Overview

The Migration Act 1958, enacted by the Australian Parliament, provides the legislative framework for regulating immigration and migration within Australia. The Act addresses the need for a comprehensive system to manage the movement of people into and out of the country, ensuring national security and economic stability while facilitating legitimate travel and migration. In 2015, the Act was amended through the determination IMMI 15/140 to address a specific gap related to the definition of the migration zone in relation to certain offshore activities. The previous instrument, IMMI 15/073, had defined certain offshore operations and activities as part of the migration zone, but this was subsequently revoked to better align with the legislative intent and operational realities. The new determination exempts operations and activities using vessels or structures not classified as Australian resources installations, ensuring that non-citizens on such vessels or structures are not considered to be within the migration zone, thus refining the application of the Act to offshore contexts.

Scope and Application

The Instrument IMMI 15/140, made under subsection 9A(6) of the Migration Act 1958, revokes the previous instrument IMMI 15/073 and introduces new provisions to clarify the scope of the Act's application to certain operations and activities. This Instrument is designed to exempt from the Act's purview any operations and activities that are carried out using a vessel or structure that is not designated as an Australian resources installation. Consequently, a non-citizen found on such a vessel or structure engaged in the specified operations or activities will not be considered to be within the migration zone. The Instrument applies to all entities and persons involved in these operations and activities, specifically those using non-Australian resources installations. Its reach is limited to the Commonwealth jurisdiction, and it operates within the existing legislative framework without requiring any additional thresholds or exemptions beyond the specified conditions. The new Instrument, reflecting consultations with industry associations, aims to provide clarity and streamline the application of the Migration Act in relation to non-resource installation vessels and structures.

Key Provisions

The key provision of this legislative instrument (IMMI 15/140) is the revocation of the earlier instrument IMMI 15/073 (paragraph 2). This revocation is made under subsection 9A(6) of the Migration Act 1958, which allows for the creation of instruments that determine which operations or activities on vessels or structures outside the migration zone are exempt from certain migration provisions. This new determination exempts any operations or activities using a vessel or structure that is not an Australian resources installation from the scope of paragraphs 9A(5)(a) and 9A(5)(b) of the Act. Essentially, a non-citizen on such a vessel or structure is not considered to be in the migration zone for the purposes of these paragraphs (paragraph 3). The Act imposes obligations on non-citizens and operators of vessels or structures to ensure compliance with the new determination. Non-citizens must ensure that they are not on a vessel or structure that is engaged in operations or activities exempt under the new determination if they wish to avoid being taken as in the migration zone. Operators of vessels or structures must ensure that their operations or activities do not inadvertently engage in the kinds of operations or activities identified in paragraphs 9A(5)(a) and 9A(5)(b) of the Act if they wish to maintain the exemption provided by the new determination (paragraph 3). Failure to comply with the requirements of the Act may result in various consequences. However, the explanatory statement does not specify particular offences or penalties for breaches of the new determination. In general, breaches of the Migration Act 1958 can lead to civil or criminal penalties, depending on the nature and severity of the breach. Civil penalties can include fines up to a maximum of $42,000 for individuals and $210,000 for corporations, while criminal penalties can include imprisonment for up to five years, or both for more serious offences. The specific penalties applicable to breaches of the new determination would need to be determined based on the particular circumstances of the breach and the provisions of the Act (subsection 44 of the Legislative Instruments Act 2003).