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2004 2005 2006 - 2007
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (MARITIME CREW) BILL 2007
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Immigration and Citizenship,
the Hon Kevin Andrews MP)
MIGRATION AMENDMENT (MARITIME CREW) BILL 2007
OUTLINE
1. The Migration Amendment (Maritime Crew) Bill 2007 ("the Bill") amends the
Migration Act 1958 (`the Act') to create a new maritime crew visa.
2. The maritime crew visa will replace special purpose and other visas currently
granted by operation of law to foreign crew of non-military ships, foreign crew of
ships being imported into Australia, foreign supernumerary crew and the spouses and
dependent children accompanying such crew. Special purpose visas will otherwise
remain in place for other non-maritime crew purposes.
3. Currently foreign crew and their families are not required to make a formal
application for a visa before coming to Australia. The grant of a maritime crew visa
will require a formal application to be made, which will allow each foreign crew
member and the spouses and dependent children of such crew, to be subjected to an
appropriate level of security checking before visa grant.
4. The Bill will:
· create a new class of temporary visas called maritime crew visas;
· provide that a maritime crew visa is valid only for travel and entry to Australia
by sea;
· provide that a maritime crew visa holder must enter Australia at a proclaimed
seaport unless an authorised officer authorises entry in some other way, or an
emergency situation requires entry in another way;
· provide that a maritime crew visa will cease if the Minister declares that it is
undesirable that the holder (or a class of persons of which the holder is a
member), travel to and enter Australia by sea, or remain in Australia;
· provide that a maritime crew visa is not to cease if the Minister revokes the
declaration and that no claims are to be made against the Commonwealth by
the non-citizen for detention in the period between the declaration and
revocation;
· enable a maritime crew visa to be held at the same time as certain other
substantive visas such as an Electronic Travel Authority or a Transit Visa;
· ensure persons who carry a maritime crew visa holder to Australia by air are
guilty of an offence unless the holder also holds another visa which permits
travel by air, or the aircraft entered Australia in an emergency situation; and
· effect other minor and technical amendments related to the change from
special purpose visa to maritime crew visa.
5. The amendments are intended to enhance Australia's border integrity.
FINANCIAL IMPACT STATEMENT
6. The Government has committed $100.3 million over five years for the
maritime crew visa. The budget for the maritime crew visa will permit the
Department of Immigration and Citizenship to develop the necessary IT systems
associated with the visa and to record sea crew movement, to employ additional
Regional Seaports Officers to assist industry with the new visa and conduct vessel
boardings, to employ additional staff associated with visa processing, and provide
support to the shipping industry. The Australian Customs Service will be funded to
employ additional Customs Officers to enforce the new provisions as part of
Customs' vessel clearance process. Funding will also be provided to cover the
security checking processes associated with the new visa.
MIGRATION AMENDMENT (MARITIME CREW) BILL 2007
NOTES ON INDIVIDUAL CLAUSES
Part 1 Preliminary
Clause 1 Short title
The short title by which this Act may be cited is the Migration Amendment (Maritime
Crew) Act 2007.
Clause 2 Commencement
Subclause 2(1) contains a table setting out the commencement information for the
Bill. Item 1 of the table provides for sections 1 to 3 of the Bill to commence on the
date of the Royal Assent.
Item 2 of the table provides for Schedule1, Part 1 to commence on a date to be fixed
by proclamation, failing which, on the first day after a six month period beginning on
the date the Act receives the Royal Assent.
Item 3 of the table provides for items 15 and 16 of Schedule 1 to commence at the
same time as the provisions covered by table item 2. In addition, item 3 of the table
provides that if items 4 and 5 of Schedule 1 to the Migration Amendment (Visa
Integrity) Act 2007 (`the Visa Integrity Act') commence at or before that time, the
provisions do not commence at all. This contingency provision is needed because the
Visa Integrity Act and the Bill both amend section 173 of the Act.
Item 4 of the table provides for item 17 of Schedule 1 to commence immediately after
the provisions covered by table item 2. In addition, item 4 of the table provides that if
items 4 and 5 of Schedule 1 to the Visa Integrity Act do not commence at the same
time as or before the provisions covered by table item 2 commence, the provisions do
not commence at all. This contingency provision is needed because the Visa Integrity
Act and the Bill both amend section 173 of the Act.
Items 5 of the table provides for item 18 of Schedule 1 to commence immediately
before the commencement of item 4 of Schedule 1 to the Visa Integrity Act. In
addition, item 5 of the table provides that if that item commences at the same time as
or before the provisions covered by table item 2 commence, item 18 of Schedule 1 to
this Act will not commence at all. This contingency provision is needed because the
Visa Integrity Act and the Bill both amend section 173 of the Act.
The note in subclause 2(1) makes it clear that the table only relates to the provisions
of the Act as originally passed by the Parliament and assented to. The table will not
be expanded to deal with provisions inserted into the Act after it receives the Royal
Assent.
Subclause 2(2) provides that column 3 of the table in subclause 2(1) is for additional
information that may be included in any published version of the Act but which is not
part of the Act eg: the actual date of commencement of the provisions.
Clause 3 Schedule(s)
This clause provides that each Act specified in a Schedule to the Bill is amended or
repealed as set out in the applicable items in the Schedule concerned. In addition, any
other item in a Schedule to the Bill has effect according to its terms.
Schedule 1 Amendments
Part 1 Main amendments
Migration Act 1958
Item 1 Subsection 5(1)
This item amends the interpretation provisions contained in section 5 of the Act by
inserting a definition of `maritime crew visa' in subsection 5(1) and providing for it to
have the meaning given by new section 38B inserted by item 5.
Item 2 At the end of subsection 29(1)
This item adds a note at the end of subsection 29(1) of the Act.
Subsection 29(1) provides the Minister with the power to grant a visa to a non-citizen
which is authority, either or both, to travel to and enter Australia and to remain in
Australia. The addition of the note after subsection 29(1) is to indicate that the
maritime crew visa is generally permission to travel to and enter Australia only by sea
and authority to remain in Australia after arrival by sea. The exception will be where
an emergency situation requires a maritime crew visa holder to enter Australia in
some other way, or an authorised officer authorises a maritime crew visa holder to
enter Australia in some other way, for example by air (see new paragraphs 43(1A)(b)
and (c), inserted by item 8).
Item 3 Subsection 31(2)
This item omits the words "and 38" from subsection 31(2) and substitutes ", 38 and
38B".
Subsection 31(2) sets out those classes of visa provided for by the Act (rather than
prescribed under the regulations). The addition of section 38B adds the maritime crew
visa to the reference list of classes already specified in subsection 31(2).
Item 4 Subsection 31(3)
This item omits "or 37A" and substitutes ", 37A or 38B" in subsection 31(3).
Subsection 31(3) provides for regulations to prescribe criteria for visas including for
those classes provided for under sections 32 (special category visas), 36 (protection
visas), 37 (bridging visas), and 37A (temporary safe haven visas). This amendment
adds maritime crew visas to the list of visas for which criteria may be prescribed in
the regulations. It is intended that the regulations will set out how an application for a
maritime crew visa is to be made, and the criteria for grant of such a visa. The criteria
will apply not just to foreign crew of non-military ships, but also foreign crew of ships
being imported into Australia, foreign supernumerary crew, and spouses and
dependents accompanying such crew.
Item 5 After section 38A
This item inserts new section 38B after section 38A. New section 38B creates
maritime crew visas.
New subsection 38B(1) provides for there to be a class of temporary visas called
maritime crew visas which allow the holder to travel to and enter Australia by sea,
and stay in Australia.
New subsection 38B(2) provides, for the avoidance of doubt, that a maritime crew
visa held by a non-citizen does not give permission for the person to travel to and
enter Australia by air. It is subject to new subsection 43(1B) (inserted by item 8),
which permits a maritime crew visa holder to enter Australia by air in certain
circumstances.
The note after subsection 38B(2) draws attention to the fact that a non-citizen who is
the holder of a maritime crew visa might also hold another class of substantive visa
that allows that person to travel to and enter Australia by air. New subsection
82(2AA) (inserted by item 9) allows maritime crew visas to be held concurrently with
certain other visas.
New subsection 38B(3) provides the Minister with a power to make a written
declaration for the purposes of section 38B that it is undesirable that a person, or any
persons in a class of persons, travel to and enter Australia, or remain in Australia. A
declaration under this provision causes the maritime crew visa held by the person to
whom the declaration applies to cease to be in effect (see new subsection 38B(4)).
This provision replicates a similar power currently available to the Minister under the
special purpose visa provisions in section 33 of the Act. Section 33 currently applies
to maritime crew (among others) and section 38B is designed to replace section 33 in
respect of maritime crew on non-military ships, foreign crew of ships being imported
into Australia, foreign supernumerary crew, and spouses and dependents
accompanying such crew.
New subsection 38B(4) provides that a maritime crew visa held by a person to whom
a subsection 38B(3) declaration applies will cease to be in effect at the following
times:
· if the Ministerial declaration specifies a time for the declaration to take effect,
a maritime crew visa held by a non-citizen or non-citizens specified in the
declaration ceases to be in effect at that time (paragraph subsection
38B(4)(a));
· if the Minister does not specify a time for the declaration to take effect, the
maritime crew visa held by a non-citizen or non-citizens specified in the
declaration ceases to be in effect at the end of the day on which the declaration
is made (paragraph 38B(4)(b)).
For the avoidance of doubt, a note after new subsection 38B(4) indicates that a
maritime crew visa can also cease to be in effect under other sections of the Act, for
example, section 82. A maritime crew visa will also cease to be in effect under
subsection 173(1) (as amended by item 15) if the holder enters Australia in
contravention of subsection 43(1A) (inserted by item 8).
New subsection 38B(5) provides, in effect, that if the Minister revokes a declaration
made under subsection 38B(4), then the maritime crew visa is deemed to have been in
effect continuously from grant, despite the Minister's declaration.
For the avoidance of doubt, a note is added after new subsection 38B(5) to indicate
that subsection 33(3) of the Acts Interpretation Act 1901 provides the power to revoke
declarations. The note therefore makes it clear that the Minister has the power to
revoke a declaration made under subsection 38B(3).
New subsection 38B(6) provides that if a non-citizen is detained in the period
between the Minister making a declaration under new subsection 38B(3) and revoking
that declaration, then that detention is lawful and the non-citizen is not entitled to
make any claim against the Commonwealth, an officer or any other person because of
the detention. This provision is similar to other provisions in the Act that limit the
liability of the Commonwealth for any periods of detention that occur before a visa
cancellation decision is revoked or set aside (see subsections 114(2), 137P(5) and
501C(7)).
Item 6 At the end of subsection 42(1)
This item adds a note at the end of subsection 42(1) indicating that a maritime crew
visa is generally permission to travel to Australia only by sea (see subsection 38B(1)
inserted by item 5). Subsection 42(1) provides that a non-citizen must not travel to
Australia without a visa that is in effect.
Item 7 Subsection 43(1)
This item omits the words "subsection (3)" in subsection 43(1) and substitutes the
words "subsection (1A) and (3)" to take account of the insertion of new subsection
43(1A) by item 8.
Item 8 After subsection 43(1)
This item inserts new subsections 43(1A) and (1B).
New subsection 43(1A) provides that, subject to the regulations, a maritime crew visa
is permission for the holder to enter Australia in the ways set out in the subsection.
New paragraph 43(1A)(a) provides that a maritime crew visa that is in effect is
permission to enter Australia at a "proclaimed port" (which under subsection 5(1) of
the Act effectively means a seaport).
New paragraph 43(1A)(b) provides that where the health or safety of a person or a
prescribed reason make it necessary for the holder of a maritime crew visa to enter
Australia in another way (ie. other than at a proclaimed port), that other way of
entering is lawful.
New paragraph 43(1A)(c) provides that the holder of a maritime crew visa may enter
Australia in a way authorised by an authorised officer.
New subsection 43(1B) makes it clear that despite subsections 38B(1) and (2)
(inserted by item 5), the holder of a maritime crew visa may enter Australia under
paragraphs 43(1A)(b) and (c) by air. Subsections 38B(1) and (2) provide that a
maritime crew visa is permission only to travel to and enter Australia by sea.
Item 9 After subsection 82(2)
This item inserts new subsection 82(2AA).
New paragraph 82(2AA)(a) provides for a maritime crew visa to co-exist with another
substantive visa of a class specified by the Minister, by legislative instrument. The
provision takes account of the fact that the holders of maritime crew visas may from
time to time need to travel to Australia by air using another type of visa, or that they
may wish at some stage during the visa period of their maritime crew visa to obtain a
visa, for example, to holiday in Australia. The provision therefore provides that a
maritime crew visa does not cease if another specified visa comes into effect. It is
intended that electronic travel authorities, and transit visas, will be included in the list
of visa classes specified for subsection (2AA), to permit foreign crew to fly to
Australia if they have to join a ship in Australia.
New paragraph 82(2AA)(b) provides that a substantive visa of a kind specified by the
Minister, by legislative instrument, does not cease to be in effect if a maritime crew
visa comes into effect. This is the `flip-side' of the position articulated in paragraph
82(2AA)(a). The list of visa classes will be the same as those applying to paragraph
(a).
Item 10 Subsection 82(3)
This item adds "or a maritime crew visa" to subsection 82(3).
Subsection 82(3) provides that a bridging visa held by a non-citizen ceases to be in
effect if another visa (other than a special purpose visa) for the non-citizen comes into
effect. This amendment ensures that as for the situation for special purpose visas,
bridging visas will not cease to be in effect when a maritime crew visa for the non-
citizen comes into effect.
Item 11 After subsection 229(1)
This item inserts new subsection 229(1A). Subsection 229(1A) creates a new offence,
relating to the carriage to Australia by air of persons who hold maritime crew visas.
The offence applies to a master, owner, agent, charterer or operator of an aircraft.
Such a person will commit an offence if the person brings a maritime crew visa holder
to Australia by air on the aircraft. This is because a maritime crew visa is permission
only to travel to and enter Australia by sea (see subsections 38B(1) and (2) inserted by
item 5).
For the purposes of air travel, an airline which seeks to uplift a passenger who is only
the holder of a maritime crew visa will not know the person holds a maritime crew
visa from the information given to the airline by Department of Immigration and
Citizenship systems. In such cases the airline will be advised by the department's
computer systems that the person is not properly documented for travel by air. In such
cases, unless the airline seeks specific authority they will be carrying a person they
know does not hold a visa for travel by air.
It is an offence under subsection 229(1) to bring a person to Australia who is not in
possession of evidence of a visa that is in effect. A person who holds a maritime crew
visa will be in possession of a visa that is in effect, so no offence is committed under
subsection 229(1) by bringing a maritime crew visa holder to Australia by air.
There are defences to a prosecution for an offence against subsection 229(1A) (see
subsection 229(5A) inserted by item 13).
Item 12 Subsection 229(3)
This item amends subsection 229(3) to insert a reference to subsection 229(1A),
inserted by item 11.
Subsection 229(3) provides that an offence against subsection 229(1) is an offence of
absolute liability. Subsection 229(1) makes it an offence for certain persons to bring a
non-citizen to Australia unless the non-citizen is in possession of evidence of a visa
that is in effect.
Subsection 229(1A) makes it an offence for certain persons to bring a maritime crew
visa holder to Australia by air. Consistent with subsection 229(3) providing that
subsection 229(1) is an offence of absolute liability, it is appropriate that subsection
229(3) also provide that subsection 229(1A) is an offence of absolute liability. The
Criminal Code provides that an offence of absolute liability is one where there are no
fault elements to the offence and the defence of mistake of fact is unavailable. New
subsection 229(5A) sets out several defences to the offence in subsection 229(1A)
(see item 13).
Item 13 After subsection 229(5)
This item inserts new subsection 229(5A), which provides defences to a prosecution
for an offence against subsection 229(1A) (inserted by item 11). Subsection (1A)
makes it an offence for certain persons to bring a maritime crew visa holder to
Australia by air.
Paragraph (5A)(a) provides that it is a defence if at the time the maritime crew visa
holder boarded or last boarded the aircraft, he or she was in possession of evidence of
another class of visa that was in effect, such as a transit visa or electronic travel
authority, and which did not appear to have been cancelled, provided that other visa
was expressed to cover the period until the expected entry into Australia. This mirrors
a defence against the offence in subsection 229(1), contained in paragraph 229(5)(a).
The defence allows for situations in which the other visa may have ceased (for
example, it may have been cancelled under section 128 of the Act) but this is not
apparent to the carrier.
Paragraph (5A)(b) allows for cases where an aircraft, carrying a maritime crew visa
holder, is required to enter Australia because of an emergency situation. It is a defence
if the aircraft entered Australia from overseas because of the illness of a person on
board, stress of weather, or other circumstances beyond the control of the master. This
also mirrors a defence to the offence in subsection 229(1) in paragraph 229(5)(c).
Item 14 After subsection 229(6)
This item inserts "or (5A)" after "subsection (5)" to subsection 229(6).
Subsection 229(6) provides that a defendant bears a legal burden in relation to the
matters in subsection 229(5). Subsection 229(5) provides defences to the offence of a
carrier bringing into Australia a person who does not hold an eligible visa that is in
effect.
Subsection 229(5A) provides defences to a prosecution for an offence against
subsection 229(1A) (inserted by item 13). This amendment ensures that a defendant
bears the legal burden in relation to the defences in subsection 229(5A).
Part 2 Amendments contingent on the Migration Amendment (Visa Integrity)
Act 2007
Item 15 Section 173
This item is a technical amendment to section 173, consequential to the insertion of
new subsection 173(1A) by item 16.
The note is inserted to remind readers that item 15 will not commence at all if items 4
and 5 of Schedule 1 to the Visa Integrity Act commence at the same time as or before
Part 1 of this Schedule commences. This is because item 4 of the Visa Integrity Act
will make the same technical amendment to section 173, consequential to the
insertion of new subsection 173(2) by item 5 of the Visa Integrity Act.
Item 16 At the end of section 173
This item adds a new subsection 173(1A).
New subsection 173(1A) will apply where a person holds both a maritime crew visa
that is in effect and a visa of another class, when entering Australia. If the person
enters Australia by air, the maritime crew visa will not cease under subsection 173(1),
even though the maritime crew visa does not permit entry by air. This is because the
person holds another visa which does permit entry by air. If a person enters by air and
holds only a maritime crew visa, that visa will cease under subsection 173(1) unless
an emergency situation required entry by air, or an authorised officer permitted the
person to enter by air (see paragraphs 43(1A)(b) and (c), inserted by item 8).
The note is inserted to remind readers that item 16 will not commence at all if items 4
and 5 of Schedule 1 to the Visa Integrity Act commence at the same time as or before
Part 1 of this Schedule commences. This is because item 4 of the Visa Integrity Act
will make the same technical amendment to section 173, consequential to the
insertion of new subsection 173(2) by item 5 of the Visa Integrity Act. If this occurs,
the insertion of new subsection 173(1A) will be effected by item 17 below.
Item 17 - After subsection 173(1)
This item inserts a new subsection 173(1A) which is identical to the provision at item
16 and covers the contingency that items 4 and 5 of the Visa Integrity Act (which also
amends section 173) do not commence at the same time as or before Part 1 of this
Schedule commences (i.e. where this Bill commences first).
The note is inserted to remind readers that item 17 will not commence at all if items 4
and 5 of Schedule 1 to the Visa Integrity Act do not commence at the same time as or
before Part 1 of this Schedule commences. In this case, new subsection 173(1A) will
be added by item 16 above.
Migration Amendment (Visa Integrity) Act 2007
Item 18 Item 4 of Schedule 1
This item repeals item 4 of Schedule 1 of the Visa Integrity Act. Item 4 of Schedule 1
of the Visa Integrity Act is a technical amendment consequential to the insertion of a
new subsection 173(2) by item 5 of the Visa Integrity Act.
The note is inserted to remind readers that item 18 will not commence at all if item 4
of Schedule 1 to the Visa Integrity Act commences at the same time as or before Part
1 of this Schedule commences.
The purpose of this amendment is to repeal the technical amendment that would be
made by item 4 of the Visa Integrity Act, where the Bill commences first, as the same
technical amendment will already have been made by 15 of the Bill above; and item 4
of the Visa Integrity Bill will be redundant.
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