Migration Amendment Regulations 2005 (No. 6)

Administered by Department of Home Affairs

Legislation au F2005L02018 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Select Legislative Instrument 2005 No. 171

Issued by the Authority of the Minister for Immigration and Multicultural and Indigenous Affairs

Migration Act 1958

Migration Amendment Regulations 2005 (No. 6)

Subsection 504(1) of the Migration Act 1958 (the Act) provides that the

Governor-General may make regulations, not inconsistent with the Act, prescribing all matters by which 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, paragraphs (d) and (e) of the definition of “excised offshore place” in subsection 5(1) of the Act provide that the regulations may prescribe an external Territory and 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:

certain islands that form part of Queensland, Western Australia and the Northern Territory; and
the Coral Sea Islands Territory;

as excised offshore places, pursuant to paragraphs (d) and (e) of the definition of “excised offshore place” in subsection 5(1) of the Act.

The effect of being an “excised offshore place” is that persons who are not citizens of Australia who arrive in such place without authority – usually in the form of a visa – cannot make a valid application for a visa.

The Regulations address indications that people smugglers are likely to change the focus of their operations to target landing on islands closer to the Australian mainland. In combating these new threats it is necessary to extend the bar on visa applications by persons who arrive without lawful authority at these offshore places.

Australian citizens and other persons with lawful authority under the Act to be in Australia will continue to be able to move about freely in these areas and make any applications permitted by the Act.

In particular, in respect of the Torres Strait Islands, the Act allows inhabitants of the Protected Zone (as established by the Torres Strait Treaty) to move freely in connection with the performance of their traditional activities. These provisions will continue to apply and traditional inhabitants of the Torres Strait will not be affected by the inclusion of the Torres Strait Islands in the definition of “excised offshore place”.

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.

Details of the Regulations are set out in the Attachment.

The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.

The Office of Regulatory Review in the Productivity Commission has been consulted and the Regulations were assessed as being not likely to have a direct, or a substantial indirect, effect on business, or restrict competition.

Consultation regarding the regulations occurred with the People Smuggling Taskforce. The agencies represented at these meetings included the Attorney Generals Department, Department of Foreign Affairs and Trade, Department of Defence, Prime Minister and Cabinet, Australian Federal Police, and the Australian Customs Service.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The regulations commence on the day they are registered on the Federal Register of Legislative Instruments.

0405105ZA-041222Z

ATTACHMENT

Details of the Proposed Migration Amendment Regulations 2005 (No. 6)

Regulation 1 – Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2005 (No. 6).

Regulation 2 – Commencement

This regulation provides that these Regulations commence on the day they are registered on the Federal Register of Legislative Instruments.

Regulation 3 – Amendment of Migration Regulations 1994

Regulation 3 provides that Schedule 1 to these Regulations amends the Migration Regulations 1994 (the Principal Regulations).

Schedule 1 – Amendment

Item [1] – After regulation 5.15A

This item inserts new regulation 5.15C into Part 5 of the Principal Regulations.

New subregulation 5.15C(1) provides that the Coral Sea Islands Territory is prescribed as an excised offshore place for the purposes of paragraph (d) of the definition of “excised offshore place” in subsection 5(1) of the Act.

New subregulation 5.15C(2) provides that the following islands are prescribed as excised offshore places for the purposes of paragraph (e) of the definition of “excised offshore place” in subsection 5(1) of the Act:

all islands that form part of Queensland and are north of latitude 21 degrees south; and

all islands that form part of Western Australia and are north of latitude 23 degrees south; and
all islands that form part of the Northern Territory and are north of latitude 16 degrees south.

Overview

The Migration Amendment Regulations 2005 (No. 6) were enacted to address the emerging threat of people smuggling by extending the scope of the excised offshore places under the Migration Act 1958. This legislative instrument was introduced to ensure that individuals who arrive at certain offshore places without lawful authority, typically in the form of a visa, cannot make a valid application for a visa. The objective is to prevent people smugglers from shifting their operations to islands closer to the Australian mainland. The regulations were developed in consultation with various government agencies and assessed by the Office of Regulatory Review to ensure minimal impact on business and competition. They were enacted by the Commonwealth to reinforce Australia's commitment to international refugee obligations while effectively managing unauthorised arrivals. The regulations came into effect on the day they were registered on the Federal Register of Legislative Instruments.

Scope and Application

The Migration Amendment Regulations 2005 (No. 6) extend the scope of the Migration Act 1958 by prescribing certain islands and territories as excised offshore places. This legislative instrument applies to non-citizens who arrive at these locations without proper authority, effectively barring them from making visa applications. The designated islands include those in Queensland, Western Australia, and the Northern Territory, as well as the Coral Sea Islands Territory, which are now considered excised offshore places under the Act. Australian citizens and others with lawful authority remain unaffected, and traditional inhabitants of the Torres Strait Islands can continue their activities without hindrance. The Regulations aim to counteract the threat of people smuggling by extending the visa application bar to these new offshore locations. The regulations do not set specific conditions for their application, and they have been deemed unlikely to impact business or competition directly or substantially. They are designed to ensure Australia continues to meet its international obligations, particularly regarding refugees, while addressing the evolving nature of people smuggling threats.

Key Provisions

The main operative sections of the Migration Amendment Regulations 2005 (No. 6) involve the prescription of certain islands and territories as "excised offshore places" under the Migration Act 1958. Specifically, the regulations (under Regulation 3 and Schedule 1, Item [1]) introduce new subregulation 5.15C, which designates the Coral Sea Islands Territory, and all islands forming part of Queensland, Western Australia, and the Northern Territory that are north of specific latitudes, as excised offshore places (subsections 5(1)(d) and (e)). These regulations aim to prevent non-citizens who arrive at these locations without the requisite visa from making valid visa applications. It is important to note that this does not affect Australian citizens or individuals with lawful authority under the Act, who can continue to move freely in these areas and make any applications permitted by the Act. The obligations and requirements imposed by the Act and these regulations on the parties or entities they govern are primarily focused on ensuring that individuals who arrive at the newly designated excised offshore places without lawful authority cannot apply for a visa. This measure is intended to combat the threat posed by people smugglers who may shift their operations to target these locations. The Act ensures that Australian citizens and those with lawful authority continue to have the freedom to move in these areas and engage in permitted activities. For instance, traditional inhabitants of the Torres Strait Islands retain their rights to move freely in connection with traditional activities, unaffected by the new regulations. Under the Migration Act 1958, any breach of the provisions regarding excised offshore places can lead to civil or criminal consequences. The Act stipulates that individuals who arrive at these places without lawful authority cannot make a valid application for a visa. Failure to comply with these provisions can result in legal penalties. While the specific penalties are not detailed in the explanatory statement, it is understood that breaches of the Migration Act can lead to substantial fines and imprisonment, as stipulated in other sections of the Act. The regulations ensure that the Commonwealth continues to meet its international obligations, including those under the United Nations Convention relating to the Status of Refugees, despite the restrictions on visa applications at these locations.

Area of Law: Immigration & Refugee Law
Instrument: Regulation
Concepts: Definitions & Interpretation; Regulatory Standards; Offence Provisions

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.

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