Explanatory Statement
Issued by the Authority of the Minister for Immigration and Citizenship
Migration Legislation Amendment Act (No. 1) 2008
Proclamation
Schedules 1, 4 and 5 to the Migration Legislation Amendment Act (No. 1) 2008
(“the Amendment Act”) amend the Migration Act 1958 (“the Act”) to provide for amendments relating to merits review; Australian citizenship; and other miscellaneous amendments.
Schedule 1 to the Amendment Act provides for amendments relating to merits review. Schedule 1 creates a new position of Deputy Principal Member to be created in the Migration Review Tribunal; removes the requirement for review Tribunals to “hand down” their decisions; and provides that where two or more non-citizens apply for review of a decision together, any documents given to any of them in connection with the review are taken to be given to all of them.
Schedule 4 to the Amendment Act provides for miscellaneous amendments to the Migration Act 1958 to provide the Minister with the discretion to refuse to communicate with an authorised recipient who is providing immigration assistance whilst unregistered and removal of illegal foreign fishers or environmental offenders who are granted a criminal justice visa whilst serving a custodial sentence
Schedule 5 to the Amendment Act amends the Australian Citizenship Act 2007 and the Australian Citizenship (Transitionals and Consequentials) Act 2007 to clarify the meaning of certain provisions in these Acts and removes inconsistencies. The amendments will also ensure that the Australian Citizenship Act 2007 is consistent with Australia’s obligations in the United Nations Convention on the Reduction of Statelessness 1961 and the United Nations Convention Relating to the Status of Stateless Persons 1954.
Item 2, item 6 and item 7 of the table in subsection 2(1) of the Amendment Act provide respectively that Schedule 1, Schedule 4 and Schedule 5 to the Amendment Act commence on a day or days to be fixed by Proclamation. If any of the provision(s) in these Schedules do not commence within the period of six months beginning on the day on which the Amendment Act receives the Royal Assent, they commence on the first day after the end of that six month period. The Amendment Act received the Royal Assent on 15 September 2008.
The Proclamation fixes 7 October 2008 as the day on which items 3, 4, 5 and 14 of Schedule 5 to the Amendment Act commence. The Proclamation also fixes 27 October 2008 as the day on which Schedule 1 to the Amendment Act and items 1, 2, 3, 4 and subitems 6(1) and 6(2) of Schedule 4 to the Amendment Act commence.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Overview
The Migration Legislation Amendment Act (No. 1) 2008 was enacted to address gaps and problems in the existing migration and citizenship legislation in Australia. This Act, which received Royal Assent on 15 September 2008, was passed by the Parliament of Australia and includes provisions to amend the Migration Act 1958 and the Australian Citizenship Act 2007 among other legislation. The primary policy objective of the Act is to enhance the efficiency and effectiveness of the migration review process, refine the criteria and procedures for Australian citizenship, and address other miscellaneous issues within the framework of Australia’s international obligations, including those outlined in the United Nations Convention on the Reduction of Statelessness and the United Nations Convention Relating to the Status of Stateless Persons. The Act includes provisions for the establishment of a Deputy Principal Member within the Migration Review Tribunal, the discretionary powers of the Minister in specific circumstances, and clarifications to citizenship provisions to ensure consistency and compliance with international standards.
Scope and Application
The Migration Legislation Amendment Act (No. 1) 2008 amends the Migration Act 1958 to introduce several changes, primarily focusing on merits review, Australian citizenship, and miscellaneous provisions. The Act applies to non-citizens seeking review of decisions under the Migration Act, Australian citizens, and various entities and individuals involved in immigration processes. The geographic reach of the Act is national, given that it pertains to the Commonwealth of Australia and its immigration framework. The Act’s provisions, detailed in Schedules 1, 4, and 5, modify the structure and function of the Migration Review Tribunal by introducing a new Deputy Principal Member and altering the decision-making process. Additionally, it grants the Minister discretion over communication with unauthorised immigration assistance providers and the removal of certain offenders granted criminal justice visas. Amendments to citizenship laws ensure consistency with international conventions on statelessness. The Act’s application is further extended or restricted through subordinate instruments, with specific commencement dates outlined in the Proclamation issued under the authority of the Minister for Immigration and Citizenship.
Key Provisions
The Migration Legislation Amendment Act (No. 1) 2008 (the Amendment Act) introduces several significant changes to the Migration Act 1958 and related legislation. Key provisions include the creation of a new Deputy Principal Member within the Migration Review Tribunal (Schedule 1(2)), the removal of the requirement for review Tribunals to "hand down" their decisions (Schedule 1(3)), and the stipulation that documents given to any of a group of non-citizens applying together for review are considered given to all (Schedule 1(4)). Additionally, the Amendment Act allows the Minister to refuse communication with unauthorised immigration assistance providers and to remove illegal fishers or environmental offenders granted a criminal justice visa who are serving a custodial sentence (Schedule 4). Furthermore, it amends the Australian Citizenship Act 2007 and related transitional acts to clarify certain provisions and ensure consistency with international conventions on statelessness (Schedule 5).
Under the Amendment Act, several obligations are imposed on the parties and entities it governs. The Migration Review Tribunal is required to establish the new position of Deputy Principal Member and to ensure that any documents provided to a group of non-citizens applying for review collectively are shared among all members of that group. The Minister is obligated to exercise discretion in refusing to communicate with unauthorised immigration assistance providers and in removing illegal fishers or environmental offenders granted a criminal justice visa who are serving a custodial sentence. The Australian Citizenship Act 2007 and related acts must be interpreted in a manner that aligns with Australia’s obligations under the United Nations Convention on the Reduction of Statelessness 1961 and the United Nations Convention Relating to the Status of Stateless Persons 1954.
The Amendment Act also sets out consequences for breaches of its provisions. While specific offences, penalties, or consequences are not detailed in the explanatory statement, the Amendment Act references existing legal frameworks where such details may be found. Given that the Amendment Act amends the Migration Act 1958, breaches of its provisions could result in penalties as prescribed under that Act, which may include fines and imprisonment. Additionally, failure to comply with citizenship provisions could result in administrative penalties or other legal consequences as specified in the Australian Citizenship Act 2007. The commencement dates for the various provisions are fixed by Proclamation, ensuring that the changes are implemented in a structured and timely manner.