Act 1976.

the person seeking the remedy to be granted in exercise of that jurisdiction.

2 Proceedings within the Federal Court’s jurisdiction under section 476A of this Act, including proceedings arising from a remittal under section 44 of the Judiciary Act 1903.

the person seeking the remedy to be granted in exercise of that jurisdiction.

3 Proceedings within the Federal Court’s appellate jurisdiction arising from proceedings (the original proceedings) mentioned in item 1 or 2.

the person who was the applicant for the original proceedings.


Section 503C


Applicant Item In the case of these proceedings... the applicant is... 4 (a) proceedings by way of a referral

of a question of law arising before the Administrative Appeals Tribunal;

(b) proceedings by way of an appeal in relation to proceedings mentioned in paragraph (a).

the person who applied to the Administrative Appeals Tribunal for a review of the decision concerned.

Definitions


authorised migration officer has the same meaning as in section 503A.

engage in conduct means: (a) do an act; or (b) omit to perform an act.

gazetted agency has the same meaning as in section 503A.

proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.

Royal Commission means a Royal Commission (however described) under a law of the Commonwealth, a State or a Territory.

503C Protection of confidential information disclosed to the Federal Court or the Federal Magistrates Court—interim non-disclosure orders

Notice of intention to apply for a permanent non-disclosure order

(1) At least 7 days before making an application for an order under subsection 503B(1) in relation to particular information, the Minister must give the Federal Court or the Federal Magistrates Court written notice of the Minister’s intention to make the application.

Part 9 Miscellaneous Section 503C


(2) A notice under subsection (1) need not identify any of the attributes of the information.

Interim non-disclosure order

(3) If: (a) a notice is given under subsection (1); and (b) the notice relates to the Minister’s intention to make an

application for an order under subsection 503B(1) in relation to particular information;

the Federal Court or the Federal Magistrates Court may, on application by the Minister, make such orders as the Federal Court or the Federal Magistrates Court considers appropriate for the purpose of ensuring that, in the event that the subsection 503B(1) application is made and the information is disclosed to the Federal Court or the Federal Magistrates Court in accordance with subsection 503B(6), the information is not divulged or communicated in circumstances that might, to any extent, undermine, prejudice or pre-empt:

(c) the Federal Court’s or the Federal Magistrates Court’s consideration of the subsection 503B(1) application; or

(d) the Minister’s consideration of whether to make a declaration under subsection 503A(3) authorising the disclosure of the information to the Federal Court or the Federal Magistrates Court.

(4) The Federal Court’s or the Federal Magistrates Court’s orders under subsection (3) include:

(a) an order that some or all of the members of the public are to be excluded during the whole or a part of the hearing of the subsection 503B(1) application; or

(b) an order that no report of the whole of, or a specified part of, or relating to, the subsection 503B(1) application is to be published; or

(c) an order for ensuring that no person, without the consent of the Federal Court or the Federal Magistrates Court, has access to a file or a record of the Federal Court or the Federal Magistrates Court that contains the information.

(5) Subsection (4) does not limit subsection (3).


Section 503D


(6) The powers of the Federal Court under this section are to be exercised by a single Judge, and the powers of the Federal Magistrates Court under this section are to be exercised by a single Federal Magistrate.

Variation or revocation of non-disclosure order

(7) The Federal Court or the Federal Magistrates Court may, by order, vary or revoke an order made by it under subsection (3) if both:

(a) the Minister; and (b) the applicant in relation to the substantive proceedings

concerned; consent to the variation or revocation.

Offence

(8) A person is guilty of an offence if: (a) an order is in force under subsection (3); and (b) the person engages in conduct; and (c) the person’s conduct contravenes the order.


Relationship to other laws

(9) This section has effect despite anything in: (a) any other provision of this Act; or (b) any other law of the Commonwealth.

Definition


engage in conduct means: (a) do an act; or (b) omit to perform an act.

503D Details of gazetted agency to be treated as protected information

(1) If section 503A or 503B applies to information communicated by a gazetted agency to an authorised migration officer so that the



information cannot be divulged or communicated except as provided for in sections 503A, 503B and 503C, then sections 503A, 503B and 503C apply to similarly protect the agency’s details from being divulged or communicated as if the details were the information communicated by the agency.

(2) A reference in subsection (1) to agency’s details is a reference to any information in relation to the gazetted agency including the agency’s name and the conditions on which the communication of information by the agency occurred.


gazetted agency has the same meaning as in section 503A.

504 Regulations

(1) The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, without limiting the generality of the foregoing, may make regulations:

(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;

(iii) the way, including the currency, in which fees are to be paid; or

(iv) the persons who may be paid fees on behalf of the Commonwealth;

(b) making provision for the remission, refund or waiver of fees of a kind referred to in paragraph (a) or for exempting persons from the payment of such fees;

(c) making provision for or in relation to the furnishing or obtaining of information with respect to:


Section 504


(i) persons on board a vessel arriving at a port in Australia in the course of, or at the conclusion of, a voyage or flight that commenced at, or during which the vessel called at, a place outside Australia; and

(ii) persons on board a vessel leaving a port in Australia and bound for, or calling at, a place outside Australia; 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;

(d) 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 (c);

(e) 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; (f) prescribing the practice and procedure in relation to

proceedings before a Commissioner or a prescribed authority under this Act, including the summoning of witnesses, the production of documents, the taking of evidence on oath or affirmation, the administering of oaths or affirmations and the payment of expenses of witnesses;

(g) requiring assurances of support to be given, in such circumstances as are prescribed or as the Minister thinks fit, in relation to persons seeking to enter, or remain in, Australia and providing for the enforcement of assurances of support and the imposition on persons who give assurances of support of liabilities in respect of the maintenance of, and other expenditure in connexion with, the persons in respect of whom the assurances of support are given;

(h) making provision for the remission, refund or waiver of charges under the Migration (Health Services) Charge Act 1991;

(i) enabling a person who is alleged to have contravened section 137 to pay to the Commonwealth, as an alternative to prosecution, a prescribed penalty, not exceeding $1,000;



(j) enabling a person who is alleged to have contravened section 229 or 230 to pay to the Commonwealth, as an alternative to prosecution, a prescribed penalty, not exceeding:

(i) in the case of a natural person—30 penalty units; and (ii) in the case of a body corporate—100 penalty units; and (ja) enabling a person who is alleged to have committed an

offence against subsection 280(1) to pay to the Commonwealth, as an alternative to prosecution, a penalty of 12 penalty units; and

(k) prescribing penalties not exceeding a fine of $1,000 or imprisonment for 6 months in respect of offences against the regulations; and

(l) making provision for matters that, under the Education Services for Overseas Students Act 2000, are required or permitted to be prescribed in regulations made under this Act.

(2) Section 14 of the Legislative Instruments Act 2003 does not prevent, and has not prevented, regulations whose operation depends on a country or other matter being specified or certified by the Minister in an instrument in writing made under the regulations after the taking effect of the regulations.

(3) The regulations that may be made under paragraph (1)(e) 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.

(3A) The Evidence Act 1995 does not affect the operation of regulations made for the purposes of paragraph (1)(e).

(4) Regulations in respect of a matter referred to in paragraph (1)(g) may apply in relation to maintenance guarantees given before the commencement of this Part in accordance with the regulations that were in force under any of the Acts repealed by this Act.

(5) An assurance of support given, after the commencement of this subsection, in accordance with regulations under paragraph (1)(g) continues to have effect, and may be enforced, in accordance with such regulations in spite of any change in circumstances whatsoever.


Section 505


(5A) The following have effect only in relation to assurances of support that were given before 1 July 2004 and are not assurances of support in relation to which Chapter 2C of the Social Security Act 1991 applies or applied:

(a) subsection (5) of this section; (b) regulations made under paragraph (1)(g) (whether before, on

or after the commencement of this subsection) providing for: (i) the enforcement of assurances of support; or (ii) the imposition on persons who give assurances of

support of liabilities in respect of the maintenance of, and other expenditure in connection with, the persons in respect of whom the assurances of support are given.


international air carrier means an air transport enterprise that operates an air service between Australia and a place outside Australia.

505 Regulations about visa criteria

To avoid doubt, regulations for the purpose of prescribing a criterion for visas of a class may provide that the Minister, when required to decide whether an applicant for a visa of the class satisfies the criterion:

(a) is to get a specified person or organisation, or a person or organisation in a specified class, to:

(i) give an opinion on a specified matter; or (ii) make an assessment of a specified matter; or (iii) make a finding about a specified matter; or (iv) make a decision about a specified matter; and (b) is: (i) to have regard to that opinion, assessment, finding or

decision in; or (ii) to take that opinion, assessment, finding or decision to

be correct for the purposes of; deciding whether the applicant satisfies the criterion.



506 Regulations about passenger cards

(1) Regulations under paragraph 504(1)(c) may provide for the giving of different information about different classes of people.

(2) The regulations are to provide for the giving of information, in the form of answers to questions on a form, to be known as a passenger card, by non-citizens travelling to Australia, other than non-citizens exempted by the regulations.

(3) The questions for a non-citizen required by subsection (2) may include, but are not limited to, questions about any or all of the following:

(a) the non-citizen’s health; (b) any criminal convictions in Australia or a foreign country of

the non-citizen; (c) the purpose of the new arrival’s going to Australia; (d) any unpaid debts to the Commonwealth of the non-citizen; (e) any removal or deportation from, or refusal of admission

into, Australia or a foreign country of the non-citizen.

507 Marital status

(1) The Sex Discrimination Act 1984, to the extent that it applies to the status or condition of being married or being the de facto spouse of another person, does not operate in relation to:

(a) regulations, or the making of regulations, that, for the purposes of dealing with an application for a visa, specify:

(i) the nature and incidents of the relationship between a person and another person; or

(ii) the period for which a relationship of a specified kind must have existed between a person and another person;

before the person is taken to be the de facto spouse of the other person; or

(b) the performance of any function, the exercise of any power or the fulfilment of any responsibility, in connection with the administration of any such regulation.

(2) To avoid doubt, subsection (1) does not prevent the Sex Discrimination Act 1984 from applying in relation to the marital status of persons making or administering regulations covered by subsection (1).

Acts relating to immigration and deportation repealed The Schedule


The Schedule—Acts relating to immigration and deportation repealed

Section 3

Immigration Restriction Act 1901 Immigration Restriction Amendment Act 1905 Immigration Restriction Act 1908 Immigration Restriction Act 1910 Immigration Act 1912 Immigration Act 1920 Immigration Act 1924 Immigration Act 1925 Immigration Act 1930 Immigration Act 1932 Immigration Act 1933 Immigration Act 1935 Immigration Act 1940 Immigration Act 1948 Immigration Act 1949 Pacific Island Labourers Act 1901 Pacific Island Labourers Act 1906 Aliens Deportation Act 1948

Notes to the Migration Act 1958

Table of Acts


Notes to the Migration Act 1958 Note 1

The Migration Act 1958 as shown in this compilation comprises Act No. 62, 1958 amended as indicated in the Tables below.

The operation of subsection 8(2) of the Migration Amendment Act 1983 is affected by section 16 of the Migration Laws Amendment Act (No. 2) 1992.

All relevant information pertaining to application, saving or transitional provisions prior to 10 April 1997 is not included in this compilation. For subsequent information see Table A.

The Migration Act 1958 is affected by regulation 4 of the Legislative Instruments (Transitional Provisions and Consequential Amendments) Regulations 2005 (SLI 2005 No. 28). Regulation 4 ceased to have effect at the end of 31 December 2005.

Table of Acts

Act Number and year

Date of Assent

Date of commencement

Application, saving or transitional provisions

Migration Act 1958 62, 1958 8 Oct 1958 Part III (ss. 59–64): 10 Nov 1958 (see Gazette 1958, p. 3857) Remainder: 1 June 1959 (see Gazette 1959, p. 1831)

Migration Act 1964 87, 1964 5 Nov 1964 5 Nov 1964 — Migration Act 1966 10, 1966 6 May 1966 6 May 1966 S. 3(2) Migration Act 1973 16, 1973 11 Apr 1973 11 Apr 1973 — Statute Law Revision Act

1973 216, 1973 19 Dec 1973 31 Dec 1973 Ss. 9(1) and

10 Administrative Changes

(Consequential Provisions) Act 1976

91, 1976 20 Sept 1976 S. 3: (a) S. 4

Migration Amendment Act 1979

117, 1979 29 Oct 1979 Ss. 1, 2, 3(1), 4, 5, 7, 11–14, 16–19, 22–25 and 27–29: Royal Assent Remainder: 1 Nov 1979 (see Gazette 1979, No. S220)

Ss. 9(2), (3) and 22(2)

Notes to the Migration Act 1958 Table of Acts


Act Number and year

Date of Assent



Migration Amendment Act (No. 2) 1979

118, 1979 29 Oct 1979 1 Nov 1979 (see s. 2 and Gazette 1979, No. S220)

—


89, 1980 29 May 1980 S. 3: 1 July 1980 (see s. 2(2) and Gazette 1980, No. S146) Remainder: Royal Assent

—


175, 1980 17 Dec 1980 Ss. 3(2), 4, 7(2), 9, 12 and 13: 23 Jan 1981 (see Gazette 1981, No. G3, p. 30) Remainder: 14 Jan 1981

Ss. 12 and 13 S. 11 (rep. by 59, 1989, s. 37)

as amended by

Migration Legislation Amendment Act 1989

59, 1989 19 June 1989 (see 59, 1989 below)

—

Statute Law Revision Act 1981

61, 1981 12 June 1981 Ss. 58 and 59: 1 Nov 1979 (b) Ss. 60 and 115: Royal Assent (b)

S. 60(2)

Off-shore Installations (Miscellaneous Amendments) Act 1982

51, 1982 16 June 1982 Part VI (ss. 42–51): 14 July 1982 (c)

—

as amended by

Statute Law (Miscellaneous Provisions) Act (No. 2) 1984

165, 1984 25 Oct 1984 S. 3: (d) Ss. 2(32) and 6(1)

Migration Amendment (Emigration of Certain Children) Act 1983

73, 1983 28 Oct 1983 25 Nov 1983 (see s. 2)

—


112, 1983 13 Dec 1983 2 Apr 1984 (see Gazette 1984, No. S119)

Ss. 8(2) and 38

Torres Strait Treaty (Miscellaneous Amendments) Act 1984

22, 1984 26 Apr 1984 Part VII (ss. 17–21): 15 Feb 1985 (see Gazette 1985, No. S38) (e)

—


72, 1984 25 June 1984 S. 3: 23 July 1984 (f)

—

Taxation Laws Amendment Act 1984

123, 1984 19 Oct 1984 Part X (ss. 171–175): 14 Dec 1984 (g)

—


71, 1986 24 June 1986 20 Aug 1986 (see s. 2 and Gazette 1986, No. S401)

—


Table of Acts


Act Number and year

Date of Assent



Intelligence and Security (Consequential Amendments) Act 1986

102, 1986 17 Oct 1986 1 Feb 1987 (see s. 2 and Gazette 1987, No. S13)

—


168, 1986 18 Dec 1986 S. 3: 11 May 1987 (see Gazette 1987, No. S78) (h)

S. 5(1) and (2)

Mutual Assistance in Criminal Matters (Consequential Amendments) Act 1987

86, 1987 5 June 1987 S. 3: 1 Aug 1988 (see Gazette 1988, No. S225) Remainder: Royal Assent

—

Sea Installations (Miscellaneous Amendments) Act 1987

104, 1987 6 Nov 1987 Parts I–V (ss. 1–30) and Part VIII (s. 57): 15 Oct 1987 Remainder: 6 Nov 1987 (see s. 2(2))

—


133, 1987 16 Dec 1987 Ss. 3–5: 16 Sept 1987 Ss. 6, 7 and 9(a), (b): 1 Jan 1988 Remainder: Royal Assent

—

Statute Law (Miscellaneous Provisions) Act 1987

141, 1987 18 Dec 1987 S. 3: 1 Jan 1988 (see Gazette 1988, No. S348) (j)

S. 5(1), (13) and (14)

Extradition (Repeal and Consequential Provisions) Act 1988

5, 1988 9 Mar 1988 1 Dec 1988 (see s. 2(2) and Gazette 1988, No. S366)

—

Statute Law (Miscellaneous Provisions) Act 1988

38, 1988 3 June 1988 S. 3: (k) S. 5(1)


49, 1988 15 June 1988 1 July 1988 —


151, 1988 26 Dec 1988 Ss. 1, 2, 3(1) and 11: Royal Assent Remainder: 1 July 1989 (see Gazette 1989, No. S221)

—


59, 1989 19 June 1989 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

Ss. 6(2)–(5), 12(2), (3) and 16(2)



Act Number and year

Date of Assent



as amended by

Migration Legislation Amendment (Consequential Amendments) Act 1989

159, 1989 18 Dec 1989 S. 4: 19 Dec 1989 (see s. 2(2)) Remainder: 18 Dec 1989 (see s. 2(1))

—

Migration Legislation Amendment Act (No. 2) 1989

180, 1989 28 Dec 1989 19 Dec 1989 (see s. 2)

—


61, 1989 19 June 1989 1 July 1989 (see s. 2 and Gazette 1989, No. S221)

—

Petroleum (Australia-Indonesia Zone of Cooperation) (Consequential Provisions) Act 1990

37, 1990 7 June 1990 18 Feb 1991 (see s. 2 and Gazette 1991, No. S47)

—

Social Security (Rewrite) Transition Act 1991

70, 1991 25 June 1991 (l) —


86, 1991 26 June 1991 Ss. 3(a), (b), (e), 5–7, 8(e), (h), (i), 9–14, 20 and 23(b): 26 Dec 1991 Remainder: Royal Assent

S. 27


196, 1991 18 Dec 1991 15 Jan 1992 S. 10

as amended by

Migration Laws Amendment Act 1992

175, 1992 16 Dec 1992 (see 175, 1992 below)

—


198, 1991 18 Dec 1991 18 Dec 1991 (see s. 2)

—


24, 1992 6 May 1992 Ss. 1–3 and 7: Royal Assent Ss. 4 and 6: 3 June 1992 Remainder: 6 Nov 1992

S. 8


84, 1992 30 June 1992 30 June 1992 Ss. 16 and 17


85, 1992 30 June 1992 21 Sept 1992 (see Gazette 1992, No. S262)

S. 5


175, 1992 16 Dec 1992 Part 3 (ss. 9, 10): (m) Remainder: Royal Assent

—


Table of Acts


Act Number and year

Date of Assent



Migration Laws Amendment Act (No. 2) 1992

176, 1992 16 Dec 1992 Ss. 1–3 and 5: 1 Jan 1993 Ss. 4, 6, 7 and Part 3 (ss. 8–11): 1 Mar 1993 Remainder: Royal Assent

Ss. 15(2) and 16

Migration Reform Act 1992 184, 1992 17 Dec 1992 Ss. 1, 2 and 31: Royal Assent Ss. 4(e), (f), 6, 21, 22 and 32: 1 July 1993 Remainder: 1 Sept 1994

S. 2 (am. by 59, 1993, ss. 5, 10) S. 39 (am. by 59, 1993, s. 6; rs. by 60, 1994, s. 84) S. 40 (am. by 59, 1993, s. 7; 60, 1994, s. 84) S. 41 (rep. by 59, 1993, s. 8; ad. by 60, 1994, s. 84) S. 42 (ad. by 60, 1994, s. 84)

as amended by


59, 1993 28 Oct 1993

(see 59, 1993 below)

Ss. 4 and 9


60, 1994 9 Apr 1994 S. 84: (n) —


43, 1996 25 Oct 1996 Schedule 3 (items 42, 43): 17 Dec 1992 (o)

—


113, 1998 11 Dec 1998 Schedule 8 (item 2): 7 Dec 1992 (oa)

—

Migration (Offences and Undesirable Persons) Amendment Act 1992

213, 1992 24 Dec 1992 Ss. 4(2), 6 and 7: 1 Sept 1994 Remainder: Royal Assent

S. 2 (am. by 59, 1993, s. 41)

as amended by


59, 1993 28 Oct 1993 (see 59, 1993 below)

S. 40

International Labour Organisation (Compliance with Conventions) Act 1992

220, 1992 24 Dec 1992 24 Dec 1992 —


235, 1992 24 Dec 1992 24 Dec 1992 —



Act Number and year

Date of Assent




59, 1993 28 Oct 1993 Ss. 6–8, 11, 14–17 and 19: 1 Sept 1994 Ss. 9, 10, 12, 21–23, 25, 26, 33 and 35: 1 July 1993 Remainder: Royal Assent

Ss. 13, 21, 27, 29, 31 and 33

Migration Amendment (“Points” System) Act 1993

14, 1994 19 Jan 1994 19 Jan 1994 Ss. 3 and 14–16

Maritime Legislation Amendment Act 1994

20, 1994 15 Feb 1994 1 Aug 1994 (see Gazette 1994, No. S289)

—


60, 1994 9 Apr 1994 Ss. 3–83: (p) —

as amended by


43, 1996 25 Oct 1996 Schedule 3 (item 41): 9 Apr 1994 (q)

—


136, 1994 15 Nov 1994 15 Nov 1994 Sch. (item 3)


1, 1995 17 Feb 1995 17 Feb 1995 S. 4

International War Crimes Tribunals (Consequential Amendments) Act 1995

19, 1995 29 Mar 1995 S. 3: 28 Aug 1995 (see Gazette 1995, No. S323) Remainder: Royal Assent

—

as amended by


43, 1996 25 Oct 1996 Schedule 3 (items 35, 36): 29 Mar 1995 (r)

—

Customs, Excise and Bounty Legislation Amendment Act 1995

85, 1995 1 July 1995 Schedule 10 (item 4): 1 July 1995 (s)

—


100, 1995 15 Sept 1995 Schedule 1 (items 2–4, 6, 7, 11, 12): (t) Schedule 1 (item 18): (t) Remainder: Royal Assent

Sch. 1 (item 17) S. 2(3)–(5) (am. by 113, 1998, Sch. 8 [items 3–5])

as amended by


113, 1998 11 Dec 1998 Schedule 8 (items 3–5): 15 Sept 1995 (ta)

—


Table of Acts


Act Number and year

Date of Assent




102, 1995 18 Sept 1995 Ss. 1(2), 5, 8 and 9: 1 Nov 1989 Ss. 6 and 7: (u) Ss. 13–18: Royal Assent Remainder: (u)

Ss. 3, 4 and 10–12 S. 18 (rep. by 100, 1995, Sch. 1 [item 21])

as amended by


100, 1995 15 Sept 1995 (see 100, 1995 above)

—


110, 1995 29 Sept 1995 Schedule 2: 1 Nov 1995 (see Gazette 1995, No. GN43) Remainder: Royal Assent

Ss. 5–8

Family Law Reform (Consequential Amendments) Act 1995

140, 1995 12 Dec 1995 Schedule 1 (Part 8): 11 June 1996 (see Gazette 1996, No. GN5) (v)

—

Law and Justice Legislation Amendment Act (No. 1) 1995

175, 1995 16 Dec 1995 16 Dec 1995 —


25, 1996 28 June 1996 28 June 1996 —


43, 1996 25 Oct 1996 Schedule 5 (item 86): Royal Assent (w)

—


27, 1997 10 Apr 1997 Schedule 1: 1 May 1997 (see Gazette 1997, No. S168) Remainder: Royal Assent

Sch. 1 (items 29, 30) [see Table A]


92, 1997 30 June 1997 30 June 1997 —

Environment, Sport and Territories Legislation Amendment Act 1997

118, 1997 7 July 1997 Schedule 1 (item 48): Royal Assent (x)

—

Foreign Affairs and Trade Legislation Amendment Act 1997

150, 1997 17 Oct 1997 Schedule 2 (items 8, 9): Royal Assent (y)

—



Act Number and year

Date of Assent



Migration Legislation Amendment (Migration Agents) Act 1997

205, 1997 17 Dec 1997 Schedule 1 (items 67, 68): Royal Assent Schedule 1 (Part 3): 5 Dec 1999 (see Gazette 1999, No. S584) Schedule 3 (Parts 1, 2): 21 Jan 1999 Schedule 3 (Parts 4, 5): 21 Mar 1999 Remainder: 21 Mar 1998 (z)

Sch. 1 (Part 2) and Sch. 3 (items 18–20) [see Table A] S. 2(3) (am. by 146, 1999, Sch. 1 [item 615])

as amended by

Public Employment (Consequential and Transitional) Amendment Act 1999

146, 1999 11 Nov 1999 Schedule 1 (items 615, 616): 5 Dec 1999 (see Gazette 1999, No. S584) (zaa)

—


113, 1998 11 Dec 1998 Schedule 1, Schedule 2 (Part 1) and Schedule 3: 1 June 1999 (see Gazette 1999, No. S51) (za) Schedule 2 (Part 2): 5 Feb 1999 (see Gazette 1999, No. S51) (za) Schedules 4–6: 1 Mar 1999 (see Gazette 1999, No. S51) (za)

Sch. 1 (Part 2), Sch. 2 (Part 2), Sch. 3 (Part 2) and Sch. 5 (Part 2) [see Table A]

as amended by

Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001

58, 2001 28 June 2001 (see 58, 2001 below)

—


129, 2001 27 Sept 2001 (see 129, 2001 below)

—


Table of Acts


Act Number and year

Date of Assent



Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998

114, 1998 11 Dec 1998 1 June 1999 (see Gazette 1999, No. GN6)

Sch. 1 (items 28–32, 34) Sch. 1 (item 33) (am. by 129, 2001, Sch. 2 [item 4]) [see Table A]

as amended by


129, 2001 27 Sept 2001 (see 129, 2001 below)

—

Migration Legislation Amendment (Temporary Safe Haven Visas) Act 1999

34, 1999 20 May 1999 Schedule 1 (item 11): (zb) Remainder: Royal Assent

Ss. 4 and 5 [see Table A]


89, 1999 16 July 1999 Ss. 1–3: Royal Assent Schedule 1 (items 1, 2, 4, 10) and Schedule 3: 3 Dec 1998 Schedule 1 (item 3): (zc) Remainder: 22 July 1999 (see Gazette 1999, No. S337)

Sch. 3 [see Table A]

Public Employment (Consequential and Transitional) Amendment Act 1999

146, 1999 11 Nov 1999 Schedule 1 (items 607–614): 5 Dec 1999 (see Gazette 1999, No. S584) (zd)

—

Border Protection Legislation Amendment Act 1999

160, 1999 8 Dec 1999 Schedule 1 (items 1–29, 33–63, 65–70): 16 Dec 1999 (see Gazette 1999, No. S624) (ze) Schedule 1 (items 30–32): (ze) Schedule 1 (item 64): 1 Sept 1994 (ze)

Sch. 1 (items 13, 63, 70) [see Table A]

Australian Security Intelligence Organisation Legislation Amendment Act 1999

161, 1999 10 Dec 1999 Schedule 3 (items 1, 40–43): (zf)

—



Act Number and year

Date of Assent




175, 1999 22 Dec 1999 Schedule 2: 1 Mar 2000 (see Gazette 2000, No. GN7) Remainder: Royal Assent


as amended by


129, 2001 27 Sept 2001 (see 129, 2001 below)

—

Australian Federal Police Legislation Amendment Act 2000

9, 2000 7 Mar 2000 2 July 2000 (see Gazette 2000, No. S328)

Sch. 3 (items 20, 27, 34, 35) [see Table A]

Timor Gap Treaty (Transitional Arrangements) Act 2000

25, 2000 3 Apr 2000 Ss. 4–6 and Schedule 2 (item 36): 26 Oct 1999 (zg)

Ss. 4–6 [see Table A]


28, 2000 3 Apr 2000 Schedules 1–4, Schedule 5 (items 1–4) and Schedules 6–8: 28 Apr 2000 (see Gazette 2000, No. S216) (zh) Schedule 9: 1 June 1999 (zh)

Sch. 1 (item 2), Sch. 2 (item 4), Sch. 3 (item 3) and Sch. 9 (items 6–9) [see Table A]

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000

137, 2000 24 Nov 2000 Ss. 1–3 and Schedule 1 (items 1, 4, 6, 7, 9–11, 32): Royal AssentRemainder: 24 May 2001


as amended by


9, 2006 23 Mar 2006 Schedule 2 (item 16): (zha)

—

Education Services for Overseas Students (Consequential and Transitional) Act 2000

166, 2000 21 Dec 2000 Schedule 3: 4 June 2001 (see Gazette 2001, No. S175) (zi)

—

Migration Legislation Amendment (Overseas Students) Act 2000

168, 2000 21 Dec 2000 Schedule 1: 4 June 2001 (see Gazette 2001, No. GN19) Schedules 2 and 3: 1 Mar 2001 (see Gazette 2001, No. GN8) Remainder: Royal Assent

Sch. 3 (item 7) and Sch. 4 (items 3, 4) [see Table A]


Table of Acts


Act Number and year

Date of Assent



Migration Legislation Amendment (Integrity of Regional Migration Schemes) Act 2001

33, 2001 28 Apr 2001 Schedule 1 (item 4): (zj) Remainder: 1 July 2001 (see Gazette 2001, No. GN22)

S. 4 [see Table A]

Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001

58, 2001 28 June 2001 Schedule 4 (item 1): 28 Apr 2000 Schedule 4 (item 2): (zk) Schedule 4 (item 3): (zk) Remainder: 10 Aug 2001 (see Gazette 2001, No. GN31)

Sch. 1 (item 20) [see Table A]

Migration Legislation Amendment (Immigration Detainees) Act 2001

85, 2001 18 July 2001 Schedule 1 (item 5): (zl) Remainder: 27 July 2001 (see Gazette 2001, No. S307) (zl)

—

Migration Legislation Amendment (Application of Criminal Code) Act 2001

97, 2001 22 Aug 2001 19 Sept 2001 —

Migration Legislation Amendment (Immigration Detainees) Act (No. 2) 2001

105, 2001 17 Sept 2001 Ss. 1 and 2: Royal Assent Remainder: 28 Sept 2001 (see Gazette 2001, No. S403)

—

Border Protection (Validation and Enforcement Powers) Act 2001

126, 2001 27 Sept 2001 27 Sept 2001 Ss. 4–9 [see Table A]

Migration Amendment (Excision from Migration Zone) Act 2001

127, 2001 27 Sept 2001 27 Sept 2001 S. 4 [see Table A]

Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001

128, 2001 27 Sept 2001 27 Sept 2001 (see s. 2)

S. 4 [see Table A]



Act Number and year

Date of Assent




129, 2001 27 Sept 2001 Schedule 1 (items 6–11) and Schedule 2 (items 5–7): 1 Oct 2001 (see Gazette 2001, No. S406) Schedule 2 (items 1–4): 1 June 1999 (zm) Schedule 2 (item 7A): 16 Dec 1999 (zm) Schedule 2 (items 8, 9): 1 June 1999Schedule 2 (item 10): 1 Mar 2000 (zm) Remainder: Royal Assent

Sch. 1 (items 5, 7–10) and Sch. 2 (item 7) Sch. 1 (item 11) (am. by 141, 2005, Sch. 4 [item 19]) [see Table A]

as amended by

Migration and Ombudsman Legislation Amendment Act 2005

141, 2005 12 Dec 2005 Schedule 4 (item 19): Royal Assent

—


130, 2001 27 Sept 2001 21 Dec 2001 (zn) —


131, 2001 27 Sept 2001 1 Oct 2001 (see Gazette 2001, No. S406)

Sch. 1 (items 7–10) [see Table A]

Migration Legislation Amendment (Judicial Review) Act 2001

134, 2001 27 Sept 2001 Schedule 1: 2 Oct 2001 (see Gazette 2001, No. S406) Remainder: Royal Assent


Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001

157, 2001 1 Oct 2001 Schedule 3: (zo) Schedule 4 (items 1–3, 9): (zo) Schedule 4 (items 4–8, 10): (zo) Schedule 5: (zo) Remainder: Royal Assent

Sch. 1 (item 30), Sch. 3 (item 18), Sch. 4 (items 9, 10) and Sch. 5 (item 2) [see Table A]

Migration Legislation Amendment (Transitional Movement) Act 2002

10, 2002 4 Apr 2002 Schedule 1: 12 Apr 2002 (see Gazette 2002, No. S105) Remainder: Royal Assent

—


Table of Acts


Act Number and year

Date of Assent




35, 2002 26 June 2002 Schedule 1 (items 3, 5, 9–17): 1 Nov 2002 (see Gazette 2002, No. GN38) Remainder: Royal Assent


International Criminal Court (Consequential Amendments) Act 2002

42, 2002 27 June 2002 Schedules 1–7: 26 Sept 2002 (see s. 2(1) (item 2) and Gazette 2002, No. GN38) Remainder: 28 June 2002

—

Migration Legislation Amendment (Procedural Fairness) Act 2002

60, 2002 3 July 2002 4 July 2002 Sch. 1 (items 7, 8) [see Table A]

Border Security Legislation Amendment Act 2002

64, 2002 5 July 2002 Schedule 6 (item 9): 5 Jan 2003

—

Security Legislation Amendment (Terrorism) Act 2002

65, 2002 5 July 2002 Schedule 1 (items 14–18): 6 July 2002


Migration Legislation Amendment (Migration Advice Industry) Act 2003

3, 2003 24 Feb 2003 24 Feb 2003 —

Migration Legislation Amendment (Contributory Parents Migration Scheme) Act 2003

5, 2003 19 Mar 2003 Schedule 1: (zp) —

Petroleum (Timor Sea Treaty) (Consequential Amendments) Act 2003

10, 2003 2 Apr 2003 Schedule 1 (items 1–52, 54–75, 78–82): 20 May 2002 Remainder: Royal Assent

—

Crimes Legislation Enhancement Act 2003

41, 2003 3 June 2003 Schedule 3 (items 14, 42): Royal Assent


Migration Legislation Amendment (Protected Information) Act 2003

75, 2003 15 July 2003 Schedule 1 (items 5A–5D, 6A, 8) and Schedule 2: 16 July 2003 Remainder: Royal Assent


Migration Amendment (Duration of Detention) Act 2003

90, 2003 23 Sept 2003 Schedule 1: 24 Sept 2003 Remainder: Royal Assent




Act Number and year

Date of Assent



Migration Legislation Amendment (Sponsorship Measures) Act 2003

99, 2003 14 Oct 2003 14 Oct 2003 Sch. 2 (item 2) [see Table A]

Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003

122, 2003 5 Dec 2003 Schedule 3 (item 2): 1 July 2004

—

Migration Legislation Amendment (Identification and Authentication) Act 2004

2, 2004 27 Feb 2004 Schedule 1: 27 Aug 2004 Remainder: Royal Assent


Customs Legislation Amendment (Application of International Trade Modernisation and Other Measures) Act 2004

25, 2004 25 Mar 2004 Schedule 2 (item 34): (zq) Schedule 2 (item 35): (zq) Schedule 2 (items 33, 36): Royal Assent

—

Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004

48, 2004 21 Apr 2004 Schedule 1: 1 July 2004 (see Gazette 2004, No. GN23) Remainder: Royal Assent

Sch. 1 (items 172–191) [see Table A]

Australian Federal Police and Other Legislation Amendment Act 2004

64, 2004 22 June 2004 Schedule 2 (item 9): 1 July 2004

—

Australian Passports (Transitionals and Consequentials) Act 2005

7, 2005 18 Feb 2005 Ss. 4–11 and Schedule 1: 1 July 2005 (see s. 2(1)) Remainder: Royal Assent

—

Administrative Appeals Tribunal Amendment Act 2005

38, 2005 1 Apr 2005 Schedule 1 (item 226): 16 May 2005

—

Migration Amendment (Detention Arrangements) Act 2005

79, 2005 29 June 2005 Schedule 1 (item 17): (zr) Remainder: Royal Assent


Fisheries Legislation Amendment (International Obligations and Other Matters) Act 2005

99, 2005 6 July 2005 Schedule 1 (item 59): (zs)

—

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Act 2005

103, 2005 23 Aug 2005 Schedule 2 (items 1–9): 24 Aug 2005Schedule 2 (items 10–12): 30 Nov 2005



Table of Acts


Act Number and year

Date of Assent



Migration Litigation Reform Act 2005

137, 2005 15 Nov 2005 Schedule 1: 1 Dec 2005 (see F2005L03684) Remainder: Royal Assent

Sch. 1 (items 40–42, 46–48) [see Table A]


141, 2005 12 Dec 2005 Schedule 1, Schedule 2 (item 27) and Schedule 4 (items 1–18, 20): Royal Assent Schedule 2 (item 26): (zt) Schedule 3: 13 Dec 2005

Sch. 1 (item 5) and Sch. 4 (item 20) [see Table A]

Anti-Terrorism Act (No. 2) 2005

144, 2005 14 Dec 2005 Schedule 7 (items 13, 14): 11 Jan 2006 Schedule 10 (items 31, 32): Royal Assent

—

Offshore Petroleum (Repeals and Consequential Amendments) Act 2006

17, 2006 29 Mar 2006 Schedule 2 (items 46, 47): 1 July 2008 (see s. 2(1) and F2008L02273)

—

Postal Industry Ombudsman Act 2006

25, 2006 6 Apr 2006 Schedule 1 (item 15): 6 Oct 2006

—

as amended by


141, 2005 12 Dec 2005 Schedule 2 (item 32): (zt)

—

Family Law Amendment (Shared Parental Responsibility) Act 2006

46, 2006 22 May 2006 Schedule 8 (item 102): 1 July 2006

—

Education Services for Overseas Students Legislation Amendment (2006 Measures No. 2) Act 2006

144, 2006 6 Dec 2006 Schedule 1, Schedule 2 (item 1), Schedules 3 and 4: 1 Jan 2007 Schedule 2 (items 2–7): 1 July 2007 Remainder: Royal Assent

—

Defence Legislation Amendment Act 2006

159, 2006 11 Dec 2006 Schedule 1: 1 Oct 2007 Remainder: Royal Assent

—

Environment and Heritage Legislation Amendment Act (No. 1) 2006

165, 2006 12 Dec 2006 Schedule 1 (items 854–869): 19 Feb 2007 (see F2007L00411)

—



Act Number and year

Date of Assent



Migration Amendment (Employer Sanctions) Act 2007

7, 2007 19 Feb 2007 Schedules 1 and 2: 19 Aug 2007 Remainder: Royal Assent

Sch. 1 (item 2) and Sch. 2 (item 5) [see Table A]


8, 2007 15 Mar 2007 Schedule 4 (items 18, 19): Royal Assent

—

Australian Citizenship (Transitionals and Consequentials) Act 2007

21, 2007 15 Mar 2007 Schedules 1–3: 1 July 2007 (see s. 2(1) and F2007L01653) Remainder: Royal Assent

Sch. 3 (item 22) (rep. by 63, 2007, Sch. 1 [item 67])

as amended by

Migration Legislation Amendment (Information and Other Measures) Act 2007

63, 2007 15 Apr 2007 Schedule 1 (items 66, 67): (see 63, 2007 below)

—

Migration Amendment (Border Integrity) Act 2007

62, 2007 15 Apr 2007 Schedules 1–3: 1 July 2007 (see F2007L01792) Remainder: Royal Assent

Sch. 1 (item 4) and Sch. 2 (items 35, 36) [see Table A]

Migration Legislation Amendment (Information and Other Measures) Act 2007

63, 2007 15 Apr 2007 Schedule 1 (items 1–65, 71, 72) and Schedule 2: 1 May 2007 (see F2007L01135) Schedule 1 (items 66, 67): (zu) Schedule 1 (items 68, 70): (zu) Schedule 1 (item 69): (zu) Remainder: Royal Assent

Sch. 1 (items 61, 64, 65, 71, 72) and Sch. 2 (item 2) [see Table A]

Education Services for Overseas Students Legislation Amendment Act 2007

70, 2007 28 May 2007 Schedule 1: 1 July 2007 Remainder: Royal Assent


Migration Amendment (Maritime Crew) Act 2007

73, 2007 28 May 2007 Schedule 1 (items 1–16): 1 July 2007 (see F2007L01795) Schedule 1 (item 17): (zv)

—

Migration Amendment (Statutory Agency) Act 2007

87, 2007 21 June 2007 22 June 2007 —


Table of Acts


Act Number and year

Date of Assent



Migration Amendment (Review Provisions) Act 2007

100, 2007 28 June 2007 29 June 2007 Sch. 1 (item 33) [see Table A]

Fisheries Legislation Amendment (New Governance Arrangements for the Australian Fisheries Management Authority and Other Matters) Act 2008

36, 2008 24 June 2008 Schedule 3 (items 67–69): [see Note 2] Schedule 4 (items 7, 8): 22 July 2008

—


73, 2008 3 July 2008 Schedule 1 (items 32, 33): (zw)

—


85, 2008 15 Sept 2008 Schedule 1 and Schedule 4 (items 1–4, 6(1), (2)): 27 Oct 2008 (see F2008L03538) Schedule 2 (items 1–3, 10–22) and Schedule 3 (items 1–6, 18–25): [see Note 3 and Table A] Schedule 3 (items 7–17): Royal Assent Schedule 4 (items 5, 6(3), 7): 19 Sept 2008 (see F2008L03482)

Sch. 1 (items 37–40), Sch. 2 (items 15, 20), Sch. 3 (items 2, 6, 20, 23, 25) and Sch. 4 (items 6, 7) [see Table A]

Migration Amendment (Notification Review) Act 2008

112, 2008 31 Oct 2008 Schedule 1 (items 1, 2, 4, 6–9, 11, 12, 14, 16–19, 21–27, 29): 5 Dec 2008 (see F2008L04521) Schedule 1 (items 3, 5, 13, 15): (zx)


Offshore Petroleum Amendment (Greenhouse Gas Storage) Act 2008

117, 2008 21 Nov 2008 Schedule 3 (items 19, 20): 22 Nov 2008

—

Notes to the Migration Act 1958 Act Notes


(a) The Migration Act 1958 was amended by section 3 only of the Administrative Changes (Consequential Provisions) Act 1976, subsection 2(7) of which provides as follows:

(7) The amendments of each other Act specified in the Schedule made by this Act shall be deemed to have come into operation on 22 December 1975.

(b) The Migration Act 1958 was amended by sections 58–60 and 115 only of the Statute Law Revision Act 1981, subsections 2(1) and (7) of which provide as follows:

(1) Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.

(7) Sections 58 and 59 shall be deemed to have come into operation on 1 November 1979.

(c) The Migration Act 1958 was amended by Part VI (sections 42–51) only of the Off-shore Installations (Miscellaneous Amendments) Act 1982, subsection 2(1) of which provides as follows:

(1) Subject to subsection (2), this Act shall come into operation on the twenty-eighth day after the day on which it receives the Royal Assent.

(d) The Off-shore Installations (Miscellaneous Amendments) Act 1982 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 2) 1984, subsection 2(16) of which provides as follows:

(16) The amendment of the Off-shore Installations (Miscellaneous Amendments) Act 1982 made by this Act shall be deemed to have come into operation on 14 July 1982.

(e) The Migration Act 1958 was amended by Part VII (sections 17–21) only of the Torres Strait Treaty (Miscellaneous Amendments) Act 1984, subsection 2(1) of which provides as follows:

(1) This Act, other than Part X, shall come into operation on the day fixed under section 2 of the Torres Strait Fisheries Act 1984.

(f) The Migration Act 1958 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 1) 1984, subsection 2(1) of which provides as follows:

(1) Subject to this section, this Act shall come into operation on the twenty-eighth day after the day on which it receives the Royal Assent.

(g) The Migration Act 1958 was amended by Part X (sections 171–175) only of the Taxation Laws Amendment Act 1984, subsection 2(3) of which provides as follows:

(3) The remaining provisions of this Act shall come into operation on the fifty-sixth day after the day on which this Act receives the Royal Assent.

(h) The Migration Act 1958 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 2) 1986, subsections 2(1) and (8) of which provide as follows:


(8) The repeal and re-enactment of section 5A of the Migration Act 1958 by this Act shall come into operation on a day to be fixed by Proclamation.

(j) The Migration Act 1958 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act 1987, subsections 2(1) and (23) of which provide as follows:


(23) The amendments of paragraph 67(1)(c) of the Migration Act 1958 made by this Act shall come into operation on a day to be fixed by Proclamation for the purposes of this subsection.

(k) The Migration Act 1958 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act 1988, subsection 2(6) of which provides as follows:

(6) The amendment of the Migration Act 1958 made by this Act shall be taken to have commenced immediately after the commencement of Part VI of the Sea Installations (Miscellaneous Amendments) Act 1987.

Part VI commenced on 3 November 1987.


Act Notes


(l) Section 2 of the Social Security (Rewrite) Transition Act 1991 provides as follows: 2 This Act commences immediately after the Social Security Act 1991 commences. The Social Security Act 1991 came into operation on 1 July 1991. (m) Subsection 2(2) of the Migration Laws Amendment Act 1992 provides as follows: (2) Part 3 is taken to have commenced immediately after the commencement of the

Migration Amendment Act (No. 2) 1991. The Migration Amendment Act (No. 2) 1991 came into operation on 15 January 1992. (n) The Migration Reform Act 1992 was amended by section 84 only of the Migration Legislation

Amendment Act 1994, subsection 2(2) of which provides as follows: (2) Section 84 and Schedule 2 are taken to have commenced immediately after the

Migration Reform Act 1992 received the Royal Assent. The Migration Reform Act 1992 received the Royal Assent on 17 December 1992. (o) The Migration Reform Act 1992 was amended by Schedule 3 (items 42 and 43) only of the

Statute Law Revision Act 1996, subsection 2(3) of which provides as follows: (3) Each item in Schedule 3 is taken to have commenced when the Act containing the

provision amended by the item received the Royal Assent. (oa) Subsection 2(5) of the Migration Legislation Amendment Act (No. 1) 1998 provides as follows: (5) Item 2 of Schedule 8 is taken to have commenced on 7 December 1992

immediately after the Migration Reform Act 1992 received the Royal Assent. (p) The Migration Act 1958 was amended by sections 3–83 only of the Migration Legislation

Amendment Act 1994, subsection 2(3) of which provides as follows: (3) The remaining provisions of this Act commence immediately after the

commencement of section 3 of the Migration Reform Act 1992. Section 3 commenced on 1 September 1994. (q) The Migration Legislation Amendment Act 1994 was amended by Schedule 3 (item 41) only

of the Statute Law Revision Act 1996, subsection 2(3) of which provides as follows: (3) Each item in Schedule 3 is taken to have commenced when the Act containing the

provision amended by the item received the Royal Assent. (r) The International War Crimes Tribunals (Consequential Amendments) Act 1995 was

amended by Schedule 3 (items 35 and 36) only of the Statute Law Revision Act 1996, subsection 2(3) of which provides as follows:

(3) Each item in Schedule 3 is taken to have commenced when the Act containing the provision amended by the item received the Royal Assent.

(s) The Migration Act 1958 was amended by Schedule 10 (item 4) only of the Customs, Excise and Bounty Legislation Amendment Act 1995, subsection 2(5) of which provides as follows:

(5) Schedules 2 and 3, items 1, 26 to 45, 49 to 53 and 56 and 67 of Schedule 4, Schedule 6, items 6 to 11 of Schedule 7 and Schedules 8 and 10 commence on 1 July 1995.

(t) Subsections 2(2) and (3) of the Migration Legislation Amendment Act (No. 5) 1995 provide as follows:

(2) Items 2, 3, 4, 6, 7, 11 and 12 of Schedule 1 are taken to have commenced immediately after the commencement of section 83 of the Migration Legislation Amendment Act 1994.

(3) Item 18 of Schedule 1 is taken to have commenced immediately after the commencement of the Migration (Delayed Visa Applications) Tax Act 1992.

Section 83 commenced on 1 September 1994. The Migration (Delayed Visa Applications) Tax Act 1992 came into operation on 1 September

1994.



(ta) Subsections 2(6)–(8) of the Migration Legislation Amendment Act (No. 1) 1998 provide as follows:

(6) Item 3 of Schedule 8 is taken to have commenced on 15 September 1995, immediately after the commencement of subsection 2(3) of the Migration Legislation Amendment Act (No. 5) 1995.



(u) Subsections 2(1) and (3) of the Migration Legislation Amendment Act (No. 6) 1995 provide as follows:

(1) Subject to this section, this Act is taken to have commenced immediately before the commencement of section 19 of the Migration Reform Act 1992.

(3) Sections 6 and 7 are taken to have commenced immediately after the commencement of the Migration Amendment Act (No. 4) 1992.

Section 19 commenced on 1 September 1994. The Migration Amendment Act (No. 4) 1992 came into operation on 24 December 1992. (v) The Migration Act 1958 was amended by the Family Law Reform (Consequential

Amendments) Act 1995, subsection 2(2) of which provides as follows: (2) The amendments made by Parts 1, 2, 3, 4, 6, 8, 9 and 10 of Schedule 1 commence

on the commencement of section 31 of the Family Law Reform Act 1995. (w) The Migration Act 1958 was amended by Schedule 5 (item 86) only of the Statute Law

Revision Act 1996, subsection 2(1) of which provides as follows: (1) Subject to subsections (2) and (3), this Act commences on the day on which it

receives the Royal Assent. (x) The Migration Act 1958 was amended by Schedule 1 (item 48) only of the Environment, Sport

and Territories Legislation Amendment Act 1997, subsection 2(1) of which provides as follows:

(1) Subject to subsections (2), (3) and (4), this Act commences on the day on which it receives the Royal Assent.

(y) The Migration Act 1958 was amended by Schedule 2 (items 8 and 9) only of the Foreign Affairs and Trade Legislation Amendment Act 1997, subsection 2(1) of which provides as follows:

(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(z) Subsection 2(1) of the Migration Legislation Amendment (Migration Agents) Act 1997 provides as follows:

(1) Subject to this section, this Act commences immediately before 21 March 1998. (zaa) The Migration Legislation Amendment (Migration Agents) Act 1997 was amended by

Schedule 1 (items 615 and 616) only of the Public Service Employment (Consequential and Transitional) Amendment Act 1999, subsections 2(1) and (2) of which provide as follows:

(1) In this Act, commencing time means the time when the Public Service Act 1999 commences.

(2) Subject to this section, this Act commences at the commencing time. (za) The Migration Act 1958 was amended by Schedules 1–6 only of the Migration Legislation

Amendment Act (No. 1) 1998, subsections 2(2) and (3) of which provide as follows: (2) Subject to subsection (3), Schedules 1, 2, 3, 4, 5, 6 and 7 commence on a day or

days to be fixed by Proclamation.


Act Notes


(3) If Schedule 1, 2, 3, 4, 5, 6 or 7 does not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

(zb) Subsection 2(2) of the Migration Legislation Amendment (Temporary Safe Haven Visas) Act 1999 provides as follows:

(2) Item 11 of Schedule 1 commences immediately after the commencement of item 10 of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 1998.

Item 10 commenced on 1 June 1999 (see Gazette 1999, No. S51). (zc) Subsection 2(3) of the Migration Legislation Amendment Act (No. 1) 1999 provides as follows: (3) Item 3 of Schedule 1 commences, or is taken to have commenced, immediately

after the commencement of item 2 of Schedule 1 to the Human Rights Legislation Amendment Act (No. 2) 1999.

The Human Rights Legislation Amendment Act (No. 2) 1999 has not been enacted. Therefore this amendment does not commence.

(zd) The Migration Act 1958 was amended by Schedule 1 (items 607–614) only of the Public Service Employment (Consequential and Transitional) Amendment Act 1999, subsections 2(1) and (2) of which provide as follows:

(1) In this Act, commencing time means the time when the Public Service Act 1999 commences.

(2) Subject to this section, this Act commences at the commencing time. (ze) The Migration Act 1958 was amended by Schedule 1 only of the Border Protection Legislation

Amendment Act 1999, subsections 2(2), (3) and (6) of which provide as follows: (2) Division 2 of Part 3 of Schedule 1 commences immediately after the

commencement of Schedule 2 to the Fisheries Legislation Amendment Act (No. 1) 1999.

(3) Part 5 of Schedule 1 is taken to have commenced on 1 September 1994, immediately after the commencement of section 83 of the Migration Legislation Amendment Act 1994.

(6) Subject to subsections (7) and (8), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.

Schedule 2 to the Fisheries Legislation Amendment Act (No. 1) 1999 commenced on 11 December 2001 (see Gazette 2001, No. S485).

(zf) The Migration Act 1958 was amended by Schedule 3 (items 1 and 40–43) only of the Australian Security Intelligence Organisation Legislation Amendment Act 1999, subsection 2(2) of which provides as follows:

(2) Subject to subsections (3) to (6), Schedule 3 commences immediately after the commencement of the other Schedules to this Act.

The other Schedules to this Act commence on Royal Assent.

(zg) The Migration Act 1958 was amended by Schedule 2 (item 36) only of the Timor Gap Treaty (Transitional Arrangements) Act 2000, subsection 2(2) of which provides as follows:

(2) Sections 3 to 7 and Schedules 1 and 2 (other than items 18 to 25 of Schedule 2) are taken to have commenced at the transition time. [see Table A]

(zh) The Migration Act 1958 was amended by the Migration Legislation Amendment Act (No. 1) 2000, subsections 2(2), (5), (7) and (11) of which provide as follows:

(2) Subject to subsection (3), Schedules 1, 2, 3, 4, 6, 7 and 8 commence on a day or days to be fixed by Proclamation.

(5) If this Act receives the Royal Assent after the date of commencement of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 1998, then, subject to subsection (8), Part 1 of Schedule 5 to this Act commences on a day to be fixed by Proclamation.



(7) If this Act receives the Royal Assent on or after the date of commencement of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 1998, Part 2 of Schedule 5 to this Act does not commence and is taken not to have been enacted.

(11) If an Act entitled Migration Legislation Amendment (Judicial Review) Act 2000 has been enacted but has not commenced on or before 1 June 1999, or has not been enacted on or before that date, and this Act receives the Royal Assent after that date, Schedule 9 is taken to have commenced on 1 June 1999.

(zha) Subsection 2(1) (item 31) of the Statute Law Revision Act 2006 provides as follows: (1) Each provision of this Act specified in column 1 of the table commences, or is taken

to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information

Column 1 Column 2 Column 3

Provision(s) Commencement Date/Details

31. Schedule 2, item 16

Immediately after the time specified in the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 for the commencement of item 277 of Schedule 2 to that Act.

24 May 2001

(zi) The Migration Act 1958 was amended by Schedule 3 only of the Education Services for Overseas Students (Consequential and Transitional) Act 2000, subsection 2(4) of which provides as follows:

(4) The remaining provisions of this Act commence on a day or days to be fixed by Proclamation.

(zj) The Migration Act 1958 was amended by the Migration Legislation Amendment (Integrity of Regional Migration Schemes) Act 2001, subsections 2(1) and (3)(b) of which provide as follows:

(1) Subject to this section, this Act (other than item 4 of Schedule 1) commences on a day to be fixed by Proclamation.

(3) Item 4 of Schedule 1 commences at the later of the following times: (b) the commencement of Parts 4 to 10 of the Act that establishes the

Administrative Review Tribunal.

Note: The short title of the Act that establishes the Administrative Review Tribunal is either the Administrative Review Tribunal Act 2000 or the Administrative Review Tribunal Act 2001.

The Administrative Review Tribunal Bill has not been enacted. Therefore this amendment does not commence.

(zk) Subsections 2(5) and (6) of the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 provide as follows:

(5) Item 2 of Schedule 4 to this Act commences immediately after the commencement of item 2 of Schedule 2 to the Migration Legislation Amendment (Overseas Students) Act 2000.

(6) Item 3 of Schedule 4 to this Act commences immediately after the commencement of item 12 of Schedule 3 to the Migration Legislation Amendment Act (No. 1) 1998.

Item 2 of Schedule 2 to the Migration Legislation Amendment (Overseas Students) Act 2000 commenced on 1 March 2001.


Act Notes


Item 12 of Schedule 3 to the Migration Legislation Amendment Act (No. 1) 1998 commenced on 1 June 1999.

(zl) The Migration Act 1958 was amended by the Migration Legislation Amendment (Immigration Detainees) Act 2001, subsections 2(1) and (4)(b) of which provide as follows:

(1) Subject to this section, this Act (other than item 5 of Schedule 1) commences on a day or days to be fixed by Proclamation.

(4) Item 5 of Schedule 1 commences or is taken to have commenced: (b) when item 1 of Schedule 1 to the Migration Legislation Amendment

(Application of Criminal Code) Act 2001 commences, if that item commences after item 4 of Schedule 1 to this Act commences.

Item 1 of Schedule 1 to the Migration Legislation Amendment (Application of Criminal Code) Act 2001 commenced on 19 September 2001.

(zm) Subsections 2(4), (4A) and (6) of the Migration Legislation Amendment Act (No. 1) 2001 provide as follows:

(4) Part 1 of Schedule 2 is taken to have commenced on 1 June 1999, immediately after the commencement of item 23 of Schedule 1 to the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998.

(4A) Item 7A of Schedule 2 is taken to have commenced on 16 December 1999, immediately after the commencement of item 11 of Schedule 1 to the Border Protection Legislation Amendment Act 1999.

(6) Item 10 of Schedule 2 is taken to have commenced on 1 March 2000, immediately after the commencement of item 5 of Schedule 2 to the Migration Legislation Amendment (Migration Agents) Act 1999.

(zn) Section 2 of the Migration Legislation Amendment Act (No. 5) 2001 provides as follows: 2 This Act commences on 21 December 2001, immediately after the commencement

of Schedule 1 to the Privacy Amendment (Private Sector) Act 2000.

(zo) Subsections 2(4), (5), (6), (7) and (8) of the Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001 provide as follows:

(4) Schedule 3 commences immediately after the later of the following: (a) the commencement of section 1; (b) the commencement of Schedule 1 to the Migration Legislation Amendment

(Judicial Review) Act 2001. (5) Items 1, 2, 3 and 9 of Schedule 4 do not commence if Schedule 1 to the Migration

Legislation Amendment (Judicial Review) Act 2001 commences on or before the day on which this Act receives the Royal Assent.

(6) Subject to subsection (5), items 1, 2, 3 and 9 of Schedule 4 commence immediately after the later of the following:

(a) the commencement of section 1; (b) the commencement of Part 1 of Schedule 1 to the Migration Legislation

Amendment Act (No. 1) 2001. (7) Items 4, 5, 6, 7, 8 and 10 of Schedule 4 commence immediately after the later of the

following: (a) the commencement of section 1; (b) the commencement of Part 2 of Schedule 1 to the Migration Legislation

Amendment Act (No. 1) 2001. (8) Schedule 5 commences immediately after the later of the following: (a) the commencement of section 1; (b) the commencement of Part 1 of Schedule 1 to the Migration Legislation

Amendment Act (No. 6) 2001.



Schedule 1 to the Migration Legislation Amendment (Judicial Review) Act 2001 commenced on 2 October 2001.

Part 2 of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 2001 and Part 1 of Schedule 1 to the Migration Legislation Amendment Act (No. 6) 2001 commenced on 1 October 2001.

(zp) Subsection 2(1) (item 2) of the Migration Legislation Amendment (Contributory Parents Migration Scheme) Act 2003 provides as follows:

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.


2. Schedule 1 Immediately after the commencement of the Migration (Visa Application) Charge Amendment Act 2003

20 March 2003

(zq) Subsection 2(1) (items 21–23) of the Customs Legislation Amendment (Application of International Trade Modernisation and Other Measures) Act 2004 provides as follows:

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.



The day on which this Act receives the Royal Assent.

However, the provision(s) do not commence at all if item 6 of Schedule 6 to the Migration Legislation Amendment Act (No. 1) 2004 commences before, or on the same day as, the day on which this Act receives the Royal Assent.

25 March 2004


Immediately after the commencement of item 6 of Schedule 6 to the Migration Legislation Amendment Act (No. 1) 2004.

However, the provision(s) do not commence at all if this Act receives the Royal Assent on a day that is before the day on which item 6 of Schedule 6 to the Migration Legislation Amendment Act (No. 1) 2004 commences.

Does not commence


Immediately after the commencement of the provision(s) covered by table item 21 or table item 22, whichever of those provision(s) commences.

25 March 2004


Act Notes


(zr) Subsection 2(1) (item 3) of the Migration Amendment (Detention Arrangements) Act 2005 provides as follows:




The later of: (a) the start of the day on which this Act receives

the Royal Assent; and (b) immediately after the commencement of

item 15 of Schedule 1 to the Migration Litigation Reform Act 2005.

However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.

1 December 2005 (paragraph (b) applies)

(zs) Subsection 2(1) (items 3 and 10) of the Fisheries Legislation Amendment (International Obligations and Other Matters) Act 2005 provides as follows:




A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 2 years beginning on the day on which this Act receives the Royal Assent, the provisions are repealed on the first day after the end of that period.

Repealed on 6 July 2007


The later of: (a) immediately after the commencement of Part 1

of Schedule 2 to the Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Act 2005; and

(b) immediately after the commencement of the provision(s) covered by table item 3.

However, the provision(s) do not commence at all unless both of the events mentioned in paragraphs (a) and (b) occur.

Does not commence



(zt) Subsection 2(1) (items 4 and 7) of the Migration and Ombudsman Legislation Amendment Act 2005 provides as follows:




The later of: (a) the start of the day on which this Act receives

the Royal Assent; and (b) immediately after the commencement of

item 16 of Schedule 1 to the Postal Industry Ombudsman Act 2006.

However, if item 16 of Schedule 1 to the Postal Industry Ombudsman Act 2006 does not commence at or before the start of the day on which this Act receives the Royal Assent, the provision(s) do not commence at all.

Does not commence


Immediately before the commencement of item 16 of Schedule 1 to the Postal Industry Ombudsman Act 2006.

However, if item 16 of Schedule 1 to the Postal Industry Ombudsman Act 2006 commences at or before the start of the day on which this Act receives the Royal Assent, the provision(s) do not commence at all.

6 October 2006

(zu) Subsection 2(1) (items 2 and 4–7) of the Migration Legislation Amendment (Information and Other Measures) Act 2007 provides as follows:



2. Schedule 1, Part 1


However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

1 May 2007 (see F2007L01135)


Act Notes



4. Schedule 1, items 66 and 67

Immediately before the commencement of Schedules 1 and 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007.

However, items 66 and 67 of Schedule 1 to this Act do not commence at all if Schedules 1 and 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 commence at or before the time that the provision(s) covered by table item 2 commence.

1 July 2007


The later of: (a) the time the provision(s) covered by table

item 2 commence; and (b) immediately after the commencement of

Schedule 1 to the Australian Citizenship (Transitionals and Consequentials) Act 2007.


1 July 2007 (paragraph (b) applies)


At the same time as the provision(s) covered by table item 2.

However, item 69 of Schedule 1 to this Act does not commence at all if Schedule 1 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 does not commence at or before that time.

Does not commence


Immediately after the commencement of Schedule 1 to the Australian Citizenship (Transitionals and Consequentials) Act 2007.

However, item 70 of Schedule 1 to this Act does not commence at all if Schedule 1 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 commences at or before the time the provision(s) covered by table item 2 commence.

1 July 2007



(zv) Subsection 2(1) (items 2 and 4) of the Migration Amendment (Maritime Crew) Act 2007 provides as follows:



2. Schedule 1, Part 1



1 July 2007 (see F2007L01795)


Immediately after the provision(s) covered by table item 2.

However, if items 4 and 5 of Schedule 1 to the Migration Amendment (Visa Integrity) Act 2007 do not commence at the same time as or before the provisions covered by table item 2 commence, the provision(s) do not commence at all.

Does not commence

(zw) Subsection 2(1) (item 23) of the Statute Law Revision Act 2008 provides as follows: (1) Each provision of this Act specified in column 1 of the table commences, or is taken

to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.



Immediately after the commencement of item 2 of Schedule 2 to the Migration Legislation Amendment (Overseas Students) Act 2000.

1 March 2001

(zx) Subsection 2(1) (items 2, 3, 5, 7 and 9) of the Migration Amendment (Notification Review) Act 2008 provides as follows:






5 December 2008

(see F2008L04521)


Act Notes




The later of: (a) immediately after the commencement of the

provision(s) covered by table item 2; and (b) immediately after the commencement of

item 13 of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 2008.


5 December 2008

(paragraph (a) applies)






5 December 2008







5 December 2008







5 December 2008



Table of Amendments


The amendment history of the Migration Act 1958 after renumbering by the Migration Legislation Amendment Act 1989 (No. 59, 1989) and the Migration Legislation Amendment Act 1994 (No. 60, 1994) appears in the Table below.

Table of Amendments

ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted

Provision affected How affected Title .......................................... am. No. 112, 1983 Part 1 S. 3 ........................................... am. No. 216, 1973; No. 112, 1983; No. 59, 1989; No. 184, 1992 S. 3A ........................................ ad. No. 102, 1995 S. 3B ........................................ ad. No. 160, 1999 S. 4 ........................................... ad. No. 184, 1992 am. No. 60, 1994 S. 4AA ...................................... ad. No. 79, 2005 S. 4A ........................................ ad. No. 97, 2001 S. 5 ........................................... am. No. 10, 1966; No. 216, 1973; No. 91, 1976; Nos. 117 and

118, 1979; Nos. 89 and 175, 1980; No. 51, 1982; No. 112, 1983; Nos. 22 and 123, 1984; No. 168, 1986; Nos. 86, 104 and 141, 1987; Nos. 38, 49 and 151, 1988; No. 59, 1989 (as am. by No. 159, 1989); No. 37, 1990; Nos. 70, 86 and 196, 1991; Nos. 24, 84 and 176, 1992; No. 184, 1992 (as am. by No. 59, 1993); No. 59, 1993; Nos. 14, 20 and 60, 1994; No. 100, 1995; Nos. 27 and 205, 1997; No. 113, 1998; No. 160, 1999; Nos. 25, 28, 137 and 168, 2000; Nos. 85, 97, 126, 127, 128 and 134, 2001; No. 10, 2002; Nos. 5, 10 and 99, 2003; Nos. 2 and 64, 2004; Nos. 7, 79, 103 and 137, 2005; Nos. 17 and 165, 2006; Nos. 62, 63 and 73, 2007; No. 117, 2008

S. 5A ........................................ ad. No. 2, 2004 am. No. 63, 2007 S. 5B ........................................ ad. No. 2, 2004 am. Nos. 62 and 63, 2007 Ss. 5C, 5D ................................ ad. No. 2, 2004 S. 5E ........................................ ad. No. 137, 2005 S. 6 ........................................... ad. No. 184, 1992 S. 7 ........................................... ad. No. 175, 1980 rs. No. 168, 1986 am. No. 118, 1997 S. 7A ........................................ ad. No. 126, 2001 S. 8 ........................................... ad. No. 51, 1982 am. No. 104, 1987 S. 9 ........................................... ad. No. 104, 1987 S. 10 ......................................... ad. No. 59, 1989 am. No. 184, 1992 S. 11 ......................................... ad. No. 59, 1989 am. No. 184, 1992 (as am. by No. 60, 1994); No. 60, 1994

Notes to the Migration Act 1958 Table of Amendments



Provision affected How affected S. 12 ......................................... ad. No. 59, 1989 Part 2 Heading to Part 2 ..................... rs. No. 112, 1983; No. 184, 1992 Division 1 Heading to Div. 1 of Part 2 ....... am. No. 151, 1988 rs. No. 184, 1992 Div. 1 of Part 2 ......................... ad. No. 59, 1989 S. 13 ......................................... am. No. 117, 1979; No. 175, 1980; No. 112, 1983; No. 133,

1987; Nos. 49 and 151, 1988 rs. No. 59, 1989 (as am. by No. 159, 1989) am. No. 84, 1992 rs. No. 184, 1992 am. No. 59, 1993; No. 60, 1994 S. 14 ......................................... am. No. 10, 1966; No. 117, 1979; No. 112, 1983; No. 133, 1987 rs. No. 59, 1989 am. No. 84, 1992 rs. No. 184, 1992 am. No. 59, 1993 S. 15 ......................................... am. No. 87, 1964; No. 10, 1966; No. 117, 1979; No. 61, 1981;

No. 112, 1983; No. 22, 1984 rs. No. 59, 1989; No. 184, 1992 am. No. 60, 1994 S. 16 ......................................... am. No. 117, 1979; No. 112, 1983 rs. No. 59, 1989 am. No. 86, 1991 rs. No. 184, 1992 S. 17 ......................................... rs. No. 117, 1979 am. No. 141, 1987; No. 151, 1988 rs. No. 59, 1989 am. No. 184, 1992 Division 2 Heading to Div. 2 of Part 2 ....... am. No. 184, 1992 Div. 2 of Part 2 ......................... ad. No. 196, 1991 S. 18 ......................................... ad. No. 196, 1991 am. No. 184, 1992; No. 137, 2000 (as am. by No. 9, 2006) Ss. 19, 20 ................................. ad. No. 196, 1991 S. 21 ......................................... ad. No. 196, 1991 am. No. 184, 1992; No. 97, 2001 Ss. 22, 23 ................................. ad. No. 196, 1991 rep. No. 137, 2000 S. 24 ......................................... ad. No. 196, 1991 am. No. 137, 2000 Ss. 25–27 ................................. ad. No. 196, 1991


Table of Amendments



Provision affected How affected Division 3 Heading to Div. 3 of Part 2 ....... rs. No. 184, 1992 Subdivision A Heading to Subdiv. A of ...........

Div. 3 of Part 2 rs. No. 184, 1992

S. 28 ......................................... ad. No. 59, 1989 am. Nos. 86 and 196, 1991; No. 175, 1992; No. 14, 1994 rs. No. 184, 1992 S. 29 ......................................... ad. No. 59, 1989 (as am. by No. 159, 1989) am. Nos. 86 and 198, 1991; Nos. 175 and 176, 1992; No. 14,

1994 rs. No. 184, 1992 am. No. 60, 1994 Note to s. 29(1) ........................ ad. No. 73, 2007 S. 30 ......................................... ad. No. 59, 1989 rs. No. 184, 1992 S. 31 ......................................... ad. No. 59, 1989 rs. No. 184, 1992 am. No. 60, 1994; No. 34, 1999; No. 73, 2007 S. 32 ......................................... ad. No. 184, 1992 am. No. 60, 1994; No. 134, 2001; No. 62, 2007 S. 33 ......................................... ad. No. 60, 1994 am. No. 62, 2007 Ss. 34, 35 ................................. ad. No. 60, 1994 S. 36 ......................................... ad. No. 184, 1992 am. No. 60, 1994; No. 160, 1999; Nos. 131 and 134, 2001 Note to s. 36(1) ........................ ad. No. 131, 2001 S. 37 ......................................... ad. No. 184, 1992 am. No. 60, 1994 S. 37A ...................................... ad. No. 34, 1999 S. 38 ......................................... ad. No. 184, 1992 S. 38A ...................................... ad. No. 160, 1999 S. 38B ...................................... ad. No. 73, 2007 S. 39 ......................................... ad. No. 184, 1992 am. No. 60, 1994; No. 141, 2005 S. 40 ......................................... ad. No. 184, 1992 am. No. 60, 1994; No. 2, 2004 S. 41 ......................................... ad. No. 184, 1992 am. No. 60, 1994; No. 113, 1998; No. 168, 2000 S. 42 ......................................... ad. No. 184, 1992 am. No. 60, 1994; No. 160, 1999; No. 157, 2001; No. 10, 2002 Note to s. 42(1) ........................ ad. No. 73, 2007 S. 43 ......................................... ad. No. 184, 1992 am. No. 60, 1994; No. 160, 1999; No. 103, 2005; No. 165,

2006; No. 73, 2007; No. 36, 2008




Provision affected How affected Subdivision AA Heading to Subdiv. AA of .........

Div. 3 of Part 2 ad. No. 184, 1992

S. 44 ......................................... ad. No. 184, 1992 am. No. 160, 1999 S. 45 ......................................... ad. No. 184, 1992 am. No. 60, 1994; No. 28, 2000 S. 45A ...................................... ad. No. 27, 1997 S. 45B ...................................... ad. No. 27, 1997 am. No. 5, 2003 Note to s. 45B(1) ...................... am. No. 5, 2003 S. 45C ...................................... ad. No. 27, 1997 S. 46 ......................................... ad. No. 184, 1992 am. No. 60, 1994; No. 102, 1995; No. 27, 1997; Nos. 113 and

114, 1998; Nos. 34 and 160, 1999; Nos. 28 and 168, 2000; No. 2, 2004

S. 46A ...................................... ad. No. 127, 2001 S. 46B ...................................... ad. No. 10, 2002 S. 47 ......................................... ad. No. 184, 1992 am. No. 60, 1994 S. 48 ......................................... ad. No. 184, 1992 rs. No. 60, 1994 am. No. 114, 1998; No. 160, 1999; No. 168, 2000; No. 33, 2001 S. 48A ...................................... ad. No. 102, 1995 am. No. 160, 1999; No. 131, 2001 S. 48B ...................................... ad. No. 102, 1995 Ss. 49, 50 ................................. ad. No. 184, 1992 am. No. 60, 1994; No. 102, 1995 S. 51 ......................................... ad. No. 184, 1992 Subdivision AB Heading to Subdiv. AB .............

of Div. 3 of Part 2 ad. No. 184, 1992

S. 51A ...................................... ad. No. 60, 2002 Heading to s. 52 ....................... rs. No. 58, 2001 S. 52 ......................................... ad. No. 184, 1992 am. No. 60, 1994; No. 58, 2001 Note 2 to s. 52(3C) ................... rs. No. 85, 2008 S. 53 ......................................... ad. No. 184, 1992 am. No. 60, 1994; No. 43, 1996 rep. No. 58, 2001 S. 54 ......................................... ad. No. 184, 1992 rs. No. 60, 1994 Ss. 55, 56 ................................. ad. No. 184, 1992 am. No. 60, 1994 S. 57 ......................................... ad. No. 184, 1992 rs. No. 60, 1994


Table of Amendments



Provision affected How affected S. 58 ......................................... ad. No. 184, 1992 am. No. 60, 1994 S. 59 ......................................... ad. No. 184, 1992 Ss. 60–62 ................................. ad. No. 184, 1992 am. No. 60, 1994 S. 63 ......................................... ad. No. 184, 1992 am. No. 60, 1994; No. 27, 1997 Heading to s. 64 ....................... rs. No. 27, 1997 S. 64 ......................................... ad. No. 60, 1994 am. No. 100, 1995; No. 27, 1997 Subdivision AC Heading to Subdiv. AC .............

of Div. 3 of Part 2 ad. No. 184, 1992 rs. No. 60, 1994

S. 65 ......................................... ad. No. 184, 1992 am. No. 60, 1994; No. 100, 1995; No. 27, 1997; No. 34, 1999 Note to s. 65(1) ........................ ad. No. 79, 2005 S. 65A ...................................... ad. No. 141, 2005 S. 66 ......................................... ad. No. 184, 1992 am. No. 60, 1994; No. 114, 1998 Note to s. 66 ............................. ad. No. 114, 1998 S. 67 ......................................... ad. No. 184, 1992 S. 68 ......................................... ad. No. 184, 1992 am. No. 60, 1994 S. 69 ......................................... ad. No. 184, 1992 am. No. 58, 2001 Subdivision AE Heading to Subdiv. AE of .........

Div. 3 of Part 2 ad. No. 184, 1992

S. 70 ......................................... ad. No. 184, 1992 S. 71 ......................................... ad. No. 184, 1992 am. No. 60, 1994 Subdivision AF Heading to Subdiv. AF of .........

Div. 3 of Part 2 ad. No. 184, 1992

S. 72 ......................................... ad. No. 184, 1992 rs. No. 60, 1994 am. No. 100, 1995 S. 73 ......................................... ad. No. 184, 1992 am. No. 60, 1994; No. 134, 2001 S. 74 ......................................... ad. No. 184, 1992 rs. No. 60, 1994 S. 75 ......................................... ad. No. 60, 1994 S. 76 ......................................... ad. No. 184, 1992 am. No. 60, 1994




Provision affected How affected Subdivision AG Heading to Subdiv. AG of .........

Div. 3 of Part 2 ad. No. 184, 1992

Ss. 77–79 ................................. ad. No. 184, 1992 am. No. 60, 1994 S. 80 ......................................... ad. No. 184, 1992 rs. No. 60, 1994 S. 81 ......................................... ad. No. 184, 1992 S. 82 ......................................... ad. No. 184, 1992 am. No. 60, 1994; No. 160, 1999; No. 73, 2007 S. 83 ......................................... ad. No. 59, 1989 am. No. 184, 1992 S. 84 ......................................... ad. No. 59, 1989 am. Nos. 175 and 184, 1992; No. 60, 1994 (as am. by No. 43,

1996); No. 100, 1995; No. 27, 1997; No. 58, 2001 Subdivision AH Heading to Subdiv. AH of .........

Div. 3 of Part 2 ad. No. 59, 1993

Subdiv. AH of Div. 3 of ............. Part 2

ad. No. 175, 1992

Ss. 85, 86 ................................. ad. No. 175, 1992 S. 87 ......................................... ad. No. 175, 1992 am. No. 60, 1994; No. 27, 1997 S. 87A ...................................... ad. No. 28, 2000 S. 88 ......................................... ad. No. 175, 1992 S. 89 ......................................... ad. No. 175, 1992 am. No. 60, 1994 Ss. 90, 91 ................................. ad. No. 175, 1992 Subdivision AI Heading to Subdiv. AI of ..........

Div. 3 of Part 2 rs. No. 34, 1999

Subdiv. AI of Div. 3 of ............... Part 2

ad. No. 136, 1994

Ss. 91A–91E ............................ ad. No. 136, 1994 S. 91F ....................................... ad. No. 136, 1994 am. No. 1, 1995 S. 91G ...................................... ad. No. 1, 1995 am. No. 113, 1998 Subdivision AJ Subdiv. AJ of Div. 3 of ..............

Part 2 ad. No. 34, 1999

S. 91H ...................................... ad. No. 34, 1999 Ss. 91J–91L ............................. ad. No. 34, 1999


Table of Amendments



Provision affected How affected Subdivision AK Subdiv. AK of Div. 3 of .............

Part 2 ad. No. 160, 1999

Ss. 91M, 91N ........................... ad. No. 160, 1999 Ss. 91P, 91Q ............................ ad. No. 160, 1999 Subdivision AL Subdiv. AL of Div. 3 of ..............

Part 2 ad. No. 131, 2001

Ss. 91R–91W ........................... ad. No. 131, 2001 Heading to s. 91X ..................... am. No. 157, 2001 S. 91X ...................................... ad. No. 131, 2001 am. No. 157, 2001 S. 91Y ...................................... ad. No. 141, 2005 Subdivision B S. 92 ......................................... ad. No. 59, 1989 am. No. 14, 1994 S. 93 ......................................... ad. No. 59, 1989 (as am. by No. 159, 1989) S. 94 ......................................... ad. No. 59, 1989 am. Nos. 14 and 60, 1994 Subhead. to s. 95(4) ................. rs. No. 28, 2000 S. 95 ......................................... ad. No. 14, 1994 am. No. 28, 2000 S. 95A ...................................... ad. No. 28, 2000 S. 96 ......................................... ad. No. 59, 1989 am. No. 14, 1994 Subdivision C Heading to Subdiv. C of ...........

Div. 3 of Part 2 ad. No. 184, 1992

S. 97 ......................................... ad. No. 59, 1989 am. No. 196, 1991; No. 14, 1994 rs. No. 184, 1992 am. No. 60, 1994; No. 58, 2001 S. 97A ...................................... ad. No. 60, 2002 S. 98 ......................................... ad. No. 59, 1989 am. Nos. 86 and 198, 1991; No. 176, 1992 rs. No. 184, 1992 S. 99 ......................................... ad. No. 59, 1989 (as am. by No. 159, 1989) am. No. 196, 1991 rs. No. 184, 1992 am. No. 62, 2007 S. 100 ....................................... ad. No. 59, 1989 rs. No. 184, 1992 am. No. 62, 2007 S. 101 ....................................... ad. No. 59, 1989 am. No. 86, 1991; No. 24, 1992 rs. No. 184, 1992 am. No. 60, 1994; No. 62, 2007




Provision affected How affected S. 102 ....................................... ad. No. 59, 1989 rs. No. 184, 1992 am. No. 60, 1994 Heading to s. 103 ..................... am. No. 62, 2007 S. 103 ....................................... ad. No. 59, 1989 rs. No. 184, 1992 am. No. 60, 1994; No. 62, 2007 S. 104 ....................................... ad. No. 59, 1989 am. No. 175, 1992 rs. No. 184, 1992 am. No. 60, 1994; No. 113, 1998; No. 58, 2001 S. 105 ....................................... ad. No. 59, 1989 (as am. by No. 159, 1989) am. No. 14, 1994 rs. No. 184, 1992 am. No. 60, 1994; No. 113, 1998; No. 58, 2001; No. 62, 2007 Heading to s. 106 ..................... am. No. 62, 2007 S. 106 ....................................... ad. No. 59, 1989 am. No. 14, 1994 rs. No. 184, 1992 S. 107 ....................................... ad. No. 59, 1989 rs. No. 184, 1992 am. No. 60, 1994; No. 113, 1998 S. 107A .................................... ad. No. 113, 1998 S. 108 ....................................... ad. No. 59, 1989 rs. No. 184, 1992 Ss. 109, 110 ............................. ad. No. 59, 1989 rs. No. 184, 1992 am. No. 60, 1994 S. 111 ....................................... ad. No. 59, 1989 rs. No. 86, 1991; No. 184, 1992 Ss. 112, 113 ............................. ad. No. 59, 1989 rs. No. 184, 1992 S. 114 ....................................... ad. No. 59, 1989 rs. No. 184, 1992 am. No. 113, 1998; No. 157, 2001 S. 115 ....................................... ad. No. 184, 1992 am. No. 59, 1993 Subdivision D Heading to Subdiv. D of ...........

Div. 3 of Part 2 ad. No. 184, 1992

S. 116 ....................................... ad. No. 184, 1992 am. No. 60, 1994; No. 168, 2000 S. 117 ....................................... ad. No. 184, 1992 am. No. 60, 1994 S. 118 ....................................... ad. No. 184, 1992 rs. No. 60, 1994 am. No. 114, 1998; No. 34, 1999; No. 33, 2001


Table of Amendments



Provision affected How affected Subdivision E Heading to Subdiv. E of ...........

Div. 3 of Part 2 ad. No. 184, 1992

S. 118A .................................... ad. No. 60, 2002 S. 119 ....................................... ad. No. 184, 1992 am. No. 60, 1994 S. 120 ....................................... ad. No. 184, 1992 rs. No. 60, 1994 Ss. 121–123 ............................. ad. No. 184, 1992 am. No. 60, 1994 S. 124 ....................................... ad. No. 184, 1992 Ss. 125, 126 ............................. ad. No. 184, 1992 am. No. 60, 1994 S. 127 ....................................... ad. No. 184, 1992 am. No. 113, 1998 Subdivision F Heading to Subdiv. F of ............

Div. 3 of Part 2 ad. No. 184, 1992

S. 127A .................................... ad. No. 60, 2002 S. 128 ....................................... ad. No. 184, 1992 am. No. 113, 1998 S. 129 ....................................... ad. No. 184, 1992 am. No. 60, 1994; No. 113, 1998 S. 130 ....................................... ad. No. 184, 1992 am. No. 60, 1994 Ss. 131, 132 ............................. ad. No. 184, 1992 S. 133 ....................................... ad. No. 184, 1992 am. No. 60, 1994 Subdivision G Heading to Subdiv. G of ...........

Div. 3 of Part 2 ad. No. 84, 1992

S. 134 ....................................... ad. No. 84, 1992 am. No. 184, 1992 (as am. by No. 60, 1994); No. 60, 1994;

No. 110, 1995 S. 135 ....................................... ad. No. 84, 1992 am. No. 184, 1992; No. 110, 1995 S. 136 ....................................... ad. No. 84, 1992 am. No. 110, 1995 S. 137 ....................................... ad. No. 84, 1992 am. No. 184, 1992; No. 137, 2000; No. 97, 2001 Subdivision GA Subdiv. GA of Div. 3 of .............

Part 2 ad. No. 28, 2000

Ss. 137A–137F ........................ ad. No. 28, 2000 S. 137G .................................... ad. No. 28, 2000 am. No. 157, 2001 S. 137H .................................... ad. No. 28, 2000




Provision affected How affected Subdivision GB Subdiv. GB of Div. 3 of .............

Part 2 ad. No. 168, 2000

S. 137J ..................................... ad. No. 168, 2000 am. No. 70, 2007 Note to s. 137J(1) ..................... am. No. 144, 2006; No. 70, 2007 Ss. 137K–137N ........................ ad. No. 168, 2000 S. 137P .................................... ad. No. 168, 2000 Subdivision GC Subdiv. GC of Div. 3 of .............

Part 2 ad. No. 33, 2001

Ss. 137Q–137T ........................ ad. No. 33, 2001 Subdivision H Heading to Subdiv. H of ...........

Div. 3 of Part 2 ad. No. 184, 1992

S. 138 ....................................... ad. No. 184, 1992 am. No. 168, 2000 S. 139 ....................................... ad. No. 184, 1992 S. 140 ....................................... ad. No. 184, 1992 am. No. 60, 1994; No. 168, 2000; No. 129, 2001 Division 3A Div. 3A of Part 2 ....................... ad. No. 99, 2003 Subdivision A S. 140A .................................... ad. No. 99, 2003 Subdivision B Ss. 140B–140W ....................... ad. No. 99, 2003 Subdivision C Ss. 140X–140Z ........................ ad. No. 99, 2003 Ss. 140ZA–140ZH .................... ad. No. 99, 2003 Division 4 Div. 4 of Part 2 ......................... ad. No. 184, 1992 Subdivision A S. 141 ....................................... rs. No. 184, 1992 am. No. 60, 1994 S. 142 ....................................... ad. No. 60, 1994 S. 143 ....................................... rs. No. 184, 1992 am. No. 60, 1994; No. 146, 1999; No. 9, 2000 S. 144 ....................................... ad. No. 60, 1994 Subdivision B S. 145 ....................................... rs. No. 184, 1992 am. No. 19, 1995 (as am. by No. 43, 1996); No. 42, 2002 S. 146 ....................................... rs. No. 184, 1992


Table of Amendments



Provision affected How affected Subdivision C S. 147 ....................................... rs. No. 184, 1992 am. No. 19, 1995 (as am. by No. 43, 1996); No. 42, 2002 Ss. 148–152 ............................. rs. No. 184, 1992 S. 153 ....................................... ad. No. 184, 1992 am. No. 60, 1994; No. 157, 2001 S. 154 ....................................... ad. No. 60, 1994 Subdivision D Ss. 155–158 ............................. ad. No. 184, 1992 S. 159 ....................................... ad. No. 184, 1992 am. No. 60, 1994 S. 160 ....................................... ad. No. 184, 1992 am. No. 113, 1998 S. 161 ....................................... ad. No. 184, 1992 am. No. 60, 1994 Subdivision E Ss. 162–164 ............................. ad. No. 184, 1992 Division 4A Div. 4A of Part 2 ....................... ad. No. 160, 1999 S. 164A .................................... ad. No. 160, 1999 am. No. 103, 2005; No. 165, 2006 Heading to s. 164B ................... am. No. 165, 2006 S. 164B .................................... ad. No. 160, 1999 am. No. 160, 1999; No. 103, 2005; No. 36, 2008 Note 2 to s. 164B(1) ................. rs. No. 103, 2005 Note 3 to s. 164B(1) ................. ad. No. 103, 2005 S. 164BA .................................. ad. No. 165, 2006 Subheads. to s. 164C(1), (2)..... rs. No. 165, 2006 S. 164C .................................... ad. No. 160, 1999 am. No. 165, 2006 S. 164D .................................... ad. No. 160, 1999 Division 5 Div. 5 of Part 2 ......................... ad. No. 184, 1992 S. 165 ....................................... ad. No. 184, 1992 am. No. 62, 2007 S. 166 ....................................... ad. No. 184, 1992 am. No. 60, 1994; No. 2, 2004 rs. No. 62, 2007 Heading to s. 167 ..................... am. No. 62, 2007 S. 167 ....................................... ad. No. 184, 1992 am. No. 2, 2004; No. 62, 2007 S. 168 ....................................... ad. No. 184, 1992 S. 169 ....................................... ad. No. 184, 1992 am. No. 60, 1994




Provision affected How affected Heading to s. 170 ..................... am. No. 62, 2007 Subheads. to s. 170(1), (2) ...... ad. No. 62, 2007 Subhead. to s. 170(2A) ............ ad. No. 62, 2007 S. 170 ....................................... ad. No. 184, 1992 am. No. 2, 2004; No. 62, 2007 S. 171 ....................................... ad. No. 184, 1992 am. No. 62, 2007 Subheads. to s. 172(1)–(4) ...... ad. No. 62, 2007 S. 172 ....................................... ad. No. 184, 1992 am. No. 60, 1994; No. 2, 2004; No. 62, 2007 S. 173 ....................................... ad. No. 184, 1992 am. No. 60, 1994; No. 73, 2007 S. 174 ....................................... ad. No. 184, 1992 am. No. 60, 1994 Heading to s. 175 ..................... am. No. 62, 2007 Subheads. to s. 175(1), (2) ...... ad. No. 62, 2007 Subhead. to s. 175(2A) ............ ad. No. 62, 2007 S. 175 ....................................... ad. No. 184, 1992 am. No. 2, 2004; No. 62, 2007 S. 175A .................................... ad. No. 62, 2007 Division 6 Heading to Div. 6 of Part 2 ....... rs. No. 60, 1994 Div. 6 of Part 2 ......................... ad. No. 24, 1992 S. 176 ....................................... ad. No. 24, 1992 am. No. 184, 1992; No. 60, 1994 S. 177 ....................................... ad. No. 24, 1992 am. Nos. 184 and 235, 1992; No. 59, 1993; No. 60, 1994 S. 178 ....................................... ad. No. 24, 1992 am. Nos. 184 and 235, 1992; No. 59, 1993; No. 60, 1994;

No. 113, 1998 Ss. 179, 180 ............................. ad. No. 24, 1992 am. No. 184, 1992; No. 60, 1994 S. 181 ....................................... ad. No. 24, 1992 am. No. 60, 1994 S. 182 ....................................... ad. No. 24, 1992 am. Nos. 184 and 235, 1992 S. 183 ....................................... ad. No. 24, 1992 am. No. 184, 1992 S. 184 ....................................... ad. No. 235, 1992 am. No. 184, 1992 rep. No. 102, 1995 S. 185 ....................................... ad. No. 24, 1992 am. No. 235, 1992; No. 102, 1995 Ss. 186, 187 ............................. ad. No. 24, 1992


Table of Amendments



Provision affected How affected Division 7 Div. 7 of Part 2 ......................... ad. No. 184, 1992 Subdivision A Heading to Subdiv. A of ...........

Div. 7 of Part 2 ad. No. 79, 2005

Subhead. to s. 188(1) ............... ad. No. 62, 2007 Subhead. to s. 188(4) ............... ad. No. 62, 2007 Subhead. to s. 188(4A) ............ ad. No. 62, 2007 S. 188 ....................................... ad. No. 184, 1992 am. No. 2, 2004; No. 62, 2007 S. 189 ....................................... ad. No. 184, 1992 am. No. 60, 1994; No. 128, 2001 Note to s. 189 ........................... ad. No. 79, 2005 Heading to s. 190 ..................... am. No. 2, 2004 Ss. 190, 191 ............................. ad. No. 184, 1992 am. No. 60, 1994; No. 2, 2004; No. 62, 2007 S. 192 ....................................... ad. No. 184, 1992 am. No. 60, 1994; No. 140, 1995; No. 114, 1998; No. 2, 2004;

No. 46, 2006 S. 192A .................................... ad. No. 2, 2004 Heading to s. 193 ..................... rs. No. 89, 1999 S. 193 ....................................... ad. No. 184, 1992 rs. No. 60, 1994 am. No. 114, 1998; Nos. 89 and 160, 1999; No. 128, 2001;

No. 141, 2005; No. 25, 2006 (as am. by No. 141, 2005); No. 85, 2008

S. 194 ....................................... ad. No. 184, 1992 rs. No. 168, 2000 S. 195 ....................................... ad. No. 184, 1992 am. No. 60, 1994 S. 195A .................................... ad. No. 79, 2005 Heading to s. 196 ..................... am. No. 90, 2003 S. 196 ....................................... ad. No. 184, 1992 am. No. 60, 1994; No. 90, 2003 S. 197 ....................................... ad. No. 184, 1992 Subdivision B Subdiv. B of Div. 7 of Part 2 ..... ad. No. 79, 2005 Ss. 197AA–197AG ................... ad. No. 79, 2005 Division 7A Div. 7A of Part 2 ....................... ad. No. 85, 2001 Ss. 197A, 197B ........................ ad. No. 85, 2001 S. 197C .................................... ad. No. 85, 2001 rep. No. 85, 2001




Provision affected How affected Division 8 Div. 8 of Part 2 ......................... ad. No. 184, 1992 S. 198 ....................................... ad. No. 184, 1992 am. Nos. 60 and 136, 1994; No. 1, 1995; No. 114, 1998; Nos.

34, 89 and 160, 1999; No. 168, 2000; No. 10, 2002 S. 198A .................................... ad. No. 128, 2001 Ss. 198B–198D ........................ ad. No. 10, 2002 S. 199 ....................................... ad. No. 184, 1992 Division 9 S. 200 ....................................... ad. No. 184, 1992 S. 201 ....................................... rs. No. 112, 1983 am. No. 184, 1992; No. 60, 1994 S. 202 ....................................... rep. No. 112, 1983 ad. No. 102, 1986 am. No. 184, 1992; No. 60, 1994; No. 175, 1995; No. 161,

1999; No. 144, 2005 S. 203 ....................................... am. No. 112, 1983; No. 102, 1986; No. 59, 1989; No. 86, 1991;

No. 184, 1992; No. 97, 2001; No. 65, 2002; No. 144, 2005 S. 204 ....................................... ad. No. 112, 1983 am. No. 102, 1986; No. 59, 1989; No. 184, 1992; No. 60, 1994 S. 205 ....................................... am. No. 117, 1979 rs. No. 59, 1989 (as am. by No. 159, 1989) am. No. 184, 1992 S. 206 ....................................... am. No. 112, 1983; No. 59, 1989 (as am. by No. 159, 1989);

No. 86, 1991; No. 184, 1992 Division 10 Heading to Div. 10 of Part 2 ..... ad. No. 184, 1992 Ss. 207, 208 ............................. rs. No. 184, 1992 S. 209 ....................................... rs. No. 184, 1992 am. No. 60, 1994 S. 210 ....................................... ad. No. 184, 1992 am. No. 60, 1994 Ss. 211–216 ............................. ad. No. 184, 1992 S. 217 ....................................... ad. No. 60, 1994 am. No. 97, 2001 S. 218 ....................................... ad. No. 184, 1992 am. No. 60, 1994; No. 97, 2001 S. 219 ....................................... ad. No. 184, 1992 am. No. 97, 2001 Note to s. 219 ........................... ad. No. 97, 2001 Ss. 220, 221 ............................. ad. No. 184, 1992 S. 222 ....................................... ad. No. 59, 1989 am. No. 24, 1992; No. 184, 1992 (as am. by No. 43, 1996);

No. 100, 1995; No. 97, 2001 S. 223 ....................................... ad. No. 59, 1989 am. Nos. 24 and 184, 1992; No. 97, 2001


Table of Amendments



Provision affected How affected S. 224 ....................................... ad. No. 59, 1989 am. No. 86, 1991; Nos. 24 and 184, 1992 Division 11 S. 225 ....................................... am. No. 10, 1966; No. 117, 1979; No. 112, 1983; No. 59, 1989;

No. 24, 1992 rs. No. 220, 1992 am. No. 97, 2001 S. 226 ....................................... ad. No. 51, 1982 am. No. 104, 1987; No. 59, 1989; No. 24, 1992 rs. No. 220, 1992 am. No. 97, 2001 S. 227 ....................................... ad. No. 104, 1987 am. No. 59, 1989; No. 24, 1992 rs. No. 220, 1992 am. No. 97, 2001 S. 228 ....................................... rs. No. 10, 1966 am. No. 117, 1979; No. 59, 1989; Nos. 24 and 220, 1992;

No. 97, 2001 Division 12 Heading to Div. 12 of Part 2 ..... rs. No. 117, 1979 Subdivision A Heading to Subdiv. A of ...........

Div. 12 of Part 2 ad. No. 196, 1991

S. 228A .................................... ad. No. 160, 1999 S. 229 ....................................... ad. No. 59, 1989 am. No. 86, 1991; No. 184, 1992; No. 60, 1994; No. 160, 1999;

No. 97, 2001; No. 73, 2007; No. 85, 2008 S. 230 ....................................... am. No. 10, 1966; No. 117, 1979; No. 112, 1983; Nos. 22 and

123, 1984; No. 59, 1989; Nos. 24 and 184, 1992 rs. No. 184, 1992 am. No. 160, 1999; No. 97, 2001 Note to s. 230(2) ...................... ad. No. 97, 2001 Note to s. 230(2A) .................... ad. No. 97, 2001 S. 231 ....................................... ad. No. 184, 1992 S. 232 ....................................... am. No. 10, 1966; No. 112, 1983; No. 59, 1989; Nos. 24 and

184, 1992; No. 60, 1994; No. 160, 1999; No. 97, 2001; No. 85, 2008

S. 232A .................................... ad. No. 89, 1999 am. No. 160, 1999; No. 85, 2008 Note to s. 232A ........................ ad. No. 126, 2001 S. 233 ....................................... am. No. 10, 1966; No. 117, 1979; No. 112, 1983; No. 123,

1984; No. 59, 1989; Nos. 24 and 184, 1992; No. 89, 1999; No. 97, 2001; No. 85, 2008

S. 233A .................................... ad. No. 89, 1999 Note to s. 233A ........................ ad. No. 126, 2001 S. 233B .................................... ad. No. 126, 2001 S. 233C .................................... ad. No. 126, 2001 am. No. 41, 2003




Provision affected How affected S. 234 ....................................... am. No. 10, 1966; Nos. 117 and 118, 1979; No. 175, 1980;

No. 112, 1983; No. 59, 1989; Nos. 24 and 184, 1992; No. 60, 1994; No. 89, 1999

S. 235 ....................................... ad. No. 117, 1979 am. No. 112, 1983; No. 86, 1987; No. 59, 1989 (as am. by

No. 159, 1989); Nos. 24 and 184, 1992; No. 113, 1998; No. 97, 2001; No. 7, 2007

Note to s. 235(1) ...................... ad. No. 7, 2007 Note to s. 235(3) ...................... ad. No. 7, 2007 Note to s. 235(4A) .................... ad. No. 97, 2001 S. 236 ....................................... ad. No. 213, 1992 am. No. 89, 1999 rs. No. 97, 2001 Subdivision B Subdiv. B of Div. 12 of ..............

Part 2 ad. No. 196, 1991 (as am. by No. 175, 1992)

Ss. 237, 238 ............................. ad. No. 196, 1991 am. No. 184, 1992 S. 239 ....................................... ad. No. 196, 1991 S. 240 ....................................... ad. No. 196, 1991 am. No. 184, 1992; No. 97, 2001 Note to s. 240(3) ...................... ad. No. 97, 2001 Ss. 241, 242 ............................. ad. No. 196, 1991 am. No. 184, 1992; No. 97, 2001 Ss. 243, 244 ............................. ad. No. 196, 1991 am. No. 184, 1992 S. 245 ....................................... ad. No. 196, 1991 am. No. 97, 2001 Subdivision C Subdiv. C of Div. 12 of .............

Part 2 ad. No. 7, 2007

Ss. 245AA–245AK ................... ad. No. 7, 2007 Division 12A Div. 12A of Part 2 ..................... ad. No. 160, 1999 S. 245A .................................... ad. No. 160, 1999 S. 245B .................................... ad. No. 160, 1999 am. Nos. 97 and 126, 2001; No. 25, 2004 Ss. 245C, 245D ........................ ad. No. 160, 1999 S. 245E .................................... ad. No. 160, 1999 am. No. 97, 2001 S. 245F ..................................... ad. No. 160, 1999 am. Nos. 97 and 126, 2001; No. 25, 2004 Ss. 245FA, 245FB .................... ad. No. 126, 2001 S. 245G .................................... ad. No. 160, 1999 S. 245H .................................... ad. No. 160, 1999 am. No. 126, 2001


Table of Amendments



Provision affected How affected Division 12B Div. 12B of Part 2 ..................... ad. No. 64, 2002 S. 245I ...................................... ad. No. 64, 2002 Ss. 245J, 245K ......................... ad. No. 64, 2002 am. No. 141, 2005 Ss. 245L–245N ........................ ad. No. 64, 2002 Division 13 S. 247 ....................................... am. No. 10, 1966; No. 117, 1979; No. 112, 1983; No. 59, 1989;

No. 24, 1992; No. 60, 1994; No. 97, 2001 Note to s. 247(5) ...................... ad. No. 97, 2001 S. 248 ....................................... am. No. 112, 1983; No. 59, 1989 S. 249 ....................................... am. No. 112, 1983; No. 59, 1989; No. 184, 1992; No. 102,

1995; No. 160, 1999 S. 250 ....................................... am. No. 117, 1979; No. 51, 1982; No. 112, 1983; No. 59, 1989

(as am. by No. 159, 1989); No. 86, 1991; No. 102, 1995 rs. No. 184, 1992 am. No. 60, 1994 S. 251 ....................................... am. No. 10, 1966; No. 117, 1979; No. 51, 1982; No. 112, 1983;

No. 104, 1987; No. 59, 1989; Nos. 24 and 184, 1992; No. 59, 1993; No. 160, 1999; No. 97, 2001

S. 252 ....................................... ad. No. 59, 1989 am. No. 184, 1992; No. 60, 1994; No. 160, 1999; No. 105, 2001 S. 252AA .................................. ad. No. 105, 2001 Ss. 252A–252F ........................ ad. No. 105, 2001 S. 252G .................................... ad. No. 85, 2001 Heading to s. 253 ..................... rs. No. 113, 1998 S. 253 ....................................... am. No. 117, 1979; No. 112, 1983; No. 59, 1989 (as am. by

No. 159, 1989); Nos. 24 and 184, 1992 S. 254 ....................................... ad. No. 59, 1989 am. No. 24, 1992; No. 60, 1994; No. 28, 2000 S. 255 ....................................... am. No. 112, 1983; No. 59, 1989; No. 60, 1994 Heading to s. 256 ..................... rs. No. 89, 1999 S. 256 ....................................... am. No. 59, 1989; No. 184, 1992; No. 89, 1999 S. 257 ....................................... am. No. 10, 1966; No. 117, 1979; No. 112, 1983; No. 59, 1989;

Nos. 24 and 184, 1992; No. 97, 2001 S. 258 ....................................... am. No. 59, 1989; No. 184, 1992 rs. No. 2, 2004 am. No. 141, 2005 Ss. 258A, 258B ........................ ad. No. 2, 2004 S. 258C .................................... ad. No. 2, 2004 am. No. 62, 2007 Ss. 258D–258G ........................ ad. No. 2, 2004 S. 259 ....................................... am. No. 10, 1966; No. 117, 1979; No. 112, 1983; No. 59, 1989;

No. 24, 1992; No. 184, 1992 (as am. by No. 43, 1996); No. 97, 2001




Provision affected How affected S. 260 ....................................... am. No. 112, 1983; No. 59, 1989; No. 60, 1994; No. 85, 1995;

No. 160, 1999 S. 261 ....................................... ad. No. 184, 1992 am. No. 160, 1999 Division 13AA Div. 13AA of Part 2 ................... ad. No. 2, 2004 Subdivision A Ss. 261AA–261AC ................... ad. No. 2, 2004 Subdivision B Ss. 261AD–261AK ................... ad. No. 2, 2004 Subdivision C Ss. 261AKA–261AKH .............. ad. No. 2, 2004 Division 13AB Div. 13AB of Part 2 ................... ad. No. 2, 2004 Ss. 261AL, 261AM ................... ad. No. 2, 2004 Division 13A Div. 13A of Part 2 ..................... ad. No. 160, 1999 Subdivision A S. 261A .................................... ad. No. 160, 1999 Subdivision B S. 261B .................................... ad. No. 160, 1999 Subdivision C Ss. 261C–261I ......................... ad. No. 160, 1999 Subdivision D S. 261J ..................................... ad. No. 160, 1999 Subdivision E S. 261K .................................... ad. No. 160, 1999 Division 14 Div. 14 of Part 2 ....................... ad. No. 84, 1992 S. 262 ....................................... ad. No. 84, 1992 am. No. 184, 1992; No. 160, 1999 Ss. 263–268 ............................. ad. No. 84, 1992 Division 14A Div. 14A of Part 2 ..................... ad. No. 168, 2000 Subdivision A S. 268AA .................................. ad. No. 168, 2000 am. No. 73, 2008 S. 268AB .................................. ad. No. 168, 2000 S. 268AC .................................. ad. No. 168, 2000 rep. No. 97, 2001 S. 268AD .................................. ad. No. 168, 2000 Subdivision B Ss. 268BA–268BG ................... ad. No. 168, 2000


Table of Amendments



Provision affected How affected S. 268BH .................................. ad. No. 168, 2000 am. No. 97, 2001 Note to s. 268BH(1) ................. rep. No. 97, 2001 S. 268BI ................................... ad. No. 168, 2000 Note to s. 268BI ....................... rep. No. 97, 2001 S. 268BJ ................................... ad. No. 168, 2000 am. No. 85, 2008 Note to s. 268BJ(1) .................. rep. No. 97, 2001 Ss. 268BK–268BO ................... ad. No. 168, 2000 S. 268BP .................................. ad. No. 168, 2000 am. No. 58, 2001 S. 268BQ .................................. ad. No. 168, 2000 Subdivision C Ss. 268CA–268CK ................... ad. No. 168, 2000 S. 268CL .................................. ad. No. 168, 2000 am. No. 97, 2001 Note to s. 268CL(1) .................. rep. No. 97, 2001 S. 268CM ................................. ad. No. 168, 2000 am. No. 85, 2008 Note to s. 268CM ..................... rep. No. 97, 2001 S. 268CN .................................. ad. No. 168, 2000 am. No. 85, 2008 Note to s. 268CN(1) ................. rep. No. 97, 2001 Ss. 268CO–268CU .................. ad. No. 168, 2000 S. 268CV .................................. ad. No. 168, 2000 Notes 1, 2 to s. 268CV(2) ......... rep. No. 97, 2001 Ss. 268CW–268CZ .................. ad. No. 168, 2000 S. 268CZA ................................ ad. No. 168, 2000 Notes 1, 2 to s. 268CZA(2) ...... rep. No. 97, 2001 Ss. 268CZB–268CZH .............. ad. No. 168, 2000 Division 15 S. 270 ....................................... ad. No. 10, 1966 S. 271 ....................................... am. No. 87, 1964; No. 10, 1966; No. 175, 1980; No. 168, 1986;

No. 133, 1987; No. 151, 1988; No. 59, 1989 (as am. by No. 159, 1989); Nos. 184 and 220, 1992; No. 60, 1994; No. 113, 1998; No. 160, 1999; No. 58, 2001

Note to s. 271(4) ...................... ad. No. 160, 1999 S. 272 ....................................... am. No. 112, 1983 S. 273 ....................................... ad. No. 59, 1989 am. No. 184, 1992 S. 274 ....................................... ad. No. 59, 1989 am. No. 184, 1992; No. 60, 1994




Provision affected How affected Part 3 Part 3 ........................................ ad. No. 85, 1992 Division 1 S. 275 ....................................... ad. No. 85, 1992 am. No. 184, 1992; No. 60, 1994; No. 205, 1997; No. 113,

1998; No. 146, 1999; No. 168, 2000; No. 48, 2004 S. 276 ....................................... ad. No. 85, 1992 am. No. 60, 1994; No. 205, 1997; No. 35, 2002; No. 48, 2004;

No. 79, 2005 S. 277 ....................................... ad. No. 85, 1992 am. No. 60, 1994; No. 205, 1997; No. 48, 2004; No. 79, 2005 S. 278 ....................................... ad. No. 85, 1992 am. No. 48, 2004 S. 279 ....................................... ad. No. 85, 1992 am. No. 205, 1997 S. 279A .................................... ad. No. 205, 1997 rep. No. 97, 2001 Division 2 S. 280 ....................................... ad. No. 85, 1992 am. Nos. 150 and 205, 1997; No. 97, 2001; No. 48, 2004 Note to s. 280(1) ...................... ad. No. 205, 1997 rep. No. 97, 2001 ad. No. 48, 2004 Notes to s. 280(2)–(4) .............. ad. No. 48, 2004 Note to s. 280(6) ...................... ad. No. 48, 2004 S. 281 ....................................... ad. No. 85, 1992 am. No. 48, 2004 Notes to s. 281(1), (2) .............. ad. No. 205, 1997 rep. No. 97, 2001 Note to s. 281(3) ...................... ad. No. 48, 2004 S. 282 ....................................... ad. No. 85, 1992 am. No. 60, 1994; No. 205, 1997; No. 35, 2002; No. 48, 2004;

No. 79, 2005 Notes to s. 282(1), (2) .............. ad. No. 205, 1997 rep. No. 97, 2001 Heading to s. 283 ..................... am. No. 48, 2004 S. 283 ....................................... ad. No. 85, 1992 am. No. 205, 1997; No. 48, 2004 Note to s. 283 ........................... ad. No. 205, 1997 rep. No. 97, 2001 S. 284 ....................................... ad. No. 85, 1992 am. No. 48, 2004 Note to s. 284(1) ...................... ad. No. 205, 1997 rep. No. 97, 2001 Notes to s. 284(2)–(4) .............. ad. No. 48, 2004


Table of Amendments



Provision affected How affected S. 285 ....................................... ad. No. 85, 1992 am. No. 205, 1997; No. 48, 2004 Note to s. 285(1) ...................... ad. No. 205, 1997 rep. No. 97, 2001 Notes to s. 285(2)–(4) .............. ad. No. 48, 2004 Division 3 S. 286 ....................................... ad. No. 85, 1992 S. 287 ....................................... ad. No. 85, 1992 am. No. 205, 1997; No. 48, 2004 S. 288 ....................................... ad. No. 85, 1992 am. No. 205, 1997 rs. No. 48, 2004 Ss. 288A, 288B ........................ ad. No. 48, 2004 S. 289 ....................................... ad. No. 85, 1992 am. No. 110, 1995 rs. No. 205, 1997 am. No. 205, 1997; No. 35, 2002; No. 48, 2004 Note to s. 289(1) ...................... am. No. 48, 2004 S. 289A .................................... ad. No. 48, 2004 S. 290 ....................................... ad. No. 85, 1992 rs. No. 205, 1997 am. No. 48, 2004 S. 290A .................................... ad. No. 205, 1997 am. No. 48, 2004 S. 290B .................................... ad. No. 48, 2004 S. 291 ....................................... ad. No. 85, 1992 rs. No. 205, 1997 am. No. 48, 2004 S. 291A .................................... ad. No. 48, 2004 S. 292 ....................................... ad. No. 85, 1992 rs. No. 205, 1997; No. 48, 2004 S. 292A .................................... ad. No. 35, 2002 am. No. 48, 2004 S. 292B .................................... ad. No. 48, 2004 S. 293 ....................................... ad. No. 85, 1992 rs. No. 205, 1997 S. 294 ....................................... ad. No. 85, 1992 rs. No. 205, 1997 am. No. 48, 2004 S. 295 ....................................... ad. No. 85, 1992 rs. No. 205, 1997 Ss. 296–298 ............................. ad. No. 85, 1992 rep. No. 205, 1997 S. 299 ....................................... ad. No. 85, 1992 am. No. 205, 1997; No. 35, 2002; No. 48, 2004




Provision affected How affected S. 300 ....................................... ad. No. 85, 1992 am. No. 205, 1997 rep. No. 205, 1997 ad. No. 35, 2002 rs. No. 48, 2004 S. 301 ....................................... ad. No. 85, 1992 am. No. 110, 1995; No. 205, 1997 rs. No. 205, 1997 am. No. 48, 2004 S. 302 ....................................... ad. No. 85, 1992 am. No. 205, 1997; No. 48, 2004 Heading to s. 303 ..................... rs. No. 48, 2004 S. 303 ....................................... ad. No. 85, 1992 am. No. 205, 1997; No. 48, 2004 Note to s. 303 ........................... ad. No. 205, 1997 rep. No. 48, 2004 Notes 1, 2 to s. 303 .................. ad. No. 48, 2004 S. 304 ....................................... ad. No. 85, 1992 am. No. 205, 1997; No. 48, 2004 S. 304A .................................... ad. No. 48, 2004 S. 305 ....................................... ad. No. 85, 1992 rs. No. 205, 1997 am. No. 175, 1999 rs. No. 48, 2004 S. 305A .................................... ad. No. 175, 1999 rs. No. 48, 2004 Ss. 305B, 305C ........................ ad. No. 48, 2004 S. 306 ....................................... ad. No. 85, 1992 am. No. 205, 1997 S. 306AA .................................. ad. No. 48, 2004 Division 3AA Div. 3AA of Part 3 ..................... ad. No. 48, 2004 Subdivision A S. 306AB .................................. ad. No. 48, 2004 Subdivision B S. 306AC .................................. ad. No. 48, 2004 S. 306AD .................................. ad. No. 48, 2004 am. No. 141, 2005 Ss. 306AE–306AG ................... ad. No. 48, 2004 Ss. 306AGAA–306AGAC ......... ad. No. 48, 2004 S. 306AGA ............................... ad. No. 48, 2004 Subdivision D Ss. 306AJ, 306AK .................... ad. No. 48, 2004


Table of Amendments



Provision affected How affected Subdivision E Ss. 306AL, 306AM ................... ad. No. 48, 2004 Division 3A Heading to Div. 3A of Part 3 ..... rs. No. 48, 2004 Div. 3A of Part 3 ....................... ad. No. 175, 1999 S. 306A .................................... ad. No. 175, 1999 am. No. 48, 2004 Heading to s. 306B ................... am. No. 48, 2004 S. 306B .................................... ad. No. 175, 1999 am. No. 48, 2004 S. 306C .................................... ad. No. 175, 1999 rs. No. 48, 2004 Heading to s. 306D .................. rs. No. 48, 2004 S. 306D .................................... ad. No. 175, 1999 am. No. 48, 2004 Note to s. 306D ........................ ad. No. 48, 2004 Heading to s. 306E ................... rs. No. 48, 2004 S. 306E .................................... ad. No. 175, 1999 am. No. 48, 2004 Note to s. 306E(2) .................... ad. No. 48, 2004 Note to s. 306E ........................ ad. No. 48, 2004 Heading to s. 306F ................... rs. No. 48, 2004 S. 306F ..................................... ad. No. 175, 1999 am. No. 48, 2004 Note to s. 306F(2) .................... ad. No. 48, 2004 Note to s. 306F ......................... ad. No. 48, 2004 S. 306G .................................... ad. No. 175, 1999 S. 306H .................................... ad. No. 175, 1999 am. No. 97, 2001; No. 48, 2004 Note to s. 306H ........................ rep. No. 97, 2001 S. 306J ..................................... ad. No. 175, 1999 rs. No. 48, 2004 Heading to s. 306K ................... am. No. 48, 2004 S. 306K .................................... ad. No. 175, 1999 am. No. 48, 2004 S. 306L ..................................... ad. No. 175, 1999 Division 4 Heading to Div. 4 of Part 3 ....... rs. No. 205, 1997 S. 307 ....................................... ad. No. 85, 1992 rep. No. 205, 1997 Heading to s. 308 ..................... am. No. 48, 2004 S. 308 ....................................... ad. No. 85, 1992 rs. No. 205, 1997 am. No. 137, 2000; No. 48, 2004




Provision affected How affected S. 309 ....................................... ad. No. 85, 1992 am. No. 205, 1997; No. 48, 2004 Heading to s. 310 ..................... am. No. 205, 1997 S. 310 ....................................... ad. No. 85, 1992 am. No. 205, 1997 Heading to s. 311 ..................... am. No. 205, 1997 S. 311 ....................................... ad. No. 85, 1992 am. No. 205, 1997 Division 4A Heading to Div. 4A of Part 3 ..... rs. No. 48, 2004 Div. 4A of Part 3 ....................... ad. No. 35, 2002 Subdivision A Heading to Subdiv. A of ...........

Div. 4A of Part 3 ad. No. 48, 2004

Heading to s. 311A ................... am. No. 48, 2004 S. 311A .................................... ad. No. 35, 2002 am. No. 48, 2004 Note to s. 311A(1) .................... am. No. 48, 2004 Ss. 311B, 311C ........................ ad. No. 35, 2002 rs. No. 48, 2004 Heading to s. 311D .................. am. No. 48, 2004 S. 311D .................................... ad. No. 35, 2002 am. No. 48, 2004 Note to s. 311D(1) .................... ad. No. 48, 2004 S. 311E .................................... ad. No. 35, 2002 S. 311EA .................................. ad. No. 48, 2004 S. 311F ..................................... ad. No. 35, 2002 Subdivision B Subdiv. B of Div. 4A of .............

Part 3 ad. No. 48, 2004

Ss. 311G, 311H ........................ ad. No. 48, 2004 Ss. 311J–311M ........................ ad. No. 48, 2004 S. 311P .................................... ad. No. 48, 2004 Division 5 Heading to Div. 5 of Part 3 ....... rs. No. 48, 2004 S. 312 ....................................... ad. No. 85, 1992 am. No. 205, 1997; No. 97, 2001; No. 48, 2004; No. 8, 2007 Note to s. 312(1) ...................... ad. No. 205, 1997 rep. No. 97, 2001 Ss. 312A, 312B ........................ ad. No. 48, 2004 S. 313 ....................................... ad. No. 85, 1992 am. No. 60, 1994; No. 205, 1997; No. 48, 2004 S. 314 ....................................... ad. No. 85, 1992 am. No. 48, 2004


Table of Amendments



Provision affected How affected Division 6 Heading to Div. 6 of Part 3 ....... rs. No. 205, 1997 S. 315 ....................................... ad. No. 85, 1992 rs. No. 205, 1997 Heading to s. 316 ..................... am. No. 205, 1997 S. 316 ....................................... ad. No. 85, 1992 am. No. 205, 1997; No. 175, 1999; No. 35, 2002; No. 48, 2004 S. 317 ....................................... ad. No. 85, 1992 rs. No. 205, 1997 S. 318 ....................................... ad. No. 85, 1992 rs. No. 205, 1997 am. No. 35, 2002; No. 48, 2004 Subhead. to s. 319(2) ............... ad. No. 35, 2002 am. No. 48, 2004 Subhead. to s. 319(3) ............... am. No. 48, 2004 S. 319 ....................................... ad. No. 85, 1992 rs. No. 205, 1997 am. No. 35, 2002; No. 48, 2004 Notes to s. 319(2), (3) .............. am. No. 48, 2004 S. 319A .................................... ad. No. 48, 2004 Heading to s. 320 ..................... am. No. 48, 2004 S. 320 ....................................... ad. No. 85, 1992 rs. No. 205, 1997 am. No. 205, 1997 (as am. by No. 146, 1999) S. 321 ....................................... ad. No. 85, 1992 rs. No. 205, 1997 S. 321A .................................... ad. No. 48, 2004 S. 322 ....................................... ad. No. 85, 1992 rs. No. 205, 1997 Ss. 323–332 ............................. ad. No. 85, 1992 rep. No. 205, 1997 Division 6A Heading to Div. 6A of Part 3 ..... rs. No. 205, 1997; No. 48, 2004 Div. 6A of Part 3 ....................... ad. No. 205, 1997 S. 332A .................................... ad. No. 205, 1997 am. No. 205, 1997 rs. No. 48, 2004 am. No. 141, 2005 S. 332B .................................... ad. No. 205, 1997 am. No. 205, 1997; No. 48, 2004




Provision affected How affected Division 7 Heading to Div. 7 of Part 3 ....... am. No. 100, 1995 rs. No. 25, 1996; Nos. 92 and 205, 1997; No. 175, 1999 rep. No. 3, 2003 ad. No. 48, 2004 Div. 7 of Part 3 ......................... rep. No. 3, 2003 ad. No. 48, 2004 Ss. 332C–332H ........................ ad. No. 48, 2004 Heading to s. 333 ..................... am. No. 100, 1995; No. 25, 1996; Nos. 92 and 205, 1997;

No. 175, 1999 rep. No. 3, 2003 S. 333 ....................................... am. No. 100, 1995; No. 25, 1996; Nos. 92 and 205, 1997;

No. 175, 1999 rep. No. 3, 2003 Part 4 Part 4 ........................................ ad. No. 85, 1992 S. 334 ....................................... ad. No. 85, 1992 rs. No. 97, 2001 Ss. 335, 336 ............................. ad. No. 85, 1992 Part 4A Part 4A ..................................... ad. No. 2, 2004 Division 1 S. 336A .................................... ad. No. 2, 2004 am. No. 63, 2007 S. 336B .................................... ad. No. 2, 2004 Division 2 Ss. 336C, 336D ........................ ad. No. 2, 2004 am. No. 63, 2007 Division 3 S. 336E .................................... ad. No. 2, 2004 am. No. 141, 2005; No. 63, 2007 S. 336F ..................................... ad. No. 2, 2004 Ss. 336FA–336FD .................... ad. No. 141, 2005 Division 4 Ss. 336G, 336H ........................ ad. No. 2, 2004 S. 336J ..................................... ad. No. 2, 2004 Division 5 Ss. 336K, 336L ......................... ad. No. 2, 2004 Part 5 Part 5 ........................................ ad. No. 59, 1989 Division 1 Div. 1 of Part 5 ......................... ad. No. 184, 1992 S. 337 ....................................... rs. No. 184, 1992 am. No. 60, 1994; No. 110, 1995; No. 113, 1998; No. 34, 1999;

No. 85, 2008


Table of Amendments



Provision affected How affected Division 2 Div. 2 of Part 5 ......................... ad. No. 184, 1992 rs. No. 113, 1998 S. 338 ....................................... ad. No. 184, 1992 am. No. 60, 1994 rs. No. 113, 1998 am. No. 34, 1999; Nos. 28 and 168, 2000; No. 99, 2003 S. 339 ....................................... ad. No. 184, 1992 am. No. 60, 1994 rs. No. 113 and 114, 1998 Ss. 340, 341 ............................. ad. No. 184, 1992 rep. No. 113, 1998 S. 342 ....................................... ad. No. 60, 1994 rep. No. 113, 1998 Ss. 343, 344 ............................. ad. No. 184, 1992 am. No. 60, 1994 rep. No. 113, 1998 S. 345 ....................................... ad. No. 184, 1992 rep. No. 113, 1998 Division 3 Heading to Div. 3 of Part 5 ....... rs. No. 113, 1998 Div. 3 of Part 5 ......................... ad. No. 184, 1992 S. 346 ....................................... rs. No. 184, 1992 am. No. 60, 1994 rep. No. 113, 1998 Heading to s. 347 ..................... am No. 113, 1998 S. 347 ....................................... rs. No. 184, 1992 am. No. 60, 1994; No. 113, 1998; Nos. 28 and 168, 2000 Heading to s. 348 ..................... am. No. 113, 1998 S. 348 ....................................... rs. No. 184, 1992 am. No. 113, 1998 Heading to s. 349 ..................... am. No. 113, 1998 S. 349 ....................................... rs. No. 184, 1992 am. No. 113, 1998 S. 350 ....................................... rs. No. 184, 1992 am. No. 60, 1994 S. 351 ....................................... rs. No. 184, 1992 Heading to s. 352 ..................... am. No. 113, 1998 S. 352 ....................................... ad. No. 59, 1989 rs. No. 184, 1992 am. No. 60, 1994; No. 113, 1998 Division 4 S. 353 ....................................... ad. No. 59, 1989 S. 353A .................................... ad. No. 110, 1995 am. No. 113, 1998 S. 354 ....................................... ad. No. 59, 1989 am. No. 85, 2008




Provision affected How affected Heading to s. 355 ..................... am. No. 113, 1998 S. 355 ....................................... ad. No. 59, 1989 S. 355A .................................... ad. No. 113, 1998 S. 356 ....................................... ad. No. 59, 1989 S. 357 ....................................... ad. No. 59, 1989 am. No. 85, 2008 Division 5 S. 357A .................................... ad. No. 60, 2002 am. No. 100, 2007 S. 358 ....................................... ad. No. 59, 1989 am. No. 110, 1995 S. 359 ....................................... ad. No. 59, 1989 rs. No. 113, 1998 am. No. 58, 2001 S. 359AA .................................. ad. No. 100, 2007 Heading to. 359A ..................... rs. No. 100, 2007 S. 359A .................................... ad. No. 113, 1998 am. No. 58, 2001; No. 100, 2007 Heading to s. 359B ................... rs. No. 100, 2007 S. 359B .................................... ad. No. 113, 1998 am. No. 100, 2007 Heading to s. 359C .................. am. No. 100, 2007 S. 359C .................................... ad. No. 113, 1998 am. No. 100, 2007 S. 360 ....................................... ad. No. 59, 1989 am. No. 110, 1995 rs. No. 113, 1998 S. 360A .................................... ad. No. 113, 1998 am. No. 58, 2001 Heading to s. 361 ..................... am. No. 110, 1995 S. 361 ....................................... ad. No. 59, 1989 am. No. 60, 1994; No. 110, 1995; No. 113, 1998 S. 362 ....................................... ad. No. 60, 1994 am. No. 113, 1998 S. 362A .................................... ad. No. 110, 1995 rs. No. 113, 1998 S. 362B .................................... ad. No. 113, 1998 S. 363 ....................................... ad. No. 59, 1989 am. No. 110, 1995 S. 363A .................................... ad. No. 110, 1995 S. 364 ....................................... ad. No. 59, 1989 am. No. 146, 1999 S. 365 ....................................... ad. No. 59, 1989 am. No. 60, 1994; No. 113, 1998 S. 366 ....................................... ad. No. 60, 1994 am. No. 113, 1998


Table of Amendments



Provision affected How affected Ss. 366A–366D ........................ ad. No. 110, 1995 S. 367 ....................................... ad. No. 60, 1994 am. No. 113, 1998 Division 6 Heading to s. 368 ..................... am. No. 113, 1998 S. 368 ....................................... ad. No. 59, 1989 am. No. 110, 1995; No. 113, 1998; No. 85, 2008 S. 368A .................................... ad. No. 113, 1998 am. No. 58, 2001 rs. No. 85, 2008 S. 368B .................................... ad. No. 113, 1998 am. No. 58, 2001 rep. No. 85, 2008 S. 368C .................................... ad. No. 113, 1998 rep. No. 85, 2008 Heading to s. 368D .................. rs. No. 85, 2008 S. 368D .................................... ad. No. 113, 1998 am. No. 85, 2008 S. 369 ....................................... ad. No. 59, 1989 rs. No. 113, 1998 Division 7 S. 370 ....................................... ad. No. 59, 1989 am. No. 24, 1992; No. 113, 1998; No. 97, 2001 S. 371 ....................................... ad. No. 59, 1989 am. No. 24, 1992; No. 97, 2001 S. 372 ....................................... ad. No. 59, 1989 am. No. 24, 1992 Division 8 S. 373 ....................................... ad. No. 59, 1989 am. No. 184, 1992 Ss. 374, 375 ............................. ad. No. 59, 1989 S. 375A .................................... ad. No. 110, 1995 S. 376 ....................................... ad. No. 59, 1989 am. No. 110, 1995 Ss. 377, 378 ............................. ad. No. 59, 1989 am. No. 24, 1992 S. 379 ....................................... ad. No. 59, 1989 S. 379A .................................... ad. No. 113, 1998 rep. No. 58, 2001 Division 8A Heading to Div. 8A of Part 5 ..... rs. No. 85, 2008 Div. 8A of Part 5 ....................... ad. No. 58, 2001 S. 379AA .................................. ad. No. 58, 2001 am. No. 112, 2008 Note 1 to s. 379AA ................... ad. No. 85, 2008




Provision affected How affected Note to s. 379AA

Renumbered Note 2 .............. No. 85, 2008

S. 379A .................................... ad. No. 58, 2001 am. No. 112, 2008 S. 379B ..................................... ad. No. 58, 2001 S. 379C ..................................... ad, No. 58, 2001 am. No. 112, 2008 Ss. 379D, 379E ......................... ad. No. 58, 2001 S. 379EA .................................. ad. No. 85, 2008 Ss. 379F, 379G ........................ ad. No. 58, 2001 Division 9 Div. 9 of Part 5 ......................... ad. No. 184, 1992 S. 380 ....................................... ad. No. 184, 1992 S. 381 ....................................... ad. No. 184, 1992 am. No. 110, 1995; No. 113, 1998 Ss. 382–384 ............................. ad. No. 184, 1992 am. No. 113, 1998 Heading to s. 385 ..................... am. No. 113, 1998 Ss. 385–387 ............................. ad. No. 184, 1992 am. No. 113, 1998 S. 388 ....................................... ad. No. 184, 1992 am. No. 110, 1995; No. 113, 1998 Ss. 389–393 ............................. ad. No. 184, 1992 am. No. 113, 1998 Part 6 Part 6 ........................................ ad. No. 59, 1989 rs. No. 113, 1998 Division 1 S. 394 ....................................... ad. No. 59, 1989 rs. No. 113, 1998 Ss. 395, 396 ............................. ad. No. 59, 1989 rs. No. 113, 1998 am. No. 85, 2008 S. 397 ....................................... ad. No. 59, 1989 am. No. 184, 1992 rs. No. 113, 1998 Heading to s. 398 ..................... am. No. 110, 1995 rs. No. 113, 1998 S. 398 ....................................... ad. No. 59, 1989 am. No. 110, 1995 rs. No. 113, 1998 S. 399 ....................................... ad. No. 59, 1989 am. No. 86, 1991 rep. No. 110, 1995 ad. No. 113, 1998


Table of Amendments



Provision affected How affected S. 400 ....................................... ad. No. 59, 1989 am. No. 184, 1992 rs. No. 113, 1998 Ss. 401–403 ............................. ad. No. 59, 1989 rs. No. 113, 1998 S. 404 ....................................... ad. No. 59, 1989 am. No. 184, 1992 rs. No. 113, 1998 am. No. 85, 2008 S. 405 ....................................... ad. No. 59, 1989 rs. No. 113, 1998 am. No. 85, 2008 Division 2 S. 406 ....................................... ad. No. 59, 1989 am. No. 184, 1992 rs. No. 113, 1998 Ss. 407, 408 ............................. ad. No. 59, 1989 rs. No. 113, 1998 am. No. 146, 1999 S. 409 ....................................... ad. No. 59, 1989 rep. No. 113, 1998 Part 7 Part 7 ........................................ ad. No. 184, 1992 Division 1 S. 410 ....................................... ad. No. 184, 1992 am. No. 110, 1995 Division 2 S. 411 ....................................... ad. No. 184, 1992 am. No. 59, 1993; No. 60, 1994; No. 114, 1998 S. 412 ....................................... ad. No. 184, 1992 S. 413 ....................................... ad. No. 59, 1993 S. 414 ....................................... ad. No. 184, 1992 S. 414A .................................... ad. No. 141, 2005 Ss. 415, 416 ............................. ad. No. 184, 1992 S. 417 ....................................... ad. No. 184, 1992 am. No. 59, 1993 S. 418 ....................................... ad. No. 184, 1992 S. 419 ....................................... ad. No. 59, 1993 Division 3 S. 420 ....................................... ad. No. 184, 1992 S. 420A .................................... ad. No. 113, 1998 S. 421 ....................................... ad. No. 184, 1992 Heading to s. 422 ..................... am. No. 113, 1998 S. 422 ....................................... ad. No. 184, 1992 S. 422A .................................... ad. No. 113, 1998




Provision affected How affected Division 4 S. 422B .................................... ad. No. 60, 2002 am. No. 100, 2007 S. 423 ....................................... ad. No. 184, 1992 S. 424 ....................................... ad. No. 184, 1992 am. No. 100, 1995 rs. No. 113, 1998 am. No. 58, 2001 S. 424AA .................................. ad. No. 100, 2007 Heading to s. 424A ................... rs. No. 100, 2007 S. 424A .................................... ad. No. 113, 1998 am. No. 58, 2001; No. 100, 2007 Heading to s. 424B ................... rs. No. 100, 2007 S. 424B .................................... ad. No. 113, 1998 am. No. 100, 2007 Heading to s. 424C .................. am. No. 100, 2007 S. 424C .................................... ad. No. 113, 1998 am. No. 100, 2007 S. 425 ....................................... ad. No. 184, 1992 rs. No. 113, 1998 S. 425A .................................... ad. No. 113, 1998 am. No. 58, 2001 S. 426 ....................................... ad. No. 184, 1992 am. No. 113, 1998 S. 426A .................................... ad. No. 113, 1998 S. 427 ....................................... ad. No. 184, 1992 S. 428 ....................................... ad. No. 184, 1992 am. No. 146, 1999 S. 429 ....................................... ad. No. 184, 1992 S. 429A .................................... ad. No. 113, 1998 Division 5 Heading to s. 430 ..................... am. No. 113, 1998 S. 430 ....................................... ad. No. 184, 1992 am. No. 113, 1998; No. 85, 2008 S. 430A .................................... ad. No. 113, 1998 am. No. 58, 2001 rs. No. 85, 2008 S. 430B .................................... ad. No. 113, 1998 am. No. 58, 2001 rep. No. 85, 2008 S. 430C .................................... ad. No. 113, 1998 rep. No. 85, 2008 Heading to s. 430D .................. rs. No. 85, 2008 S. 430D .................................... ad. No. 113, 1998 am. No. 85, 2008 Heading to s. 431 ..................... am. No. 113, 1998


Table of Amendments



Provision affected How affected S. 431 ....................................... ad. No. 184, 1992 am. No. 113, 1998 Division 6 S. 432 ....................................... ad. No. 184, 1992 am. No. 113, 1998; No. 97, 2001 S. 433 ....................................... ad. No. 184, 1992 am. No. 97, 2001 S. 434 ....................................... ad. No. 184, 1992 Division 7 Ss. 435–440 ............................. ad. No. 184, 1992 S. 440A .................................... ad. No. 141, 2005 S. 441 ....................................... ad. No. 184, 1992 S. 441A .................................... ad. No. 113, 1998 rep. No. 58, 2001 Division 7A Heading to Div. 7A of Part 7 ..... rs. No. 85, 2008 Div. 7A of Part 7 ....................... ad. No. 58, 2001 S. 441AA .................................. ad. No. 58, 2001 am. No. 112, 2008 Note 1 to s. 441AA ................... ad. No. 85, 2008 Note to s. 441AA

Renumbered Note 2 .............. No. 85, 2008

S. 441A .................................... ad. No. 58, 2001 am. No 112, 2008 S. 441B .................................... ad. No. 58, 2001 S. 441C ..................................... ad. No. 58, 2001 am. No. 112, 2008 Ss. 441D, 441E ........................ ad. No. 58, 2001 S. 441EA .................................. ad. No. 85, 2008 Ss. 441F, 441G ........................ ad. No. 58, 2001 Division 8 Ss. 442–450 ............................. ad. No. 184, 1992 S. 451 ....................................... ad. No. 184, 1992 am. No. 100, 1995 Ss. 452, 453 ............................. ad. No. 184, 1992 S. 454 ....................................... ad. No. 184, 1992 am. No. 59, 1993 Ss. 455, 456 ............................. ad. No. 184, 1992 Division 9 S. 457 ....................................... ad. No. 184, 1992 S. 458 ....................................... ad. No. 184, 1992 am. No. 110, 1995; No. 85, 2008 S. 459 ....................................... ad. No. 184, 1992 am. No. 85, 2008




Provision affected How affected S. 460 ....................................... ad. No. 184, 1992 am. No. 60, 1994 S. 461 ....................................... ad. No. 184, 1992 am. No. 28, 2000 Heading to s. 462 ..................... am. No. 110, 1995 S. 462 ....................................... ad. No. 184, 1992 am. No. 110, 1995 S. 463 ....................................... ad. No. 184, 1992 rep. No. 110, 1995 Ss. 464–468 ............................. ad. No. 184, 1992 S. 469 ....................................... ad. No. 184, 1992 am. No. 110, 1995; No. 113, 1998 S. 470 ....................................... ad. No. 184, 1992 Division 10 S. 471 ....................................... ad. No. 184, 1992 Ss. 472, 473 ............................. ad. No. 184, 1992 am. No. 146, 1999 Part 7A Part 7A ..................................... ad. No. 87, 2007 S. 473A .................................... ad. No. 87, 2007 Part 8 Heading to Part 8 ..................... rs. Nos. 157 and 134, 2001 Part 8 ........................................ ad. No. 184, 1992 rs. No. 134, 2001 Division 1 S. 474 ....................................... ad. No. 184, 1992 rs. No. 134, 2001 am. Nos. 79 and 137, 2005 Division 2 Heading to Div. 2 of Part 8 ....... rs. Nos. 157 and 134, 2001; No. 137, 2005 Heading to s. 475 ..................... am. No. 157, 2001 rs. No. 134, 2001 S. 475 ....................................... ad. No. 184, 1992 am. No. 60, 1994; No. 100, 1995; No. 102, 1995 (as rep. by

No. 100, 1995); Nos. 34 and 160, 1999; No. 28, 2000 rs. No. 134, 2001 Heading to s. 475A ................... am. No. 157, 2001 rep. No. 137, 2005 S. 475A .................................... ad. No. 134, 2001 am. No. 157, 2001 rep. No. 137, 2005 Heading to s. 476 ..................... am. No. 157, 2001 rs. No. 137, 2005


Table of Amendments



Provision affected How affected S. 476 ....................................... ad. No. 184, 1992 am. No. 157, 2001 rs. No. 134, 2001 am. No. 157, 2001; No. 75, 2003; No. 79, 2005 rs. No. 137, 2005 Ss. 476A, 476B ........................ ad. No. 137, 2005 S. 477 ....................................... ad. No. 184, 1992 am. No. 157, 2001 rs. No. 134, 2001 am. No. 157, 2001 rs. No. 137, 2005 S. 477A .................................... ad. No. 137, 2005 S. 478 ....................................... ad. No. 184, 1992 am. No. 157, 2001 rs. No. 134, 2001 am. No. 157, 2001; No. 137, 2005 S. 478A .................................... ad. No. 157, 2001 rep. No. 134, 2001 Ss. 479, 480 ............................. ad. No. 184, 1992 rs. No. 134, 2001 am. No. 157, 2001; No. 137, 2005 Heading to s. 481 ..................... am. No. 157, 2001 rs. No. 134, 2001 S. 481 ....................................... ad. No. 184, 1992 am. No. 157, 2001 rs. No. 134, 2001 am. No. 157, 2001; No. 137, 2005 S. 482 ....................................... ad. No. 184, 1992 am. No. 60, 1994; No. 157, 2001 rs. No. 134, 2001 am. No. 137, 2005 S. 483 ....................................... ad. No. 184, 1992 rs. No. 134, 2001; No. 137, 2005 S. 483A .................................... ad. No. 157, 2001 rep. No. 137, 2005 Heading to s. 484 ..................... am. No. 157, 2001 rs. No. 137, 2005 S. 484 ....................................... ad. No. 184, 1992 rs. No. 134, 2001 am. No. 157, 2001 rs. No. 137, 2005 Heading to s. 485 ..................... am. No. 157, 2001 rep. No. 134, 2001 S. 485 ....................................... ad. No. 184, 1992 am. No. 160, 1999; Nos. 129 and 157, 2001 rep. No. 134, 2001 Heading to s. 485A ................... am. No. 157, 2001 rep. No. 134, 2001




Provision affected How affected S. 485A .................................... ad. No. 129, 2001 am. No. 157, 2001 rep. No. 134, 2001 Heading to s. 486 ..................... am. No. 157, 2001 rep. No. 134, 2001 S. 486 ....................................... ad. No. 184, 1992 am. No. 157, 2001 rep. No. 134, 2001 Part 8A Part 8A ..................................... ad. No. 129, 2001 S. 486A .................................... ad. No. 129, 2001 am. No. 134, 2001; No. 137, 2005 S. 486AA .................................. ad. No. 134, 2001 S. 486AB .................................. ad. No. 134, 2001 am. No. 85, 2008 S. 486B .................................... ad. No. 129, 2001 am. No. 157, 2001 Heading to s. 486C .................. am. No. 157, 2001 rs. No. 137, 2005 S. 486C .................................... ad. No. 129, 2001 am. Nos. 157 and 134, 2001; No. 137, 2005 Note to s. 486C(2) .................... am. No. 157, 2001 S. 486D .................................... ad. No. 137, 2005 Part 8B Part 8B ..................................... ad. No. 137, 2005 Ss. 486E–486K ........................ ad. No. 137, 2005 Part 8C Part 8C ..................................... ad. No. 79, 2005 Ss. 486L–486Q ........................ ad. No. 79, 2005 Part 9 S. 487 ....................................... am. No. 10, 1966; No. 117, 1979; No. 175, 1980 rs. No. 59, 1989 am. No. 24, 1992 rep. No. 137, 2000 ad. No. 2, 2004 S. 488 ....................................... ad. No. 151, 1988 am. Nos. 24 and 184, 1992; No. 166, 2000; No. 63, 2007 S. 488A .................................... ad. No. 166, 2000 S. 488B .................................... ad. No. 130, 2001 S. 489 ....................................... ad. No. 151, 1988 S. 490 ....................................... ad. No. 10, 1966 am. No. 112, 1983; No. 59, 1989 S. 491 ....................................... ad. No. 117, 1979 am. No. 112, 1983; No. 59, 1989 (as am. by No. 159, 1989);

Nos. 24 and 184, 1992; No. 60, 1994 rep. No. 85, 2001


Table of Amendments



Provision affected How affected S. 492 ....................................... ad. No. 117, 1979 am. No. 27, 1997; No. 89, 1999 S. 493 ....................................... ad. No. 59, 1989 am. No. 137, 2000; No. 97, 2001 S. 494 ....................................... ad. No. 117, 1979 S. 494AA .................................. ad. No. 128, 2001 S. 494AB .................................. ad. No. 10, 2002 S. 494A .................................... ad. No. 58, 2001 am. No. 112, 2008 Note to s. 494A ......................... rs. No. 85, 2008 Ss. 494B, 494C ........................ ad. No. 58, 2001 am. No. 112, 2008 S. 494D .................................... ad. No. 58, 2001 am. No. 85, 2008 S. 495 ....................................... ad. No. 117, 1979 rs. No. 59, 1989 S. 495A .................................... ad. No. 58, 2001 am. No. 141, 2005 S. 495B .................................... ad. No. 58, 2001 S. 496 ....................................... ad. No. 59, 1989 am. No. 184, 1992; No. 114, 1998 S. 497 ....................................... ad. No. 59, 1989 am. No. 184, 1992; No. 60, 1994 S. 498 ....................................... ad. No. 59, 1989 am. No. 112, 1983; No. 59, 1989; No. 213, 1992; No. 60, 1994;

No. 114, 1998 Heading to s. 499 ..................... am. No. 114, 1998 S. 499 ....................................... ad. No. 59, 1989 am. No. 114, 1998 S. 500 ....................................... ad. No. 61, 1981 am. No. 112, 1983; No. 59, 1989; No. 213, 1992; No. 60, 1994;

No. 114, 1998; No. 157, 2001; No. 38, 2005 S. 500A .................................... ad. No. 34, 1999 am. No. 159, 2006 S. 501 ....................................... ad. No. 213, 1992 am. No. 60, 1994 rs. No. 114, 1998 am. No. 159, 2006 S. 501A .................................... ad. No. 114, 1998 am. No. 129, 2001 Ss. 501B–501H ........................ ad. No. 114, 1998 S. 501HA .................................. ad. No. 85, 2008 Ss. 501J, 501K ......................... ad. No. 131, 2001 Ss. 502, 503 ............................. ad. No. 213, 1992 am. No. 213, 1992; No. 60, 1994; No. 114, 1998 S. 503A .................................... ad. No. 114, 1998 am. No. 75, 2003; No. 141, 2005




Provision affected How affected Note to s. 503A(8) .................... ad. No. 75, 2003 S. 503B .................................... ad. No. 75, 2003 am. No. 137, 2005 Ss. 503C, 503D ........................ ad. No. 75, 2003 S. 504 ....................................... am. No. 87, 1964; No. 10, 1966; Nos. 117 and 118, 1979;

No. 61, 1981; No. 112, 1983; No. 72, 1984; No. 168, 1986; Nos. 133 and 141, 1987; No. 49, 1988; No. 59, 1989 (as am. by No. 159, 1989); Nos. 86, 196 and 198, 1991; Nos. 84 and 184, 1992; No. 27, 1997; No. 114, 1998; No. 160, 1999; No. 166, 2000; No. 122, 2003; No. 48, 2004; No. 141, 2005

S. 505 ....................................... ad. No. 176, 1992 am. No. 60, 1994 S. 506 ....................................... ad. No. 184, 1992 am. No. 100, 1995 S. 507 ....................................... ad. No. 27, 1997


Repeal Table 1


Certain provisions of the Migration Act 1958, as amended, were repealed either prior to renumbering by the Migration Amendment Act 1989 (No. 59, 1989) or by that Act. The amendment history of the repealed provisions appears in the Table below.

Repeal Table 1


Provision affected How affected S. 3 ........................................... am. No. 16, 1973 rep. No. 216, 1973 Div. 1 of Part II ......................... rep. No. 59, 1989 S. 5D ........................................ ad. No. 151, 1988 rep. No. 59, 1989 S. 6AA ...................................... ad. No. 151, 1988 am. No. 61, 1989 rep. No. 59, 1989 S. 6AAA .................................... ad. No. 71, 1986 rep. No. 59, 1989 S. 6A ........................................ ad. No. 175, 1980 am. No. 112, 1983; No. 141, 1987 rep. No. 59, 1989 S. 6B ........................................ ad. No. 86, 1987 am. No. 151, 1988 rep. No. 59, 1989 Div. 1A of Part II ....................... ad. No.117, 1979

rep. No. 59, 1989 S. 11A ...................................... ad. No. 117, 1979 am. Nos. 133 and 141, 1987; No. 151, 1988 rep. No. 59, 1989 S. 11AB .................................... ad. No. 86, 1987 am. No. 5, 1988 rep. No. 59, 1989 S. 11B ...................................... ad. No. 117, 1979 am. No. 141, 1987 rep. No. 59, 1989 S. 11C ...................................... ad. No. 117, 1979 am. No. 89, 1980; No. 51, 1982; No. 112, 1983; No. 22,

1984; Nos. 133 and 141, 1987 rep. No. 59, 1989 S. 15 ......................................... rep. No. 112, 1983 S. 16 ......................................... am. No. 10, 1966; No. 117, 1979; No. 175, 1980; No. 61,

1981; No. 51, 1982; No. 112, 1983; Nos. 104 and 141, 1987; No. 151, 1988

rep. No. 59, 1989 S. 17 ......................................... rep. No. 216, 1973 S. 25 ......................................... rep. No. 216, 1973

Notes to the Migration Act 1958 Repeal Table 1



Provision affected How affected S. 34A ...................................... ad. No. 133, 1987 rep. No. 49, 1988 Heading to Div. 6 of Part II ....... rs. No. 112, 1983 rep. No. 59, 1989 Div. 6 of Part II ......................... rep. No. 59, 1989 Ss. 51–53 ................................. am. No. 10, 1966; No. 117, 1979; No. 112, 1983 rep. No. 59, 1989 Heading to Part III .................... rs. No. 16, 1973 rep. No. 73, 1983 Part III ....................................... rep. No. 73, 1983 S. 59 ......................................... rs. No. 16, 1973 rep. No. 73, 1983 S. 60 ......................................... rep. No. 216, 1973 S. 66 ......................................... am. Nos. 73 and 112, 1983 rep. No. 59, 1989


Repeal Table 2


Certain provisions of the Migration Act 1958, as amended (and renumbered by Act No. 59, 1989), were repealed either prior to renumbering by the Migration Legislation Amendment Act 1994 (No. 60, 1994) or by that Act. The amendment history of the repealed provisions appears in the Table below.

Repeal Table 2


Provision affected How affected S. 7A ........................................ ad. No. 37, 1990 am. No. 184, 1992 rep. No. 60, 1994 S. 9 ........................................... ad. No. 59, 1989 rep. No. 184, 1992 S. 11 ......................................... ad. No. 59, 1989 (as am. by No. 159, 1989) rep. No. 184, 1992 S. 13 ......................................... ad. No. 59, 1989 am. No. 86, 1991; Nos. 84 and 184, 1992; No. 59, 1993 rep. No. 184, 1992 Ss. 16A, 16B ............................ ad. No. 86, 1991 rep. No. 184, 1992 S. 18 ......................................... am. No. 112, 1983 rs. No. 59, 1989 (as am. by No. 159, 1989); No. 86, 1991 rep. No. 184, 1992 S. 20 ......................................... rs. No. 59, 1989 (as am. by No. 159, 1989) am. No. 86, 1991; Nos. 24 and 84, 1992 rep. No. 184, 1992 Ss. 21, 22 ................................. rs. No. 59, 1989 rep. No. 184, 1992 Div. 1AA of Part 2...................... ad. No. 84, 1992 rep. No. 184, 1992 Ss. 22AA–22AC ....................... ad. No. 84, 1992 rep. No. 184, 1992 S. 22AD .................................... ad. No. 84, 1992 am. No. 176, 1992 rep. No. 184, 1992 Heading to Subdiv. AD .............

of Div. 2 of Part 2 ad. No. 184, 1992 rep. No. 60, 1994

S. 26ZI ...................................... ad. No. 184, 1992 rep. No. 60, 1994 Heading to Subdiv. AA .............

of Div. 2 of Part 2 rep. No. 59, 1993

Heading to Div. 3 of Part 2 ....... rep. No. 184, 1992 Div. 4 of Part 2 ......................... ad. No. 59, 1989 rep. No. 184, 1992 Ss. 51, 52 ................................. ad. No. 59, 1989 rep. No. 184, 1992




Provision affected How affected S. 53 ......................................... ad. No. 59, 1989 am. No. 86, 1991 rep. No. 184, 1992 S. 54 ......................................... ad. No. 59, 1989 rep. No. 184, 1992 Div. 4A of Part 2 ....................... ad. No. 86, 1991

rep. No. 184, 1992 Ss. 54A–54H ............................ ad. No. 86, 1991 rep. No. 184, 1992 S. 59 ......................................... ad. No. 59, 1989 (as am. by No. 159, 1989) rep. No. 184, 1992 S. 60 ......................................... am. No. 112, 1983 rs. No. 59, 1989 (as am. by No. 159, 1989) am. No. 86, 1991 rep. No. 184, 1992 S. 61 ......................................... ad. No. 86, 1987 am. No. 59, 1989; No. 184, 1992 rep. No. 184, 1992 S. 64 ......................................... am. No. 10, 1966; No. 216, 1973; No. 117, 1979; No. 51,

1982 (as am. by No. 165, 1984); No. 112, 1983; No. 104, 1987; No. 59, 1989; No. 24, 1992

rep. No. 184, 1992 S. 65 ......................................... ad. No. 117, 1979 rs. No. 59, 1989 rep. No. 184, 1992 S. 66 ......................................... ad. No. 59, 1989 rep. No. 184, 1992 S. 70 ......................................... am. No. 10, 1966; No. 117, 1979; No. 112, 1983; No. 59,

1989 (as am. by No. 159, 1989); No. 24, 1992 rep. No. 184, 1992 S. 75 ......................................... rep. No. 220, 1992 S. 79 ......................................... am. No. 10, 1966; No. 117, 1979; No. 112, 1983; No. 59,

1989; No. 24, 1992 rep. No. 184, 1992 S. 82 ......................................... ad. No. 117, 1979 am. No. 112, 1983; No. 123, 1984; No. 59, 1989 (as am. by

No. 159, 1989); No. 24, 1992 rep. No. 184, 1992 S. 89 ......................................... ad. No. 117, 1979 am. No. 51, 1982; No. 112, 1983; No. 104, 1987; No. 59,

1989; No. 86, 1991; No. 24, 1992 rep. No. 184, 1992 S. 89A ...................................... ad. No. 86, 1991 rep. No. 184, 1992 S. 89B ...................................... ad. No. 176, 1992 rep. No. 184, 1992 S. 92 ......................................... am. No. 117, 1979; No. 112, 1983; No. 59, 1989 (as am. by

No. 159, 1989); Nos. 24 and 184, 1992 rep. No. 60, 1994


Repeal Table 2



Provision affected How affected S. 100A .................................... ad. No. 84, 1992 rep. No. 184, 1992 Div. 9 of Part 2 ......................... ad. No. 59, 1989 rep. No. 85, 1992 S. 101 ....................................... am. No. 112, 1983 rs. No. 59, 1989 am. No. 24, 1992 rep. No. 85, 1992 S. 102 ....................................... am. No. 10, 1966; No. 216, 1973; No. 91, 1976; No. 117,

1979; No. 112, 1983 rs. No. 59, 1989 am. No. 24, 1992 rep. No. 85, 1992 Ss. 103–105 ............................. am. No. 10, 1966; No. 117, 1979; No. 112, 1983 rs. No. 59, 1989 rep. No. 85, 1992 S. 106 ....................................... ad. No. 59, 1989 rep. No. 184, 1992 S. 108 ....................................... am. No. 117, 1979; No. 112, 1983; No. 141, 1987; No. 59,

1989; No. 184, 1992 rep. No. 60, 1994 S. 109 ....................................... am. No. 112, 1983 rep. No. 184, 1992 Div. 1 of Part 3 ......................... rep. No. 184, 1992 S. 115 ....................................... am. No. 216, 1973 rep. No. 73, 1983 ad. No. 59, 1989 (as am. by No. 180, 1989) am. No. 86, 1991; No. 84, 1992 rep. No. 184, 1992 S. 116 ....................................... am. No. 10, 1966; No. 117, 1979 rep. No. 73, 1983 ad. No. 59, 1989 am. No. 86, 1991; No. 84, 1992 rep. No. 184, 1992 S. 117 ....................................... am. No. 10, 1966; No. 117, 1979 rep. No. 73, 1983 ad. No. 59, 1989 rep. No. 184, 1992 S. 118 ....................................... am. No. 10, 1966 rep. No. 16, 1973 ad. No. 59, 1989 am. No. 86, 1991; No. 84, 1992 rep. No. 184, 1992 S. 119 ....................................... ad. No. 59, 1989 rep. No. 184, 1992 S. 120 ....................................... ad. No. 59, 1989 (as am. by No. 180, 1989) am. No. 86, 1991 rep. No. 184, 1992 S. 121 ....................................... ad. No. 59, 1989 rep. No. 184, 1992




Provision affected How affected S. 121A .................................... ad. No. 24, 1992 rep. No. 184, 1992 Div. 2 of Part 3 ......................... rep. No. 184, 1992 S. 122 ....................................... rep. No. 184, 1992 S. 137 ....................................... ad. No. 59, 1989 (as am. by No. 180, 1989) am. No. 84, 1992 rep. No. 184, 1992 Ss. 138–140 ............................. ad. No. 59, 1989 rep. No. 184, 1992


Note 2


Note 2

Fisheries Legislation Amendment (New Governance Arrangements for the Australian Fisheries Management Authority and Other Matters) Act 2008 (No. 36, 2008)

The following amendments commence on 24 June 2009 unless proclaimed earlier:

Schedule 3

67 Subsection 5(1) (paragraph (a) of the definition of fisheries detention offence) Omit “or 105F”, substitute “, 105EA, 105H or 105I”.

68 Paragraph 43(5)(b) Omit “, 87B, 87C or 87D”, substitute “or 87HA”.

69 Paragraph 164B(1A)(b) Omit “, 87B, 87C or 87D”, substitute “or 87HA”.

As at 5 December 2008 the amendments are not incorporated in this compilation.

Note 3

Migration Legislation Amendment Act (No. 1) 2008 (No. 85, 2008)

The following amendments commence on 15 March 2009 unless proclaimed earlier:

Schedule 2

1 Subsection 33(5) Omit “the end of the earlier or earliest of the following days”, substitute “the earliest of the following times”.

2 Subparagraphs 33(5)(a)(i) and (ii) Repeal the subparagraphs, substitute:



(i) if the non-citizen ceases to have a prescribed status—the end of the day on which the non-citizen so ceases; or

(ii) if the non-citizen ceases to be a member of a class of persons that has a prescribed status—the end of the day on which the non-citizen so ceases; or

3 Subparagraphs 33(5)(b)(i) to (iv) Repeal the subparagraphs, substitute:

(i) if a day is specified in the declaration as the day the visa ceases to be in effect—the end of that day; or

(ii) if an event is specified in the declaration as the event that causes the visa to cease to be in effect—the end of the day on which the event happens; or

(iii) if the non-citizen ceases to be a member of a class of persons specified in the declaration—the end of the day on which the non-citizen so ceases; or

(iv) if the declaration is revoked—the end of the day of the revocation; or

10 After subsection 245J(2) Insert:

(2A) The information about passengers or crew that is to be reported by a system must be about:

(a) if the system is for reporting on passengers—passengers individually; or

(b) if the system is for reporting on crew—members of the crew individually; or

(c) if the system is for reporting on both passengers and crew—passengers individually and members of the crew individually.

11 After subsection 245K(1) Insert:

(1A) The information about passengers or crew that is to be reported by a system must be about:

(a) if the system is for reporting on passengers—passengers individually; or


Note 3


(b) if the system is for reporting on crew—members of the crew individually; or

(c) if the system is for reporting on both passengers and crew—passengers individually and members of the crew individually.

12 Paragraph 245L(2)(a) Omit “the passengers”, substitute “each passenger”.

13 Paragraph 245L(2)(b) Omit “the crew”, substitute “each member of the crew”.

14 Subsection 245L(5) Repeal the subsection, substitute:

Deadline for reporting—ships

(5) A report on passengers or crew on a ship must be given not later than:

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

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

(5A) Regulations made for the purposes of paragraph (5)(b) may prescribe matters of a transitional nature (including prescribing any saving or application provisions) arising out of the making of regulations for those purposes.

16 At the end of subsection 245N(2) Add:

Note: See also paragraph 504(1)(jaa) (which deals with the payment of a penalty as an alternative to prosecution).

16A At the end of section 245N Add:

(4) An operator of an aircraft or ship commits a separate offence under subsection (1) or (2) in relation to each passenger or member of the



crew in relation to whom the operator contravenes subsection 245L(2).

17 After paragraph 504(1)(j) Insert:

(jaa) enabling a person who is alleged to have committed an offence against subsection 245N(2) to pay to the Commonwealth, as an alternative to prosecution, a prescribed penalty, not exceeding 10 penalty units; and

18 Section 169 Before “If:”, insert “(1)”.

Note: The heading to section 169 is altered by inserting “to” after “usually”.

19 At the end of section 169 Add:

International passenger cruise ships

(2) However, subsection (1) does not apply if the person goes outside the migration zone on an international passenger cruise ship (see subsection (4)). Note: The effect of this subsection is that people on international passenger

cruise ships are required to be immigration cleared under section 166 (unless the Minister or Secretary determines otherwise under subsection (3) of this section).

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

(4) In this section, a ship is an international passenger cruise ship if: (a) the ship has sleeping facilities for at least 100 persons (other

than crew members); and (b) the ship is being used to provide a service of sea

transportation of persons from a place outside Australia to a port in Australia; and

(c) that service: (i) is provided in return for a fee payable by persons using

the service; and (ii) is available to the general public.


Note 3


(5) A determination made under subsection (3) is not a legislative instrument.

21 Subsection 31(2) After “, 38”, insert “, 38A”.

22 Subsection 31(3) Omit “or 38”, substitute “, 38 or 38A”.

Schedule 3

1 After paragraph 172(1)(b) Insert:

(ba) the person: (i) enters Australia by virtue of the operation of section 10;

and (ii) at the time of the person’s birth, had at least one parent

who was immigration cleared on his or her last entry into Australia; or

3 At the end of subsection 172(1) Add:

; or (d) the person is in a prescribed class of persons.

4 Subsection 173(1) After “section 43,”, insert “or regulations to which that section is subject,”.


(2) To avoid doubt, a non-citizen child who is taken to have been granted a visa or visas, at the time of the child’s birth, by virtue of the operation of section 78, is not to be taken, by virtue of that birth, to have entered Australia in a way that contravenes section 43 or regulations to which that section is subject.

18 Subsection 269(1) After “authorized officer may”, insert “, subject to subsection (1A),”.



19 After subsection 269(1) Insert:

(1A) The power of an authorized officer to require and take security under subsection (1) in relation to an application for a visa applies only if:

(a) the security is for compliance with conditions that will be imposed on the visa in pursuance of, or for the purposes of, this Act or the regulations, if the visa is granted; and

(b) the officer has indicated those conditions to the applicant.

21 Subsection 48(2) After “section” (first occurring), insert “(which applies only in respect of applications made while a non-citizen is in the migration zone)”.


(3) For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who, while holding a bridging visa, leaves and re-enters the migration zone is taken to have been continuously in the migration zone despite that travel.

24 After subsection 82(7) Insert:

(7A) A bridging visa permitting the holder to remain in, or to travel to, enter and remain in, Australia until a specified event happens, ceases to be in effect the moment the event happens.

As at 5 December 2008 the amendments are not incorporated in this compilation.


Table A


Table A



Schedule 1

Part 2—Application and transitional

29 Application

(1) The amendment made by item 13 of this Schedule applies in relation to applications whether made before, at or after the commencement of this item.

(2) The remaining amendments of the Immigration (Education) Act 1971 and the Migration Act 1958 made by this Schedule apply in relation to applications for visas made at or after the commencement of the Migration (Visa Application) Charge Act 1997.

Note: Under item 30, some applications that are made before the commencement of the Migration (Visa Application) Charge Act 1997 are taken to be made immediately after that time.

30 Transitional If:

(a) an application for a visa is made before the commencement of the Migration (Visa Application) Charge Act 1997; and

(b) a visa application fee, or part of a visa application fee, payable under the Migration Act 1958 in respect of the application has not been paid at that time;

then, for the purposes of the Immigration (Education) Act 1971, the Migration (Health Services) Charge Act 1991 and sections 45A, 45B and 45C of the Migration Act 1958, the application is taken to have been made immediately after the commencement of the Migration (Visa Application) Charge Act 1997.

Notes to the Migration Act 1958 Table A


Migration Legislation Amendment (Migration Agents) Act 1997 (No. 205, 1997)

Schedule 1

Part 2—Application and transitional provisions

67 Migration Agents Registration Board may disclose personal information The Migration Agents Registration Board may disclose to the Department personal information (as defined by the Privacy Act 1988) that:

(a) is relevant to the exercise of the Board’s powers or the performance of the Board’s functions; or

(b) may help the Migration Agents Registration Authority exercise its powers or perform its functions under the Migration Act 1958 as amended by this Act.

68 Department may disclose personal information

(1) This item authorises certain disclosures of personal information (as defined by the Privacy Act 1988) for the purpose of facilitating or expediting the exercise of the powers, or performance of the functions, of the Migration Agents Registration Authority under the Migration Act 1958 as amended by this Act.

(2) The Department may make a disclosure to the Migration Institute of Australia Limited (A.C.N. 003 409 390) (the Institute) or an officer or employee of the Institute at a time before 21 March 1998 if the Minister has made an instrument before that time appointing the Institute under section 315 of that Act.

Note: Section 4 of the Acts Interpretation Act 1901 lets the Minister make such an instrument before 21 March 1998.

(3) For the purposes of subitem (2), it does not matter when the Department obtained the personal information disclosed.

69 Transitional provision for Register of Migration Agents The Register of Migration Agents continues in force, despite the amendment of section 287 of the Migration Act 1958 by item 31.

Note: This means that a migration agent who was registered immediately before that amendment continues to be a registered agent after that amendment until his or her registration expires or is cancelled or suspended, or he or she is deregistered.


Table A


70 Applications for registration made before 21 March 1998

(1) This item makes special provision for an individual’s application to be registered as a registered agent if:

(a) the application was made under section 288 of the Migration Act 1958 before 21 March 1998; and

(b) the applicant had not been registered as a result of the application before that day; and

(c) neither the Secretary nor the Migration Agents Registration Board had made a decision before that day not to register the applicant.

(2) Part 3 of the Migration Act 1958 as amended by this Schedule applies to the application as if the applicant had made the application to the Migration Agents Registration Authority.

(3) That Part applies as if the application were made on the form approved for the purposes of subsection 288(2) of the Migration Act 1958 as in force on and after 21 March 1998.

(4) That Part applies as if any registration application fee on the application had been paid, if:

(a) the applicant had paid levy on the application under the Migration Agents Registration (Application) Levy Act 1992; or

(b) the application was exempt from levy under that Act.

(5) If the Secretary had published notice of the application in the Gazette and a statement under subsection 289(1) of the Migration Act 1958 as in force before 21 March 1998, Part 3 of that Act as in force on and after that day applies as if:

(a) the applicant had given notice of his or her intention to apply for registration under subsection 288(1A) of that Act (as in force on and after 21 March 1998); and

(b) the notice given by the applicant had stated that the time for objections ended 6 weeks after the day the Secretary published notice of the application.

(6) In deciding whether the applicant should be registered, the Migration Agents Registration Authority must consider an objection to registering the applicant, even if it was made to the Secretary before 21 March 1998.



Note: The Migration Agents Registration Authority may also consider any further submission requested by the Migration Agents Registration Board under section 309 of the Migration Act 1958. See item 78.

71 Application of section 291 of the Migration Act 1958 Section 291 of the Migration Act 1958 (as in force after the commencement of item 35) applies to a refusal of an application for registration, whether the refusal occurred before or after the commencement of that item.

72 Application of section 292 of the Migration Act 1958 Section 292 of the Migration Act 1958 (as in force after the commencement of item 35) applies to a cancellation of a migration agent’s registration, whether the cancellation occurred before or after the commencement of that item.

73 Special arrangements for renewal of registration of some migration agents in the voluntary sector

(1) This item makes special provision for a registered agent if: (a) the agent’s registration is due for renewal under section 300

of the Migration Act 1958 on or after 21 March 1998 but no later than 20 September 1998; and

(b) the agent gives immigration assistance only as an employee of, or a voluntary worker for, a person or organisation that does not charge people receiving the assistance a fee, or require any other reward from them, for the assistance.

(2) Paragraph 302(1)(b) of the Migration Act 1958 has effect in relation to the renewal occurring in 1998 as if that paragraph referred to 6 months instead of 2 weeks.

Note: This gives the agent 6 months (rather than 2 weeks) to pay the renewal fee.

(3) The Migration Agents Registration Authority must deregister the agent by removing his or her name from the Register of Migration Agents if, 6 months after the renewal in 1998 of the agent’s registration, the Authority is satisfied that the agent is not a fit and proper person to give immigration assistance because the agent does not have either:

(a) a qualification prescribed by the regulations for the purposes of paragraph 290(2)(b) of the Migration Act 1958; or

(b) a knowledge of migration procedure that the Authority considers to be sound.


Table A


(4) Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision of the Migration Agents Registration Authority made under this item.

74 Cancellations, suspensions and cautions continue to have effect If an agent’s registration was cancelled or suspended, or an agent was cautioned, under section 303 of the Migration Act 1958 before 21 March 1998, the cancellation, suspension or caution is not affected by the amendment of that section by this Schedule.

75 AAT proceedings relating to the Migration Agents Registration Board

(1) This item extends subsection 43(1) of the Administrative Appeals Tribunal Act 1975 for the purposes of an application made at any time to the Administrative Appeals Tribunal (in accordance with that Act) for review of a decision the Migration Agents Registration Board made under Division 3 of Part 3 of the Migration Act 1958 before 21 March 1998.

Note: Subsections 3(2) and 25(7) of the Administrative Appeals Tribunal Act 1975 allow the President of the Administrative Appeals Tribunal to specify a person to take the place of the Migration Agents Registration Board in proceedings before the Tribunal on or after 21 March 1998.

(2) Without limiting subsection 43(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal may:

(a) exercise the powers and discretions of the Migration Agents Registration Authority for the purpose of varying the Board’s decision or substituting another decision for the Board’s decision; or

(b) remit the matter to the Migration Agents Registration Authority for consideration in accordance with any directions or recommendations of the Tribunal.

76 Continuation of investigations requested by Migration Agents Registration Board

(1) An investigation arranged by the Secretary at the request of the Migration Agents Registration Board may be completed, despite the repeal of section 307 of the Migration Act 1958 by this Act.



(2) The report of the investigation may be given to the Migration Agents Registration Authority, together with any material relevant to the consideration by the Authority of:

(a) a registration application; or (b) a possible disciplinary action under section 303 of the

Migration Act 1958.

(3) A report or material arising out of an investigation requested by the Migration Agents Registration Board of a complaint about a registered agent relating to his or her provision of immigration assistance may be given to the Migration Agents Registration Authority only if the complainant agrees to its being given to the Authority.

77 Information required by Board If, before 21 March 1998:

(a) the Migration Agents Registration Board requires a registered agent to make a statutory declaration or provide specified documents or records under section 308 of the Migration Act 1958; and

(b) the declaration, documents or records have not been given to the Board;

the declaration, documents or records must be given to the Migration Agents Registration Authority as soon as possible after that day.

78 Submissions to the Board under section 309 The Migration Agents Registration Authority may take into account any submission that the Migration Agents Registration Board invited a person to make under section 309 of the Migration Act 1958, when the Authority is making a decision about exercising its powers or performing its functions.

79 Obligations after renewal of registration

(1) The amendments made by items 40 and 52 do not apply to renewals of registration occurring before 21 March 1998.

(2) A person whose registration was renewed after 20 January 1998 but before 21 March 1998 may satisfy the requirements of subsection 312(2) of the Migration Act 1958 by giving the information described in paragraph 312(1)(b) of that Act to the Migration Agents Registration


Table A


Authority on or after 21 March 1998 but before the end of 2 months after the renewal.

80 First report under section 322 The report under section 322 relating to the financial year ending at the end of 30 June 1998 is to cover the administration of Part 3 of the Migration Act 1958 only for the period from 21 March 1998 to 30 June 1998 (inclusive).

81 Final report

(1) If an appointment of the Institute under section 315 of the Migration Act 1958 is in force immediately before the day (the sunset day) that Part 3 of that Act ceases to be in force because of section 333 of that Act, the Institute must give to the Minister for presentation to the Parliament a report on the administration of that Part during the period:

(a) starting on the last 1 July before the sunset day; and (b) ending immediately before the sunset day.

(2) The Institute must give the Minister the report within 42 days after the sunset day.

(3) The Minister must cause the report to be tabled in each House of the Parliament within 15 sitting days of that House after the day he or she receives the report.

(4) If an appointment of the Institute under section 315 of the Migration Act 1958 is not in force immediately before the sunset day, the Minister must cause to be tabled in each House of the Parliament a report on the administration of Part 3 of that Act during the period:

(a) starting on the last 1 July before the sunset day; and (b) ending immediately before the sunset day.

(5) The Minister must cause the report to be tabled in each House of the Parliament under subitem (4) before the end of the 15th sitting day of that House after the end of the 42nd day after the sunset day.



Schedule 3

18 Collection and application of renewal fees on and after 21 March 1999

(1) Amounts of charge imposed by the Migration Agents Registration Renewal Charge Act 1997 before 21 March 1999 must be paid and can be recovered as if the amendments made by items 8, 15 and 16 had not been made.

(2) The Migration Agents Registration Authority must deregister a registered agent who fails to pay within 2 weeks of the renewal of his or her registration any charge imposed by the Migration Agents Registration Renewal Charge Act 1997 on that renewal, despite the repeal of paragraph 302(1)(b) of the Migration Act 1958 by item 13.

(3) The amendment of section 332A of the Migration Act 1958 by item 16 does not affect any regulations made in reliance on that section before 21 March 1999, so far as they relate to charge imposed by the Migration Agents Registration Renewal Charge Act 1997.

(4) The amendment of section 332B of the Migration Act 1958 by item 17 does not affect the operation of that section so far as it relates to charge imposed by the Migration Agents Registration Renewal Charge Act 1997.

19 Continuation of registration renewed after 21 March 1998 and before 21 March 1999 The repeal of subsection 299(2) of the Migration Act 1958 by item 11 does not affect the continuation of a registration renewed after 21 March 1998 and before 21 March 1999.

20 Continued obligation to provide information after renewal of registration

(1) A registered agent whose registration was renewed after 6 March 1999 must give the Migration Agents Registration Authority the information described in subsection 312(2) of the Migration Act 1958 (as in force at the time of the renewal) within 2 weeks of the renewal, despite the repeal of that subsection by item 14.

(2) The Migration Agents Registration Authority must deregister a registered agent who fails to provide that information within that time,


Table A


despite the repeal of paragraph 302(1)(c) of the Migration Act 1958 by item 13.


Schedule 1

40 Internally-reviewable decisions

(1) For the purposes of Part 5 of the Migration Act 1958 as amended by this Act, if:

(a) before the commencement of this Schedule, an application had been properly made under section 339 of that Act for review of a decision; and

(b) the applicant had not been notified of the decision as provided in section 343 of that Act before that commencement;

the application is taken to be an application properly made, on the day of that commencement, under section 347 of that Act as amended by this Act.

(2) If: (a) before the commencement of this Schedule, an application

could have been properly made under section 339 of the Migration Act 1958 for review of a decision; and

(b) the period under paragraph 339(1)(b) of that Act for making the application had not expired before that commencement;

an application may be made under section 347 of that Act as amended by this Act for review of the decision under section 348 of that Act as so amended. However, the period for making the application is to be worked out from the day, before that commencement, on which the decision was notified.

(3) Despite the repeal of Division 2 of Part 5 of the Migration Act 1958 by this Act, the Minister may, after the commencement of this Schedule, exercise his or her power under subsection 345(1) of the Migration Act 1958, in relation to a decision under section 341 of that Act, as if the repeal had not occurred.



(4) If, after the commencement of this Schedule, the Minister exercises his or her power under subsection 345(1) of the Migration Act 1958, section 178 of that Act applies as if the amendment made to that section by item 4 of this Schedule had not been made.

41 IRT-reviewable decisions


(a) before the commencement of this Schedule, an application had been properly made under section 347 of that Act for review of a decision; and

(b) the applicant had not been given a statement relating to the review under section 368 of that Act before that commencement;

the application is taken to be an application properly made, on the day of that commencement, under section 347 of that Act as amended by this Act.

(2) If: (a) before the commencement of this Schedule, an application

could have been properly made under section 347 of the Migration Act 1958 for review of a decision; and

(b) the period under paragraph 347(1)(b) of that Act for making the application had not expired before that commencement;

an application may be made under section 347 of that Act as amended by this Act for review of the decision under section 348 of that Act as so amended. However, the period for making the application is to be worked out from the day, before that commencement, on which the decision was notified.

(3) To avoid doubt, the Minister may, after the commencement of this Schedule, exercise his or her power under subsection 351(1) of the Migration Act 1958 in relation to a decision under section 349 of that Act that was made before that commencement.

(4) Subsection 368(2) of the Migration Act 1958 as in force immediately before the commencement of this item continues to apply in relation to statements prepared under subsection 368(1) of that Act before that commencement.


Table A


42 Decisions referred for further consideration after judicial review


(a) before the commencement of this Schedule, a decision under section 349 of the Migration Act 1958 has been quashed or set aside by a court; and

(b) the matter to which the decision under that section relates was referred by the court for further consideration; and

(c) no decision on that further consideration was made before that commencement;

the decision under that section is taken, on and after that commencement, to be an MRT-reviewable decision in respect of which an application under section 347 of the Migration Act 1958 as amended by this Act was made on the day of that commencement.


(a) after the commencement of this Schedule, a decision made before that commencement under section 349 of the Migration Act 1958 is quashed or set aside by a court; and

(b) the matter to which the decision under that section relates was referred by the court for further consideration;

the decision under that section is taken, on and after the day of the referral, to be an MRT-reviewable decision in respect of which an application under section 347 of the Migration Act 1958 as amended by this Act was made on that day.

43 Decisions that the Minister has agreed to reconsider


(a) before the commencement of this Schedule, an application has been made to a court for judicial review of a decision under section 349 of the Migration Act 1958; and

(b) before the judicial review application was determined by the court, and before that commencement, the Minister agreed, in writing, to reconsider the decision; and

(c) no decision on that reconsideration was made before that commencement;



the decision under that section is taken, on and after that commencement, to be an MRT-reviewable decision in respect of which an application under section 347 of the Migration Act 1958 as amended by this Act was made on the day of that commencement.


(a) before or after the commencement of this Schedule, an application has been or is made to a court for judicial review of a decision, made before that commencement, under section 349 of the Migration Act 1958; and

(b) before the judicial review application was or is determined by the court, but after that commencement, the Minister agrees, in writing, to reconsider the decision;

the decision under that section is taken, on and after the day of the Minister’s agreement, to be an MRT-reviewable decision in respect of which an application under section 347 of the Migration Act 1958 as amended by this Act was made on that day.

44 Conclusive certificates For the purposes of Part 5 of the Migration Act 1958 as amended by this Act, a conclusive certificate that:

(a) was issued under subsection 338(3) or 346(4) of that Act before the commencement of this Schedule; and

(b) immediately before that commencement was still in force; is taken to have been issued, on the day of that commencement, under section 339 of that Act as amended by this Act.

Schedule 2

10 Appointments relating to the Migration Review Tribunal

(1) If, before the commencement of this Schedule, an appointment as provided for by subsection 4(1) of the Acts Interpretation Act 1901 is made under Part 6 of the Migration Act 1958 as amended by this Schedule, the amendments made to that Act by this Schedule apply to the appointment as if those amendments had commenced immediately before the appointment was made.

(2) This item does not affect the operation of Part 5 of the Migration Act 1958.


Table A


Schedule 3

20 Existing applications for review

(1) The amendments made by this Schedule apply to an application made under section 412 of the Migration Act 1958 for review of an RRT-reviewable decision if:

(a) the application was made before the commencement of this Schedule; and

(b) the review was not completed under section 414 of that Act before that commencement.

(2) Subsection 430(2) of the Migration Act 1958 as in force immediately before the commencement of this item continues to apply in relation to statements prepared under subsection 430(1) of that Act before that commencement.

21 Applications for review of existing RRT-reviewable decisions The amendments made by this Schedule apply to an application made, on or after the commencement of this Schedule, under section 412 of the Migration Act 1958 for review of an RRT-reviewable decision made before that commencement.

Schedule 5

2 Application The amendment made by this Schedule applies to any cancellation of a visa under section 128 of the Migration Act 1958 after the commencement of this Schedule (whether or not the circumstances, acts or omissions to which the cancellation relates occurred after that commencement).



Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (No. 114, 1998)

Schedule 1

28 Application—refusal or cancellation of visas on character grounds

(1) The amendment made by item 23, to the extent that it relates to applications for visas, applies to applications that were made before, on or after the commencement of that item.

(2) The amendment made by item 23, to the extent that it relates to visas granted to a person, applies to visas granted before, on or after the commencement of that item.

29 Transitional—conclusive certificates issued under section 339 of the Migration Act 1958

(1) This item applies to a certificate issued by the Minister that was in force under section 339 of the Migration Act 1958 immediately before the commencement of this item.

(2) The certificate has effect after the commencement of this item as if it had been issued under section 339 of the Migration Act 1958 as amended by this Act.

30 Transitional—conclusive certificates issued under subsection 411(3) of the Migration Act 1958

(1) This item applies to a certificate issued by the Minister that was in force under subsection 411(3) of the Migration Act 1958 immediately before the commencement of this item.

(2) The certificate has effect after the commencement of this item as if it had been issued under subsection 411(3) of the Migration Act 1958 as amended by this Act.

31 Transitional—Ministerial directions

(1) This item applies to a direction given by the Minister that was in force under section 499 of the Migration Act 1958 immediately before the commencement of this item.


Table A


(2) The direction has effect after the commencement of this item as if it had been given under section 499 of the Migration Act 1958 as amended by this Act.

32 Transitional—review of adverse pre-commencement decisions under the Migration Act 1958

(1) Despite the amendments of sections 500 and 502 of the Migration Act 1958 made by this Act, those sections and the Administrative Appeals Tribunal Act 1975 continue to apply, in relation to a review of a decision made under section 501 of the Migration Act 1958 before the commencement of this item, as if:

(a) those amendments had not been made; and (b) section 501 of the Migration Act 1958 had not been repealed

by this Act.

(2) The repeal and substitution of subsection 500(4) of the Migration Act 1958 made by this Act does not imply that an application may be made, or could have been made, to the Administrative Appeals Tribunal for review of a decision to which a certificate under section 502 of the Migration Act 1958 applies.

33 Transitional—setting aside and substitution of non-adverse pre-commencement decisions under section 501 of the Migration Act 1958

(1) This item applies if: (a) a delegate of the Minister; or (b) the Administrative Appeals Tribunal;

makes, or has at any time made, a decision (the original decision): (c) not to exercise the power conferred by section 501 of the

Migration Act 1958 (as in force at any time before the commencement of this item or as continued in force by item 32) to refuse to grant a visa to the person; or

(d) not to exercise the power conferred by section 501 of the Migration Act 1958 (as in force at any time before the commencement of this item or as continued in force by item 32) to cancel a visa that has been granted to a person.

(2) Section 501A of the Migration Act 1958 applies to the original decision in a corresponding way to the way in which it applies to a decision referred to in subsection 501A(1) of that Act.



34 Transitional—setting aside and substitution of adverse pre-commencement decisions under section 501 of the Migration Act 1958

(1) This item applies if a delegate of the Minister has at any time made a decision (the original decision) under section 501 of the Migration Act 1958 (as in force at any time before the commencement of this item):

(a) to refuse to grant a visa to a person; or (b) to cancel a visa that has been granted to a person.

(2) Section 501B of the Migration Act 1958 applies to the original decision in a corresponding way to the way in which it applies to a decision referred to in subsection 501B(1) of that Act.

Migration Legislation Amendment (Temporary Safe Haven Visas) Act 1999 (No. 34, 1999)

4 Applications for certain visas made before the commencement of this Act

(1) If during the period beginning on 6 April 1999 and ending immediately before the commencement of this section:

(a) a non-citizen is in Australia; and (b) the non-citizen: (i) holds a temporary visa that falls within Class UJ under

the regulations; or (ii) has not left Australia since ceasing to hold such a visa;

and (c) the non-citizen makes an application for a visa; and (d) the non-citizen is not granted a substantive visa as a result of

the application; then the application ceases to be a valid application on the commencement of this section, despite any provision of the Migration Act 1958 or any other law.

(2) To avoid doubt: (a) subsection (1) applies even if the application, or a decision in

relation to the application, is the subject of a review by, or an appeal or application to, a review officer, body, tribunal or court; and


Table A


(b) no visa may be granted to the non-citizen as a direct, or indirect, result of the application.

5 Visas taken to be temporary safe haven visas

A visa that falls within Class UJ under the regulations is taken to be a temporary safe haven visa on the commencement of this section.


Schedule 3

1 Effect of certain Schedule 1 amendments The amendments made by items 1, 2, 4 and 10 of Schedule 1 are not intended to alter the effect of any orders made by a court before 3 December 1998.

Border Protection Legislation Amendment Act 1999 (No. 160, 1999)

Schedule 1

13 Application The amendments made by this Part apply only in relation to contraventions after the commencement of this Part.

63 Application

(1) The amendments made by items 34, 35, 36, 37, 40, 48 and 50 do not apply in relation to travel to Australia that occurred before the commencement of those items.

(2) The amendments made by items 41, 51, 57 and 58 do not apply in relation to the entry of a person into Australia that occurred before the commencement of those items.



70 Application of amendments The amendments made by this Part apply to applications, or purported applications, for a visa made after the commencement of this item.


Schedule 2

7 Application of amendments—section 305 of the Migration Act 1958 Despite the amendments of section 305 of the Migration Act 1958 made by this Schedule, that section continues to apply after the commencement of this item, in relation to a cancellation or suspension decision made before the commencement of this item, as if those amendments had not been made.

8 Application of amendments—Division 3A of Part 3 of the Migration Act 1958 Division 3A of Part 3 of the Migration Act 1958 applies in relation to immigration assistance given, or anticipated to be given, whether before, at or after the commencement of this item.

Australian Federal Police Legislation Amendment Act 2000 (No. 9, 2000)

Schedule 3

20 Definition In this Part: commencing time means the time when this Part commences.

27 Amendment of the Migration Act 1958

(1) The Migration Act 1958 as in force at and after the commencing time applies to a former 147 certificate in the same way as it does to a later 147 certificate.


Table A


(2) In this item: former 147 certificate means a certificate given under section 147 of the Migration Act 1958 at any time before the commencing time by a member of the Australian Federal Police of a rank not lower than Superintendent. later 147 certificate means a certificate given under section 147 of the Migration Act 1958 at or after the commencing time by a commissioned police officer (within the meaning of the Australian Federal Police Act 1979 as in force at and after the commencing time).

34 Warrants or writs etc. may continue to be executed If, immediately before the commencing time, any warrant, writ, order, permission or other instrument (the authority) issued under a law of the Commonwealth, a State or a Territory could be executed by a person who was at that time a member, staff member or special member of the Australian Federal Police, the authority continues to be able to be executed at and after the commencing time by the person in his or her capacity as:

(a) the Commissioner of the Australian Federal Police; or (b) a Deputy Commissioner of the Australian Federal Police; or (c) an AFP employee; or (d) a special member of the Australian Federal Police;

(all within the meaning of the Australian Federal Police Act 1979 as in force at and after the commencing time). Note: A person who is a member or staff member of the Australian Federal Police

immediately before the commencing time is taken to be engaged as an AFP employee. Similarly, a person who is a special member of the Australian Federal Police immediately before the commencing time is taken to be appointed as a special member. See item 2 of this Schedule.

35 Regulations dealing with matters of a transitional or saving nature

(1) The Governor-General may make regulations, not inconsistent with any other provision of this Schedule, prescribing matters of a transitional or saving nature in relation to the amendments made by Schedule 1 or 2.



(2) Regulations made under this item within one year after the commencement of this item may commence on a day earlier than the day on which they are made, but not earlier than the commencement of this item.

Timor Gap Treaty (Transitional Arrangements) Act 2000 (No. 25, 2000)

4 The transition time

In this Act:

transition time means 1.23 am Australian Central Standard Time on 26 October 1999. Note: This time corresponds to the time in New York when the United

Nations Security Council adopted Resolution 1272 (1999), which established UNTAET and gave it responsibility for the administration of East Timor. In 2000 the text of the Resolution was available in the Library of the Department of Foreign Affairs and Trade and accessible on the Internet through the Department’s or the United Nations’ world-wide web site.

5 Validity of things done by the Ministerial Council and the Joint Authority

(1) Any thing done by the Ministerial Council or the Joint Authority, during the period commencing on the transition time and ending on 5.55 pm Australian Central Standard Time on 10 February 2000, is not invalid:

(a) merely because the Republic of Indonesia ceased to be a party to the Treaty, and UNTAET became a party to the Treaty, at the transition time; or

(b) merely because of an invalidity in the membership of the Ministerial Council or the Joint Authority.


Joint Authority and Ministerial Council have the meanings given them by subsection 5(1) of the Petroleum (Timor Gap Zone of Cooperation) Act 1990.

Treaty has the meaning given by subsection 5(1) of the Petroleum (Australia-Indonesia Zone of Cooperation) Act 1990 (as in force immediately before the transition time).


Table A


UNTAET means the United Nations Transitional Administration in East Timor.

6 Protection against retrospective criminal liability

A person does not commit an offence if the person would not have committed the offence had the amendments made by the items in Schedules 1 and 2 (other than items 18 to 25 of Schedule 2) commenced on the day on which this Act received the Royal Assent (rather than commencing at the transition time).


Schedule 1

2 Application The provisions of the Subdivision inserted by item 1 that relate to the cancellation of approvals of persons as business sponsors apply only to approvals granted or renewed, whether before or after the commencement of this Schedule, as a result of applications made on or after 1 August 1996.

Schedule 2

4 Saving Any regulations that:

(a) were in force, or were purportedly in force, under section 45 of the Migration Act 1958 immediately before the commencement of this Schedule; and

(b) could validly be made under section 46 of the Migration Act 1958 as amended by this Schedule;

have effect after the commencement of this Schedule as if they had been made under section 46 of the Migration Act 1958 as amended by this Schedule.



Schedule 3

3 Saving of existing authorisations A person who, immediately before the commencement of this Schedule, was authorised, under paragraph (f) of the definition of officer in subsection 5(1) of the Migration Act 1958, to be an officer for the purposes of that Act is taken, after that commencement, to have been authorised to be such an officer under the paragraph substituted for the first-mentioned paragraph by item 1 of this Schedule.

Schedule 9

6 Application for judicial review of decision of Immigration Review Tribunal pending at commencement For the purposes of Part 8 of the Migration Act 1958, if:

(a) before the commencement of this Schedule, an application had properly been made under section 476 of the Migration Act 1958 as previously in force to the Federal Court for judicial review of a decision of the Immigration Review Tribunal; and

(b) that Court had not made an order on the application under subsection 481(1) of the Migration Act 1958 as previously in force before that commencement;

the application is taken to be an application properly made, on the day of that commencement, under section 476 of the Migration Act 1958 for the judicial review of the decision of the Immigration Review Tribunal as if it were a decision of the Migration Review Tribunal.

7 Period for making application for judicial review of decision of Immigration Review Tribunal current at commencement If:

(a) before the commencement of this Schedule, an application could have been properly made under section 476 of the Migration Act 1958 as previously in force to the Federal Court for judicial review of a decision of the Immigration Review Tribunal; and

(b) the period under section 478 of the Migration Act 1958 as previously in force for making the application had not ended before that commencement;


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an application may be made under section 476 of the Migration Act 1958 for judicial review of the decision of the Immigration Review Tribunal as if it were a decision of the Migration Review Tribunal. However, the period for making the application is to be worked out from the day, before that commencement, on which the applicant was notified of the decision.

8 Decision of Immigration Review Tribunal quashed or set aside and matter to which decision relates referred for further consideration

(1) For the purposes of Part 8 of the Migration Act 1958, if: (a) before the commencement of this Schedule, a decision of the

Immigration Review Tribunal was quashed or set aside under that Part by the Federal Court; and

(b) the matter to which the decision related was referred by that Court for further consideration; and

(c) no decision on that further consideration was made before that commencement;

the decision that was reviewed by the Immigration Review Tribunal is taken, on and after that commencement, to be an MRT-reviewable decision in respect of which an application under section 347 of the Migration Act 1958 was made on the day of that commencement.

(2) For the purposes of Part 8 of the Migration Act 1958, if: (a) after the commencement of this Schedule, a decision of the

Immigration Review Tribunal made before that commencement is quashed or set aside by the Federal Court; and

(b) the matter to which the decision related is referred by that Court for further consideration;

the decision that was reviewed by the Immigration Review Tribunal is taken, on and after the day of the referral, to be an MRT-reviewable decision in respect of which an application under section 347 of the Migration Act 1958 was made on that day.



9 Decision of Immigration Review Tribunal that the Minister has agreed to reconsider

(1) For the purposes of Part 8 of the Migration Act 1958, if: (a) before the commencement of this Schedule, an application

had been made to the Federal Court for judicial review of a decision of the Immigration Review Tribunal; and

(b) before the judicial review application was determined by that Court, and before that commencement, the Minister agreed, in writing, to reconsider the decision; and

(c) no decision on that reconsideration was made before that commencement;

the decision that is to be reconsidered by the Minister is taken, on and after that commencement, to be an MRT-reviewable decision in respect of which an application under section 347 of the Migration Act 1958 was made on the day of that commencement.

(2) For the purposes of Part 8 of the Migration Act 1958, if: (a) before or after the commencement of this Schedule, an

application has been or is made to the Federal Court for judicial review of a decision of the Immigration Review Tribunal that was made before that commencement; and

(b) before the judicial review application was or is determined by that Court, but after that commencement, the Minister agrees, in writing, to reconsider the decision;

the decision that is to be reconsidered by the Minister is taken, on and after the day of the Minister’s agreement, to be an MRT-reviewable decision in respect of which an application under section 347 of the Migration Act 1958 was made on that day.

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (No. 137, 2000)

Schedule 2

418 Transitional—pre-commencement offences

(1) Despite the amendment or repeal of a provision by this Schedule, that provision continues to apply, after the commencement of this item, in relation to:


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(a) an offence committed before the commencement of this item; or

(b) proceedings for an offence alleged to have been committed before the commencement of this item; or

(c) any matter connected with, or arising out of, such proceedings;

as if the amendment or repeal had not been made.

(2) Subitem (1) does not limit the operation of section 8 of the Acts Interpretation Act 1901.

419 Transitional—pre-commencement notices If:

(a) a provision in force immediately before the commencement of this item required that a notice set out the effect of one or more other provisions; and

(b) any or all of those other provisions are repealed by this Schedule; and

(c) the first-mentioned provision is amended by this Schedule; the amendment of the first-mentioned provision by this Schedule does not affect the validity of such a notice that was given before the commencement of this item.

Migration Legislation Amendment (Overseas Students) Act 2000 (No. 168, 2000)

Schedule 3

7 Application The amendment made by item 1 applies to visas granted after the commencement of this Schedule.

Schedule 4

3 Application of amendments The amendments made by items 1 and 2 apply in relation to all student visas, whether granted before or after the commencement of this item.



4 Special condition on certain student visas

(1) This item applies to the following visas (and only those visas): (a) all student visas that are in effect when this item commences; (b) all student visas that are granted after this item commences

but before 1 July 2001.

(2) Condition 8202 of each visa to which this item applies is taken for all purposes to be as set out in subitem (3), instead of as set out in regulations made for the purposes of section 41 of the Migration Act 1958.

(3) The condition is that: (a) in the case of the holder of a Subclass 560 visa who is an

AusAID or secondary school exchange student—the holder is enrolled in a full-time course of study; and

(b) in any other case—the holder is enrolled in a registered course; and

(c) in the case of a holder whose education provider keeps attendance records—the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:

(i) for a course that runs for less than a semester—for the course; or

(ii) for a course that runs for at least a semester—for each term and semester of the course; and

(d) in any case—the holder achieves an academic result that is certified by the education provider to be at least satisfactory:

(i) for a course that runs for less than a semester—for the course; or

(ii) for a course that runs for at least a semester—for each term or semester (whichever is shorter) of the course.

(4) In this item: student visa means a visa described in the Migration Regulations 1994 as a Student (Temporary) (Class TU) visa.

(5) Other expressions used in subitem (3) that are defined in the Migration Regulations 1994 have the same meaning as in those regulations, as in force from time to time.

(6) After this item commences, the Minister may cancel a visa under section 116 of the Migration Act 1958, on the ground that the Minister


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is satisfied that the condition set out in subitem (3) of this item has not been complied with, even if some or all of the non-compliance happened before this item commenced.

Migration Legislation Amendment (Integrity of Regional Migration Schemes) Act 2001 (No. 33, 2001)

4 Application provision

The amendment made by item 3 of Schedule 1 applies to regional sponsored employment visas granted after the commencement of this section, as a result of applications made after the commencement of this section.

Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (No. 58, 2001)

Schedule 1

20 Transitional—pending acts If:

(a) an act is done before the commencement of this item; and (b) that act is done under a provision of the Migration Act 1958

that is subsequently amended by this Schedule; that act is taken on and after that commencement to be an act done under that provision as amended by this Schedule.

Border Protection (Validation and Enforcement Powers) Act 2001 (No. 126, 2001)

4 Definitions

In this Part:

Commonwealth officer includes a person who: (a) is in the service or employment of the Commonwealth or an

authority of the Commonwealth; or



(b) holds or performs the duties of any office or position under a law of the Commonwealth; or

(c) is a member of the Australian Defence Force.

validation period means the period starting on 27 August 2001 and ending at the beginning of the day on which this Act commences.

vessel has the same meaning as in the Migration Act 1958.

5 Action to which this Part applies

This Part applies to any action taken during the validation period by the Commonwealth, or by a Commonwealth officer, or any other person, acting on behalf of the Commonwealth, in relation to:

(a) the MV Tampa; or (b) the Aceng; or (c) any other vessel carrying persons in respect of whom there

were reasonable grounds for believing that their intention was to enter Australia unlawfully; or

(d) any person who was on board a vessel mentioned in paragraph (a), (b) or (c) at any time during the validation period (whether or not the action was taken while the person was on board the vessel).

6 Action to which this Part applies taken to be lawful

All action to which this Part applies is taken for all purposes to have been lawful when it occurred.

7 No proceedings in respect of action to which this Part applies

(1) Proceedings, whether civil or criminal, may not be instituted or continued in any court, in respect of action to which this Part applies, against:

(a) the Commonwealth; or (b) a Commonwealth officer; or (c) any other person who acted on behalf of the Commonwealth

in relation to the action.

(2) This section applies to: (a) the institution of proceedings on or after the day on which

this Act receives the Royal Assent; and


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(b) the continuation, on or after the day on which this Act receives the Royal Assent, of proceedings that were instituted on or before that day.

8 Compensation for acquisition of property

(1) If: (a) this Part would result in an acquisition of property; and (b) any provision of this Part would not be valid, apart from this

section, because a particular person has not been compensated;

the Commonwealth must pay that person: (c) a reasonable amount of compensation agreed on between the

person and the Commonwealth; or (d) failing agreement—a reasonable amount of compensation

determined by a court of competent jurisdiction.

(2) Any damages or compensation recovered, or other remedy given, in a proceeding begun otherwise than under this section must be taken into account in assessing compensation payable in a proceeding begun under this section and arising out of the same event or transaction.



9 Jurisdiction of High Court

Nothing in this Part is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

Migration Amendment (Excision from Migration Zone) Act 2001 (No. 127, 2001)

4 Application of amendments

The amendments made by this Act apply to a visa application made after the excision time for the excised offshore place concerned.



Example: If a person becomes an offshore entry person by entering Australia at Christmas Island, then the amendments apply to any visa application made by the person after 2 pm on 8 September 2001 by legal time in the Australian Capital Territory.

Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (No. 128, 2001)


The amendment made by item 7 of Schedule 1 applies to: (a) the institution of proceedings on or after the day on which

this Act receives the Royal Assent; and (b) the continuation, after the day on which this Act receives the

Royal Assent, of proceedings that were instituted before that day, being proceedings instituted after the excision time for the excised offshore place concerned.

Example: Proceedings of the kind mentioned in section 494AA of the Migration Act are instituted, before the day on which this Act receives the Royal Assent, in relation to a person who became an offshore entry person by entering Australia at Christmas Island. Those proceedings cannot be continued after the day on which this Act receives the Royal Assent.


Schedule 1


(1) The amendments made by items 1 and 3 apply in relation to proceedings (including applications for leave to appeal or other appeal proceedings) begun after this Part commences.

(2) The amendment made by item 2 applies to matters remitted to the Federal Court after this Part commences.

(3) The amendment made by item 4 applies to decisions made after this Part commences.


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(1) The amendments made by this Part apply to a proceeding if the application to commence the proceeding is filed in a court on or after 14 March 2000.

(2) However, the amendments do not apply: (a) if the relevant court began the substantive hearing of the

proceeding before this Part commenced; or (b) to an application for leave to appeal, or any other appeal

proceeding, filed on or after 14 March 2000 if the application to commence the original court proceeding was filed before 14 March 2000.

8 Transitional—proceedings that contravene new section 486B

(1) If: (a) a proceeding was begun before this Part commences; and (b) section 486B of the Migration Act 1958, as amended by this

Part, applies to the proceeding (see item 7); and (c) the proceeding contravenes that section when this Part

commences; the court must treat the proceeding as if the court had lacked jurisdiction to hear the proceeding when it was begun.

(2) Despite any other time limit, a person who has an interest in such a proceeding may commence a fresh proceeding in relation to the matter concerned within 28 days after this Part commences, so long as the person complies with the Migration Act 1958, as amended by this Part, and all other laws relating to such proceedings (including a law relating to standing or requiring a fee to be paid).

(3) However, subitem (2) does not apply to a person in respect of a proceeding if item 9 applies to the proceeding.

9 Transitional—proceedings that contravene new section 486C If:

(a) a proceeding was begun before this Part commences; and



(b) section 486C of the Migration Act 1958, as amended by this Part, applies to the proceeding (see item 7); and

(c) the proceeding contravenes that section when this Part commences;

the court must treat the proceeding as if the court had lacked jurisdiction to hear the proceeding when it was begun.

10 Transitional—refund of application fees

(1) If: (a) a person has paid a fee to a court in respect of a proceeding;

and (b) because of the operation of item 8 or 9, the proceeding does

not continue; then, on application, the Commonwealth must refund the fee to the person.

Note: Section 28 of the Financial Management and Accountability Act 1997 contains a standing appropriation for the refund of such fees.

(2) If the fee was paid in respect of a proceeding brought on behalf of more than one person, then the Commonwealth must refund the fee to a person authorised in writing by all such persons to receive the refund.

11 Transitional—regulations Despite subsection 12(2) of the Legislative Instruments Act 2003, a regulation made for the purposes of paragraph 486B(7)(a) or (d) or subparagraph 486C(2)(c)(iv) of the Migration Act 1958, as amended by this Part, may provide that the regulation is taken to have had effect from the beginning of 14 March 2000.

Schedule 2

7 Application of amendment The amendment made by item 6 applies in relation to cancellations of visas under section 128 that take place after the commencement of that item.


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Schedule 1

7 Application of amendment—Subdivision AL of Division 3 of Part 2 of the Migration Act 1958 Subdivision AL of Division 3 of Part 2 of the Migration Act 1958 (other than section 91X) applies in relation to:

(a) an application for a protection visa made after the commencement of this item; and

(b) an application for a protection visa made before the commencement of this item, where the visa was neither granted, nor refused, before the commencement of this item; and

(c) an application for a protection visa made before the commencement of this item, where:

(i) a decision to refuse to grant the visa was made before that commencement; and

(ii) an application for review of that decision is or was made to the Refugee Review Tribunal or the Administrative Appeals Tribunal (whether before, at or after that commencement); and

(iii) the Refugee Review Tribunal or the Administrative Appeals Tribunal made a decision on that review after that commencement.

8 Application of amendment—section 91X of the Migration Act 1958 Section 91X of the Migration Act 1958 applies in relation to a proceeding that is instituted after the commencement of this item.

9 Application of amendment—section 501J of the Migration Act 1958 Section 501J of the Migration Act 1958 applies in relation to a decision of the Administrative Appeals Tribunal, whether made before, at or after the commencement of this item.



10 Application of amendment—section 501K of the Migration Act 1958 Section 501K of the Migration Act 1958 applies in relation to a review, where the application for review was made after the commencement of this item.

Migration Legislation Amendment (Judicial Review) Act 2001 (No. 134, 2001)

Schedule 1

8 Application

(1) If an application for judicial review of a decision under the Migration Act 1958 is lodged before the commencement of this Schedule, the Migration Act 1958, the Administrative Appeals Tribunal Act 1975 and the Administrative Decisions (Judicial Review) Act 1977, as in force immediately before that commencement, apply in respect of the application, and in respect of the review, as if this Schedule had not been enacted.

(2) The Migration Act 1958 and the Administrative Decisions (Judicial Review) Act 1977, as amended by this Schedule, apply in respect of judicial review of a decision under the Migration Act 1958 if:

(a) the decision was made on or after the commencement of this Schedule; or

(b) the decision: (i) was made before the commencement of this Schedule;

and (ii) as at that commencement, an application for judicial

review of the decision had not been lodged.

(3) A reference in subitem (1) or (2) to an application for judicial review of a decision is a reference to:

(a) an application for review of the decision under: (i) section 44 of the Administrative Appeals Tribunal Act

1975; or (ii) Part 8 of the Migration Act 1958; or (iii) the Administrative Decisions (Judicial Review ) Act

1977; or


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(b) an application for a writ of mandamus, prohibition or certiorari or an injunction or a declaration in respect of the decision under:

(i) section 75 of the Constitution; or (ii) section 39B or 67C of the Judiciary Act 1903.

(4) The amendments made by items 7A and 7B apply to decisions made after the commencement of those items.

(5) The amendments made by items 7C and 7D apply in relation to proceedings that are commenced after the commencement of those items.

Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001 (No. 157, 2001)

Schedule 1

30 Application of amendments The amendments of the Migration Act 1958 made by this Schedule apply in relation to:

(a) an application made under section 476 of that Act on or after the commencement of this item for review of a judicially-reviewable decision made on or after the commencement of this item; and

(b) an application made under subsection 477(1) of that Act on or after the commencement of this item in respect of a failure to make a judicially-reviewable decision that ought reasonably to have been made in a period that ends on or after the commencement of this item; and

(c) an application made under subsection 477(2) of that Act on or after the commencement of this item in respect of a failure to make a judicially-reviewable decision that is required to be made in a period that ends on or after the commencement of this item.



Schedule 3

18 Application of amendments The amendments of the Migration Act 1958 made by this Schedule apply in relation to applications made under section 477 of that Act after the commencement of this item.

Schedule 4

9 Application of amendments made by items 1, 2 and 3 The amendments of the Migration Act 1958 made by items 1, 2 and 3 of this Schedule apply in relation to proceedings instituted after the commencement of this item.

10 Application of amendments made by items 4, 5, 6, 7 and 8 The amendments of the Migration Act 1958 made by items 4, 5, 6, 7 and 8 of this Schedule apply in relation to proceedings instituted after the commencement of this item.

Schedule 5

2 Application of amendment The amendment of the Migration Act 1958 made by this Schedule applies in relation to proceedings instituted after the commencement of this item.


Schedule 1

8 Application provision—automatic continuation of registration The amendment made by item 7 applies to:

(a) any registration application made after the commencement of this item; and


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(b) any registration application made before the commencement of this item, if the registered agent who made the application was still a registered agent immediately before the commencement of this item.

17 Application provision—disciplining former registered agents The amendments made by items 9 to 16 apply to:

(a) any complaint about a person made after the commencement of this item in relation to his or her provision of immigration assistance before or after the commencement of this item; and

(b) any complaint about a person made before the commencement of this item, if the person was a registered agent immediately before the commencement of this item.

Migration Legislation Amendment (Procedural Fairness) Act 2002 (No. 60, 2002)

Schedule 1

7 Application

(1) The amendment made by item 1 applies in relation to any application for a visa made on or after the commencement of that item.

(2) The amendment made by item 2 applies in relation to any cancellation of a visa under section 109 of the Migration Act 1958 on or after the commencement of that item, where a notice in relation to the cancellation was given under section 107 of that Act on or after that commencement.

(3) The amendment made by item 3 applies in relation to any cancellation of a visa under section 116 of the Migration Act 1958 on or after the commencement of that item, where a notice in relation to the cancellation was given under section 119 of that Act on or after that commencement.

(4) The amendment made by item 4 applies in relation to any cancellation of a visa under section 128 of the Migration Act 1958 on or after the commencement of that item.



(5) The amendments made by items 5 and 6 apply in relation to any application for review made on or after the commencement of those items.

8 Relationship with section 474 of the Migration Act 1958

The amendments made by items 1 to 6 are not to be taken to limit the scope or operation of section 474 of the Migration Act 1958 in relation to anything done, or omitted to be done, in relation to any matter dealt with in any provision that is taken to be an exhaustive statement of the requirements of the natural justice hearing rule by a section of that Act that is inserted by one of those items.

Security Legislation Amendment (Terrorism) Act 2002 (No. 65, 2002)

Schedule 1

18 Saving of Proclamations A Proclamation that was in force for the purpose of paragraph 24(1)(d) of the Crimes Act 1914 immediately before the commencement of this item has effect, after that commencement, as if it were a Proclamation that was in force for the purpose of paragraph 80.1(1)(e) of the Criminal Code.

Crimes Legislation Enhancement Act 2003 (No. 41, 2003)

Schedule 3

42 Saving provision

(1) The amendments made by this Schedule do not invalidate: (a) an instrument made under, or referring to, a Part of the

Crimes Act 1914 whose heading is repealed and substituted by this Schedule; or

(b) anything done under such an instrument or such a Part.

(2) Subitem (1) has effect whether the instrument was made, or the thing was done, before or after this Act received the Royal Assent.


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Migration Legislation Amendment (Protected Information) Act 2003 (No. 75, 2003)

Schedule 1

7 Application—pre-commencement proceedings Sections 503B and 503C of the Migration Act 1958 apply in relation to proceedings before the Federal Court or the Federal Magistrates Court, whether those proceedings were instituted before, on or after the commencement of this item.

8 Application—section 503D of the Migration Act 1958

(1) Section 503D of the Migration Act 1958 applies to: (a) agency details in relation to protected information if the

information is given to an authorised migration officer on or after the commencement of this item; and

(b) agency details in relation to protected information given to an authorised migration officer before the commencement of this item if:

(i) the details or information is the subject of a request for access under the Freedom of Information Act 1982; and

(ii) no decision under the Freedom of Information Act 1982 in respect of the request has been made, or has been taken to be made, before the commencement of this item; and

(c) agency details in relation to protected information given to an authorised migration officer before the commencement of this item if the details or information is the subject of a process for the production of documents that has not been completed or complied with before the commencement of this item; and

(d) agency details in relation to protected information given to an authorised migration officer before the commencement of this item if, after the commencement of this item, the details or information becomes either:

(i) the subject of a request for access under the Freedom of Information Act 1982; or

(ii) the subject of a process for the production of documents.



(2) In this item: process for the production of documents includes discovery and a subpoena for production of documents. protected information means information that is:

(a) communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information; and

(b) relevant to the exercise of a power under section 501, 501A, 501B or 501C.

Migration Amendment (Duration of Detention) Act 2003 (No. 90, 2003)

Schedule 1

2 Existing orders unaffected Subsections 196(4) to (7) of the Migration Act 1958 as added by item 1 do not affect the validity of any order made by a court before the commencement of this Schedule.

Migration Legislation Amendment (Sponsorship Measures) Act 2003 (No. 99, 2003)

Schedule 2

2 Application The amendment made by item 1 applies to decisions to refuse to grant a visa made on or after the commencement of the item.


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Migration Legislation Amendment (Identification and Authentication) Act 2004 (No. 2, 2004)

Schedule 1

35 Review of operation of this Act

(1) The Minister must cause an independent review of the operation of the amendments made by this Act to be undertaken as soon as possible after the third anniversary of the commencement of this Schedule.

(2) A person who undertakes the review must give the Minister a written report of the review.

(3) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.

(4) In this item: independent review means a review undertaken by persons who:

(a) in the Minister’s opinion, possess appropriate qualifications to undertake the review; and

(b) include a nominee of the Attorney-General and a nominee of the Privacy Commissioner.

Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 (No. 48, 2004)

Schedule 1

172 Application—relation by employment The amendments made by items 9 and 10 apply in relation to the consideration of registration applications made after the commencement of those items (regardless of whether the engagements occurred before or after that commencement).



173 Application—infringement notices The amendments made by items 13 and 171 apply in relation to all offences (whether alleged to have been committed before or after those items commence) in respect of which no penalty has been imposed at the time of that commencement.

173A Application—list of former registered migration agents The amendment made by item 38A applies in relation to persons ceasing to be registered migration agents either before or after the commencement of that item.

174 Application—removal of disciplinary details

The amendment made by item 39 applies in relation to details entered on the Register either before or after the commencement of that item.

175 Transitional—removal of disciplinary details

(1) This item applies in relation to: (a) particulars of a caution given to a registered migration agent

that had been on the Register for at least 12 months before the commencement of this item; and

(b) particulars of a suspension of a registered migration agent’s registration that had been on the Register for at least 5 years before the commencement of this item.

(2) The Migration Agents Registration Authority must remove the particulars from the Register within 28 days after the commencement of this item.

175A Application—proceedings finalised about previous registration Subsection 288(6A) of the Migration Act 1958, as inserted by item 40, applies in relation to suspension or cancellation decisions made after the commencement of that item.

176 Application—withdrawal of applications Subsection 288(7) of the Migration Act 1958, as inserted by item 40, applies in relation to registration applications made either before or after the commencement of that item.


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177 Application—statutory declarations and answering of questions Section 288B of the Migration Act 1958, as inserted by item 40, applies in relation to registration applications made after the commencement of that item.

178 Application—registration requirements The amendments made by items 47 and 48 apply in relation to registration applications made after the commencement of those items (regardless of whether the previous registration occurred before or after that commencement).

179 Application—disciplinary action The amendments made by items 49 and 50 apply in relation to the consideration of registration applications made either before or after the commencement of those items (regardless of whether the disciplinary action occurred before or after that commencement).

179A Application—automatic continuation of registration The amendments made by items 46A and 63 apply in relation to expiry days that occur after the commencement of those items. However, those amendments do not apply in relation to suspension or cancellation decisions made before that commencement.

179B Application—no registration if suspension not completed The amendment made by item 55A applies in relation to registration applications made after the commencement of that item. However, the amendment does not apply in relation to suspension decisions made before that commencement.

179C Application—no registration if cancellation in past 5 years The amendment made by item 56 applies in relation to registration applications made after the commencement of that item (regardless of whether the cancellation occurred before or after that commencement).



179D Application—professional indemnity insurance The amendment made by item 58A applies in relation to registration applications made after the commencement of that item.

180 Application—cautions The amendment made by item 71 applies in relation to cautions given after the commencement of that item.

181 Application—disciplinary decisions

The amendments made by items 72, 74 and 137 apply in relation to decisions made after the commencement of those items.

182 Application—informing clients about disciplinary decisions

Section 305B of the Migration Act 1958, as inserted by item 73, applies in relation to decisions made either before or after the commencement of that item.

183 Application—high visa refusal rates

The amendments made by items 75 and 142 apply in relation to applications for visas, or applications for review, made after the commencement of those items.

184 Application—production of documents The amendments made by items 104, 108, 109, 112, 113, 116, 117, 119, 121 and 125 apply in relation to documents created either before or after the commencement of those items.

185 Application—failure to comply with notice The amendments made by items 115 and 116 apply in relation to notices given after the commencement of those items.

186 Application—notification obligations The amendment made by item 145 applies in relation to events occurring after the commencement of that item.


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187 Application—notification of giving of immigration assistance

The amendment made by item 149 applies in relation to applications for visas, or applications for review, made after the commencement of that item.

188 Application—disclosure of personal information

(1) The amendment made by item 166 applies in relation to information obtained either before or after the commencement of that item.

(2) Sections 332F and 332G of the Migration Act 1958, as inserted by item 170, apply in relation to information obtained either before or after the commencement of that item.

189 Application—removal of disciplinary details

Sections 332C and 332D of the Migration Act 1958, as inserted by item 170, apply in relation to details made available by electronic means either before or after the commencement of that item.

190 Application—protection from civil proceedings Section 332E of the Migration Act 1958, as inserted by item 170, applies in relation to acts done after the commencement of that item.

191 Application—giving of notices Section 332H of the Migration Act 1958, as inserted by item 170, applies in relation to notices given after the commencement of that item.

Migration Amendment (Detention Arrangements) Act 2005 (No. 79, 2005)

Schedule 1

20 Application of amendment made by item 10 The amendment made by item 10 applies to all persons in detention under section 189 of the Migration Act 1958 after the commencement of that item (including persons who are already in detention under that section when that item commences).



21 Application of amendment made by item 11 The amendment made by item 11 applies to all persons who, after the commencement of that item, are required or permitted by section 189 of the Migration Act 1958 to be detained, or are kept in detention under that section (including persons who are already in detention under that section when that item commences).

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Act 2005 (No. 103, 2005)

Schedule 2

9 Saving of enforcement visas The amendments made by this Part do not affect the validity of an enforcement visa granted before the commencement of the amendments.

12 Saving of enforcement visas The amendments made by this Part do not affect the validity of an enforcement visa granted before the commencement of the amendments.

Migration Litigation Reform Act 2005 (No. 137, 2005)

Schedule 1

40 Definitions In this Part: commencement day means the day on which this Schedule commences. migration decision has the same meaning as in the Migration Act 1958, as amended by Part 1 of this Schedule. migration litigation has the same meaning as in Part 8B of the Migration Act 1958, as amended by Part 1 of this Schedule. substantive proceedings has the same meaning as in paragraph 503B(1)(b) of the Migration Act 1958.


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41 Application of item 1 and items 11 to 36 The amendments made by item 1 and items 11 to 36 of this Schedule apply to proceedings in relation to a migration decision that are commenced on or after the commencement day.

42 Transitional provision—migration decision made before commencement day Where proceedings are commenced on or after the commencement day in relation to a migration decision made before the commencement day, and actual notification of the decision is given before the commencement day:

(a) section 477 of the Migration Act 1958 applies as if the actual notification of the decision took place on the commencement day; and

(b) section 477A of that Act applies as if the actual notification of the decision took place on the commencement day; and

(c) section 486A of that Act applies as if the actual notification of the decision took place on the commencement day.

46 Application of item 37 The amendment made by item 37 of this Schedule applies in relation to the commencement of proceedings on or after the commencement day.

47 Application of item 38 The amendment made by item 38 of this Schedule applies to migration litigation commenced on or after the commencement day.

48 Application of item 39

(1) The amendment made by item 39 of this Schedule applies in relation to substantive proceedings within the original jurisdiction of the Federal Magistrates Court, or Federal Court, commenced on or after the commencement day.

(2) The amendment made by item 39 of this Schedule applies in relation to substantive proceedings within the appellate jurisdiction of the Federal Court if the proceedings from which the appeal arose were commenced on or after the commencement day.



Migration and Ombudsman Legislation Amendment Act 2005 (No. 141, 2005)

Schedule 1


(1) The amendments made by items 1 and 3 of this Schedule apply only to applications made on or after the commencement of those items.

(2) The amendments made by items 2 and 4 of this Schedule apply in relation to:

(a) applications made on or after the commencement of this Schedule; and

(b) applications made before the commencement of this Schedule that, at the date of commencement, have not been decided.

Schedule 4

20 Application The amendments made by this Schedule apply to instruments made on or after the commencement of this Schedule.

Migration Amendment (Employer Sanctions) Act 2007 (No. 7, 2007)

Schedule 1

2 Application The amendment made by item 1 of this Schedule applies if:

(a) in a case where a person is referred for work in circumstances where an offence would be created by the amendment—the referral is made on or after the commencement of this Schedule; or

(b) in any other case—a person begins, on or after the commencement of this Schedule, to be allowed to do work in circumstances where an offence would be created by the amendment.


Table A


Schedule 2

5 Application The amendment made by item 4 of this Schedule applies to activities engaged in on or after the commencement of this Schedule.

Migration Amendment (Border Integrity) Act 2007 (No. 62, 2007)

Schedule 1

4 Application The amendments of the Migration Act 1958 made by this Schedule apply to declarations made under subsection 33(9) of that Act on or after the commencement of this item.

Schedule 2

35 Application The amendments of the Migration Act 1958 made by this Schedule apply in relation to:

(a) persons who enter Australia; and (b) persons who go outside the migration zone; and (c) persons who travel, or appear to intend to travel, from a port;

and (d) persons who are on board, or about to board, vessels that are

to leave Australia (whether or not after calling at places in Australia);

on or after the commencement of this item.



36 Transitional—instruments

(1) The following table has effect:

Regulations in force immediately before commencement Item If, immediately before the

commencement of this subitem, regulations made for the purposes of the following provision of the Migration Act 1958, were in force ...

the regulations are, on the commencement of this subitem, taken to have been made for the purposes of the following provision of that Act ...

1 paragraph 166(1)(aa) paragraph 166(1)(c) 2 paragraph 166(1AA)(d) paragraph 166(5)(d) 3 subsection 166(1C) subsection 166(8) 4 subsection 166(2) subsection 166(3)

(2) The amendment made by item 9 of this Schedule does not affect the continuity of any regulations made for the purposes of paragraph 166(1)(b) of the Migration Act 1958 that were in force immediately before the commencement of this subitem.

(3) Subject to subitem (1), an amendment made by this Schedule does not affect the continuity of any other regulations made for the purposes of Division 5 of Part 2 of the Migration Act 1958, or a provision of that Division, that was in force immediately before the commencement of this subitem.


Table A


Migration Legislation Amendment (Information and Other Measures) Act 2007 (No. 63, 2007)

Schedule 1

61 Application The amendments made by items 1 to 59 of this Schedule apply to access to, or disclosure of, identifying information that occurs after those items commence.

64 Transitional—Authorisations

(1) This item applies to an authorisation that: (a) is in force under section 336D of the Migration Act 1958

immediately before this item commences; and (b) specifies that access to identifying information is authorised

for the purpose of making decisions under: (i) the Migration Act 1958 or the regulations made under

that Act; or (ii) the Australian Citizenship Act 1948 or the regulations

made under that Act.

(2) The authorisation has effect on and after that commencement as if it were an authorisation in force under that section that specified that access to identifying information is authorised for the purposes of that Act or the regulations made under that Act.

65 Application The amendments made by items 62 and 63 of this Schedule apply to access to, or disclosure of, identifying information that occurs after those items commence.

71 Transitional—Authorisations

(1) This item applies to an authorisation that: (a) is in force under section 336D of the Migration Act 1958

immediately before this item commences; and (b) specifies that access to identifying information is authorised

for the purpose of making decisions under:



(i) the Migration Act 1958 or the regulations made under that Act; or

(ii) the Australian Citizenship Act 1948 or the regulations made under that Act; or

(iii) the Australian Citizenship Act 2007 or the regulations made under that Act.

(2) The authorisation has effect on and after that commencement as if it were an authorisation in force under that section that specified that access to identifying information is authorised for the purposes of that Act or the regulations made under that Act.

72 Application The amendment made by item 68, 69 or 70 of this Schedule applies to access to, or disclosure of, identifying information that occurs after that item commences.

Schedule 2

2 Application provision The amendment of the Migration Act 1958 made by this Schedule applies in relation to any request made to the Department for access to a movement record:

(a) by the person to whom the record relates; or (b) by the duly appointed agent of that person;

on or after the commencement of this Schedule.

Education Services for Overseas Students Legislation Amendment Act 2007 (No. 70, 2007)

Schedule 1

26 Application of items 24 and 25 The amendments made by items 24 and 25 apply in relation to a notice sent under section 20 the Education Services for Overseas Students Act 2000 after the commencement of this item.


Table A


Migration Amendment (Review Provisions) Act 2007 (No. 100, 2007)

Schedule 1

33 Application The amendments made by this Schedule apply to an application made, after this item commences:

(a) under section 347 of the Migration Act 1958 for review of an MRT-reviewable decision; or

(b) under section 412 of the Migration Act 1958 for review of an RRT-reviewable decision.


Schedule 1

37 Application

(1) The amendments made by items 6 and 7 of this Schedule apply in relation to a decision on a review if:

(a) before the day on which those items commence, written notice of the day on which, and the time and place at which, the decision on the review is to be handed down has not been given by the Migration Review Tribunal to the applicant and the Secretary; or

(b) the decision on the review is made on or after the day on which those items commence.

Note: For a transitional provision, see item 38.

(2) The amendments made by items 13 and 26 of this Schedule apply in respect of:

(a) an application for a review of a decision that is made before the day on which those items commence, if the application has not been decided before that day; and

(b) an application for a review of a decision that is made on or after the day on which those items commence.



(3) The amendments made by items 19 and 20 of this Schedule apply in relation to a decision on a review if:

(a) before the day on which those items commence, written notice of the day on which, and the time and place at which, the decision on the review is to be handed down has not given by the Refugee Review Tribunal to the applicant and the Secretary; or

(b) the decision on the review is made on or after the day on which those items commence.

Note: For a transitional provision, see item 39.

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

(1) This item applies if, before the day on which items 6 and 7 of this Schedule commence, written notice of the day on which, and the time and place at which, a decision on a review is to be handed down is given by the Migration Review Tribunal to the applicant and the Secretary under section 368A of the Migration Act 1958.

(2) Despite the amendment of section 368 of that Act made by item 6 of this Schedule and the repeal of sections 368A to 368C of that Act made by item 7 of this Schedule, those sections continue to apply, after the day on which those items commence, in relation to the decision on the review.

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

(1) This item applies if, before the day on which items 19 and 20 of this Schedule commence, written notice of the day on which, and the time and place at which, a decision on a review is to be handed down is given by the Refugee Review Tribunal to the applicant and the Secretary under section 430A of the Migration Act 1958.

(2) Despite the amendment of section 430 of that Act made by item 19 of this Schedule and the repeal of sections 430A to 430C of that Act made by item 20 of this Schedule, those sections continue to apply, after the day on which those items commence, in relation to the decision on the review.


Table A


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

The person holding office as the Deputy Principal Member of the Refugee Review Tribunal under section 459 of the Migration Act 1958, as in force immediately before the commencement of items 28 and 29 of this Schedule, is taken to have been duly appointed as the Deputy Principal Member of the Refugee Review Tribunal by the Governor-General under section 459 of that Act, as amended by this Schedule, for the balance of the person’s term of appointment that remained immediately before the day on which those items commence.

Schedule 4

6 Application

(1) The amendment made by item 2 of this Schedule applies in respect of a person who has been granted:

(a) a bridging visa (within the meaning of the Migration Act 1958); or

(b) a criminal justice visa (within the meaning of that Act); on or after the day on which that item commences.

(2) The amendment made by item 4 of this Schedule applies in relation to an authorised recipient, whether the notice under subsection 494D(1) of the Migration Act 1958 in relation to the authorised recipient is given before, on or after the day on which that item commences.

(3) The amendment made by item 5 of this Schedule applies in respect of a decision to cancel a visa that is made under the Migration Act 1958 on or after the day on which that item commences.

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

(1) To avoid doubt, any decision made or purported to have been made: (a) by the Minister under section 501, 501A, 501B, 501C or

501F of the Migration Act 1958 (as in force at any time on or after 1 September 1994 and before the day on which this item commences) before the day on which item 5 of this Schedule commences; or



(b) by a delegate of the Minister under section 501 of the Migration Act 1958 (as in force at any time on or after 1 September 1994 and before the day on which this item commences) before the day on which item 5 of this Schedule commences;

to cancel a transitional (permanent) visa or a transitional (temporary) visa is as valid, and is taken always to have been as valid, as it would have been if the transitional (permanent) visa or transitional (temporary) visa were a visa that had been granted.

(2) In subitem (1): transitional (permanent) visa means a transitional (permanent) visa referred to in the Migration Reform (Transitional Provisions) Regulations. transitional (temporary) visa means a transitional (temporary) visa referred to in the Migration Reform (Transitional Provisions) Regulations.

The following provisions commence on 15 March 2009 unless proclaimed earlier:

Schedule 2

15 Application—amendments to section 245L Subject to the regulations, the amendments of section 245L of the Migration Act 1958 made by this Part apply in relation to journeys begun on or after the commencement of this item.

20 Application The amendments made by items 18 and 19 of this Schedule apply in relation to persons who go outside the migration zone on or after the commencement of those items.

Schedule 3

2 Application The amendment made by item 1 of this Schedule applies to a non-citizen child born in Australia on or after 1 September 1994.


Table A


6 Application The amendment made by item 5 of this Schedule applies to a non-citizen child born in Australia on or after 1 September 1994 who is taken to have been granted a visa or visas under section 78 of the Migration Act 1958.

20 Application The amendments made by items 18 and 19 of this Schedule apply in relation to all applications for visas made after the commencement of those items.

23 Application Section 48 of the Migration Act 1958, as amended by item 22 of this Schedule, applies to all applications for visas made after the commencement of that item (the commencement time), regardless of:

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

(b) whether the travel mentioned in subsection 48(3) of that Act took place before or after the commencement time.

25 Application The amendment made by item 24 of this Schedule applies in relation to all bridging visas that are held at any time after the commencement of that item, regardless of whether the bridging visas were granted before or after that time.

Migration Amendment (Notification Review) Act 2008 (No. 112, 2008)

Schedule 1

29 Application The amendments made by this Schedule apply to a document given, dispatched or transmitted on or after the day on which this item commences.

Notes to the Migration Act 1958 Renumbering Table 1


Table showing Parts, Divisions and sections of the Migration Act 1958 after renumbering by the Migration Legislation Amendment Act 1989 (No. 59, 1989).

Renumbering Table 1 NOTE—This Table does not form part of the Migration Act 1958 and is printed for convenience of reference only.

Old number New number

Part I Part 1 Section Section 1 1 2 2 4 3 4A 3AA 5 4 5A 5 5B 6 5C 7 5D 8 5E 9 5F 10 5G 11 5H 12 5J 13 Part II Part 2 Division 1 Division 1 Section Section 6 14 7 15 8 16 9 17 10 18 11 19 11A 20 11B 21 11C 22


Division 1A Division 2 Subdivision A Subdivision A Section Section 11D 23 11E 24 11F 25 11G 26 11H 27 11J 28 Subdivision B Subdivision B Section Section 11K 29 11L 30 11M 31 11N 32 Division 1B Division 3 Section Section 11P 33 11Q 34 11R 35 11S 36 11T 37 11U 38 11V 39 11W 40 11X 41 11Y 42 11Z 43 11ZA 44 11ZB 45 11ZC 46


Renumbering Table 1



Section Section 11ZD 47 11ZE 48 11ZF 49 11ZG 50 Division 1C Division 4 Section Section 11ZH 51 11ZJ 52 11ZK 53 11ZL 54 Division 2 Division 5 Section Section 12 55 13 56 14 57 14A 58 17A 59 18 60 18A 61 19 62 20 63 21 64 21A 65 21B 66 21C 67 21D 68 21E 69 22 70 Division 3 Division 6 Section Section 23 71 23A 72 23B 73 24 74 26 75


Division 4 Division 7 Section Section 26A 76 27 77 28 78 29 79 30 80 31 81 31A 82 31B 83 Division 5 Division 8 Section Section 32 84 33 85 34 86 35 87 36 88 36A 89 37 90 37A 91 38 92 39 93 39A 94 40 95 41 96 42 97 43 98 44 99 45 100 Division 6 Division 9 Section Section 46 101 47 102 48 103 49 104 50 105




Division 7 Division 10 Section Section 53A 106 54 107 55 108 56 109 56A 110 57 111 58 112 59 113 60 114 Part III Part 3 Division 1 Division 1 Section Section 61 115 62 116 63 117 64 118 64A 119 64B 120 64C 121 Division 2 Division 2 Section Section 64D 122 Division 3 Division 3 Section Section 64E 123 64F 124 64G 125 64H 126 64J 127 Division 4 Division 4 Section Section 64K 128 64L 129 64M 130 64N 131 64P 132


Section Section 64Q 133 64R 134 Division 5 Division 5 Section Section 64S 135 64T 136 64U 137 64V 138 64W 139 64X 140 Division 6 Division 6 Section Section 64Y 141 64Z 142 64ZA 143 Division 7 Division 7 Section Section 64ZB 144 64ZC 145 64ZD 146 64ZE 147 64ZF 148 64ZG 149 64ZH 150 Part IIIA Part 4 Division 1 Division 1 Section Section 64ZJ 151 64ZK 152 64ZL 153 64ZM 154 64ZN 155 64ZP 156 64ZQ 157 64ZR 158 64ZS 159


Renumbering Table 1



Section Section 64ZT 160 64ZU 161 64ZV 162 64ZW 163 Division 2 Division 2 Section Section 64ZX 164 64ZY 165 64ZZ 166 Part IV Part 5 Section Section 65 167 65AA 168 65AB 169


Section Section 65A 170 66A 171 66B 172 66BA 173 66C 174 66D 175 66DA 176 66DB 177 66DC 178 66DD 179 66E 180 67 181 The Schedule The Schedule



Table showing Parts, Divisions and sections of the Migration Act 1958 after renumbering by the Migration Legislation Amendment Act 1994 (No. 60, 1994)

Renumbering Table 2 NOTE—This Table does not form part of the Migration Act 1958 and is printed for convenience of reference only. Old number New number

Part 1 Part 1 Section Section 1 1 2 2 3 3 3AA 3A 3A 4 4 5 4AA 6 5 7 6 8 7 9 8 10 10 11 12 12 Part 2 Part 2 Division 1 Division 1 Section Section 14 13 15 14 16 15 17 16 19 17 Division 1A Division 2 Section Section 22A 18 22B 19 22C 20 22D 21 22E 22


Section Section 22F 23 22G 24 22H 25 22J 26 22K 27 Division 2 Division 3 Subdivision A Subdivision A Section Section 23 28 24 29 25 30 26 31 26A 32 26AA 33 26AB 34 26AC 35 26B 36 26C 37 26D 38 26E 39 26F 40 26G 41 26H 42 26J 43 Subdivision AA Subdivision AA Section Section 26K 44 26L 45 26M 46


Renumbering Table 2



Section Section 26N 47 26P 48 26Q 49 26R 50 26S 51 Subdivision AB Subdivision AB Section Section 26T 52 26U 53 26V 54 26W 55 26X 56 26Y 57 26Z 58 26ZA 59 26ZB 60 26ZC 61 26ZD 62 26ZE 63 26ZEA 64 Subdivision AC Subdivision AC Section Section 26ZF 65 26ZG 66 26ZJ 67 26ZK 68 26ZKA (formerly 26ZH)

69

Subdivision AE Subdivision AE Section Section 26ZL 70 26ZM 71 Subdivision AF Subdivision AF Section Section 26ZN 72 26ZO 73 26ZP 74


Section Section 26ZPA 75 26ZQ 76 Subdivision AG Subdivision AG Section Section 26ZR 77 26ZS 78 26ZT 79 26ZU 80 26ZV 81 26ZW 82 27 83 28 84 Subdivision AH Subdivision AH Section Section 28A 85 28B 86 28C 87 28D 88 28E 89 28F 90 28G 91 Subdivision B Subdivision B Section Section 29 92 30 93 31 94 31A 95 32 96 Subdivision C Subdivision C Section Section 33 97 34 98 35 99 36 100 37 101 38 102 39 103




Section Section 40 104 41 105 42 106 43 107 44 108 45 109 46 110 47 111 48 112 49 113 50 114 50AA 115 Subdivision D Subdivision D Section Section 50AB 116 50AC 117 50AD 118 Subdivision E Subdivision E Section Section 50AE 119 50AF 120 50AG 121 50AH 122 50AI 123 50AJ 124 50AK 125 50AL 126 50AM 127 Subdivision F Subdivision F Section Section 50AN 128 50AO 129 50AP 130 50AQ 131 50AR 132 50AS 133


Subdivision G Subdivision G Section Section 50A 134 50B 135 50C 136 50D 137 Subdivision H Subdivision H Section Section 50E 138 50F 139 50G 140 Division 3 Division 4 Subdivision A Subdivision A Section Section 51 141 52 142 53 143 54 144 Subdivision B Subdivision B Section Section 54A 145 54B 146 Subdivision C Subdivision C Section Section 54C 147 54D 148 54E 149 54F 150 54G 151 54H 152 54HA 153 54HAA 154 Subdivision D Subdivision D Section Section 54HB 155 54HC 156 54HD 157 54HE 158


Renumbering Table 2



Section Section 54HF 159 54HG 160 54HH 161 Subdivision E Subdivision E Section Section 54HI 162 54HJ 163 54HK 164 Division 4 Division 5 Section Section 54HL 165 54HM 166 54HN 167 54HO 168 54HP 169 54HQ 170 54HR 171 54HS 172 54HT 173 54HU 174 54HV 175 Division 4B Division 6 Section Section 54J 176 54K 177 54L 178 54M 179 54N 180 54P 181 54Q 182 54R 183 54RA 184 54S 185 54T 186 54U 187


Division 4C Division 7 Section Section 54V 188 54W 189 54X 190 54Y 191 54Z 192 54ZA 193 54ZB 194 54ZC 195 54ZD 196 54ZE 197 Division 4D Division 8 Section Section 54ZF 198 54ZG 199 Division 5 Division 9 Section Section 55A 200 55 201 56 202 57 203 58 204 62 205 63 206 Division 5A Division 10 Section Section 64 207 65 208 66 209 66A 210 66B 211 66C 212 66D 213 66E 214 66F 215 66G 216 66GA 217




Section Section 66H 218 66J 219 66K 220 66L 221 67 222 68 223 69 224 Division 6 Division 11 Section Section 71 225 72 226 73 227 74 228 Division 7 Division 12 Subdivision A Subdivision A Section Section 76 229 77 230 77A 231 78 232 80 233 81 234 83 235 83AA 236 Subdivision B Subdivision B Section Section 83A 237 83B 238 83C 239 83D 240 83E 241 83F 242 83G 243 83H 244 83J 245


Division 8 Division 13 Section Section 84 246 85 247 86 248 87 249 88 250 90 251 91 252 93 253 94 254 95 255 96 256 97 257 98 258 99 259 100 260 100AA 261 Division 8A Division 14 Section Section 100B 262 100C 263 100D 264 100E 265 100F 266 100G 267 100H 268 Division 10 Division 15 Section Section 107 269 110 270 111 271 112 272 113 273 114 274


Renumbering Table 2



Part 2A Part 3 Division 1 Division 1 Section Section 114A 275 114B 276 114C 277 114D 278 114E 279 Division 2 Division 2 Section Section 114F 280 114G 281 114H 282 114J 283 114K 284 114L 285 Division 3 Division 3 Section Section 114M 286 114N 287 114P 288 114Q 289 114R 290 114S 291 114T 292 114U 293 114V 294 114W 295 114X 296 114Y 297 114Z 298 114ZA 299 114ZB 300 114ZC 301 114ZD 302 114ZE 303 114ZF 304 114ZG 305


Section Section 114ZH 306 Division 4 Division 4 Section Section 114ZJ 307 114ZK 308 114ZL 309 114ZM 310 114ZN 311 Division 5 Division 5 Section Section 114ZP 312 114ZQ 313 114ZR 314 Division 6 Division 6 Section Section 114ZS 315 114ZT 316 114ZU 317 114ZV 318 114ZW 319 114ZX 320 114ZY 321 114ZZ 322 114ZZA 323 114ZZB 324 114ZZC 325 114ZZD 326 114ZZE 327 114ZZF 328 114ZZG 329 114ZZH 330 114ZZJ 331 114ZZK 332 Division 7 Division 7 Section Section 114ZZL 333




Part 2B Part 4 Section Section 114ZZM 334 114ZZN 335 114ZZP 336 Part 3 Part 5 Division 1A Division 1 Section Section 115 337 Division 1 Division 2 Section Section 115A 338 115B 339 115C 340 115D 341 115DA 342 115E 343 115F 344 115G 345 Division 2 Division 3 Section Section 116 346 117 347 118 348 119 349 120 350 121 351 122 352 Division 3 Division 4 Section Section 123 353 124 354 125 355 126 356 127 357 Division 4 Division 5 Section Section 128 358


Section Section 129 359 130 360 131 361 131A 362 132 363 133 364 134 365 134A 366 134B 367 Division 5 Division 6 Section Section 135 368 136 369 Division 6 Division 7 Section Section 141 370 142 371 143 372 Division 7 Division 8 Section Section 144 373 145 374 146 375 147 376 148 377 149 378 150 379 Division 8 Division 9 Section Section 150A 380 150B 381 150C 382 150D 383 150E 384 150F 385 150G 386 150H 387


Renumbering Table 2



Section Section 150I 388 150J 389 150K 390 150L 391 150M 392 150N 393 Part 4 Part 6 Division 1 Division 1 Section Section 151 394 152 395 153 396 154 397 155 398 156 399 157 400 158 401 159 402 160 403 161 404 162 405 163 406 Division 2 Division 2 Section Section 164 407 165 408 166 409 Part 4A Part 7 Division 1 Division 1 Section Section 166A 410 Division 2 Division 2 Section Section 166B 411 166BA 412 166BAA 413 166BB 414


Section Section 166BC 415 166BD 416 166BE 417 166BF 418 166BG 419 Division 3 Division 3 Section Section 166C 420 166CA 421 166CB 422 Division 4 Division 4 Section Section 166D 423 166DA 424 Division 4 Division 4 Section Section 166DB 425 166DC 426 166DD 427 166DE 428 166DF 429 Division 5 Division 5 Section Section 166E 430 166EA 431 Division 6 Division 6 Section Section 166F 432 166FA 433 166FB 434 Division 7 Division 7 Section Section 166G 435 166GA 436 166GB 437 166GC 438 166GD 439




Section Section 166GE 440 166GF 441 Division 8 Division 8 Section Section 166H 442 166HA 443 166HB 444 166HC 445 166HD 446 166HE 447 166HF 448 166HG 449 166HH 450 166HI 451 166HJ 452 166HK 453 166HL 454 166HM 455 166HN 456 Division 9 Division 9 Section Section 166J 457 166JA 458 166JB 459 166JC 460 166JD 461 166JE 462 166JF 463 166JG 464 166JH 465 166JI 466 166JJ 467 166JK 468 166JL 469 166JM 470


Division 10 Division 10 Section Section 166K 471 166KA 472 166KB 473 Part 4B Part 8 Division 1 Division 1 Section Section 166L 474 Division 2 Division 2 Section Section 166LA 475 166LB 476 166LC 477 166LD 478 166LE 479 166LF 480 166LG 481 166LH 482 166LI 483 166LJ 484 166LK 485 166LL 486 Part 5 Part 9 Section Section 167 487 168 488 169 489 170 490 171 491 172 492 173 493 174 494 175 495 176 496 177 497


Renumbering Table 2



Section Section 178 498 179 499 180 500 180A 501 180B 502


Section Section 180C 503 181 504 182 505 183 506 The Schedule The Schedule