EXPLANATORY STATEMENT
STATUTORY RULES NO. 315 OF 1987
Migration Regulations (Amendment)
Issued by the Authority of the Minister for Immigration, Local Government and Ethnic Affairs
Section 67 of the Migration Act 1958 (“the Act”) in so far as is relevant, prescribes that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, including regulations providing for the payment of a prescribed penalty as an alternative to prosecution to the carriage of persons to Australia without appropriate documentation, and for the collection and payment to the Commonwealth of the immigration clearance fee imposed by section 34A of the Act.
The Regulations enable an officer of the Department to serve a notice on a person, which states that the officer believes on reasonable grounds that the person is in breach of section 11C of the Act. A breach of 11C of the Act occurs when a master, owner, agent, charter or operator of an aircraft or ship carries a passenger to Australia without proper documentation - ie the necessary visa. The person receiving the notice will have the option of paying a prescribed penalty of $1000 as an alternative to prosecution.
The immigration clearance fee is imposed on all passengers (as prescribed) on international flights seeking to enter Australia after 1 January 1988. The fee is a fee for services relating to that person’s immigration clearance. The fee will be collected by the international airline operator who brought the passenger to Australia, payable to the Commonwealth. The amount of the fee in relation to each passenger is $5.
The commencement of the regulations was concurrent with that of the Migration Amendment Act 1987, in particular sub-section 2(3) which prescribes 1 January 1988. Accordingly, the regulations do not contain a separate commencement provision.
Details of the regulations are as follows :
• Regulation 1 defined “Principal Regulations” in these regulations as the Migration Regulations.
• Regulation 2 amended regulation 30 of the Principal Regulations to allow an instrument or document to be served on the owner, agent, charterer or operator of a vessel.
• Regulation 3 inserted new provisions prescribing matters in relation to the charging of the immigration clearance fee and the infringement notice and prescribed penalty. In particular:
- Immigration Clearance Fee
Regulation 30A prescribes the fee for the immigration clearance to be $5.
Regulation 30B states that the fee is not payable in respect of the entry of a person who has not celebrated their 12th birthday.
- Infringement Notices
Regulation 30C prescribes the following matters in relation to the imposition of infringement notices:
(a) The Secretary of the Department or an officer so authorized is empowered to serve an infringement notice where he/she believes on reasonable grounds that an offence has been committed against section 11C of the Act.
(b) The notice shall include the following details:
(i) the name of the Departmental officer who caused the notice to be served;
(ii) the day on which and the time and place at which the offence is alleged to have been committed, and the particulars of the alleged prescribed offence;
(iii) a notification that if the person on whom a notice is served does not wish the matter to be dealt with by the Court, he or she may pay the amount of the prescribed penalty within the period of 28 days after the date of the notice unless the notice is sooner withdrawn;
(iv) the place at which, and the manner in which the prescribed penalty may be paid;
(v) the procedures for withdrawal of notices, and the consequences of such withdrawal;
(vi) any other matters considered necessary.
(c) The Secretary or an officer so authorized has the power to, in writing before the expiration of the period of 28 days after the date of the notice, withdraw the notice.
(d) Where the person to whom the infringement notice has been issued pays the prescribed penalty within the prescribed period, or the notice is withdrawn, the liability is discharged and no further proceedings shall be taken in respect of the alleged prescribed offence, nor shall the person be regarded as having been convicted of the alleged prescribed offence.
(e) If a notice is withdrawn subsequent to the payment of the penalty, the Secretary be required to refund an amount equal to the penalty to the person.
(f) Where there is a prosecution for a prescribed offence in respect of which an infringement notice was served, the Secretary or authorized officer may sign a certificate stating that he/she prescribed a period for the payment of the prescribed penalty or that the prescribed penalty was not paid in accordance with the infringement notice or that such notice was withdrawn, then the certificate shall be evidence of those matters.
(g) A document that purports to be signed by the Secretary or authorized officer under this regulation, shall be taken to be so unless the contrary is proved.
(h) Where the prescribed penalty is paid by cheque, payment will not be deemed to have taken place until the cheque is honoured.
(i) Nothing in these regulations is to affect the institution or prosecution of proceedings, or limiting the amount of the fine that may be imposed by the Court in respect of an alleged prescribed offence in relation to which -
(a) an infringement notice has not been served, or
(b) an infringement notice has been served and withdrawn in accordance with these regulations.
(j) The amount of the penalty is set at $1000.