CHAPTER 2 - OVERVIEW OF THE BILL
Main Provisions
Schedule 1 - Immigration clearance of child born in Australia
to non-citizen parents
2.1
Section 172 of the Migration Act 1958 (Migration Act) indicates several ways in which
a non-citizen can be immigration cleared and be lawfully free to move about in
the Australian community. First, he or she enters Australia
with a visa at a port, provides any required information to the clearance
officer and, not being in immigration detention, leaves with the permission of
that officer. Secondly, he or she enters Australia otherwise than at a port but
with a visa, provides any required information to the clearance officer at a prescribed
place and, not being in immigration detention, leaves with the permission of
that officer. Thirdly, he or she is refused, or bypasses, immigration clearance
and is subsequently granted a substantive visa.[3]
2.2
Section 10 of the Migration Act provides that a
non-citizen child born in the migration zone is taken to have entered Australia
when he or she was born. Theoretically, this means that the child should have
been immigration cleared at birth if he or she is to be left free in the
community. The amendment in item 1 of Schedule 1 inserts a new provision, paragraph 172(1)(ba), which provides
that such a child is immigration cleared if a parent was immigration cleared on
last entry into Australia.[4]
2.3
Section 173 of the Migration Act provides that
if the holder of a visa enters Australia
in a way that contravenes section 43 of the Migration Act, the visa ceases to
be in effect. Section 43 provides that visa holders must enter at a port or on
a pre-cleared flight.[5]
2.4
Under section 78 of the Migration Act, a
non-citizen child born in Australia
is taken to have been granted a visa if, at the time of his or her birth, at
least one of the child’s parents holds a visa. This non-citizen child is taken
to have been granted the same visa as his or her parents. On a literal interpretation
of section 173, a non-citizen child’s visa taken to have been granted under section
78 would appear to cease when the
child enters Australia under section 10 in a way that 'contravenes' section 43 (i.e.
by birth).[6]
2.5
Item 5 of Schedule 1 inserts a new subsection
173(2) that puts it beyond doubt that a non-citizen child born in Australia
who, under section 78, is taken to have been granted a visa or visas at the time
of his or her birth, is not to be taken to have entered Australia in a way that
contravenes section 43 of the Migration Act such that the visa taken to have
been granted at birth ceases to be in effect at the same time.[7]
2.6
Items 1 and 5 of Schedule 1 apply to non-citizen
children born in Australia
on or after 1 September 1994
(see items 2 and 6 of Schedule 1). This date corresponds with the amendments to
the Migration Act by the Migration Reform
Act 1992, which introduced:
Schedule 2 – Criminal Code harmonisation amendments
People smuggling offences in sections 229(1), 232(1B)
and 232A(2): a reversed onus of proof
2.7
The Migration Act contains various offences
relating to the 'unlawful' entry of non-citizens into Australia.
Whilst it is not an offence for a non-citizen to arrive in Australia
without a visa, it is an offence for a person to be involved in bringing such
non-citizens to Australia.[8] Sections 229, 232 and 232A create
various offences in relation to people smuggling.
2.8
Currently, subsection 229(1) of the Migration
Act makes it an offence for the master, owner, agent, charterer and operator of
a vessel to bring a non-citizen into Australia unless the non-citizen, when
entering Australia, satisfies paragraphs 229(1)(a), (b), (c), (d) or (e).[9] Defences to the offence are set out in
subsection 229(5).
2.9
The current wording of the offence in section
229 makes it unclear as to whether the matters in paragraphs 229(1)(a) to (e)
constitute issues of exception to the
offence or are elements of the offence.
The Explanatory Memorandum states that there are two reasons why paragraphs
229(1)(a)-(e) should be considered elements of the offence:
The existence of the defences in subsection 229(5) implies that
the matters in paragraphs 229(1)(a) to (e) are not intended to be exceptions to
the offence in subsection 229(1). If those matters were exceptions, they would
co-exist with the defences in subsection 229(5), for which the defendant would
bear a legal burden. If that were the case, it would be unlikely that a
defendant would raise the matters in subsection 229(5) because they impose a
legal burden (rather than an evidential burden) on the defendant.
If the matters in paragraphs 229(1)(a) to (e) were matters of
exception, the subsection 229(1) absolute liability offence would be a very
wide offence. This is not intended to be the case.[10]
2.10
For these reasons, items 1 and 2 of Schedule 2 amend
subsection 229(1) to clarify that the matters in paragraphs 229(1)(a) to (e)
are elements of the offence in subsection
229(1).[11]
2.11
An element of each of the offences set out in
sections 229, 232 and 232A is that the non-citizen who is being brought into Australia
must be a person to whom subsection 42(1) of the Migration Act applies.
Subsection 42(1) provides that a person must not travel to Australia
without a visa that is in effect. Exceptions to subsection 42(1) are set out in
subsections 42(2), 42(2A) and regulations made under subsection 42(3).
2.12
Items 3, 4 and 6 of Schedule 2 make it clear
that, in relation to the offences in sections 229(1), 232 and 232A, the
defendant bears the evidential burden if establishing that subsection 42(1)
does not apply by virtue of the exemptions in subsections 42(2), 42(2A) or
regulations made under subsection 42(3).
People smuggling offence in s 233(1)(a) – strict
liability
2.13
Existing paragraph 233(1)(a) of the Migration
Act establishes another people smuggling offence, making it an offence to 'take
any part' in 'the bringing or coming to Australia of a non-citizen under
circumstances from which it might reasonably have been inferred that the
non-citizen intended to enter Australia in contravention of this Act.' The
penalty for contravening this provision is imprisonment for 10 years or 1000
penalty units, or both.[12]
2.14
Item 7 of Schedule 2 inserts proposed subsection
233(1A), to make it clear that strict
liability applies to this offence. Strict liability under section 6.1 of
the Criminal Code means that (a) there are no fault elements for any of the
physical elements of the offence; but (b) the defence of mistake of fact under
section 9.2 is available.[13] The
Explanatory Memorandum states that this amendment is necessary to restore the application of strict
liability to this offence:
Prior to the application of the Criminal Code to all offences
against the Act, strict liability applied to the physical element of
circumstance of the offence.
The physical element (ie: the circumstance element) in this
offence is:
-
'the bringing of the non-citizen to Australia
under circumstances where it might
reasonably be inferred that the non-citizen intended to enter in contravention
of the Migration Act'.
At the time the Criminal Code was applied to the Act, no
provision was made for strict liability to apply to the physical element of
circumstance of the offence in paragraph 233(1)(a).
The Criminal Code requires that if an offence is intended to be
one of strict liability, it must be expressly stated. This is because there is
a strong presumption that proof of fault is required in relation to an offence.
As there was no such express statement of strict liability in relation to this
aspect of the offence in paragraph 233(1)(a), the default element provisions
provided for in subsection 5.6(2) of the Criminal Code were applied. These
default provisions applied the fault element of 'recklessness' to the
circumstance of the offence. This changes the offence as it had been construed
prior to the application of the Criminal Code to the Act.[14]
Schedule 3 – The taking of securities
2.15
Section 269(1) of the Migration Act provides
that an authorised officer may require and take security for compliance with
the provisions of the Migration Act or the regulations, or any condition
imposed in pursuance of, or for the purposes of, the Migration Act or
regulations.
2.16
Item 2 of Schedule 3 inserts a new subsection
269(1A) provides that, in certain circumstances, an authorised officer may
require and take security under subsection 269(1), in relation to an application
for a visa before a visa is granted.[15]
2.17
Under new subsection 269(1A), an authorised
officer may do this only if:
-
the security is for compliance with conditions
that will be imposed on the visa in pursuance of, or for the purposes of, this
Act or the regulations, if the visa is granted; and
-
the officer has indicated those conditions to
the visa applicant.[16]
2.18
The purpose of the amendment is intended to clear
the uncertainty raised in the Federal Court decision of Tutugri v Minister for Immigration and Multicultural Affairs [1999]
FCA 1785. In that case, the Federal Court raised significant doubts about the
power of an authorised officer to request and take security for compliance with
conditions to be imposed on a visa at a time before the visa is actually
granted. The court considered that a condition on a visa does not bind the applicant
until after the visa is granted. As such, a condition cannot be said to have
been 'imposed prior to grant'.[17]
2.19
The decision in Tutugri has presented difficulties from a practical point of view
in the administration of security arrangements – the reason being, that a
security must be able to be required before a visa is granted. Once the visa is
granted, the holder can simply refuse to provide the security requested.[18]
Schedule 4 - Restrictions on bridging visa holders
2.20
Section 48 of the Migration Act currently limits
the visas that a non-citizen in the migration zone who does not hold a
substantive visa, and who was refused a visa after last entering Australia
or held a visa that was cancelled, can apply for. The Bill proposes by item 1
of Schedule 4 (headed 'Minor amendments') an amendment to section 48 stating
that, for the purposes of the section, a non-citizen who, while holding a
bridging visa, leaves and re-enters the migration zone is taken to have been
continuously in the migration zone despite that travel.
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