EXPLANATORY STATEMENT
Subject: Migration Act 1958
Migration Regulations (Amendment)
Section 181 of the Migration Act 1958 (the Act) provides the power in so far as is relevant to prescribe matters which are required by the Act and which are necessary or convenient to be prescribed for the carrying out or giving effect to the Act and in particular making provision for and in relation to the charging and recovery of fees.
In addition, regulations are prescribed under the following powers:
sections 23 and 33 of the Act provide that without limiting the generality of section 181, the regulations may, inter alia, provide for different classes of visa and entry permits respectively.
The purpose of the regulations is to amend the Migration Regulations to make a number of technical amendments to correct inaccuracies in the regulations and make a number of technical amendments consequential upon the amendments made by Statutory Rule No. 237 of 1990.
Details of the regulations are set out in the Attachment.
Authority: Sections 23, 33, 181
Migration Act 1958
Issued by the Minister of State for Immigration, Local Government and Ethnic Affairs
ATTACHMENT
REGULATIONS (AMENDMENT)
Regulation 1 - Commencement
This regulation provides that regulation 6 is retrospective to 19 December 1989, the date when the error which regulation 6 is correcting was made.
This regulation also provides that regulations 2, 3, 4, 5.1, 6, 7, 8, 9 and 10 which are technical amendments correcting omissions and inaccuracies made by Statutory Rules No. 237 of 1990, are retrospective to 12 July 1990, the date these Statutory Rules were gazetted.
Regulation 2 - Amendments
This regulation provides for the Migration Regulations to be amended.
Regulation 3 - Regulation 2 (Interpretation)
This regulation makes an amendment to regulation 2(2) consequent upon changes to Schedule 3 of the Migration Regulations made in Statutory Rules No. 237 of 1990.
Regulation 4 - Regulation 18 (Mandatory conditions for grant of visas
This regulation corrects an error made in Statutory Rules No. 237 of 1990 in which reference was made to “Schedule 3” instead of “Schedule 2” of the Migration Regulations.
Regulation 5 - Grant of entry permit
Subparagraph 5.1 corrects an error made in Statutory Rules No. 237 of 1990 in which the subparagraph number (vi) was used instead of (vii).
Subparagraph 5.2 corrects an error made in Statutory Rules No. 237 of 1990 in which a reference to item 12 in Schedule 3, Part 2 of the Migration Regulations was omitted.
Regulation 6 - Regulation 125 (Prescribed criteria for grant of temporary entry permit to lawful temporary resident)
This regulation corrects an error made when the Migration Regulations were made on 19 December 1989 in which certain temporary residents were required to satisfy the prescribed health criteria specified in item 10 of Schedule 1 instead of those specified in item 9 of Schedule 1. The criteria in item 10 are more rigorous than those in item 9 and intended for permanent residents rather than temporary residents.
Regulation 7 - Regulation 185 (Fee on application for temporary entry permit granted only in Australia)
This regulation corrects an error made in Statutory Rules No. 237 of 1990 in which a reference to regulation 125A was omitted from sub-regulation 185(7) of the Migration Regulations.
Regulation 8 - Schedule 2 (Classes of visas, prescribed criteria and code numbers)
This regulation makes a minor technical amendment to item 12 of Part 3 of Schedule 2 of the Migration Regulations consequential upon an amendment made by Statutory Rules No. 237 of 1990.
Regulation 9 - schedule, /?/(pres<?rifr3<3 maafmretipn and mrofrsr <?t pointg)
This regulation corrects a minor error made to item 5 of Part 1 of Schedule 4 of the Migration Regulations in Statutory Rules No. 237 of 1990 in which reference was made to paragraph 146(d) instead of 146 (e).
Regulation 10 - Schedule 8 (Fees)
This regulation makes minor technical amendments to Parts 1 and 2 of Schedule 8 of the Migration Regulations consequential upon an amendment made by Statutory Rules No. 237 of 1990.
Overview
The Migration Act 1958 was enacted to provide for the control of migration into and out of Australia, and for related purposes. It was introduced to address the need for a comprehensive framework governing the entry, stay, and departure of individuals from Australia, ensuring that migration occurs in a manner that supports national interests and facilitates orderly immigration processes. The Act was enacted by the Parliament of Australia and has since been amended to address various policy objectives, including maintaining border security, ensuring the orderly flow of migrants, and supporting Australia's economic and social development. The Migration Regulations (Amendment) of 2004 were issued under the authority of sections 23, 33, and 181 of the Migration Act 1958 by the Minister of State for Immigration, Local Government and Ethnic Affairs. These amendments aimed to correct inaccuracies and make technical adjustments to the Migration Regulations, ensuring they align with the legislative intent and provide clarity and consistency in the administration of migration matters.
Scope and Application
The Migration Regulations (Amendment) primarily applies to the regulations under the Migration Act 1958, targeting the correction of inaccuracies and the implementation of technical amendments consequential to previous statutory rules. This includes adjustments to visa classifications, mandatory conditions for the grant of visas, and prescribed criteria for temporary entry permits. The amendments are applicable to all individuals and entities subject to the Migration Regulations, encompassing various industries and transactions related to migration and visa applications. The jurisdictional reach of these regulations is Commonwealth-wide, applying uniformly across Australia. Notably, the regulations are retrospective, correcting errors and omissions from specific dates, such as 19 December 1989 and 12 July 1990. The Act extends its application through subordinate instruments, allowing for detailed technical adjustments and clarifications necessary for the effective implementation of migration policies.
Key Provisions
The primary sections of the Migration Regulations (Amendment) (No. 1) 2004 pertain to the technical amendments necessary to correct inaccuracies in the existing regulations and to make consequential changes as a result of amendments made by Statutory Rule No. 237 of 1990. Regulation 1 specifies the commencement date of these amendments, making them retrospective to the dates when the errors were originally made or when the consequential amendments were gazetted. Regulation 2 mandates the amendment of the Migration Regulations, and Regulations 3 to 10 detail specific technical amendments to correct errors and omissions in the regulations.
These amendments impose obligations on relevant parties to ensure compliance with the corrected provisions. For instance, Regulation 6 corrects an error regarding the prescribed health criteria for temporary entry permits, ensuring that lawful temporary residents are required to meet the appropriate criteria. Similarly, Regulations 7 and 8 address specific references and classifications within the regulations, ensuring accuracy and consistency across the regulatory framework.
The Migration Act 1958 outlines various offences and penalties for breaches of its provisions, although specific penalties are not detailed in this explanatory statement. Generally, breaches of the Migration Act can lead to civil penalties, including fines, and criminal penalties, including imprisonment. For example, knowingly making a false or misleading statement to obtain a visa or entry permit can result in substantial fines and imprisonment. The specific penalties depend on the nature and severity of the breach, with maximum penalties often stipulated in the Act itself or in associated regulations.
These amendments are crucial for maintaining the integrity and effectiveness of the migration regulatory framework, ensuring that all provisions are correctly applied and enforced. Compliance with these regulations is mandatory for all parties involved, including applicants, visa holders, and immigration authorities, to avoid potential legal repercussions.