Federal Register of Legislation - Australian Government

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A Bill for an Act to amend the Migration Act 1958, and for related purposes
Administered by: Home Affairs
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Registered 14 Feb 2018
Introduced HR 14 Feb 2018
Table of contents.

2016‑2017‑2018

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

Migration Amendment (Clarification of Jurisdiction) Bill 2018

 

No.      , 2018

 

(Immigration and Border Protection)

 

 

 

A Bill for an Act to amend the Migration Act 1958, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Schedules............................................................................................ 2

Schedule 1—Amendments                                                                                                3

Part 1—Main amendments                                                                                         3

Migration Act 1958                                                                                                     3

Part 2—Consequential amendments                                                                      6

Administrative Appeals Tribunal Act 1975                                                            6

Part 3—Application of amendments                                                                     7

 

 


A Bill for an Act to amend the Migration Act 1958, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act is the Migration Amendment (Clarification of Jurisdiction) Act 2018.

2  Commencement

             (1)  Each provision of this 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.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedule 1

A single day to be fixed by Proclamation.

However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Amendments

Part 1Main amendments

Migration Act 1958

1  Subsection 5(1) (definition of migration decision)

Repeal the definition, substitute:

migration decision means:

                     (a)  a privative clause decision or purported privative clause decision; or

                     (b)  a non‑privative clause decision or purported non‑privative clause decision; or

                     (c)  an AAT Act migration decision or purported AAT Act migration decision.

2  Subsection 5(1)

Insert:

purported AAT Act migration decision has the meaning given by section 5EB.

purported non‑privative clause decision has the meaning given by section 5EA.

3  After section 5E

Insert:

5EA  Meaning of purported non‑privative clause decision

             (1)  In this Act, purported non‑privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a non‑privative clause decision if there were not:

                     (a)  a failure to exercise jurisdiction; or

                     (b)  an excess of jurisdiction;

in the making of the decision.

             (2)  In this section, decision includes anything listed in subsection 474(3).

5EB  Meaning of purported AAT Act migration decision

             (1)  In this Act, purported AAT Act migration decision means a decision purportedly made, proposed to be made, or required to be made, under a provision of the Administrative Appeals Tribunal Act 1975 that would be an AAT Act migration decision if there were not:

                     (a)  a failure to exercise jurisdiction; or

                     (b)  an excess of jurisdiction;

in the making of the decision.

             (2)  In this section, decision includes anything listed in subsection 474A(2).

4  Section 474A

Before “For the purposes of”, insert “(1)”.

5  At the end of section 474A

Add:

             (2)  A reference in this section to a decision under a provision of the Administrative Appeals Tribunal Act 1975 includes a reference to the following:

                     (a)  granting, making, varying, suspending, revoking or refusing to make an order or determination;

                     (b)  granting, giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

                     (c)  granting, issuing, suspending, revoking or refusing to issue an authority or other instrument;

                     (d)  imposing, or refusing to remove, a condition or restriction;

                     (e)  making or revoking, or refusing to make or revoke, a declaration, demand or requirement;

                      (f)  retaining, or refusing to deliver up, an article;

                     (g)  doing or refusing to do any other act or thing;

                     (h)  conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

                      (i)  a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;

                      (j)  a failure or refusal to make a decision.

6  Subsection 476(3)

After “non‑privative clause decisions”, insert “or purported non‑privative clause decisions”.

7  Subsection 476A(1) (note)

Repeal the note, substitute:

Note:          An appeal in relation to any of the following migration decisions cannot be made to the Federal Court under section 44 of the Administrative Appeals Tribunal Act 1975:

(a)    a privative clause decision or purported privative clause decision;

(b)    an AAT Act migration decision or purported AAT Act migration decision.

                   In addition, reference of a question of law arising in relation to a review of any of the proceedings mentioned in paragraph (a) or (b) cannot be made by the Tribunal to the Federal Court under section 45 of the Administrative Appeals Tribunal Act 1975.

                   The only migration decisions in relation to which an appeal under section 44 of that Act, or a referral under section 45 of that Act, can be made to the Federal Court are non‑privative clause decisions or purported non‑privative clause decisions.

Part 2Consequential amendments

Administrative Appeals Tribunal Act 1975

8  At the end of section 43C

Add:

                   ; (d)  a purported AAT Act migration decision.

Part 3Application of amendments

9  Application of amendments

The amendments made by this Schedule apply in relation to a purported non‑privative clause decision, or a purported AAT Act migration decision, made on or after the day this item commences.