EXPLANATORY STATEMENT
STATUTORY RULES NO. 201 of 1988
Migration Regulations (Amendment)
Issued by the authority of the Minister for Immigration, Local Government and Ethnics Affairs
Section 67 of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. Paragraphs 67(1)(cb) and (cc) specifically provided for the making of regulations concerning the collection by international air operators of fees under sub section 34A(2) of the Act and for the payment by international air operators to the Commonwealth of amounts under subsection 34A(3).
Section 34A of the Act imposed a fee on passengers, other than prescribed passengers, for immigration clearance of that passenger by an officer at the airport at which the pasenger entered Australia. The fee was collected by the international air carrier, and was payable to the Commonwealth whether or not the fee was actually collected from the passenger by the international air carrier. Section 34A and paragraphs 67(1)(cb) and (cc) were repealed with effect from 1 July 1988 by the Migration Amendment Act 1988.
Regulation 30A of the Migration Regulations prescribed the fee payable for the purposes of section 34A of the Act at $5. Regulation 30B of the Regulations defined the prescribed passengers for the purposes of section 34A of the Act.
The regulations repealed both regulations 30A and 30B as a consequence of the repeal of section 34A and paragraphs 67(1)(cb) and (cc) of the Act.
The regulations commenced from the date of Gazettal.
Overview
The Migration Regulations (Amendment) Statutory Rules No. 201 of 1988, issued by the authority of the Minister for Immigration, Local Government and Ethnic Affairs, was enacted to align the Migration Regulations with the changes made by the Migration Amendment Act 1988. This Act repealed Section 34A of the Migration Act 1958, which had imposed a fee on passengers, other than prescribed passengers, for immigration clearance by an officer at the airport upon their entry into Australia. The fee was collected by the international air carrier and was payable to the Commonwealth, irrespective of whether the fee was actually collected from the passenger. The purpose of these regulations was to ensure that the Migration Regulations were consistent with the legislative amendments, thereby addressing the gap left by the repeal of the relevant sections and regulations.
Scope and Application
The Migration Regulations (Amendment) Statutory Rules 1988 pertain to the collection and payment of fees for immigration clearance by international air operators as prescribed under the Migration Act 1958. Specifically, the Act applies to international air carriers responsible for collecting fees from passengers entering Australia, except for those who fall under the category of prescribed passengers as defined by regulation. The repealed sections and regulations concern the imposition of a $5 fee per passenger for immigration clearance, a fee collected by the international air carrier and payable to the Commonwealth regardless of whether the fee was collected from the passenger. The scope of the Act includes the geographic jurisdiction of Australia, with the application extending to all international air carriers operating flights into the country. The application of the Act is limited to the conduct and transactions directly related to the collection and payment of the specified fees, and it does not extend to other areas of immigration or aviation regulation. Any exclusions, exemptions, or thresholds are defined by the specific provisions of the repealed sections and regulations. The application of this legislation may be further extended or restricted through subordinate instruments as deemed necessary by the Minister for Immigration, Local Government and Ethnic Affairs.
Key Provisions
The key operative sections of the Migration Regulations (Amendment) Statutory Rules No. 201 of 1988 concern the repeal of the regulations pertaining to the collection of fees for immigration clearance at Australian airports. Specifically, Regulation 30A, which prescribed the fee amount of $5 for immigration clearance, and Regulation 30B, which defined the prescribed passengers exempt from this fee, are repealed (sections 3 and 4). These repeals follow the removal of sections 34A and relevant subsections 67(1)(cb) and (cc) of the Migration Act 1958, which had originally mandated the imposition and collection of these fees by international air carriers.
The obligations and requirements imposed by these regulations on international air operators have been effectively nullified with the repeal of the underlying legislative framework. Prior to the repeal, international air operators were required to collect a fee from passengers entering Australia and remit this amount to the Commonwealth. The repeal of these sections and regulations means that international air carriers are no longer obligated to collect or pay these fees. This change in regulatory requirements aligns with the broader legislative shift that removed the statutory basis for the fees themselves.
The previous framework contained provisions for potential breaches and enforcement actions. Under the repealed regulations, failure to collect the specified fee from passengers or remit the collected amounts to the Commonwealth could have led to civil or administrative penalties. However, with the repeal of these regulations and the underlying sections of the Act, there are no longer any specific offences, penalties, or consequences for non-compliance with these now-defunct regulatory requirements. The cessation of these fees and the corresponding regulatory obligations reflect a significant change in the administration of immigration clearance at Australian airports.