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2004 - 2005 - 2006 - 2007
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (BORDER INTEGRITY) BILL 2006
SUPPLEMENTARY EXPLANATORY MEMORANDUM
(GOVERNMENT)
(Amendments to be moved on Behalf of the Government)
(Circulated by authority of the
Minister for Immigration and Citizenship,
the Hon Kevin Andrews MP)
AMENDMENTS TO THE MIGRATION AMENDMENT (BORDER
INTEGRITY) BILL 2006
OUTLINE
1. The purpose of these amendments to the Migration Amendment (Border
Integrity) Bill 2006 (`the Bill') is to ensure passenger cards containing signatures can
continue to be collected in immigration clearance from persons entering and departing
Australia.
1. The Bill proposes to amend the Migration Act 1958 to:
· provide that a special purpose visa may cease at a time specified by the Minister
where the Minister has made a declaration under subsection 33(9) of the Migration
Act that it is undesirable for that special purpose visa holder, or class of special visa
holders, to travel to and enter or remain in, Australia;
· enable citizens and selected non-citizens in immigration clearance, arriving and
departing Australia, to have their identity, and their citizenship status or visa,
verified by an automated system instead of an officer;
· preserve the current policy intention that the evidence required to be presented (that
is, shown but not for the purposes of collection) by non-citizens as proof of identity,
of a visa that is in effect, and of lawful status, may include a "personal identifier" for
the purposes of the Migration Act; and
· enable selected New Zealand citizens arriving in Australia to be granted a special
category visa, in immigration clearance, by an automated system, instead of an
officer.
2. Certain amendments contained in the Bill will have the unintended consequence
of preventing the collection of passenger cards from citizens and non-citizens arriving
and departing Australia because they contain signatures. Signatures are defined to be a
`personal identifier' for the purposes of the Migration Act.
3. Passenger card information is essential for the day-to-day business of the
Department of Immigration and Citizenship and other government departments and
agencies including the Australian Customs Service, Australian Quarantine and
Inspection Service and the Australian Bureau of Statistics. The signature on the
passenger card represents a declaration by the subject that the information they have
provided on the card is true, correct and complete.
4. Other amendments contained in the Bill will have the unintended consequence of
making all people ineligible to use an authorised system because of the way that
passenger cards are collected in practice.
5. These government amendments preserve and make clear the authority to collect
passenger cards containing signatures. They also ensure that a person will not become
ineligible to use an authorised system if he or she provides their passenger card to a
clearance officer. That is, the amendments make it clear that a person may present
some of the evidence they are required to present to an authorised system and some to a
Page 2 of 9
clearance officer rather than it having to be one or the other as the Bill currently
requires.
FINANCIAL IMPACT STATEMENT
6. The proposed amendments to the Bill will not have a financial impact.
Page 3 of 9
AMENDMENTS TO THE MIGRATION AMENDMENT (BORDER
INTEGRITY) BILL 2006
NOTES ON INDIVIDUAL AMENDMENTS
Amendment 1 Schedule 2, item 9, page 5 (line 22)
1. This amendment amends item 9 of Schedule 2 to the Migration Amendment
(Border Integrity) Bill 2006 (`the Bill') by replacing the reference to "the clearance
authority" with "a clearance authority" in proposed paragraph 166(1)(b).
2. Item 7 of Schedule 2 to the Bill inserts a definition of "clearance authority" that
means either "a clearance officer" or "an authorised system". The purpose of this
amendment is to ensure that a person does not have to use the same "clearance
authority" to provide information under paragraph 166(1)(b) as is used to present
evidence under paragraph 166(1)(a).
3. The amendment also ensures that a person can provide part of the information
that is required under paragraph 166(1)(b) to an authorised system and the remainder to
a clearance officer. This flexibility is needed because not all authorised systems will be
designed to collect passenger cards which is one type of information that is required
under the Act and Migration Regulations 1994 (`the Regulations').
Amendment 2 Schedule 2, item 9, page 5 (lines 22 and 23)
4. This amendment amends item 9 of Schedule 2 to the Bill by replacing the
reference to "(other than a personal identifier)" with "(including the person's signature,
but not any other personal identifier)" in proposed paragraph 166(1)(b).
5. Item 9 of the Bill inserts new paragraph 166(1)(b) which provides the authority
to require citizens and non-citizens entering Australia to provide information required to
be given by the Migration Act or Regulations. However, the Bill further provides that
this information may not include a "personal identifier".
6. A "personal identifier" is defined in subsection 5A(1) in Part 1 of the Migration
Act to include, among other things, a person's signature. Passenger cards which are
currently collected and would continue to be collected under the authority of new
paragraph 166(1)(b) will contain signatures (that is, a `personal identifier').
7. The purpose of this amendment is to ensure that passenger cards containing
signatures can continue to be collected in immigration clearance from persons entering
Australia.
Amendment 3 Schedule 2, item 9, page 6 (lines 6 and 7)
8. This amendment amends item 9 of Schedule 2 to the Bill by omitting paragraph
166(2)(b).
Page 4 of 9
9. Paragraph 166(2)(b) specifies a criterion for using an authorised system. The
effect of paragraph 166(2)(b) is that a person will only be eligible to use an authorised
system if the person chooses to present their evidence "and" provide their information
to an authorised system rather than a clearance officer.
10. As there are currently no arrangements proposed to allow a person to provide
their passenger card to an authorised system, proposed paragraph 166(2)(b) would have
the unintended consequence of making all people ineligible to use an authorised system.
This is because a passenger card is information that is required under the Act and
Regulations and a passenger card will always have to be provided to a clearance officer
rather than an authorised system. The amendment overcomes this oversight by omitting
proposed paragraph 166(2)(b).
11. Paragraph 166(2)(b) can safely be omitted because the voluntary basis for using
an authorised system is already made clear by proposed subsection 166(2) which
provides that a person "may" (not must) use an authorised system to comply with a
requirement in subsection 166(1). The heading to proposed subsection 166(2) also
emphasises that use of an authorised system is entirely voluntary. Similarly, the
definition of a "clearance authority" to be inserted by item 7 of Schedule 2 to the Bill
also makes clear that a person can choose whether to use a clearance officer "or" an
authorised system to satisfy the requirements under subsection 166(1).
Amendment 4 Schedule 2, item 9, page 6 (lines 12 and 14)
12. This amendment amends item 9 of Schedule 2 to the Bill by replacing the
reference to "information (other than a passenger card) or personal identifiers referred to
in subsection (1) of this section" with "information or personal identifiers referred to in
subsection (1) of this section (other than a passenger card)" in proposed paragraph
166(2)(c).
13. Item 9 of the Bill inserts new subsection 166(2) which specifies which citizens
and non-citizens entering Australia are eligible to use the automated system in order to
satisfy the relevant evidentiary requirements under proposed subsection 166(1).
However, it is unclear whether under proposed subsection 166(2) the requirement for a
citizen or non-citizen to provide a passenger card (under proposed amended paragraph
166(1)(b)) containing the person's signature, would result in that person being ineligible
to use the automated system.
14. A "personal identifier" is defined in subsection 5A(1) in Part 1 of the Migration
Act to include, among other things, a person's signature.
15. The purpose of this amendment is to ensure that the requirement for citizens and
non-citizens entering Australia to provide a passenger card with his or her signature on
it does not in any way affect his or her eligibility to use the automated system to satisfy
the requirements under subsection 166(1).
Amendment 5 Schedule 2, item 11, page 7 (line 28)
16. This amendment amends item 11 of Schedule 2 to the Bill by replacing the
reference to "system" with "an authorised system".
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17. The purpose of this amendment is to clarify that the "authorised system" in
proposed paragraph 170(1)(b) need not necessarily be the same authorised system as is
referred to in proposed paragraph 170(1)(a).
Amendment 6 Schedule 2, item 11, page 7 (lines 28 and 29)
18. This amendment amends item 11 of Schedule 2 to the Bill by replacing the
reference to "(other than a personal identifier)" with "(including the person's signature,
but not any other personal identifier)" in proposed paragraph 170(1)(b).
19. Item 11 of the Bill inserts new paragraph 170(1)(b) which provides the authority
to require citizens and non-citizens who travel, or appear to intend to travel, on an
overseas vessel from a port to another port (in Australia), to provide information
required to be given by the Migration Act or Regulations. However, the Bill further
provides that this information may not include a "personal identifier".
20. A "personal identifier" is defined in subsection 5A(1) in Part 1 of the Migration
Act to include, among other things, a person's signature. Passenger cards that would be
collected under the authority of new paragraph 170(1)(b) will contain signatures (that is,
a `personal identifier').
21. The purpose of this amendment is to ensure that passenger cards containing
signatures can continue to be collected from citizens and non-citizens who travel, or
appear to intend to travel, on an overseas vessel from a port to another port (in
Australia).
Amendment 7 Schedule 2, item 14, page 8 (lines 14 and 15)
22. This amendment amends item 14 of Schedule 2 to the Bill by omitting proposed
paragraph 170(2AA)(b).
23. Paragraph 170(2AA)(b) specifies a criterion for using an authorised system. The
effect of paragraph 170(2AA)(b) is that a person will only be eligible to use an
authorised system if the person chooses to present their evidence "and" provide their
information to an authorised system rather than a clearance officer.
24. As there are currently no arrangements proposed to allow a person to provide
their passenger card to an authorised system, proposed paragraph 170(2AA)(b) would
have the unintended consequence of making all people ineligible to use an authorised
system. This is because a passenger card is information that is required under the Act
and Regulations and a passenger card will always have to be provided to a clearance
officer rather than an authorised system. The amendment overcomes this oversight by
omitting proposed paragraph 170(2AA)(b).
25. Paragraph 170(2AA)(b) can safely be omitted because the voluntary basis for
using an authorised system is already made clear by proposed subsection 170(2AA)
which provides that a person "may" (not must) use an authorised system to comply with
a requirement in subsection 170(1). The heading to proposed subsection 170(2AA) also
emphasises that use of an authorised system is entirely voluntary. Similarly, subsection
170(1) as amended by item 11 of Schedule 2 to the Bill makes it clear that a person can
Page 6 of 9
chose whether to use a clearance officer "or" an authorised system to satisfy any of the
requirements under subsection 170(1).
Amendment 8 Schedule 2, item 14, page 8 (lines 20 and 21)
26. This amendment amends item 14 of Schedule 2 to the Bill by replacing the
reference to "information (other than a passenger card) or personal identifiers referred to
in subsection (1) or (2)" with "information or personal identifiers referred to in
subsection (1) or (2) (other than a passenger card)" in proposed paragraph 170(2AA)(c).
27. Item 14 of the Bill inserts new subsection 170(2AA) which specifies which
citizens and non-citizens who travel, or appear to intend to travel, on an overseas vessel
from a port to another port (in Australia), are eligible to use the automated system in
order to satisfy the relevant evidentiary requirements under proposed subsection 170(1).
However, it is unclear whether under proposed subsection 170(2AA) the requirement
for a citizen or non-citizen to provide a passenger card (under proposed paragraph
170(1)(b)) containing the person's signature, would result in that person being ineligible
to use the automated system.
28. A "personal identifier" is defined in subsection 5A(1) in Part 1 of the Migration
Act to include, among other things, a person's signature.
29. The purpose of this amendment is to ensure that the requirement for citizens and
non-citizens who travel, or appear to intend to travel, on an overseas vessel from a port
to another port (in Australia), to provide a passenger card with his or her signature on it
does not in any way affect his or her eligibility to use the automated system to satisfy
the requirements under subsection 170(1).
Amendment 9 Schedule 2, item 21, page 10 (line 12)
30. The amendment amends item 21 of Schedule 2 to the Bill by replacing the
reference to "(other than a personal identifier)" with "(including the person's signature,
but not any other personal identifier)" in proposed subsection 175(1)(b).
31. Item 21 of the Bill inserts new paragraph 175(1)(b) which provides the authority
to require citizens and non-citizens on board, or about to board, a vessel that is to leave
Australia (whether or not after calling at places in Australia), to provide information
required to be given by the Migration Act or Regulations. However, the Bill further
provides that this information may not include a "personal identifier".
32. A "personal identifier" is defined in subsection 5A(1) in Part 1 of the Migration
Act to include, among other things, a person's signature. Passenger cards collected
under the above authority contain signatures (that is, a `personal identifier').
33. The purpose of this amendment is to ensure that passenger cards containing
signatures can continue to be collected from citizens and non-citizens on board, or about
to board, a vessel that is to leave Australia (whether or not after calling at places in
Australia).
Page 7 of 9
Amendment 10 Schedule 2, item 24, page 10 (lines 30 and 31)
34. This amendment amends item 24 of Schedule 2 to the Bill by omitting proposed
paragraph 175(2AA)(b).
35. Paragraph 175(2AA)(b) specifies a criterion for using an authorised system. The
effect of paragraph 175(2AA)(b) is that a person will only be eligible to use an
authorised system if the person chooses to present their evidence "and" provide their
information to an authorised system rather than a clearance officer.
36. As there are currently no proposed arrangements to allow a person to provide
their passenger card to an authorised system, proposed paragraph 175(2AA)(b) would
have the unintended consequence of making all people ineligible to use an authorised
system. This is because a passenger card is information that is required under the Act
and Regulations and a passenger card will always have to be provided to a clearance
officer rather than an authorised system. The amendment overcomes this oversight by
omitting proposed paragraph 175(2AA)(b).
37. Paragraph 175(2AA)(b) can safely be omitted because the voluntary basis for
using an authorised system is already made clear by proposed subsection 175(2AA)
which provides that a person "may" (not must) use an authorised system to comply with
a requirement in subsection 175(1). The heading to subsection 175(2AA) also
emphasises that use of an authorised system is entirely voluntary. Similarly, subsection
175(1) of the Act as amended by item 21 of Schedule 2 to the Bill makes clear that a
person can choose whether to use a clearance officer "or" an authorised system to
satisfy any of the requirements under subsection 175(1).
Amendment 11 Schedule 2, item 24, page 10 (line 35) to page 11 (line 2)
38. This amendment amends item 24 of Schedule 2 to the Bill by replacing the
reference to "information (other than a passenger card) or personal identifiers referred to
in subsection (1) or (2)" with "information or personal identifiers referred to in
subsection (1) or (2) (other than a passenger card)" in proposed paragraph 175(2AA)(c).
39. Item 24 of the Bill inserts new subsection 175(2AA) which specifies which
citizens and non-citizens on board, or about to board, a vessel that is to leave Australia
(whether or not after calling at places in Australia), are eligible to use the automated
system in order to satisfy the relevant requirements under proposed subsection 175(1).
However, it is unclear whether under proposed subsection 175(2AA) the requirement
for a citizen or non-citizen to provide a passenger card (under proposed paragraph
175(1)(b)) containing the person's signature, would result in that person being ineligible
to use the automated system.
40. A "personal identifier" is defined in subsection 5A(1) in Part 1 of the Migration
Act to include, among other things, a person's signature.
41. The purpose of this amendment is to ensure that the requirement for citizens and
non-citizens on board, or about to board, a vessel that is to leave Australia (whether or
not after calling at places in Australia) to provide a passenger card with his or her
Page 8 of 9
signature on it does not in any way affect his or her eligibility to use the automated
system to satisfy the evidentiary requirements under paragraph 170(1)(a).
Amendment 12 Schedule 3, item 2, page 14 (lines 15 and 16)
42. This amendment amends item 2 of Schedule 3 to the Bill by omitting proposed
paragraph 32(3)(b).
43. Subparagraph 32(2)(a)(i) of the Act, as amended by item 1 of Schedule 3 to the
Bill, relevantly provides that a criterion for a special category visa is that the Minister is
satisfied that the applicant is a non-citizen who is a New Zealand citizen who has
presented to an officer or an authorised system, a New Zealand passport that is in force.
44. Proposed paragraph 32(3)(b) clarifies that a person can only present a New
Zealand passport to an authorised system if the person chooses to present the passport to
the system rather than an officer.
45. The purpose of this amendment is to provide consistency with amendments 3, 7
and 10 above. The retention of proposed paragraph 32(3)(b) (which expressly refers to
a person "choosing" to present their passport to an authorised system) could otherwise
suggest that use of an authorised system is not a voluntary process in other contexts.
This is not the intention.
46. Paragraph 32(3)(b) can be safely omitted because the voluntary basis for
presenting a New Zealand passport to an authorised system is already made clear by
proposed subsection 32(3) which provides that a person "may" (not must) comply with
subparagraph 32(2)(a)(i) by presenting a passport to an authorised system. Similarly,
subparagraph 32(2)(a)(i) of the Act as amended by item 1 of Schedule 3 to the Bill also
makes clear that a person can choose whether to present their passport to an officer "or"
an authorised system.
Page 9 of 9
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