Overview

The Migration Act 1958, enacted by the Australian Parliament, provides the legislative framework for managing immigration in Australia. The Act was introduced to address the need for a comprehensive and enforceable system to regulate the entry and stay of non-citizens in the country. One of the key mechanisms within the Act is Section 499, which allows the Minister to issue directions to persons or bodies exercising powers or functions under the Act regarding the performance of those functions or the exercise of those powers. In this context, Direction No. 25, which pertained to the strip search of immigration detainees, was revoked by an instrument made under Section 499. This revocation was made without the need for consultation due to the minor nature of the change, as stipulated in Section 18(1) of the Legislative Instruments Act 2003. The revocation of Direction No. 25 reflects an ongoing effort to align immigration practices with contemporary standards and human rights considerations.

Scope and Application

The Instrument F2012L02036, made under section 499 of the Migration Act 1958, revokes "Direction No. 25 – Strip Search of Immigration Detainees", which was signed on 27 September 2001. The Act applies to any person or body that has functions or powers under the Migration Act 1958, and the revoked direction specifically related to the strip search of immigration detainees. This revocation pertains to conduct within the scope of immigration detention procedures. The Instrument has a Commonwealth jurisdictional reach, operating nationally within Australia. It is noted that the revocation does not extend or restrict the application of any other provisions under the Act, nor does it introduce new exclusions or exemptions. The revocation is deemed of a minor or machinery nature under section 18(1) of the Legislative Instruments Act 2003, and thus, consultation was deemed unnecessary. Additionally, the Instrument is exempt from disallowance under section 44 of the Legislative Instruments Act 2003, and no Human Rights Statement of Compatibility is required. The Office of Best Practice Regulation has also confirmed that a Regulatory Impact Statement is not necessary for this Instrument, which comes into effect upon signature without causing retrospective disadvantage.

Key Provisions

The primary operative section of this legislation is section 499 of the Migration Act 1958, which allows the Minister to give directions to individuals or entities exercising functions or powers under the Act (s 499). This particular legislative instrument is made under section 499 and seeks to revoke Direction No. 25, which pertains to the strip search of immigration detainees (s 1). The revocation is effective from the date of signing the instrument, 27 September 2001, and is communicated through Instrument IMMI 11/059, which commences upon signature (s 8). The Act imposes certain obligations on the Minister and relevant entities. The Minister, under section 499, has the authority to provide directions to those exercising powers or functions under the Migration Act, provided these directions pertain to the performance of those functions or powers. The revocation of Direction No. 25 by this instrument removes the legal basis for conducting strip searches of immigration detainees, thereby altering the procedures and practices that were previously permissible under that direction (s 3). There are no specific offences, penalties, or civil or criminal consequences outlined in this instrument for breaching its provisions. The revocation of Direction No. 25 is a regulatory change that alters the permissible actions under the Migration Act, rather than creating new offences or penalties. However, non-compliance with directions issued under section 499 of the Migration Act, if such directions were still in force, could potentially lead to legal repercussions under the relevant sections of the Act or other applicable legislation (s 499). The instrument itself does not specify maximum penalties for breaches but implies that adherence to the revised legal framework is essential. This instrument is classified as a minor or machinery nature under section 18(1) of the Legislative Instruments Act 2003, meaning it does not substantially alter existing arrangements and does not require consultation. Additionally, it is exempt from disallowance under section 44 of the same Act, so a Human Rights Statement of Compatibility is not required (s 6). The Office of Best Practice Regulation has confirmed that a Regulatory Impact Statement is not necessary for this instrument (s 7).