Migration Amendment (Border Integrity) Act 2007 No. 62, 2007 An Act to amend the law relating to migration, and for related purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Special purpose visas Migration Act 1958 Schedule 2—Immigration clearance Migration Act 1958 Schedule 3—Special category visas Migration Act 1958 Migration Amendment (Border Integrity) Act 2007 No. 62, 2007 An Act to amend the law relating to migration, and for related purposes [Assented to 15 April 2007] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Migration Amendment (Border Integrity) Act 2007. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 15 April 2007 2. Schedule 1 A single day to be fixed by Proclamation. 1 July 2007 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. (see F2007L01792) 3. Schedules 2 and 3 A single day to be fixed by Proclamation. 1 July 2007 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. (see F2007L01792) Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Special purpose visas Migration Act 1958 1 Subparagraph 33(5)(a)(iii) Repeal the subparagraph, substitute: (iii) if the Minister makes a declaration under subsection (9) in relation to the non‑citizen, or a class of persons of which the non‑citizen is a member—the time when that declaration takes effect; 2 Subparagraph 33(5)(b)(v) Repeal the subparagraph, substitute: (v) if the Minister makes a declaration under subsection (9) in relation to the non‑citizen, or a class of persons of which the non‑citizen is a member—the time when that declaration takes effect. 3 After subsection 33(5) Insert: (5A) For the purposes of subsection (5), the time when a declaration made by the Minister under subsection (9) takes effect is: (a) if the Minister specifies a time in the declaration (which must be after the time when the declaration is made) as the time the declaration takes effect—the time so specified; or (b) if the Minister does not specify such a time in the declaration—the end of the day on which the declaration is made. 4 Application The amendments of the Migration Act 1958 made by this Schedule apply to declarations made under subsection 33(9) of that Act on or after the commencement of this item. Schedule 2—Immigration clearance Migration Act 1958 1 Subsection 5(1) Insert: authorised system, when used in a provision of this Act, means an automated system authorised in writing by the Minister or the Secretary for the purposes of that provision. 2 Subsection 5(1) Insert: clearance authority has the meaning given by section 165. 3 Subsection 5(1) Insert: clearance officer has the meaning given by section 165. 4 After subsection 5(1A) Insert: (1B) The Minister or the Secretary has the power to give authorisations as provided by the definition of authorised system. 5 Paragraph 5B(c) Omit "166(1C)", substitute "166(8)". 6 Section 165 Omit "In this Subdivision", substitute "In this Division". 7 Section 165 Insert: clearance authority means: (a) a clearance officer; or (b) an authorised system. 8 Section 165 Insert: eligible passport means a passport of a kind specified in a determination under section 175A. 9 Section 166 Repeal the section, substitute: 166 Persons entering to present certain evidence of identity etc. Requirement to be immigration cleared (1) A person, whether a citizen or a non‑citizen, who enters Australia must, without unreasonable delay: (a) present the following evidence (which might include a personal identifier referred to in subsection (5)) to a clearance authority: (i) if the person is a citizen (whether or not the person is also the national of a country other than Australia)—the person's Australian passport or prescribed other evidence of the person's identity and Australian citizenship; (ii) if the person is a non‑citizen—evidence of the person's identity and of a visa that is in effect and is held by the person; and (b) provide to a clearance authority any information (including the person's signature, but not any other personal identifier) required by this Act or the regulations; and (c) if the person is a non‑citizen and prescribed circumstances exist—comply with any requirement, made by a clearance authority before an event referred to in subparagraph 172(1)(a)(iii) or (b)(iii) or paragraph 172(1)(c) occurs, to provide one or more personal identifiers referred to in subsection (5) of this section to a clearance officer. Note: A person might be taken to have complied with this section under subsection 167(3) or (4) or might not be required to comply under section 168 or 169. Who may use an authorised system (2) A person may comply with a requirement referred to in subsection (1) to present evidence, or provide information, to an authorised system only if: (a) the person holds an eligible passport; and (c) either: (i) before an event referred to in subparagraph 172(1)(a)(iii) or (b)(iii) or paragraph 172(1)(c) occurs, neither the system nor a clearance officer requires the person to present or provide evidence, information or personal identifiers referred to in subsection (1) of this section (other than a passenger card) to a clearance officer; or (ii) if subparagraph (i) of this paragraph applies—a clearance officer determines that the person has complied with subsection (1) of this section. Complying with paragraphs (1)(a), (b) and (c) (3) Subject to section 167, a person is to comply with paragraphs (1)(a) and (b) of this section in a prescribed way. (4) A person is taken to have complied with subparagraph (1)(a)(i) if a clearance officer knows or reasonably believes that the person is an Australian citizen. (5) Under paragraphs (1)(a) and (c), a person may only be required to present or provide (including in digital form) one or more of the following personal identifiers: (a) a photograph or other image of the person's face and shoulders; (b) the person's signature; (c) any other personal identifier contained in the person's passport or other travel document; (d) any other personal identifier of a type prescribed for the purposes of this paragraph. Note: Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide. Complying with paragraph (1)(c) (6) Paragraph (1)(c) does not limit a clearance authority's power under subparagraph (1)(a)(ii) to require a non‑citizen to present to the authority evidence (which might include a personal identifier) of the non‑citizen's identity. (7) A non‑citizen is taken not to have complied with a requirement referred to in paragraph (1)(c) unless the one or more personal identifiers are provided by way of one or more identification tests carried out by an authorised officer. Note: If the types of identification tests that the authorised officer may carry out are specified under section 5D, then each identification test must be of a type so specified. (8) However, subsection (7) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the non‑citizen: (a) provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and (b) complies with any further requirements that are prescribed relating to the provision of the personal identifier. 10 Paragraph 167(3)(b) Omit "(aa) and (b)", substitute "(b) and (c)". Note: The heading to section 167 is altered by omitting "given" and substituting "presented". 11 Paragraphs 170(1)(a) and (b) Repeal the paragraphs, substitute: (a) to present to the officer or an authorised system prescribed evidence (which might include a personal identifier referred to in subsection (2A)) of the person's identity; and (b) to provide to the officer or an authorised system any information (including the person's signature, but not any other personal identifier) required by this Act or the regulations. Note 1: The heading to section 170 is altered by omitting "give" and substituting "present". Note 2: The following heading to subsection 170(1) is inserted "Persons on overseas vessels may be required to present evidence of identity". 12 Subsection 170(2) Omit "clearance officer at either port or by officers at both ports", substitute "clearance authority at either or both ports". Note: The following heading to subsection 170(2) is inserted "Certain persons to provide personal identifiers". 13 At the end of subsection 170(2) Add "referred to in subsection (2A) to a clearance officer". 14 After subsection 170(2) Insert: Who may use an authorised system (2AA) A person may comply with a requirement referred to in subsection (1) to present evidence, or provide information, to an authorised system only if: (a) the person holds an eligible passport; and (c) either: (i) before the person leaves the port at which the requirement is made, neither the system nor a clearance officer requires the person to present or provide evidence, information or personal identifiers referred to in subsection (1) or (2) (other than a passenger card) to a clearance officer; or (ii) if subparagraph (i) applies—a clearance officer determines that the person has complied with the requirement referred to in subsection (1). 15 Subsection 170(2A) Omit all the words from and including "An officer" to and including "digital form)", substitute "Under paragraph (1)(a) and subsection (2), a person may only be required to present or provide (including in digital form) one or more of the following personal identifiers". Note: The following heading to subsection 170(2A) is inserted "Complying with subsection (2)". 16 Subsection 170(3) Omit "show the officer evidence (other than a personal identifier)", substitute "present to the officer or an authorised system evidence (which might include a personal identifier)". 17 Paragraph 171(a) Omit "showing", substitute "presenting". 18 Subparagraphs 172(1)(a)(iii) and (b)(iii) Omit "clearance officer", substitute "clearance authority". Note: The following heading to subsection 172(1) is inserted "When a person is immigration cleared". 19 Paragraph 172(2)(a) After "an officer", insert "or at an authorised system". Note: The following heading to subsection 172(2) is inserted "When a person is in immigration clearance". 20 Paragraph 172(3)(b) Repeal the paragraph, substitute: (b) satisfies one or more of the following subparagraphs: (i) the person has his or her visa cancelled; (ii) the person refuses, or is unable, to present to a clearance officer evidence referred to in paragraph 166(1)(a); (iii) the person refuses, or is unable, to provide to a clearance officer information referred to in paragraph 166(1)(b); (iv) the person refuses, or is unable, to comply with any requirement referred to in paragraph 166(1)(c) to provide one or more personal identifiers to a clearance officer. Note 1: The following heading to subsection 172(3) is inserted "When a person is refused immigration clearance". Note 2: The following heading to subsection 172(4) is inserted "When a person bypasses immigration clearance". 21 Paragraphs 175(1)(a) and (b) Repeal the paragraphs, substitute: (a) present the following evidence (which might include a personal identifier referred to in subsection (2A)) to the officer or an authorised system: (i) if the person is a citizen (whether or not the person is also the national of a country other than Australia)—the person's Australian passport or prescribed other evidence of the person's identity and Australian citizenship; (ii) if the person is a non‑citizen—evidence of the person's identity and permission to remain in Australia; and (b) provide to the officer or an authorised system any information (including the person's signature, but not any other personal identifier) required by this Act or the regulations. Note 1: The heading to section 175 is altered by omitting "give" and substituting "present". Note 2: The following heading to subsection 175(1) is inserted "Departing persons may be required to present evidence etc.". 22 Subsection 175(2) Omit "clearance officer", substitute "clearance authority". Note: The following heading to subsection 175(2) is inserted "Certain persons to provide personal identifiers". 23 At the end of subsection 175(2) Add "referred to in subsection (2A) to a clearance officer". 24 After subsection 175(2) Insert: Who may use an authorised system (2AA) A person may comply with a requirement referred to in subsection (1) to present evidence, or provide information, to an authorised system only if: (a) the person holds an eligible passport; and (c) either: (i) before the vessel leaves Australia, neither the system nor a clearance officer requires the person to present or provide evidence, information or personal identifiers referred to in subsection (1) or (2) (other than a passenger card) to a clearance officer; or (ii) if subparagraph (i) applies—a clearance officer determines that the person has complied with the requirement referred to in subsection (1). 25 Subsection 175(2A) Omit all the words from and including "An officer" to and including "digital form)", substitute "Under paragraph (1)(a) and subsection (2), a person may only be required to present or provide (including in digital form) one or more of the following personal identifiers". Note: The following heading to subsection 175(2A) is inserted "Complying with paragraph (1)(a) and subsection (2)". 26 Subsection 175(3) Omit "show the officer evidence (other than a personal identifier)", substitute "present to the officer or an authorised system evidence (which might include a personal identifier)". 27 At the end of Division 5 of Part 2 Add: 175A Determinations relating to kinds of passports For the purposes of this Division, the Minister or the Secretary may, by legislative instrument, determine that a specified kind of passport is an eligible passport. 28 Paragraphs 188(1)(a) and (b) Omit "show the officer evidence", substitute "present to the officer evidence (which might include a personal identifier referred to in subsection (4A))". Note 1: The following heading to subsection 188(1) is inserted "Officer may require evidence". Note 2: The following heading to subsection 188(4) is inserted "Certain persons to provide personal identifiers". 29 At the end of subsection 188(4) Add "referred to in subsection (4A) to an officer". 30 Subsection 188(4A) Omit all the words from and including "An officer" to and including "digital form)", substitute "Under subsections (1) and (4), a person may only be required to present or provide (including in digital form) one or more of the following personal identifiers". Note: The following heading to subsection 188(4A) is inserted "Complying with subsections (1) and (4)". 31 Subsection 188(5) Omit "show the officer evidence (other than a personal identifier)", substitute "present to the officer evidence (which might include a personal identifier)". 32 Subparagraphs 190(1)(b)(ii) to (iii) Repeal the subparagraphs, substitute: (ii) went to a clearance authority but was not able to present, or otherwise did not present, evidence required by section 166 to be presented; (iii) if a non‑citizen—went to a clearance authority but was not able to provide, or otherwise did not provide, information required by section 166 to be provided; (iv) if a non‑citizen—went to a clearance officer but was not able to comply with, or did not otherwise comply with, any requirement referred to in section 166 to provide one or more personal identifiers to the clearance officer. 33 Subparagraph 191(1)(c)(i) Omit "shows an officer", substitute "presents to a clearance officer". 34 Subsection 258C(1) Omit "166(1C)", substitute "166(8)". 35 Application The amendments of the Migration Act 1958 made by this Schedule apply in relation to: (a) persons who enter Australia; and (b) persons who go outside the migration zone; and (c) persons who travel, or appear to intend to travel, from a port; and (d) persons who are on board, or about to board, vessels that are to leave Australia (whether or not after calling at places in Australia); on or after the commencement of this item. 36 Transitional—instruments (1) The following table has effect: Regulations in force immediately before commencement Item If, immediately before the commencement of this subitem, regulations made for the purposes of the following provision of the Migration Act 1958, were in force ... the regulations are, on the commencement of this subitem, taken to have been made for the purposes of the following provision of that Act ... 1 paragraph 166(1)(aa) paragraph 166(1)(c) 2 paragraph 166(1AA)(d) paragraph 166(5)(d) 3 subsection 166(1C) subsection 166(8) 4 subsection 166(2) subsection 166(3) (2) The amendment made by item 9 of this Schedule does not affect the continuity of any regulations made for the purposes of paragraph 166(1)(b) of the Migration Act 1958 that were in force immediately before the commencement of this subitem. (3) Subject to subitem (1), an amendment made by this Schedule does not affect the continuity of any other regulations made for the purposes of Division 5 of Part 2 of the Migration Act 1958, or a provision of that Division, that was in force immediately before the commencement of this subitem. Schedule 3—Special category visas Migration Act 1958 1 Subparagraph 32(2)(a)(i) Omit "shown an officer", substitute "presented to an officer or an authorised system". 2 At the end of section 32 Add: (3) A person may comply with subparagraph (2)(a)(i) by presenting a New Zealand passport to an authorised system only if: (a) the New Zealand passport is of a kind determined under section 175A to be an eligible passport for the purposes of Division 5 of Part 2; and (c) before the person is granted a special category visa, neither the system nor an officer requires the person to present the passport to an officer. 3 Section 99 Omit "gives, causes to be given or that is given on his or her behalf to the Minister, an officer", substitute "gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system". 4 Section 99 After "information is given", insert "or provided". 5 Section 100 Omit "gave the answer or caused the answer to be given", substitute "gave or provided the answer, or caused the answer to be given or provided,". 6 Section 101 After "fill in", insert "or complete". 7 Paragraph 101(b) After "given", insert "or provided". 8 Section 103 Omit "give an officer", substitute "give, present or provide to an officer, an authorised system". Note: The heading to section 103 is altered by adding at the end "etc.". 9 At the end of section 103 Add ", presented or provided". 10 Paragraph 105(1)(a) After "given", insert "or provided". 11 Subsection 105(1) After "was given", insert "or provided". Note: The heading to section 106 is altered by inserting "etc." after "give". [Minister's second reading speech made in— House of Representatives on 11 October 2006 Senate on 28 March 2007] (146/06)