Migration Amendment Act 1992

Administered by Department of Home Affairs

Legislation au C2004A04315 Not in force Act

Legislation content

Migration Amendment Act 1992

No. 24 of 1992

 

An Act to amend the Migration Act 1958

[Assented to 6 May 1992]

The Parliament of Australia enacts:

Short title etc.

1.(1) This Act may be cited as the Migration Amendment Act 1992.

(2) In this Act, "Principal Act" means the Migration Act 19581.

Commencement

2.(1) Sections 1, 2, 3 and 7 commence on the day on which this Act receives the Royal Assent.

(2) Sections 4 and 6 commence on the 28th day after the day on which this Act receives the Royal Assent.

(3) Sections 5 and 8 commence on a day to be fixed by Proclamation.

(4) If the provisions referred to in subsection (3) do not commence within the period of 6 months commencing on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

3. After Division 4A of Part 2 of the Principal Act the following Division is inserted:


"Division 4B—Custody of certain non-citizens

Reason for Division

"54J. 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 custody until he or she:

(a) leaves Australia; or

(b) is given an entry permit.

Interpretation

"54K. In this Division:

'commencement' means the commencement of this Division;

'custody' means custody under this Act within the meaning of section 11, and includes being held in a processing area;

'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 December 1992; and

(b) has not presented a visa; and

(c) is in Australia; and

(d) has not been granted an entry permit; 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;

'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) an entry permit for the person.

Designated persons to be in custody

"54L.(1) Subject to subsection (2), after commencement, a designated person must be kept in custody.

"(2) A designated person is to be released from custody if, and only if, he or she is:

(a) removed from Australia under section 54P; or

(b) given an entry permit under section 34 or 115.

"(3) This section is subject to section 54Q.


Beginning of custody of certain designated persons

"54M.(1) If, immediately after commencement, a designated person is in a place described in paragraph 11(a) or a processing area, he or she then begins to be in custody for the…

Overview

The Migration Amendment Act 1992 is an Act of the Parliament of Australia designed to address the perceived national interest in the custody of certain non-citizens, particularly those who arrived in Australia by boat between 19 November 1989 and 1 December 1992, without presenting a visa. The primary policy objective of the Act is to ensure that these designated non-citizens remain in custody until they are either granted an entry permit or removed from Australia. The Act amends the Migration Act 1958 to mandate that designated non-citizens must be kept in custody, and it restricts courts from ordering their release. Additionally, the Act includes provisions for the removal of designated non-citizens from Australia under certain conditions, such as after a specified period of detention or if their refugee status application has been refused. The Act also contains transitional provisions to ensure continuity in the application of its provisions.

Scope and Application

The Migration Amendment Act 1992 amends the Migration Act 1958 to impose mandatory custody on certain non-citizens, referred to as "designated persons," who have been on a boat in the territorial sea of Australia between 19 November 1989 and 1 December 1992 and have not presented a visa. This Act applies to non-citizens who meet the specified criteria and are in Australia, including those born in Australia to a designated person. The application of this Act is not restricted by any other laws, except the Constitution, and it takes precedence over other conflicting provisions. The scope of the Act is limited to Australia's Commonwealth jurisdiction. The mandatory custody provisions cease to apply after 273 days of continuous custody. The Act also includes amendments to penalty provisions and other related sections of the Migration Act 1958.

Key Provisions

  • The Migration Amendment Act 1992 introduces significant changes to the Migration Act 1958, particularly concerning the custody and detention of certain non-citizens. Section 54L mandates that designated persons, those who have been on a boat in Australian territorial waters after 19 November 1989 but before 1 December 1992 and have not presented a visa, must be kept in custody until they leave Australia or are granted an entry permit. Section 54M stipulates that if a designated person is already in a detention facility or processing area immediately after the Act's commencement, they will begin to be in custody. If a designated person is not in custody post-commencement, an officer is authorised to detain them without a warrant and take necessary action to ensure they are kept in custody, as per section 54N. Furthermore, section 54P requires the removal of designated persons from Australia if they have been in the country for at least two months without an entry application or if their application has been refused and all appeals or reviews have been finalised.
  • The Act imposes several obligations on designated persons, primarily that they must remain in custody until they either leave Australia or are granted an entry permit. Officers are mandated to detain designated persons without a warrant if they are not already in custody and to take necessary actions to ensure their continued detention. Additionally, courts are prohibited from ordering the release of designated persons from custody, as per section 54R.
  • Breach of the provisions under this Act can result in severe consequences. While specific offences and penalties are detailed in Schedule 2, the Act generally imposes imprisonment terms for various violations. For instance, subsection 68(8) replaces fines and imprisonment terms with imprisonment for two years. Subsection 77(2) replaces fines and imprisonment with imprisonment for two years, and subsection 82(1) similarly imposes imprisonment for two years. These changes reflect a stricter enforcement approach aimed at ensuring compliance with the detention requirements for designated non-citizens.

Legal classification tags

Area of Law
Immigration & Refugee Law
Instrument
Amending Act
Concepts
Commencement Provisions
Prohibited Conduct
Enforcement Powers
Offence Provisions
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.