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Amendments to clarify pre-arrival reporting requirements on operators of aircraft and ships, and also to provide for an infringement notice regime as an alternative to prosecution under subsection 245N(2); and amendments to enforcement visas.

15 March 2009 Legislation Change

Client summary

The Migration Legislation Amendment Act (No. 1) 2008 (‘Amendment Act’) received Royal Assent on 15 September 2008. From 15 March 2009, items 4, 5, 6, 7, 8, 8A, 9, 10, 11, 16, 16A, 17, 21 and 22 of Schedule 2 to the Amendment Act commence by operation of law.

Item 2 of the table in subsection 2(1) of the Amendment Act provides that Schedules 1 and 2 to the Amendment Act commence on a day or days to be fixed by Proclamation (or on the first day after the end of a 6 month period which begins on the day of Royal Assent). 

The items in Schedule 2 to the Amendment Act which commence on 15 March 2009, make a range of amendments to strengthen and improve the border protection provisions in the Migration Act 1958 (the ‘Act’) and the Customs Act 1901 (the ‘Customs Act’) including measures to:

  • Clarify that the reporting requirements contained in the Act and the Customs Act apply to each passenger and crew member;
  • Provide that the regulations may prescribe matters enabling a person who is alleged to have committed an offence against subsection 245N(2) of the Act to pay the Commonwealth as an alternative to prosecution a prescribed penalty not exceeding 10 penalty units;
  • Clarify that an operator of an aircraft or ship commits a separate offence in relation to each passenger or crew member in relation to whom the operator contravenes section 64ACA or 64ACB of the Customs Act or subsection 245N(2) of the Act;
  • Clarify that an enforcement visa is a class of visa provided for in the Act.

Affected legislation

The following provisions of the Customs Act are amended:

Subsection 64ACA(1);
Subsection 64ACB(1);
Paragraph 64ACC(1)(a);
Paragraph 64ACC(1)(b);
Subsection 64ACC(2), note; and
Subsection 64ACD(4).

The following provisions of the Act are amended:

Subsection 245J(2A);
Subsection 245K(1A);
Subsection 245N(2), note;
Subsection 245N(4);
Paragraph 504(1)(jaa);
Subsection 31(2); and
Subsection 31(3).

Additional information: None.

Application of the new provisions:

The amendments in relation to reporting on passengers and crew of aircraft and ships made by items 4, 5, 6, 7, 8, 8A,10 and 11 of Schedule 2 to the Amendment Act apply in relation to arrivals at an airport or port in Australia on or after 15 March 2009.

The amendment made by item 9 of Schedule 2 to the Amendment Act describes the application of items 4 to 8A of Schedule 2.

The amendments made by items 16, 16A and 17 of Schedule 2 to the Amendment Act apply in relation to an offence against subsection 245N(2) of the Act which is alleged to have been committed on or after 15 March 2009.

The amendments made by items 21 and 22 of Schedule 2 to the Amendment Act apply to Enforcement visas on or after 15 March 2009.

Forms: None.

Instructions: PAM3 relating to the infringement notice regime will be amended to reflect these legislative changes. MSI 360 relating to Enforcement visas does not require any alterations as a result of these legislative amendments.