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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (BRIDGING VISA CONDITIONS AND OTHER
MEASURES) BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration, Citizenship and Multicultural
Affairs, the Honourable Andrew Giles MP)
MIGRATION AMENDMENT (BRIDGING VISA CONDITIONS AND OTHER
MEASURES) BILL 2023
GENERAL OUTLINE
The Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023 (the
Bill) amends the Migration Act 1958 (Migration Act) to complement and reinforce
amendments made by the Migration Amendment (Bridging Visa Conditions) Act 2023 (First
Amendment Act) on 18 November 2023.
On 8 November 2023, the High Court declared, in the case of NZYQ v Minister for
Immigration, Citizenship and Multicultural Affairs (NZYQ), that NZYQ's detention was
unlawful "by reason of there having been and continuing to be no real prospect of removal of
[NZYQ] from Australia becoming practicable in the reasonably foreseeable future".
The High Court found that the relevant provisions are beyond the legislative power of the
Commonwealth insofar as they applied to NZYQ and issued a writ of habeas corpus. The
reasons for the judgment have not yet been published.
The First Amendment Act amended the Migration Act 1958 (Migration Act) and Migration
Regulations 1994 (Migration Regulations) for NZYQ affected non-citizens by creating new
criminal offences for failing to comply with electronic monitoring, curfew and reporting visa
conditions, and new conditions and amended existing conditions to be applied to a Subclass
070 (Bridging (Removal Pending)) visa (BVR).
Those amendments ensured the effective management of this aspect of the migration system,
including recognising that non-citizens with a history of serious criminal offending, including
but not limited to serious offences committed in Australia, require appropriate and
proportionate management while their migration status is being resolved.
Through this Bill and complementary amendments proposed to the Migration Regulations,
the Australian Government is taking further action and reinforcing its commitment to keeping
the community safe.
The Bill strengthens the BVR framework for the NZYQ-affected cohort and targets those
with a serious history of offending in relation to the most vulnerable people in our society,
including children. The Bill puts beyond doubt the types of behaviours that are unacceptable
for persons in this cohort to engage in whilst they reside in the Australian community, and the
sanctions that will apply to any person who breaches the conditions of the BVR they are
granted. This is appropriate and reasonable to ensure the Australia community can continue
to have confidence that the migration system is being well-managed in respect of this cohort
of non-citizens.
It will achieve this by introducing new criminal offences (with mandatory minimum
sentences) for BVR holders who fail to comply with a visa condition which:
• prohibits the person from performing any work, or participating in any regular
organised activity, involving more than incidental contact with another person who is
a minor or another vulnerable person;
• prohibits the person going within a particular distance of a school, childcare centre or
day care centre;
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• prohibits a person who has been convicted of an offence involving violence or sexual
assault from contacting or attempting to contact the victim of the offence, or a
member of the victim's family.
Criminal offences are the most effective response to breaches of these visa conditions within
the NZYQ-affected cohort, because it is clear that as an extension of the High Court decision,
the normal consequences of breaching visa conditions (immigration detention following visa
cancellation) will not apply to this cohort. The legislating of new and additional criminal
offences for this cohort further defines the intent of government in a very clear manner - that
certain behaviour while BVR holders reside in the community is unacceptable and that there
are criminal consequences that result from the breach of their visa conditions.
The Bill will also clarify authority for the collection and use of information gathered by an
electronic monitoring device. These provisions of the Bill recognise that a close working
relationship and prompt sharing of information between Commonwealth and State law
enforcement agencies is essential to the effective management of the behaviour of non-
citizens in our community.
The Bill will clarify the powers of an authorised officer to fit, operate and monitor an
electronic monitoring device. It will also provide a list of purposes for which an authorised
officer may collect, use or appropriately disclose information gathered by that device. This
will strengthen the ability for Commonwealth, State and Territory law enforcement agencies
to protect the community, ensuring prompt sharing of information where there is reason to
believe a BVR holder subject to monitoring may have breached the conditions of their visa,
including where it is assessed that location of the visa holder may be necessary to investigate
and charge a person with the new criminal sanctions proposed by this Bill.
It will also facilitate the location of the person subject to monitoring where there is a real
prospect of the removal of the person from Australia becoming practicable in the reasonably
foreseeable future. While the High Court in NZYQ found that persons must be released from
detention where there is no real prospect of removal from Australia becoming practicable in
the reasonably foreseeable future, efforts to remove this cohort of non-citizens are continuing
and essential to the management of our migration system. The Australian community rightly
expects that once a person granted a BVR is able to be removed from Australia, that action to
effect that removal proceed without undue delay.
CONSULTATION
The Department has undertaken consultation with several Commonwealth agencies in
developing the Bill, including the Australian Government Solicitor, the Attorney-General's
Department and the Department of the Prime Minister and Cabinet.
FINANCIAL IMPACT STATEMENT
The amendments in the Bill have a low financial impact.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
A statement of compatibility with human rights has been prepared in accordance with Part 3 of
the Human Rights (Parliamentary Scrutiny) Act 2011, and is at Attachment A.
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COMMON ABBREVIATIONS AND ACRONYMS
Abbreviation or acronym Meaning
AAT Administrative Appeals Tribunal
AAT Act Administrative Appeals Tribunal Act 1975
ABF Australian Border Force
Acts Interpretation Act Acts Interpretation Act 1901
The Attorney-General's Department's Guide to Framing
AGD Framing Guide Commonwealth Offences, Infringement Notices and Enforcement
Powers
APP (or APPs) The Australian Privacy Principles, under the Privacy Act 1988
Bill Migration Amendment (Bridging Visa Conditions) Bill 2023
BVR Subclass 070 (Bridging (Removal Pending)) visa
Crimes Act Crimes Act 1914
Criminal Code Schedule 1 to the Criminal Code Act 1995
Department Department of Home Affairs
Legislation Act Legislation Act 2003
Migration Act Migration Act 1958
Migration Regulations Migration Regulations 1994
NZYQ v Minister for Immigration, Citizenship and Multicultural
NZYQ
Affairs & Anor (S28/2023)
Non-citizens for whom there is no real prospect of removal from
Australia becoming practicable in the reasonably foreseeable
future and who are therefore not capable of being subject to
NZYQ-affected cohort immigration detention under subsections 189(1) and 196(1) of the
Migration Act following the High Court's orders on 8 November
2023 in NZYQ and who do not otherwise hold a visa.
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MIGRATION AMENDMENT (BRIDGING VISA CONDITIONS AND OTHER
MEASURES) BILL 2023
NOTES ON INDIVIDUAL CLAUSES
Section 1 Short title
1. Section 1 provides that the short title of the Bill, once enacted, will be the Migration
Amendment (Bridging Visa Conditions and Other Measures) Act 2023.
Section 2 Commencement
2. This section provides for the commencement of the provisions in the Act.
3. Subsection 2(1) provides that each provision of the 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.
4. Subsection 2(1) provides that each provision of the Act specified in column 1 of the table
under subsection 2(1) commences, or is taken to have commenced, in accordance with
column 2 of the table.
5. The effect of this provision is that the Act will commence the day after the Act receives the
Royal Assent.
6. A note at the foot of the table under subsection 2(1) explains that the table relates only to
the provisions of the Act as originally enacted. The table will not be amended to deal with
any later amendments of the Act.
7. Subsection 2(2) provides that any information in column 3 of the table is not part of the
Act. Information may be inserted in column 3, or information in it may be edited, in any
published version of the Act.
Section 3 Schedules
8. This section provides that legislation specified in a Schedule to the Act is amended or
repealed as set out in the applicable items in the Schedule concerned. This section also
provides that any other item in a Schedule to the Act has effect according to its terms.
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SCHEDULE 1 Amendments of the Act
Migration Act 1958
Item [1] After section 76D
9. This item inserts new sections 76DAA, 76DAB and 76DAC.
Section 76DAA
10. Section 76DAA makes it a criminal offence for a Subclass 070 (Bridging (Removal
Pending)) visa (BVR) holder to fail to comply with a condition of their visa, where the
effect of the condition is to prohibit them from performing any work, or participating in
any regular organised activity, involving more than incidental contact with a minor or any
other vulnerable person.
11. Clause 8622 of Schedule 8 to the Migration Regulations (clause 8622) sets out the
corresponding visa condition. Subclause 8622(1) states that "If the holder has been
convicted of an offence that involves a minor or any other vulnerable person, the holder
must not perform any work, or participate in any regular organised activity, involving more
than incidental contact with a minor or any other vulnerable person". Subclause 8622(2)
states that subclause 8622(1) applies "whether the work or activity is for reward or
otherwise" and "whether or not a working with children or vulnerable people check
(however described) is required in relation to the work".
12. The offence in section 76DAA is directed at ensuring that BVR holders who are subject to
this condition are not engaged in work or similar activities that would place them in
positions involving more than incidental contact with persons in those classes.
Offence
13. Subsection 76DAA(1) provides that a person commits an offence if that person (a) holds a
BVR; and (b) the visa is subject to a condition requiring that the person not perform any
work, or participate in any regular organised activity, involving more than incidental
contact with another person who is a minor or another vulnerable person; and (c) the person
fails to comply with the condition.
14. Subsection 76DAA(3) states that 'work' for the purposes of section 76DAA means work
whether for reward or otherwise. This imports the clarification in clause 8622 about the
scope of the term 'work' and ensures that the scope is clear in this provision.
15. The element of the offence set out in paragraph 76DAA(1)(b) requires that that, as a matter
of fact, the work or activity involves more than incidental contact with another person who
is a minor or other vulnerable person, rather than only the potential for the work or activity
to involve more than incidental contact.
16. The inclusion of this offence, and the associated penalties for contravention, are intended
to reflect the seriousness of a breach of this condition and the importance of compliance
with such a condition by a relevant visa holder to protect community safety, particularly
minors and other vulnerable people.
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17. Paragraphs 76DAA(1)(a) and 76DAA(1)(b) limit the application of this offence to BVR
holders who are subject to the visa condition set out in clause 8622.
18. The maximum penalty for this offence is five years imprisonment or 300 penalty units, or
both.
Application of the Criminal Code
19. Section 4A of the Migration Act provides that Chapter 2 of the Criminal Code (Cth)
(Criminal Code) (except Part 2.5, which concerns corporate criminal responsibility) applies
to all offences against the Act. This includes the offence in section 76DAA. Chapter 2 of
the Criminal Code sets out the general principles of criminal responsibility, including the
default fault elements in Division 5 and the defences of general application.
20. The fault elements for this offence are those set out in section 5.6 of the Criminal Code.
This is consistent with the Guide to Framing Commonwealth Offences, Infringement
Notices and Enforcement Powers, which relevantly provides that the default fault elements
in section 5.6 of the Criminal Code should apply unless there is a sound reason to depart
from them.
21. The default fault element applies in relation to paragraphs 76DAA(1)(a) and 76DAA(1)(b)
which is recklessness.
22. The default fault element applies in relation to paragraph 76DAA(1)(c) which is intention.
Reasonable excuse
23. Subsection 76DAA(2) provides that the offence in subsection 76DAA(1) does not apply if
a person has a reasonable excuse. The note following subsection 76DAA(2) provides that
the defendant bears the evidential burden of establishing they have a reasonable excuse
consistent with subsection 13.3(3) of the Criminal Code. An evidential burden, in relation
to establishing a matter, means the burden of adducing or pointing to evidence that suggests
a reasonable possibility that the matter exists or does not exist. If the person discharges that
evidential burden, the prosecution must disprove that matter beyond a reasonable doubt.
Section 76DAB
24. Section 76DAB makes it a criminal offence for a BVR holder to fail to comply with a
condition of their visa, where that condition imposes a requirement that the person not go
within a particular distance of a school, childcare centre or day care centre.
25. Clause 8623 of Schedule 8 to the Migration Regulations (clause 8623) sets out the
corresponding visa condition. Subclause 8623 states that "If the holder has been convicted
of an offence that involves a minor or any other vulnerable person, the holder must not go
within 200 metres of a school, childcare centre or day care centre".
26. The language of clause 8623 is partially replicated in paragraph 76DAB(1)(b). The
exception to this is that paragraph 76DAB(1)(b) refers to the proximity of the school,
childcare centre or day care centre as being 'a particular distance'. This refers to the
proximity as set out in the relevant condition. Clause 8623 currently quantifies that distance
at '200 metres'.
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27. The offence in section 76DAB is directed at ensuring that BVR holders do not attend places
or come within close proximity to places where there would be a significant prospect of
that person interacting with minors or any other vulnerable person.
Offence
28. Subsection 76DAB(1) provides that a person commits an offence if that person (a) holds a
Subclass 070 (Bridging (Removal Pending)) visa; and (b) the visa is subject to a condition
requiring that the person not go within a particular distance of a school, childcare centre or
day care centre; and (c) the person fails to comply with the condition.
29. The inclusion of this offence, and the associated penalties for contravention, are intended
to reflect the seriousness of a breach of a condition of this type and the importance of
compliance with such a condition by a relevant visa holder to protect community safety,
particularly minors and other vulnerable people.
30. Paragraphs 76DAB(1)(a) and 76DAB(1)(b) limit the application of this offence to BVR
holders who are subject to the visa condition set out in clause 8623.
31. The maximum penalty for this offence is five years imprisonment or 300 penalty units, or
both.
Application of the Criminal Code
32. Section 4A of the Migration Act provides that Chapter 2 of the Criminal Code (except Part
2.5, which concerns corporate criminal responsibility) applies to all offences against the
Act. This includes the offence in section 76DAB. Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility, including the default fault elements in
Division 5 and the defences of general application.
33. The fault elements for this offence are those set out in section 5.6 of the Criminal Code.
This is consistent with the Guide to Framing Commonwealth Offences, Infringement
Notices and Enforcement Powers, which relevantly provides that the default fault elements
in section 5.6 of the Criminal Code should apply unless there is a sound reason to depart
from them.
34. The default fault element applies in relation to paragraphs 76DAB(1)(a) and 76DAB(1)(b)
which is recklessness.
35. The default fault element applies in relation to paragraph 76DAB(1)(c) which is intention.
Reasonable excuse
36. Subsection 76DAB(2) provides that the offence in subsection 76DAB(1) does not apply if
a person has a reasonable excuse.
37. The note following subsection 76DAB(2) provides that the defendant bears the evidential
burden of establishing they have a reasonable excuse consistent with subsection 13.3(3) of
the Criminal Code. An evidential burden, in relation to establishing a matter, means the
burden of adducing or pointing to evidence that suggests a reasonable possibility that the
matter exists or does not exist. If the person discharges that evidential burden, the
prosecution must disprove that matter beyond a reasonable doubt.
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Section 76DAC
38. Section 76DAC makes it a criminal offence for a BVR holder to fail to comply with a
condition of their visa, where that condition imposes a requirement that the person not
contact, or attempt to contact, the victim or the family of the victim of an offence that the
person has been convicted of which involved violence or sexual assault.
39. Clause 8624 of Schedule 2 to the Regulations (hereafter clause 8624) sets out the
corresponding visa condition. Subclause 8624 states that "If the holder has been convicted
of an offence involving violence or sexual assault, the holder must not contact, or attempt
to contact, the victim of the offence or a member of the victim's family".
40. The condition set out in clause 8624 will only be enlivened if the BVR holder has been
convicted of an offence involving violence or sexual assault. The language of clause 8624
is replicated in paragraphs 76DAC(1)(b) and 76DAC(1)(c).
41. The offence in section 76DAC is directed at ensuring that BVR holders who have
previously been convicted of an offence that involves violence or sexual assault do not
have, or attempt to have, any interactions with the victim of the offence or a member of the
victim's family.
Offence
42. Subsection 76DAC(1) provides that a person commits an offence if that person (a) holds a
Subclass 070 (Bridging (Removal Pending)) visa; and (b) the person has been convicted of
an offence involving violence or sexual assault; and (c) the visa is subject to a condition
requiring that the person not contact or attempt to contact (i) the victim of the offence, or
(ii) a member of the family of the victim; and (d) the person fails to comply with the
condition.
43. The inclusion of this offence, and the associated penalties for contravention, are intended
to reflect the seriousness of a breach of this condition and the importance of compliance
with such a condition by a relevant visa holder to protect community safety, particularly
the victims and families of violent and sexual offences perpetrated by visa holders.
44. Paragraphs 76DAC(1)(a), 76DAC(1)(b) and 76DAC(1)(c) limit the application of this
offence to BVR holders who are subject to the visa condition set out in clause 8624.
45. The maximum penalty for this offence is five years imprisonment or 300 penalty units, or
both.
Application of the Criminal Code
46. Section 4A of the Migration Act provides that Chapter 2 of the Criminal Code (except Part
2.5, which concerns corporate criminal responsibility) applies to all offences against the
Act. This includes the offence in section 76DAC. Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility, including the default fault elements in
Division 5 and the defences of general application.
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47. The fault elements for this offence are those set out in section 5.6 of the Criminal Code.
This is consistent with the Guide to Framing Commonwealth Offences, Infringement
Notices and Enforcement Powers, which relevantly provides that the default fault elements
in section 5.6 of the Criminal Code should apply unless there is a sound reason to depart
from them.
48. The default fault element applies in relation to paragraphs 76DAC(1)(a), 76DAC(1)(b) and
76DAC(1)(c) which is recklessness.
49. The default fault element applies in relation to paragraph 76DAC(1)(d) which is intention.
Reasonable excuse
50. Subsection 76DAC(2) provides that the offence in subsection 76DAC(1) does not apply if
a person has a reasonable excuse.
51. Subsection 76DAC(3) provides that without limiting what may be taken to be a reasonable
excuse for the purposes of subsection 76DAC(2), there are specific circumstances in which
a person will have a reasonable excuse. These circumstances include:
• where the victim or member of the victim's family being contacted was 16 years old or
above and consented to the contact or attempted contact and had capacity to give
consent (paragraph 76DAC(3)(a));
• where the contact prohibited by subsection 76DAC(1) is required or authorised by or
under a law of the Commonwealth, a State or a Territory or would be so authorised but
for the Migration Act or the Migration Regulations (paragraph 76DAC(3)(b)).
52. Subsection 76DAC(3) is intended to outline clear circumstances where a reasonable excuse
exists. This is intended to accommodate, in particular, circumstances where the victim or
family member may themselves be a family member of the non-citizen and they consent to
the contact. It is not intended that a circumstance in which the victim or family member
consents to the contact, or in which the contact is authorised by another law
(notwithstanding the prohibition in the visa condition), would attract this offence.
53. The note following subsection 76DAC(2) provides that the defendant bears the evidential
burden of establishing they have a reasonable excuse consistent with subsection 13.3(3) of
the Criminal Code. This also applies to the defence of reasonable excuse if a matter
contemplated by subsection 76DAC(3) is raised, as that matter must be raised in reliance
of the defence in subsection 76DAC(2).
54. An evidential burden, in relation to establishing a matter, means the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter exists or does not
exist. If the person discharges that evidential burden, the prosecution must disprove that
matter beyond a reasonable doubt.
Item [2] Section 76DA
55. This item amends section 76DA to include references to new sections 76DAA, 76DAB and
76DAC. The effect of this change is that if a person is convicted of an offence under any
of these three new provisions (in addition to the three existing provisions, sections 76B,
76C and 76D), the court must impose a sentence of imprisonment of at least 1 year.
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Item [3] Paragraph 76E(4)(b)
56. This item amends paragraph 76E(4)(b) of the Migration Act. Section 76E provides a
mechanism for a holder of a BVR subject to certain prescribed conditions to make
representations for the grant of a BVR without any one or more of those conditions, noting
that the grant of a visa is not subject to the rules of natural justice. The provision will apply
to a decision to grant a BVR if the BVR is subject to one or more prescribed conditions
(paragraph 76E(1)(a)) and there is, at the time of grant, no real prospect of the removal of
the non-citizen from Australia becoming practicable in the reasonably foreseeable future.
57. Subsection 76E(4) currently provides that the Minister must grant the non-citizen another
BVR that is not subject to one or more conditions prescribed for paragraph 76E(1)(a) if:
• the non-citizen has made representations to the Minister having been invited to do so
under subsection 76E(3) (see paragraph 76E(4)(a)); and
• the Minister is satisfied that the non-citizen does not pose a risk to the community (see
current paragraph 76E(4)(b)).
58. This item amends paragraph 76E(4)(b) to provide that the Minister must instead be satisfied
that the conditions prescribed for paragraph 76E(1)(a) are not reasonably necessary for the
protection of any part of the Australian community.
59. The amended paragraph 76E(4)(b) will ensure that the protection of the Australian
community is the paramount consideration in relation to whether one or more prescribed
conditions must be applied to a BVR granted to a member of the NZYQ affected cohort.
Item [4] At the end of Subdivision AF of Division 3 of Part 2
60. This item inserts new section 76F. New section 76F provides for the powers that an
authorised officer, for the purposes of a provision under the Migration Act, may exercise,
in relation to a person who is or has been subject to monitoring. In practice, the intention is
that these persons will be those who are granted a BVR because there is no real prospect of
the person's removal from Australia becoming practicable in the reasonably foreseeable
future.
61. These new powers are not intended to limit existing powers but instead to provide a clear,
single-point of reference for powers in respect of a person subject to monitoring.
Powers in relation to a person who is subject to monitoring
62. New subsection 76F(1) provides that an authorised officer may do all things necessary or
convenient to be done for a specified purpose in relation to a person who is subject to
monitoring. The specified purposes under subsection 76F(1) are:
• installing, fitting or repairing a monitoring device or related monitoring equipment for
a person who is subject to monitoring (paragraph 76F(1)(a)); or
• removing a monitoring device or related monitoring equipment for a person who is or
has been subject to monitoring (paragraph 76F(1)(b));
• operating a monitoring device or related monitoring equipment for a person who is
subject to monitoring (paragraph 76F(1)(c));
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• determining or monitoring the location of a person who is subject to monitoring;
(subparagraph 76F(1)(d)(i)), or an object, or the status of an object, that relates to a
person who is subject to monitoring (subparagraph 76F(1)(d)(ii)), through the
operation of a monitoring device or related monitoring equipment.
Collection, use and disclosure of personal information
63. New subsection 76F(2) provides that an authorised officer may collect, use or appropriately
disclose to any other person information (including personal information) for any of the
following purposes:
• determining whether a requirement of a condition of a visa held by a person who is
subject to monitoring are being, or have been, complied with (paragraph 76F(2)(a));
• determining whether a person who is subject to monitoring has committed an offence
against the Migration Act or Regulations (paragraph 76F(2)(b));
• protecting the community in relation to persons who are subject to monitoring
(paragraph 76F(2)(c));
• facilitating the location of a person subject to monitoring who is suspected of having
failed to comply with a requirement of a condition of a visa held by the person
(paragraph 76F(2)(d));
• facilitating the location of a person subject to monitoring in the event that either or both
of the following apply:
o there is a real prospect of the removal of the person from Australia becoming
practicable in the reasonably foreseeable future (subparagraph 76F(2)(e)(i); or
o a visa held by the person ceases to be in effect (subparagraph 76F(2)(e)(ii);
• facilitating the performance of functions, and exercise of powers, of authorised officers
under the Migration Act (including section 76F) and the regulations in relation to
persons who are subject to monitoring (subparagraph 76F(2)(f)).
64. Information, including personal information, collected by an authorised officer in relation
to a person who has committed an offence is protected under the Privacy Act 1988 (Privacy
Act). The use and disclosure of personal information protected under the Privacy Act is
governed by the Australian Privacy Principles (APP) set out in Schedule 1 to the Privacy
Act.
65. APP 6 generally governs the use and disclosure of personal information by an APP entity,
such as the Department (and, by extension, an officer of the Department authorised to be
an authorised officer for section 76F). In particular, APP subclause 6.1 provides that an
APP entity must not use or disclose personal information about an individual that was
collected for a particular purpose for another purpose, unless the individual has consented
or an exception applies. Paragraph (b) of subclause 6.2 provides an exception to the
prohibition on use or disclosure where a disclosure is required or authorised by or under
Australian law. In effect, this means the amendment made by this subsection has the
consequence that some disclosures would be 'required disclosures', and are therefore an
exception to APP 6.
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66. Disclosure and use authorised by section 76F(2) would generally be for the purposes of, or
in connection with, an offence committed by a person who is subject to monitoring whilst
in the community as a BVR holder, or for specific purposes, such as for the purposes of
responding to an incident that poses a threat to public safety, or national security or in the
performance of functions relating to law enforcement or national security by the
Commonwealth, a State or Territory (or an authority of the Commonwealth, a State or
Territory).
67. An example of a disclosure of information (including personal information) made under
subsection 76F(2) is where a disclosure is made to a law enforcement body, such as the
Australian Federal Police, or a State or Territory police service in relation to a person who
is alleged to have committed an offence.
68. This disclosure might occur where a person who is subject to monitoring is released into
the community in a different State, the relevant receiving State or Territory police service
may be notified of the person's personal information including the offence the person
served one or more custodial sentences for, and the reason the person is subject to
monitoring. This is particularly the case if the removal of the person from Australia
becomes practicable in the reasonably foreseeable future or a visa held by the person ceases
to be in effect (for example, because they are in breach of a visas condition).
69. A further example is a use and disclosure of information where a law enforcement body is
investigating or prosecuting a criminal offence. Subsection 76F(2) would also permit a
State corrections authority to use or disclose information for that purpose (for example, if
the authority was required to provide a witness statement with monitoring device data).
70. In all instances where information of this nature is shared between authorised entities in the
Commonwealth, the States and the Territories, appropriate protocols and processes will be
implemented to ensure the information is protected within the bounds of the purpose for
which it is being shared.
Powers may be exercised despite other laws
71. New subsection 76F(3) provides for an authorised officer to have the discretion to exercise
a power under new subsection 76F(1) or (2), despite any other provision of this Act or the
regulations (paragraph 76F(3)(a), or any other law of the Commonwealth, a State or
Territory (whether written or unwritten) (paragraph 76F(3)(b)).
Powers are exercisable subject to regulations
72. New subsection 76F(4) provides for an authorised officer's exercise of a power under
subsection 76F(1) or (2) to be subject to any conditions, restrictions or other limitations
that are prescribed by the regulations for the purposes of this subsection.
Other powers not limited
73. New subsection 76F(5) provides for the conferral of a power on an authorised officer by
subsection (1) or (2) does not, by implication, limit any other powers that exist, or existed,
for an authorised officer or any other person to do a thing authorised by either of those
subsections (paragraph 76F(5)(a)), or any other thing (paragraph 76F(5)(b)).
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Definitions
74. New subsection 76F(6) introduces four new defined terms for section 76F authorised
officer, monitoring device, related monitoring equipment, and subject to monitoring.
75. The term authorised officer, when used in subsection (1) or (2), is defined to include:
• a person who is authorised in writing by the Minister, the Secretary or the Australian
Border Force Commissioner for the purposes of that provision (paragraph (a)); or
• a person who is included in a class of persons authorised in writing by the
Minister, the Secretary or the Australian Border Force Commissioner for the
purposes of that provision, including a person who becomes a member of the class
after the authorisation is given (paragraph (b)).
76. The note following this definition clarifies that this definition does not limit the definition
of authorised officer in subsection 5(1) of the Migration Act.
77. The term monitoring device is defined to have the same meaning as in section 76D, which
provides that the term means any electronic device capable of being used to determine or
monitor the location of a person or an object or the status of an object.
78. The term related monitoring equipment, for a monitoring device, is defined to have the
same meaning as in section 76D, which provides that the term means any electronic
equipment necessary for operating the monitoring device.
79. The term subject to monitoring in circumstances where a person is subject to monitoring,
is defined to mean if the person holds a Subclass 070 (Bridging (Removal Pending)) visa
that is subject to a condition requiring the person to wear a monitoring device at all times.
Application of amendments
Item [5] Application of amendments - new offences
80. This item provides that sections 76DAA, 76DAB and 76DAC of the Migration Act, as
inserted by item [1], apply in relation to a Subclass 070 (Bridging (Removal Pending)) visa
granted after commencement.
81. The new offence provisions will also apply to a Subclass 070 (Bridging (Removal
Pending)) visa granted or taken to have been granted before commencement if the visa
holder engaged in the conduct giving rise to the offence after commencement.
82. The purpose of applying these amendments to visas granted before commencement, in
relation to conduct after commencement, is to ensure that a person who was granted a
Subclass 070 (Bridging (Removal Pending)) visa before commencement which was subject
to a condition which relates to any of the new offences will be liable to be prosecuted for
that offence if they breach that condition, and thereby commit the offence, after
commencement.
Item [6] Application of amendments - section 76E
83. This item provides that section 76E of the Migration Act, as amended by item [3], applies
in relation to a Subclass 070 (Bridging (Removal Pending)) visa granted after
commencement of the item.
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Item [7] Application of amendments - powers of officers etc
84. This item provides that section 76F of the Migration Act, as inserted by item [4], applies
on and after commencement in relation to:
• persons who become subject to monitoring before, on or after that commencement
(paragraph (1)(a)); and
• monitoring devices and related monitoring equipment installed or fitted before, on or
after that commencement (paragraph (1)(b)).
85. This item further provides that subsection 76F(3), as inserted by item [4], applies in relation
to the use and disclosure of information on and after the commencement of this item
whether the information is collected or otherwise obtained before, on or after that
commencement.
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Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023
These amendments are compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023 (the
Bill) amends the Migration Act 1958 (Migration Act) to complement amendments made by
the Migration Amendment (Bridging Visa Conditions) Act 2023 (First Amendment Act) on 18
November 2023.
On 8 November 2023, the High Court declared, in the case of NZYQ v Minister for
Immigration, Citizenship and Multicultural Affairs (NZYQ), that NZYQ's detention was
unlawful "by reason of having been and continuing to be no real prospect of removal of the
plaintiff from Australia becoming practicable in the reasonably foreseeable future".
The High Court found that the relevant provisions are beyond the legislative power of the
Commonwealth insofar as they applied to the plaintiff and issued a writ of habeas corpus.
The reasons for the judgment have not yet been published.
Following that decision, the Amendment Act was developed to manage the cohort of non-
citizens affected by NZYQ. The NZYQ-affected cohort is made up of people who have been
refused grant of a visa, or had their visa cancelled, and who are on a removal pathway but
who have no real prospect of removal becoming practicable in the reasonably foreseeable
future. In many cases, the person has a protection finding, within the meaning of section
197C of the Migration Act, which prevents their removal to their country of citizenship or
habitual residence and there is currently no other country to which their removal can be
effected. A 'protection finding' reflects the circumstances in which Australia has non-
refoulement obligations with reference to a person. In other cases, removal is not practicable
in the foreseeable future for other reasons, including where the person is stateless and their
country of former habitual residence is not willing to accept their return.
Of the current known cohort, the majority were refused a visa, or had their visa cancelled, on
character grounds. Others in the cohort had their visa cancelled on other grounds, but had not
previously been granted a bridging visa due to risks they present to the Australian
community.
The First Amendment Act amended the Migration Act and Migration Regulations 1994
(Migration Regulations) for NZYQ affected non-citizens by creating new criminal offences
for failing to comply with electronic monitoring, curfew and reporting visa conditions, and
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new conditions and amended existing conditions to be applied to a Subclass 070 (Bridging
(Removal Pending)) visa (BVR).
Through this Bill and complementary amendments proposed to the Migration Regulations
(Migration Amendment (Bridging Visa Conditions) Regulations 2023), the Australian
Government is reinforcing its commitment to keeping the community safe.
The Bill strengthens the BVR framework for the NZYQ-affected cohort and targets those
with a serious history of offending in relation to the most vulnerable people in our society,
including children.
It will achieve this by introducing new criminal offences (with mandatory minimum
sentences) for BVR holders who fail to comply with a visa condition which:
• prohibits the person from performing any work, or participating in any regular
organised activity, involving more than incidental contact with another person who is
a minor or another vulnerable person;
• prohibits the person going within a particular distance of a school, childcare centre or
day care centre;
• prohibits a person who has been convicted of an offence involving violence or sexual
assault from contacting or attempting to contact the victim of the offence, or a
member of the victim's family.
The Bill will also strengthen the authority for the collection and use of information gathered
by an electronic monitoring device, which may be required as a condition of a BVR granted
to the NZYQ-affected cohort. The Bill will clarify the powers of an authorised officer to fit,
operate and monitor an electronic monitoring device. It will also provide a list of purposes for
which an authorised officer may collect, use or disclose information gathered by that device.
This will strengthen the ability for Commonwealth, State and Territory law enforcement
agencies to protect the community and to facilitate the location of the person subject to
monitoring where there is a real prospect of the removal of the person from Australia
becoming practicable in the reasonably foreseeable future.
Human rights implications
These amendments engage the following rights:
• The rights of equality and non-discrimination in Articles 2 and 26 of the International
Covenant on Civil and Political Rights (ICCPR) and Article 2 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR)
• The right to privacy in Article 17 of the ICCPR
• Right to liberty in Article 9 of the ICCPR
• The right to the presumption of innocence and minimum guarantees in criminal
proceedings in Article 14 of the ICCPR
The rights of equality and non-discrimination
Article 2(1) of the ICCPR states:
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Each State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in
the present Covenant, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth
or other status.
Article 26 of the ICCPR states:
All persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.
In its General Comment 18, the UN Human Rights Committee (UNHRC) stated that:
The Committee observes that not every differentiation of treatment will constitute
discrimination, if the criteria for such differentiation are reasonable and objective
and if the aim is to achieve a purpose which is legitimate under the [ICCPR].
The ICCPR does not give a right for non-citizens to enter Australia. The UNHRC, in its
General Comment 15 on the position of aliens under the ICCPR, stated that:
The [ICCPR] does not recognize the right of aliens to enter or reside in the territory
of a State party. It is in principle a matter for the State to decide who it will admit to
its territory. However, in certain circumstances an alien may enjoy the protection of
the [ICCPR] even in relation to entry or residence, for example, when considerations
of non-discrimination, prohibition of inhuman treatment and respect for family life
arise.
Consent for entry may be given subject to conditions relating, for example, to
movement, residence and employment. A State may also impose general conditions
upon an alien who is in transit. However, once aliens are allowed to enter the
territory of a State party they are entitled to the rights set out in the [ICCPR].
As such, Australia is able to set requirements for the entry and stay of non-citizens in
Australia, and does so on the basis of reasonable and objective criteria.
The amendments made by the Bill will continue to only apply to members of the NZYQ-
affected cohort and not to other visa holders. The measures introduce new criminal offences
relating to non-compliance with certain mandatory visa conditions imposed on members of
this cohort that would not apply to Australian citizens who have previously offended.
The Government considers imposition of offences in relation to these conditions to be
reasonable and necessary both for the purposes of community safety and to ensure that
members of this cohort remain engaged in arrangements to manage their temporary stay in,
and when practicable, removal from Australia.
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Members of the NZYQ-affected cohort have no substantive visa to remain in Australia,
having had their visa applications refused, or a visa cancelled, in most cases on character
grounds, and who have not previously been granted a bridging visa due to safety risks they
may pose to the Australian community. Consequently, the Government considers these
measures to be proportionate to the particular circumstances of the NZYQ-affected cohort
and aimed at the legitimate objective of protecting community safety.
Right to the presumption of innocence and minimum guarantees in criminal proceedings
in Article 14 of the ICCPR
Article 14 of the ICCPR relevantly provides:
1) All persons shall be equal before the courts and tribunals. In the determination of any
criminal charge against him, or of his rights and obligations in a suit at law, everyone
shall be entitled to a fair and public hearing by a competent, independent and
impartial tribunal established by law ...
...
5) Everyone convicted of a crime shall have the right to his conviction and sentence
being reviewed by a higher tribunal according to law.
...
The amendments create new criminal offences relating to non-compliance with certain
mandatory visa conditions requiring visa holders who have been convicted of an offence that
involves a minor or any other vulnerable person to:
• not perform any work, or participate in any regular organised activity, involving
more than incidental contact with another person who is a minor of another
vulnerable person (condition 8622)
• not to go within 200 metres of a school, childcare centre or day care centre
(condition 8623)
• and requiring visa holders who have been convicted of an offence involving violence
or sexual assault not to contact or attempt to contact the victim or the offence or a
member of the victims family (condition 8624).
It is appropriate to criminalise non-compliance with these conditions, as the conditions are
imposed in circumstances where the BVR holder in the NZYQ-affected cohort has already
been convicted of an offence involving a minor or other vulnerable person and the risk to
community safety is considered particularly higher. Consequently, a strong incentive to
comply with the conditions is necessary to protect community safety.
A person will not commit one of these offences if they have a reasonable excuse. Existing
standard defences in the Criminal Code 1995 (Criminal Code) will also apply.
Any charges brought as a result of these offences will be subject to existing criminal
procedures and subject to judicial determination.
The offences carry a maximum penalty of 5 years imprisonment, or 300 penalty units, or
both. The purpose of the maximum penalty available for the offences established by proposed
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sections 76DAA (for a breach of condition 8622), 76DAB (for a breach of condition 8623)
and 76DAC (for a breach of condition 8624) is to appropriately reflect the seriousness of
these offences and the need to make clear that non-compliance with visa conditions that are
aimed at protecting community safety is viewed seriously. The maximum penalty provides
flexibility for courts to consider individual circumstances and treat different cases differently,
according to the circumstances of the offending. Factors such as the nature and severity of the
non-compliance, repeated breaches of visa conditions, the degree of steps taken to remediate
non-compliance, or ensure future compliance with the requirement, are examples of factors
that the courts may wish to take into consideration.
If convicted of one of these offences, the court must impose a sentence of imprisonment of at
least one year (as a result of amendments proposed to section 76DA of the Migration Act).
This mandatory minimum sentence if convicted following a fair hearing before a court
reflects the seriousness of the offending and the need to protect community safety and the
most vulnerable members of Australian society.
By applying to those individuals with a history of criminal offences involving minors,
vulnerable people or sexual assault, these offences are targeted towards those who pose the
most risk to Australian community. The particular conduct engaged in by breaching these
offences puts at risk the most vulnerable members of society and disregards community
expectations about the protection of especially vulnerable members of society.
Ordinarily, a visa holder who breaches a condition on their visa would be subject to visa
cancellation, detention and removal. However, for the NZYQ affected cohort, this usual
course of action is not available. The government therefore considers that the strengthened
requirements of the minimum mandatory sentences, targeted towards only those individuals
with serious criminal history, are necessary, reasonable and proportionate for protecting the
most vulnerable members of society.
Mandatory minimum sentences appropriately reflect the seriousness of these offences and the
need to make clear that non-compliance with visa conditions that are aimed at protecting
community safety is viewed seriously.
The visa holder accused of non-compliance with a relevant condition will bear the evidential
burden in relation to whether they have a reasonable excuse for their non-compliance. This is
reasonable and necessary in circumstances where, given the nature of the conduct subject of
the conditions, the visa holder will have knowledge of the circumstances of their non-
compliance, such that the visa holder is best placed to furnish to the court the details of the
reasonable excuse.
Consequently, the reverse burden in relation to the reasonable excuse provision does not limit
the right to the presumption of innocence, as it is reasonable, necessary and proportionate in
circumstances where the offender is best placed to provide the evidence of their reasonable
excuse. The creation of these offences is intended to assist in ensuring compliance with
conditions related to the protection of children and other vulnerable members of Australian
society, including the victims of previous offending and their family members, and is
intended to reflect the seriousness of a breach of conditions.
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The Government considers that the new offences are proportionate to the aim of mitigating
risks to the safety of the community, particularly those most vulnerable, posed by non-
citizens who have previously been convicted of an offence that involves minors or other
vulnerable persons or of offences that involve violent or sexual assaults, who are on a
removal pathway but who cannot remain in detention pending removal because there is no
real prospect of their removal being practicable in the reasonably foreseeable future.
Right to liberty
Article 9(1) of the ICCPR states:
Everyone has the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except on such
grounds and in accordance with such procedure as are established by law.
The purpose of the Migration Act, as set out in section 4, is to "regulate, in the national
interest, the coming into, and presence in, Australia of non-citizens". Members of the NZYQ-
affected cohort cannot be detained under section 189 of the Migration Act as long as there is
no real prospect of their removal becoming practicable in the reasonably foreseeable future.
The liberty of a BVR holder in the NZYQ-affected cohort may be affected by the new
offences created by the Bill which carry penalties including terms of imprisonment up to a
maximum of five years, including mandatory one year imprisonment. However, any term of
imprisonment imposed for these offences, beyond the mandatory one year, would follow
conviction by a court and would be imposed by the court in consideration of the seriousness
of the person's offending and the individual circumstances of their case. In reaching its
decision following a finding of guilt it is open to the court to take into account a wide range
of factors, both aggravating and mitigating, to inform its view. Factors such as the nature and
severity of the non-compliance, repeated breaches of visa conditions, degree of contact with
the Department, and the degree of steps taken to remediate non-compliance, or ensure future
compliance with the requirement, are examples of factors that the courts may wish to take
into consideration when considering whether to impose a term of imprisonment and in
determining the appropriate length of sentence.
The Bill imposes a minimum mandatory one year term of imprisonment for the conviction of
an offence for failing to comply with a condition imposed on a BVR for the NZYQ-affected
cohort. It is reasonable, necessary and proportionate that a failure to comply with a condition
carry a mandatory term of imprisonment.
By applying to those individuals with a history of criminal offences involving minors,
vulnerable people or sexual assault, these offences are targeted towards those who pose the
most risk to Australian community. The particular conduct engaged in by breaching these
offences puts at risk the most vulnerable members of society and disregards community
expectations about the protection of especially vulnerable members of society.
Ordinarily, a visa holder who breaches a condition on their visa would be subject to visa
cancellation, detention and removal. However, for the NZYQ affected cohort, this usual
course of action is not available. The government therefore considers that the strengthened
requirements of the minimum mandatory sentences, targeted towards only those individuals
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with serious criminal history, are necessary, reasonable and proportionate for protecting the
most vulnerable members of society.
Mandatory minimum sentences appropriately reflect the seriousness of these offences and the
need to make clear that non-compliance with visa conditions that are aimed at protecting
community safety is viewed seriously. As such, any term of imprisonment following a
conviction for a breach of a conviction would not constitute arbitrary detention.
Right to privacy
Article 17(1) of the ICCPR states:
No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation.
Pursuant to Article 17(1) of the ICCPR, any interference with an individual's privacy must
have a lawful basis. In addition to requiring a lawful basis for limitation on the right to
privacy, Article 17 prohibits arbitrary interference with privacy. Interference which is lawful
may nonetheless be arbitrary where that interference is not in accordance with the objectives
of the ICCPR and is not reasonable in the circumstances.
The Migration Regulations, as amended by the Migration Amendment (Bridging Visa
Conditions) Regulations requires that condition 8621 must be imposed on a BVR granted to
the NZYQ-affected cohort unless the Minister is satisfied that it is not reasonably necessary to
impose the condition for the protection of the Australian community or a part of that
community (or that it is not reasonably necessary to impose the condition in addition to any
other conditions imposed by another provision of Division 070.6. Conditions 8621 relevantly
requires that the holder must wear a monitoring device at all times, and must allow an
authorised officer to fit, install, repair or remove the monitoring device or any related
monitoring equipment.
New section 73F(1) will introduce powers for authorised officers relating to monitoring devices
and related monitoring equipment, including that an authorised officer may do all things
necessary or convenient to be done for the following purposes in relation to a person who is
subject to monitoring:
• Installing, fitting, or removing the person's monitoring device or related monitoring
equipment;
• Maintaining, repairing or otherwise keeping in good working order the person's
monitoring device or related monitoring equipment;
• Operating the person's monitoring device or related monitoring equipment
• Determining or monitoring the location of the person or an object (or the status of an
object) that relates to the person through the operation of the monitoring device or
related monitoring equipment.
New section 73F(2) will introduce powers for authorised officers to collect, use or disclose
personal information to:
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• determine whether conditions of a visa held by a person subject to monitoring are being,
or have been, complied with
• determine whether a person subject to monitoring has committed an offence against the
Migration Act
• protecting the community in relation to persons who are subject to monitoring
• facilitate to location of a person subject to monitoring who is suspected of having failed
to comply with a requirement of a condition of a visa held by the person
• facilitate the location of a person subject to monitoring in the event that their removal
from Australia becomes practicable in the reasonably foreseeable future or if their visa
ceases to be in effect, or
• facilitate the performance of functions and the exercise of powers of authorised persons
under the Act.
Collecting, using and disclosing personal information limits the rights to privacy. However the
limitation is reasonable, necessary and proportionate where the Minister has assessed that
relevant visa conditions are reasonably necessary for the protection of the Australian
community. The purpose of the provisions is to make very clear that collection, use and
disclosure of personal information is authorised for the purposes of monitoring of relevant
individuals, even where State or Territory laws in respect of use of surveillance devices might
otherwise apply.
It is essential for the protection of the Australian community not to have uncertainties around
disclosure to other Commonwealth agencies, state and territory employees, and contractors.
For example information collected by electronic monitoring may need to be disclosed to
Commonwealth, State or Territory police forces in order to take steps to protect children, where
a person who has been convicted of a child sex offence is detected to be within school grounds.
Conclusion
The measures in this Bill are compatible with human rights as, to the extent they limit some
human rights, those limitations are reasonable, necessary and proportionate to the objectives
of ensuring the safety of the community.
The Hon Andrew Giles MP
Minister for Immigration, Citizenship and Multicultural Affairs
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