Migration Act 1958

The Acts specified in the Schedule to this Act are repealed.

Section 9 of the War Precautions Act Repeal Act 1920‑1955 and the heading to that section, and the Schedule to that Act, are repealed.

The War Precautions Act Repeal Act 1920‑1955, as amended by this section, may be cited as the War Precautions Act Repeal Act 1920‑1958.

Notwithstanding the repeals effected by this section:

a certificate of exemption in force under the Immigration Act 1901‑1949 immediately before the date of commencement of this Part shall, for all purposes of this Act, be deemed to be a temporary visa granted under this Act to the person specified in the certificate and authorizing that person to remain in Australia for a period ending on the date on which the certificate would have expired if this Act had not been passed.

For the purposes of paragraph (4)(a), where, before the commencement of this Part, a person who had previously entered Australia re‑entered Australia and, upon or after the re‑entry, a certificate of exemption purported to be issued to the person, the certificate shall be deemed to have been as validly issued as if the person had not previously entered Australia.

Unless the contrary intention appears, if a provision of this Act:

would, apart from this section, have an invalid application; but

also has at least one valid application;

Despite subsection (1), the provision is not to have a particular valid application if:

apart from this section, it is clear, taking into account the provision’s context and the purpose or object underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth’s legislative power; or

the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth’s legislative power.

Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).

This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section.

In this section:

one or more particular persons, things, matters, places, circumstances or cases; or

one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases.

If:

this Act would result in an acquisition of property; and

any provision of this Act would not be valid, apart from this section, because a particular person has not been compensated;

a reasonable amount of compensation agreed on between the person and the Commonwealth; or

failing agreement—a reasonable amount of compensation determined by a court of competent jurisdiction.

Any damages or compensation recovered, or other remedy given, in a proceeding begun otherwise than under this section must be taken into account in assessing compensation payable in a proceeding begun under this section and arising out of the same event or transaction.

In this section:

The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens.

To advance its object, this Act provides for visas permitting non‑citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non‑citizens to so enter or remain.

To advance its object, this Act provides for non‑citizens and citizens to be required to provide personal identifiers for the purposes of this Act or the regulations.

To advance its object, this Act provides for the removal or deportation from Australia of non‑citizens whose presence in Australia is not permitted by this Act.

To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country.

The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.

For the purposes of subsection (1), the reference to a minor being detained does not include a reference to a minor residing at a place in accordance with a residence determination.

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

This section applies in relation to a non‑citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).

For the purposes of this Act, it is the responsibility of the non‑citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.

The purposes of this Act include:

the purposes of a regulation or other instrument under this Act; and

the purposes of any administrative process that occurs in relation to:

this Act; or

a regulation or instrument under this Act.

To remove doubt, the Minister does not have any responsibility or obligation to:

specify, or assist in specifying, any particulars of the non‑citizen’s claim; or

establish, or assist in establishing, the claim.

For the purposes of this Act, a person is an unauthorised maritime arrival if:

the person entered Australia by sea:

at an excised offshore place at any time after the excision time for that place; or

at any other place at any time on or after the commencement of this section; and

the person became an unlawful non‑citizen because of that entry; and

the person is not an excluded maritime arrival.

For the purposes of this Act, a person is also an unauthorised maritime arrival if:

the person is born in the migration zone; and

a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and

the person is not an Australian citizen at the time of birth.

For who is a parent of a person, see the definition in subsection 5(1) and section 5CA.

A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa.

A person to whom this subsection applies is an unauthorised maritime arrival even if the person is taken to have been granted a visa because of section 78 (which deals with the birth in Australia of non‑citizens).

For when a person is an Australian citizen at the time of his or her birth, see section 12 of the Australian Citizenship Act 2007.

This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.

For the purposes of this Act, a person is also an unauthorised maritime arrival if:

the person is born in a regional processing country; and

a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and

the person is not an Australian citizen at the time of his or her birth.

A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa.

This Act may apply as mentioned in subsection (1AA) even if either or both parents of the person holds a visa, or is an Australian citizen or a citizen of the regional processing country, at the time of the person’s birth.

This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.

A person entered Australia by sea if:

the person entered the migration zone except on an aircraft that landed in the migration zone; or

the person entered the migration zone as a result of being found on a ship detained under section 245F (as in force before the commencement of section 69 of the Maritime Powers Act 2013) and being dealt with under paragraph 245F(9)(a) (as in force before that commencement); or

the person entered the migration zone as a result of the exercise of powers under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; or

the person entered the migration zone after being rescued at sea.

A person is an excluded maritime arrival if the person:

is a New Zealand citizen who holds and produces a New Zealand passport that is in force; or

is a non‑citizen who:

holds and produces a passport that is in force; and

is ordinarily resident on Norfolk Island; or

is included in a prescribed class of persons.

In this section:

An unauthorised maritime arrival who has been taken to a place outside Australia may also be a transitory person: see the definition of transitory person in subsection 5(1).

Paragraph 501(7)(c) applies in relation to a person sentenced to a term of imprisonment of 12 months or more. Because of this section, that paragraph applies in relation to a person sentenced to such a term, whether the sentence is imposed for a single offence or for 2 or more offences.

In this Act:

fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies);

a measurement of a person’s height and weight;

a photograph or other image of a person’s face;

See section 5BA.

an audio or a video recording of a person (other than a video recording under section 261AJ);

an iris scan;

a person’s signature;

any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.

Before the Governor‑General makes regulations for the purposes of paragraph (1)(g) prescribing an identifier, the Minister must be satisfied that:

obtaining the identifier would not involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914; and

the identifier is an image of, or a measurement or recording of, an external part of the body; and

obtaining the identifier will promote one or more of the purposes referred to in subsection (3).

The purposes are:

to assist in the identification of, and to authenticate the identity of, any person who can be required under this Act to provide a personal identifier; and

to assist in identifying, in the future, any such person; and

to improve the integrity of entry programs; and

to improve passenger processing at Australia’s border; and

to facilitate a visa‑holder’s access to his or her rights under this Act or the regulations; and

to improve the procedures for determining visa applications; and

to improve the procedures for determining claims from people seeking protection as refugees; and

to assist in determining whether a person is an unlawful non‑citizen or a lawful non‑citizen; and

to enhance the Department’s ability to identify non‑citizens who have a criminal history or who are of character concern; and

to assist in identifying persons who may be a security concern to Australia or a foreign country; and

to combat document and identity fraud in immigration matters; and

to detect forum shopping by applicants for visas; and

to ascertain whether:

an applicant for a protection visa; or

an unauthorised maritime arrival who makes a claim for protection as a refugee; or

an unauthorised maritime arrival who makes a claim for protection on the basis that the person will suffer significant harm;

to complement anti‑people smuggling measures; and

to inform the governments of foreign countries of the identity of non‑citizens who are, or are to be, removed or deported from Australia.