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MIGRATION AMENDMENT REGULATIONS 2009 (NO. 1) (SLI NO 7 OF 2009)
EXPLANATORY STATEMENT
Migration Act 1958
Migration Amendment Regulations 2009 (No. 1)
Subsection 504(1) of the Migration Act 1958 (the ‘Act’) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
In addition, regulations may be made pursuant to the provisions of the Act in Attachment A.
The purpose of the Regulations is to amend the Migration Regulations 1994 (the ‘Principal Regulations’) to:
Details of the Regulations are set out in the Attachment B.
Regulations 1, 2 and 3 and the amendment in Schedule 1 commence at the same time as items 14 and 15 of Part 2 of Schedule 2 to the Migration Legislation Amendment Act (No. 1) 2008 (the ‘Amendment Act’). These items amend the Act to allow the pre-arrival timeframes for ships to be prescribed in the Principal Regulations. They commence by Proclamation on 15 February 2009. (See separate Minute No. 1 of 2009 - Minister for Immigration and Citizenship.)
Regulation 4 and the amendment in Schedule 2 commence at the same time as item 17 of Part 2 of Schedule 2 to the Amendment Act. This item amends the Act to allow the infringement notice regime to be established and commences on 15 March 2009 (six months after the Amendment Act received the Royal Assent).
The Office of Best Practice Regulation’s Best Practice Regulation Preliminary Assessment was used to determine that there would be no compliance cost to business for the amendments to commence on 15 February 2009, and low compliance cost to business for the amendments to commence on 15 March 2009. This is as operators of aircraft and ships already have the necessary reporting framework and systems in place and current reporting compliance exceeds 99.5%. The Office of Best Practice Regulation has confirmed that the changes to the infringement notice regime are such that no further regulatory impact analysis is required.
The amendments contained in Schedules 1 and 2 were developed in consultation with the Australian Customs Service (ACS). Industry stakeholders have been notified of the amendments. In the case of airlines, briefings on the implementation of the infringement regime have been ongoing since 2006, including an Airline Industry Briefing held in Sydney in December 2008.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
ATTACHMENT A
Subsection 245L(5) of the Act, which is yet to commence, provides that the Migration Regulations 1994 (the ‘Principal Regulations’) may prescribe the timeframes for a ship to report on each passenger and crew member prior to its arrival in Australia.
Subsection 245L(5A) of the Act, which is yet to commence, provides that the Regulations may prescribe matters of a transitional nature (including prescribing any saving or application provisions) arising out of the making of the Regulations for the purposes of subsection 245L(5).
Items 14 and 15 of the Migration Legislation Amendment Act (No. 1) 2008 (the ‘Amendment Act’) contain subsections 245L(5) and 245L(5A). These items are proposed to commence on 15 February 2009 by proclamation, pursuant to item 2 of the table in subsection 2(1) of the Amendment Act. The amendment in Schedule 1 to the amendment Regulations that prescribes pre-arrival timeframes for ships under subsections 245L(5) and 245L(5A) commences at the same time on 15 February 2009.
Paragraph 504(1)(jaa) of the Act, which is yet to commence, provides that the Principal Regulations may prescribe the penalty, not exceeding 10 penalty units, which a person who is alleged to have committed an offence against subsection 245N(2) of the Act may pay to the Commonwealth, as an alternative to prosecution. Subsection 245N(2) of the Act provides that an operator of an aircraft or ship who contravenes subsection 245L(2) commits an offence which is punishable by a maximum penalty of 60 penalty units. Subsection 245L(2) requires an operator of an aircraft or ship to report on each passenger and crew member who is on board the aircraft or ship prior to its arrival in Australia.
Item 17 of the Amendment Act contains paragraph 504(1)(jaa). That item is proposed to commence on 15 March 2009 by operation of law, pursuant to item 2 of the table in subsection 2(1) of the Amendment Act. (See Minute No. 1 of 2009 - Minister for Immigration and Citizenship.) The amendments in Schedule 2 to the amendment Regulations that prescribe the penalty which a person who is alleged to have committed an offence against subsection 245N(2) of the Act may pay to the Commonwealth as an alternative to prosecution, commence at the same time on 15 March 2009.
ATTACHMENT B
Details of the proposed Migration Amendment Regulations 2009 (No. 1)
Regulation 1 – Name of Regulations
This Regulation provides that the title of the Regulations is the Migration Amendment Regulations 2009 (No. 1).
Regulation 2 – Commencement
This regulation prescribes when the Regulations commence.
Paragraph 2(a) provides that regulations 1, 2 and 3 and Schedule 1 to the Regulations commence on 15 February 2009.
Paragraph 2(b) provides that regulation 4 and Schedule 2 to the Regulations commence on 15 March 2009.
Regulation 3 – Amendment of Migration Regulations 1994 – Schedule 1
Regulation 3 provides that Schedule 1 (Amendment commencing on 15 February 2009) amends the Migration Regulations 1994 (the ‘Principal Regulations’)
Regulation 4 – Amendment of Migration Regulations 1994 – Schedule 2
Subregulation 4(1) provides that Schedule 2 (Amendments commencing on 15 March 2009) also amends the Principal Regulations.
Subregulation 4(2) provides that the amendments made by Schedule 2 apply in relation to an offence against subsection 245N(2) of the Migration Act 1958 (the ‘Act’) which is alleged to have been committed on or after 15 March 2009.
Schedule 1 – Amendment commencing on 15 February 2009
Item [1] – After regulation 3.13C
This item inserts new regulation 3.13D in Part 3 of the Principal Regulations.
New regulation 3.13D prescribes the pre-arrival reporting timeframes for ships under new subsections 245L(5) and 245L(5A) which are being inserted in Division 12B of Part 2 of the Act. Among other things, Division 12B imposes an obligation on ship operators to report to the Department of Immigration and Citizenship, within specified timeframes, for journeys from the last port outside Australia, on each passenger and crew member who will be on board the ship at the time of its arrival in Australia.
Subsection 245L(5) of the Act, which will commence on 15 February 2009, provides that the Principal Regulations may prescribe the timeframes for ships to report on each passenger and crew member.
Subsection 245L(5A) of the Act, which will also commence on 15 February 2009, provides that the Principal Regulations may prescribe matters of a transitional nature (including prescribing any saving or application provisions) arising out of the making of the regulations.
Items 14 and 15 of the Migration Legislation Amendment Act (No. 1) 2008 (the ‘Amendment Act’) insert new subsections 245L(5) and 245L(5A) into the Act. These items will commence on 15 February 2009 by Proclamation, pursuant to item 2 of the table in subsection 2(1) of the Amendment Act. New regulation 3.13D will commence at the same time, on 15 February 2009.
The purpose of this amendment is to align reporting timeframes under the Act and Principal Regulations with those timeframes currently required under the Customs Act 1901 (the ‘Customs Act’) and Customs Regulations 1926 (the ‘Customs Regulations’).
Division 3 in Part 4 of the Customs Act provides, among other things, that the Australian Customs Service has the authority to require ship operators to report, within specified timeframes, on each passenger and crew member who will be on board the ship at the time of its arrival in Australia. Under Division 3 in Part 4 of the Customs Act, regulations 26, 27, 30A and 30B of the Customs Regulations prescribe the timeframes by which ship operators must report.
The reporting timeframes contained in new regulation 3.13D are consistent with the reporting timeframes contained in regulations 26, 27, 30A and 30B of the Customs Regulations. The alignment of reporting requirements in migration and customs legislation will prevent confusion in the shipping industry as to the applicable timeframes for reporting on each passenger and crew member.
New subregulation 3.13D(1) is a transitional provision made under subsection 245L(5A) of the Act. It provides that, for subsection 245L(5A) of the Act, in relation to a ship which begins a journey from the last port outside Australia before 15 February 2009 and arrives at a port in Australia on or after that date, the deadline for reporting on each passenger and crew member on the ship is to be determined in accordance with section 245L of the Act as in force immediately before 15 February 2009, and not in accordance with new subregulations 3.13D(2) and (3).
New subregulation 3.13D(2) prescribes 96 hours as the specified period for reporting for paragraph 245L(5)(a) of the Act. The effect of new subregulation 3.13D(2) is that where a ship begins a journey from the last port outside Australia on or after 15 February 2009 and the likely duration of the ship’s journey to a port in Australia is at least 96 hours, the period of time by which the ship must report on each passenger or crew member is 96 hours before the ship’s estimated time of arrival at a port in Australia.
New subregulation 3.13D(3) provides, for paragraph 245L(5)(b) of the Act, that where a ship begins a journey from the last port outside Australia on or after 15 February 2009 and the likely duration of the ship’s journey to a port in Australia is less than 96 hours, the period of time by which the ship must report on each passenger or crew member is specified in the table in new subregulation 3.13D(3).
Items 1 to 4 of the table specify the following reporting timeframes:
1 if the likely duration of a ship’s journey from the last port outside Australia takes 72 hours or more but less than 96 hours – then the ship operator must report on each passenger or crew member at least 72 hours prior to the ship’s estimated time of arrival in Australia;
2 if the likely duration of a ship’s journey from the last port outside Australia takes 48 hours or more but less than 72 hours – then the ship operator must report on each passenger or crew member at least 48 hours prior to the ship’s estimated time of arrival in Australia;
3 if the likely duration of a ship’s journey from the last port outside Australia takes 24 hours or more but less than 48 hours – then the ship operator must report on each passenger or crew member at least 24 hours prior to the ship’s estimated time of arrival in Australia; or
4 if the likely duration of a ship’s journey from the last port outside Australia takes less than 24 hours – then the ship operator must report on each passenger or crew member at least 12 hours prior to the ship’s estimated time of arrival in Australia.
Schedule 2 – Amendments commencing on 15 March 2009
Item [1] – Regulation 5.20, heading
This item substitutes a new heading in regulation 5.20 in Division 5.4 of Part 5 of the Principal Regulations.
Division 5.4 prescribes penalties for offences under sections 137, 229 and 230 of the Act.
The purpose of this amendment is to include a reference to subsection 245N(2) of the Act in the heading to regulation 5.20.
Item [2] – Subregulation 5.20(1)
This item omits the words “the purposes of” from subregulation 5.20(1) in Division 5.4 of Part 5 of the Principal Regulations.
The purpose of this amendment is to create consistent terminology throughout regulation 5.20. Item [4] substitutes new subregulations 5.20(2) and (3), that respectively provide “For paragraph 504(1)(j) of the Act” and “For paragraph 504(1)(jaa) of the Act”. The words “the purposes of” have not been used in these amendments and item 2 ensures consistency in language in regulation 5.20. This amendment is not intended to change the legal effect of subregulation 5.20(1).
Item [3] – Paragraph 5.20(1)(b)
This item omits the amount “$1,000.” and inserts the amount “$1 000.” in paragraph 5.20(1)(b) in Division 5.4 of Part 5 of the Principal Regulations.
The purpose of this amendment is to replace the comma with a space. Item [4] substitutes new subregulation 5.20(2) which includes amounts that do not contain commas. This amendment is to ensure references to amounts throughout regulation 5.20 are consistent. This amendment is not intended to change the legal effect of paragraph 5.20(1)(b).
Item [4] – Subregulation 5.20(2)
This item substitutes subregulation 5.20(2) and inserts new subregulation 5.20(3) in Division 5.4 of Part 5 of the Principal Regulations.
The effect of the amendment to subregulation 5.20(2) is to insert the word “prescribed” in subregulation 5.20(2). Paragraph 504(1)(j) of the Act provides that the Principal Regulations may prescribe the penalty to be paid, as an alternative to prosecution, in circumstances where a person is alleged to have contravened sections 229 or 230 of the Act. Section 229 prohibits the carrying of persons to Australia without visas and section 230 makes it an offence to have an unlawful non-citizen concealed on a vessel entering Australia. The insertion of the word “prescribed” in subregulation 5.20(2) is to ensure the terminology used throughout regulation 5.20 is consistent.
New subregulation 5.20(3) provides that, for paragraph 504(1)(jaa) of the Act, the prescribed penalty to be paid as an alternative to prosecution for a contravention of subsection 245N(2) of the Act is 10 penalty units.
Section 4AA of the Crimes Act 1914 provides that a penalty unit currently equals $110.
Paragraph 504(1)(jaa) of the Act provides that the Principal Regulations may prescribe the penalty, not exceeding 10 penalty units, which a person who is alleged to have committed an offence against subsection 245N(2) of the Act may pay to the Commonwealth, as an alternative to prosecution. Paragraph 504(1)(jaa) of the Act is contained in item 17 of Schedule 2 to the Amendment Act and will commence by operation of law on 15 March 2009.
Subsection 245N(2) of the Act provides that an operator of an aircraft or ship who contravenes subsection 245L(2) commits an offence which is punishable by a maximum penalty of 60 penalty units. Subsection 245L(2) requires an operator of an aircraft or ship to report on each passenger and crew member who is on board the aircraft or ship prior to its arrival in Australia.
Subsection 245N(3) provides that an offence against subsection 245N(2) is an offence of strict liability. New subsection 245N(4), which is contained in item 16A of Schedule 2 to the Amendment Act and will commence by operation of law on 15 March 2009, provides that an operator of an aircraft or ship commits a separate offence under subsection 245N(1) or 245N(2), in relation to each passenger or crew member the operator fails to report on in accordance with subsection 245L(2).
The purpose of new subregulation 5.20(3) is to create an infringement notice regime which includes a prescribed penalty, as an alternative to prosecution, for operators of aircraft and ships who fail to report on each passenger or crew member, within specified timeframes, who will be on board the aircraft or ship at the time of its arrival in Australia. The infringement notice regime provided for under paragraph 504(1)(jaa) does not apply to subsection 245N(1) of the Act which creates an offence for an operator of an aircraft or ship who intentionally contravenes subsection 245L(2) of the Act.
Item [5] – Regulation 5.20, note
This item substitutes the note after regulation 5.20.
This amendment adds the notes in relation to subsections 245L(2) and 245N(2) that explain the relationship between subsections 245L(2) and 245N(2) of the Act.
The purpose of this amendment is to highlight the operation of subsections 245N(2) and 245L(2) of the Act.
Item [6] – Subregulation 5.21(1), definition of offence
This item substitutes the definition of ‘offence’ in subregulation 5.21(1) in Division 5.5 of Part 5 of the Principal Regulations.
This new definition applies throughout Division 5.5 of the Principal Regulations. The purpose of this amendment is to include a reference to subsection 245N(2) in the definition of offence in Division 5.5. This reference has been provided for in paragraph (b) of the definition as it refers to a subsection rather than to a section in the Act.
Item [7] – Regulation 5.21, note
This item substitutes the note after regulation 5.21.
This amendment adds the notes in relation to subsections 245L(2) and 245N(2) that explain the relationship between subsections 245L(2) and 245N(2) of the Act.
The purpose of this amendment is to highlight the operation of subsections 245N(2) and 245L(2) of the Act.