Migration Regulations (Amendment)

Legislation au C2004L05169 Regulations Not in force Legislative Instrument

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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.

Overview

The Migration Regulations (Amendment) Statutory Rules 1987, issued by the authority of the Minister for Immigration, Local Government and Ethnic Affairs, were enacted to address the issue of passengers arriving in Australia without the appropriate documentation. This was achieved through the introduction of an infringement notice system and the imposition of an immigration clearance fee. These measures were designed to streamline the processing of passengers entering Australia and to provide an alternative to prosecution for certain immigration breaches. The Regulations were enacted concurrently with the Migration Amendment Act 1987, providing a comprehensive framework for managing immigration compliance at the point of entry into Australia. The policy objective was to facilitate more efficient immigration clearance processes while maintaining the integrity of Australia's immigration laws.

Scope and Application

The Migration Regulations, amended by Statutory Rules No. 315 of 1987, apply to individuals and entities involved in the carriage of passengers to Australia, specifically targeting the master, owner, agent, charterer, or operator of an aircraft or ship. This regulation extends to all international flights seeking to enter Australia after the specified commencement date of 1 January 1988. It applies to any person who facilitates the transportation of a passenger without the necessary visa, thus breaching section 11C of the Migration Act 1958. The Act is implemented at the Commonwealth level and is not inconsistent with the overarching Migration Act. The regulations also introduce a prescribed penalty of $1,000 as an alternative to prosecution for those who breach the Act. Furthermore, they establish an immigration clearance fee of $5, which is payable by passengers entering Australia on international flights, collected by the airline operator and remitted to the Commonwealth. The fee is not applicable to passengers who have not reached their 12th birthday. These regulations do not contain a separate commencement provision but align with the commencement date of the Migration Amendment Act 1987.

Key Provisions

The primary operative sections of the Migration Regulations (Amendment) include the introduction of a $5 immigration clearance fee for passengers arriving in Australia by international flights as of 1 January 1988, as outlined in Regulation 30A. Regulation 30B further clarifies that this fee does not apply to individuals who have not yet reached the age of 12. Additionally, Regulation 30C introduces the issuance of infringement notices by authorised officers of the Department who believe, on reasonable grounds, that a breach of section 11C of the Migration Act 1958 has occurred, which pertains to the carriage of passengers to Australia without appropriate documentation. These notices offer the option of paying a prescribed penalty of $1000 as an alternative to prosecution. Regulation 30C(a) specifies that the Secretary of the Department or an authorised officer can serve such a notice, while Regulation 30C(b) details the necessary contents of the notice, including personal details, offence specifics, and payment information. The Act imposes several obligations on parties and entities it governs. For example, Regulation 30A mandates that international airlines collecting the immigration clearance fee must remit this fee to the Commonwealth. Regulation 30C(b) requires that the notice must be served in accordance with specified procedures, containing all stipulated details to ensure clarity and legality. Furthermore, the authorised officers must withdraw the notice if the penalty is paid within the 28-day period, as stipulated in Regulation 30C(d), or refund the penalty if the notice is withdrawn after payment, as outlined in Regulation 30C(f). Additionally, Regulation 30C(g) ensures that any document signed by the Secretary or an authorised officer is considered valid unless proven otherwise. The regulations also outline potential consequences for non-compliance. Under Regulation 30C(j), if the prescribed penalty is not paid within the specified period, the matter can still be pursued in court, and the court may impose fines in addition to the prescribed penalty. The Act does not limit the court's discretion regarding the amount of fines that can be imposed for breaches of section 11C of the Migration Act, as noted in Regulation 30C(i). Payment by cheque must be honoured for it to be considered valid, as stated in Regulation 30C(h). These provisions ensure that the integrity of the immigration process is maintained, and penalties serve as a deterrent against non-compliance.

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Immigration & Refugee Law
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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.