Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001
No. 128, 2001
Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001
No. 128, 2001
An Act to make consequential provision for dealing with unauthorised arrivals in places excised from the migration zone under the Migration Act 1958 for purposes related to unauthorised arrivals, 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 Migration Regulations 1994
Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001
No. 128, 2001
An Act to make consequential provision for dealing with unauthorised arrivals in places excised from the migration zone under the Migration Act 1958 for purposes related to unauthorised arrivals, and for related purposes
[Assented to 27 September 2001]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001.
2 Commencement
This Act commences, or is taken to have commenced, at the same time as the Migration Amendment (Excision from Migration Zone) Act 2001.
3 Schedule(s)
(1) Each Act, and each set of regulations, that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
(2) The amendment of any regulation under subsection (1) does not prevent the regulation, as so amended, from being amended or repealed by the Governor‑General.
(3) To avoid doubt, regulations amended under subsection (1) are taken to still be regulations.
4 Application of amendments
The amendment made by item 7 of Schedule 1 applies to:
(a) the institution of proceedings on or after the day on which this Act receives the Royal Assent; and
(b) the continuation, after the day on which this Act receives the Royal Assent, of proceedings that were instituted before that day, being proceedings instituted after the excision time for the excised offshore place concerned.
Example: Proceedings of the kind mentioned in section 494AA of the Migration Act are instituted, before the day on which this Act receives the Royal Assent, in relation to a person who became an offshore entry person by entering Australia at Christmas Island. Those proceedings cannot be continued after the day on which this Act receives the Royal Assent.
Schedule 1—Amendment of the Migration Act 1958
1 Subsection 5(1) (at the end of the definition of immigration detention)
Add:
Note: See also section 198A, which provides that being dealt with under that section does not amount to immigration detention.
2 Subsection 189(1)
After “migration zone”, insert “(other than an excised offshore place)”.
3 Paragraph 189(2)(a)
After “migration zone”, insert “(other than an excised offshore place)”.
4 At the end of section 189
Add:
(3) If an officer knows or reasonably suspects that a…
Overview
The Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 was enacted by the Parliament of Australia to provide consequential amendments to various pieces of legislation in response to the excision of certain areas from the migration zone under the Migration Act 1958. This Act was introduced to address the legal and procedural issues arising from the exclusion of specific offshore locations from Australia's migration zone, particularly concerning the management and processing of unauthorised arrivals. The overarching policy objective was to streamline the legal framework to effectively manage the processing of unauthorised arrivals and to ensure that appropriate legal measures were in place to deal with such situations within the new legislative landscape created by the excision. This Act came into effect concurrently with the Migration Amendment (Excision from Migration Zone) Act 2001, ensuring that the consequential amendments were implemented from the same date.
Scope and Application
The Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 applies to the amendments of the Migration Act 1958 and the Migration Regulations 1994, ensuring that the provisions of these Acts are in line with the excision of certain offshore places from the migration zone. The Act applies to the Commonwealth of Australia and its territories, providing a legislative framework for dealing with unauthorised arrivals in these excised areas. The Act's provisions apply to individuals who are considered "offshore entry persons," that is, those who enter Australia at an excised offshore place after the excision time specified for that place. These provisions include the detention of individuals suspected of being unlawful non-citizens and the power to remove offshore entry persons to specified countries that meet certain criteria. The Act also restricts the ability to institute or continue certain legal proceedings against the Commonwealth related to offshore entry persons. The Act extends its application through subordinate instruments, such as the Migration Regulations 1994, which are amended to reflect the changes made by the Act.
Key Provisions
- The Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (the "Act") primarily focuses on modifying provisions of the Migration Act 1958 and the Migration Regulations 1994 to address the management of unauthorised arrivals in areas that have been excised from the Australian migration zone. Section 1 of the Act provides the short title, while Section 2 specifies that the Act commences at the same time as the Migration Amendment (Excision from Migration Zone) Act 2001. Section 3 details that the Schedules to the Act amend or repeal specified Acts and regulations as outlined. Section 4 outlines the application of the amendments, particularly in relation to legal proceedings instituted before and after the Act receives Royal Assent.
- The Act introduces significant changes to the Migration Act 1958, including the addition of new provisions to define and manage "excised offshore places." For instance, section 5(1) now includes a note that being dealt with under section 198A does not amount to immigration detention. Section 189 is amended to exclude "excised offshore places" from the definition of the migration zone, and new provisions are added to allow officers to detain unlawful non-citizens in excised offshore places or those seeking to enter such places. The Act also introduces a new section 198A, which permits officers to transfer offshore entry persons to specified countries that meet certain criteria, including providing protection for asylum seekers.
- The Act imposes obligations on officers and the Minister to manage and enforce these provisions. Officers are required to detain individuals in specific circumstances and can exercise powers to transfer offshore entry persons to declared countries. The Minister has the responsibility to declare countries that meet the specified criteria and to manage the enforcement of these provisions. Additionally, the Act imposes a duty on officers to know or reasonably suspect that a person in an excised offshore place is an unlawful non-citizen to detain them, and to detain individuals who are reasonably suspected of seeking to enter an excised offshore place and would be unlawful non-citizens if in the migration zone.
- The Act also outlines specific offences and penalties for breaches. For instance, Section 494AA bars certain legal proceedings against the Commonwealth relating to offshore entry persons, their status as unlawful non-citizens, their detention, and the exercise of powers under section 198A. These prohibitions are stringent and apply despite other provisions in the Act or any other law, although they do not affect the jurisdiction of the High Court under the Constitution. Failure to comply with these provisions could lead to legal actions against the Commonwealth being barred, and potentially other civil or administrative consequences for non-compliance with the Act's requirements.
- In summary, the Act provides a framework for managing unauthorised arrivals in excised offshore places by amending the Migration Act 1958 and the Migration Regulations 1994. It imposes specific obligations on officers and the Minister and includes provisions to bar certain legal proceedings, thereby delineating clear consequences for non-compliance.
- Area of Law
- Immigration & Refugee Law
- Criminal Law
- Instrument
- Act
- Concepts
- Commencement Provisions
- Reporting & Disclosure Obligations
- Licensing & Registration
- Regulatory Standards
- Offence Provisions
- Delegated & Subordinate Legislation