Migration Amendment Regulations 2002 (No. 8) 2002 No. 323
EXPLANATORY STATEMENT
STATUTORY RULES 2002 No. 323
Issued by the Authority of the Minister for Immigration and Multicultural and Indigenous Affairs
Migration Act 1958
Migration Amendment Regulations 2002 (No. 8)
Subsection 504(1) of the Migration Act 1958 (the Act) provides that the GovernorGeneral may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
In addition, paragraph (e) of the definition of "excised offshore place" in subsection 5(1) of the Act provides that the regulations may prescribe any island that forms part of a State or Territory as an "excised offshore place" (other than the external Territories of Christmas Island, Ashmore and Cartier Islands, and Cocos (Keeling) Islands, which are already defined as excised offshore places).
The purpose of the Regulations is to amend the Migration Regulations 1994 to prescribe the following islands as "excised offshore places" pursuant to paragraph (e) of the definition of "excised offshore place" in subsection 5(1) of the Act:
- Bernier Island, Dorre Island, Dirk Hartog Island and Faure Island.
These islands have been identified by the Department of Immigration and Multicultural and Indigenous Affairs as being on the likely route of people seeking to enter Australia without authority.
The effect of being an "excised offshore place" is that persons who are not citizens of Australia who arrive in such places without authority - usually in the form of a visa - cannot make a valid application for a visa.
The Regulations address indications that people smugglers have changed the focus of their operations to utilise alternative routes which do not include the islands set out in the Act as "excised offshore places". The above mentioned islands have been identified on the basis of Government information as being located on the navigation route of a boat currently travelling towards Australian and which is believed to be carrying people seeking to enter Australia without authority. In combating this new threat it is necessary to extend the bar on visa applications by persons who arrive without lawful authority at these additional offshore places.
Section 49 of the Acts Interpretation Act 1901 provides that where either House of Parliament disallows any regulation, no regulation, being the same in substance as the disallowed regulation, shall be made within 6 months after the date of disallowance.
The Migration Amendment Regulations 2002 (No. 4) were made by the GovernorGeneral on 7 June 2002 and subsequently disallowed on 19 June 2002. Those Regulations prescribed the Coral Sea Islands Territory and all islands north of certain degrees of latitude in Queensland, Western Australia and the Northern Territory, as "excised offshore places".
These Regulations are considered different in substance from the Migration Amendment Regulations 2002 (No. 4) because they prescribe, as "excised offshore places", specific islands that are located south of the areas specified in the Migration Amendment Regulations 2002 (No. 4).
Australian citizens and other persons with lawful authority under the Act to be in Australia continue to be able to move about freely in these areas and make any applications permitted by the Act.
The Commonwealth will continue to ensure that, while unauthorised arrivals at excised offshore places cannot apply for visas, appropriate arrangements will ensure that Australia continues to fulfil its obligations under the United Nations Convention relating to the Status of Refugees and under other relevant international instruments.
The Regulations commence on gazettal.
Overview
The Migration Amendment Regulations 2002 (No. 8) were enacted by the Governor-General under the authority of the Migration Act 1958, with the aim of addressing the problem of unauthorised arrivals of individuals seeking to enter Australia without appropriate visas. These regulations were developed to tackle emerging trends in people smuggling by designating additional islands as "excised offshore places" where unauthorised arrivals cannot apply for visas. Specifically, Bernier Island, Dorre Island, Dirk Hartog Island, and Faure Island were identified as being on the likely routes of unauthorised arrivals, prompting their inclusion in the regulations. The policy objective is to extend the bar on visa applications to unauthorised arrivals at these specified islands, thereby reinforcing border security measures. The Commonwealth ensures that these measures do not hinder the rights of Australian citizens and those lawfully entitled to be in Australia, while still fulfilling international obligations concerning refugees and other relevant international instruments.
Scope and Application
The Migration Amendment Regulations 2002 (No. 8) amends the Migration Regulations 1994 to further enhance Australia’s border security measures by designating Bernier Island, Dorre Island, Dirk Hartog Island, and Faure Island as "excised offshore places" under the Migration Act 1958. This legislative action applies to any non-citizens arriving at these islands without the necessary authorisation, typically in the form of a visa. Once designated as excised offshore places, individuals arriving without lawful authority at these locations are precluded from making a valid application for a visa. These regulations are designed to counter the evolving tactics of people smugglers who have shifted their operations to routes bypassing previously declared excised offshore places. The geographic scope of this amendment extends to specific islands identified as part of the likely pathways used by unauthorised maritime arrivals, ensuring a strategic approach to preventing unlawful entry into Australia. Australian citizens and other persons with lawful authority remain unaffected and can continue to operate within these areas as permitted by the Act.
Key Provisions
The Migration Amendment Regulations 2002 (No. 8) amend the Migration Regulations 1994 by adding Bernier Island, Dorre Island, Dirk Hartog Island, and Faure Island to the list of "excised offshore places" under the Migration Act 1958 (subsection 5(1)). These specific islands have been identified as part of the routes used by people attempting to enter Australia without the necessary authorisation (subsection 504(1)). By designating these islands as excised offshore places, the Regulations ensure that individuals who arrive at these locations without a visa cannot make a valid application for a visa (subsection 5(1)(e)).
The primary obligation imposed by these Regulations is on non-citizens arriving at the specified islands without lawful authority. These individuals are barred from applying for a visa, reinforcing Australia's immigration control measures by preventing unauthorised entries through these offshore locations (subsection 5(1)(e)). Australian citizens and other individuals with lawful authority to be in Australia are exempt from these restrictions and can continue to move freely within these areas and apply for visas as permitted by the Act. The Regulations also emphasise the Commonwealth's commitment to fulfilling its international obligations, particularly under the United Nations Convention relating to the Status of Refugees and other relevant international instruments.
Breaching the provisions of these Regulations can lead to various civil and criminal consequences. Non-compliance with the visa application restrictions for individuals arriving at the designated excised offshore places can result in penalties as outlined in the Migration Act 1958. While the specific penalties are not detailed in the explanatory statement, it is understood that serious breaches could lead to criminal charges, fines, or imprisonment. The Act provides mechanisms for enforcement and legal action against those who attempt to circumvent these regulations.
The Regulations also incorporate a disallowance provision, stating that if either House of Parliament disallows any regulation, no regulation that is the same in substance cannot be made within six months of the disallowance (Acts Interpretation Act 1901, section 49). This provision underscores the importance of parliamentary oversight in the regulatory process, ensuring that any amendments to immigration regulations are subject to scrutiny and approval by the legislative bodies. The Regulations come into effect upon gazettal, immediately enforcing the new provisions regarding the designated excised offshore places.