Migration Legislation Amendment Act (No.1) 2008

15 September 2008 Legislation Change

Client summary

The Migration Legislation Amendment Act (No.1) 2008 received the Royal Assent on 15 September 2008.

Most items in this Act will commence on a day or days to be fixed by proclamation, however the amendments to the Migration Act 1958 (‘the Migration Act’) that correctly harmonise certain offence provisions with the Criminal Code 1995 (‘the Criminal Code’) commence on Royal Assent.

The technical amendments in relation to the Australian Citizenship (Transitionals and Consequentials) Act 2007 (‘the Citizenship Transitionals Act’) have retrospective effect and are taken to have commenced on 1 July 2007.  Decisions made on applications since 1 July 2007 have been validated by the amended items which commence on Royal Assent.

Affected legislation

The following provisions of the Migration Act are amended:

Division 12, Subdivision A of Part 2 of the Migration Act
Subsection 229(1)
Paragraphs 229(1)(a) to (e)
Subsection 229(4)
Subsection 232(1B)
Section 232A
Subsection 232A(2)
Subsection 233(1A)

Division 14 of Part 2 of the Migration Act
Subsection 268BJ(1)
Section 268CM
Section 268CN

The following provisions of the Citizenship Transitionals Act are amended:
Item 5B
Item 7

Additional information:

Amendments to the Migration Act 1958 that commence on Royal Assent

The amendments to the Migration Act that commence on Royal Assent correctly harmonise certain offence provisions with the Criminal Code by ensuring that a number of offences in the Migration Act that were unintentionally altered by the Migration Legislation Amendment (Application of Criminal Code) Act 2001 are amended to operate in the same way as they had previously, and by clarifying uncertain wording in some offence provisions in the Migration Act.

In 2001, the offence provisions under the Migration Act were “harmonised” to accord with the Commonwealth Criminal Code. Although the intention was to preserve the “status quo” in relation to the operation of these migration offences, it became apparent that a number of offences were altered so that a number of offences did not operate as they had done previously. This was an unintended consequence of the harmonisation process. These amendments now ensure that the provisions operate as originally intended, whilst remaining consistent with the Criminal Code in their structural framework.

Offences in relation to the carriage of non-citizens without documentation to Australia

There are amendments to the Migration Act which provide that the prosecution bears the legal burden of proving all of the elements of the offence of bringing non-citizens to Australia without documentation. Under these changes, the person is guilty of the offence if the prosecution can prove that, when entering Australia, the person is:

• not in possession of evidence of a visa that is in effect and that permits him or her to travel to and enter Australia; and
• does not hold a special purpose visa; and
• is not eligible for a special category visa; and
• does not hold an enforcement visa; and
• is not a person to whom subsection 42(1) applies (that is, a person who is not required to hold a visa).

Offence for a master, owner, agent and charterer of a vessel who brings a non-citizen to Australia without a visa – defendant bears an evidentiary burden

Amendments to the Migration Act insert a new provision into the Act (subsection 232(1B)), which provides that the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person (who has been transported to Australia by a master, owner, agent and charterer of a vessel and enters Australia without a visa and upon that entry would otherwise become an unlawful non-citizen, or enters Australia in contravention of section 43 of the Migration Act and as a result of section 173 becomes an unlawful non-citizen), because of subsection 42(2) or (2A) or regulations made under subsection 42(3) (that is, that the person is not required to hold a visa that is in effect).

Offences relating to bringing of groups of non-citizens into Australia

Amendments to the Migration Act insert a new provision into the Act (subsection 232A(2)), which provides that the defendant bears an evidential burden in relation to matters of exception to the offence of bringing a group of 5 or more non-citizens into Australia, reckless as to whether they are unlawful non-citizens.

Offences in relation to bringing non-citizens into Australia in contravention of the Migration Act or harboring illegal entrants

Amendments to the Migration Act insert a new provision into the Act (subsection 233(1A)), which makes it clear that strict liability applies to the physical element of circumstance of the offence of bringing non-citizens or coming to Australia under circumstances where it might reasonably be inferred that the non-citizen intended to enter Australia in contravention of the Migration Act.

Offence relating to giving a false or misleading document

Amendments have also been made to the Migration Act to ensure that the prosecution is no longer required to demonstrate that the defendant was aware that the person they were giving or showing false or misleading documents to, was an authorised officer within the meaning of the Migration Act.

Offence relating to giving or showing documents that are false or misleading in material particulars

Amendments have also been made to the Migration Act to ensure that the prosecution is no longer required to demonstrate that the defendant was aware that the person they were giving or showing false or misleading documents to, was an authorised officer within the meaning of the Migration Act.

For further detailed information about these amendments please see the Explanatory Memorandum in relation to Part 2 of Schedule 3 to the Migration Legislation Amendment Act (No.1) 2008.

Amendments to the Australian Citizenship (Transitionals and Consequentials) Act 2007

The amendments to the Australian Citizenship (Transitionals and Consequentials) Act 2007 (‘the Citizenship Transitionals Act’) have retrospective effect to 1 July 2007 when the amended items 5B and 7 commenced.

The amendments eliminate inconsistencies between the Citizenship Transitionals Act and the Australian Citizenship Act 2007 (‘the Citizenship Act’) and make clear that the residence discretions in subsections 22(5), (6) and (11) of the Citizenship Act apply to applications made by people who acquired permanent residence before 1 July 2007 and applications made but not decided before 1 July 2007 that are provided for in the Citizenship Transitionals Act.

The Department has however been taking a beneficial interpretation of the legislation and applying the residence discretions to these applications from 1 July 2007. These technical amendments are to clarify on the face of the legislation that the residence discretions apply to the above applications.

Transitional provisions:

The amendments to certain offence provisions in the Migration Act 1958 apply to a person who commits an offence from 15 September 2008.

The amendments to the Australian Citizenship (Transitionals and Consequentials) Act 2007 apply in relation to applications made on or after 1 July 2007.

Forms: No effect on forms.

Instructions: Australian Citizenship Instructions will be amended to reflect these changes.