Fact Sheet 81 - Australia's Excised Offshore Places

What is the excised offshore place legislation?

In September 2001, the Migration Amendment (Excision from Migration Zone) Act 2001 (the excision legislation) amended the Migration Act 1958 (the Act). The excision legislation defines certain places as 'excised offshore places'. The effect of the excision legislation is that non-citizens who have first entered Australia at an excised offshore place without lawful authority — meaning without a valid visa that is in effect — are barred from making valid visa applications on arrival or during their stay in Australia. These non-citizens may be detained and removed from Australia.

The Minister for Immigration and Citizenship can lift the bar to making a valid visa application if it is believed to be in the public's interest to do so, which will allow a person to make a valid visa application.

Excised offshore places are still under Australian jurisdiction and sovereignty and the Act continues to apply in these places in all other respects.
These laws were introduced to strengthen Australia's territorial integrity, reduce instances of people entering Australia without a visa that is in effect by means of hazardous sea or air voyages and deter the activities of people smugglers.
See: Fact Sheet 70 – Managing the border

A map of the excised offshore places in PDF format accompanies this fact sheet.

Where are the excised offshore places?

The following places are excised offshore places:

• the Territory of Christmas Island in the Indian Ocean (excised since 8 September 2001)
• the Territory of Ashmore and Cartier Islands in the Timor Sea (excised since 8 September 2001)
• the Territory of Cocos (Keeling) Islands in the Indian Ocean (excised since 17 September 2001)
• any other external territory and any island that forms part of a state or territory prescribed in the regulations for the purposes of the definition of excised offshore place.

The regulations prescribe:

• all islands that form part of Queensland and are north of latitude 21 degrees south (excised since 22 July 2005
• all islands that form part of the Northern Territory and are north of latitude 16 degrees south (excised since 22 July 2005)
• all islands that form part of Western Australia and are north of latitude 23 degrees south (excised since 22 July 2005)
• Coral Sea Islands Territory (excised since 22 July 2005)
• all Australian sea and resource installations, (as defined in the Act) (27 September 2001).

The attached map shows the exact location of the islands.
See: Excision Places Map (622KB PDF file)

Who is an offshore entry person?

A person who is not an Australian citizen and who arrives in Australia must hold a valid visa that is in effect. A non-citizen who is in Australia and does not hold a valid visa which is in effect is an unlawful non-citizen. If the person entered Australia at an excised offshore place (without a valid visa which is in effect) they are an offshore entry person.

A person who is an offshore entry person is barred from applying for any visa at an excised offshore place or anywhere else in Australia. The bar can only be lifted by the minister. This is a discretionary and non-compellable power held personally by the minister. This means that the minister may intervene to lift the bar in an individual case but cannot be forced by anyone to make such a decision. If the decision has been made to lift the bar, the Act requires that the minister table a statement in parliament explaining the reasons for the intervention.

If an offshore entry person leaves Australia, the person may apply for a visa from outside of Australia.

What happens to offshore entry persons?

Foreign nationals can enter Australia by excised offshore places and occasionally do so without a visa that is in effect.

If overseas visitors on yachts enter Australia at an excised offshore place port and do not have a valid visa in effect before arrival, hey will be considered an offshore entry persons and barred from applying for visas in Australia.
See: Fact Sheet 82 – Immigration Detention

Does a bar on asylum seekers being able to apply for visas under the Migration Act breach our international obligations?

No. Australia meets its international obligations through the protection assessment process. This includes a primary assessment against protection obligations under the Refugees Convention 1951 and complementary protection obligations.

On 24 March 2012, legislation commenced known as complementary protection. This incorporates Australia's obligations under other international treaties, including the The International Covenant on Civil and Political Rights and its Second Optional Protocol aiming at the abolition of the death penalty; and The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment into the protection assessment process.

People who are found not to have engaged Australia's protection obligations process may be returned to a country where they have a right of residence.

Can non-citizens without valid visas that are in effect in the territorial sea around an excised offshore place be detained?

Yes. The detention powers under the Act include the discretionary power to detain a non-citizen:

• who arrives at an excised offshore place without a visa that is in effect
• who are in the territorial sea of Australia around an excised offshore place but not yet in the migration zone (see Excision Places Map above)
• who are suspected of seeking to enter the excised offshore place.

How does the excision legislation affect lawful non-citizens?

Visitors who enter Australia for the first time at an excised offshore place with a valid visa that is in effect are not affected by the excision legislation.

Are traditional inhabitants from Papua New Guinea (PNG) in the Torres Strait disadvantaged by the excision legislation?

No, members of the PNG traditional communities in the Torres Strait are not affected by the excision legislation as long as they comply with the arrangements under the Torres Strait Treaty, which are reflected in the Act. The Act permits PNG traditional inhabitants to move freely around the Protected Zone in connection with the performance of traditional activities without having to hold a visa.
See:
Fact Sheet 70 – Managing the border
Fact Sheet 72 – DIAC's role in the Torres Strait

Further information is available on the department's website.
See: www.immi.gov.au

The department also operates a national general enquiries line.
Telephone: 131 881
Hours of operation: Monday to Friday from 8.30 am to 4.30 pm. Recorded information is available outside these hours.

Fact Sheet 81. Produced by the National Communications Branch of the Department of Immigration and Citizenship, Canberra.
Last reviewed April 2012.

© Commonwealth of Australia 2009.