EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Immigration and Citizenship
Migration Legislation Amendment Act (No. 1) 2008
Proclamation
The Migration Legislation Amendment Act (No. 1) 2008 (the ‘Amendment Act’) improves the effectiveness of migration and citizenship legislation and ensures consistency with Australia’s obligations under the United Nations Convention on the Reduction of Statelessness 1961.
Schedule 2 to the Amendment Act makes a range of amendments to strengthen and improve the border protection provisions in the Migration Act 1958 (the ‘Act’). The items to be proclaimed include measures to: clarify when a special purpose visa ceases; clarify that the obligation for operators of aircraft and ships to report applies in relation to each passenger and crew member; replace the set time frames for pre-arrival reporting in the Act with a power to prescribe the time frames in the Migration Regulations 1994 (to ensure the time frames align with the timeframes under the Customs Act 1901 and Customs Regulations 1926); and make persons on board international passenger cruise ships travelling on round trip cruises subject to immigration clearance on their return to Australia.
Items 1, 2 and 3 of Schedule 2 clarify when a special purpose visa ceases. The amendments allow for special purpose visas to cease at the end of a specified day; and where certain provisions of the Act apply, specify when, and in which circumstances, a special purpose visa ceases to be in effect.
Items 12 and 13 of Schedule 2 clarify that the obligation for operators of aircraft and ships to report on passengers and crew members applies in relation to each passenger and crew member.
Items 14 and 15 of Schedule 2 remove the time frames for pre-arrival reporting in the Act and replace them with a power to prescribe them in the Migration Regulations 1994; and provide that matters of a transitional nature arising out of the prescription of the timeframes may also be provided for in those Regulations. Associated amendments to the Migration Regulations 1994 are proposed in a separate Minute.
Items 18, 19 and 20 of Schedule 2 provide that persons on board international passenger cruise ships travelling on round trip cruises are subject to immigration clearance on their return to Australia unless the Minister or Secretary of the Department of Immigration and Citizenship exempts the persons by determination in writing.
Item 2 of the table in subsection 2(1) of the Amendment Act provides that Schedule 2 to the Amendment Act commences on a day or days to be fixed by Proclamation. However, if any of the provision(s) in Schedule 2 do not commence within the period of six months beginning on the day on which the Amendment Act receives the Royal Assent, they are to 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 15 February 2009 as the day on which items 1, 2, 3, 12, 13, 14, 15, 18, 19 and 20 in Schedule 2 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 enhance the effectiveness of Australia's migration and citizenship laws, ensuring they align with the country's commitments under the United Nations Convention on the Reduction of Statelessness 1961. The legislation, received the Royal Assent on 15 September 2008, was introduced by the Parliament of Australia to address gaps in border protection provisions within the Migration Act 1958. This Act was intended to refine and strengthen these provisions, as well as to provide greater clarity and consistency with related Australian laws. The Proclamation issued under the authority of the Minister for Immigration and Citizenship set 15 February 2009 as the commencement date for specific items in Schedule 2, which include amendments clarifying visa cessation, reporting obligations for aircraft and ship operators, and immigration clearance for passengers on international cruise ships.
Scope and Application
The Migration Legislation Amendment Act (No. 1) 2008, which includes provisions in its Schedule 2, applies to the administration and enforcement of the Migration Act 1958. It targets a range of entities, including special purpose visa holders, operators of aircraft and ships, and persons on board international passenger cruise ships travelling on round trip cruises. These amendments aim to refine border protection measures, ensuring they align with Australia's international obligations and the United Nations Convention on the Reduction of Statelessness 1961. The Act applies to all Commonwealth areas, and its provisions are enforced by the Minister for Immigration and Citizenship and the Secretary of the Department of Immigration and Citizenship. Notably, the Act includes provisions that allow the Minister or the Secretary to exempt certain persons from immigration clearance by written determination. The proclamation of the Amendment Act fixes 15 February 2009 as the commencement date for specific items within Schedule 2, with a provision that any unachieved commencement within six months of Royal Assent will take effect on the first day after that period.
Key Provisions
The Migration Legislation Amendment Act (No. 1) 2008, through its Schedule 2, makes several significant amendments to the Migration Act 1958 to enhance border protection provisions. These changes are designed to ensure that the legislation remains effective and consistent with Australia's international obligations. Firstly, items 1, 2 and 3 of Schedule 2 specify when a special purpose visa ceases to be valid, providing clarity on the circumstances and conditions under which these visas expire (Items 1, 2, 3). Secondly, items 12 and 13 clarify that operators of aircraft and ships must report information about each passenger and crew member, ensuring comprehensive data collection for border control purposes (Items 12, 13). Thirdly, items 14 and 15 remove the fixed timeframes for pre-arrival reporting from the Migration Act 1958 and instead grant the power to prescribe these timeframes in the Migration Regulations 1994, aligning them with the Customs Act 1901 and Customs Regulations 1926 (Items 14, 15). Lastly, items 18, 19 and 20 introduce requirements for immigration clearance for persons on board international passenger cruise ships on round trip cruises returning to Australia, with provisions for exemption by the Minister or Secretary of the Department of Immigration and Citizenship (Items 18, 19, 20).
These amendments impose several obligations on relevant parties. Operators of aircraft and ships must now report detailed information about each passenger and crew member, ensuring that all individuals entering Australia are accounted for and verified. This obligation extends to each individual on board, making it clear that comprehensive reporting is required (Items 12, 13). Additionally, persons on board international passenger cruise ships on round trip cruises must undergo immigration clearance upon their return to Australia, unless exempted by the Minister or Secretary (Items 18, 19, 20). These obligations are designed to strengthen border control measures and ensure that immigration laws are effectively enforced.
Failure to comply with the provisions of the Migration Act 1958, as amended by the Migration Legislation Amendment Act (No. 1) 2008, can result in various civil and criminal consequences. For instance, non-compliance with reporting obligations by aircraft and ship operators may result in penalties under the Migration Act 1958, which can include fines and other sanctions. Similarly, failure to undergo required immigration clearance may result in penalties for the individuals involved. The exact penalties for breaches of the Act are detailed in the Migration Act 1958 and can vary depending on the nature and severity of the breach. The Act provides for significant penalties, including fines and imprisonment, to ensure compliance and uphold the integrity of Australia's immigration laws.