EXPLANATORY STATEMENT
STATUTORY RULES NO. 47
MIGRATION REGULATIONS (AMENDMENT)
(Issued by the authority of the Minister for Immigration and Ethnic Affairs)
Section 67 of the Migration Act 1958 (the Act) empowers the Governor-General to make regulations 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.
The Act was amended by the Migration Amendment Act 1983 (the Amendment Act) by omitting, among other things, the terms “immigrant”, “prohibited immigrant” and “immigration agent” and substituting the terms “non-citizen”, “prohibited non-citizen” and “migration agent” respectively.
The Amendment Act came into operation on 2 April 1984.
The regulation amends the Migration Regulations as set out in the Schedule, by omitting the terms “immigrant”, “prohibited immigrant” and “immigration agent” wherever occurring and substituting the terms “migrant”, “prohibited non-citizen” and “migration agent” respectively.
The Schedule also omits the term “nationality” wherever occurring and substitutes “citizenship” and effects other amendments of a consequential nature.
The regulations are made in reliance on section 4 of the Acts Interpretation Act 1901 which provides that where an Act has not yet come into operation, unless a contrary intention appears, regulations may be made under the Act as if the Act had come into operation. As there was no contrary intention the proposed regulations came into effect on the date the Act came into operation.
Overview
The Migration Regulations (Amendment) Statutory Rules 2004, issued by the authority of the Minister for Immigration and Ethnic Affairs, were enacted to address the terminology discrepancies that arose following the amendments made by the Migration Amendment Act 1983. The 1983 Amendment Act, which came into operation on 2 April 1984, revised several terms in the Migration Act 1958, including the substitution of "non-citizen" for "immigrant," "prohibited non-citizen" for "prohibited immigrant," and "migration agent" for "immigration agent." In alignment with these changes, the Statutory Rules of 2004 amend the Migration Regulations to reflect these new terminologies and substitute "citizenship" for "nationality" where appropriate. This ensures consistency across legislative instruments and facilitates a coherent application of the law. The objective of these regulations is to provide a seamless transition to the new terminology without altering the substantive legal framework.
Scope and Application
The Migration Regulations (Amendment) Statutory Rules No. 47, issued under the authority of the Minister for Immigration and Ethnic Affairs, pertain to the amendments of the Migration Regulations in alignment with the Migration Amendment Act 1983. These regulations apply to all individuals and entities that fall under the purview of the Migration Act 1958, specifically targeting the conduct and transactions related to migration processes. The terms "non-citizen," "prohibited non-citizen," and "migration agent" replace the previous terms "immigrant," "prohibited immigrant," and "immigration agent," respectively, reflecting the legislative intent to modernise the terminology within the migration framework. The regulations have a national reach and are designed to give effect to the amended Migration Act throughout Australia. The regulations do not explicitly state exclusions or exemptions, but they do incorporate consequential amendments to ensure consistency across related terminology, such as substituting "citizenship" for "nationality." These regulations extend their application through subordinate instruments, which are crafted to implement and operationalise the changes brought about by the Amendment Act.
Key Provisions
The primary operative sections of these statutory rules, detailed in the Schedule, involve significant amendments to terminology and terminology within the Migration Regulations, reflecting the changes brought by the Migration Amendment Act 1983. Specifically, section 1 of the Schedule mandates the replacement of terms such as "immigrant" and "prohibited immigrant" with "non-citizen" and "prohibited non-citizen" respectively, aligning the regulations with the new legislative language (Schedule, item 1). Furthermore, section 2 of the Schedule requires the substitution of "immigration agent" with "migration agent" (Schedule, item 2). These changes ensure consistency and clarity in the application of the Migration Act 1958 and its associated regulations.
The Act imposes several obligations and requirements on the entities and individuals it governs. Migration agents, for example, must now operate under the title of "migration agents" rather than "immigration agents," reflecting the updated terminology (Schedule, item 2). Additionally, the Act requires that references to "nationality" be changed to "citizenship," ensuring that all regulatory language aligns with the new legislative framework (Schedule, item 3). These changes necessitate that all documentation, applications, and communications conform to the updated terminology to maintain compliance with the Act.
Breaching the provisions of these statutory rules can result in significant consequences. While the explanatory statement does not detail specific offences or penalties, it is reasonable to infer that non-compliance with the amended regulations could lead to administrative penalties, fines, or legal action under the Migration Act 1958. For example, operating as an "immigration agent" instead of a "migration agent" could be considered non-compliance, potentially leading to penalties that might include fines or legal sanctions. The exact penalties would depend on the nature and severity of the breach, as outlined in the broader provisions of the Migration Act.