Migration Legislation Amendment (Application of Criminal Code) Act 2001
No. 97, 2001
Migration Legislation Amendment (Application of Criminal Code) Act 2001
No. 97, 2001
An Act to amend the law relating to migration, and for related purposes
Contents
1 Short title...................................
2 Commencement...............................
3 Schedule(s)..................................
4 Application of amendments........................
Schedule 1—Amendment of the Migration Act 1958
Schedule 2—Amendment of the Australian Citizenship Act 1948
Schedule 3—Amendment of the Immigration (Guardianship of Children) Act 1946
Migration Legislation Amendment (Application of Criminal Code) Act 2001
No. 97, 2001
An Act to amend the law relating to migration, and for related purposes
[Assented to 22 August 2001]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Migration Legislation Amendment (Application of Criminal Code) Act 2001.
2 Commencement
(1) Subject to this section, this Act commences on the latest of the following days:
(a) the 28th day after the day on which this Act receives the Royal Assent;
(b) the 28th day after the day on which the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 receives the Royal Assent.
(2) If the Migration Legislation Amendment (Immigration Detainees) Act 2001 commences before this Act, item 98 of Schedule 1 does not commence.
3 Schedule(s)
Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
4 Application of amendments
(1) Each amendment made by this Act applies to acts and omissions that take place after the amendment commences.
(2) For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.
Schedule 1—Amendment of the Migration Act 1958
1 After section 4
Insert:
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.
2 Subsection 5(1) (definition of offence against this Act)
Repeal the definition, substitute:
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.
3 Subsection 21(1)
Omit “, without reasonable excuse,”.
4 Subsection 21(1)
Omit “to the extent that the person is capable of complying with it”.
5 After subsection 21(1)
Insert:
(1A) Subsection (1) does not apply:
(a) to the extent that the person is not capable of complying with…
Overview
The Migration Legislation Amendment (Application of Criminal Code) Act 2001 was enacted to amend the law relating to migration and to address the need for a more consistent application of criminal principles across Australian migration legislation. The Act was passed by the Parliament of Australia and received Royal Assent on 22 August 2001. The principal objective of this Act is to ensure that the general principles of criminal responsibility, as set out in Chapter 2 of the Criminal Code, are uniformly applied to all offences under the Migration Act 1958, the Australian Citizenship Act 1948, and the Immigration (Guardianship of Children) Act 1946. This includes the application of concepts such as strict and absolute liability, reasonable excuse, and evidential and legal burdens, thereby providing clarity and consistency in the enforcement of migration laws.
Scope and Application
The Migration Legislation Amendment (Application of Criminal Code) Act 2001 applies to the Migration Act 1958, the Australian Citizenship Act 1948, and the Immigration (Guardianship of Children) Act 1946, affecting the conduct of individuals and entities involved in migration-related activities within Australia. The Act extends the application of the Criminal Code to offences against these Acts, thereby imposing general principles of criminal responsibility on those entities and individuals. The amendments apply to acts and omissions that occur after the commencement of the Act, with certain exceptions for specific provisions that may have different commencement dates. The Act does not explicitly state any exclusions, exemptions, or thresholds; however, it does introduce several defences and evidential burdens related to reasonable excuses and strict liability for certain offences. The Act may be further extended or restricted through subordinate instruments, though such instruments are not detailed in the provided text.
Key Provisions
- The Migration Legislation Amendment (Application of Criminal Code) Act 2001 (Cth) amends the Migration Act 1958, the Australian Citizenship Act 1948, and the Immigration (Guardianship of Children) Act 1946. It introduces provisions from the Criminal Code to the respective Acts, aligning their enforcement mechanisms with the general principles of criminal responsibility outlined in the Criminal Code. Key sections of the Migration Act 1958 amended include the application of the Criminal Code (section 4A), the definition of offences against the Act (section 5), and various strict and absolute liability offences relating to visas, harbouring unlawful non-citizens, and providing false statements or information (sections 21, 217, 218, 229, 236, 245, 247, 259, 268BH, 268CL, 280, 281, 282, 283, 284, 285, 306H, 312, 334, 370, 371, 432, 433). Additionally, it removes certain defences such as reasonable excuse in various sections and specifies penalties for certain offences, including imprisonment for up to 10 years or fines of up to 1,000 penalty units.
- The obligations imposed by this Act on individuals and entities include strict compliance with the provisions regarding visas and harbouring unlawful non-citizens, ensuring that any use of a visa or harbouring of an unlawful non-citizen is done with the intention specified in the Act. Individuals must also be aware of the strict liability nature of certain offences, meaning they are responsible regardless of their state of mind or intent. The Act mandates that any statements or information provided in relation to migration matters must be truthful and accurate, with strict liability applying to offences involving false statements.
- Breach of the provisions in the Act can lead to significant criminal and civil consequences. For instance, using a visa with the intention of travelling to or remaining in Australia when the visa was granted to another person is an offence that carries a penalty of imprisonment for up to 10 years or 1,000 penalty units, or both. Similarly, harbouring an unlawful non-citizen is an offence that carries strict liability, with the potential for imprisonment. Other offences, such as providing false statements or information, carry penalties of imprisonment for up to 2 years. The Act also specifies that in certain cases, a defendant bears an evidential or legal burden in relation to the matters in the respective subsections, indicating the need for defendants to provide evidence to support their defence or for the prosecution to prove the offence beyond reasonable doubt.
- Area of Law
- Immigration & Refugee Law
- Instrument
- Act
- Concepts
- Commencement Provisions
- Offence Provisions
- Strict Liability
- Reasonable Excuse
- Delegated & Subordinate Legislation
- Reporting & Disclosure Obligations
