EXPLANATORY STATEMENT
Issued by the Minister for Home Affairs
Migration Act 1958
Migration Amendment (Personal Identifiers) Regulations 2025
The Migration Act 1958 (the Migration Act) is an Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons.
Subsection 504(1) of the Migration Act provides that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Migration Act.
The Migration Amendment (Personal Identifiers) Regulations 2025 (the Amendment Regulations) amend the Migration Regulations 1994 to enable the Department of Home Affairs (the Department), including the Australian Border Force, to collect facial images from persons under the legislation that align and are consistent with international standards and current biometric technologies.
The Amendment Regulations support the commencement of Schedule 1 to the Home Affairs Legislation Amendment (2025 Measures No. 2) Act 2025 (the 2025 Measures No. 2 Act).
Schedule 1 to the 2025 Measures No. 2 Act, on commencement, operates to amend the Migration Act to:
- clarify and modernise provisions of the Migration Act to enable the Department to collect facial images from persons under the legislation that align and are consistent with international standards and current biometric technologies; and
- validate facial images that were provided by a person or collected by the Department prior to the commencement of the amendments, including any action taken by the Department in relation to those images.
These amendments update the definition of facial images in the Migration Act to support and provide express authority for the Department to continue to collect and verify facial images in line with international standards and current biometric technologies.
New section 5BA of the Migration Act provides that any reference to a photograph or other image of a person’s face in the migration law (which is defined to refer to the Migration Act, the regulations, and any legislative instrument made under the Act or the regulations) includes a reference to a photograph or other image of:
- the person’s face and all or part of the person’s neck; or
- the person’s face and neck and all or part of the person’s shoulders.
This section enables the Department to collect an image that includes only a person’s face but also provides flexibility to the Department to collect an image where more of the person is visible.
The Amendment Regulations support the amendments made by Schedule 1 to the 2025 Measures No. 2 Act by making technical and consequential amendments to provisions in the Migration Regulations. The amendments operate to amend provisions that prescribe a facial image to ensure that they are consistent with the amendments to the Migration Act.
A Statement of Compatibility with Human Rights (the Statement) has been completed in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The overall assessment is that the Amendment Regulations are compatible with human rights as they do not raise any human rights issues. The Statement is at Attachment A.
Section 17 of the Legislation Act 2003 (the Legislation Act) provides that the rule maker must be satisfied that consultation has been undertaken that is appropriate and reasonably practicable before making a legislative instrument.
The Department has consulted with the Attorney-General’s Department and the Department of the Prime Minister and Cabinet in relation to the amendments to the Migration Act that are provided for in Schedule 1 to the 2025 Measures No. 2 Act. No further consultation was necessary in relation to the Amendment Regulations, as the amendments are technical and consequential to the commencement of Schedule 1 to the 2025 Measures No. 2 Act.
The Amendment Regulations commence at the same time as Schedule 1 to the Home Affairs Legislation Amendment (2025 Measures No. 2) Act 2025.
Further details of the amendment Regulations are set out in Attachment B.
The Amendment Regulations amend the Migration Regulations, which are exempt from sunsetting under table item 38A of section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015. The Migration Regulations are exempt from sunsetting on the basis that the repeal and remaking of the Migration Regulations:
- is unnecessary as the Migration Regulations are regularly amended numerous times each year to update policy settings for immigration programs;
- would require complex and difficult to administer transitional provisions to ensure, amongst other things, the position of the many people who hold Australian visas, and similarly, there would likely be a significant impact on undecided visa and sponsorship applications; and
- would demand complicated and costly systems, training and operational changes that would impose significant strain on Government resources and the Australian public for insignificant gain, while not advancing the aims of the Legislation Act.
The Amendment Regulations will be repealed by operation of Division 1 of Part 3 of Chapter 3 of the Legislation Act. Specifically, that Division (under section 48A) operates to automatically repeal a legislative instrument that has the sole purpose of amending or repealing another instrument. As the Amendment Regulations will automatically repeal, they do not engage the sunsetting framework under Part 4 of the Legislation Act.
The Migration Act specifies no conditions that need to be satisfied before the power to make the Amendment Regulations may be exercised.
The Amendment Regulations are a legislative instrument for the purposes of the Legislation Act.
ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Migration Amendment (Personal Identifiers) Regulations 2025
These amendments to the Migration Regulations are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
The Migration Amendment (Personal Identifiers) Regulations 2025 (the Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to enable the Department of Home Affairs (the Department), including the Australian Border Force, to collect facial images from persons under the legislation that align and are consistent with international standards and current biometric technologies.
The Regulations support the amendments to the Migration Act 1958 (the Migration Act) that will be made on commencement of Schedule 1 to the Home Affairs Legislation Amendment (2025 Measures No. 2) Act 2025 (2025 Measures No. 2 Act).
Schedule 1 to the 2025 Measures No. 2 Act will, on commencement, operate to amend the Migration Act to:
- clarify and modernise provisions of the Migration Act to enable the Department to collect facial images from persons under the legislation that align and are consistent with international standards and current biometric technologies; and
- validate facial images that were provided by a person or collected by the Department prior to the commencement of the amendments, including any action taken by the Department in relation to those images.
The amendments of the Migration Regulations support the commencement of Schedule 1 to the 2025 Measures No. 2 Act which, on commencement, will operate to insert new section 5BA into the Migration Act.
This new section provides that a reference in the migration law (which is defined in the amendments to subsection 5(1) as referring to the Migration Act, the regulations, and any legislative instrument made under the Act or the regulations) to a photograph or other image of a person’s face includes a reference to a photograph or other image of:
- the person’s face and all or part of the person’s neck; or
- the person’s face and neck and all or part of the person’s shoulders.
This new section will provide the Department with express authority to collect or use an image that includes only a person’s face but will also provide flexibility to the Department to collect an image where more of the person is visible.
The Regulations support the amendments made by Schedule 1 to the 2025 Measures No. 2 Act by making technical and consequential amendments to provisions in the Migration Regulations that currently prescribe a photograph or other image of a person’s face and shoulders as evidence of their identity by omitting reference to ‘and shoulders’.
The amendments operate to omit references to ‘and shoulders’ in the following provisions of the Migration Regulations 1994 (Migration Regulations):
- subregulation 3.03(1A);
- subregulation 3.03(2A);
- subparagraph 3.03(3)(a)(ii);
- subparagraph 3.03(3)(b)(i);
- subparagraph 3.03(3)(d)(i);
- subparagraph 3.03(3)(e)(i);
- subparagraph 3.03(3)(ea)(i);
- subparagraph 3.03(3)(f)(i);
- subparagraph 3.03(3)(fa)(i);
- subparagraph 3.03(3)(g)(i);
- subparagraph 3.03(4)(a)(i);
- paragraph 3.09(2)(a);
- subregulation 3.09(3);
- paragraph 3.31(c);
- paragraph 5.15A(4)(b);
- subparagraph 1219(3)(b)(iii) of Schedule 1.
The amendments do not change the operation of any of these provisions. The purpose of the amendments is to clarify the operation of the provision to ensure the amendments are consistent with the amendments to the Migration Act that will be made by Schedule 1 to 2025 Measures No. 2 Act.
Human rights implications
The Regulations do not engage any of the applicable rights or freedoms.
Conclusion
The Regulations are compatible with human rights as they do not raise any human rights issues.
The Hon Tony Burke MP
Minister for Home Affairs
ATTACHMENT B
Details of the Migration Amendment (Personal Identifiers) Regulations 2025
Section 1 – Name of Regulations
This section provides that the title of the Regulations is the Migration Amendment (Personal Identifiers) Regulations 2025.
Section 2 – Commencement
This section provides for the commencement of the provisions of this instrument.
Subsection 2(1) provides that each provision of the instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Table item 1 provides that the whole of this instrument commences at the same time as Schedule 1 to the Home Affairs Legislation Amendment (2025 Measures No. 2) Act 2025. However, the provisions do not commence at all if that Schedule does not commence.
A note is included to clarify that this table relates only to the provisions of this instrument as originally enacted, and that it would not be amended to deal with any later amendments of this instrument.
Section 3 – Authority
This section provides that the Migration Amendment (Personal Identifiers) Regulations 2025 is made under the Migration Act 1958.
Section 4 – Schedules
This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 – Amendments
Migration Regulations 1994
Item [1] – Amendments of listed provisions
This item makes technical and consequential amendments to support the commencement of Schedule 1 to the Home Affairs Legislation Amendment (2025 Measures No. 2) Act 2025 (2025 Measures No. 2 Act) which, on commencement, operates to insert new section 5BA into the Migration Act.
New section 5BA of the Migration Act provides that a reference in the migration law (which is defined to refer to the Migration Act, the regulations, and any legislative instrument made under the Act or the regulations) to a photograph or other image of a person’s face includes a reference to a photograph or other image of:
- the person’s face and all or part of the person’s neck; or
- the person’s face and neck and all or part of the person’s shoulders.
This section provides the Department with express authority to continue to collect or use an image that includes only a person’s face but will also provide flexibility to the Department to collect an image where more of the person is visible.
This item operates to omit references to ‘and shoulders’ in the following provisions of the Migration Regulations 1994:
- subregulation 3.03(1A);
- subregulation 3.03(2A);
- subparagraph 3.03(3)(a)(ii);
- subparagraph 3.03(3)(b)(i);
- subparagraph 3.03(3)(d)(i);
- subparagraph 3.03(3)(e)(i);
- subparagraph 3.03(3)(ea)(i);
- subparagraph 3.03(3)(f)(i);
- subparagraph 3.03(3)(fa)(i);
- subparagraph 3.03(3)(g)(i);
- subparagraph 3.03(4)(a)(i);
- paragraph 3.09(2)(a);
- subregulation 3.09(3);
- paragraph 3.31(c);
- paragraph 5.15A(4)(b);
- subparagraph 1219(3)(b)(iii) of Schedule 1.
The amendments do not change the operation of any of these provisions. The purpose of the amendments is to clarify the operation of the provisions to ensure that they are consistent with the amendments to the Migration Act made upon commencement of Schedule 1 to 2025 Measures No. 2 Act.