Migration Legislation Amendment Act (No. 6) 1995 (Cth)

Migration Legislation Amendment Act (No. 6) 1995

No. 102 of 1995

An Act to amend the Migration Act 1958,and for related purposes

[Assented to 18 September 1995]

The Parliament of Australia enacts:

Short title etc.

Short title

1.(1) This Act may be cited as the Migration Legislation Amendment Act (No. 6) 1995.

Principal Act

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

Commencement

General

2.(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.

Subsection 1(2) and sections 5, 8 and 9

(2) Subsection 1(2) and sections 5,8 and 9 are taken to have commenced on 1 November 1989.

Sections 6 and 7

(3) Sections 6 and 7 are taken to have commenced immediately after the commencement of the Migration Amendment Act (No. 4) 1992.

Sections 13 to 18

(4) Sections 13 to 18 commence on the day on which this Act receives the Royal Assent.

Object of section 5

3. The object of section 5 is to ensure that, if a provision of the Principal Act would have both a valid and an invalid application, then the provision applies to the extent that it is valid.

Object of sections 8 and 9

Background

4.(1) Judicial decisions have determined that section 88 (previously section 36) of the Principal Act has a particular operation. That operation does not accord with the intention of the Parliament or with the previous understanding of the Minister and the Department. Prior to those judicial decisions, none of the persons subject to custody under section 88 sought to challenge their custody under that section on the basis of the interpretation that section was found to have in those decisions.

Object of amendment

(2) The object of sections 8 and 9 is to ensure that sections 87 (previously section 35) and 88 of the Principal Act have, and since 1 November 1989 have had, an operation that is consistent with the operation that the Minister and the Department previously understood those sections to have had and that the Parliament intends those sections to have.

Difference from previous understanding

(3) Section 9 also provides appropriate time limits to apply to the custody of persons under section 88 of the Principal Act in cases where the custody may otherwise be indefinite.

Insertion of new section

5. After section 4 of the Principal Act the following section is inserted:

Act not to apply so as to exceed Commonwealth power

“4A.(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 ^ 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

(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.”.

Repeal of section

6. Section 54RA of the Principal Act is repealed.

Effect of Division on status etc.

7. Section 54S of the Principal Act is amended by omitting from subsection (2) all the words after “54R”.

Certain persons may be prevented from entering or landing

8. Section 35 of the Principal Act is amended by inserting after subsection (1) the following subsection:

“(1A) To avoid doubt, and without limiting the generality of subsection (1), if a person of a kind referred to in paragraph (l)(a) is on board a vessel (other than an aircraft), the actions that may be taken by an officer under subsection (1) 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.”.

Custody of certain persons arriving on board vessels

9. Section 36 of the Principal Act is amended:

(a) by omitting from subsection (1) “A person who” and substituting “Subject to subsection (1AA), a person who”;

(b) by omitting from subsection (1A) “Where a person” and substituting “Subject to subsection (1AA), where a person”;

(c) by inserting after subsection (1A) the following subsections:

“(1AA) If a person is taken into custody under subsection (1) or (1A) and the vessel referred to in the subsection concerned:

(a) is destroyed before leaving Australia or for any other reason will not, or is unlikely to, leave Australia; or

(b) both:

(i) was not the vessel on board which the person last left another country prior to the person’s arrival at the port referred to in that subsection; and

(ii) arrived at that port with the person on board without having entered any other country since last leaving a port (whether or not the same port) in Australia;

the person may be kept in custody under that subsection until:

(c) the person is granted an entry permit; or

(d) the end of such period as is necessary to remove the person from Australia after:

(i) the person asks the Minister, in writing, to be removed from Australia; or

(ii) all applications by the person to remain in Australia have been refused and any associated appeals or reviews have been finalised; or

(iii) all consideration of whether the person will be permitted to remain in Australia has been otherwise concluded; or

(e) such earlier time as an authorised officer directs.

“(1AB) For the purposes of subsections (1) and (1A), a person is taken not to have entered Australia before arriving at a port on board a vessel if:

(a) every entry into Australia by the person before that arrival consists of the person temporarily disembarking from the vessel (other than at a port); and

(b) after the temporary disembarkation, the person re boards the vessel and later arrives at the port on board the vessel.”.

Amendments to apply despite repeal of section 88

10. It is the intention of the Parliament that, despite the repeal of section 88 of the Principal Act by the Migration Reform Act 1992 before this Act receives the Royal Assent, the amendments made by section 9 of this Act are to have effect from 1 November 1989 until the repeal of section 88.

Transitional—renumbering of Migration Act by

Migration Legislation Amendment Act 1989

Effect on section 35 of the Migration Legislation Amendment Act 1989

11.(1) Section 35 of the Migration Legislation Amendment Act 1989 applies as if the amendments made by sections 5, 8 and 9 of this Act had not been made.

Renumbering of inserted section

(2) Immediately after the commencement of section 35 of the Migration Legislation Amendment Act 1989, the section inserted by section 5 of this Act is renumbered so that it bears the number consisting of the number of the section of the Principal Act immediately before it, followed by “AA”.

Inserted subsections are renumbered

(3) Immediately after the commencement of section 35 of the Migration Legislation Amendment Act 1989, the subsections inserted by sections 8 and 9 of this Act are renumbered so that they bear consecutive numbers consisting of the number of the subsection of the Principal Act immediately before the first of the subsections inserted, followed by upper case letters in alphabetical order starting with “A”.

Cross-references are corrected

(4) Immediately after the commencement of section 35 of the Migration Legislation Amendment Act 1989, each provision of the amended Act that refers to a provision of the amended Act that has been renumbered by

section 35 of the Migration Legislation Amendment Act 1989 or under this section is amended by omitting the reference and substituting a reference to the last-mentioned provision as so renumbered.

Amended Act

(5) In this section “amended Act” means the Principal Act as amended by this Act.

Transitional—renumbering of Migration Act by

Migration Legislation Amendment Act 1994

Effect on section 83 of the Migration Legislation Amendment Act 1994

12.(1) Section 83 of the Migration Legislation Amendment Act 1994 applies as if the amendments made by sections 5,6 and 8 of this Act had not been made.

Renumbering of inserted section

(2) Immediately after the commencement of section 83 of the Migration Legislation Amendment Act 1994, the section inserted by section 5 of this Act is renumbered so that it bears the number consisting of the number of the section of the Principal Act immediately before it, followed by “A”.

Inserted subsection is renumbered

(3) Immediately after the commencement of section 83 of the Migration Legislation Amendment Act 1994, the subsection inserted by section 8 of this Act is renumbered so that it bears the number of the subsection of the Principal Act immediately before it, followed by “A”.

Valid visa application

13. Section 46 of the Principal Act is amended by inserting in paragraph (1)(d) “48A (protection visa), 91E (CPA and safe third countries),” before “161”.

Insertion of sections

14. After section 48 of the Principal Act the following sections are inserted:

Non-citizen refused a protection visa may not make further application for protection visa

“48A.(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.

“(2) In this section:

‘application for a protection visa’ includes:

(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

(b) an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and

(b) an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.

Minister may determine that section 48A does not apply to non-citizen

“48B.(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.

“(2) The power under subsection (1) may only be exercised by the Minister personally.

“(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:

(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 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 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.

“(5) A statement under subsection (3) is to 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.

“(6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) 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.”.

Withdrawal of visa application

15. Section 49 of the Principal Act is amended by omitting from subsection (3) “section 48” and substituting “sections 48 and 48A”.

Only new information to be considered in later protection visa applications

16. Section 50 of the Principal Act is amended by adding at the end:

"Note: Section 48A prevents repeat applications for protection visas in most circumstances where the applicant is in the migration zone.”.

Decisions reviewable by Federal Court

17. Section 475 of the Principal Act is amended by inserting in paragraph (2)(e) “48B, 91F” after “section”.

Application of amendment of section 475

18. The amendment made by section 17 applies to decisions whether made before or after the commencement of this section.

_____________

NOTE

Migration Act 1958

1. No. 62, 1958, as amended. For previous amendments, see No. 87, 1964; No. 10, 1966; Nos. 16 and 216, 1973; Nos. 37 and 91, 1976; Nos. 117 and 118, 1979; Nos. 89 and 175, 1980; No. 61, 1981; No. 51, 1982; Nos. 73 and 112, 1983; Nos. 22, 72 and 123, 1984; Nos 71, 102 and 168, 1986; Nos. 86, 104, 133 and 141, 1987; Nos. 5, 38, 49 and 151, 1988; Nos. 59 and 61, 1989; No. 37, 1990; Nos. 70, 86, 196 and 198, 1991; Nos. 24, 84, 85, 175, 176, 184, 213, 220 and 235, 1992; No. 59, 1993; and Nos. 14, 20 and 60, 1994.

NOTES ABOUT SECTION HEADINGS

1. The alterations to the heading to section 35 (that is renumbered as section 87 by the Migration Legislation Amendment Act 1989) by the Migration Legislation Amendment Act 1989 and the Migration Amendment Act 1992 are taken not to have been made.

2. The alterations to the heading to section 36 (that is renumbered as section 88 by the Migration Legislation Amendment Act 1989) by the Migration Legislation Amendment Act 1989, the Migration Amendment Act 1991 and the Migration Amendment Act 1992 are taken not to have been made.

NOTES ABOUT RENUMBERING OF SECTIONS

1. Section 4 of the Principal Act was renumbered as section 3 by section 35 of the Migration Legislation Amendment Act 1989.

2. Section 35 of the Principal Act was renumbered as section 87 by section 35 of the Migration Legislation Amendment Act 1989.

3. Section 36 of the Principal Act was renumbered as section 88 by section 35 of the Migration Legislation Amendment Act 1989.

4. Subsection (1A) of that section of the Principal Act was renumbered as subsection (2) by section 35 of the Migration Legislation Amendment Act 1989.

[Minister’s second reading speech made in—

House of Representatives on 28 February 1995 Senate on 1 March 1995